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Public Opinion Survey in Serbia Sheds Light on ICTY Legacy

EJIL:Talk! - Mon, 01/22/2018 - 09:00

In anticipation of the closing of the ICTY, there has been plenty of discussion, including at EJIL: Talk! (see here), on the court’s impact in the former Yugoslavia, particularly relating to the public’s acceptance of ICTY findings and reconciliation. I’d like to contribute to this discussion with findings from the most recent public opinion survey conducted in Serbia – published in December 2017 (“Awareness of citizens of Serbia about the wars of the ‘90s, war crimes and war crimes trials” designed by the Humanitarian Law Center, commissioned by the Serbian daily Danas and conducted by Demostat – available only in Serbian here).

The latest survey mostly confirms what we already know from those previously conducted – revisionism and denialism are prevalent, and ethnic bias is entrenched – but it also provides additional information about these phenomena.

Revisionism and denialism

The latest survey confirms that there is overwhelming public distrust in the ICTY and its findings. For example, 56% of the respondents find the ICTY to be partial and biased, while only 6% believe the opposite. Almost half of the respondents consider that the ICTY didn’t contribute in any way to establishing the truth about the wars (p. 17). In line with the findings from earlier surveys, only 12% believe that what happened in Srebrenica is as established in ICTY judgments, while the ignorance pertaining to other ICTY-adjudicated crimes is even greater (e.g. regarding Ovčara 64% don’t know what happened, for the siege of Sarajevo it is 71%, for mass graves in Serbia 83%).

Serbia, through its highest officials, has a long record of refusing to accept findings made by the ICTY, particularly relating to the Srebrenica genocide. In 2015, upon Serbia’s request, Russia vetoed a Security Council resolution intending to mark the 20th anniversary of the genocide. Most recently, the Serbian Parliament amended its Criminal Code, supposedly in order to align it with the EU acquis, and criminalized the public denial of genocide but – and here’s the twist – did so only if the crime has been established by Serbian courts or the ICC. The amendment does not include the ICTY or ICJ – the only two courts which have adjudicated on the Srebrenica genocide.

Not surprisingly, revisionism in Serbia has in recent years been accompanied by the glorification of war criminals and their return to public office and public life in general. After serving his ICTY-imposed sentence for crimes against humanity committed in Kosovo, former Commander of the Pristina Corps, Vladimir Lazarević, had a state-organized welcome ceremony and, two months ago, he became a lecturer at the Military Academy. His co-convict, Nikola Šainović, has become a member of the Main Board of the ruling Socialist Party. Another convicted war criminal – Veselin Šljivančanin – has become a regular speaker at public forums organized by Serbia’s ruling Serbian Progressive Party. The list goes on (see e.g. here, here, here).

Against this background, a finding of the recent survey is rather surprising – an astounding 77% of respondents think that convicted war criminals should not be allowed to participate in political life. Such discord between Serbian political reality and the overwhelming public opinion seems to be just further proof of widespread denialism – war criminals should not take part in public life, however, those convicted by the “anti-Serb” ICTY are not guilty in the public’s view.

Ethnic bias

The survey findings relating to ethnic bias are the most striking. An overwhelming majority of respondents believe that non-Serbian war crimes suspects, who were acquitted by the ICTY, are guilty. The findings suggest that their ethnicity (i.e. non-Serbian ethnicity) is the crucial factor when delivering the “verdict” of the public opinion. When asked whether Kosovo’s incumbent Prime Minister (acquitted by the ICTY in 2012) is guilty, 64% consider that he is. Not one respondent of Serbian ethnicity found him not guilty. However, when asked what exactly he is guilty of, 40% did not know the answer, while the other 60% gave vague and general responses (e.g. “killings”, “war crimes”). A less obvious finding on ethnic bias was that 42% of respondents believe that Haradinaj could have a fair trial in Serbia, even though 41% of these 42% don’t consider the local war crimes judiciary to be impartial (p. 23). The responses were almost identical in relation to the former senior Commander of Bosnian Muslim forces in Srebrenica Naser Oric (acquitted by the ICTY in 2008).

The respondents’ ethnic bias was further tested when they were asked whether a fictional person with an obviously Croatian name (Krešimir Horvat) was guilty – while the majority did not respond, 12% found him guilty, out of which 8% “knew” what he was guilty of.

Ethnic bias was further confirmed in the survey when the respondents were asked to rank how close they consider other nations to be to the Serbs. An overwhelming majority found Albanians (80%), Croats (66%) and Bosnians (57%) to be the most distant, while all other, mostly randomly picked, nations were considered closer. An expected finding was that with the increase of distance towards Albanians, Croats and Bosnians, the belief that Serbs were the greatest victims and had the fewest perpetrators also increased. Half of the respondents considered Serbs to be the greatest victims of the wars and 5% (the least number of respondents) considered most perpetrators to be Serbs (pp. 32-33).

One of the key findings relating to the public’s ethnic bias is that those who consider themselves well-informed about war crimes trials (about half of the respondents) are those who demonstrated the most ethnic prejudice – they were the most likely to find non-Serbian “suspects”, including the fictional one, guilty (p. 27-28, 31). This finding shows that the public’s motivation for getting informed is for the purpose of confirming their pre-established beliefs (a point effectively argued by Marko Milanovic in ‘Establishing the Facts About Mass Atrocities: Accounting for the Failure of the ICTY to Persuade Target Audiences). Not unexpectedly, confirmation bias – i.e. the tendency to search for and interpret information in a way that confirms one’s preexisting beliefs – was not found only when testing the public’s ethnic bias, but also when testing their attitudes towards the ICTY. Namely, 76% of those who consider themselves well-informed about war crime trials find the ICTY to be partial and biased (p. 15) and are the least likely to believe that the court contributed to establishing the truth about the wars (p. 17). Furthermore, out of the 56% of respondents who find the ICTY to be biased, the majority based its response on vague reasons such as repeating that the court is “biased” (16%), “political” (2%), “anti-Serb” (16%) (pp. 14, 16). The majority of those who accounted for their distrust in vague generalities are the highest educated respondents (57% of 45%) (p. 16).

What to expect?

Despite the vast factual legacy of the ICTY which should lay the foundation for reconciliation in the region, the people in the former Yugoslavia are in fact further away from each other than ever. In the ICTY’s defense though, the survey doesn’t support the hypothesis that had the ICTY been perceived as impartial it would have persuaded the public in its findings. On the contrary, the survey suggests that no matter what the ICTY had done, it would not have been able to convince the Serbian public that some of the gravest crimes during the wars have been committed by Serbs and that Serbs were not the greatest victims. This conclusion is supported by the survey findings that out of the 56% of respondents who find the ICTY to be biased, the majority cannot state a concrete reason for believing so (pp. 14-16); or that, although 47% of the respondents consider Serbs to be the greatest victims of the wars, 52% of them cannot name a single crime committed against Serbs (pp. 31, 52).

Leaving aside the issue of whether reconciliation was in the ICTY’s mandate, the court was doubtlessly a tool for restoring and maintaining peace in the Western Balkans. We know that this goal wasn’t achieved in the short-term as the Srebrenica genocide and the Kosovo conflict took place after its establishment. Unless we define peace as the mere absence of war, these latest public survey results question whether this goal has been achieved even in the long-run considering the rampant and worsening revisionism, denialism, ethnic nationalism and warnings of new conflicts.

International justice’s ability to reach the public in the former Yugoslavia will be tested again shortly after the ICTY’s closure, as the new special court for Kosovo is about to issue its first indictments. The court is supposed to prosecute former Kosovo Liberation Army members for, among others things, crimes against Serbian victims. There is no reason to doubt that the indictments and eventual judgments will produce the same polarized reactions in both Serbia and Kosovo, just as with the ICTY, and that the court will be able to do little or nothing to shift entrenched nationalist narratives about the conflict.

Announcements: UN Audiovisual Library of International Law; CfA UN Regional Course in International Law for Latin America and the Caribbean; Summer Academy on the Continental Shelf; V Biennial Conference of the LASIL-SLADI; Goettingen Journal of...

EJIL:Talk! - Sun, 01/21/2018 - 12:00

1. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Claus Kress on “The Crime of Aggression under International Law” and Professor José E. Alvarez on “The Human Right of Property”.

2. Call for Applications: 2018 United Nations Regional Course in International Law for Latin America and the Caribbean. The 2018 United Nations Regional Course in International Law for Latin America and the Caribbean is organized by the Codification Division of the United Nations Office of Legal Affairs in cooperation with the Government of Chile and the United Nations Economic Commission for Latin America and the Caribbean (ECLAC). The Regional Course will be held in Santiago, Chile, from 23 April to 18 May 2018, and will be conducted in English. The Office of Legal Affairs is still accepting applications (deadline is 22 January 2018). For more information, visit here.   

3. Summer Academy on the Continental Shelf. The Summer Academy on the Continental Shelf (SACS) will be held from 21 to 28 April 2018 under the auspices of the University of the Faroe Islands and the African Institute of International Law, and sponsored by the Korean Maritime Institute. SACS 2018 will be held in Arusha, Tanzania. The purpose of SACS is to disseminate scientific and legal knowledge relating to the regime of the continental shelf, in particular the area beyond 200 nautical miles. SACS will be limited to 32 attendees with particular interest for scientific and legal aspects relating to the continental shelf. SACS will be tutored by judges of international courts and tribunals, members of the Commission on the Limits of the Continental Shelf and international practitioners with lengthy experiences in continental shelf matters. Any query relating to SACS can be addressed to sacs {at} setur(.)fo var mailNode = document.getElementById('emob-fnpf@frghe.sb-46'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%61%63%73%40%73%65%74%75%72%2E%66%6F"); tNode = document.createTextNode("sacs {at} setur(.)fo"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-fnpf@frghe.sb-46"); mailNode.parentNode.replaceChild(linkNode, mailNode); . The deadline for submitting an application for admission is 1 February 2018. For more information see here.  

4. V Biennial Conference of the Latin American Society of International Law LASIL-SLADI (2018) at Torcuato Di Tella University – “Dialogues of International Law”. The Fifth Biennial Conference of the Latin American Society of International Law will be held at the School of Law of the Torcuato Di Tella University (Buenos Aires) on the 24 and 25 September 2018. The general theme of the conference is “Dialogues of International Law”. The conference seeks to gather international law specialists and experts in complementary disciplines to analyse and discuss current problems of the international legal order, the international community, and, particularly, the region. The focus will be placed on dialogues, either between disciplines, or between areas or regimes within international law, or between regions of the world and their approaches to international law. The conference will consist of four plenary sessions and twelve parallel sessions, which will take place throughout two days, at the Torcuato Di Tella University Campus (Buenos Aires). SLADI-LASIL calls for the submission of original works to be presented and discussed at the Fifth Biennial Conference. Please consult the full call for papers here. The deadline for submissions is 15 February 2018.

5. Goettingen Journal of International Law New Issue. The Goettingen Journal of International Law has published its Vol. 8, No. 1 (2017). This issue spots different fields of international law: Non-State Armed Groups, Universal Jurisdiction in absentia, Transparency in International Investment Law, and Renewable Energy. The full issue can be accessed here

6. Call for Papers: Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights. PluriCourts invites contributions for its upcoming workshop Responding to Legitimacy Challenges: Opportunities and Choices for the European Court of Human Rights, 21 September 2018 at the European Court of Human Rights. The deadline for submissions is 15 February 2018. Read the full announcement here

EJIL Debate. Thirlway’s Rejoinder

EJIL:Talk! - Fri, 01/19/2018 - 11:53

I am grateful to Professor d’Aspremont for his interesting and courteous response to my somewhat critical piece. I think we agree . . . that there is plenty on which we agree to differ! However, may I mention a few points?

A minor linguistic matter: the terms ‘the logic of sources’ and ‘the logic of interpretation’ seem to me unfortunate. I trust that Prof. d’Aspremont will agree that the rules of logic, or if you like of logical argument, are surely identical whatever the subject under discussion. The postulates and the facts are unique to the context and the problem examined, but to arrive at an intellectually correct result, the reasoning processes must follow the universal rules of logic; the expressions quoted seem to undermine this universality.

Prof. d’Aspremont does not find my use of the concept of opposability helpful. Maybe my point will be clearer if expressed in this way: in the relevant part of the ICJ Whaling judgment, the Court was, in his view engaged in a process of interpretation, but applied to it the intellectual approach appropriate to a problem of sources.  But was it a process of interpretation? Before the Court could enquire into what exactly were the obligations of Japan under the Whaling Convention as interpreted by the challenged resolution – a matter of interpretation – it had to decide whether the resolution was relevant at all – a question of sources (consent to a treaty-instrument). If the resolution was relevant, its effect on the reading of the Convention would be a matter of interpretation; but that stage was never reached.

Prof. d’Aspremont denies that he is ‘thinking from the Bench’; but surely whenever a scholar criticises a judicial decision, he is in effect saying ‘This is what the Court ought to have said: this is what my dissenting opinion would have said had I been among the judges?’ And to my mind this is so whether the critic is saying ‘The Court was wrong on its own premises’, or contending that ‘The matter should have been approached in a different way, viz. .  . .’

As for Ms Meguro’s argument, it falls outside the context in which I ventured to criticise Prof. d’Aspremont’s article; it deals with quite different aspects of the Whaling judgment, which I probably have not studied as closely as has Ms Meguro. Nevertheless, it seems to me that, like Prof. d’Aspremont, Ms Meguro is arguing on the basis of something other than the Judgment actually delivered. Once again, I venture, perhaps (as Prof. d’Aspremont suggests) unnecessarily, to defend the Court by urging that it be judged on what it says, and not on the basis of what it might have said.

Did the Court ‘bring back the legal effect of the resolutions’ – i.e., those that lacked Japan’s assent and thus did not bind it  – ‘from the backdoor, that is via the ‘duty to co-operate’? (Meguro, para. 2) To support this contention one would have to show that the Court found that action or inaction by Japan that conflicted with one or more of those resolutions (or with the Convention or other instrument, as interpreted by such a resolution) amounted to a breach of a binding duty to co-operate with the IWC or its Scientific Committee.  It would prima facie seem difficult to show this, given that, so far as I am aware, no specific resolution is mentioned anywhere in the decision as part of the argument supporting a finding against Japan. To establish Ms Meguro’s contention, it is not sufficient to point to the Court’s use in its reasoning of the concept of a ‘duty to co-operate’, nor to quote a passage where it is noted that Japan ‘has accepted that it is under an obligation to give due regard to [not ‘comply with’] such [unspecified] recommendations’ (Judgment, para.137; Meguro, 4th para). The simple point is that the Court evidently did not see any need, for purposes of its decision, to rely on any particular non-binding resolution, and thus to enter into the question of the extent to which Japan was nevertheless obliged to respect its terms, via a duty to co-operate or otherwise.

The major finding against Japan was that ‘the special permits granted by Japan for the killing, taking and treating of whales in connection with JARPA II are not “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the Convention’ (para. 227). Contrary to what is suggested by Ms Meguro, it did not ‘in drawing this conclusion . . . state[] there was Japan’s duty to co-operate with the IWC’ (Meguro paper, 3rd para., italics added). That duty having been found in para. 83 to exist, its actual application is to be found in paragraphs 240-2 (where Japan was held not to have breached it); it is not mentioned in the argument leading up to para. 227. Had the conclusion in para. 227 similarly been based on the finding in para. 83, the Court would have made this clear.

My concern here is to point out what seems to me a misreading of the decision; I offer no views otherwise on the subject-matter of Ms Meguro’s contribution. But didn’t the Court answer Ms Meguro’s question, as to the source of the obligation to co-operate, in para. 240, where it referred to ‘the duty of co-operation with the IWC and its Scientific Committee that is incumbent upon all States parties to the Convention, which was recognized by both Parties and the intervening State’? Is not consent, even if not spelled out in a treaty, a sufficient source?

Hybrid Threats and the United States National Security Strategy: Prevailing in an “Arena of Continuous Competition”

EJIL:Talk! - Fri, 01/19/2018 - 10:00

The dividing line between war and peace is blurred. This is one of the messages emerging from the National Security Strategy (NSS) of the United States of America adopted in December 2017. The United States is accustomed to viewing the world through the binary lens of war and peace, yet in reality, warns the new National Security Strategy, international relations is an “arena of continuous competition” (p. 28).

This is not exactly a new theme. The idea that war and peace are relative points on a continuous spectrum of confrontation, rather than mutually exclusive conditions, has become quite popular in recent years. Writing in 2013, General Valery Gerasimov, Chief of the General Staff of the Russian Federation, observed that the 21st century has seen a tendency “toward blurring the lines between the states of war and peace”. Speaking in 2015, Sir Michael Fallon, the former British Secretary of State for Defence, declared that contemporary adversaries are deliberately seeking to “blur the lines between what is, and what is not, considered an act of war”. More recently, Jens Stoltenberg, NATO’s Secretary General, suggested that in the past “it was easy to distinguish whether it was peace or war … [b]ut now there’s a much more blurred line”.

The fluidity of war and peace is central to the vocabulary of “gray zone conflict” and “hybrid warfare”. Both concepts are preoccupied with the strategic challenges that adversaries operating across multiple domains present. The notion of gray zone conflict puts the emphasis on the sphere of confrontation, concentrating on the fact that adversaries operate in the area of ambiguity that lies between the traditional state of war and state of peace (see US SOCOM, The Gray Zone). By contrast, the notion of hybrid warfare emphasises the modus operandi adopted by certain adversaries and competitors, focusing on their use of the full range of military and non-military means in a highly integrated manner (see NATO, Wales Summit Declaration, para. 13).

The new National Security Strategy borrows heavily from both sets of ideas. In a section entitled “Preserve Peace Through Strength”, it makes the following points (pp. 27–28):

[A]dversaries and competitors became adept at operating below the threshold of open military conflict and at the edges of international law. Repressive, closed states and organizations, although brittle in many ways, are often more agile and faster at integrating economic, military, and especially informational means to achieve their goals. They are unencumbered by truth, by the rules and protections of privacy inherent in democracies, and by the law of armed conflict. They employ sophisticated political, economic, and military campaigns that combine discrete actions. They are patient and content to accrue strategic gains over time — making it harder for the United States and our allies to respond. Such actions are calculated to achieve maximum effect without provoking a direct military response from the United States. And as these incremental gains are realized, over time, a new status quo emerges.

The concern that adversaries exploit the dividing line between war and peace in an attempt to shift the balance of power in their favour, employing discrete measures across multiple domains in an integrated design, betrays the fact that the NSS is inspired by the gray zone conflict and hybrid threat debates, even though it does not reference these concepts in express terms.

At the heart of the concerns voiced by the NSS is a very palpable unease about the role of international law. The traditional duality between war and peace has always been more of a legal construct than a reality on the ground. While Grotius may have proclaimed that war and peace admits of no intermediate position, this has not prevented States from conflating the two by carrying out acts of warfare under another name. As Christopher Greenwood pointed out some years ago, formal declarations of war were in fact the exception rather than the rule during the 18th and 19th centuries. Examples abound. In 1840, the British Government instructed its fleet in the Mediterranean to seize all Neapolitan and Sicilian ships in a dispute with the Kingdom of the Two Sicilies over a sulphur monopoly. Major hostilities were averted only through French mediation. It should not come as a surprise therefore that Hague Convention III on the Opening of Hostilities of 1907, which made it compulsory to notify the existence of a state of war, is among the less successful instruments born at the second Hague Peace Conference.

Nonetheless, the Grotian divide between war and peace remains a vital part of the international legal order. Under the United Nations Charter regime, peace is the normal state of affairs in international relations, whilst war is the exception. The use of force is permitted only as a measure of last resort in self-defence (Article 51) or where collective non-forcible measures are inadequate (Article 42). Key to this scheme are the legal thresholds that divide normality from the exception, in particular the notion of “armed attack” in Article 51 of the Charter, which serves as the trigger for the right to use force in self-defence. Similarly, in the neighbouring field of the law of armed conflict, the existence of an armed conflict triggers the right to move from law-enforcement to a more permissive warfighting posture.

According to the National Security Strategy, adversaries and competitors are taking advantage of these legal thresholds by operating below the level that would permit the US and its allies to respond by using force. As one of us has written in greater detail (see Sari, Hybrid Warfare, Law and the Fulda Gap), this creates an asymmetric legal environment where States that continue to abide by the law are placed at a competitive disadvantage against adversaries that exploit legal ambiguities and violate the rules of international law.

This dynamic is clear to see in Article 5 of the North Atlantic Treaty, which stipulates that an armed attack against one or more NATO member States in Europe or North America shall be considered an attack against them all. NATO’s collective security response is thus tied to the threshold concept of an armed attack under Article 51 of the United Nations Charter. The conservative view holds that minor incidents, such as localised fighting on a small scale, do not reach the level of an armed attack, even where they involve some loss of life. By using force below this level of intensity in combination with non-forcible measures, a determined adversary is able to achieve incremental gains without enabling its target to mount a direct military response, as the NSS cautions. The build-up to the conflict between the Russian Federation and Georgia in 2008 demonstrates that such a scenario is not farfetched.

Recognising the risk, NATO has declared itself ready in its Warsaw Summit Communiqué (para. 72) adopted in July 2016 to counter hybrid warfare as part of collective defence, including by invoking Article 5 of the North Atlantic Treaty. From a legal perspective, the Warsaw Communiqué may be read as stating the obvious: should hybrid warfare cross the threshold of an armed attack, it would engage the right of individual and collective self-defence. However, the Communiqué may also be seen as a sign that the Allies are willing to reassess the concept of armed attack in the light of gray zone and hybrid warfare tactics. Three elements stand out in this respect.

First, in the Nicaragua case (para. 191), the International Court of Justice defined armed attacks as the “most grave” form of the use of force. However, a strong current of opinion denies the existence of such a gravity threshold (see Chatham House Principles of International Law on the Use of Force by States in Self-Defence, p. 6). Since low-intensity measures are an integral feature of gray zone conflicts and hybrid warfare, they are likely to amplify these voices. In particular, it is difficult to agree with the Court that the provision of weapons and logistical support to rebels by definition constitutes a use of force of lesser gravity not amounting to an armed attack (Nicaragua, para. 195). Russian intervention in Eastern Ukraine shows that such support can easily reach the scale and destructive effect of a direct attack.

Second, in the Oil Platforms (para. 64) and Armed Activities in the Congo (para. 146) cases, the International Court seemed to accept that a series of incidents which do not rise to the level of an armed attack when taken individually may nevertheless do so when viewed cumulatively. Hybrid warfare involves a deliberate pattern of incidents and therefore are likely to bolster support for this accumulation of events approach.

Third, an armed attack does not have to involve physical destruction and loss of life. The Russian military takeover of Crimea illustrates the point. Although Russian forces were present in Crimea with the consent of Ukraine, their actions manifestly contravened the terms of their presence. As such, they amounted to an act of aggression under Article 3(e) of the Definition of Aggression that gave rise to the right of self-defence (see here), notwithstanding the lack of destruction and loss of life. This suggest that non-violent subversive activities directed against the territorial integrity or political independence of a State which are carried out either by military forces or to complement military activities may be considered as constituent elements of an armed attack.

Lowering the gravity threshold of armed attack, adopting the accumulation of events principle and including non-violent subversive activities integrally linked to the use of force among the elements that may make up an armed attack would go some way towards recalibrating the right of self-defence for the challenges of gray zone conflict and hybrid warfare. However, this does not resolve all difficulties. Gray zone and hybrid threats include a broad range of non-violent activities, such as interference in domestic political processes, information operations and economic pressure. Even a greatly relaxed understanding of armed attack does not cover these activities or if it did, it would hollow out the prohibition to use force in Article 2(4) of the United Nations Charter. In any event, military force is not an effective response to every subversive act. Fighter jets and battle tanks are of little use in confronting passportisation, election meddling or disinformation campaigns. The utility of force in such circumstances is indirect: to deter an adversary by imposing costs. Recall, for example, the US missile strike against Syrian air bases in April 2017. This puts the spotlight on the legality of forcible counter-measures. While the International Court appeared to leave the door open for such action in the Nicaragua case (see para. 210), the International Law Commission declared forcible counter-measures to be unlawful in its commentary to the Articles on State Responsibility (p. 132). Of course, the latter position is only as good as the authorities on which it is based.

This brings us back to a broader question raised by the National Security Strategy. If the line between war and peace is becoming increasingly blurred, as it is widely claimed, what is the appropriate response? “Principled realism”, a term embraced by the NSS to describe its underlying approach (p. 1), may hold the answer. A realist response recognises that law is a domain of competition, an environment where adversaries and competitors advance their own strategic interests. A principled response realises that the rule of law is a value in itself and that international law is not just a constraining factor, but also a strategic enabler. A principled realism demands that nations strengthen their legal resilience to withstand the challenges presented by gray zone conflict and hybrid warfare and to defend the international legal order itself against subversion by States that operate “at the edges of international law”. Consistent with such an approach, efforts to counter gray zone and hybrid threats should not blur the line between war and peace further. This requires a more robust engagement with, not disengagement from, international law.

The Revived Debate over Development and Human Rights: Economic Self-Determination, Sovereignty, and Non-Discrimination in State Policies

EJIL:Talk! - Thu, 01/18/2018 - 09:00

2017 closed, and 2018 began, with triumphant pronouncements of economic recovery in the United States (e.g. the US economy growing again at its fastest pace at 3.2% GDP growth rate, lowest unemployment rate at 4.1%) and the European Union (e.g. registering its highest GDP growth rate in ten years at 2.2%) – leading the International Monetary Fund’s bullish optimism about the global economy posting an estimated 3.7% GDP growth rate, the highest ever since 2011. The IMF noted in 2017 that Asia still leads global growth rates, driven by continued surges in East Asia (China, Japan, South Korea), South Asia (India), and Southeast Asia (the ten ASEAN Member States), while Africa is set to expand its GDP growth rate to 3.2% in 2018 and Latin America expected to continue recovery at a 1.9% GDP growth rate.  However, the strength of raw economic growth around the world certainly does not mean that we are any closer today to creating equitable economies.  In contrast to robust global economic growth reports, the 2018 World Inequality Report finds that “since 1980, income inequality has increased rapidly in North America, China, India, and Russia” (World Inequality Report, p. 5), in contrast to the Middle East, Africa, and Brazil, where income inequality has been relatively stable (World Inequality Report, p. 6).  (See Anthea Roberts’ take on the famous Branko Milanovic elephant chart best describing global inequality.)  

The tragic surreality of income inequality was also highlighted recently in the December 2017 Statement to the UN Human Rights Council, by Special Rapporteur on Poverty Professor Philip Alston. Professor Alston’s Statement provided a sobering narrative of the debilitating consequences of income inequality and deepening poverty that now affects around 40 million citizens of the United States of America (the world’s (nominally) largest economy), impelling him to warn that “the American Dream is rapidly becoming an American illusion.”  It is unsurprising therefore, that the greatest dangers in today’s good economic news, according to Kemal Dervish and Zia Qureshi at Brookings, are the social tensions expected from highly inequitable, albeit growing, economies:

“What is not really up for debate is that inequality within countries is rising fast. While individual countries show different levels of inequality, its rise has been evident almost everywhere, with income and wealth increasingly concentrated at the very top. This trend will accelerate as new technologies, regardless of how much productivity growth they generate, continue to increase the skill premium, shift income to frontier firms, and allow new types of near-monopoly, “winner-take-all” positions to develop on a global scale.

Herein lies the biggest danger in today’s exuberant headlines about growth. Many believe that rapid growth can act as a virtual panacea for countries’ political and social woes, including the rise of populism and nationalism. But if the benefits of rapid growth accrue to the top 5% or 1%, social tensions are bound to rise. And the fact is that it will be difficult to develop policies that can reverse damaging political trends and promote more widely shared growth.”

Converging events around the world have spilled over into a revived debate on the relationship of human rights and economic development.  In the 1990s, the ‘Asian values’ debate challenged the universality of human rights and argued that States dealing with consequences from colonialism required more stable societies conducive to economic development, diminishing the importance of full human rights compliance during such political, social, and economic transformations.  Scholars and international development workers also debated the proper relationship of human rights and development, but this question has long been settled in favor of Amartya Sen’s human rights-aligned conception of capabilities-driven development, at least as reflected in Articles 5 and 6 of the UN Declaration on Development; the United Nations’ Millennium Development Goals (MDGs); and the World Bank’s landmark study Human Rights and Economics (which provides the economic case for integrating human rights into development policies and programs).

However, the recent rise of (often) popularly-elected strongmen leaders around the world increasingly challenges the prevailing wisdom that human rights compliance is intrinsic to achieving a State’s economic development. Dani Rodrik argued recently that economic populism may be desirable at times to allow governments the freedom to experiment with economic policy, so as to rein in and counteract powerful multinational corporations, foreign investors, private industries and other market-dominant institutions involved in regulatory capture.  This is not the same, however, as political populism that tolerates delayed or postponed human rights compliance – even outright human rights violations – somehow as a necessary tradeoff for desired  levels of economic development.  As Human Rights Watch Executive Director Kenneth Roth describes in the 2017 World Report:

“Human rights exist to protect people from government abuse and neglect. Rights limit what a state can do and impose obligations for how a state must act. Yet today a new generation of populists is turning this protection on its head. Claiming to speak for “the people,” they treat rights as an impediment to their conception of the majority will, a needless obstacle to defending the nation from perceived threats and evils. Instead of accepting rights as protecting everyone, they privilege the declared interests of the majority, encouraging people to adopt the dangerous belief that they will never themselves need to assert rights against an overreaching government claiming to act in their name.

The appeal of the populists has grown with mounting public discontent over the status quo. In the West, many people feel left behind by technological change, the global economy, and growing inequality. Horrific incidents of terrorism generate apprehension and fear. Some are uneasy with societies that have become more ethnically, religiously and racially diverse. There is an increasing sense that governments and the elite ignore public concerns.

In this cauldron of discontent, certain politicians are flourishing and even gaining power by portraying rights as protecting only the terrorist suspect or the asylum seeker at the expense of the safety, economic welfare, and cultural preferences of the presumed majority. They scapegoat refugees, immigrant communities, and minorities. Truth is a frequent casualty. Nativism, xenophobia, racism, and Islamophobia are on the rise.” (2017 World Report, p.1.)

In this post, I examine two implicitly recurring legal justifications invoked by today’s politicians: the first anchored on the principle of self-determination as a State prerogative insulated from international scrutiny, while the second classically argues the State’s inherent sovereign right and duty to act in times of undefined exceptional situations or national emergencies. These implicit legal justifications can be traced, among others, to the reasoning articulated in many recent pronouncements, including those by Chinese President Xi Jinping’s recently announced ‘socialism with Chinese characteristics’; United States President Donald Trump’s diminished emphasis on human rights in the USA’s announced National Security Strategy; the Philippines’ President Rodrigo Duterte who insists that human rights concerns will not stop the drug problem and its impact on Philippine development; Turkey’s President Recep Tayyip Erdogan who argued that Turkey’s economic growth rate would “silence the opposition”; or Russian President Vladimir Putin who declared that Russia’s economic growth will outpace the world and who had previously publicly recognized the value of human rights in 2012 under certain qualifications (e.g. “human rights are more important than national sovereignty….But if this principle is used as an excuse for a presumptuous violation of national sovereignty, and if human rights are protected by foreign forces and selectively, and if, while “protecting” those rights, they violate the rights of many other people, including the most fundamental and sacred right, the right to life, this is no longer a noble effort. This is merely demagoguery.”).

Both the above justifications of self-determination and sovereign acts in emergencies are themselves contained in human rights law. Significantly, none of today’s prominent leaders openly reject the relevance of human rights compliance, but rather justify or tolerate a sequenced or selective application of human rights while pursuing their countries’ economic development paths.  What appears lacking thus far from these seeming human rights-based justifications, however, are the essential dimensions of public participation and direct accountability to populations, whenever such leaders assert, on their populations’ behalf, these delegated principles of self-determination and sovereignty.  

Additionally, I take the view that in this revived debate over the relationship of development and human rights, governments remain just as bound to ensure that their avowed “pro-economic development” policies also do not violate the core human rights principle against non-discrimination [ICCPR Article 2(2); ICESCR Article 2(2)].  Policies that purposely exacerbate inequality favoring certain elites or special interests groups can be deemed inconsistent with the State’s specific duty to guarantee rights under the ICCPR and ICESCR without discriminating as to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  This is exactly why development can no longer be conceptualized in isolation from human rights.  Spaced or sequential human rights compliance – as arbitrarily determined by leaders insisting on the expediencies of economic development – is not the same as the progressive realization of economic, social, or cultural rights.

Self-Determination, Human Rights, and Economic Development

Self-determination is a right of all peoples to “freely determine their political status and freely pursue their economic, social, and cultural development” [ICCPR Article 1(1); ICESCR Article 1(1)].  It is not a right that accrues to governments or government leaders, but rather a right that inheres in peoples. The International Court of Justice explicitly cautioned in the Western Sahara Advisory Opinion that “the right of self-determination requires the free and genuine expression of the will of the peoples concerned.” (Western Sahara, Advisory Opinion, ICJ Reports, 1975, at para. 55). While there is no prescribed path for peoples pursuing their economic, social, and cultural development, it is clear that governments stating that their exercise of the people’s right of self-determination through development policies must also be based on the free and authentic expression of the will of the peoples concerned.  In this regard, would it suffice to argue that an elected strongman leader’s development policies that assert sequenced or selective human rights compliance should be presumed to have a continuing imprimatur, because the strongman leader received a popular mandate from the electorate?  That is a difficult assumption to make.  In the first place, the identification of peoples that can assert self-determination (including of the economic kind) is itself a complex process that lacks a uniform definition or method. At least, in the context of decolonization, what has been clear is that: 

“While, in principle, the will of a people could be formed in various ways—through government decision or parliamentary resolution, possibly supported by a plebiscite, or through a referendum—understandably, given the circumstances of decolonization and the fact that it should be an act of self-determination, preference is accorded at least implicitly to referenda: Principle IX UNGA Resolution 1541 (XV) of 15 December 1960 states that ‘[t]he integration should be the result of the freely expressed wishes of the territory’s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage’ (reaffirmed by the ICJ in the Western Sahara Advisory Opinion at para. 57; but nota benethe caveat in para. 59). Outside the context of decolonization however, preferences may be different (see paras 33–39 below). Apart from that, it is important to note that one act of self-determination does not exhaust the right. The right subsists and continues to be vested in the people.” [D. Thurer and T. Burri, Self-Determination, Max Planck Encyclopedia of International Law, para. 22(ii).]

To the extent, therefore, that a strongman leader’s economic development policy also delays compliance with human rights that the State inherently owes to its people, it can be argued that such a policy supposedly implemented in the exercise of economic self-determination should reflect the freely expressed wishes of the people through informed and democratic processes.  At the very margin, at least, there should be authentic public participation in an economic development policy that purports to delay respecting, protecting, or facilitating the enjoyment of the human rights of a State’s population, to begin with.  It is this aspect that strongmen leaders often are silent about, when they assert a “self-determination” justification to pursue policies for economic development that may set aside, delay, or otherwise violate the State’s human rights obligations to their populations.

Sovereignty, Exceptional Situations, Rule of Law and Development

Invocations of exceptional situations and national emergencies to justify derogations from human rights obligations are common in the history of international life.  (I’ve discussed this at length here; others have done so as well here, here, and here, among others.)  What is quite unique when strongmen leaders have, in recent years, invoked sovereign duties to meet exceptional situations is that they do not often explicitly articulate derogation clauses in the applicable international human rights treaties.  Rather, there are profuse references to preserving “the rule of law” in relation to development, echoing the General Assembly Declaration on the Rule of Law at National and International Levels:

“7. We are convinced that the rule of law and development are strongly interrelated and mutually reinforcing, that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law…” (Declaration, para. 7).

World leaders invoke some amalgam of the above reasoning when asserting that they act to restore the “rule of law” and protect their people’s sovereignty and economic development, to justify measures that may set aside, delay, or otherwise violate human rights obligations owed to their populations.  (See for example here, here, here, and here, among others.)  Such leaders also contest the truth and veracity of fact-finding on alleged human rights violations (see for example here, here, here, and here, among others), while often rejecting public participation in the human rights fact-finding process.  While some of these States (rightly or wrongly) criticize alleged biases in United Nations human rights reports, what also remains lacking is an open environment within their national jurisdictions that would allow their citizens to participate as members of the public in the human rights reporting, verification, monitoring, and fact-finding process.  If the 2018 Freedom House Report is any indication, there are fewer and fewer national environments that welcome genuine public participation in the authorship, implementation, and review of economic development policies that result in setting aside, delaying, or violating human rights owed to States’ populations to begin with.

In sum, even if today’s world leaders assert the legal justifications of self-determination or sovereign duties to meet emergencies or similar exceptional situations, these are hollow substantive defenses if the States’ populations do not have any genuine public participation in the formulation, implementation, and review of such economic development policies that impact how these populations’ human rights are respected, protected, and facilitated. Even populist or strongmen leaders invoking these legal justifications are burdened to show that there is a free, genuine, and authentic expression of the will of the people in the economic development decision-making process.

Non-Discrimination, Human Rights, and Economic Development

Finally, world leaders that assert the primacy of their economic development policies as a means to realize human rights aims for their populations are in no way immune from observing the continuing duty of the State under Article 2(1) of the ICCPR and the ICESCR to ensure non-discrimination, e.g. “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  The Committee on Economic, Social and Cultural Rights clarified in General Comment No. 20 that discrimination “constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.” (CESCR General Comment No. 20, para. 7).

To the extent that States’ economic development policies can produce or exacerbate income inequality, the principle of non-discrimination is violated when States’ economic development policies to realize ICCPR or ICESCR rights create unjustified distinctions based on race, gender, ethnicity, religion, property, political opinion, or other status.  It is in this sense that I take a different view from Samuel Moyn’s blanket assertion that “even perfectly realized human rights are compatible with radical inequality.” Kathryn Sikkink rightly challenged this assertion (and its lack of empirical proof) in her 2017 book pointing out counterpart successes and incremental advancements in the role of human rights in social issues such as education, health care, and gender equality.  I would add that, contrary to Moyn’s view, perfectly realized human rights – spanning civil, political, economic, social, and cultural rights – would not exist if there is radical inequality to begin with.  States’ economic development policies (including those on tax, labor, government spending, monetary policies, among others) and the conduct of government institutions are among the variables that have a direct impact on the creation or prolongation of income inequality.  Where those policies are formulated oblivious to the States’ human rights obligations, inequality is more than likely to take on the “radical” nature Moyn describes.

To conclude, while the revived debate on the role and relevance of human rights in relation to economic development persists today among world leaders (especially strongmen populist politicians) – or, even, as it appears today, also academic scholars – there is small comfort to be had that these discourses from actors of all political and ideological stripes are now largely taking place within the plane of human rights law, rather than past leaders that openly reject the applicability of human rights law. In this sense, we are so much less in the era of “ships passing in the night” (Philip Alston’s famous article 13 years ago on the debate on human rights and development) when viewing the nexus between human rights and development today. UN Secretary-General Antonio Guteres now stresses the need this 2018 for a “new deal for a fair globalization” premised on human rights. That’s a promising start for an engaging revived debate from all quarters this time around.

EJIL Debate. The Whaling case and the Duty to Cooperate: Responding to Professors Thirlway and d’Aspremont

EJIL:Talk! - Wed, 01/17/2018 - 09:00

I am puzzled by the very terms of the debate between Professors Thirlway and d’Aspremont for several reasons. First, there is a considerable ambiguity in both Japan’s argument and the Court’s position as to the legal effects yielded by the IWC resolutions. Hence, it is inevitable to have a variation of interpretations. Second, I believe that the determination of the implications of the judgment should not be made dependent on an “objectivised” subjective intention of the Parties or the Court — a task which is no work for legal scholars anyway.

Yet, my main source of puzzlement lies elsewhere. While the focus of Thirlway and d’Aspremont’s debate is on the Court’s position on Article 31 of the VCLT with regards to Japan’s non-assertion to the resolution, I submit that the most ground-breaking part of the judgment is that the Court brought back the legal effect of the resolutions from the backdoor, that is via the concept of ‘the duty to cooperate’. In this post, I would like to draw the attention of the readers to the unique characteristic of the duty to cooperate referred to in the Whaling case, and the possible necessity for a new conceptual framework. In particular, I argue, neither the logic of sources nor the logic of interpretation can sufficiently explain what the Court did with the duty of to cooperate. In doing so, I want to show that Professors Thirlway and d’Aspremont, despite the appearance of stark opposition, both confined themselves to choices between orthodox understanding of ‘interpretation’ and ‘sources’, hence failing to address the central question at the heart of their exchange. This will lead me to question the very argumentative framework of ‘logic of interpretation’ and ‘logic of sources’ put forward by Professor d’Aspremont in his EJIL article and discussed by Hugh Thirlway in his rebuttal.

According to the reading of the case proposed here, one of the main questions before the Court in the Whaling case was whether JARPAII was in accordance with Japan’s obligations under the International Convention for the Regulation of Whaling. In debating if JARPAII was conducted for the purposes of scientific research, Australia and New Zealand argued that the resolutions of the IWC should be taken into account with regards to the meaning of scientific research under article VIII under the Whaling Convention. On the other hand, Japan replied that it did not support the resolutions and the resolutions do not bind the member states. The Court held that the IWC resolutions were adopted without support of all member states including Japan, and such resolutions cannot be regarded as subsequent agreement nor subsequent practice under Article 31.3(a) and Article 31.3(b) of the VCLT. (para.83). The Court also held that if such resolutions are adopted by consensus or by a unanimous vote, they may be relevant. (para. 46). However, the Court concluded that while JARPAII involved activities that could be broadly characterised as scientific research, the evidence of JARPA II’s design and implementation did not establish that it was ‘for purposes of scientific research’ pursuant to the Whale Convention article VIII. (para. 227) In drawing this conclusion, the Court stated there was Japan’s ‘duty to cooperate’ with the IWC and the Scientific Committee, which is an obligation for all member states under the Whale Convention. (para. 83)

With regard to this duty to cooperate, the Court concluded that JARPAII’s design and implementation did not adequately take into account the possibility of non-lethal methods (judgment paras. 225-227). In so holding, the Court pointed out that the IWC resolutions and Guidelines call upon States parties to take into account whether research objectives can be achieved using non‑lethal methods. (para.137) Contrary to the earlier consideration on subsequent practice or subsequent agreement, the Court drew no distinction between resolutions adopted by consensus or a unanimous vote and those that were without support of all member state in assessing the standard of conduct that fall within purpose of scientific research. In other words, the deployment of non-lethal methods was incumbent upon all member States to the Whale Convention by virtue of the duty to cooperate – the obligation to ‘give due regard’ (para. 137) to the content of obligation — which is defined “objectively”, that is regardless of each party’s assertion to resolutions (member States, once part of the Convention, having no means to refuse the ex post content of obligation by either consent or argument of opposability). This duty to cooperate is a mechanism to create bindingness that connects the standard setting under the resolutions (non-binding by nature) and the member states who did not support the resolution.

The question — which neither the Court, nor Professors Thirlway and d’Aspremont addressed — is where this duty to cooperate comes from. The Court mentioned that the IWC resolutions and Guidelines call upon States parties to take into account whether research objectives can be achieved using non‑lethal methods. (para. 137) However, the Court is not at all clear on which basis the duty to cooperate ‘binds’ member States. In this respect, it is worth emphasizing that Japan accepted that it has a duty to give due consideration to these recommendations, but emphasized that they are not binding. (para.80)

Professor d’Aspremont touched upon the ‘duty to cooperate’ part of the Judgement in his EJIL article as interpretation outside of Article 31 of the VCLT. Professor d’Aspremont argues that the Court and the ILC recognizes implicit or explicit support by all parties is not necessarily required for subsequent practice that does not qualify Article 31.3(b). (p.1038) While this argument – the logic of interpretation – seems to provide a rather orthodox ground for identification of the content of obligation, it does not explain the basis of bindingness of the resolution under ‘the duty to cooperate’. In that sense, d’Aspremont, despite carefully distinguishing between sources and interpretation, seems to presume that bindingness can be derived from the Whaling Convention itself. Furthermore, he does not explain the reason why interpretation outside of the Article 31.3 does not require the support by the parties as to the legal effect of non-binding instruments. Hence his argument does not explain how the duty to cooperate binds the parties. It is argued here that such a presumption of bindingness is not at all self-evident.

It should be recalled in this respect here that some judges took pains to explain the duty to cooperate through the concept of a regime. Judge ad hoc Charlesworth (Australia) considers that the concept of a duty of cooperation ‘is the foundation of legal regimes dealing (inter alia) with shared resources and with the environment’ (Separate Opinion, para. 13) While the Court did not elaborate on the Convention’s status as a regime, ad hoc Judge Charlesworth points out that the object and purpose of the Convention to create ‘a system of international regulation’ for the conservation and management of whale stocks. In doing so, she refers to the monitoring role of the IWC given under Article VIII. (para.13) In this regard, it is useful to point out that the typical example of such a regime framework is the United Nations Framework Convention on Climate Change (hereafter the UNFCCC). As is well-known, the design of “framework conventions” leaves the substantial content of rules to be worked out in the subsequent instruments i.e. the decisions by the Conference of Parties (hereafter the COP). However, unlike the Whaling Convention, the UNFCCC and many other framework conventions explicitly define its ex-post norm creating characteristic, and furthermore, decision by the COP are usually made by consensus.

Be that as it may, and irrespective of whether the Whaling Convention and its associated instruments can be construed as any kind of regime, or whether the characteristic of ‘regime’ justifies the duty to cooperate and its said function, it remains that the finding of a duty to cooperate by the Court in the Whaling case constitutes its most ground-breaking move. Indeed, this construction allowed the Court to bind member States ‘objectively’ without them being able to evade it through consent or opposability. Such a move cannot be justified solely through the logic of interpretation. In doing so, the Court ended up generating bindingness in a novel way, that does not seem to fit within traditional treaties or customary international law where member states can, to some extent, prevent being bound by an obligation. This is, in my view, the real novelty of the Court’s Whaling judgment.

EJIL Debate. A Reply to Thirlway: I am not Thinking From the Bench

EJIL:Talk! - Tue, 01/16/2018 - 13:00

Being the object of a public rebuttal in an highly visible on-line blog platform by a prominent author like Professor Thirlway probably constitutes the most generous reward one can receive for “burning the midnight oil“. This also provides a fate for one’s work that is much better than the oblivion and indifference to which most of scholarly outputs are condemned in today’s academic pathologically prolific scene. This is why I could not be more grateful to Professor Thirlway for his comments on my article. Our repeated public debates these last years (for another example, see here) remind me that we share many areas of interest (sources, international dispute settlement, responsibility, etc) but also confirm that our views are simply — and thankfully — irreconcilable. In this short reaction, I want to respectfully show that our views diverge on the structure of legal argumentation related to sources and interpretation (1) as well as on the purpose of international legal scholarship (2).

Saving the Court through opposability

The reading of the judgment of the International Court of Justice (hereafter ICJ or the Court) in the Whaling in the Antarctic case which I have articulated in the European Journal of International Law and with which Professor Thirlway takes issue can be summarized as follows: the Court blurred the lines between the doctrine of sources and the doctrine of interpretation (and the modes of legal argumentation associated with each of them) by calibrating the interpretive value of IWC resolutions for the sake of interpreting the notion of ‘scientific approach’ in Article VIII of the Whaling Convention on the basis of Japan’s assent to those resolutions.

I deem it unnecessary to rehash this claim here. For the sake of this short reaction, it suffices to emphasize that my reading of the judgment is informed by my long distinguishing of two doctrines — and two sets of modes of argumentations corresponding to them, namely sources and interpretation. Although the application of the modes of legal reasoning prescribed by the sources is itself of an interpretive nature, I have long considered that the distinction between law-ascertainment (sources) and content-determination (interpretation) constitutes a central modern dichotomy inherited from the Enlightenment which has been shaping international legal argumentation for at least two centuries. In my view, this dichotomy is also what lies at the heart of the self-referential foundations of international law as a whole (see here). This does not mean that such a dichotomy is good or bad but, more simply, that it deeply and continuously permeates international legal thought and practice while also providing a useful analytical category when scrutinizing legal reasoning. According to the argument I developed in the article discussed here, the blurring of the lines between these two modes of argumentation by the Court in the Whaling case constitutes a — rather unspectacular — variation of one of the most basic moves found in international legal argumentation since the Enlightenment.

This being said, my reading of the judgment of the Court in the Whaling case which Professor Thirlway criticizes has never been meant to lament any lack of rigour by the Court or its disregard for the abovementioned distinction between sources and interpretation. In fact, I have never felt the need to be the guardian of those modern argumentative moves, let alone the distinction between law-ascertainment (sources) and content-determination (interpretation). In my view, as long as argumentative constructions convince all those who invoke them, international lawyers’ regulatory projects can go down any argumentative route they deem appropriate and convincing. Yet, I remain unconvinced by the reduction of the question of the interpretive weight of IWC resolutions to a question of opposability as is contended by Professor Thirlway in his rebuttal. In traditional approaches to international law — which he has always claimed to be both an heir of and a champion — opposability hardly plays a role when it comes to determining the interpretive weight to be given to an instrument, let alone the possible bindingness of that instrument. In that sense, I believe Professor Thirlway overestimates the place of opposability in both mainstream international law and in the reasoning of the Court.

To be honest, if, at the end of the day, Professor Thirlway really wants to see opposability at work everywhere, I can live with it. I am slightly more bewildered by the extent to which opposability is invoked by Professor Thirlway to rehabilitate the ICJ and its judgment in the Whaling case. Whilst I strongly believe that whales are cetaceans that must be protected from extinction by all means — including through judiciary battles, no such need of protection is needed for the distinguished judges of the Court and the venerable institution they serve. I am not even sure that those serving on the ICJ are necessarily asking for rescue missions by scholars, even when they find themselves under scholarly fire. At least, neither the ICJ nor its authority is likely to be threatened by scholarly charges against the Court’s argumentative construction. On the contrary, I have come to think that the fact that scholars critically engage with the structure of the Court’s reasoning is a sign that they take this institution seriously.

The temptation of the permanent moot court competition

My most fundamental concern with Professor Thirlway’s rebuttal of my appraisal of the Whaling judgment lies elsewhere, namely in the contention that my reading of the Whaling judgment is incommensurable with what both the Court and the parties had in mind. Professor Thirlway more particularly bemoans the fact that my claim is something which the Court and the parties would have great difficulty recognizing as their own, asserting that I misunderstood what the Court was actually doing. In my view, his charge in this regard calls for two considerations.

First, I wonder how one can confidently reduce the judgment-making process to a single and objectively ascertainable “will” or “intention” of the institution and claim that there is such an absolute thing as “what the Court was actually doing”. The same holds with his objectivist flattening of the position of Japan. I have always found that this form of objectivism and reductionism — which is also very common in relation to the ascertainment of State’s will (see here) — is not only a type of highly reductive anthropomorphism but also a form of institutional or procedural natural law.

Second, I find it slightly alarming that one can criticize a scholarly reflection about an ICJ judgment for not resorting to the very categories which the Court and the parties have expressly relied on. In my understanding, scholarship is primarily about deploying — and experimenting — novel analytical and evaluative tools with a view to offering a reading beyond the legal categories and patterns of arguments that are being examined and evaluated. In fact, I have always found it rather sterile to analyse legal reasoning only in its own terms. Scholarship requires that the observer elevates herself himself above the patterns of argument expressly invoked by the actors under her or his scrutiny. From this perspective, Thirlway’s criticism of my argument epitomizes what I have called elsewhere a form of judicialized legal thought (see here). A judicialized legal thought boils down to the attitude of an observer who thinks of herself or himself as engaged in a permanent moot court competition, that is the inclination of commentators and scholars to “think from the bench” and behave as a virtual appeal judge that reviews legal arguments made by a lower court.

Whilst I can live — albeit unconvinced — with Professor Thirlway’s vindication of a reading of the case from the perspective of opposability, I feel uneasy with his reduction of scholarship to a permanent moot court competition. Thinking from the bench is hazardous because it prevents international legal scholars from making demand on international law and the world other than for the sake of judicial engineering. The result is an international legal scholarship that is stripped of all the intellectual avenues it can possible offer to reinvent the world and its battles to save its most cherished cetaceans.

EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part II)

EJIL:Talk! - Tue, 01/16/2018 - 09:00

Part II of a two-part post in the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

 

What did Japan say – and what did it not say? [Cont.]

[…]

What then does this single reference given tell us? What was Japan’s argument?  The text preceding the footnote states that in its Counter-Memorial Japan argues that resolutions of the kind under consideration ‘are not binding, and, therefore, irrelevant for the interpretation of Article VIII’ (d’Aspremont, p.1016). The Chapter of the Counter-Memorial quoted is however more limited: it is addressed to refutation of Australia’s argument that the resolutions rank as ‘subsequent agreement’ or ‘subsequent practice of the parties’ for purposes of Article 12 of the Vienna Convention on the Law of Treaties (an argument which was, as already noted, to be rejected by the Court). Japan’s argument on the point is in no way novel; and the question of Japan’s consent is not central, and not stressed. It is merely present in the reference to the need, under the terms of Article VI of the Whaling Convention, for consensus, if a resolution is to be anything more than a non-binding recommendation. It is hard to see any invocation of the doctrine of sources here.

Nor is there anything recognisable as reliance on sources in the oral argument of Japan, or even any emphasis on the lack of Japan’s lack of assent. In that argument the IWC resolutions were first dismissed (rather casually), not on the basis of lack of assent, but on the grounds that they were obsolete or superseded (see Boyle in CR 2013/15, pp. 54-55). Emphasis was laid on the freedom of a State to disregard resolutions of international bodies that merely recommend (see Pellet in CR 2013/16, pp.53-54, citing Judge Lauterpacht in Voting Procedure [1955] ICJ Rep 114-115), but with no reference to the lack of Japan’s consent as the reason for purely recommendatory status. Three reasons were in fact given by counsel for Japan (Boyle at CR 2013/13, p. 45, and Pellet at CR 2013/16, pp. 57-58 ,para. 53): (1) that the resolutions contradicted the discretion of the government concerned, conferred by Article VIII; (2) that they were adopted without, or in contradiction to, the opinions of the Scientific Committee; and (3) that they were adopted by very limited majorities. No specific reference was made in this latter context to the question of the assent of Japan, or generally of States that did not support the resolutions. In its second round of argument, Japan repeated its contention that member States were not bound by recommendations, but had merely to take them into consideration; again, it was not asserted, or not specifically, that this was due to lack of consent of those States. (In this connection, as Professor d’Aspremont himself notes (p. 1029, fn. 6), it is the Vienna Convention, in Article 31, that refers to the subsequent agreement of the parties as an element of interpretation of a treaty, and the Convention thus has ‘the doctrine of interpretation mak[ing] resort to the doctrine of sources’. Is it then the Convention that should be the target of his criticisms?)

Japan’s agent in closing however recalled in general terms the maxim pacta sunt servanda, and added ‘What you have agreed, you are bound to observe. What you have not agreed, however, does not bind you. That is a core principle of international law’, and added that this was not altered by reference to ‘a series of non-binding resolutions’ (Pellet at CR 2013/23, pp. 16-17,18).

In short, the thesis that the IWC resolutions were not opposable to Japan for lack of its consent was hardly stressed by either party, indeed it was practically taken for granted by both. It is worth emphasizing also that the question of consent was in fact first raised, not by Japan, but by Australia, when it suggested (as already noted) that the resolutions could be regarded as either ‘subsequent agreement’ of the parties to the Whaling Convention, or ‘subsequent practice’, so as to be relevant for the interpretation of the Convention, on the lines of Article 12 of the Vienna Convention on the Law of Treaties.

Let us then turn to what Professor d’Aspremont finds Japan as saying, or implying.  Japan ‘elevated its assent into a condition for the resolution to yield interpretative effects’ (p.1036). To say that Japan ‘elevated its assent’ surely implies that it sought to give that assent (or its absence) a role, or an effect, going beyond what would normally be recognized; but there is no trace of this in Japan’s own argument, written and oral. The idea of ‘elevation’ of its consent into a condition of the resolution having interpretative effects in fact misrepresents the process, the legal structure, inasmuch as Japan’s consent necessarily was a condition, as a matter of what we may call the constitutional law of the organization, expressed in Article VI. It required no ‘elevation’ in order to affect the opposability of the resolution.

It is therefore not at all clear where the reliance on the ‘logic of sources’ (allegedly taken over from Japan by the Court in its judgment) is to be found. It should be borne in mind that if, behind the question of interpretation there was any question of sources, it was simply that the whole debate was framed by the Whaling Convention, in other words a matter of treaty law. Quite late on in the article under discussion, Professor d’Aspremont explains, in connection, not directly with the argument attributed to Japan, but with its alleged adoption by the Court, that:

[T]he requirement of the assent [of Japan] makes the question of interpretation arise exactly like (and on the lines of) a question of the generation of bindingness that is traditionally exclusively addressed from the vantage point of the sources. Indeed, assent has never been a central condition of the operation of interpretation stricto sensu. Rather, it is in relation to the identification of rules of international law (for example, treaties) that questions of assent arise. (p. 1039)

The language is, as frequently in this article, imprecise: what exactly does ‘addressed from the vantage point of the sources’ signify? Presumably, that whether a given obligation exists for a particular State depends on whether it can be shown that it derives from one of the recognized sources of international law; this of course is undeniable.  However, the antithesis between ‘interpretation’ and ‘bindingness’ is perhaps too limitative: it is here suggested that it is more a matter of ‘opposability’ – a term which, it must be conceded, neither the Court nor the parties employed. (See the analysis of the effect of Article VI of the Convention in para. 46, cited above; the term ‘opposable’ is however part of the Court’s vocabulary : see Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge [2008] ICJ Rep 12, at 50, para. 121.)    The results of the resolutions, whatever they might be, were only opposable to the States that had, in effect, agreed that they should be so. If the resolutions in question were intended to be employed in interpreting the Convention, they had ‘interpretative effects’– that was what they were meant for – but by reason of the terms of Article VI, those effects were only opposable to the consenting States.

Thus what Japan was denying was not that the resolutions had, or could have, ‘interpretative effects’, which effects, if they existed, existed independently of the assent of Japan; it was denying that such effects were opposable to Japan, precisely because of the lack of assent, i.e. non-compliance with a condition of opposability. This is a perfectly orthodox argument, which does not need to invoke the ‘doctrine of sources’, however understood.

Similarly to be classed as too limitative is the explanation, already quoted, that: ‘[A]ssent has never been a central condition of the operation of interpretation stricto sensu.’ ‘Operation of interpretation’ may, as just explained, depend on opposability, which in turn may frequently depend on assent. Then the passage continues (p. 1039): ‘Rather it is in relation to the identification of rules of international law (for example, treaties) that questions of assent arise.’ For treaties, that is of course true; but how, one may ask, do questions of assent arise when the alleged rule of law to be identified is not in a treaty text, but is one of general customary law, or one of the general principles of law? These surely are binding irrespective of the assent of any individual State (reserving the position of the ‘persistent objector’). To link assent to sources generally seems too extensive, and to exclude it from any operation in relation to interpretation too limitative.

It is submitted that it is mistaken to suggest that Japan is making the question of interpretation of Article VIII dependent on its assent: that is the alleged ‘elevation’ of consent, and is a great over-simplification.  The real argument runs thus: (1) Whether JARPAII complies with Article VIII of the Convention depends on whether the permit for it is validly based on its classification as ‘scientific research’; (2) Australia and New Zealand contend that it is not, inter alia because the criteria laid down in the IWC resolutions referred to, interpreting Article VIII, are not met; (3) but those resolutions, adopted by consensus, are no more than a ‘recommendation’, and as such only opposable to States that ‘supported’ it (Convention, Article VI); (4) Japan was not one of those States (and has not otherwise accepted the interpretation), so the resolution cannot be invoked against it. If the ‘logic of sources’ or the ‘doctrine of sources’ come into the picture it is because of the underlying Convention, the source of the system of rights and obligations of the parties. The relevance of the assent of a particular State to the effect of a recommendatory resolution was already written in to the Convention; all that Japan was doing was invoking this provision, not postulating its mere consent as having in itself a law-creating effect, which seems to be the assumption on which Professor d’Aspremont’s whole thesis appears to be founded.

In what would appear to be a key paragraph (p.1039, beginning ‘It is this permanent . ..), Prof. d’Aspremont observes that the Court makes a ‘repeated’ finding that ‘interpretative effects’ are conditioned by, depend on, the presence or absence of, the assent of Japan. First, one must question the word ‘repeated’: the only reference to the need for the ‘concurrence’ of Japan is in paragraph 83 of the judgment; paragraph 206, also referred to in this connection, being irrelevant, as demonstrated above. Even in paragraph 83, the Court simply invokes the lack of Japan’s assent in order to refute the argument of Australia that the IWC resolutions can be treated as ‘subsequent agreements’ or ‘subsequent practice’ within the meaning of Article 3 VCLT. The Court takes that view because, rightly or wrongly, it finds that this is the correct reading of the Convention, thus a matter of treaty-law; again, no other source of international law seems to have any relevance. What is conditioned by the assent of Japan is the attachment to certain decisions of the IWC of the weight of Convention obligations, on the basis of the view (right or wrong) that the Convention confers this value upon those decisions provided that consent exists (or existed), The assent of Japan operates, has legal effects, solely insofar as the Convention (as correctly interpreted) makes this possible.  How then does the argument involve the invocation of ‘sources doctrine’?

Professor d’Aspremont’s view is that what moves the debate into the domain of sources is ‘conditioning of interpretative effects to the assent of Japan’, but again, this seems to mis-state the legal situation. As explained above, the effect of the absence of the support of Japan to the IWC resolution is to render that resolution without opposability to Japan, and the fact that it happens to contain an interpretation of Article VIII is incidental.  It is not interpretative effects that are excluded by the absence of assent; it is opposability.  The resolution had interpretative effects – that was its purpose – but effects solely for those to whom, by virtue of Article VI of the Convention, it applied or was opposable. Japan, by its position in relation to the Convention and ancillary instruments, is not saying ‘You shall not impose interpretative effects on me without my consent’, but ‘You shall not impose obligations on me by resolutions to which I did not give consent, because the structure of the underlying Convention makes resolutions of this kind opposable to me only if they have my support’.

Interpretation, within and without Article 31 VCLT

Now as to interpretation of Article 31 VCLT: a criticism addressed by Professor d’Aspremont to the ICJ decision is that (p. 1037) it ‘denies the possibility of generating interpretative effects outside Article 31 of the VCLT’.  Now whether or not Article 31 has, in the context of international law generally, ‘a monopoly on the organization of interpretative effects’[ii] (a view that Professor d’Aspremont rejects), it is submitted that the ICJ’s approach in this case was, for the Court, the only correct one. First. in Kaikili/Sedudu Island it had held, confirming earlier decisions, that ‘customary law found expression in Article 31 of the Vienna Convention’:[1999] ICJ Rep 1059, para. 18, citing Territorial Dispute (Libyan Arab Jamarihiya/Chad) [1994] ICJ Rep 21, para. 41; Oil Platforms (Iran v. USA) [1996-II] 812, para. 23). Then the States concerned in the case, Japan, Australia and New Zealand, are all parties to the VCLT; they have thus agreed, between themselves and other States parties to that Convention, that for the interpretation of any treaty between them, Article 31 governs. Any pair of States parties to VCLT could of course agree between themselves that a particular text should be interpreted in a way not consistent with Article 31 (that article is not jus cogens); but in the absence of such derogating agreement, the Court, when called upon to interpret such a treaty between those parties, is limited to the application of Article 31. As a treaty provision, it binds the parties to the treaty (the VCLT); and a natural reading of it is that, for those parties, it does indeed have a monopoly.

It is thus completely mistaken to suggest that the Whaling decision ‘denies the possibility’ of non-article 31 interpretation. To apply a non-Article-31 system or method of interpretation is something that the Court had no power to do; it could not (for example) give a different effect to subsequent practice than Article 31 contemplates. That possibility is not open to it, and is thus not being rejected or ‘denied’. Rejecting or denying a course of action entails choosing not to follow that course, and such choice is only meaningful if that course could have been followed. Thus nothing can be deduced from the Court’s decision on the question whether ‘generating interpretative effects outside the VCLT’ is a legal possibility.

An interesting question raised by Professor d’Aspremont (at p. 1037, citing Arato, ‘Subsequent Practice in the Whaling Case and What the ICJ Implies about Treaty Interpretation in International Organizations’, EJIL:Talk!, March 2013),  in connection with subsequent practice as relevant to interpretation is whether the effect given by the Court to the absence of Japan’s consent in relation to resolutions is consistent with the case-law of the Certain Expenses and Palestine Wall cases, where the Court accepted General Assembly resolutions as equivalent to subsequent practice for interpretation of the Charter, despite several of the resolutions having been adopted by majority over strong dissent. However, those resolutions were accepted as subsequent practice of the Organization as an entity, as distinct from the subsequent practice of the parties to the Charter as a treaty, whether severally or collectively. The distinction was noted at the time of the Expenses case, and, by some observers, deprecated (see Arato, ‘Treaty Interpretation and Constitutional Transformation : Informal Change in International Organizations’, 38 Yale Journal of International Law, 289, at 319-20, who also draws attention to the inclusion, in the Wall case, of a statement of the UN Legal Counsel in the category of ‘practice of the Organization’; this would surely be inacceptable if it were to be classified as ‘practice of the States Members as parties to the Charter as treaty’).

While the Wall case confirmed the legitimacy of equating the two forms of practice, it is however arguable that the distinction remains, or should remain, in the following sense: a decision of a UN organ within its Charter powers is a decision of the organization, however limited the majority by which it is adopted, and is effective as such.  But it would be unrealistic to see it also as ‘agreement’ or ‘practice’ of the parties to the Charter, ut singuli, if a large percentage – or even a mere majority –  of them had made clear their dissent. This consideration is reinforced when the resolutions under examination are constitutionally given the status of ‘recommendations’, as they are in the Whaling Convention. In short, the Whaling case does not appear diverge from this previous case-law.

Respice finem : the alternative outcome.

Outlined above are the considerations urged by Professor d’Aspremont to suggest that the ICJ decision in the Whaling case was mistaken or unsound; what then should, in his view, the Court have decided?  It should not have made ‘interpretative effects’ subject to the assent of Japan; therefore it should not have excluded the Council resolutions from having such effects simply because they were ranked, by Article VI of the Convention, as mere ‘recommendations’, and Japan had not in any way supported them. It was then open to the Court to uphold the contention of Australia as to interpretation of Article VIII by the resolutions as ‘subsequent practice of the parties’. The result would still have been a condemnation of JARPA II by the Court, but in terms corresponding more closely to the criticisms expressed in the resolutions.  On the other hand, the distinction in terms of effects, existing within the Convention structure, between binding decisions of the Council, and recommendatory resolutions, would have been nullified, with all the authority of the ICJ.  Would this have been a more satisfactory outcome?

EJIL Debate: A whale or a weasel? The Antarctic Whaling case, and a reply to Professor d’Aspremont (Part I)

EJIL:Talk! - Mon, 01/15/2018 - 12:30

Part I of a two-part post opening the discussion of Jean d’Aspermont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘.

The article by Professor Jean d’Aspremont, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘, is directed to the decision of the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) but is, in a number of ways, an unexpected commentary on that decision. The author concentrates his attention on what would seem to be a rather minor aspect of the controversy between the parties, and leaves aside all other elements of the case. He then builds on that point, an analysis of the parties’ arguments, and of the Court’s conclusions on the point, which, one suspects, both the parties and the Court would have great difficulty in recognizing as their own. The result is that Professor d’Aspremont appears to be criticising a wholly suppositious thesis, a chimera of his own construction, rather than the judgment actually delivered.

This criticism centres around what in the title of the article is called a ‘blurring of the lines between sources and interpretation’. In fuller terms, the distinction is between, in the first place, the ‘doctrine of sources’, which is ‘what allows norms and standards to be formally anchored in a legal order and generate therein the highest form of legal effect – that is, bindingness’ (p.1028). Against this, Professor d’Aspremont identifies a ‘doctrine of interpretation’: ‘legal relations between subjects of an international order can also be affected by interpretative effects’, which result from ‘an act of interpretation that is constrained not by the doctrine of sources but rather a doctrine of interpretation’(ibid.). This formulation, apparently unobjectionable, subsequently proves, however, to generate unnecessary problems, to be examined below.

Professor d’Aspremont also criticises the Court (though this is a separate issue) for its handling of the question of interpretation of treaties and the scope of Article 12 of the Vienna Convention on the Law of Treaties; but it will be submitted that that criticism also misunderstands what the Court was doing, and what it had power to do.

The ‘main question’ in the case

The point which is in the article identified as ‘one of the main questions with which the ICJ was confronted’ in the Whaling in the Antarctic case is that of the ‘legal effects that could possibly be ascribed to the resolutions of the IWC’ (the International Whaling Council) (d’Aspremont, p. 1031). Closely linked with this is the question of the role of consent (specifically, that of the Respondent, Japan) in the legal relations to which the judgment is directed. 

The qualification of this issue as a ‘main question’ necessarily contains an element of subjective judgment: what to one eye looks ‘very like a whale’. to another may be no more than ‘backed like a weasel’ (Shakespeare, Hamlet, Act 3, Sc. 2); but this assessment nevertheless looks questionable against the background of the actual pleadings in the case, and the Court’s judgment; as does also the similar reference (p. 1039) to the linked question of the relevance of the consent of Japan, the subject, we are told of a ‘repeated’ finding of the Court. These questions were dealt with in the pleadings of the parties only as a very subsidiary matter; and they are handled in the Court’s judgment merely in two paragraphs (paras. 46, 83), out of 247. It seems, however, that it is on this limited reference to consent, in this very limited framework, that a main thesis of the article is built: that Japan in its argument, and the Court in its judgment, relied on, or made use of, something referred to as ‘sources doctrine’, contrasted with ‘interpretation’; and that this was inappropriate and therefore open to criticism.

The main target of the criticisms in the article is the International Court, but the errors it is suggested that it made were, it is contended, taken over from the arguments presented by Japan. It will be convenient to outline first what the issue was, and secondly what the Court decided in that respect.

The significance of resolutions of the IWC for the case was as follows. An issue – certainly a ‘main’ issue – was whether Japan’s program of whaling, known as JARPA II, allegedly for purposes of scientific research, was in accordance or in conflict with Japan’s obligations under the International Convention for the Regulation of Whaling, to which it was a party, as were Australia and New Zealand; and this depended on whether the program was genuinely ‘for purposes of scientific research’.  Much of the case was fought on technical aspects of whaling and its methods, but on the legal plane Australia invoked, inter alia, a number of resolutions of the International Whaling Council, from the years 1995, 1997, 1998, 1999, 2000, 2001, 2003 and 2007, which condemned Japan’s whaling activities, and rendered them, in Australia’s view, unlawful under the regime of the Convention (Memorial of Australia, para. 4.79). Australia’s specific submission (Submission 3) in this respect was that ‘JARPA II is not a program for purposes of scientific research within the meaning of Article VIII of the International Convention for the Regulation of Whaling’. One of Australia’s arguments was that Article VIII should be interpreted taking into account the ‘subsequent agreement’ or ‘subsequent practice’ of the parties to the Convention, and it invoked the resolutions, inter alia, as an indication of such (Memorial, paras. 4.68-4.69), in accordance with Article 31, para. 3, (a) and (b) of the Vienna Convention on the Law of Treaties. Japan pointed out that the alleged agreement or practice was not shared by all parties to the Convention (since the resolutions were not adopted by consensus, and not all parties had accepted them), and could not therefore have that effect.

What did the Court say?

The Court eventually in effect upheld the claim of illegality of the whaling activities. Specifically, it ruled that the JARPA II permits did not fall within the provisions of Article VIII, paragraph 1, of the Whaling Convention; and that by granting those permits, Japan had not complied with its obligations under paragraphs 10 (e), 10 (e) and 7 (b) of the Schedule to the Convention. The essence of the judgment – the main question – was the finding that Japan’s activities involved ‘scientific research’, but were not ‘for the purpose of scientific research’.

These conclusions were, however, not based on any IWC resolutions; the Court specifically rejected the argument that these represented subsequent agreement or practice of the contracting States (Judgment, paras. 78-79). The weight of the resolutions was as ‘recommendations’ under Article VI of the Convention. As the Court explained (Judgment, para. 46):

Article VI of the Convention states that “[t]he Commission may from time to time make recommendations to any or all Contracting Governments on any matters which relate to whales or whaling and to the objectives and purposes of this Convention”. These recommendations, which take the form of resolutions, are not binding. However, when they are adopted by consensus or by a unanimous vote, they may be relevant for the interpretation of the Convention or its Schedule.

It is to be noted that at this stage of the judgment no reference is made to the existence or non-existence of the assent of, specifically, Japan; there is merely a reference to consensus or unanimous vote, implying the possibility of dissent as excluding, presumably for the dissenters, relevance for interpretation.

It is at a later stage in the judgment (para. 83) that the Court notes that the resolution was one of a number that had been ‘adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan’. This was the basis of the Court’s rejection of a specific argument of Australia, noted above; the Court held that these texts thus could not be regarded as ‘subsequent agreement’ in support of an interpretation of Article VIII, nor as ‘subsequent practice’, establishing an agreement of the parties regarding the interpretation of the treaty, within the meaning of subparagraphs (a) and (b), respectively, of paragraph (3) of Article 31 of the Vienna Convention on the Law of Treaties’ (ibid.).

One other paragraph of the judgment should be noted, because of the reliance on it by Professor d’Aspremont, as defining the Court’s attitude to the significance of Japan’s assent: paragraph 206. The Court there mentions one particular resolution as having been adopted by consensus. However, that paragraph connects reductions in the total annual Japanese catches of whales to the sabotage actions committed by the Sea Shepherd and those associated with it, which Japan had brought to the Court’s attention; the last two sentences of paragraph 206 read:

In this context, the Court recalls IWC resolution 2011-2, which was adopted by consensus. That resolution notes reports of the dangerous actions by the Sea Shepherd Conservation Society and condemns “any actions that are a risk to human life and property in relation to the activities of vessels at sea”.

The reference to ‘consensus’ clearly has nothing to do with the binding quality, or opposability, of the resolution with regard to Japan; the Court does not say – and does not need to say – whether Japan joined in the consensus. It was simply emphasizing the extent of international condemnation of the sabotage activities.  Thus paragraph 206 of the Judgment is wholly irrelevant to the discussion.

What did Japan say – and what did it not say?

The Court was led into error, we are told, by adopting in its decision an approach employed by Japan: it is alleged to have been at fault inasmuch as, in a context that was solely one of ‘interpretative effects’, it adopted a ‘sources-based approach’. Specifically, we are told (at a fairly late stage in the article) that Japan ‘sought to limit the interpretative effects of the resolution of the IWC by embracing a hybrid construction based on both interpretation and sources’ (p.1016, italics added). Japan, we are told, ‘elevated its assent into a condition for the resolution to yield interpretative effects, thereby resorting to a mixture of a logic of sources and a logic of interpretation’. These expressions – ‘interpretative effects’ as distinct from ‘interpretation’, ‘source-based’ and ‘logic of sources – are unconventional and obscure: their precise meaning is not clear. It would be desirable in any event to have had chapter and verse here, that is to say, some reference to Japan’s pleadings and oral argument, where one might trace this recourse to a ‘logic of sources’. In the footnotes to the article there is only one such reference to Japan’s pleadings (fn. 20 on p. 1013, referring to Japan’s Counter-Memorial), and no references whatever to Japan’s oral argument.

What then does this single reference given tell us? What was Japan’s argument? 

Tune in tomorrow for part-two of this post where Professor Thirlway looks at what Japan did and didn’t say, and the interpretation of Article 31 VCLT.

EJIL Debate: Jean d’Aspremont’s Article on the Blurring of Interpretation and Sources in the ICJ Case on Whaling in the Antarctic

EJIL:Talk! - Mon, 01/15/2018 - 08:30

The blog is happy to announce that over the next few days, we will host a discussion of Jean d’Aspremont’s article, ‘The International Court of Justice, the Whales, and the Blurring of the Lines between Sources and Interpretation‘. The debate will open this afternoon with Professor Hugh Thirlway’s reaction to  d’Aspremont’s article. We will continue the discussion tomorrow with Jean d’Aspremont’s response. On Wednesday, Maiko Meguro will bring the debate to a close with her reaction to the argumentative framework of ‘logic of interpretation’ and ‘logic of sources’ put forward by Professor d’Aspremont in his EJIL article and discussed by Hugh Thirlway in his rebuttal.

d’Aspremont’s article, which was published in the European Journal of International Law in November 2017, argues that the idea that the doctrine of sources enjoys a monopoly on the tracing of bindingness and does not directly constrain the interpretation of those standards and norms that it validates has been seriously eroded by the International Court of Justice in its 31 March 2014 judgment concerning Whaling in the Antarctic. d’Aspremont contends that the Court comes very close to calibrating the interpretive effects of the resolutions of the International Whaling Commission through the doctrine of sources. He explains, how this blurring between sources and interpretation is most unsettling given the efforts that the Court had invested, over the years, in consolidating two distinct doctrines – the doctrine of sources and the doctrine of interpretation.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

Announcements: CfP International Law at the Seas; CfJ Chinese National Round for ICC Trial Competition

EJIL:Talk! - Sun, 01/14/2018 - 10:00

1. Call for Papers: International Law at the Seas. The Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights (CSCTSMR) at China University of Political Science and Law (CUPL)  is now calling for papers for the symposium on international law at the seas, which is to take place on 15-16 March 2018 in Beijing. For more information, see here

2. Call for Judges: Chinese National Round for International Criminal Court Trial Competition (English Edition). The 2018 Chinese national round for International Criminal Court Trial Competition (English Edition) will take place at CUPL on 17-18 March in Beijing, and the competition organization committee is also calling for judges. For more information, see here

Post-Buenos Aires: Tackling Fisheries Subsidies Contributing to IUU Fishing through Unilateral Trade Measures?

EJIL:Talk! - Fri, 01/12/2018 - 09:00

At the Eleventh Ministerial Conference of the World Trade Organization (WTO) held in Buenos Aires in December 2017, Members failed to reach an agreement on discipline aimed at eliminating fisheries subsidies that contribute to illegal, unreported and unregulated (IUU) fishing. Instead, they decided to continue the negotiations on this issue with a view to adopting an agreement by the next Ministerial Conference in 2019, right before the target year (i.e. 2020) set by the UN Sustainable Development Goal 14 target 6 to prohibit certain forms of fisheries subsidies leading to IUU fishing.

Since January 2010, the EU has actively resorted to unilateral trade measures to combat IUU fishing occurring outside its territorial waters (i.e. restricting fishery products that originate from IUU fishing outside its territorial water from being imported into the EU) under Council Regulation (EC) No 1005/2008 (EU IUU Regulation). In light of the disappointment expressed by the European Commissioner for Trade Cecilia Malmström at the deficiencies of the WTO’s negotiating function, the EU might also apply unilateral trade measures to fishery products imported from certain States that provide fisheries subsidies contributing to IUU fishing. As will be explained later in this piece, it appears that the legal text itself and the EU’s flexible application of the EU IUU Regulation do not necessarily prevent the European Commission from heading into such a policy in the Post-Buenos Aires era.

Unilateral Trade Measures against Non-Cooperating States under the EU IUU Regulation

According to the EU IUU Regulation, the European Commission shall identify the third countries it considers as non-cooperating in combating IUU fishing. First, it shall notify these countries only of the possibility of their being identified as non-cooperating based on certain criteria and then provide them with a reasonable time to remedy the situation at issue (‘yellow card’). As the essential element examined for this identification, Article 31.3 of the EU IUU Regulation reads as follows.

A third country may be identified as a non-cooperating third country if it fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.

Second, upon the subsequent decision by the Commission that the areas of concern and shortcomings at issue have not been addressed sufficiently by these pre-identified countries, the European Council shall decide to include them in a list of non-cooperating third countries (‘red card’). Because of this listing, the importation into the EU of fishery products caught by fishing vessels flying the flag of such countries shall be prohibited. Since the entry into force of the EU IUU Regulation in January 2010, the Commission has issued a yellow card to 25 countries and further proceeded to an import ban against six of those countries.

In sum, the primary task of the Commission here is to decide unilaterally whether the third countries concerned act in a consistent manner with their obligations under international law relating to the prevention, deterrence and elimination of IUU fishing. To this extent, it may be possible that such unilateral import restrictions under the EU IUU Regulation could be viewed as a form of countermeasures under customary international law against the wrongful acts of identified non-cooperating countries.

Lack of Disciplinary Measures for Fisheries Subsidies under Legally Binding Instruments

In the process of identifying non-cooperating third countries, the European Commission is required, among other tasks, to consider the ratification or accession of these countries to ‘international fisheries instruments’, including the UNCLOS, the United Nations Fish Stocks Agreement (UNFSA) and the Food and Agriculture Organization (FAO) Compliance Agreement. Importantly, these instruments that are legally binding in nature merely require Members ‘to take measures to prevent or eliminate excess fishing capacity’ in an abstract manner (e.g. Article 5(h) of the UNFSA) and do not contain any provisions that specifically refer to the grant by States of fisheries subsidies that contribute to IUU fishing or request that States curb the grant of fisheries subsidies that contribute to IUU fishing. Thus, the Commission has never directly based its (pre-)identification of the third countries concerned as non-cooperating in its finding that they continue the provision of fisheries subsidies that contribute to IUU fishing. In this sense, they appear inconsistent with these binding instruments.

Nevertheless, it should be noted that the Commission might find that the provision of fisheries subsidies contributing to IUU fishing indirectly constitutes a violation of these binding instruments, depending on the facts of the case. For example, in April 2015, the Commission decided to notify Thailand of the possibility of being identified as non-cooperating in fighting IUU fishing (yellow card). It found that ‘the Thai fleet operates illegally outside Thai territorial waters’ on the basis of (i) declining fish stocks in Thai territorial waters, (ii) reduced fishing area in third country waters and (iii) ‘an increasing fishing capacity (circa 4000 [Thai] commercial vessels in 2011 to 7000 in 2014)’. Then, based on these finding, the Commission concluded that it amounts to a violation of Articles 94.2(b) and 117 of the UNCLOS.

It is true that no reference was made by the Commission to whether the increase of the fishing capacity in Thai commercial vessels was derived from fisheries subsidies granted by the Thai Government. However, it would follow from this Commission’s decision that an increase of fishing capacity itself in commercial vessels could be treated as an indirect reason for the Commission to declare it a violation of the relevant international law.

How Will Legally Non-Binding Instruments Come into Play?

It must be also added that, when deciding whether the third countries concerned failed to discharge their duties under the relevant international law, the Commission has often found that they also failed to comply with legally non-binding (voluntary) instruments adopted by the FAO, such as the Code of Conduct for Responsible Fisheries (CCRF) and the International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU). The EU does not appear to make a clear distinction between legally binding and non-binding instruments, at least in the context of regulating IUU fishing. This trend can be found also in the EU’s proposal for WTO disciplines on fisheries subsidies in which the phrase ‘relevant international law’ referred to is specified further as also including non-binding instruments such as the CCRF.

While the CCRF contains no express provision requesting States to curb fisheries subsidies, the IPOA-IUU specifically requires States to ‘avoid conferring economic support, including subsidies, to companies, vessels or persons that are involved in IUU fishing’ (paragraph 23). In addition, the International Plan of Action for the Management of Fishing Capacity (IPOA-Capacity) also contains an explicit provision stipulating that ‘States should reduce and progressively eliminate all factors, including subsidies…which contribute, directly or indirectly, to the build-up of excessive fishing capacity’ (paragraph 26).

As of today, the European Commission has never based its decision to issue yellow or red cards on the finding that the provision of fisheries subsidies by the third countries concerned contributes to IUU fishing and, thus, is inconsistent with the above-mentioned non-binding instruments. Nevertheless, given the flexible practice of the Commission with respect to the application of legally non-binding instruments, it would not be unreasonable to expect that the Commission could decide in the future that a third country providing fisheries subsidies ‘involved in IUU fishing’ fails to discharge its commitments under the IPOAs and then possibly (pre-)identify it as non-cooperating in fighting IUU fishing.

Further Questions: Consistency with the WTO Agreement

Looking at the legal text itself and the flexible application by the Commission of the EU IUU Regulation, it could be preliminarily concluded that the Commission is not necessarily prevented from resorting to unilateral trade restrictions against third countries providing fisheries subsidies that contribute to IUU fishing. Such a shift to a unilateral approach is more likely, especially after the failure of the WTO in Buenos Aires to reach a multilateral agreement on curbing fisheries subsidies.

Adopting such trade restrictions against certain States will result in a dispute that concerns the WTO’s consistency, while an import ban under the EU IUU Regulation has not yet been subject to the WTO dispute settlement mechanism. According to the previous European Commissioner for Trade Karel De Gucht, the EU appears to understand that unilateral trade measures taken under the IUU Regulation can be WTO-consistent and at least be justified pursuant to Article XX(g) of the General Agreement on Tariffs and Trade 1994 (GATT 1994) relating to the conservation of exhaustible natural resources, including fish stocks.

Apart from the chapeau of Article XX of the GATT 1994, the question will occur, among others, as to whether there is a ‘sufficient nexus’ between fish stocks concerned and the EU, as was carefully confirmed in US–Shrimp between the United States (US) and sea turtles that are scientifically demonstrated to migrate through the waters of several countries including the US (Appellate Body Report, US–Shrimp, para. 133). This is so, especially when the Commission decides to identify a third country as non-cooperating on the ground that its fishing vessels recurrently engage in IUU fishing in territorial waters of other countries that are geographically detached from the EU (e.g. Thai vessels in the Mauritian EEZ).

 

Western Sahara before the CJEU

EJIL:Talk! - Thu, 01/11/2018 - 10:01

Just a quick heads-up to our readers that yesterday Advocate General Wathelet of the Court of Justice of the EU delivered his opinion in Case C‑266/16, Western Sahara Campaign UK, The Queen v Commissioners for Her Majesty’s Revenue and Customs, Secretary of State for  Environment, Food and Rural Affairs. This is a very important opinion, dealing with numerous issues of international law, above all the principle of self-determination; the AG concluded that the Fisheries Agreement between Morocco and the EU was invalid because it was in violation of self-determination, as the Agreement applied to the territory and waters of Western Sahara. This is the first time that a request was made under the preliminary ruling procedure for a review of validity of international agreements concluded by the EU and their implementing acts. In that regard, the AG concluded that it was possible to rely in such proceedings on the rules of international law which are binding on the EU, where their content is unconditional and sufficiently precise and where their nature and broad logic do not preclude judicial review of the contested act. These conditions were in the AG’s view satisfied here. In addition to self-determination, the AG also examines the principle of permanent sovereignty over natural resources and the law of occupation, including the capacity of the occupying power to concluded treaties for the occupied territory.

The AG’s opinion is rich and rigorously argued – obviously it remains to be seen whether the Court will follow it. I would only add that the opinion and the case concern the validity of the Agreement from the perspective of the internal legal order of the EU, which then incorporates (other) rules of international law. But one could also look at the validity question purely from the perspective of general international law, and the rule set out in Art. 53 VCLT. In that regard, the necessary implication of the AG’s analysis seems to me to be that the Agreement was void ab initio and in toto as it conflicted with a peremptory norm of international law, the right to self-determination. For background on the UK litigation from which this case arose, see this post by David Hart QC on the UK Human Rights Blog. For analysis of the earlier Polisario litigation before EU courts, see here.

 

 

Torture in Libya and Questions of EU Member State Complicity

EJIL:Talk! - Thu, 01/11/2018 - 09:00

Amnesty International has reported that ‘tens of thousands’ of refugees and migrants are being subject to torture and other human rights abuses at the hands of Libyan state officials and non-state actors operating in, and out of, Libya (the full report can be accessed here). The publication of the report has led to allegations that the European Union (EU) is complicit in torture. One finding of the report is that ‘EU member states are and have been well aware of the widespread human rights violations and abuses suffered by refugees and migrants in Libya’ (p. 56). Amnesty International has claimed that EU states ‘are complicit’ in torture. Whether the complicity spoken of can trigger the responsibility of these states under international law is implied, but far from clear.

There are many tangents to questions of ‘European complicity’ in the torture of Libyan refugees and migrants. For example, issues regarding the obligation of non-refoulement (p. 53 of report), or the extraterritorial application of human rights obligations (pp. 54-56) (for insights on these particular matters see Gauci and Jackson respectively). The following post will briefly analyse the applicable secondary rules relating to how EU states could be held responsible for complicity in torture under general international law in light of the facts contained in the Amnesty report.

The relevant legal framework

Article 2 of the International Law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) clarifies that state responsibility can be triggered if an act or omission is attributable to a state and also breaches an international obligation of that state. Article 16 of the ARSIWA sets out two conditions for holding states responsible for aiding or assisting another state in an internationally wrongful act:

(a) The state ‘aiding or assisting’ another state must do so with knowledge of the wrongful act in question.

(b) The act would be internationally wrongful if committed by that state.

How these requisites of state responsibility for complicity can be met in this particular case pose a number of issues. For the purposes of this post, the ‘aid or assistance’ spoken of is the funding, technical and logistical support given to Libyan border control authorities by EU states. As the Amnesty report provides substantial evidence in this regard (pp. 42-50), it shall be assumed that there is a sufficient nexus between this ‘aid or assistance’ of EU states, and its contribution to the acts of torture in Libya.

The knowledge requirement

The mental element of Article 16 is not as straightforward as it seems at face value. There are in fact three possible ways it could be satisfied:

  1. Proving that the EU state knew of the torture in Libya (Knowledge).
  2. Proving that the EU state intended to facilitate the torture in Libya (Purpose).
  3. Proving that the EU state avoided knowledge of the torture in Libya (Wilful Blindness).

Preference towards one interpretation depends on how narrowly one wishes to construe the mental requirement. If one strictly adheres to the language of Article 16 alone, then option 1 appears to be correct, whilst leaving the door open for a broad application of the provision. However, upon examination of the provision’s commentary (particularly paras. 1 and 5), it becomes clear that the ILC had in mind an intention to facilitate wrongful conduct, thus favouring option 2. This interpretation of Article 16(a) is more restrictive, requiring an additional component to knowledge of the overall circumstances. A number of arguments have been made against such a reading (see Aust p. 236). Yet the provisions of the ARSIWA are best read in conjunction with their commentary to ensure for the most accurate interpretation of the rule under scrutiny. The term ‘wilful blindness’ is absent from Article 16, but has become a point of discussion in issues relating to complicity (see, for example, Jackson, pp. 54 and 162 and Chatham House, pp. 14-17). Applying this concept adds an extra layer of complexity to the knowledge requirement (see point 3).

The three interpretations are interconnected, but the relationship between them will not be analysed further here. Instead, each will be taken separately to show how their application would play out on the facts contained in the Amnesty report.

1. Knowledge

Paragraph 4 of the commentary to Article 16 shows that the knowledge required is that of illegality. This means that the EU states must have been aware of facts proving torture had occurred in Libya, and that such acts were internationally wrongful. The report of Amnesty is comprehensive in its assessment that EU member states are aware of the acts of torture being perpetrated in Libya (pp. 51-59). In particular, it highlights the numerous sources of information compiled by international organisations, non-governmental organisations and states that point towards EU states being aware of the circumstances in which refugees and migrants in Libya are being tortured (pp. 56-58). More specifically, for example, Italy explicitly confirmed its knowledge of such incidents in a letter from its Prime Minister to Amnesty International (p. 58). These sources of information also speak to the clear unlawfulness of torture under international law, meaning no state could make a rational argument that facts showing torture would not necessarily mean that those acts were unlawful. Based on the available facts, EU states are in no position to claim that they are unaware of the present circumstances. They have actual or near-certain knowledge of torture against refugees and migrants in Libya. If the test under Article 16(a) is pure knowledge, then it appears its threshold would be met in this case. What if, however, the test was purpose?

2. Purpose

The commentary to Article 16 indicates that ‘the aid or assistance must be given with a view to facilitating the commission of the wrongful act […] A State is not responsible for aid or assistance under article 16 unless the relevant State organ intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct’. The section of the Amnesty report dealing with torture (pp. 31-33) does not indicate EU states are providing aid or assistance with a view to facilitating this wrongful act, and actually doing so. If Article 16(a) requires application of a purpose-based test, the Amnesty report, despite its detail, does not show any facts that would satisfy such a threshold. Adherence to this interpretation thus restricts potential responsibility for complicity considerably in this case. There is simply no evidence that EU states desire migrants in Libya to be tortured. If, however, the purpose test is interpreted as incorporating a more oblique form of intent – for example, that a particular consequence is to be regarded as intended if the relevant state organ is aware that it will occur in the ordinary course of events (cf. Art. 30(2) of the Rome Statute of the ICC) – then the test could potentially be met, since EU states do arguably know that the aid provided will be used for torture in the ordinary course of events in Libya.

3. Wilful Blindness

Wilful blindness in the context of state responsibility for complicity can be defined as a state consciously turning a blind eye to credible information that points to wrongful conduct of another state to which it is aiding or assisting. This test is attached to the knowledge test, but in the negative, in that a state did not have knowledge of wrongfulness, but because of a choice it made to avoid such knowledge. With respect to the torture of refugees and migrants in Libya, a reasoned argument could be made that EU states are turning a blind eye – as suggested by Amnesty (pp. 12, 19 and 58 of report). Applying wilful blindness acts as a potential safeguard to satisfying the knowledge requirement should an EU state claim that it did not know of the torture in Libya. Yet this would be hard to envisage considering the amount of credible information available to EU states and their responses to it.

The opposability requirement and attribution

The second requirement of complicity under state responsibility is opposability: the state that aids or assists the recipient state perpetrating the wrongful act must be bound by the same obligation as that state. To the extent that torture is at issue, the opposability requirement, in the state-to-state context, is straightforward and would be satisfied in this case. Libya is bound by the obligations under the Convention against Torture, as are all EU states. There is also an additional factor that the prohibition of torture is a rule of customary international law of jus cogens status, thereby binding all states. Therefore, on satisfying the mental requirement, EU states could be held responsible for complicity in the acts of torture committed in Libya, subject to one final question: whether it was (1) Libyan organs or (2) non-state actors that tortured the refugees and migrants.

The struggle with 1 is indentifying who are Libyan state officials in reality. The Amnesty report makes clear (pp. 31-33) that the General Directorate for Combating Illegal Migration (DCIM) – part of the Libyan Ministry of Interior – is blameworthy for the instances of torture, which occur predominantly in DCIM detention centres. The status of the DCIM forming part of the Libyan Government makes it logical to presume that the persons working at its detention centres who have tortured refugees and migrants are state organs. Such conduct would therefore be attributable to Libya under Article 4, ARSIWA.

Further issues are presented by 2, which can be addressed through three avenues:

  1. Attributing the acts of torture to Libya under one of the rules on attribution of conduct contained in the ARSIWA (Articles 4-11). It should be noted that the conduct of non-state actors could also be attributed to Libya under rules of international law that are lex specialis to the ARSIWA framework (Article 55). If the torture took place at a DCIM detention centre, then non-state actors operating there would likely be acting in complete dependence on Libya (Article 4), or exercising elements of governmental authority (Article 5), or acting on the instructions of, or under the direction or control of, Libya (Article 8). Triggering any of these rules would depend on the facts present in each specific instance of torture. But what about acts of torture that have occurred outside Libyan government installations and cannot be attributed to Libya under one of the rules on attribution of conduct? This is where avenues 2 and 3 become pertinent.
  2. Attributing responsibility to Libya through the application of primary rules relating to the positive obligation to prevent torture. The wrongful act here would now not be torture, but the failure to prevent it. Considering the ambiguity surrounding the status of the actors torturing refugees and migrants, and the difficulties of uncovering facts sufficient to satisfy one of the attribution of conduct provisions of the ARSIWA, this avenue is likely to yield the highest chance of success. So long as the torture in question took place within Libyan jurisdiction, it could be argued that the state had failed to fulfil its obligation to prevent torture. Yet what happens if Libya is found not to have breached its positive obligations in this regard – meaning no internationally wrongful act has occurred? There is one last option to pursue.
  3. Analogising Article 16 so that it can apply in state-to-non-state interactions. This avenue turns on whether the non-state actor in question bears an international obligation relating to the prohibition of torture. The key issue here is essentially whether there is even the occurrence of an internationally wrongful act for an EU state to be complicit in. EU states have an obligation with respect to the prohibition of torture, but do the non-state actors operating in Libya?

The untapped potential of non-state actors’ obligations

Whether the acts of torture in Libya constitute an internationally wrongful act is a tricky question if they have been committed by a non-state actor. It is unlikely that the militias spoken of in Amnesty’s report are bound by an obligation prohibiting torture. Yet the report also notes the involvement of armed groups in these incidences. It has been established that such non-state actors can, and do, bear obligations under international human rights law, including the prohibition of torture. The qualification for this ability to bear such obligations is whether the non-state armed group is party to an armed conflict. The Libya situation has been described as ‘fluid’, in that it oscillates between an international and a non-international armed conflict. It is likely that the armed groups referred to in the Amnesty report are party to this conflict.

A confirmation that the non-state armed groups are bound by the obligation not to torture advances the argument that EU states could be complicit in an internationally wrongful act of torture if committed by these non-state actors, if the mental requirement were also satisfied. The law in this area is far from fully developed, but exploring the potential obligations of non-state actors in such situations offers the promise of expanding complicity under the law of state responsibility beyond its state-centric confines.

Whether a rule analogous to Article 16 exists in the state-to-non-state context is plausible. The International Court of Justice (ICJ) unlocked the potential for holding a state responsible for aiding or assisting a non-state actor. The Bosnia Genocide judgment (paras. 419-421) set a precedent that the Genocide Convention prohibits complicity in genocide, independent of considerations as to what status the actor committing genocide was under international law. The Court’s ruling was, however, based on the text of the Convention rather than on a generally applicable rule of customary law. Additionally, in its Order for Provisional Measures (p. 25), the ICJ directed Serbia to:

ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any acts of genocide (emphasis added).

There is also state practice to support complicity applying in state-to-non-state interactions. It should be borne in mind that the principal reason for the final version of Article 16 not applying to non-state actors was because it was disputed at the time of drafting whether non-state actors could bear international obligations. Bringing this thought back into the context of the Libyan situation, if this analogy theory were to be accepted, then so long as EU states and non-state actors are bound by the same obligation concerning the prohibition of torture, then state responsibility for complicity in torture by a non-state actor could be invoked. Such an outcome would provide an additional route to triggering state responsibility independent of the ARSIWA framework. So long as the opposability requirement is satisfied, why does the status of the actor, which owes the same obligation as the aiding or assisting state, matter?

Whether EU states can be held responsible for complicity in the acts of torture against refugees and migrants in Libya remains to be seen. There are multiple factors to consider. The Amnesty report makes a strong case that EU states have significantly contributed to circumstances in which people attempting to escape violence are suffering from human rights abuses such as torture at the hands of Libyan state officials and non-state actors. The law of state responsibility has a significant role to play here. This framework of secondary rules has the capacity to ensure that both forms of direct and indirect responsibility are not evaded. The facts surrounding the torture of refugees and migrants in Libya contained in the Amnesty report are substantial and provoke a desire for lawful accountability and justice to ensue. EU states are both morally and politically ‘complicit’ in the torture being inflicted, due to these states arguably turning a blind eye to such acts, or failing to do more to prevent them on a policy level. The legal position is, however, much more complex.

International Migration: Shared Commitment to Children’s Rights and Protection

EJIL:Talk! - Wed, 01/10/2018 - 09:00

On 17 November 2017, the Committee on the Rights of Child (CRC Committee) together with the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW Committee) published not one but two joint General Comments (JGCs) on the human rights of children in the context of international migration. This was a significant event because two treaty monitoring bodies have worked together on a topic of global importance and this was the first time both Committees adopted two General Comments on the same issue. The first JGC covers General Principles (General Comment No 3 CMW and General Comment No 22 CRC) [JGC-GP] and the second deals with States’ human rights obligations in countries of origin, transit, destination and return (General Comment No 4 CMW and General Comment No 23 CRC) [JGC-SO]. The JGCs reiterate the central tenet of children’s rights that children are rights holders and first and foremost children, regardless of their or their parents’ nationality or migration status. Although the JGCs do not focus on one type of migration, it is acknowledged that children in unsafe or irregular migration are more likely to suffer rights’ violations than children in voluntary migration situations (JGC-GP, para 8).

Background

The two Committees were compelled to draft the JGCs by the continuing phenomenon of children caught up in international migration and the extent and diversity of human rights violations they experience on their journeys. The publication of the JGCs followed months of consultation and discussion engaging experts, NGOs and stakeholders (including child rights and migration organizations). The JGCs are an important contribution to the dialogue on international migration, especially in light of the New York Declaration on Refugees and Migrants adopted by the UN’s General Assembly on 19th September 2016 and the ongoing negotiations on the Global Compact on Refugees, led by UNHCR and the Global Compact on Safe, Orderly and Regular Migration, led by the IOM. International migration, according to the Committees, places children in a situation of ‘double vulnerability’, as children and as children affected by migration (in whatever form that takes). Consequently, both Committees are committed to strengthening the protection of all children in the context of international migration (JGC-GP, para 4).

Shared Commitment to Protecting Children’s Rights

This collaboration between the two Committees demonstrates the capacity for standard setting of the two treaty monitoring bodies which is essential in addressing cross-cutting human rights issues, such as international migration. Both Committees have been able to draw upon each other’s expertise, experience and knowledge in relation to the implementation and realisation of human rights in the context of international migration. The publication of the JGCs highlights the centrality of children’s rights in international migration law and further illustrates a commitment to the universal, interdependent and indivisible nature of human rights. According to the OHCHR, the JGCs have ‘global resonance’ because of the almost universal ratification of the Convention on the Rights of the Child (CRC).

Aims and Objectives of the JGCs

The purpose of both JGCs is to provide ‘authoritative guidance’ to ensure full compliance with States’ obligations under both Conventions and to ensure that the rights of children are fully protected in the context of international migration (para 7, JGC-GP). The JGCs aim to provide a comprehensive overview of general measures of implementation and states’ legal obligations.

Although the term ‘migration’ is not defined, the scope of migration addressed in the JGCs is broad, covering both regular and irregular migration and accompanied and unaccompanied children. The principle of non-discrimination in the CRC (article 2(2) CRC) means that States owe obligations to all children irrespective of their parents’ or legal guardians’ nationality or migration status (JGC-GP, para 9).  The rights of children on the move are not dependent on a requirement to acquire refugee status under the Refugee Convention 1951 or recognition through another form of protection, such as complementary or subsidiary protection (See e.g. Chapter V and Article 18 of the EU Qualification Directive). Children are rights holders regardless of their migration status. The only status that is relevant is that of being a child – i.e. anyone under the age of 18 (Article 1 CRC; JGC-SO, para 3).

The JGCs challenge the most recent EU Member State responses to the so-called ‘refugee crisis’ (eg Hungary’s border fences with Croatia and Serbia) and address policies of States which exercise strict migration control and narrow the scope of their jurisdiction and obligations, regardless of the impact on the protection needs and rights of children on the move. The Committees oppose the politics of non-entrée (para 12 JGC-GP; see also: Gammeltoft-Hansen and Hathaway), and the migration policies of States, who pay lip service to the value of international refugee law, whilst trying to avoid its impact. The recent trend of deals between countries of refuge and countries of transit/origin, to curb the flow and mass influx of unwanted migration, for example the EU-Turkey deal or the Italy-Libya agreement potentially violate States’ obligations under the CRC and CMW. Both Committees urge States to cooperate in order to facilitate ‘safe, orderly and regular migration with full respect for human rights’ (JGC-GP, para 50).

The First JGC: General Principles

In JGC-GP, the Committees clarify the scope of a state’s jurisdiction, which includes ‘jurisdiction arising from a State exercising effective control outside its borders’. A State’s obligations cannot be avoided by using non-entrée policies, thus confirming recent European Court of Human Rights (ECtHR) jurisprudence on jurisdiction [eg Hirsi v Italy and ND and NT v Spain, see Pijnenburg: here]. In addition children attempting to enter the State’s territory by land or sea also come within that State’s jurisdiction (JGC-GP, para 12). Unlike Article 2(1) ICCPR, there is no territorial limitation in the CRC (Article 2 CRC) and the CMW applies to all migrant workers and their families within States’ territory or subject to their jurisdiction (Article 7 CMW).

Consistent with previous CRC General Comments, the four overarching principles of non-discrimination (article 2 CRC), best interests of the child (article 3 CRC), right to life, survival and development (article 6 CRC) and the right to be heard and children’s views to be given due weight (article 12 CRC) are considered ‘fundamental principles of the Conventions’ (JGC-GP, paras 19 and 20). In addition non-refoulement and the prohibition of collective expulsion are ‘fundamental principles’ with regard to the rights of children in the context of international migration (JGC-GP, paras 45 – 47).

Authorities responsible for children’s rights and child protection should take a leading role in the development of policies and decision-making for migrating children, including children migrating with their families (JGC-GP, para 14 and 65). In addition, the collection of biometric data should be for child protection purposes only and States should prohibit the sharing of data for immigration enforcement.

The best interests principle (Article 3(1) CRC), which is unique to children’s rights has a prominent role (JGC-GP paras 27 – 33). Children’s interests should have a ‘high priority’ and ‘larger weight must be attached to what serves the child best’ to ensure the full and effective enjoyment of rights (JGC-GP, para 28).   Children have a right to have their best interests assessed and determined and taken into consideration at every stage of the asylum process, and in relation to any migration policies, immigration laws, planning, implementation and decision-making (JGC-GP, para 29). The Committees do not suggest that the principle should be an independent source of protection status, as advocated by Pobjoy.

The paragraphs on the child’s right to life, survival and development reflect the impact irregular and dangerous migration can have on a child’s life and physical, mental, spiritual, moral and social development (JGC-GP, paras 40 – 44).

The non-refoulement obligations in relation to children derive from international human rights, humanitarian, refugee and customary international law, and prohibit States from returning children to a state where they would be at ‘real risk of irreparable harm’, such as harm contemplated under Articles 6(1) and 37 CRC (JGC-GP, para 46). This echoes the approach of the CRC in General Comment No 6, which sets a high threshold for children resisting return.

The Second JGC: State Obligations.

JGC-SO deals with State obligations towards children in the context of international migration and focuses on the protection of their key rights as previously highlighted by the CRC Committee in General Comment No 6. The heading of Part II refers to these obligations applying to children in the State’s territory, which suggests a narrowing of jurisdiction with regard to child’s rights and appears to contradict the space created by the broader scope of jurisdiction in JGC-GP.

A State’s legal obligations, according to JGC-SO, include: age assessments which are informed and accurate, a right to liberty from immigration detention, due process guarantees and access to justice, a right to a name, identity and nationality, a right to protection of family life, protection from all forms of violence and abuse, including exploitation, sale and trafficking of children, protection from economic exploitation, a right to an adequate standard of living, a right to health and right to education and professional training. The human rights norms are based on the CRC given its focus on children as rights holders. In realising these rights, child protection and welfare actors should manage the care of children in this context rather than immigration officials and States should develop a child-sensitive due process framework to deal with claims for asylum, implementing a best interests assessment and determination procedure and guaranteeing a child’s right to be heard.

Impact?

The collaboration on the two JGCs gave both Committees an opportunity to draw from a broad range of human rights’ expertise, which is reflected in the quality of analysis of the legal obligations relating to children’s rights in the context of international migration.

The JGCs reaffirm States’ duty of international cooperation to ensure safe, orderly and regular migration, but only briefly acknowledge the shadier side of international cooperation (see Gammeltoft-Hansen and Vedsted-Hansen) which restricts migration, facilitates offshore detention and processing centres, allows extraterritorial migration control and encourages policies which undermine refugee protection and the human rights of migrants. It is important that both Committees challenge this form of international cooperation in State reporting.

At best, these JGCs may influence States to adopt a more child-friendly approach in their migration policies, especially irregular migration. However, there remains a substantial gap between what has been promised to children in the context of international migration and their everyday experiences of human rights violations on the migration journey. As soft law instruments, the General Comments will have limited impact on preventing human rights violations, with minimal adherence to the principles within. States, which tend to be countries of transit or destination, are likely to react negatively to the broad scope of jurisdiction set out in JGC-GP and the emphasis on child rights’ and child protection agencies managing children’s (and their families’) migration. Given recent trends in border control policies adopted by countries of transit and destination, States will continue to retreat behind their borders and State sovereignty to restrict access to their territory notwithstanding their obligations under the CRC.

Qatar under Siege: Chances for an Article XXI Case?

EJIL:Talk! - Tue, 01/09/2018 - 15:00

For more than six months now, the richest country of the world has been under an embargo imposed by its Arab neighbours, apparently motivated by their discontent over Qatar’s increasingly independent course in international affairs. The embargo raises controversial questions under international law, for example in light of the principle of non-intervention and the human rights of the people affected. For now, Qatar has chosen to contest the embargo’s legality at the World Trade Organization (WTO), requesting consultations with the UAE (DS526), Bahrain (DS527), and Saudi Arabia (DS528). The dispute could, for the first time, require a WTO panel to interpret Article XXI GATT, the security provision that has been described as ‘an unreviewable trump card, an exception to all WTO rules that can be exercised at the sole discretion of a Member State’ (Roger Alford 2011; see also the blog by Diane Desierto here).

While the cases against Bahrain and Saudi Arabia have not moved past the consultations phase, Qatar has requested the establishment of a panel in the case against the UAE, and the Dispute Settlement Body (DSB) has approved this request on 22 November. Qatar’s claim concerns a long list of complaints under the General Agreement on Tariffs and Trade (GATT), the General Agreement on Trade in Services (GATS), and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). In response, the UAE has explicitly referred to the security exceptions of the relevant agreements, arguing that the measures were a response to Qatar’s funding of terrorist organizations and therefore justified in the interest of national security.

Article XXI GATT stipulates, amongst other things, that nothing in the GATT ‘shall be construed’ … ‘to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests’, in three different contexts, including those of ‘war or other emergency in international relations’. The language of Article XXI suggests it is a so-called ‘self-judging clause’, justifying measures which are considered necessary by the State that adopts them. The crucial legal question is to what extent the Article allows for review. According to the UAE, the WTO dispute settlement system is neither empowered nor equipped to hear disputes concerning national security. Qatar, however, argues that while Members have the right to adopt bona fide security measures, such measures remain subject to WTO oversight.

So far, GATT and WTO practice has not provided a conclusive answer on the reviewability of Article XXI defences. A Decision on Article XXI adopted by the GATT Council in 1982 only stipulates that contracting parties ‘should be informed to the fullest extent possible’ of Article XXI measures, while they ‘retain their full rights under the General Agreement’. In the context of an EC complaint concerning the US embargo against Cuba (DS38), the US urged the EC to ‘consider whether the WTO was well equipped to address, let alone resolve, the type of disagreement they had brought to the DSB’, and the panel proceedings were ultimately discontinued. The limited practice under Article XXI suggests that Members have an interest in keeping the legal status of the security exception ambiguous and prefer to settle disputes through other means (Lindsay 2003). At the same time, the questions surrounding Article XXI have become more controversial in the context of the sanctions adopted by and against Russia in the context of the Ukraine conflict (Neuwirth and Svetlicinii 2015, Yeong Yoo and Ahn 2016). It remains to be seen whether Article XXI will be directly addressed in this context (see DS512; DS525; DS532).

Outside the context of Article XXI, it was held by the Article 22.6 arbitrators in the EC – Bananas dispute (DS27) that whereas the self-judging language of Article 22.3(b) and (c) of the Dispute Settlement Understanding leaves a ‘certain margin of appreciation’ to the Member concerned, this did not bar their ‘authority to broadly judge whether the complaining party … has considered the necessary facts objectively and whether, on the basis of these facts, it could plausibly arrive’ at its conclusions (para 52). Several other international courts and tribunals have also discussed the reviewability of self-judging clauses, as described in a comparative analysis by Stephan Schill and Robyn Briese (2009). In Nicaragua v United States, the ICJ affirmed that it had jurisdiction to interpret a security exception that was not phrased as a self-judging clause, contrasting it with Article XXI GATT (para 222). Yet in Djibouti v France, the Court did not accept the inverse proposition according to which a self-judging clause would not be for the Court to review. Instead, the Court found that France’s application of the relevant clause was governed by the principle of good faith, and as such reviewable by the Court (para 145). Similar positions have been adopted by several investment arbitration tribunals ruling on the Argentine economic crisis, most explicitly in LG&E v Argentina (para 214).

In the debate about whether Article XXI measures can be reviewed, good arguments can be raised on both sides. The provision is undeniably phrased as a self-judging clause, unlike for example the clause at stake in the ICJ’s Nicaragua case, and lacks the restrictive language found in the chapeau of Article XX. Moreover, it could be argued that questions of national security fall outside the competence and expertise of the WTO. In response, one could emphasize that even if Article XXI is a self-judging clause, its phrasing suggests that some form review is legitimate: Article XXI justifies only ‘essential’ and not any security interests, and lists three specific spheres of application (Hahn 1991). In addition, the absence of any form of review would allow Members to abuse the security exception to further other interests (Akande and Williams 2003). Along these lines, a GATT panel wondered in its unadopted report of 13 October 1986 on the US embargo on Nicaragua: ‘[i]f it were accepted that the interpretation of Article XXI was reserved entirely to the contracting party invoking it, how could the contracting parties ensure that this general exception … is not invoked excessively or for purposes other than those set out in this provision?’ (para 5.17).

Once a WTO panel would accept that the application of Article XXI is subject to some form of review, it would have to clarify the applicable standard of review. The pertinence of a good faith standard seems widely accepted, but its actual content is difficult to define. The ICJ considered in Gabčíkovo-Nagymaros that ‘[t]he principle of good faith obliges the Parties to apply [a treaty] in a reasonable way and in such a manner that its purpose can be realized’ (para 142). It is questionable, however, if this provides a useful standard of review. In considering the object and purpose of the GATT, it is clear that Article XXI justifies measures that would normally be diametrically opposed to the GATT’s object and purpose. The crucial question is how to strike a balance between the interests of free trade on one hand and national security on the other in situations where they are alleged to clash.

Several other elements could be used to evaluate an invocation of Article XXI. For instance, one could envisage an obligation for the Member imposing security measures to inform the other Members and to state reasons. In addition, Wesley Cann (2001) has suggested that in applying Article XXI, Members are bound by the principle of non-discrimination, which would mean that if the alleged security threat exists not only in the targeted Member but elsewhere as well, the imposition of measures on only one Member would violate the principle of good faith. Finally, review of Article XXI measures could focus on their proportionality and the availability of less trade-restrictive means.

In the concrete case of the Qatar embargo, it is hard to see how the UAE has informed Qatar and other Members of the measures adopted and of their justification. Instead, Qatar was provided with 13 demands, most of which seem difficult to relate to the UAE’s ‘essential security interests’. Under the non-discrimination standard, it is unclear why the UAE’s concerns about support of terrorism, ties with Iran and military cooperation with Turkey would apply exclusively to Qatar. The proportionality standard causes problems too, as a full-scale, unannounced embargo as the one imposed by the UAE seems difficult to justify in proportion to the security threats allegedly posed by Qatar. However, even if the different elements mentioned above could be useful in assessing the good faith of the UAE, the allocation of the burden of proof would be controversial. Moreover, a review of proportionality and non-discrimination entails relatively strict scrutiny, which is difficult to square with the self-judging language of Article XXI.

In the end, the crucial question for the panel is not primarily whether the UAE’s embargo qualifies as a legitimate security measure, but whether it can be reviewed at all. A rigorous review under Article XXI would evoke complaints of overreach by the WTO dispute settlement system, which is already in serious trouble. On the other hand, a formal decision concluding that security measures are outside the scope of WTO review will confirm interpretations of Article XXI as a carte blanche, which could also threaten the credibility of the system. Two years ago, the Russian Federation urged the Members of the WTO to create more clarity about the interpretation and application of security exceptions (WT/MIN(15)/W/14). It may now be up to a panel (and ultimately the Appellate Body) to tackle this difficult task.

Pardons for Crimes Against Humanity: Some Critical Considerations Regarding the Pardon of Former Peruvian President Alberto Fujimori

EJIL:Talk! - Mon, 01/08/2018 - 09:30

On Christmas eve the current President of Peru, Pedro Pablo Kuczynski, pardoned the former president Fujimori who had served about 12 years of a sentence of 25 years for crimes against humanity (Resolución Suprema n° 281-2017-JUS of 24.12.2017). Leaving aside the particular political context in which this pardon was issued (a few days before a parliamentary motion to remove President Kuczynski for corruption allegations failed because members of Fuerza Popular, the political movement of Fujimori’s daughter, voted against it), the decision raises several legal questions under Peruvian and international law. One of the questions, which this post will consider is the legality of pardons for persons convicted of crimes against humanity, an issue that raises similar considerations to amnesties for such crimes. To start with, it is important to note that in Peru, in general, pardons cannot be issued arbitrarily. In the case of the so-called humanitarian pardon, there are two generic circumstances that deserve closer attention.

On the one hand, the decision is, of course, only legitimate if it is based on a genuine and sufficient humanitarian reason. Hence, there is no room for a fraudulent pardon – in which the invocation of a humanitarian reason only conceals the true motivation – nor is there such thing as a pro-liberty criterion that calls for a pardon if the humanitarian reason alone is not strong enough to justify ending the punishment. The definition of what is to be understood by “humanitarian reason” is not simple. It clearly exists when the inmate’s state of health shows that he or she is in the process of death or close to it, for example in case of a terminal disease (cf. lit. a of Art. 6.4 of Executive Decree [Decreto Supremo, DS] N° 004-2007-JUS, modified by Art. 5 of DS n° 008-2010-JUS). In more complex cases, in which such a medical (terminal) condition does not exist, a special justificatory ground must be demanded in order to comply with the exceptional nature of the humanitarian pardon. This could be the case of sanitary and mental conditions of special seriousness for which the circumstances of imprisonment could represent a serious risk to the life, health and integrity of the inmate (lit. b and c of Art. 6.4 of DS n° 004 -2007-JUS, modified by Art. 5 of DS n° 008-2010-JUS).

On the other hand, the granting of the pardon should not only take into account considerations of special prevention, which invoke a low probability that this particular inmate will commit similar crimes. Considerations of positive general prevention referring to the general confidence in the criminal law may also be relevant. In particular, the continuing execution of a penal sanction could reaffirm the communicative force of the punishment and the recognition of the particular seriousness of the relevant offences (Ambos, “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC”, in Ambos/Large/Wierda (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development, Berlin-Heidelberg: Springer, 2009, p. 32). In fact, this is the reason why old Nazi criminals are still prosecuted in Germany.

Against this background we can now discuss some concrete issues that arise from the presidential decree pardoning Fujimori. First of all, this is a complex case because Fujimori has been convicted for very serious crimes (“Barrios Altos” and “La Cantuta”) as a “most responsible” perpetrator. Moreover, the granting of the pardon is based on the existence of “serious non-terminal illnesses”. Given the “minimum standard of motivation” that the Peruvian Constitutional Court (CC) requires for pardons (legal ground (l.g.) 21 of the “Crousillat Case” of 25 Jan. 2011), as well as the historic importance of the decision and the complexity of the humanitarian reason invoked, the Resolution should have offered a more detailed reasoning. Also, the participation of Fujimori’s personal doctor in the Penitentiary Medical Board that recommended the humanitarian pardon generates doubts regarding its impartiality. The medical diagnosis itself is, even from a layman’s perspective, hardly convincing, especially with regard to the “advanced, progressive, degenerative and incurable stage” of the diseases mentioned. Last but not least, the Resolution does not sufficiently explain why the prison conditions put Fujimori’s life, health and integrity at a specific, higher risk than if he was at home. In fact, Fujimori was receiving special medical attention and was transferred to a hospital if necessary for safeguarding his life, health and integrity.

The Resolution is silent on the fact that Fujimori has been convicted for crimes against humanity (Ambos, “The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus”, JICJ 9 (2011), 143-4). It is difficult to see how a (partial) exemption from punishment can be justified for such crimes under current international law. In fact, the case law of the Inter-American Court of Human Rights is quite clear in this matter having judged in the famous “Barrios Altos vs. Peru” case that an amnesty for such crimes is inadmissible (Judgment of 14 March 2001, C Series n.o, para. 41). Admittedly, a pardon is a more limited exemption than an amnesty because it presupposes a trial and usually also a partial execution of the sentence, but it remains a (partial) exemption measure and for that reason the same international law limitations apply (Ambos, Impunidad y Derecho Penal Internacional, 2° ed. Buenos Aires: Ad-Hoc, 1999, pp. 141-2). If the respective sentence issued by a Court, in casu 25 years, is to account for the particular wrongfulness of the crimes committed and the culpability of the convict it is difficult to see how its premature termination can be justified. The only reason which, arguably, justifies such a premature termination is a humanitarian one which brings us back to the second circumstance above and the particular strict conditions, especially the demonstration of a terminal disease, attached to it. At any rate, a remedy could be sought in the Inter-American System of Human Rights. In addition, Peruvian domestic law provides for mechanisms that could lead to the Resolution’s annulment and subject, as indicated by the Constitutional Court in the “Crousillat Case”, the Resolution to a judicial review (l.g. 21 of the Exp. No. 03660-2010-PHC/CC).

Thus, all things considered, it is not easy to predict the outcome of the dispute around Fujimori’s pardon. In his favor one may invoke the partial fulfilment of the sentence (approximately twelve years), the need for a measure that provides for a definitive closure of the case and his state of health, being the first the strongest argument. Indeed, based on the partial execution of the sentence, Fujimori could argue that this is not a case of absolute impunity, but that he has already assumed responsibility and done some penance. Of course, Fujimori’s lukewarm apology to the Peruvian people does not help his case. In any event, in a possible proportionality test (thereto Ambos, “The Legal Framework”, op.cit., p. 49 ff.) several counterarguments could be put forward, among them the nature of the crimes, Fujimori’s status, the significance of the cases and, perhaps, the need to continue the execution of punishment for communicative reasons. In addition, it must be taken into account that the current Peruvian situation is not comparable to a post-conflict or transitional justice scenario where one may take a more flexible approach given the risks for peace involved (“worse abuses” argument). In fact, the political turmoil surrounding the presidential decision – a pardon in exchange of a (parliamentary) non-removal from office for corruption allegations – shows that the Peruvian democracy is rather stable allowing for all kind of negotiations and deals.

Announcements: Assistant Professor of International Law at Maastricht University; Scholars Workshop – Challenges to Global Constitutionalism; CfA Hague Academy of International Law 

EJIL:Talk! - Sun, 01/07/2018 - 10:00

1. Assistant Professor of International Law at Maastricht University, the Netherlands. The Department of International and European Law of the Faculty of Law of Maastricht University intends to appoint a fulltime Assistant Professor of International Law (‘Universitair Docent’) with a starting date of 1 May 2018 (or a period shortly after that). Applicants must have proven expertise in public international law. Excellent written and spoken English is required. Knowledge of the Dutch language may be an advantage, but is not required. More information is available here. Informal enquiries may be made to Prof Jure Vidmar (jure.vidmar@maastrichtuniversity.nl).

2. Scholars Workshop: Challenges to Global Constitutionalism. The editorial team of Global Constitutionalism, in conjunction with PluriCourts, will be organizing a workshop from 4 – 6 July at the WZB Berlin Social Science Center. As part of this workshop we will be running special sessions for scholars interested in publishing in the field of global constitutionalism. Each selected scholar will be invited to present a paper to the workshop. The expectation is that selected papers, after revisions based upon feedback at the workshop, would be submitted to Global Constitutionalism for peer review with the possibility of publication. Editors from the journal will work closely with the selected scholars throughout the process. We invite paper proposals on any topic related to global constitutionalism. We define global constitutionalism as the foundations, limitations, and contestations of the principles and norms of political order and their dynamics over time on a global scale. We invite submissions from a broad range of disciplines including International Law, Political Science, International Relations, Comparative Constitutional Law, Comparative Politics, Political Theory and Philosophy. To apply, please submit a paper abstract of up to 400 words and an academic biography of 150 words at globcon-journal {at} wzb(.)eu var mailNode = document.getElementById('emob-tybopba-wbheany@jmo.rh-34'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%67%6C%6F%62%63%6F%6E%2D%6A%6F%75%72%6E%61%6C%40%77%7A%62%2E%65%75"); tNode = document.createTextNode("globcon-journal {at} wzb(.)eu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-tybopba-wbheany@jmo.rh-34"); mailNode.parentNode.replaceChild(linkNode, mailNode); . The deadline for submissions is 23 February 2018. If you have any questions, please contact globcon-journal@wzb.eu. For further information, see here

3. Call for Applications: Hague Academy of International Law – Centre for Studies and Research in International Law and International Relations. The Hague Academy of International Law is now accepting applications for the next session of its Centre for Studies and Research in International Law and International Relations, which is to take place  from 20 August – 7 September 2018. This year’s subject is “International Inspections.” The program is available here. For more information, see here

Formal, Functional, and Intermediate Approaches to Reparations Liability: Situating the ICC’s 15 December 2017 Lubanga Reparations Decision

EJIL:Talk! - Thu, 01/04/2018 - 09:00

On 15 December 2017, the International Criminal Court (ICC) Trial Chamber II found Thomas Lubanga Dyilo, former President and Commander-in-Chief of the UPC/FPLC, responsible for reparations in the amount of 10,000,000 euros — the largest ICC reparations order issued to-date. The Lubanga case was the first to reach the reparations stage — yet controversy surrounding procedural requirements delayed the Chamber’s determination of Lubanga’s monetary liability. Last month’s decision answered some of these procedural questions, and raised new ones. This piece breaks down Trial Chamber II’s 15 December 2017 decision, and situates it alongside Trial Chambers’ recent assessments of monetary liability in the Katanga and Al Mahdi cases. We suggest that we have now seen ICC Trial Chambers assess defendants’ monetary liability for reparations via formal, functional, and intermediate approaches.

Lubanga was convicted on 14 March 2012 of enlisting and conscripting children under the age of 15, and using them to actively participate in hostilities from 1 September 2002 until 13 August 2003. On 7 August 2012, Trial Chamber I delivered the ICC’s first-ever order for reparations, authorising only collective reparations. On 3 March 2015, the Appeals Chamber overturned part of the Trial Chamber’s decision and issued an amended order for reparations, giving a newly constituted Trial Chamber II (composed of Judges Brichambaut, Herrera Carbuccia and Kovács) the confined tasks of a) determining the amount for which Lubanga was responsible, and b) monitoring and overseeing the implementation of the order. In its Judgment and order, the Appeals Chamber did not identify the number of victims who suffered harm as a result of Lubanga’s crimes. Nor had Trial Chamber I provided a figure in its original Judgment, although it found the crimes were widespread.

As explained in an article published last year, heated procedural debates soon emerged, as Trial Chamber II and the Trust Fund for Victims (TFV) clashed in their understandings of their respective mandates: while the Chamber believed it needed to identify and “approve” victims entitled to reparations as a prerequisite to determining Lubanga’s monetary liability, the TFV believed this was unnecessary, and something the TFV should do during implementation (the TFV had estimated there were 3,000 potentially eligible victims). Similarly, while the Trial Chamber believed that it needed to determine the extent of the harm caused to victims to establish Lubanga’s liability, the TFV thought that the extent of the harm was already described adequately in the Judgment, Sentencing Decision, and decisions on victims participation. However, in what appeared to be a change of its original position, the Trial Chamber acknowledged mid-proceedings that the victims identified by the TFV were a sample, but did not comprise the totality, of victims potentially eligible for reparations, namely those who suffered harm as a result of the crimes for which Lubanga was convicted. This shift proved foundational to the Trial Chamber’s 15 December 2017 decision.

In the midst of this Lubanga debate, Trial Chamber II (with the same composition as in Lubanga) issued a reparations order in the case against Germain Katanga. Trial Chamber II pursued in Katanga what we term a “formal” means of calculating liability, akin to civil claim proceedings: first, the Chamber identified a bounded set of 297 victims (out of 341 applicants) entitled to reparations (¶¶33, 168-80). Then, the Chamber — without resort to experts — added up the monetary value of the harm suffered by each of these identified victims, to reach a total monetary value of the overall harm of USD 3,7 million (¶¶181, 190-239). The Chamber found, however, that Katanga was criminally responsible for only USD 1 million, as an amount deemed proportionate to both the harm caused and the specific circumstances of Katanga’s participation in the commission of the crimes (¶264).

Months later, Trial Chamber VIII (composed of Judges Pangalangan, Kesia-Mbe Mindua, and Schmitt) approached monetary liability for reparations differently in its reparations order in the case against Al Mahdi, issued shortly after the Judgment. Trial Chamber VIII assessed the value of harm “suffered by or within the community of Timbuktu” (¶56) using what we term a “functional” approach. The Trial Chamber rejected the arguments that harm and associated liability could only be determined on the basis of the 139 individual victim applications before the Chamber (¶¶5, 59), and that the Chamber needed to identify and approve the victim beneficiaries (¶143). Instead, the Chamber engaged with expert reports to enable it to “reasonably approximate” costs that established Al Mahdi’s monetary liability of 2.7 million euros (¶¶109-34) and delegated the identification of the victims to the TFV (¶144-46), moving the process forward. In both Katanga and Al Mahdi, the Chambers awarded a combination of individual and collective reparations. Both orders have been appealed.

Last week, the Lubanga Trial Chamber took a different, “intermediate” approach. Despite its initial opposition to the TFV’s requests, the Chamber largely endorsed the TFV’s position that the Chamber need not identify all victims — nor assess their specific harm — to quantify Lubanga’s monetary liability. The Chamber endorsed aspects of both Katanga and Al Mahdi reparation orders to conclude that Lubanga was liable for USD 10 million.

As in Katanga but unlike Al Mahdi, the Trial Chamber assessed whether each of 472 individual victim applications were entitled to reparations. It determined that, on a balance of probabilities, only 425 victims out of this pool of identified victims had suffered harm resulting from the crimes for which Lubanga stood convicted, and were thus entitled to access collective reparations (¶¶194, 239). However, and unlike in Katanga, the Chamber did not assess or quantify these victims’ specific harms (¶185). Instead, it determined that all direct and indirect identified victims had suffered an “average harm” comprising elements of material, physical and psychological harm, and estimated the value of this harm to be USD 8,000 “ex aequo et bono” (meaning, “according to the right and good”, or “from equity and conscience”). In so finding, the Chamber relied on the submissions by the Legal Representatives of the Victims and the Office of Public Counsel for the Victims and the Chamber’s own assessment in Katanga (¶245-59).

The Chamber further found that these 425 victims were only a “sample” of the overall number of still-unidentified victims of Lubanga’s crimes (¶¶191, 235, 240); determined that unidentified-yet-eligible victims were in the hundreds or thousands (¶¶231, 244); and entrusted the TFV with identification of further victims. The Trial Chamber reached this conclusion by relying on Trial Chamber I’s findings in the Lubanga Judgment and Sentencing Decision (which indicated that the crimes were widespread) (¶238); estimates provided by the Office of Public Counsel for the Victims and one of the two Legal Representatives that victims numbered 1,000-1,500 (the other Legal Representative estimated 20,000 – 25,000 victims, and Lubanga estimated 200) (¶¶200-12); and figures provided by the Democratic Republic of the Congo (¶¶195-99). The Chamber also relied on open source data (mostly from the United Nations and other international and non-international organisations) which estimated 2,451 to 5,938 direct victims (¶¶213-31 and annex III, where the Chamber explains the “reasonable hypothesis” considered). Underreporting was likely due to the long time elapsed since the crimes, length of the proceedings, geographic dispersion of victims and/or stigmatization, among other reasons (¶236).

In a further surprise move, given Trial Chamber II’s approach to calculating liability to-date, the Chamber — noting the gravity and widespread nature of the crimes as well as the extent of Lubanga’s participation — determined Lubanga’s monetary liability for reparations to be USD 3.4 million for harm suffered by the 425 identified victims, plus USD 6.6 million for harm suffered by non-identified victims, totalling USD 10 million in overall liability (¶¶268-80).

Unlike in Katanga, the Chamber appears to have found Lubanga monetarily responsible for the totality of harm suffered by at least the 425 identified victims (425 x USD 8,000 amounts to USD 3.4 million) — regardless of the Chamber’s recognition that several persons are potentially responsible for the crimes tried before the Court (¶276). Although the Chamber did note that no other persons have been found guilty of crimes causing the victims’ harm in this case, its decision was confined to Lubanga’s liability (¶277). It is unclear whether the Chamber may have considered Lubanga’s “essential” contribution as co-perpetrator under article 25(3)(a), taken alongside the specific circumstances of the case, so fundamental as to support monetary responsibility for the totality of the harm caused to the identified victims — as compared to Katanga’s contribution as an accessory under article 25(3)(d). It is also unclear whether the Chamber held Lubanga monetarily responsible for the totality of harm suffered by non-identified potential victims since the Chamber did not estimate their individual harm.

Further, like the Katanga (¶246) and Al Mahdi (¶114) Trial Chambers, the Lubanga Trial Chamber held the defendant’s indigence irrelevant to his overall liability for reparations (¶269). The TFV must now indicate whether it can cover the bill — yet this will prove difficult, given the TFV’s recent indication that it only has 5.5 million euros. The registry will monitor Lubanga’s financial situation in the unlikely event that he obtains funds to repay the TFV. In the meantime, the TFV continues with the implementation of the reparations order: it is currently searching for a partner to implement service-based collective reparations programs, and has already identified a partner to implement symbolic reparations.

The above shows that the ICC is developing a reparation system that incorporates divergent methods of calculating a convicted person’s monetary liability. To some extent, different approaches seem dependent on the case-specific particularities such as the nature of the crimes and ensuing harm; geographical and temporal scope of the crimes; number of victims; and, possibly, the legal background and pragmatism of each bench. It remains to be seen what approach Trial Chamber III will adopt in the Bemba case, now at the reparations stage, with over 5,000 victims participating in proceedings. Considering the characteristics of the case, and noting that the Chamber has already engaged experts, the Chamber will likely follow the functional approach in determining Bemba’s liability, and delegate to the TFV and/or Registry the identification of victims. In any event, this Lubanga decision may not be the last in the case, since Lubanga and the victims have a right to appeal the Chamber’s determination of Lubanga’s liability. Stay tuned!

Freeing up the Rules on The Treatment of Detainees from the Debate on the Geographical Scope of International Humanitarian Law

EJIL:Talk! - Wed, 01/03/2018 - 09:00

A few weeks ago, my great friend Elvina Pothelet analysed, on this blog, the decision of the International Criminal Court (ICC) Prosecutor’s to request authorization to investigate, inter alia, acts of ill-treatment of detainees allegedly committed since 2002 by the CIA in black sites in Poland, Romania and Lithuania, in connection with the armed conflict occurring in Afghanistan. Elvina affirmed that there may be an added value in qualifying these alleged behaviours as war crimes, but she also hinted that such qualification might support the idea that International Humanitarian Law (IHL) applies globally, even outside the borders of the States where active hostilities take place. In this post I will argue that a wide geographical scope of application of the IHL rules on the treatment of detainees — especially those contained in common Article 3 to the Geneva Conventions and reflected in customary international law — does not necessarily imply an equally wide applicability of the rules on the conduct of hostilities.

To put my intervention in context, I should recall the obvious: a war crime presupposes a serious violation of an IHL rule. And for a rule of IHL to be applicable, there must be a sufficient link of correlation (so-called ‘nexus’) between the behaviour in question and an armed conflict (see ICTY AC, Kunarac, § 57 ff., referring to acts that are ‘closely related to the armed conflict’; see also Cassese). Although these sources refer to international criminal law (ICL), they build on the principle that IHL only applies to conducts and events which are sufficiently related to an armed conflict, as recognized e.g. in the ICRC Introduction to IHL, at pp. 28 and 59 (see also Practitioners’ Guide to Human Rights Law (HRL) in Armed Conflict, § 4.23). When such behaviour occurs outside the theatre of hostilities — e.g. where acts of torture were allegedly perpetrated in Poland/Romania/Lithuania, but the supposedly related hostilities took place in Afghanistan — one should ask whether such ‘sufficient nexus’ exists and, additionally, whether are there any geographical limitations to its establishment. In other words, is IHL applicable to conduct or an event as soon as it is sufficiently connected to an armed conflict, regardless of the territory where it took place (as contended, e.g., by Lubell-Derejko)? Or should the applicability of IHL be limited only to behaviour occurring in the area where active hostilities are being fought, or in the territory of a State party to the conflict (as deemed preferable by the ICRC in its 2015 report, at p. 15)?

Like ‘global battlefield’ theorists, I am convinced that geographical considerations per se do not necessarily limit the applicability of IHL. But, as also accepted by Lubell and Derejko, I believe that they are a fundamental factor to be taken into account when assessing the existence of the necessary nexus between an event under scrutiny and an armed conflict. Geographical distance from the actual conflict may be an indication that the relevant conduct or event is sufficiently ‘closely related to the hostilities’. And that is where I think the difference between the rules on the treatment of detainees and other IHL rules (especially those on the conduct of hostilities) lies.

Indeed, the nexus between an individual’s detention and a certain armed conflict is usually very strong — be it because such individual is deemed to belong to one of the parties to the conflict, or is believed to possess information related to the conflict, etc — and thus always ‘closely related to the armed conflict’. In this respect, the circumstance that an individual was captured anywhere for any reason related to the conflict ipso facto implies the protection of the applicable conventional and customary IHL rules on treatment of detainees in international and non-international armed conflicts. And serious violations of these rules would amount to a war crime. Needless to say, such nexus is even clearer whenever the individual was first captured in the theatre of operations and subsequently transferred to a different State where no active fighting is taking place. To deny the applicability of IHL in this latter case would be non-sensical, as it could deprive an individual of protection by his/her simple transfer to a different location (see the OTP Request, § 251, citing the 2016 ICRC Commentary to common Article 3; see also Pejic at p. 15).

More generally, the wording of common Article 3 — prohibiting certain behaviours against individuals who find themselves in the enemy’s hands ‘at any time and in any place whatsoever’ — confirms that, once an individual has been captured for conflict-related reasons, no geographical consideration may break the nexus between such detention and the relevant armed conflict. Such conclusion is even more justified if one recalls that common Article 3 is designed to act as a minimum set of protective rules for victims of armed conflict, applicable regardless of whether any other legal protection applies as well.

Thus, common Article 3 protects detainees no matter where they have been captured, no matter when, no matter the (un)lawfulness of the detention, no matter what other rules are applicable at the same time, as long as they are detained for a reason related to an armed conflict. Consistently with this approach, the ICC Prosecutor’s insists on the nexus between the situations of detention under scrutiny and the armed conflict in Afghanistan, rather than on the territory where such detention was carried out (see OTP Request, §§ 246-252).

The said presumption that a sufficient nexus exists, however, does not cover other situations, especially the issue of targeting, on which I will focus here. Indeed IHL rules on targeting of individuals are among those that are “clearly bound up with the hostilities” (ICTY AC, Tadić 1995, § 68) and their primary purpose is to be applied in areas of active fighting. If anything, there should be a presumption that an attack occurring outside the area of active hostilities is not sufficiently connected to those hostilities, and thus not governed by IHL. The farther an attack is from such area, the stronger the presumption of non-applicability, hence the stronger would the evidence of a sufficient nexus be for IHL to apply. Whilst, for the rules on the treatment of detainees, a sufficient nexus originates ipso facto from the fact of detention, a similar nexus is not necessarily evident when it comes to the rules on targeting. With regard to the latter, and the existence of sufficient nexus would need to be demonstrated in a compelling manner case-by-case. I concede, for instance, that a sufficient nexus might materialize outside the area of active hostilities when it can be clearly demonstrated that the target is actively participating in the ongoing hostilities. Crucially, even in this case, compliance with other rules of international law would still be necessary. At the very least, these include the rules of jus ad bellum. In my opinion, they also include rules of international human rights law, which are more fitting for contexts where active hostilities are not occurring and which impose stricter standards for the use of lethal force (see ICRC 2015 report, p. 15-16; and Practitioners’ Guide to HRL in Armed Conflict, principles 4.33 to 4.35).

In a comment to her blog post, Elvina warned that the debate on the geographical scope of IHL application should not be framed in “humanitarians vs warmongers” terms. However, it is hard to deny that each legal theory proposed in scholarly writings heavily depends on the scholar’s philosophical and political ideas, and favourite outcome. I believe that expressing the philosophical/political/ideological reasons behind a legal argument does not necessarily weaken it, as long as the relevance of those reasons is coherently explained. Therefore, I think it is necessary to acknowledge that my suggestion relies on two ideological assumptions: first, that it is desirable to apply IHL rules on the treatment of detainees as widely as possible; second, that it is desirable to make the IHL rules on targeting applicable as narrowly as possible. For the sake of intellectual honesty, I would like to briefly explain my rationale.

As to the first assumption, I believe that — when it comes to their treatment — individuals detained anywhere in connection with an armed conflict should benefit as a minimum from the protection of IHL, even considering the fact that international human rights law (IHRL) concurrently affords them a greater protection. As already mentioned by Elvina, a few States still deny that they are bound by any human rights obligations outside of their own national territory. Additionally, the very idea that non-state entities (like armed groups party to a NIAC) may bear human rights obligations on their own is contested. I am convinced that human rights obligations persist even extraterritorially (a belief shared inter alia by the Human Rights Committee, by the European Court of Human Rights in Al-Skeini and by eminent doctrine), and that certain non-state entities do have human rights obligations (more here and here), but I find it useful that — at the very least — the guarantees listed in common Article 3 are seen as binding on all States and on all non-state actors which are party to an armed conflict, even when they mistakenly assume that human rights law does not bind them. Moreover, common Article 3’s guarantees, unlike certain human rights provisions on the right to liberty and security or to the right to a fair trial, are not subject to any possibility of derogation.

Additionally, from an accountability perspective, the applicability of IHL makes the legal regime of war crimes applicable even when it may be hard to establish the necessary requirements for other categories of crimes, e.g. crimes against humanity. The possible qualification of certain conducts as war crimes not only matters for questions of ICC jurisdiction (as it is the case for the OTP request that originated this blog post), but brings into play well-established procedural rules such as the duty to investigate such conducts, or the right to establish national jurisdiction over alleged perpetrators.

As to the second assumption, it is premised on the fear that a broader application of the IHL rules on targeting, relatively permissive, may lead to an unnecessary escalation of violence and legitimize more frequent recourse to lethal force (a similar concern is expressed e.g. by Horowitz, describing IHL as a Trojan horse; contrary, see Haque here, explaining that IHL rules are prohibitive in nature). Such risks would not materialize by simply accepting a wider geographical reach of the rules on the treatment of detainees — an expansion which per se does not pass judgment on whether such detention would be lawful or not, but takes the protracted circumstance of detention as a fait accompli and tries to make it more humane. True, some may argue that, whenever these two bodies of law are applicable at the same time, IHRL could be interpreted in light of IHL and, consequently, the approach I propose may lower the standard of protection for detainees. However, IHL and IHRL do not necessarily modify one another and, especially when their provisions are compatible (like in the case of the treatment of detainees in NIACs), they could concurrently apply side by side. If one of these two bodies of law (e.g. IHRL), when compared to the other (e.g. IHL), imposes a greater number of obligations on a party to the conflict, such party is simply bound by those additional obligations as well.

I hope, therefore, that the ICC’s decision on the OTP’s request with regard to the situation in Afghanistan may be framed along the lines that I have traced in this post, in the interest that victims of armed conflicts may receive the widest possible protection, whilst at the same time refraining from creating incentives to the use of lethal force outside of areas of active hostilities.

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