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Blog of the European Journal of International Law
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Announcements: UN Audiovisual Library of International Law; Nelson Mandela World Human Rights Moot Court Competition; CfA The Interface between Cyber Security and Military Applications of Human Enhancement; Key Biographies in the Legal History of...

Sun, 12/31/2017 - 09:00

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 Claudia Martin on “The Role and Jurisdiction of the Inter-American Court of Human Rights” and Professor Diego Rodríguez-Pinzón on “The Inter-American Human Rights System: The Inter-American Commission” and “Sistema Interamericano de Derechos Humanos: La Comisión Interamericana”. 

2. 10th Nelson Mandela World Human Rights Moot Court Competition, Geneva, Switzerland 2018. Students from all universities in the world are invited to participate in the Nelson Mandela World Human Rights Moot Court Competition, to be held in the Palais des Nations, United Nations Headquarters, Geneva, Switzerland, 15 – 20 July 2018. The Competition will be held in English and in French, and, depending on interest, will in future years also be presented in the other UN languages. For the invitation in all UN languages, see here.    3. Call for Post-Doctorate Applications: The Interface between Cyber Security and Military Applications of Human Enhancement. The Cyber Security Research Center of the Hebrew University is advertising for a funded post-doc position in the field of IHL/IHRL. The research focus is ‘The Interface between Cyber Security and Military Applications of Human Enhancement’. See here for further information.    4. Key Biographies in the Legal History of European Union 1950-1993 Conference. A conference entitled “Key Biographies in the Legal History of European Union 1950-1993” will be held on 21-22 June 2018 at the Max Planck Institute for European Legal History at Frankfurt/Main, Germany. The event will scrutinize the history of European law with a distinct focus on professional biographies, both of key personalities in the history of European integration and of less prominent actors. We welcome proposals of not more than 150 words by 15 January 2018. Please email your proposal and a short CV to bajon {at} rg.mpg(.)de var mailNode = document.getElementById('emob-onwba@et.zct.qr-35'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%62%61%6A%6F%6E%40%72%67%2E%6D%70%67%2E%64%65"); tNode = document.createTextNode("bajon {at} rg.mpg(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-onwba@et.zct.qr-35"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For further information, see here.   5. Customary IHL: Senior Research Fellow/Team Leader – International Humanitarian Law. In the framework of the co-operation between the ICRC and the British Red Cross to update the practice collection of the ICRC’s study on customary international humanitarian law (IHL), the ICRC and the British Red Cross seek to recruit for the Senior Research Fellow/Team Leader position in the customary IHL research team based in Cambridge/UK. To apply, and for details about the position, please visit the British Red Cross website. For further information, see here and here. Final closing date for applications is Sunday 14 January, 2018 (midnight). Interviews will take place in London, the week commencing Monday, 5 February, 2018.

Our Most Read Posts of 2017

Sat, 12/30/2017 - 09:35

As 2017 comes to an end we would like to thank our readers for coming back to us time and again over the course of the year. This year we have had more readers than in any previous year and more page views.

I would like to welcome Gail Lythgoe to our editorial team. Gail joins us as Associate Editor with particular responsibility for managing our social media presence. She is currently a PhD Candidate at the University of Glasgow and Managing Editor of Oxford International Organizations. Hopefully, readers have already noticed a difference in our activity on Twitter and Facebook.

To conclude 2017, I set out below our 20 most read posts of the year.  We strive to cover a very wide range of international law issues on this blog, but of course it is up to readers to decide on which issues resonate more with them at particular moments. As is often the case, many of those most read pieces are those which offer timely (and may I add insightful) commentary on the big issues of the day raising questions of international law. The US missile strikes in Syria in April, Catalonia’s bid for independence and some of the issues relating to Brexit are leading examples  this year. However, the list of most read pieces this year include, one by Douglas Guilfoyle and another by Marko from several years ago. Those two pieces feature as the most read post and the third most read post since the blog was established 9 years ago (with this piece being the second most read post). 

Two other remarkable pieces in our top 20 for 2017 are the speeches by the UK Attorney General and another by the Australian Attorney-General setting out the understanding of those states on the law relating to self-defence and in particular, their views on issues relating to self defence in anticipation of armed attacks. We are grateful to the Attorneys General for choosing EJIL:Talk! as a forum for dissemination of the official position of their governments.

 The top 20 posts are here in reverse order with the top 10 below the fold. Happy New Year to all of you for 2018!

20) Jure Vidmar, Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument  (Oct. 2017)

19) Dapo Akande, The ICC Assembly of States Parties Prepares to Activate the ICC’s Jurisdiction over the Crime of Aggression: But Who Will be Covered by that Jurisdiction? (June 2017)

18) Marko Milanovic, Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum (Feb. 2010)

17) Marko Milanovic, European Court Decides Al-Skeini and Al-Jedda (July 2011)

16) Monica Hakimi, US Strikes against Syria and the Implications for the Jus ad Bellum (April 2017)

15) Monica Hakimi, North Korea and the Law on Anticipatory Self-Defense (Mar. 2017)

14) Dan Joyner, Legal Bindingness of Security Council Resolutions Generally, and Resolution 2334 on the Israeli Settlements in Particular (Jan. 2017)

13) Senator George Brandis QC (Attorney-General of Australia),  The Right of Self-Defence Against Imminent Armed Attack In International Law, (May 2017)

12) Dapo Akande, ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question (Nov. 2017)

11) Jeremy Wright QC MP (Attorney General of the UK), The Modern Law of Self-Defence (Jan. 2017)

10) Iryna Marchuk,  Ukraine Takes Russia to the International Court of Justice: Will It Work?  (Jan. 2017)

9) Edward Guntrip, Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID Arbitration? (Feb. 2017)

8) Anne Peters, Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia (Oct. 2017)

7) Diane Desierto, China’s ‘One Belt, One Road’ Initiative: Can A Bilaterally-Negotiated ‘Globalization 2.0’ Internalize Human Rights, Labor, and Environmental Standards? (May 2017)

6) Marko Milanovic, Illegal But Legitimate? (April 2017)

5) Michael Waibel, The Brexit Bill and the Law of Treaties (May 2017)

4) Dapo Akande, The International Criminal Court Gets Jurisdiction Over the Crime of Aggression (Dec. 2017)

3) Douglas Guilfoyle, So, you want to do a PhD in international law?  (Aug. 2012)

2) Marc Weller, Secession and Self-determination in Western Europe: The Case of Catalonia (Oct. 2017)

1) Marko Milanovic, The Clearly Illegal US Missile Strike in Syria (April 2017)

Concluding Response from Professor Chimni: International Law and World Order

Fri, 12/29/2017 - 15:00

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

It is a great honor to have a set of responses to the second edition of my book International Law and World Order: A Critique of Contemporary Approaches (ILWO). What is more these represent empathetic and generous readings of my work. Yet the responders have not shied away from asking some hard questions. It has given me an opportunity to clarify my views on many issues. Three of the responses are devoted to the chapter on the Integrated Marxist Approach to International Law (IMAIL) read in conjunction with the introductory chapter which outlines the theoretical framework of the book. One contribution comments on the chapter on feminist approaches to international law (FtAIL). The responses also touch on other matters that include the reason for my detailed consideration of the New Haven approach. Instead of responding separately to each individual response I make observations on some themes and questions that the responders helpfully flag. Since this is not the occasion to offer a detailed response I will satisfy myself with some bare observations. These are made under the following heads:

Structure of the Book

Theoretical Issues

International Rule of Law

Alternative Futures

Structure of the book

For those who have not had the occasion to peruse the book it may help to note that it has chosen to articulate IMAIL through a critique of the principal contemporary approaches to international law. Only some fundamental themes, ideas and issues pertaining to IMAIL are dealt with in the chapter devoted to it. I mention this because the structure of the book has determined the way IMAIL has been elaborated. It has left certain gaps in the book that can be addressed only by a direct and systematic account of IMAIL.

The reason for writing the book in the form of a critique of contemporary approaches is that it was important to position IMAIL vis-à-vis others to showcase its relevance and strengths. The same response goes to the question as to why a chapter has been devoted to the New Haven approach to international law. The policy oriented approach is among the few that offer a systematic and comprehensive account of international law. The New Haven approach has also been presented as a counter narrative to the Marxist approach. It is no accident that Michael Reisman compares the friendship of Myres McDougal and Harold Lasswell to that of Karl Marx and Frederick Engels. A critical engagement with it helps to contrast and pinpoint the relative superiority of IMAIL. Furthermore, it has been observed by two of its adherents that the New Haven approach can accommodate TWAIL as there is a certain commonality between the two approaches (pp.144-145). You can get a glimpse of what is possible by looking at the progressive writings of Richard Falk—a separate chapter is devoted to his work– who is perhaps the true inheritor of the New Haven approach of McDougal and Lasswell. At the end of the day the ambition of TWAIL or IMAIL is to become the most acceptable theory of or about international law. If that is the case it is important to spell out its relative merits vis-a-vis other approaches. Finally, an engagement with the other approaches helps to draw on valuable insights offered by them.

Theoretical Issues

A general criticism of the chapters on IMAIL and FtAIL (feminist approaches to international law) is that these have not sufficiently attended to some fundamental theoretical questions relating to gender and class. It has been suggested that there is no serious effort to locate and trace the categories class and gender to the structure and form of capital or/and international law. For instance, the theme of capitalism and international law could have been further elaborated using the work of Evgeny Pashukanis on commodity form approach to international law. In short, more space should have been devoted to clarifying and elaborating some basic concepts and categories relating to feminist and Marxist views. Finally, there is some question about my use of postcolonial theory when Marxist sources would have been more appropriate and that I have presented NAIL as a direct continuation of the New Haven tradition. I will try and address these points briefly.

Feminist approach

The chapter on FtAIL had a twofold objective: of articulating a critique of the liberal mainstream approach advanced by Hilary Charlesworth and Christine Chinkin and demonstrate the value of the socialist feminist approach. In the backdrop of thumbnail sketches of other feminist approaches an effort has been made to deal with issues such as intersectionality and fundamental topics and doctrines of international law like sources or subjects of international law or the nature of the State.

Tzouvala has pointed out that ILWO does not adequately address the question as to how international law ‘contributes to the constitution of categories like class, gender or race and their mutual entanglement’. In my view the sketch of the history of international law that ILWO offers (pp.477-524) does show how “race” was constructed and constituted through what Antony Anghie has termed “dynamics of difference” by international law and shaped the development of international law since. However, in the absence of a feminist history of international law which, as I note, is yet to be written (p.481), the same cannot be said of “gender”. The reasons for why FtAIL did not emerge in the Cold War period (pp.364-370) shows how such a history has to take into account a range of factors in telling its story. When this history is written it will allow a complex and integrated narration of the ways in which international law has constituted the categories of gender (and class and race) and legitimized oppression against women over the centuries.

The second criticism is about my ‘focus on gender as a direct subject of international law’. But that is not entirely true. Indeed, in IWLO I make bold to suggest that you can be doing feminist work by critiquing structures of capitalism and imperialism even when you do not directly address the question of oppression of women (p.396). A third criticism is that I ‘radically underestimate the role of gendered tropes and imaginaries for the structure of international legal arguments…especially when they are used to facilitate imperial violence’. I have also touched on this matter, among other things, while referring to Catherine Mackinnon’s justification of use of force against Afghanistan (pp.378-379). Yet admittedly the exploration of feminist approaches in ILWO needs to be supplemented through deeper engagement with a range of concerns and arguments expressed in feminist scholarship in different historical, geographical and political contexts. There is also a need to advance a more precise and elaborate statement on the constitution of gender under capitalism. I hope to attend to these gaps in my future work. However, I do not subscribe to the view that because a book i.e., The boundaries of international law is seventeen years old it should not have been the basis of analysis of the feminist approach. Moreover, while I have principally devoted the chapter to the work of Charlesworth and Chinkin I have tried to make it a part of the conversation with other feminist traditions and scholars.

Use of postcolonial theory

The fact that I situate myself within the TWAIL movement partly explains my engagement with postcolonial theory. Many TWAILERS find it has purchase and this was no mean reason for deploying it. I think the point postcolonial theory makes about a lack of familiarity with third world conditions and materials is important. Its anti-imperialism is important. Its critique of Euro-centrism is significant. The importance of postcolonial theory is also evident in debating questions relating to the idea of international rule of law and the pursuit of reform of international law and institutions. It sensitizes us to the existential concerns of peoples that were colonized and who wish to use the language and vocabulary of international law to defend certain core interests. I have however noted the limits of postcolonial theory that I will not belabor again (pp.25-29).

On NAIL and New Haven

While there is much that divides the NAIL from the New Haven approach there is no denying that in advancing a critique of MILS both make similar moves, perhaps because of their common roots in American legal realism. Both contest the law and politics divide and assert the indeterminacy of legal rules. Of course the two rely on different cultural, social and linguistic sources in advancing the latter claim. It is also true that while the New Haven approach was more concerned with semantic indeterminacy NAIL rests its case primarily on structural indeterminacy. But the New Haven approach also does address structural roots of indeterminacy. The idea that both make the same moves does not take away from the originality of NAIL which advances its claims in a distinct manner.

The problem with NAIL is that a serious critique of material structures does not accompany that of indeterminacy. It is a significant absence as the inner contradictions of the “logic of capital” cannot be discovered in the internal tensions of the “logic of law”. As I contend in the book, the charge of radical indeterminacy is exaggerated. Based on the work of Wittgenstein and Gadamer ILWO seeks to demonstrate that while an element of interpretive uncertainty always remains the charge of radical indeterminacy is mistaken. The problems of international law are to be primarily traced to the “logic of capital” even as other logics come into play.

Be that as it may, New Haven and NAIL sharply diverge in their thinking about the reconstructive moment or the way forward. The New Haven approach would consider NAIL sterile or unproductive as it places emphasis on changing the world (a la Marx’s eleventh thesis on Feuerbach), albeit to safeguard the global capitalist system. For NAIL the New Haven approach represents an unsophisticated understanding of the social and political world and therefore undeserving of attention.

On Commodity Form Theory

The comments of Knox suggest that we can discover through relying on commodity form theory a singular overarching explanation that captures the logic of modern international law over time, covering different historical phases, conditions and realities. There are four distinct questions that arise in relation to Pashukanis’s pioneering work and its application to international law: (1) Did he correctly grasp and apply Marx’s method; (2) Did he use this method properly to work out the “logic of law”; (3) Did he appropriately extend it to the world of international law; and (4) Does his account help explain the evolution and development of international over centuries. It has been contended in IWLO that despite the brilliant insights of Pashukanis into the “logic of law” it is difficult to answer these questions in the affirmative. Pashukanis made a brave attempt to trace the evolution and development of international law using commodity form theory but fell short as he left out critical variables in working out both the “logic of capital” and the “logic of law”. I will not go over that ground again (see pp.462-477). I may however add that, among other things, his reductionist logic did not allow him to take effective cognizance of the questions Marx raised, such as in Grundrisse wherein he observed immediately after the famous section on “The Method of Political Economy” that ‘the really difficult point to discuss […] is how relations of production develop unevenly as legal relations. Thus e.g. the relations of Roman private law (this less the case with criminal and public law) to modern production’ (Marx 1973: 109). The point is that there is no necessary historical correspondence between modes of production and modes of law. It is also worth reminding readers that Marx was essentially concerned with capital as a closed system and therefore did not systematically take into account the phenomenon of imperialism (pp.490-491). Therefore, as David Harvey has observed, ‘Marx’s theory of the capitalist mode of production plainly cannot be used as the basis for deriving a historically specific theory of imperialism in a direct manner’ (p.491). Furthermore, the colonial encounter between capitalist and non-capitalist nations was no single encounter but encompassed a variety of situations over time (p.483). Marx also did not write his promised volume on the State. We do not therefore know the extent to which he would have recognized the crucial role it played in constituting legal relations or how the “logic of territory” played out in the sphere of international relations. What Knox is doing is to fall into the trap of what may be called commodity form determinism. While he states that a historical account of international law can be provided based on commodity form theory the fact is any such account must take into account the other logics (of law, territory, culture and nature) which are interacting with each other and of which one or the other may dominate at a particular point in time.

International Rule of Law

Knox also advances the criticism that IMAIL mistakenly critiques Mieville’s rejection of the idea of international rule of law (IRL). At the outset let me record that Mieville has written an extremely important book on a Marxist approach to international law. But his rhetorical dismissal of the idea of IRL is misguided and has been used to undermine Marxist approaches to international law by representing these as pretentious and irrelevant to current concerns and debates. My attempt is only to, as Rasulov is right in noting, provide a corrective to the Mieville view. In the process it may appear that ILWO has, on the lines of E.P.Thompson, gone too far to endorse the idea of IRL. All I can do is to request that my ruminations on IRL be read in perspective, that is, in the larger context of my writings which has been highly critical of the substance of contemporary international law. ILWO also provides a radical critique of contemporary international law characterizing it as “global imperial international law” from the standpoint of subaltern groups and states (p.515). Second, Third world peoples and states believe that the observance of the foundational rules of international law is in their interest. The rules relating to the prohibition of threat or use of force, non-intervention, cooperation and peaceful settlement of disputes works to their advantage. That is why so much time and energy was invested into drafting of the 1970 Friendly Relations Declaration. The observance of the principles of non intervention and prohibition of the use of force (as Knox concedes) would have helped avoid great harm to the peoples of Afghanistan, Iraq, former Yugoslavia, Libya and Syria. The principle of Sovereign Equality of States is critical in terms of making the case for retrieving policy space lost through a variety of multilateral and bilateral legal regimes in the economic sphere. The benefits of peaceful settlement of disputes in diverse areas of international life should not also be underestimated. Likewise, the observance of international human rights law can be to the advantage of subaltern groups and classes to challenge ruling elites in the third world even as it is often used by imperialism to inflict violence on them. In other words, the Jekkyl and Hyde character of international human rights law must be borne in mind. Third, it may be pointed out that it is not sufficiently recognized that the idea of IRL is sustained though the struggles of progressive social forces and states; it would be mistaken to believe that it is a natural outcome in an unequal and unjust world. A world order in which naked power becomes the currency of international politics cannot be ruled out in the absence of resistance from these forces. To put it differently, the idea of IRL can be used to defend certain progressive elements of a bourgeois world order codified in contemporary international law. Fourth, in the absence of any real possibility of the revolutionary transformation of the global order, those who accept the idea of reform of international law cannot but accept the value of IRL even as a far-reaching critique of the international legal process and structure is advanced. Marx and Lenin believed that left movements should not be dismissive of law and legal institutions in bringing relief to the subaltern classes. To postpone all efforts at reform till global revolution takes place is also to, among other things, deprive the left movement of the energies of those who wish to bring about change, however small, that bring a modicum of welfare to subaltern groups. The fact is that reform has been brought about in several areas of international law through the efforts of subaltern groups and states. Fifth, there are issues today such as climate change that are about the fate of common humanity and planet earth and cannot await a radical transformation of the global capitalist system. If we can mobilize international law to prevent more harm to the environment we should do so. Sixth, one cannot blame all that is wrong with postcolonial societies to the doings of imperial international law and therefore reject IRL. While imperialist policies, laws and institutions are responsible for depriving postcolonial states of critical policy space to pursue policies and practices that would promote the welfare of their people, the ruling elites of these states have also failed their own people. In sum, the five logics that determine the nature of the global order—logics of capital, territory, culture, nature and law—reveal the complexities involved in a linear or one dimensional approach to either a critique of contemporary international law or a response to it.

Alternative Futures

There has been some concern expressed by Ozsu about many of the propositions that are identified at the end of the book in addressing the theme of “alternative futures”. To begin with I must admit that without sufficient explanations these can easily be misunderstood. I have held out the possibility of a separate volume to do so but this is not obviously of much help to readers reviewing the bare propositions. The need to advance these propositions can be inter alia traced to preventing the critics of Marxist approaches from dismissing them by invoking and repeating certain dogmatic formulations. Marx would also have expected us to draw lessons from the experience of a century of “actually existing socialism” and “actually existing capitalism”. For instance, he would have wanted us to analyze the reasons that the global capitalist system has not collapsed given the internal contradictions that characterize its workings. In the final analysis our commitment should be neither to Marxism or socialism but to human emancipation. I turn to Marxism because it offers powerful methodological tools to understand society and work towards that goal rather than because it offers a set of timeless prescriptions. It may also be noted that I am only advancing a set of amendable propositions that would inform a peaceful transition to a better future.

In this backdrop we may consider the proposition about experimenting with different forms of ownership patterns or property rights or markets? Several points may be made. First, while the word “socialism” is not used in talking about “alternative futures”, these propositions have been formulated keeping in mind the period of transition from capitalism to an utopian future. Second, the propositions seek to accommodate different social formations from which transition might take place, including those in which there are widespread pre-capitalist relations. In such cases, as Lenin put it, ‘we must understand what intermediary paths, methods, means and instruments are required for the transition from pre-capitalist relations to socialism’. (Lenin 1975: 54). Indeed, his speeches to the Tenth Congress of the Russian Communist Party (Bolshevik) in 1921 explaining New Economic Policy (NEP) and his writings on the subject are worth exploring in this regard (Ibid. pp.505ff, especially his essay “The Tax in Kind: The Significance of the New Policy and Its Conditions, pp.526-556). Third, a century of experience of actually existing socialisms and capitalisms points to the need to some degree of openness to different ownership patterns in the period of transition and drawing from that experience beyond. It made the eminent Marxist historian and thinker Eric Hobsbawm observe that ‘the future, like the present and the past, belongs to mixed economies in which public and private are braided together in one way or another’ (Hobsbawm 2009. Emphasis addd). There is also an ongoing effort to reassess the role of cooperatives in the period of transition that deserve attention (see Marcuse 2015; Jossa 2005). Incidentally, Hobsbawm also wrote that ‘Marx and Engels were wisely refrained from describing what communist society would be like, but most of what little they said about what individual life would be like under it, now seems to be the result, without communism, of that social production of potentially almost unlimited plenty, and that miraculous technological progress which they expected in some undetermined future, but which is taken for granted today’ (Hobsbawm 2002: 136). The short point is that we need to re-examine the “original position” on property rights in the period of transition if only to reaffirm it. Fourth, the relationship between socialism and the market, and the limited and legitimate forms it can assume, needs to be revisited and actively debated given the experience of actually existing socialisms, including that of market socialism. A debate took place on the subject in the early decades after the October Revolution. In the 1930s the problem of “economic calculation” was considered when socialist economists (such as H.D. Dickinson, with Maurice Dobb opposed to him) considered socialism compatible with market (Dobb 1965: 240); there is even today a healthy debate on the merits of market socialism. Fifth, there is a need to revisit the idea of nationalization of all private property in the matrix of the structure of left political parties, especially communist parties, and the possibility of the rise of a “new class” and an authoritarian state. There is often too much economics and too little politics in our thinking about alternative futures.

Conclusion

In conclusion I would like to sincerely thank the contributors for their time and effort in engaging with ILWO. It has made me aware of the gaps and weaknesses in my book. I hope to address these in the future. Meanwhile, fellow travelers may take what they find useful from it and move forward.

Imperialism, Commodification and Emancipation in International Law and World Order

Fri, 12/29/2017 - 09:00

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

Marxism and Third Worldism

B.S. Chimni’s work sits at an important intersection of international legal theory. It is most readily identifiable as falling within the Third World Approaches to International Law (TWAIL) movement: adopting the perspective of the Global South, and foregrounding the role of imperialism. Simultaneously, with its focus on class, production and global capitalism, his work is explicitly Marxist. This combination harkens back to an older Marxist Third Worldism—exemplified by Frantz Fanon, Amílcar Cabral and Walter Rodney.

For Chimni, his position is not exceptional. He goes so far to say that his “integrated Marxist approach” to international law, is TWAIL (pp. 14-18). Whilst this is true to a degree—TWAIL is a broad church—it underplays the degree to which Chimni’s Marxism is distinctive within TWAIL.

It is for this reason that a new edition of International Law and World Order is so welcome. Having been out of print for a number of years, readers eager for Chimni’s distinctive perspective were reduced to sharing samizdat-style photocopies. Importantly, this is not simply a re-print. Chimni has revisited his earlier formulations and engaged with a wider range of thinkers. Particularly important is Chimni response to China Miéville’s Between Equal Rights: A Marxist Theory of International Law (BER).

Radicalism With Rules?

According to Miéville, Chimni problematically derives the class basis of international law from its content as opposed to “anything in the structure of international law” (BER p. 65). Against this, Miéville turns to the work of Evgeny Pashukanis who argued that law and capitalism were connected on a structural level.

For Pashukanis, the connection between law and capitalism lay at the level of form. Pashukanis argued that any Marxist account of law needed to account for what differentiated law from other forms of social regulation. He began from the insight that “under certain conditions the regulation of social relationships assumes a legal character”.                                             

Pashukanis located these conditions in commodity exchange. Every commodity exchange is an act of mutual recognition, in which each owner recognises the other as their equal in an abstract and formal sense. When disputes arise from this relationship, a form of social regulation is required that can resolve disputes whilst also respecting this abstract equality: this is the legal form.

For Miéville, as capitalism generalises on the world scale, so too does international law. Drawing on Koskenneimi, Miéville argues—contra Chimni—that international law is structurally indeterminate, i.e. there is no “right answer” given by the law. Of course, in practice, disputes are resolved. Quoting Marx, Miéville argues that it is coercive force which resolves who “wins” a particular legal dispute. In our “politically and militarily unequal modern world system … the winner of that coercive contest is generally a foregone conclusion” (BER p. 292).

Accordingly, given this deep connection between law and capitalism “[t]o fundamentally change the dynamics of the system it would be necessary not to reform the institutions but to eradicate the forms of law” (BER p. 318).

 Concrete Analyses

 

Many of Chimni’s new insights are a direct response to Miéville’s argument. According to Chimni:

[W]hat is missing in Miéville is a concrete analysis of the changing content of international law over time. The fact that Pashukanis derives his commodity form theory primarily from the moment of exchange leads Miéville to privilege form over content … . (p. 476)

He follows this up with a brilliant historical account of the changing forms of imperialist capitalism and their international legal regimes.

According to Chimni Pashukanis (pp. 462-466):

1) Wrongly characterised pre-capitalist regulation as “custom” and could not see the continuities between older and newer law.

2) Focused too much on the sphere of circulation and not on production.                                                         

3) Narrowly focused on private law.                                              

4) Ignored the complexity of the legal superstructure; particularly legislation.

These issues all mar Pashukanis’ theorising about international law, which was unable to understand its difference from domestic law and tended towards Eurocentrism, since it “did not sufficiently acknowledge the role of ‘legal orientalism’’’ in shaping international legal doctrines (p. 472).

Against this, Chimni seeks a position that can “adequately capture the multidimensional aspects of the form and content” of the law, and account for the “added complications introduced by universalizing capitalism and the ‘logic of territory’’’ that mark out the international sphere (p. 468).

Which Logic?

Much of Chimni’s analysis is exemplary. He is surely correct to stress the importance of mapping the changing forms of imperialism. However, Chimni’s position on the commodity-form theory ultimately holds him back.

To deal with Chimni’s criticisms of Pashukanis, we should first note that since commodity exchange pre-dates capitalism, the commodity-form theory allows for pre-capitalist legal regimes. Secondly, class relations do not tend to be directly expressed in the law, but rather are done so indirectly through the legal form. The rule of the capitalist class tends to be mediated through abstract and impersonal domination.

This suggests a response to Chimni’s final two points. Whilst commodity-form theorists have not always sufficiently detailed international law’s content, any full account can and must chart the specific unfolding of legal content within the context of the limits and shape of the legal form.

Accordingly, Chimni’s historical account is not precluded by the commodity-form theory. One of Chimni’s vital insights is that commodity exchange was not “universalised” in a smooth fashion. Instead, it was achieved through a logic of territorial domination and involved the combination of different modes of production. Chimni maps this hybridity onto transformations in international law.

The commodity-form theory makes perfect sense of this. Precisely because commodity exchange was not evenly spread, international legal forms were not those of perfect formal equality. Indeed Pashukanis himself described colonial international law “as the totality of forms which the capitalist, bourgeois states apply … [to] each other, while the remainder of the world is considered as a simple object of their completed transactions”. What the commodity-form theory allows us to do is specify the mechanism through which capitalism gave rise to specific juridical configurations. Far from a static picture, we have a good explanation for the haphazard and uneven development of international law.

In Chimni’s own account, we do not really have an explanatory mechanism for how and why international law responds to social transformations. Chimni seeks to take into account the logics of nature, territory, law and culture whilst assigning “the ‘logic of capital’ relative primacy as it critically influences the meaning and working of other logics” (p. 449), but it is difficult to see how the logic of capital translates into legal outcomes.

Following Marx and Engels, Chimni suggests that this logic is “expressed” through the law (pp. 450-454), but there is very little about how and why law specifically expresses this logic. The closest explanation we get is an engagement with the work of Karl Renner, who argued that law—as an empty vessel—served various functions which would change with the changing of a mode of production (pp. 455-456). Yet this leaves the unanswered question of why law seems so peculiarly connected with capitalism.

This is important in the context of Chimni’s very ambitious attempt to think through the relationship between gender, race and class. For Chimni, these different logics all impact on and are articulated through the law. But we do not get a sense of how and why they are connected together. As I have argued elsewhere, the commodity-form theory proves helpful here.

The original constitution of the figure of the commodity owner as formally equal was buttressed and stabilised by a series of racialised and gendered exclusions. Categories of ownership were stabilised through the dispossession of indigenous peoples, the existence of chattel slavery and the exclusion of women. These exclusions were all juridified. Thus, this legal logic was articulated as part of gendered and racialised process of capitalist accumulation.

Chimni’s attempt to engage with the insights of feminist and postcolonial theory is vital, but he lacks a material basis to explain how these various logics are co-constitutive.

Whither Resistance?

 

All of this becomes particularly important in the context of Chimni’s political call to arms. He is scathing of those who fail to appreciate the advances that came with the extension of formal equality (p. 476). Chimni argues that this opened up possibilities for progressive advances through the “international rule of law”. Given that international law is the product of states, it will not directly translate the interests of the global ruling class. Instead, it is mediated through states’ internal processes, including democratic ones. Accordingly, international law can serve as a “shield”, since powerful states will lose legitimacy if they openly violate international law (p. 523). Consequently:

The critics of the international legal system should do what it takes to use it to the benefit of the TOC [transnational oppositional class] without of course forgetting the limits of what is possible in the existing world order. (p. 521)                 

However, absent a more sustained reflection on what precisely connects international law and capitalism, it is difficult to know what the “limits of what is possible” are. Insofar as we adopt a Renner-inflected theory of law as functional, then it seems like law itself has no limits. As a “neutral vessel” law will simply express struggles, both progressive and reactionary.

This seems to run up against the accounts in TWAIL scholarship, which have shown how even a strong Third World movement came up against international law’s colonial character. Chimni does suggest that there might be some limits imposed by the “traditions” of various legal professions (p. 461), but this does not seem to account for the tenacious connection between international law and imperialism.

By stressing the commonality of form between law and capitalism, the commodity-form theory gives us a materialist account of this connection. This also alerts us to the limits of international law—it cannot fundamentally challenge the status quo. The mistake of some advocates of that theory has been to suggest that because it cannot challenge the logic of capitalism, international law must simply discarded. By contrast I would argue that this theory invites us to think carefully about how we might use international law.

The form of the law ultimately limits the horizons for radical transformation. At the same time, it will condition the struggles that are articulated within it. Legal struggles tend to channel resistance into apolitical institutions, and fragment that resistance. Keeping these limits in mind then, helps us to understand how we might attempt to deploy international law. It must be done in such a way as to cut against the tendencies of its form.

A key tenet to such struggles must be that international law is consciously subordinated to a political project. It is here that I have my greatest differences with Chimni. For him, the “international rule of law” might serve as a bulwark against imperialist oppression. I think this is a mistake. There is a clear tactical value in defending a number of legal principles post-1945, particularly non-intervention (although here we should be wary: intervention was a key component of radical Third Worldism). But, strategically, to commit to the “rule of law” seems to miss the deep historical and structural connections between law and imperialism.

 

A Marxism for International Law

Thu, 12/28/2017 - 15:00

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

There are some books on my shelves I can remember opening for the first time. I remember holding them, flipping through pages, scribbling a note on the inside cover, using them as improvised paperweights, or lending them to a colleague or a student. I remember a lot of things about them. But I do not remember their contents.

Not all books are created equal. Some you only put on your shelves, but never, to use Conan Doyle’s famous metaphor, in your “brain’s attic”. You get them, you read them, and then, like the latest Nicolas Cage film, you essentially forget all about them. Beyond some general concept of what field or question they were supposed to cover, you can scarcely remember anything about their actual argument, the specific points they tried to make, the reasoning they constructed, the particular examples and illustrations they presented.

This is not, of course, in any way the fault of the author. No one ever sets out to write a forgettable book. Nor is it, though, really, the fault of the reader. No one can really be blamed for trying to keep their “brain attic” tidy. Managing one’s memory archives, let us face it, is a highly important component of good scholarly practice.  We have all been there: sooner or later you just reach that tipping point—call it overexposure or discursive saturation—after which everything you read starts to look familiar. That book or article you are now struggling to recall may be a product of many years of hard, honest work. But is it really your fault that what it had to say, in the end, was so unoriginal? Everyone knows how these things work: you open a book, read through the first pages, and a quiet sense of déjà vu slowly creeps in. Hasnt all this already been said before? Didnt somebody else argue the same point years ago? Sooner or later it all just turns into a blur.

But then again, not all books are created equal. There are some that you get to experience in a completely different manner—as distinct intellectual events, as game-changers that define the course of your intellectual biography. There may only be one or two such books in your library or more than twenty; it does not matter. You always remember a lot more about these books than any others. You remember them, above and beyond everything else, for the fact that they become for you a point of continuing reference. They are there, with you, at all times, wherever your thought goes, whatever you research or write about. They are there, with you, because they have taken pride of place in your “brain attic”. Because however much you may disagree with any one individual aspect of their argument or narrative design, for you they always remain a source of knowledge, a model for emulation, a never-ending lesson to learn from.

Over the last thirteen years, International Law and World Order (ILWO) has become one of such lessons and models for me. It brings me great satisfaction to see it come out in a new edition, to know that once more it is available in print and can be accessed by a new generation of international law students.

I first came across ILWO in the summer of 2004. A medium-sized, hardbound volume printed by SAGE in New Delhi in 1993, it was not an easy book to find. But I was determined. Earlier that year EJIL had brought out Professor Chimni’s article on the imperial global state in the making. To say that I found that text inspiring or thought-provoking would be a drastic understatement: it still remains one of my all-time favourite examples of critical legal writing in international law. When I learned that somewhere “behind” that article there also existed a book written by the same author, there were no two ways about it. I had to get hold of it.

My quest came to fruition a few months later. The first impression I had of ILWO, however, was not, to be honest, very positive. What I found in ILWO was very different from what I had anticipated. Instead of a bold, sweeping, unflinchingly interdisciplinarian analysis of the contemporary world-historical conjuncture, I was confronted with a fairly standard example of traditional legal-theoretic commentary: between its forays into Wittgenstein and reflections on the role of written rules, ILWO turned out to be a relatively conventional exercise in “critique and compare”-style discussion of the various academic writings produced by four relatively important scholarly figures (Hans Morgenthau, Richard Falk, Myres McDougal, and Grigory Tunkin). To be sure, the intellectual angle from which this discussion was conducted did have an unmistakable Marxist genealogy. But the actual genre of the inquiry—a scholarly commentary that targets the arguments presented in other scholarly commentaries—as well as the broader precept behind it—to show how each of these other commentaries in one way or another misses the point—seemed unmistakably conservative. To write about scholars instead of ideologies, narratives instead of the relations of production, the excesses of the Kelsenian project rather than the forms and modalities of neo-imperialist oppression—since when was this supposed to be what Marxists do?

Not that there was anything very surprising about that. The whole concept of writing a scholarly monograph is itself, at its root, a deeply conservative proposition. If one takes Marx’s eleventh thesis on Feuerbach at all seriously, the only truly progressive scholarly agenda worth pursuing is one that is aimed directly at changing the world of international lawprobably by doing something disruptive to it—not one that only seeks to interpret some of its more abstract theoretical representatives. Or at least that is how I figured things worked that first time I read ILWO.

One’s sense of one’s social and institutional surroundings changes as one grows older. When the initial reaction wears off, you get to see the context clearer.

Being determines consciousness. Practices determine politics. ILWO is a text written by—and for—international law academics. Legal academia is a fundamentally middle-class field of practice. No proletarian revolution has ever been triggered or inspired by an act of legal-academic writing. But in the house of progressive politics, there are many mansions. Triggering and inspiring revolutions is not the only thing that one can place on the agenda. Some struggles are a lot more modest in scope. Some battles can only be fought “locally”: within one’s workplace, one’s profession, one’s disciplinary field.

To be able to show that the Marxist tradition has something of relevance to contribute to the world of the international legal debate, is no mean achievement, especially when the global proletarian revolution no longer seems to be something that is just around the corner (as it may have done to Eugene Korovin in the 1920s) and the life of international law, taking place as it always does in a Cover-esque field of global pain and death, continues to be structured by those very theoretical abstractions that the proponents of the eleventh thesis insist one should move beyond.

At its root, ILWO still remains an exercise in traditional legal-theoretic commentary: the entire first section of the book is essentially taken up by a discussion of why explicitly theoretical studies are important and useful. And yet there is also a great deal that has changed between the first and the second editions.

The Marxism chapter has grown to 110 pages. With the entire section on the Soviet tradition (Tunkin) having been removed, it revolves now around the idea of explaining and promoting an “integrated Marxist approach to international law”, a theoretical sensibility which is simultaneously presented to be a direct outgrowth of the TWAIL movement (p. 15) as well as a formal analytical expression of the general concept of intersectionality (p. 2). Two new chapters have been added, one about feminist international law scholarship, the other about the New Approaches to International Law movement (which in the original text was allocated only one brief footnote). The feminism chapter is limited primarily to the work of Hilary Charlesworth and Christine Chinkin. The NAIL chapter focuses exclusively on the writings of David Kennedy and Martti Koskenniemi. Somewhat surprisingly, perhaps, both of these scholars’ projects are presented as a direct continuation of the New Haven tradition.

Where does one place ILWO in the broader field of international legal theory today? For good or ill, for the greater part of the last twelve years the dominant point of reference for the concept of “a Marxist theory international law”, especially among the non-Marxist international law contingent, has been China Mieville’s brilliant but in many ways rather limited excursus into legal nihilism. In showing its readers the possibility of a fundamentally different way of bringing Marxism and international law together, ILWO, I would like to suggest, offers a much-needed correction to this tradition.

By explicit declaration as well as numerous “practical” illustrations, ILWO proves over and over again that far from having nothing more to say about international law other than that it is a cynical cover-up for imperialistic violence, the Marxist tradition can, in fact, make a very complex, nuanced, and rich contribution to the discipline of international legal studies, that it can teach us something valuable not only as moral agents or as ideological actors but also as international lawyers and legal scholars. And the significance of this cannot be underestimated.

 

 

Reading Chimni’s International Law and World Order: The Question of Feminism

Thu, 12/28/2017 - 09:00

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

In 1993, Professor B.S. Chimni published what Richard Falk described as the “persuasive rehabilitation of Marxist thought as the foundation for a progressive theory of international law”. Almost twenty-five years later, the second edition of International Law and World Order: A Critique of Contemporary Approaches offers us valuable insights not only into the evolution of Chimni’s thought, but also into the evolution of the discipline. Indeed, the structure and the sheer size of the second edition is telling of the flourishing state of heterodox approaches to international law. It is no coincidence that Chimni felt the need to add two new, lengthy chapters on the New Approaches to International Law (NAIL, which he sees as exemplified in the writings of David Kennedy and Martti Koskenniemi, and on Feminist Approaches to International Law (FtAIL), where he focuses primarily on the work of Christine Chinkin and Hilary Charlesworth, and particularly their co-authored, ground-breaking book, The Boundaries of International Law: A Feminist Analysis. Perhaps more fundamentally, when articulating his own Integrated Marxist Approach to International Law (IMAIL), the author gestures toward the need to integrate class, gender and race for a critical project in international law. In this respect, the book at hand does not simply offer an overview of the field, but it also registers and responds to relevant discussions (see here and here) about race, gender and class that are taking place in leftist movements and parties around the world. This is a refreshing development in its own right, since for the best part of the last twenty years references to civil society in international law revolved around Western(ised) and professionalised NGOs (see here and here).

The book at hand is rich and stimulating, not least because of Chimni’s choice to structure it around a diverse range of theories: from classical realism to the transformations of Koskenniemi’s thought and from the writings of Richard Falk to Gadamer’s theory on interpretation. Unsurprisingly, breadth comes at the expense of detailed engagement at points, althoughthis is not necessarily an unwelcome intellectual move, especially in an era of disciplinary fragmentation. In this respect, I sense that it is not the breadth of his account, but rather Chimni’s theoretical and methodological choices that lead to mis-recognitions of the theories under examination and also pose limits to Chimni’s own articulation of IMAIL. Chimni’s integrating process is primarily focused on accumulating additional grounds of oppression besides class (such as gender, race or caste). In this respect, he employs a contextual view that does not “force social experience to fit a privileged category” (p. 503). Even though this is a laudable move both intellectually and politically, it is seriously undermined by the fact that the book offers very little insight on how we should understand these categories and their entanglement both with the capitalist mode of production (CMP) and international law.

Chimni’s engagement with FtAIL is a good example of the merits and shortcomings of the book at hand. Its analysis places the work of Charlesworth and Chinkin at its centre and it offers useful insights on the limitations of their project, which is seen as an example of eclectic liberal feminism (p. 392). Indeed, Chimni rightly points out that international economic law has been strikingly absent from the analysis of the two authors, as have been the economic aspects (or roots) of women’s oppression globally. Similarly, Chimni identifies the difficulties arising from Chinkin and Charleworth’s lack of consideration for imperialism and its destructive effects on the women of the Global South. The author convincingly argues that a more systematic engagement with the substantive and methodological insights of Third World Approaches to International Law (TWAIL) would have enriched and corrected the work of the two legal feminist pioneers and, indeed, would have guarded against the perils of falsely universalising the experiences and, perhaps more fundamentally, the interests of a narrow class of white women located in the Global North. Given the instrumentalisation of gendered oppression for the justification of imperialist policies coupled with liberal feminists’ one-sided emphasis on women’s participation in international legal structures with minimal regard for the impact of these structures on the vast majority of women, Chimni’s remarks are a useful reminder of the perils and limitations of the ways international law can domesticate criticism and even instrumentalise feminism for the reproduction and legitimisation of oppressive structures.

However, Chimni’s approach has severe limitations as well. Notably, two questions that would have helped the reader navigate the rich and stimulating, but occasionally piecemeal, materials are absent from the analysis. First, Chimni does not seem preoccupied with the question of how law, and in this instance international law, contributes to the constitution of categories like class, gender or race and to their mutual entanglement. Indeed, even though the author states that these “oppressions could not be disaggregated” (p. 392), he provides little argumentation to that effect, and particularly argumentation that establishes the role of international law in the construction of such co-constitutive grounds of oppression. This would be a problem for any similar integrating effort, but I suspect that it is more of a problem for anyone who call themselves a Marxist. Indeed, gender and race are used in this book as self-evident analytic categories and little effort is made in articulating a theory of gender and race that is materialist, without being biological. Such an endeavour would require an examination of the historic and contemporary role of international law not only in perpetuating racist or sexist oppression, but in constructing these categories in the first place, in sexing and racialising bodies in particular ways, and creating legal regimes of property, family and political power that create, sustain and reproduce these categories. Indeed, even a cursory reading of the history of international law from Haiti to Siam would have provided Chimni with useful insights about these processes. Writing in this register also necessitates more than just demanding that feminist authors take into account imperialism, that Marxist authors also account for race or that critical race theorists factor class into their analysis. Rather, it necessitates an examination of the capitalist mode of production as the material matrix that produces and gives renewed material reality to these categories and binds them together in historically concrete moments. In this respect, Chimni’s turn to “second wave” feminism and Herbert Marcuse (pp. 401-404) disregards concepts such as performativity, which might be rejected by strands of Marxism or radical feminism as “post-modern”, but which provide some of the most persuasive tools to analyse the role of (international) law in the constitution of categories such as “women” and their subordinated incorporation in regimes of property, trade and (re)production.

The second absent question is that of gender, race or class and international law as an argumentative practice. Indeed, Chimni’s analysis is significantly restricted by the fact that he only focuses on gender as a direct subject of international law, for example in the case of CEDAW. This is contradictory even on Chimni’s own terms, since, following Vasuki Nesiah, he interrogates the possibility of “a feminist approach that is not focused on women alone” (p. 397). However, his own focus on gender as a subject of IL makes him miss or at least radically underestimate the role of gendered tropes and imaginaries for the structure of international legal arguments, as well as overlook feminist legal scholarship that resists these argumentative moves, especially when they are used to facilitate imperial violence. Hence, Chimni’s emphasis on the works of Chinkin and Charlesworth is predicated on this very narrow conception of feminism in international law that he otherwise criticises, and it ends up not only misrepresenting the field, but also limiting his own critical horizon. For example, it is notable that despite his justifiable concerns about the Kosovo intervention and its impact on the international legal order (e.g. pp. 340-341, 346-347), his analysis somehow misses the fact that one of the most forceful critiques of the intervention at the time mobilised precisely feminist theory to interrogate the gendered and racialised narratives in international legal scholarship that discreetly enabled our interpellation as potent, active heroes, or in order words, as masculine subjects. My feeling is that this and other similar omissions are not incidental or simply the outcome of editorial limitations, but rather they reflect Chimni’s lack of consideration for the multiple functions of gender or race for international legal argumentation and structure. In turn, this further challenges Chimni’s choice to centre his engagement with feminism and international law on one book, which is undeniably foundational, but was published almost twenty years ago and does not reflect accurately either the contemporary state of feminism in international law or the contribution of the two authors to the discipline.

These criticisms notwithstanding, the second edition of International Law and World Order is a welcome and valuable intervention both for those of us who share Chimni’s commitment to Marxism, but also for all those who are interested in the contemporary state of heterodox approaches or in the shortcomings, failures and promises of international law as such. For the international lawyers of the future it should be enough to compare this book with its first edition in order to comprehend the fascinating intellectual evolution not only of Professor Chimni, but also of the discipline as a whole.

B. S. Chimni’s “Relatively Autonomous” International Law

Wed, 12/27/2017 - 09:00

Note from the Editors:  We conclude 2017 with a roundtable discussion of the second edition of Professor B.S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches.  Given numerous changes that rapidly transpired in the international system since 2016, the roundtable discussion will certainly spur continuing exchanges among scholars, academics, and practitioners on the evolving contours of the international legal system and the art, science, and profession of international law.

The first edition of B. S. Chimni’s International Law and World Order: A Critique of Contemporary Approaches appeared in 1993, only a couple of years after the Soviet Union’s collapse and at a time when critical and feminist approaches to international law had only just begun to make their presence felt. This was a period when only a small handful of prominent international legal theorists self-identified as Marxists—and when few jurists from the “Third World” aside from Georges Abi-Saab and Mohammed Bedjaoui were read consistently in the West. Published in New Delhi and armed with a preface from Richard Falk, International Law and World Order was no ordinary contribution to international legal scholarship. Chimni’s aim was nothing less than the reconstruction of international legal theory, a project he undertook by way of sustained examination of a number of competing perspectives, from that of Hans Morgenthau to that of Grigory Tunkin.

The second edition offers the most detailed and systematic analysis of international law from a Marxist standpoint that is currently available. Enormously ambitious in scale and reach, it updates, revises, and enlarges the first edition, sweeping across a range of substantive topics and discussing a variety of different approaches to international law and international legal theory. While the first edition had its roots in Chimni’s early engagement with the “New Haven School” (hence the title of the book, which alludes to both Falk’s work and the “world public order” models espoused by Myres McDougal, Harold Lasswell, and Michael Reisman), the second edition deals at length with feminist international legal scholarship and the work of David Kennedy and Martti Koskenniemi as part of a broader effort to outline a new Marxist theory of international law, one that integrates insights from socialist feminism and postcolonial studies while absorbing the lessons of the indeterminacy debates of the 1970s, 1980s, and 1990s.

Given the breadth of this new edition, there are a number of different means of assessing Chimni’s “integrated Marxist approach to international law”. Arguably the most useful is by attending to Chimni’s discussion of classic debates about the relationship between what some Marxists (and enemies of Marxism) have characterized as the economic “base” and ideological “superstructure”. Rejecting all interpretations of the “base”/“superstructure” relation premised upon the notion that the economic is strictly determinative of all social relations, Chimni argues that Marx and Engels subscribed to a more nuanced view of economic and extra-economic dynamics, pointing in particular to a key passage in an 1890 letter by Engels. In that letter, which has long been regarded as a key piece of evidence that Marxism need not entail crude economic determinism, Engels writes as follows:

“According to the materialist conception of history, the ultimately determining element in history is the production and reproduction of real life. Other than this neither Marx nor I have ever asserted. Hence if somebody twists this into saying that the economic element is the only determining one, he transforms that proposition into a meaningless, abstract, senseless phrase.”

Chimni refers explicitly to this passage (alongside a number of others from Marx and Engels) at a key juncture in the book, using it to make a number of points, the most fundamental of which is that “law is not simply a reflection of the economic structure of society but is also in many instances constitutive of relations of production” (p. 450). Rather than adhering to a stark, hard-and-fast distinction between the economic “base” and ideological “superstructure”, with the latter functioning purely as a means of mystifying and legitimating the former, Chimni (like others) argues that law is endowed with significant constitutive power, inhering within and contributing directly to the contradictions and transformations of the economic relations that comprise the core of the capitalist mode of production.

It is on the basis of this appreciation of the constitutive power of law that Chimni develops his “integrated Marxist approach to international law”. Chimni claims that Marx and Engels, committed though they unquestionably were to the view that legal rights are insufficient to secure full human emancipation, recognized the value of legal reform initiatives, particularly for improving the conditions of the working class. While certainly not uncontroversial, this is an interpretation that finds significant support in classical Marxist texts, especially Marx’s famous discussion of the struggle around factory legislation in nineteenth-century Britain in chapter 10 of the first volume of Capital. It is also a view that has been shared, albeit in different ways and to different degrees, by a host of key Marxist thinkers, from Karl Renner, who attempted to demonstrate that legal forms do not always track socio-economic relations, through E. P. Thompson, who wrote hyperbolically of the “rule of law” as an “unqualified human good”, to Nicos Poulantzas, who theorized the state as the material “condensate” of ongoing struggles between different classes and class fractions. Chimni relies extensively upon these and other thinkers, arguing that Marx and Engels did not press their critique of formal equality in order to repudiate law, but simply in order to demonstrate the limits of an exclusively rights-based strategy of effecting social change, which could not help but remain within the juridico-political framework of capitalism.

It is not hard to see how this stance would yield a more generous conception of international law than the kind that is typically found in many other critical (and Marxist) theories. First, inasmuch as international law is understood as a “relatively autonomous” field with its own internal logic, incapable of being reduced to the extra-legal pure and simple, it must, Chimni contends, also be understood as a site of contestation, one that is not always and necessarily structured in favour of the “North”. Second, to the extent that law is something other than a merely epiphenomenal by-product of the economic, the complex role that gender and race play in the formation, operation, and transformation of law must be examined at close quarters. Hence Chimni’s extended engagement with feminist theories of international law as well as a variety of different forms of postcolonial theory (which he, unlike Vivek Chibber and other Marxist critics, finds to be useful). Hence also his insistence that the “logic of capital” must be analyzed in combination with the “logic of territory”, as well as the “logic of culture”, the “logic of nature”, and the “logic of law” (e.g. pp. 31-35, 504-506).

All of this makes for a wide-ranging and deeply informed treatment of international legal theory. That said, the book is not without its blindspots and shortcomings. First, it is surprising that Chimni should continue to feel a residual fascination with the “New Haven School”. A sustained review of a movement that sought to enshroud US foreign policy in the garb of Cold War social science may have been understandable in 1993, but the sympathy Chimni continues to display for key elements of this idiosyncratic form of “policy science” is not in keeping with even the sort of capacious Marxism he seeks to develop. To be sure, scholars like McDougal and Lasswell sought to dilute conventional positivist distinctions between “law” and “politics” (so much so that, as Chimni himself notes, they arguably emptied the concept of law of any content). But if this is Chimni’s principal reason for examining their “policy science” at great length, one wonders whether his energy might better have been directed elsewhere. Second, while Chimni repeatedly invokes the Third World Approaches to International Law (TWAIL) movement, it is not entirely clear how he situates himself within (or with respect to) it. As he acknowledges, “TWAIL” has long served as a kind of umbrella category, encompassing a range of different and often conflicting theoretical and ideological traditions (p. 17). Yet most of the work associated with TWAIL during the past three decades has turned not to Marxism but to post-structuralism for inspiration. Chimni rightly points to the need to integrate race into any general theory of international law. It is not evident, though, why he should feel the need to draw upon the preponderantly post-structuralist approaches to race (and “culture”) that have found a home in TWAIL—or even, for that matter, how far it is possible to absorb such approaches into a historical materialist account of international law. After all, from C. L. R. James to Angela Davis, Amílcar Cabral to Vijay Prashad, there is no shortage of Marxists (with much to say about international law and politics) who pay close attention to questions of race and who train their lens upon the extra-European world. One cannot help but wonder whether there is really a need to “integrate” postcolonial studies when such resources are already available within the Marxian tradition. The question is an open one, and does not admit of an easy answer, but it needs to be engaged directly for Chimni’s project of “integration” to bear fruit. Third, although many readers will applaud Chimni’s desire to work creatively with traditional Marxist frameworks, I must admit that I found it difficult to understand what precisely is specifically Marxist—“integrated” or otherwise—about the “third possibility” that the book proposes in its concluding pages. In these pages (pp. 545-550), Chimni marshals the recent work of Fredric Jameson in order to argue that many regard both socialism and capitalism as discredited, and that we should therefore experiment with “an intricate mix of ownership patterns” premised upon “a balance between private and public interests” and a recognition of the value of markets for the “provision of information, the efficient allocation of resources, and the creation of incentives for innovation” (p. 548). Such remarks are disappointing, and a rather odd way to conclude a book dedicated to Marxist analysis.

When all is said and done, the second edition of International Law and World Order is a commendable achievement—a comprehensive Marxist rethinking of international law from what the author himself describes as a “Southern” perspective. Chimni’s “integrated Marxist approach” aims to capture the “relative autonomy” of legal structures while anchoring these structures in concrete social relations. In that sense, it marks a radical departure from the work of China Miéville, who has enlisted Evgeny Pashukanis’ “commodity-form theory” for a full-spectrum assault on international law. While clear about law’s limitations, not to mention its indebtedness to capitalism, Chimni does not reject specifically legal efforts altogether, presenting them instead as necessary, if ultimately insufficient, means of countering injustice and inequality. Readers will disagree on the analytical merits and political tenability of that position, but there is no doubt that International Law and World Order showcases the vitality and relevance of Marxist international legal theory today. We are fortunate to have this new edition; it will be studied and debated for years to come.

 

Happy Holidays

Sun, 12/24/2017 - 18:48

All of us at EJIL: Talk! wish a happy festive season to our readers and their families. And may 2018 be just a tad less execrable than its unfortunate predecessor… Posting will be light for the next week or so. In the meantime, here is some holiday cheer in the spirit of the times – “Why do the nations so furiously rage together, and why do the people imagine a vain thing?”

 

The Philippines Human Rights Commission and the ‘Carbon Majors’ Petition

Fri, 12/22/2017 - 09:00

The adoption of the Paris Agreement in 2015 has been followed by a burgeoning strand of climate change litigation, with test cases being heard all over the world (see Columbia Law School database). Amongst others, litigants have argued that emissions are the proximate cause of adverse climate change impacts, thereby giving rise to specific liability. One of the boldest efforts to test the boundaries of the law in this area is a petition currently being heard by the Commission on Human Rights of the Philippines (CHR or Commission). The petition originated in 2016, when after a surge of typhoons wreaking havoc in the Philippines, Greenpeace Southeast Asia, Pilipino human rights groups and citizens requested the Commission to investigate the responsibility of 47 oil, gas, coal, and cement companies for human rights violations or threats thereof resulting from the impacts of climate change (so-called Carbon Majors petition). The petition has attracted much attention in the media and numerous academics and civil society organisations have submitted amicus briefs in support of the petitioners. Last week, the Commission groundbreakingly asserted its jurisdiction to investigate the petition (CHR press release). The Commission also announced multiple fact-finding missions and public hearings in 2018, to be held both within and without the Philippines. This post reflects on the international law implications of the petition for arguments concerning the liability of corporations for alleged human rights violations associated with the impacts of climate change in a transnational context.

The Scope of the Commission’s Jurisdiction

Similar to other national human rights institutions, the CHR has a mandate to investigate:

all forms of human rights violations involving civil and political rights and to investigate and monitor all economic, social and cultural rights violations and abuses, as well as threats of violations thereof, especially with respect to the conditions of those who are marginalized, disadvantaged, and vulnerable (Rule 2, Omnibus Rules of Procedure). 


Some respondents challenged the Commission’s jurisdiction to hear the petition. Citing the Lotus case, they argued that a State’s jurisdiction is limited ‘only to the confines of its physical boundaries’ (e.g. Cemex, at 11). As we explained in our amicus brief, States frequently exercise adjudicatory and legislative jurisdiction over persons or events outside their territory, as long as there is a clear connecting nexus between that State and the person or conduct that it seeks to regulate. Therefore, and contrary to what was suggested by the respondents, the exercise of the Commission’s jurisdiction over foreign corporations is neither an ‘act of interference’ or ‘usurpation’ of other States’ sovereignty (Cemex, at 16), nor ‘tantamount to an undue encroachment on the territorial jurisdiction and sovereignty of such other States where Respondents are domiciled and operate’ (Shell, at 1). As long as the Commission’s investigation falls within one of the established principles of jurisdiction, it is in accordance with international law. The most relevant principles for the purposes of the petition are the territorial and the protective principles.

The authority of States to exercise legislative or adjudicative jurisdiction over acts that take place in their own territory is one, albeit important, aspect of the territorial principle. The other is the so-called effects doctrine, which gives States ‘more leeway to unilaterally stretch the arm of their domestic laws in order to clamp down on harmful acts arising beyond their borders’ (Ryngaert, ‘Jurisdiction Towards a Reasonableness Test’ 194).

Already in 1945, Judge Learned Hand noted in the Alcoa case:

It is settled law…that any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders, which the State reprehends (para 118).

The effects doctrine has been acknowledged in the Lotus and in the Arrest Warrant cases. Currently, it finds wide application especially in relation to antitrust, tort, bribery and corruption, security, insolvency and criminal law. Accordingly, the territorial principle leaves ample scope for the CHR to exercise its jurisdiction over human rights violations carried out by corporations headquartered outside the Philippines, as long as the relevant conduct is either initiated or completed within the Philippines, or because its effects are felt within the Philippines.

Also of relevance is the protective principle, which authorises States to protect themselves by regulating and adjudicating over conduct carried out abroad that may damage their essential interests. The principle applies regardless of the place of commission or of nationality of the alleged offender or victim. Since the 1980s, it has been applied outside the context of criminal law where it was initially developed. It is generally accepted that the application of the protective principle can only be justified by the need to protect ‘essential’ or ‘vital interests’ of the State, but there is little consensus on how these should be defined. States have increasingly relied on the protective principle to ensure environmental protection. For example, both Canada and the United States have relied on the protective principle to address oil spills pollution, through the 1970 Arctic Water Pollution Prevention Act and the 1990 Oil Pollution Act, respectively.

These precedents clearly show that the Philippines CHR could in principle rely on the protective principle to assert its jurisdiction. In this connection, it is irrelevant whether any of the major emitters do business in the Philippines, as long as the effects of their activities may be regarded as a threat to essential or vital interests of the Philippines. The Carbon Majors petition set out with the ambitious mission to prove exactly that this is the case.

Climate Change Impacts and Human Rights: Establishing a Link

The Carbon Majors petition reflects the growing recognition of the links between States’ obligations under human rights and climate change law. For the first time in the history of multilateral environmental agreements, the preamble of the 2015 Paris Agreement acknowledges that parties ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. An increasingly long string of Human Rights Council resolutions emphasises human rights obligations, standards and principles’ ‘potential to inform and strengthen’ climate change law- and policy-making by ‘promoting policy coherence, legitimacy and sustainable outcomes’. The adoption of the Paris Agreement inaugurated a new season in cooperation between international human rights and climate change bodies (Savaresi, 2017). UN human rights bodies have made formal submissions on matters under consideration under the climate regime, and elicited expert recommendations on how to best integrate human rights into climate policy. Furthermore, standards developed by intergovernmental bodies dealing with matters such as climate finance increasingly make explicit references to human rights considerations (see OHCHR and Heinrich Böll Stiftung, 2017).

Hitherto, little climate change litigation has been argued on human rights grounds. Qualifying the effects of climate change as human rights violations poses a series of technical obstacles, including disentangling complex causal relationships and projections about future impacts (A/HRC/10/61, para. 70). Yet, these obstacles are not insurmountable. The suitability of human rights law to address harm caused by climate change depends upon whether a victim can substantiate a claim that a duty bearer has contributed to climate change, in such a way as to amount to a human rights violation. In this regard, Special Rapporteur Knox has persuasively argued that, as scientific knowledge improves, tracing causal connections between particular emissions and resulting harms is less difficult (A/HRC/31/52, paras 36-37). Furthermore, States’ well-established obligation to address environmental harm that interferes with the full enjoyment of human rights can be interpreted in a way to extend to human rights violations caused by climate change impacts (A/HRC/22/43, paras 18-24). As not all parties to the climate regime have ratified the same human rights treaties, States’ obligations in this connection may vary to a certain extent. Yet, the work of the Special Rapporteur demonstrates that it is possible to identify a set of core obligations associated with the protection of human rights in relation to environmental matters (A/HRC/25/53, paras. 79-81)

These core obligations include procedural obligations to assess impacts on the enjoyment of human rights and to make environmental information public, to facilitate participation in environmental decision-making, and to provide access to remedies. States also have substantive obligations to adopt legal and institutional frameworks protecting against harm interfering with the enjoyment of human rights. Most saliently for the present purposes, this includes harm caused by private actors. This obligation does not require States to prohibit all activities that may cause any environmental degradation. Instead, States have discretion to strike a balance between environmental protection and other legitimate societal interests. Knox has emphasized that this balance cannot be unreasonable, or result in unjustified, foreseeable infringements of human rights. In assessing whether a balance is reasonable, national and international health standards may be particularly relevant, with a strong presumption against retrogressive measures. Finally, in addition to a general non-discrimination requirement, States may owe specific obligations to members of groups particularly vulnerable to harm (Ibid.).

All of these elements come together in the Carbon Majors petition. The petition addresses harm caused by private actors, which is largely foreseeable and that also affects groups particularly vulnerable to harm. Article 8 of the Paris Agreement refers for the first time to the matter of loss and damage caused by climate change and initiated a process to develop recommendations for approaches to avert, minimise and address human displacement, and facilitate parties’ efforts to develop and implement comprehensive risk management strategies (Decision 1/CP.21, at 49). Even though Parties have for the time being excluded using this process as a means to establish liability for climate change impacts under the climate regime (Decision 1/CP.21, at 51), this does not in any way preclude the validity of human rights law claims in general. Human rights law therefore potentially lends itself to hold to account human rights duty bearers, thus potentially also corporations, for human rights violations associated with the impacts of climate change.

The Business and Human Rights Regime

The Business and Human Rights regime consists of hard and soft rules under international law and domestic law that regulate the relationship between the State, corporate entities and individuals. International law clearly imposes upon States wide-ranging obligations to protect the human rights of individuals from infringements by third parties, including corporations.

In the specific case of the Carbon Majors petition, the State duty to protect the human rights invoked by the petitioners – to life, to health, to food, to water, to sanitation, and to housing – from corporate violations, is well-established in the interpretative work of UN treaty bodies, special procedures, and in international jurisprudence (see e.g. E/C.12/GC/24). States ordinarily prevent, stop, or obtain redress or punishment for third party interference through regulation of private party conduct, inspection and monitoring of compliance, or administrative and judicial sanctions enforced against non-compliant third parties, such as polluting industries.

By logical inference, the (uncontested) existence under international human rights law of the State duty to protect individuals from corporate violations of human rights, should disclose the scope of binding international obligations of corporations (see Clapham 2006 and 2017; and ILA). This inference has not been borne out by part of doctrine, or by some States and corporate entities. Instead, in 2011, the ‘corporate responsibility to respect’, defined in the UN Guiding Principles on Business and Human Rights as a ‘global standard of expected conduct’, was met with broad agreement (at 13). While the Guiding Principles specify that the responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, ‘which remain defined largely by national law provisions in relevant jurisdictions’ (Ibid, at 14), corporations are expected ‘at a minimum’ to respect human rights expressed in the International Bill of Human Rights and in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work (Principle 12).

At an operational level, the corporate responsibility to respect translates in the duty of due diligence, which requires corporations ‘to identify, prevent, mitigate and account for how they address their adverse human rights impacts’ (Principle 17). Special Representative Ruggie clarified that corporate human rights violations can result from ‘environmental impacts—for example, related to water and health’, including such impacts that have a ‘delayed effect’ (OHCHR, 2012, at 8 and 53). In this connection, corporations should rely on ‘established and quite precise international as well as national standards’ in undertaking due diligence in relation to these environmental impacts (ibid).

Recent interpretative work of treaty bodies and international jurisprudence provide indications that the corporate responsibility to respect human rights has either gained traction as a firmer obligation and/or that corporate obligations may exist under international human rights law in addition to the soft law responsibility and domestic law obligations. Most recently, the treaty body monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR), noted:

under international standards, business entities are expected to respect Covenant rights regardless of whether domestic laws exist or are fully enforced in practice. The present general comment therefore also seeks to assist the corporate sector in discharging their human rights obligations and assuming their responsibilities, thus mitigating any reputational risks that may be associated with violations of Covenant rights within their sphere of influence (CESCR, General Comment 24, para. 5).

The 2016 arbitral award in Urbaser v Argentina is particularly relevant:

On a preliminary level, the Tribunal is reluctant to share Claimants’ principled position that guaranteeing the human right to water is a duty that may be born solely by the State, and never borne also by private companies like the Claimants. When extended to human rights in general, this would mean that private parties have no commitment or obligation for compliance in relation to human rights, which are on the States’ charge exclusively (para. 1993).     

After examining international developments in the area of business and human rights, and specifically the Guiding Principles, as well as provisions of the ICESCR and the Universal Declaration of Human Rights, the Tribunal concluded:

At this juncture, it is therefore to be admitted that the human right for everyone’s dignity and its right for adequate housing and living conditions are complemented by an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights (emphasis added, para. 1999).

Other international courts have relied on the UN Guiding Principles to establish that businesses ‘must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights impacts directly linked to their activities’. The Inter-American Court of Human Rights reached this conclusion in a case involving mining activities that resulted ‘in the adverse impact on the environment and, consequently, on the rights of the indigenous peoples’ (Kaliña and Lokono Peoples v. Suriname, para. 223).

In a similar vein, the Working Group on the issue of human rights and transnational corporations and other business enterprises has submitted letters of allegations and urgent appeals to both States and companies. One would have to go to great lengths to explain how the UNWG is able to submit communications to companies about alleged human rights violations, if the latter had no existing obligations to respect human rights (see Cismas and Macrory, The Business and Human Rights Regime under International Law: Remedy Without Law?, forthcoming). These examples point to the relevance to the Carbon Majors petition of the corporate responsibility to respect and its corollary duty of due diligence, which requires corporations to account for and address adverse human rights impacts, possibly including also those associated with climate change.

Conclusion: History in the Making?

The decision of the CHR to investigate the Carbon Majors petition is unprecedented and potentially gravid with consequences for the future of climate change litigation. It also sets an important precedent for the development of the body of human rights law in relation to environmental protection and corporate obligations. As many times before, human rights law is being used as a means to make up for the shortcomings of environmental law on matters of enforcement. The Carbon Majors petition may thus well become a milestone in the interplay between environmental and human rights law. Experts from both areas will therefore be impatiently waiting to see what conclusions the Commission will draw, after having already made history by deciding to investigate the Carbon Majors petition in the first place.

The Possibility of Disclosing Findings After a Detainee Dies in International Criminal Proceedings

Thu, 12/21/2017 - 10:00

International criminal courts and tribunals have no jurisdiction over the dead. Such courts make factual findings that have reputational implications for those who have died, but the dead are not parties to a case. They cannot be bound by the power of a court. A trial chamber or appeals chamber that attempts to exercise jurisdiction over the dead is acting ultra vires.

The possibility of death before the issuing of the final appeal judgment is a particular problem in leadership trials. The accused are more likely to be older. Such trials are expected to take longer. They are inevitably stressful. These are structural problems that can be managed, but not eliminated.

In a trial where all the evidence has been submitted, a great deal of effort and expense has already gone into the trial even before the trial judgment is issued. In a single-accused trial, should the accused die before the trial judgment is issued, there is a sense in which this effort is wasted. No trial judgment can be issued. Bench memoranda and internal drafts are left unpublished. The machinery simply stops. Given the low level of proof required, any confirmation of charges or (at the ICTY) Article 98 bis decision does little to settle the disputes of fact and law that may have been at least partially resolved by a trial judgment. A similar situation might apply in a appeals process halted by the death of a detainee. The issues certified for appeal cannot be resolved by the appeals chamber if the appeals chamber lacks jurisdiction to do so. Similarly, proceedings may be stopped at a any stage if the accused is no longer competent to stand trial (e.g. Ieng Thirith).

What should be done? Trials should be quicker, which could be facilitated by limiting sprawling indictments and allowing more evidence to be submitted on paper rather than via viva voce testimony. The health and security of the detainees should be guarded and protected to the greatest degree possible, a point to which I will return. The general concerns for a speedy trial and the well-being of detainees are obvious, uncontroversial, and even banal, but should be addressed with more urgency than in the past.

More controversially, perhaps it would be prudent in certain limited cases to allow findings to be released where a court or tribunal no longer has jurisdiction over an accused but the particular issue has been fully briefed. Doing so has several potential benefits. This might limit the wastefulness of a scenario such as those outlined above. It might lessen the perverse incentive of suicide for detainees awaiting judgment. It might increase the security of detainees from those wishing to stop a case. It may also lessen any temptation for a court or tribunal to act ultra vires, where the detainee’s health or time of death are contested.

Most fundamentally, it would allow those interested in the findings of the judges to benefit from the fruits of the proceedings. If there is a didactic function or truth-determining function of international criminal proceedings, these functions are not always best served by a sudden halt followed by silence. If any of the many acquittals at the ICTY had been prevented by the death of an accused on the cusp of issuing a judgement, the families of the accused might rightly wish for findings to be released. Given that initial evaluations of the crime base are often the first findings to happen internally in chambers, a determination with regards to the factual existence and characteristics of a crime base without necessarily making legal findings of culpability would also be of widespread interest and public utility.

This innovation, releasing findings in the absence of jurisdiction to convict or acquit, will be repellent to many criminal lawyers. I am not comfortable with the idea, but I think it deserves further exploration. The core question in criminal law, at least for most defence counsel, is whether or not to punish a particular accused for a specifically alleged crime, and with that question removed, it generally is pointless to continue on a typical case. But, like it or not, there is widespread and justified interest in the findings that are issued from international criminal trials. I know I would have liked to have read further findings from the trial of Slobodan Milošević. The only judgment in that case was a contempt judgment. While a person who has died cannot be convicted or acquitted, nor can a conviction or acquittal be upheld on appeal if the accused has died, it is unclear that anyone’s rights would be violated by such (for now hypothetical) findings, or that there is not more reason to proceed with findings than to simply shut down in every case.

Releasing such findings arguably places a criminal court or tribunal more in the role of a truth commission. An innovation in international criminal proceedings allowing for post-mortem findings would in some ways be the reverse of the trend towards truth commissions/commissions of inquiry coming close to findings of criminal responsibility. While truth commissions that make factual findings that damage reputations may suffer from procedural justice deficits (often with no right to be heard by the quasi-accused), steps could be taken to make sure that the post-mortem release of findings are limited to instances where all relevant parties or previous parties have had the opportunity to be heard before such findings are issued.

While neither a truth commission nor a criminal proceeding has jurisdiction over an individual who has died, they both have an interest in making factual determinations public when doing so does not violate anyone’s rights and serves the public interest. In a criminal proceeding, this could take the form of an order releasing an internal document making findings, normally kept confidential, to the public. It could also take other forms. In certain cases, internal documents might be released to special commission to make a separate institutional utterance. Whatever form it takes, it should be structured in a manner to make clear that such a finding is distinguishable from a judgment issued on the conduct of a (living) accused.

Releasing such findings after proceedings in which the accused has taken an active role in his or her defence also may seem less odd when considered alongside the practice at the Special Tribunal for Lebanon of in absentia trials, in which defence counsel receive no instruction or information from the accused, and the very question of whether an accused is alive or dead is to some degree a matter of informed speculation. If such proceedings are legitimate, and I believe they are, an order making an exception to the normal rule that internal chamber documents must be kept confidential may be justified in extraordinary circumstances.

To return to more immediate issues (e.g. Ratko Mladić’s health and medical care has been a matter of some contention), the health and security of detainees, including mental health and potential self-harm, is a critical concern for all involved. “Daily adequate medical care” has long been a demand of detainees. Self-harm is broader than suicide, and includes improper self-medication or refusal to adequately medicate. Slobodan Milošević is the most obvious reported example. I have heard that mental health is an underreported issue for detainees at the ICC. The United Nations Detention Unit is often a radically different environment than the situation from which the detainee came. For reasons of confidentiality and privacy, this issue is rarely discussed outside the courtroom, and so risks being systematically neglected. Detainees often have an aversion to being portrayed as unwell. It is possible for requests for provisional release and access to mental health professionals fluent in the native langue of the accused to be treated too lightly. It is not as though the particular difficulties in managing this detainee population are unknown. There was an excellent paper by the ICTY Registry on this specific issue, although it no longer seems to be publicly available. In any case, the health and safety of those in detention is the responsibility of the detaining power.

What should be done? It will be different in every case. But obviously this area could use improved oversight, and perhaps additional resources. Ultimately, this is an area where accountability mechanisms for failures by the Registry could be improved.

Foreign Jurists in the Colombian Special Jurisdiction for Peace: A New Concept of Amicus Curiae?

Tue, 12/19/2017 - 10:25

One year after the conclusion, on 24 November 2016, of the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army), the implementation of that Agreement now enters a decisive phase. That Agreement was reached after the rejection of the first version of 24 August 2016 by a slim majority of 50.2% of votes. Last month, the Constitutional Court, by unanimous vote, approved the constitutional reform that implements the Agreement through a special legislative act (Acto Legislativo 01 of 4 April 2017). However, the Court objected to some articles concerning the Special Jurisdiction for Peace ( SPJ or JEP – Jurisdicción Especial para la Paz) which is the judicial cornerstone of the Agreement. The judges of the JEP have recently been selected in a transparent and competitive procedure by a fully independent and mixed Selection Committee (Comité de Escogencia).

While the Final Agreement no longer provides for foreign judges – this was one of the points that proved unacceptable to those who opposed the original Agreement, led by former President Uribe – these have now been substituted by foreign jurists called amici curiae. These, too, were recently selected by the Comité de Escogencia on 6 December 2017, with10 in total for the two JEP organs (four for the “Tribunal para la Paz” and six for the “Salas de Justicia”) with two reserve amici for each organ (the first author of this blog was selected for the Tribunal for Peace). However, it is not quite clear what role these amici will ultimately play before the JEP. We will argue in this post that the Colombian concept of amicus curiae differs from the usual international understanding. This can be explained by the particular Colombian context, where, on the one hand, the parties to the Peace Agreement favored the participation of foreign judges in the JEP, but, on the other hand, the strong opposition to the agreement forced the government to even limit the influence of the substitute foreign jurists (amici). While the ‘Colombian model’ is unique and innovative, only practice will show whether the foreign jurists are mere advisors to the different JEP organs or if they will be able to play a more important and influential role by directly participating in the deliberation of the exclusively Colombian judges.

From foreign judges to amici curiae a la colombiana 

The role of foreign jurists in the JEP has been a controversial issue from the very start of the peace negotiations and the dispute continues until today. The first Peace Agreement envisaged a mixed SJP or JEP composed of Colombian as well as foreign judges, giving the Colombians a two thirds majority (see p. 170 of the first Peace Agreement). The participation of foreign jurists was especially demanded by the FARC-EP but also supported by the government, particularly stressing that the participation of foreign judges ensured the compatibility of the case law with the international standards, especially with regard to a possible ICC intervention. However, the foreign judges had to be substituted by foreign jurists (amici curiae) in the second Peace Agreement.

Generally, international courts’ or criminal tribunals’ chambers have a wide margin of discretion when deciding whether to invite an amicus curiae to present observations on a pending case. Moreover, the rules of procedure and evidence usually leave it to the discretion of the judges to decide how amici curiae shall present their observations and recommendations, be it orally or written (see Rules 103 RPE ICC, 67 RPE KSC, 74 RPE ICTY/ICTR, RPE 83 MICT, see also Art. 105 ICJ Rules, Rule 61 ECtHR Rules and Art. 44 IACtHR Rules of Procedure). In contrast, the Final Peace Agreement and the implementing legislation regulate the participation of foreign jurists as amici curiae – once they have been invited by a JEP-Chamber to participate in the proceedings – as follows:  

Whenever the intervention of foreign jurists is required, they will participate in the debates of the Section/ the Chamber in which their intervention would have been required, under the same conditions as the magistrates but without the right to vote. ((Final Peace Agreement, section 5.1.2., para 65, subsection 1 (p. 167)/ para 66, subsection 2 (p. 168) and Legislative Act No 1 of 4th April 2017, Art. 7, para 3, translation and underlining by the authors.)

Whereas amici curiae rarely appear in person before most courts or tribunals and instead submit written statements or recommendations (amicus curiae briefs), the Final Peace Agreement conveys the idea of a more dynamic participation in an oral and direct form, deliberating together with the actual judges. In a nutshell, accordingly, the amici have the right to discuss and deliberate, but no right to vote (not being judges). Thus, it is fair to say that the amici operate as a kind of expert witnesses but under the tight control and at the discretion of the Colombian judges.

Another interesting feature of the Colombian model has to do with the already explained selection of a fixed number of amici curiae by the Comité de Escogencia. Thus, while amici are normally not limited at the outset, not even to natural persons, the Colombian model opts for a roster of a limited number of amici, namely 14 in total (10 “titulares” and 4 “suplentes”) (see section 5.3., (p. 191-2) of the Final Peace Agreement), 6 (4 and 2) of which may appear before the Tribunal for Peace (Tribunal para la Paz) and 8 (6 and 2) before the various Justice Chambers (see also Art. 99 Proyecto de Ley Estatutaria 008 of 2017). This does not mean, however, that other interested parties, especially victims, are not allowed to participate in the proceedings; on the contrary, they have broad participation rights although they have, of course, not the same standing as the (pre-selected) amici.

Consultants or de facto judges?

Given these particularities of the ‘Colombian model’ the question arises whether there is anything at all left that it has in common with the traditional concept of amicus curiae before international tribunals. Arguably, the ‘Colombian amici’ are more than distant consultants or advisors, given that they may play a quasi-judicial role in the SJP. This argument does not only find support in the amici’s wide-ranging participatory rights and their ensuing ability to exert particular influence on the proceedings’ outcome but also in their selection which has been done – in the same was as that of the Colombian judges and other authorities – by the Comité de Escogencia (application via the Committee’s website, selection on the basis of written and publicly available information, possibility of comments by Colombian citizens or organizations, interview before the Comité); they also will be appointed by the President of the Republic (see section 5.1.2., para. 68 (p. 169) and section 5.3. (p. 191 s.) of the Final Peace Agreement; Art. 110 Proyecto de Ley Estatutaria 008 de 2017).

It is also striking that the regulations on the foreign amici are located right next to the provisions on the Colombian judges of the SJP. This is especially noticeable since it stands in clear contrast to the rules of procedure and evidence of other bodies that mention the intervention of amici curiae as a minor option at a much later point than the regulations on judges as the bodies’ central protagonists. This shows that the amici are being considered as an integral part of the SJP – just like the judges. This can be explained by the Final Peace Agreement’s genesis: As already mentioned above, the Final Agreement is the outcome of the revised first Agreement that originally envisaged foreign judges as members of the SJP. In order to accommodate the concerns of the domestic opposition with regard to a truly mixed national-international tribunal, the contentious parts of the original wording were changed – alas without carrying out substantive alterations or fundamental systematic changes. While the term ‘foreign judges’ (magistrados extranjeros) was entirely deleted in the Final Peace Agreement and instead replaced by ‘foreign jurists’ (juristas extranjeros) as amici curiae, the central relevant provisions remained at the same position. Although some details of the Final Peace Agreement’s new wording indicate reluctance to grant foreign jurists a major role in the proceedings (for example by inserting the word ‘exceptionally’, see section 5.1.2., para 65, subsection 2 (p. 167) and para 66, subsection 2 (p. 168)), an overall analysis of the Final Peace Agreement’s structure and wording confirms the view that the amici come closer to actual judges than to mere consultants.

Against this background, it is somewhat surprising that the Colombian Constitutional Court held in its already mentioned judgment on AL 01/2017 that the provisions concerning foreign jurists are:

‘contrary to the principles of autonomy, independence and impartiality that govern the administration of justice and to the guarantees that implement them, since it confers foreign jurists the competence of having an impact on the decision-making process of the JEP even though they are not responsible in any way of their decisions.’. (Constitutional Court, Communication of 14th November 2017 [summary of the judgment, the full written judgment is expected at the beginning of 2018], para 14 (p. 23), translation by the authors)  

As a consequence, the recent draft Statutory Law 008 of 2017, taking into account the Court’s position, is more restrictive with regard to the amici than the Final Peace Agreement and the Legislative Act No 1/17:

‘Foreign jurists ‘will act with the sole purpose of providing a concept or amicus curiae on the subject of the case under study. When the intervention of foreign jurists is required, they will participate in the corresponding processes in order to provide their expert opinions as amicus curiae.’ (Art. 99, Proyecto de Ley Estatutaria 008 of 2017, translation by the authors)          

As if this situation is not confusing enough, the Constitutional Court, complementing the statement quoted above, adds the following sentence (in the quoted summary of the judgment): ‘This does not, of course, go against their [the amicis’] participation in the corresponding processes in order to provide their expert opinions as amicus curiae’. Thus, it seems as if the Court wanted to reaffirm the active participation of the amici not limiting their intervention to the submission of written opinions. At any rate, it appears as if the Court wants to restrict the influence of the foreign jurists in the JEP-proceedings.

Ultimately, only practice will show to what extent the Colombian judges will rely on amici curiae, how their involvement is going to influence the JEP’s case law and whether the foreign jurists’ role in the proceedings will differ significantly from the originally intended function(s). Clearly, the actual involvement of the amici is in the hands of the Colombian judges since they have to invite them to participate in the first place. And even if this happens it will very much depend on the practicalities of this intervention and the personal relationship between the Colombian judges and the foreign amici whether the latter will play a quasi-judicial or a minor role.  

Announcements: CfS Max Planck Institute; Odysseus Academic Network Annual Conference; Economic and Social Rights Tools; International Investment Law and Constitutional Law Workshop; UN Audiovisual Library of International Law

Sun, 12/17/2017 - 11:30

1. Call for Submissions: Max Planck Institute for Comparative Public Law and International Law. The Max Planck Institute for Comparative Public Law and International Law invites the submission of proposals for a panel entitled “The Authoritarian Pushback and the Resilience of International Institutions” at the upcoming ICON Society annual conference in Hong Kong. More than a decade after the emergence of public law approaches to international institutions, such as Global Administrative Law, Global Constitutionalism, or International Public Authority, the international system has changed dramatically. The panel will address several research questions that emerge from this situation: How does the authoritarian, nationalist pushback change international institutions, including international courts, and how do these changes affect their problem-solving capacity? How does the authoritarian, nationalist pushback affect the legitimacy of international institutions, including international courts? How resilient are international institutions, including international courts, against the authoritarian, nationalist pushback, and which strategies do they adopt? Scholars of all levels are invited to submit proposals of up to 500 words by 20 January 2018 to ipa2018 {at} mpil(.)de var mailNode = document.getElementById('emob-vcn2018@zcvy.qr-60'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%70%61%32%30%31%38%40%6D%70%69%6C%2E%64%65"); tNode = document.createTextNode("ipa2018 {at} mpil(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vcn2018@zcvy.qr-60"); mailNode.parentNode.replaceChild(linkNode, mailNode); . Successful applicants will receive financial support for their travel expenses of up to 1000 euros.

2. Odysseus Academic Network Annual Conference. The Odysseus Academic Network is organising its annual Conference on 1 February 2018 in Brussels, under the title “Conflict and Compromises between Law and Politics in EU Migration and Asylum Policies”. This event is an opportunity for academics and policy makers to exchange views on the current developments in the field of EU migration and asylum law and policy and beyond. For further information on the Conference, see here.  

3. University of Nottingham and the Equality and Human Rights Commission Tools on Economic and Social Rights. Economic and social rights is a crucial area of human rights law that has long been relatively marginalised. This is despite the fact that the rights to  housing, work, an adequate standard of living, food, social security, education, water and the highest attainable standard of health are central to human survival and development. Responding to that gap, this ESRC IAA-funded collaboration between the University of Nottingham (led by Professor Aoife Nolan) and the Equality and Human Rights Commission of Great Britain has produced a set of publicly accessible, capacity-building tools and resources on economic and social rights. They are directed towards civil society, policymakers, academics and others with a background in human rights and an interest in learning more about economic and social rights. More information on the project, the videos and supporting materials (including lists of open access resources on ESR and video transcripts) are available here, while individual episodes can be linked to from here.

4. International Investment Law and Constitutional Law – Frankfurt Investment Law Workshop 2018. This Workshop is to be held at the Goethe University Frankfurt am Main in Germany on 9 and 10 March 2018. International investment law and constitutional law have, for a long time, kept maximum distance from each other. Unlike in respect of other areas of international law, constitutional courts and constitutional law scholars, in most jurisdictions, have largely ignored international investment law and its constitutional law implications. Similarly, international investment law and investor-state dispute settlement as a whole have not paid much heed to constitutional law and constitutional legal analysis. This mutual disciplinary ignorance is coming under increased pressure, as constitutional courts around the world are being called to address the constitutional limits of international investment law and investment dispute settlement. Similarly, investment tribunals increasingly face constitutional law arguments, and investment law scholarship promotes the use of constitutional legal analysis to step up to the challenges the field is facing as an instrument of global governance. This Workshop will explore the different facets of this increasing interaction and critically analyze the opportunities and challenges this interaction creates. Registration is by 20 February 2018. For further information, see here

5. New Additions to the UN Audiovisual Library of International Law. To commemorate International Human Rights Day and the upcoming 70th anniversary of the Universal Declaration of Human Rights, the Codification Division of the Office of Legal Affairs added a two-part interview with Judge Thomas Buergenthal by Professor Sean Murphy. In this interview, Judge Buergenthal shares some personal moments from his life as well as his extensive experience in international law and, in particular, his invaluable contribution to the development of international human rights law. All interested parties are invited to visit the United Nations Audiovisual Library of International Law to watch the interview.

The International Criminal Court Gets Jurisdiction Over the Crime of Aggression

Fri, 12/15/2017 - 07:45

The Assembly of States Parties to the Statute of the International Criminal Court has, overnight (New York time), adopted a resolution which activates the jurisdiction of the Court over the crime of aggression. This was the culmination of intense negotiations at the ICC’s 16th ASP which has been meeting in New York over the past 2 weeks. Indeed, activation of the crime of aggression today brings to a close negotiations which have taken place over decades regarding the jurisdiction of the Court over that crime. States Parties agreed in Rome in 1998 to include the crime of aggression in the ICC Statute but suspended ICC jurisdiction over the crime until they could agree on a definition and conditions for the exercise of jurisdiction. This they did at the Kampala Review Conference in 2010 but again agreed to suspend jurisdiction over the crime until at least 30 States had ratified or accepted the amendments, and until a decision of the ASP to activate jurisdiction with that decision not to take place before 1 January 2017. So, activation of jurisdiction was the final step in a long journey and it was this momentous step taken by the ASP overnight.  The text of the resolution adopted, by consensus, is available here. By paragraph 1, the ASP

“Decides to activate the Court’s jurisdiction over the crime of aggression as of 17 July 2018.”

This means the Court will be able to exercise jurisdiction over aggression 20 years, to the day, after the adoption of the ICC Statute in Rome in 1998.

The key issue that divided the parties leading up to the ASP and was whether the Court would be able to exercise jurisdiction with respect to the crime of aggression over the nationals of states parties to the Statute who have not ratified the aggression amendments and who also do not opt out. Many states, led by Liechtenstein, had taken the view that nationals of such states would be subject to the Court’s jurisdiction if they committed the crime of aggression on the territory of a state party that had ratified or accepted the Kampala Amendments (the wide view). However, another group of states, led by the UK, France, Japan, Canada, Norway, Colombia had taken a narrow view. They argued that in the case of state referrals or proprio motu investigations the Court would not have jurisdiction over aggression committed by nationals of non-ratifying states or on their territory. The competing arguments on this question were set out in previous posts by me (arguing for the narrow view) and by Stefan Bariga (arguing for the wide view). Ultimately, after very fraught negotiations on this issue, which extended well into the night and beyond the original time scheduled for completion of the ASP, the ASP adopted a resolution confirming the narrow view. In paragraph 2 of the resolution, the ASP

“2. Confirms that, in accordance with the Rome Statute, the amendments to the Statute regarding the crime of aggression adopted at the Kampala Review Conference enter into force for those States Parties which have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments;”

There will be scope for further analysis of this paragraph later but it seems to me that this paragraph at least amounts to a subsequent agreement of the parties to the Rome Statute (under Art. 31(3)a of the Vienna Convention on the Law of Treaties) regarding the interpretation of the relevant provision of the Rome Statute (Art. 121(5)) and how it should be applied. Thus, it would seem that the Court is bound to take it into account in interpreting the Rome Statute and consequently the Kampala Amendments. However, a further paragraph was added to the resolution by which the ASP

“3. Reaffirms paragraph 1 of article 40 and paragraph 1 of article 119″

Those paragraphs relate to the independence of the Court and its ability of the Court to settle disputes concerning the judicial functions of the Court. It seems to me that the intent  of those who pushed for the addition of paragraph 3 to the ASP resolution was to try to leave some scope for the Court for the decide on the key contentious questions in a way that might be contrary to the ASP decision. Ultimately, of course, the decision on the question is for the Court and nothing could have changed that. However, the Court is bound to decide on the basis of interpretation of the relevant treaty texts and in so doing must follow the applicable principles of treaty interpretation under the Vienna Convention and under customary international law. Those applicable principles do mean in interpreting what states parties to a treaty have agreed to in the treaty, the agreement of those states parties as to what they have agreed should be decisive. In the case of this particular agreement in paragraph 2 of the resolution, the process of agreement was contentious and the parties fought to the bitter end as to what should be the correct position. There can be no doubt that the agreement was reluctant on the part of many states, but ultimately agreement there has been as to what the relevant provisions of the Rome Statute mean for the jurisdiction of the Court over the crime of aggression.

 

Understanding the Use of Zones and the Concept of Proportionality: Enduring Lessons from the Falklands War

Wed, 12/13/2017 - 09:00

On 2 April 1982 Argentina invaded the Falkland Islands (alternatively, the Islas Malvinas). The resulting conflict lasted 74 days and claimed the lives of 255 UK military personnel and 652 Argentine servicemen. The conflict raises a myriad of legal issues but at its core is the issue of sovereignty (here). However complicated the issue, disputes over sovereignty did not legally authorise the Argentine invasion (see UNSCR). This post will not go over the vexed issue of sovereignty but will instead focus on two select issues relating to the conduct of hostilities. The Falklands War has largely receded from thought but lingering doubts over the legality of a Total Exclusion Zone (TEZ) established by the UK and its torpedoing of the Belgrano endure. By focusing on the issue of zones and the concept of proportionality this post will seek to provide clarity to two often misunderstood areas of law that are of vital importance to contemporary military operations.

The UK Total Exclusion Zone

A few days after the Argentinian invasion the UK issued a notice indicating that, from 12 April 1982, a Maritime Exclusion Zone (MEZ) would be in force, extending 200 nautical miles from the centre of the Falklands. On 28 April, the UK declared a TEZ that encompassed the same geographical area as the MEZ but was broader in scope regarding ratione personae.  In essence, the TEZ stated that any ship or aircraft entering the TEZ that was not authorised to be there by the UK Ministry of Defence was deemed to be operating in support of the occupation, regarded as hostile, and therefore liable to attack.

As the UK Manual on the Law of Armed Conflict (the UK Manual), the San Remo Manual on Armed Conflicts at Sea (the San Remo Manual) and Helsinki Principles on the Law of Maritime Neutrality all set out, the establishment of exclusion zones is permitted. However, these authorities also make clear that the same body of law applies both inside and outside the zone. That being the case, the UK would still need to do everything reasonably practicable to verify that any entrant to the TEZ was a valid military objective. It is therefore problematic that the wording of the TEZ can be read as indicating a ‘free-fire zone’ was in place. Indeed, based on Nuremberg Tribunal jurisprudence and custom, Wolff Heintschel von Heinegg has suggested that “the legality of the TEZ or of attacks therein was more than questionable”. This highlights two points that need separating: (a) the legality of any attacks that took place within the TEZ; and (b) whether the mere announcement of an exclusion zone may of itself amount to an internationally wrongful act.

Attacks within the TEZ were, crucially, only on military objectives. UK forces avoided attacking any neutral ships or aircraft. Moreover, unauthorised Argentinian merchant craft were merely compelled to leave the TEZ after being ‘circled’ or ‘buzzed’ by UK military aircraft (as acknowledged by the Permanent Representative of Argentina to the UN at the time). An Argentine fishing trawler, the Narwal, was attacked by UK forces but on the basis it was regularly engaged in reporting the location of Royal Navy warships and carried an Argentine Navy detachment. Therefore, having reviewed what targeting activity actually occurred within the TEZ, UK forces did comply with the principle of distinction.

In terms of whether the mere announcement of the TEZ was unlawful, I will assume that the use of the phrase “liable to attack” is approximate to “will be attacked” (an interpretation not supported in light of UK practice). In contrast to the jus ad bellum, LOAC does not generally prohibit threats of force and where it does these provisions are inapposite regarding the TEZ (e.g. Arts 40 and 51(2) of Additional Protocol I of 1977 (API)). Moreover, presupposing LOAC is concerned with mental harm, any threat of violence within the TEZ was not aimed at a particular individual. Accordingly, as Sivakumaran has noted, any threat is one step removed and would unlikely amount to violence to mental well-being.

Finally, it is generally recognised that exclusion zones must meet certain conditions to be valid. The UK Manual (para 13.78) and San Remo Manual (rule 106) set out the same conditions for the establishment of a permissible zone. In its Commentary the San Remo Manual indicates the TEZ met these conditions. This view is supported by W J Fenrick, based on the remote geographical location of the Falklands. That only the former USSR objected to the establishment of the TEZ is significant.

The Concept of Proportionality: Targeting the Belgrano

The Belgrano was an Argentinean cruiser carrying more than 1,000 military personnel and escorted by 2 destroyers when, located 35 miles outside the TEZ and apparently sailing away from the British fleet, it was torpedoed by HMS Conqueror. The decision to sink the Belgrano became a political issue in the UK due to the Secretary of State for Defence, John Nott, originally announcing the Belgrano was “closing on elements of our task force”. Focusing instead on the legal issue, analysis of the decision to target the Belgrano often centres on ‘proportionality’. From the outset it is, therefore, important to distinguish between three different conceptions of proportionality applicable to warfare.

First, it is universally accepted that a State’s right to use force in self-defence is limited to acts that are necessary and proportionate to the threat faced. This is the jus ad bellum requirement of proportionality. Second, LOAC stipulates that an attack against a military objective may not proceed if it is expected to cause incidental loss of civilian life or damage to civilian property which would be excessive in relation to the concrete and direct military advantage anticipated. This is the rule of proportionality under the jus in bello. Third, the dominant intellectual tradition of thought on the morality of war (i.e. the Just War Tradition) includes the criterion of proportionality when looking at both ‘just recourse’ and ‘just conduct’. As the Department of Defense Law of War Manual highlights, the Just War Tradition provides part of the philosophical foundation for LOAC. However, this article will focus on the sinking of the Belgrano as judged against the jus ad bellum and jus in bello.

Proportionality in LOAC 

The rule of proportionality is codified in Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b) of API.  As Aurel Sari and I argue in greater detail in a forthcoming publication, the protective scope of this rule is strictly confined to civilians. This means there was no violation of the jus in bello rule of proportionality in the targeting of the Belgrano. That rule simply does not apply to attacks that only effect combatants or military objects. Ryan Goodman has suggested that the principle of “least-restrictive-means” demands that a belligerent must employ only such degree of violence against enemy combatants as is necessary and proportionate to accomplishing a military objective (here). If correct this would require an assessment of the proportionality of the harm that befell the sailors on board the Belgrano. Goodman’s argument has been criticised elsewhere (here and here). For our purposes it is sufficient to maintain that Goodman’s argument, with all that it entails for conducting military operations, finds no support in State practice.

Jus ad Bellum and Proportionality

The Belgrano was targeted a month after the Falklands had been forcibly invaded. It is incontrovertible that an international armed conflict was in existence and that the UK was exercising its inherent right of self-defence. Indeed, the UK’s actions in recovering the Falklands shows such a right is not placed in abeyance merely because the Security Council has passed a resolution calling for one of the parties to the conflict to withdraw. Some commentators argue that once an armed conflict exists the only question to be asked under the jus ad bellum is who started the conflict (here). In other words, proportionality is irrelevant once hostilities are under way. Most commentators appear to disagree with this view (e.g. here, here and here) and, significantly, this is at odds with the position in the UK Manual (para 2.8). It is relevant, therefore, to ask whether the torpedoing of the Belgrano was a proportionate act under the jus ad bellum.

Proportionality allows an injured State to do what is reasonably necessary to deal with the threat it is facing. In terms of the threat facing the British fleet, UK signals intelligence intercepted a communication prior to the torpedoing of the Belgrano that confirmed it was to rendezvous with other vessels back inside the TEZ in order to engage in a pincer attack (here). Moreover, far from retreating from the Royal Navy, the Captain of the Belgrano confirmed any change of direction was a temporary manoeuvre and that he had been commanded to attack the British fleet wherever he encountered it (here and here). The threat posed by the Belgrano meant its targeting was necessary and proportionate despite it being positioned just outside the TEZ. To say otherwise would see the jus ad bellum imbued with a quixotic understanding that is at odds with military realities.

Enduring Legal Lessons

It is paramount that an otherwise protected vessel or aircraft does not lose protection by merely crossing an imaginary line drawn in the ocean or adjacent airspace. This lesson is as relevant to defensive zones in times of heightened tension as exclusion zones during conflict. In contemporary practice, Air Defence Identification Zones (ADIZs) are frequently employed by States. An ADIZ is, essentially, non-territorial airspace unilaterally designated for the purpose of aircraft identification. In 2013, China unilaterally established an ADIZ over the East China Sea (here). China’s establishment of an ADIZ in international airspace is not of itself illegal. However, the manner in which Beijing made its announcement is problematic: “China’s armed forces will adopt defensive emergency measures to respond to aircraft that do not cooperate in the identification or refuse to follow the instructions.” China has not explained what these measures might involve but, crucially, has not executed any measures to date (here). Parallels can therefore be drawn with the TEZ in that the practical implementation of the declared zone has not given rise to an unlawful use of force. This explains why debate over the ADIZ has focused on the legality of specific characteristics of the zone (here, here and here).

China has threatened to declare an ADIZ over disputed territory in the South China Sea following the PCA decision there is no legal basis for China’s ‘nine-dash line’. In such circumstances,  a clear understanding of what zones allow and do not allow regarding enforcement measures remains vital. As asserted in the Memorial submitted by the UK to the ICJ in proceedings concerning the Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria), “the use of armed force against foreign ships or aircraft is not justified in international law unless it is used in the legitimate exercise of the right of self-defence”. To be legitimate any such force would need to be both necessary and proportionate.

As has been demonstrated, the concept of proportionality is a fundamental limitation of the use of force in both the jus as bellum and jus in bello. A proper understanding of its requirements is also crucial in light of a trend of misapplying the concept when formulating accusations of illegality regarding military operations. For example, in 2012 then Argentinian president Cristina Fernández de Kirchner claimed the decision to sink the Belgrano was a “war crime” (here). Having set out what the concept of proportionality encompasses, this claim does not withstand scrutiny.

The author is a serving member of the Royal Air Force Legal Branch. The views expressed in this article are those of the author alone and not those of the RAF, the UK Ministry of Defence or the UK Government.

UNCITRAL and ISDS Reform: Pluralism and the Plurilateral Investment Court

Tue, 12/12/2017 - 10:00

As described in a previous post, the UNCITRAL mandate on the possible reform of investor-state dispute settlement (ISDS) requires states to first identify and consider concerns regarding ISDS before going on to consider and develop any relevant reforms. Although states in the November 2017 session did not debate potential reforms, different solutions lurked in the room like elephants, often seeming to inform the positions taken by various delegations on whether particular issues (such as inconsistency) amounted to “problems.”

In particular, a division appeared to be evident between some states that seem inclined (at least presently) toward incremental, bilateral reforms (such as the US and Japan) and others that openly embrace systemic, multilateral reform (such as the EU and Canada). This positioning reflects broader dynamics about debates over ISDS reforms, in which the issue is often framed as a comparison of the relative merits of investor-state arbitration and a multilateral investment court with states staking out positions as loyalists or reformists respectively.

This dichotomy is false and unhelpful, however, because it presents ISDS reforms as requiring a binary choice. To start with, these are not the only choices. In addition to states that favour incremental and systemic reforms of the existing system, there are states that reject the need for international claims by investors at all. These revolutionaries include Brazil, which has embraced an Ombudsman model followed by state-to-state dispute settlement, and South Africa, which has opted primarily for protection via national legislation and courts.

However, the problem of framing runs deeper. Even working within the reformist spectrum, the investor-state arbitration versus a multilateral investment court formulation is problematic. Instead of being a dichotomous choice, the international system is much more likely to end up with a plural solution in which both models, and possibly others, exist. Given this, it makes sense for states to think about how they can develop an effective suite of incremental and systemic reform options that they can pursue both bilaterally and multilaterally, in UNCITRAL and elsewhere.

Beyond a False Dichotomy

The dichotomy of investor-state arbitration versus a multilateral investment court is false for two reasons.

First, although multilateral in ambition and design, any international investment court would inevitably be far from universal in its membership. It would begin as something more like a “Plurilateral Investment Court” that would be characterised by a more limited number of treaty parties with the hope that its membership would grow over time. Of course, this is not uncommon for treaties. Many treaties, such as the New York and Washington Conventions, begin with relatively small numbers that grow over several decades. Other courts like the International Criminal Court also have limited membership. But some limping treaties start, and remain, small in terms of signatories, never really getting off the ground.

The membership of a Plurilateral Investment Court would likely begin with the EU along with states that are negotiating Free Trade Agreements (FTAs) with the EU that are persuaded to adopt a court model. Canada and Singapore accepted a court model in their EU FTAs, whereas Japan and the EU have been unable to reach agreement yet on whether to include a court or arbitration in their agreement. For many negotiating partners, accepting a court may make sense as part of a broader deal to secure an EU FTA and, if so, accepting a plurilateral court would be more cost-effective and efficient than establishing a bilateral one. The EU also wants to make the court applicable to the existing BITs of its Member States, which amount to a significant percentage of all current BITs, though jurisdiction over a particular treaty would depend on the consent of the other treaty partner. (For the EU’s negotiating directives with respect to a multilateral investment court, see here.)

How the numbers develop will depend on many things. One is whether some of the EU’s negotiating partners become converts, such as Canada which is now proposing the court model in other negotiations like NAFTA. Another is whether other states become early adopters, even without an EU FTA, because of a desire for systemic reform and/or due to bad experiences with investor-state arbitration. Given the growing domestic pushback against the legitimacy of ISDS in a number of states, a number of states could fall into this category. For states like Argentina that have suffered inconsistent awards, a systemic approach is likely to be attractive. Other states may hang back to see how such a Court develops, joining later if they become comfortable with its composition and rulings, and remaining on the side-lines if not.

Second, even if established, such a Court would be plural for another reason: it would be likely to exist alongside investor-state arbitration either indefinitely or for a long time to come. That is partly because some states are (at least currently) committed to the existing system, so they are unlikely to depart from it in their own practice. Japan and Chile are examples of this, both of which championed investor-state arbitration in TPP-11. The United States has long been a supporter of investor-state arbitration, though its current position in the new Trump era and in the NAFTA renegotiations is harder to discern. Yet even if the United States might one day walk away from fully supporting investor-state arbitration, it is hard to imagine it ever walking toward an investment court.

Other states may be less committed to investor-state arbitration, but are likely to continue to embrace it in at least some of their treaty practice given their position as rule-takers rather than rule-makers. Smaller states that either have existing agreements, or wish to enter into new agreements, with both reformists (like the EU) and loyalists (like the US and Japan) are likely to have to accept pluralism in their practice, with arbitration under some agreements and a court-model under others. It is conceivable (though perhaps less likely) that some states might provide for both a court and arbitration as options in a single treaty, giving investors the power of election. Arbitration will also remain the default choice under thousands of existing treaties, maintaining a reasonable level of strength through the power of inertia.

As a result, the investment treaty system is unlikely to face a choice between investor-state arbitration or a multilateral investment court. States will not all fly in one direction nor will they change course in unison. Instead, the system is likely to be marked by the co-existence of investor-state arbitration and an international investment court, leading to pluralism rather than a dichotomous either/or choice or a clear before-and-after moment.

Embracing Incremental and Systemic Reform

Given the diversity of views of ISDS reform, and the likely reality of pluralism for many decades to come, it makes sense for states and institutions like ICSID, the OECD, UNCTAD and UNCITRAL to be looking at identifying and developing a range of incremental and systemic ISDS reform options. Some of these reforms might be best pursued bilaterally and others multilaterally. Some might be more suited to the UNCITRAL process and others less so. States are yet to make those decisions, but framing the options through the lens of pluralism is helpful in identifying the spectrum of reform options and the range of fora that might be involved.

At one end of the spectrum, states could look at options for incremental reform of investor-state arbitration. Many newer treaties, like TPP-11, include reforms designed to improve investor-state arbitration, such as a code of conduct for arbitrators, an early dismissal procedure and mechanisms for joint interpretations. While these best practices may be helpful with respect to newer-style treaties, the question remains what to do with the thousands of existing older-style treaties that do not include such provisions. One question is whether it would be possible to adopt an opt-in multilateral treaty that applies retrospectively to existing treaties, as UNCITRAL did for the Mauritius Convention on Transparency. Other options are also being pursued. For instance, the IBA has adopted guidelines on conflicts of interest and ICSID is currently undertaking another round of reforming its rules.

At the other end of the spectrum, states could draft a treaty to establish an investment court with a built-in appellate review mechanism. This would be the most ambitious reform proposal, requiring the most work and the longest lead time. Given that some states might be open to appellate review without wanting to sign up to an investment court, it would be a good idea for such a model to delink the underlying court and the appellate review. This would allow for some states to accept the Investment Court plus an Appellate Body, while other states accept investor-state arbitration plus the Appellate Body. Such flexibility would increase the potential reach of such an institution, though it would also add to the system’s pluralism.

In between, states could pursue a variety of creative options that fall between the extremes of largely tweaking with the existing system and totally transforming it. These could include: (1) creating an Appellate Body, without creating an investment court, which would be superimposed on top of the existing system of investor-state arbitration; (2) creating an investment court without including appellate review; and (3) establishing rosters of arbitrators selected by states from which disputing parties could select their particular arbitrators. The court- and appellate-models, along with a number of other reform options like rosters, are canvassed in the excellent first and supplemental CIDS reports.

Examining a suite of incremental and systemic reforms makes sense not only because it suits the current political climate, but also because these options run on different time lines and may be pursued in different ways (eg bilaterally or multilaterally) and in different fora (eg ICSID, the OECD or UNCTAD). Incremental reforms could prove to be early wins while establishing systemic reforms like a court or appellate body will take more time. That is not to say that incremental reforms should be pursued first and systemic reforms should be pursued later as that would just play into the hands of those states that don’t want to see systemic reform. Rather it is simply a recognition that different reform options are likely to have different gestation periods even if conceived at the same time.

It is also worth recognising the potentially dynamic interaction among different reform options. For instance, many proponents of the existing system of investor-state arbitration are not keen to see change. However, if they believe that the investment court option is gaining steam or that states are at real risk of revolting against ISDS, they will have additional incentives to invest in incremental reforms to see if those changes would be sufficient to head off criticisms of the system. On the flipside, if incremental reforms turn out to do little if anything to appease underlying legitimacy concerns about the system, the case for systemic reform or revolution will only increase.

One of the questions that states in the UNCITRAL process will need to face is which of the many potential reform options are best pursued bilaterally or outside UNCITRAL (for instance, through the ICSID reform process or through UNCTAD’s current work on reforming existing BITs) and which lend themselves to multilateral reform and the UNCITRAL process. Part of the issue here is one of bandwidth: states will only have a certain amount of time and energy available to focus on multilateral reforms (and, indeed, reforms more generally), so they will need to choose how to spend their UNCITRAL time wisely. It is premature to seek to answer these questions, but recognising the system’s pluralism is the first step toward thinking about how to tackle the difficult and politically charged issue of ISDS reform, both inside and outside of UNCITRAL.

UNCITRAL and ISDS Reform: Not Business as Usual

Mon, 12/11/2017 - 10:00

In late November 2017, states from around the world convened in Working Group III at UNCITRAL in Vienna to begin debates about the possible reform of investor-state dispute settlement (ISDS). In accordance with the UNCITRAL mandate (see  Annotated Provisional Agenda) that was given in July 2017:

The Working Group would proceed to: (i) first, identify and consider concerns regarding ISDS; (ii) second, consider whether reform was desirable in light of any identified concerns; and (iii) third, if the Working Group were to conclude that reform was desirable, develop any relevant solutions to be recommended to the Commission.

I attended the Working Group III meetings as an independent legal expert on the Australian delegation, though anything I write is attributable to me personally not Australia. Given the potential importance of these reform efforts, and the public interest in them, this post marks the first in a series that seeks to explain and contextualise the UNCITRAL ISDS reform process. These posts are consistent with the mandate’s call for the process to be “fully transparent” (see  Annotated Provisional Agenda). Recordings of the session are also available online.

The UNCITRAL debates on ISDS reforms are highly political. On an international level, states have split on whether to embrace ISDS and, if so, whether international claims by investors would be better heard by ad hoc arbitral bodies or a permanent investment court. On a domestic level, ISDS has proved highly controversial in a number of states, resulting in strong pushback. Dealing with such a highly charged issue is certainly not “business as usual” for UNCITRAL. This was evident in the November meetings in two key ways.

First, in terms of representation, this Working Group was not “business as usual” because it was much more government-led than is typical of UNCITRAL Working Groups.

The Working Group’s mandate took pains to specify that the process would be “government-led with high-level input from all governments.” This language was intended to send a message to states that they should send government officials to participate in the Working Group. This call was important because UNCITRAL Working Group II, which deals with arbitration, often covers relatively apolitical, technical issues, like developing model rules, so many states have been content to delegate their representation in whole or in part to arbitration practitioners.

One of the concerns about these debates going forward at UNCITRAL was that having states represented by arbitration practitioners was inappropriate when dealing with a mandate about ISDS reforms. The worry was that arbitration practitioners would attempt to stall, thwart or water down any reform attempts on the basis that they have a vested financial interest in maintaining the status quo. From this perspective, putting UNCITRAL in charge of ISDS reform was likened by some to putting the fox in charge of the henhouse.

But some careful manoeuvring and clear messaging seems to have avoided that concern, at least for now. In terms of manoeuvring, the mandate was given to Working Group III, which was just finishing work on online dispute resolution, rather than Working Group II, which typically deals with arbitration issues. This meant that, instead of having to oust arbitration practitioners from existing representations, states typically enjoyed a clean slate when deciding who should represent them in this particular Working Group.

Responding to the messaging, it was clear that many states not only sent government representatives, but a significant number sent government lawyers with particular expertise in investment law and policy issues rather than representatives from their embassies in Vienna. The composition of Working Group II working on transparency and the Mauritius Convention already differed to some extent from the normal Working Group II crowd, but this Working Group III session took this trend one step further toward a “government as usual” model.

Second, in terms of how the meeting proceeded, this Working Group was definitely not “business as usual” because it started out with a vote instead of conforming to UNCITRAL’s typical approach of working by consensus. In the whole history of UNCITRAL, only one issue had ever been put to the vote and that was the decision on whether to move the headquarters of UNCITRAL to Vienna. The premium placed on consensus meant that voting enjoyed somewhat of a mystical taboo. That was, at least, until this meeting when the spell was broken for a second time.

In this case, the Working Group did not start its substantive deliberations for a day and a half because states had not informally agreed upon a Chair prior to the meeting beginning. Normally, one would expect an UNCITRAL Working Group Chair to have been agreed upon ahead of the meeting, such that someone would have been elected by consensus on the first morning. However, the reform efforts are such a highly charged political issue that this question had to be left for resolution at the meeting after discussion during plenary sessions and multiple consultation breaks.

There are no formal criteria for the position of Chair, which left different delegations to formulate different criteria in order to suit their preferred candidate. For a good discussion of the issue, see IAReporter. In the end, there was no way to bridge the divide and a vote was called, resulting in the election of Shane Spelliscy from Canada. Spelliscy has excellent and well-rounded ISDS experience having worked for many years in both government and private practice, and he conducted the meeting very effectively. However, the fact that the issue had to be put to the vote is a sign of how contentious these reform processes are likely to be.

In this way, these debates are different to both most UNCITRAL Working Groups and other fora currently dealing with investment treaty issues. UNCTAD and the OECD also deal with investment treaty issues, but they are currently places in which states come to learn and exchange views/experiences. These UNCITRAL debates are different because there is the potential for them to lead to some sort of multilateral statement about problems with ISDS and recommendations for reform. This raises the stakes for states significantly, particularly when coupled with transparency, which helps to explain the level of politicking and posturing.

However, the fact that a vote happened is probably a good sign for the process going forward. Given the divisions involved in ISDS reforms, it would be surprising if an issue like this could proceed to any meaningful outcome on a fully consensus-based model. Voting is common practice in other UN bodies, like the General Assembly. Current developments at the WTO show the dangers of entrenching a consensus-based approach. Having broken the no-voting spell, the Working Group can now get on with forging a consensus where possible, safe in the knowledge that they can vote where that is not possible.

This Working Group may not have proceeded on a “business as usual” basis, but that is because it is considering whether the “business as usual” approach to ISDS should be reformed. This is an important issue and one that states and observers should make it their business to follow closely.

Announcements: UN Audiovisual Library of International Law; CfP International Law and Human Rights Unit Conference; Seventh Annual Junior Faculty Forum for International Law

Sun, 12/10/2017 - 10:00

1. New Additions to the UN Audiovisual Library of International Law. To commemorate International Human Rights Day and the upcoming 70th anniversary of the Universal Declaration of Human Rights, the Codification Division of the Office of Legal Affairs added a two-part interview with Judge Thomas Buergenthal by Professor Sean Murphy. In this interview, Judge Buergenthal shares some personal moments from his life as well as his extensive experience in international law and, in particular, his invaluable contribution to the development of international human rights law. All interested parties are invited to visit the United Nations Audiovisual Library of International Law to watch the interview, which will not only educate but inspire present and future generations of lawyers around the world.

2. Call for Papers: The International Law and Human Rights Unit Conference. The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, welcomes paper, poster and ‘soapbox’ proposals for its Second Postgraduate Conference in International Law and Human Rights. The conference will take place on 26-27 March 2018. The theme of the conference is: ‘The Notion of Change in International Law and Human Rights’. The conference theme should be broadly conceived, and we encourage proposals from any postgraduate student specialising in international law, human rights or related subjects. The conference offers a unique opportunity for postgraduate/doctoral students to present and discuss their work in a stimulating and friendly academic environment, among peers with similar research interests. Abstracts of no more than 300 words can be sent to ilhrucon {at} liverpool.ac(.)uk var mailNode = document.getElementById('emob-vyuehpba@yvirecbby.np.hx-67'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%6C%68%72%75%63%6F%6E%40%6C%69%76%65%72%70%6F%6F%6C%2E%61%63%2E%75%6B"); tNode = document.createTextNode("ilhrucon {at} liverpool.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vyuehpba@yvirecbby.np.hx-67"); mailNode.parentNode.replaceChild(linkNode, mailNode); , along with a short biography (100 words). The deadline for submissions is 12 January 2018. Please see here for more information about the conference theme and call for papers. 

3. Deadline for Applications for Seventh Annual Junior Faculty Forum for International Law. Applications for the Seventh Annual Junior Faculty Forum for International Law are due on 15 December 2017. The Forum will be convened by Anne Orford (Law – Melbourne), Dino Kritsiotis (Law – Nottingham) and J.H.H. Weiler (Law – NYU) and will be held at the University of Melbourne in May next year (28 – 30 May 2018). Full details of the application process are available on the Forum website. Applications are welcome!  

New EJIL: Live! Interview with Merris Amos on her Article “The Value of the European Court of Human Rights to the United Kingdom”

Thu, 12/07/2017 - 13:40

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Merris Amos of Queen Mary University of London, whose article “The Value of the European Court of Human Rights to the United Kingdom” appears as the first piece in the “Focus” section on Human Rights and the ECHR in issue 3 of volume 28 of the Journal.

Professor Amos takes up the challenge of articulating the value that the ECtHR adds to the objective of protecting human rights. Moving the focus from legitimacy, Professor Amos presents three different levels where the ECtHR adds value: individual, global and national. This serves as a framework for the discussion on the rise of negative sentiment towards the Council of Europe in the United Kingdom and introduces—as well as debating—the three levels of value added to the United Kingdom by the ECtHR. This conversation accompanies and expands on the article, including conjectures about the future of the European Convention on Human Rights in the United Kingdom.

Brexit and the Transatlantic Trouble of Counting Treaties

Wed, 12/06/2017 - 08:30

As pointed out by the Financial Times (FT), the UK’s withdrawal from the EU will require the renegotiation of more than 700 international agreements from which the UK currently benefits by virtue of its EU membership. Given the political and economic importance of transatlantic relations for both the UK and EU, the United States is arguably a good place to start when it comes to gaining a deeper understanding of the challenge at hand. As this post argues, before reaching the substantive questions surrounding the new agreements, even determining the number of treaties that may need to be replaced with new U.S.-UK ones is not a straightforward task.

In an address of November 28, 2017, Secretary of State Tillerson urged both sides to move the withdrawal process “forward swiftly and without unnecessary acrimony” and offered “an impartial hand of friendship to both parties”. Meanwhile, the Brexit negotiations are nearing a crucial point in mid-December, when it will be determined whether “sufficient progress” has been achieved for the two sides to start looking to the future—with each other and with strategic partners such as the U.S.

In determining the UK’s post-Brexit “special relationship” with the U.S., some preliminary discussions are already underway. However, the UK will be free to conduct fully-fledged negotiations only once it ceases to be an EU member. In anticipation of the many legal and political questions that these negotiations will raise, a preliminary—seemingly simple—matter would be to establish what the actual treaty relations between the U.S. and EU are. Three comprehensive and authoritative sources can be drawn upon to this end: The U.S. State Department’s Treaties in Force 2017, the EU’s Treaty Office Database, and the FT’s Brexit treaty renegotiation checklist. The only problem is, they do not match up. According to the State Department, there are 31 bilateral treaties in force between the EU and U.S., according to the EU’s Treaty Office, the number is 52, and according to the FT, it is 37. Hence, establishing the extent and content of legal relations affected by Brexit amounts in the first place to an empirical challenge.

In an effort to better understand this challenge, this post will first explain the reasons for (most of) these discrepancies, and subsequently offer its own assessment of the number of treaties. Before doing so, it should be stressed that this analysis focusses on bilateral international agreements only, i.e., agreements between the U.S. and the EU, either with or without the EU’s Members States alongside it. Agreements including additional parties would be categorized as multilateral agreements, of which there is also a significant number involving both the EU and U.S. and which raise additional difficulties, as illustrated recently in the dispute over the post-Brexit splitting of tariff rate quotas at the WTO. Moreover, the analysis focusses on treaties in force, thus excluding treaties pending ratification or those which are being provisionally applied (such as the 2007 Open Skies Agreement). As a final caveat, this post does not delve into any of the many administrative agreements concluded directly between U.S. and EU agencies (see for a useful overview the table compiled by Peter Chase in Daniel Hamilton and Jacques Pelkmans (eds.), Rule-Makers or Rule-Takers: Exploring the Transatlantic Trade and Investment Partnership (2015), pp. 55-60). What this post seeks to show is that even a single bilateral treaty relationship is challenging enough to grasp.

The divergence of the numbers of treaties is due to three main methodological differences: Timing, counting of extensions and amendments, and definition of a “treaty”. In terms of timing, the difference between the U.S. State Department and the EU Treaty Office is the following: Treaties in Force lists all treaties the U.S. considers to be in force at a particular point in time. In the current edition, this is January 1, 2017. Moreover, it includes only those treaties that “had not expired by their own terms, been denounced by the parties, replaced or superseded by other agreements, or otherwise definitely terminated” (p. i) by the critical date. By contrast, the EU Treaty Office provides a qualifier in the “advanced search” mode to show only treaties that have “entered into force”. This has two consequences. On the one hand, the U.S. list will not show agreements that have entered into force after January 1, 2017. Hence, the Agreement between the U.S. and EU on the protection of personal information relating to the prevention, investigation, detection, and prosecution of criminal offences, which entered into force on February 1, 2017, is absent from Treaties in Force 2017. On the other hand, the EU Treaty Office lists all agreements that entered into force at some point in the past, including those that are no longer in force. This concerns six agreements of the 52 listed by the EU, including the 2004 Agreement on the processing and transfer of PNR data by air carriers, which was superseded by a later agreement from 2011.

In terms of counting extensions and amendments of pre-existing agreements, the State Department opts for a more compact approach. It lists the main agreement, and mentions amendments and extensions as additional information for the same entry. The EU Treaty Office, by contrast, counts amendments and extensions as separate agreements. For example, the EU-U.S. Agreement for scientific and technological cooperation from 1997, which was extended and amended in 2009, is counted as one by the Americans and as two by the Europeans. From the point of view of the international law of treaties (see Art. 39 VCLT), the latter approach is technically correct. However, it terms of drawing up lists for post-Brexit renegotiation purposes, there is something to be said for the U.S. approach of counting “consolidated” versions of agreements as currently in force.

Thirdly, the most important difference in terms of numbers relates to counting “softer” agreements, such as exchanges of letters and memoranda of understanding. However, this cannot be explained by a more generous versus a more restrictive interpretation of what counts as a treaty. Treaties in Force notes that it “uses the term ‘treaty’ in the generic sense as defined in the Vienna Convention on the Law of Treaties”, rather than “as a matter of U.S. constitutional law” (p. i). Hence, executive and executive-congressional agreements are not excluded. Beyond that, it is not clear which criteria are applied. For instance, the EU lists a 2005 Exchange of letters relating to the method of calculation of applied duties for husked rice, while the U.S. does not. By contrast, the U.S. includes a 2009 Memorandum of understanding regarding the importation of beef from animals not treated with certain growth-promoting hormones, while the EU does not. Each side includes about half a dozen of such “soft” agreements in its list that the other does not, with no legal reason readily apparent.

Regarding the FT’s database and its listing of 37 U.S.-EU bilateral agreements, in addition to the issues mentioned above, additional factors are at play. While excluding expired and superseded treaties, it also excludes those that the FT considers of “little or no relevance to the UK after Brexit”, but includes ten EU implementing decisions/regulations. The authors justify this by noting that these are “EU ‘equivalence’ decisions on financial services, which provide access rights to third countries” and that “[t]rade partners would likely take them as a starting point in financial services discussions with the UK after Brexit.” While they are right in pointing out their relevance, such EU decisions and regulations are definitely not international agreements and hence should not be counted as such.

What, then, is the correct member of treaties currently in force between the EU and U.S.? Looking at the above issues, it would be foolish to even pretend here to have the undisputable number. But it can be better approximated. Taking into account only bilateral agreements in their “consolidated” versions, which are currently in force, and which despite their sometimes “soft” format at least one side deems “hard” enough to include in its list, this yields a number of around 50. Just to be clear: This does not mean the EU list was “more correct” because 50 is closer to its 52. The result of 50 reached here excludes a number of agreements no longer in force, and includes a number of “soft” agreements listed by the U.S.

In closing, there are two larger lessons here than discovering that the U.S. thinks international engagements on beef and cheese are worth listing while the Europeans prefer to put wine, husked rice, and bananas in their database. First, while the U.S. only needs to go through this Brexit-renegotiation exercise once, the UK will have to do it with each country that has treaties with the EU—168 according to the FT. Second, the U.S. and EU have comparatively good resources to help figure out what the status and extent of their treaty relations is. However, as this post has endeavoured to show, not even in this case this was a straightforward exercise, and it may not get easier for the other 167.

 

Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

Tue, 12/05/2017 - 08:30

On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. It can be concluded from the AU’s latest statement on Zimbabwe upon Mugabe’s resignation that it regarded the event as an opportunity for the establishment of a more democratic rule in the country. This approach suggests that some coups might be more democracy-promising than others.

The AU Practice on Unconstitutional Changes of Governments

Beginning in 1997 with its decision not to accord legitimacy to the military junta in Sierra Leone, the Organisation of African Unity (OAU) – the predecessor of the AU – started to build a solid framework against unconstitutional changes of government. The OAU adopted the Hararé, Algiers and Lomé Declarations respectively to emphasise the importance of democratic governmental change. The Constitutive Act of the AU, which entered into force in 2001, introduced in its article 30 a suspension mechanism for members whose government has been overthrown by unconstitutional means, and the African Charter on Democracy, Elections and Governance regulates in article 23, in great detail, five cases that constitute an unconstitutional change of government. With the exception of the cases of Tunisia, Egypt, and Libya during the Arab Spring, the AU has consistently implemented its suspension mechanism set up against unconstitutional changes of government as it can be observed in the cases of Togo, Mauritania, Madagascar, Niger and Egypt. In all these cases, the AU had a very resolute approach in suspending the state immediately following the military coup and did not lift the suspension until elections were held and the constitutional order was restored.

The recent events in Zimbabwe are not the first time that the AU was confronted with a situation where a ruler who is notorious for his authoritarian politics has been overthrown by the military. In 1992, Taya became the first democratically elected president of Mauritania. He was elected again in the 1997 and 2003 elections. Nonetheless, opposition groups questioned the credibility of the elections and measures were subsequently taken by the government to silence anti-government critics. In August 2005, the military overthrew Taya’s government. On the day following the coup, the AU condemned the unconstitutional change of government and suspended membership of the country from the organisation. The AU lifted the suspension only after the holding of parliamentary and presidential elections. A similar approach was adopted by the AU in Niger. Tnadja became the president initially in 1999 and then again in 2004 for a second term. At the time, the Constitution did not allow a president to run for the presidency for a third term. Nevertheless, Tnadja amended the Constitution through a referendum that extended his term for another three years and enhanced his presidential powers. The Constitutional Court declared that the amendments were in violation of the Constitution and this was followed by the dissolution of first the Parliament and then the Constitutional Court by Tnadja. In 2010, the military overthrew Tnadja from power. The AU was swift to condemn the coup and suspended the state from the organisation’s activities. The AU lifted the suspension only when elections were held and the constitutional order was restored. In 2013, the response of the AU was the same when the military overthrew Morsi in Egypt and it suspended the country from the organisation despite the abstention of many states, including the US and EU countries, to call the event a military coup. As it can be observed in these cases, the AU applied the suspension mechanism regardless of the prospective advantages of the coups and did not discuss whether the coup could be instrumental for the acceleration of the democratization process.

The AU and the Zimbabwe Episode

However, the case of Zimbabwe presents a rupture in the AU’s approach. On 15 November, Mahamat, the Chairperson of the AU Commission, when asked at a press meeting whether he considered what took place in Zimbabwe was a coup, avoided giving a straightforward answer and declared that the AU was opposed to unconstitutional changes of government, and that they were expecting the situation to be resolved through legal means. The following day, the Chairperson issued an official statement and called “all stakeholders to address the current situation in accordance with the Constitution of Zimbabwe and the relevant instruments of the African Union, including the African Charter on Democracy, Elections and Governance”. It is noteworthy that the Chairperson urged “all stakeholders” to abide by the Constitution instead of asking the military to release the President and restore the constitutional order. Rather than condemning the military takeover as it had done in many cases in the past, this time the AU adopted a more moderate approach and preferred to wait and see how the event would unfold. Finally, when Mugabe stepped down, the Chairperson declared that they “welcomed” the resignation and clearly did not qualify the event as a military coup. Indeed, the declaration referred to the events as the legitimate expression of the will of the people: “The African Union recognizes that the Zimbabwean people have expressed their will that there should be a peaceful transfer of power in a manner that secures the democratic future of their country. President Mugabe’s decision to resign paves the way for a transition process, owned and led by the sovereign people of Zimbabwe.” In contrast with its previous practice, the AU preferred to refer to the will of the people, rather than underlining the role of the military regarding the resignation of the elected president.

It is important to assess whether the situation in Zimbabwe can be considered constitutional and in compliance with the AU framework. Article 92 of the Zimbabwe Constitution stipulates that “the President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe”. More importantly, when the President resigns, the Vice-President has the right to replace him until elections are held according to article 101 of the Constitution. Yet, in Zimbabwe it was not the incumbent Vice-President but a former Vice-President who replaced Mugabe after his resignation. The military acted very diligently to deter any potential sanction from the AU by not overthrowing Mugabe by force and in an abrupt manner. In fact, they stated that it was not a coup and that they were protecting Mugabe from criminals surrounding him, seemingly acting in the President’s own interests. They paved the way for his resignation and waited for him to do so. It is undeniable that there is a close link between the military’s intervention and Mugabe’s resignation, despite the military’s refusal to call this incidence a coup. Even if we accept that the military did not force the President to step down by using armed force, and that the resignation of Mugabe reflects his own will, the current governmental change is still not in accordance with the Zimbabwe Constitution. Although the military put considerable effort into easing the reaction of the international community, the governmental change was not conducted in accordance with constitutional rules and thus was is in violation of article 30 of the AU’s Constitutive Act, which prohibits unconstitutional changes of government. However, the AU abstained from making any statement about the compliance of the manner in which the new president rose to power with the AU framework. This indicates that the organisation changed its consistent practice of rejecting governments established by military intervention.

The AU’s practice regarding the change of government in Zimbabwe comes at a time when the AU is working towards consolidating its mechanism against unconstitutional changes of government. The Charter on Democracy, Elections and Governance creates individual criminal responsibility for coup perpetrators in its article 25. When the Malabo Protocol enters into force and the African Court of Justice and Human and Peoples’ Rights is established, the Court will have competence to try coup perpetrators. It is therefore still open to debate why the AU changed its long-established practice and tolerated, or even welcomed, the military intervention in Zimbabwe.

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