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Achmea: The principle of autonomy and its implications for intra and extra-EU BITs

Tue, 03/27/2018 - 06:08

On 6 March 2018, the CJEU issued its judgment in Case C-284/16 Achmea, where it opined that intra-EU BITs and in particular their ISDS provisions are incompatible with the principle of autonomy of EU law. In a rather brief judgment, the Court found the ISDS provision under the Netherlands-Slovakia BIT has an adverse effect on the autonomy of EU law, as the latter in enshrined in Articles 344 and 267 TFEU. With this judgment the Court gave a definitive answer to a long-awaited controversial issue as to whether international investment treaties between EU Member States are compatible with EU law. Yet, Achmea does not provide conclusive answers as to the interaction between EU law and international investment law, neither with regard to intra-EU BITs, nor for extra-EU BITs. Considering that the compatibility of ISDS under CETA with EU law is challenged by Belgium and is the subject matter of a pending Opinion, Achmea adds a, admittedly important, piece to the puzzle.

In finding an incompatibility between an intra-EU BIT with EU law, the Court focused exclusively on the ISDS mechanism and its effects on the autonomy of EU law. Although the parties to the dispute and in particular the Commission argued about the existence of incompatibilities on other grounds as well, the most important being non-discrimination, the Court chose to address only the autonomy concerns. Referring to its landmark judgment on autonomy, Opinion 2/13, the Court confirmed the key role that autonomy plays for identifying the compatibility of international dispute settlement with EU law. The argument used is easy follow: the principle of autonomy protects the full effectiveness and consistency of EU law, which entails the uniform interpretation of EU law. Article 19 TEU guarantees autonomy by providing exclusive jurisdiction to the CJEU to offer authoritative interpretations of EU law and enabling a judicial dialogue with national courts via Article 267 TFEU. Investment arbitration under intra-EU BITs can have an adverse effect on autonomy, as investment tribunals a) can decide matters of EU law and b) are not subject to the CJEU’s control.

EU law under ISDS

The first condition that has to be met for autonomy to be violated, is that investment tribunals can decide matters of EU law. The Court makes a hasty finding that this condition is met. It opines that since EU law is part of the law of Member States and the provision of the specific BIT explicitly allows for such domestic law to be considered as applicable law, ISDS is bound to apply and interpret EU law. The very short analysis of the Court raises however 2 important questions. Is EU law applicable law under all intra-EU BITs, or only under those such as the Netherlands-Slovakia BIT that explicitly provide that the law in force at the host state, ie “domestic law” is part of the applicable law? Secondly, is EU law applicable law only in ISDS under intra-EU BITs, or also under extra-EU IIAs, that is under investment agreements between the EU and its Member States with third countries?

To answer these questions, we need to understand when the CJEU considers that a matter of EU law is determined by non-EU courts or tribunals. This is not a new question. The CJEU clearly stated in Opinion 2/13 that “any action by the bodies given decision-making powers by the ECHR, as provided for in the agreement envisaged, must not have the effect of binding [emphasis added] the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law” (para. 184). A threat to the autonomy of the EU legal order arises only if ISDS can result in a binding interpretation of EU law. The mere possibility of providing a binding interpretation of EU law suffices for autonomy to be breached.

In that respect, it can be argued that ISDS is always incompatible with the principle of autonomy, whether under intra-EU BITs or extra-EU investment treaties, because it would deprive the CJEU of providing a definitive interpretation of relevant EU law rules. The mere fact that an investment tribunal would assess an EU measure or a national measure falling within the scope of EU law would suffice for the CJEU to consider that investment tribunals can rule on matters of EU law.

Is that true? Would the consideration of EU law by investment tribunals result in a binding, definitive interpretation of EU law? The answer depends on whether a tribunal is established under an intra-EU or an extra-EU investment treaty.

In an intra-EU context, any arbitral award would always result in a binding interpretation of EU law and is thus violating the principle of autonomy. This is because, in an inter se context autonomy functions as a mechanism for establishing a kind of “external” primacy of EU law, limiting the ability of Member States to cooperate internationally outside the EU legal order. This function of autonomy has been manifested by the Court in Opinion 2/13, when the Court opined that the principle of mutual trust requires that when implementing EU law, Member States have an EU law obligation “to presume that fundamental rights have been observed by the other Member States.” (para. 192). The Court used autonomy in order to limit the ability of Member States to enter into an inter se agreement that violates a fundamental principle of EU law. Without entering into the controversial debate concerning the scope and content of the principle of mutual trust and its relationship to human rights protection (see in particular the contribution by D. Halberstam) from an autonomy perspective the Court is clear that autonomy is breached when Member States assume obligations in inter se relations that may conflict with a rule of EU law. Inter se agreements may result in a violation of applicable EU law rules. Yet, the existence of such incompatibility is a matter of EU law and could only be determined by the CJEU. Hence, autonomy requires that the conclusion of inter se agreements in areas of non-exclusive competence must guarantee that no conflict can arise, as otherwise non-EU courts could offer a binding interpretation.

This is true in the context of intra-EU BITs. As AG Wathelet admitted in his Opinion in Achmea substantive BIT provisions, such as FET and expropriation overlap with EU Treaty standards, at least partially. Moreover, although, as the AG rightly notes, intra-EU BITs have a wider scope of application that the EU Treaties they do cover situations falling within the scope of EU law. This very existence of different standards applying in relations between Member States in areas covered by EU law is per se problematic.

On the contrary, in an extra-EU context, arbitral awards would not result in a binding interpretation of EU law. Unlike Achmea and intra-EU BITs, ISDS under EU investment agreements is problematic only when it results in binding interpretations of EU law. As the Court emphasised what was problematic in Achmea was “the possibility of submitting those disputes to a body which is not part of the judicial system of the EU is provided for by an agreement which was concluded not by the EU but by Member States [emphasis added]” (para. 58).

When an agreement in concluded by the EU, a binding interpretation of EU law that would result in a violation of autonomy exists only when an international agreement concluded by the EU exhibits a special link to EU law.

Unlike decisions of the ECtHR, extra-EU ISDS awards do not result in binding, definitive interpretations of EU law rules. The reason why prior involvement was necessary in the context of the ECHR is because the ECHR has a special link to the EU legal order. As the Court clearly stressed in Opinion 2/13 (paras. 37-38) and Opinion 2/94 (paras. 34-35), has special significance for the EU legal order, due to its linkages with the sources of EU law, be it general principles of EU law or the Charter of Fundamental Rights (e.g. Article 52(3) CFR). There are direct references to the ECHR in the primary law of the EU which in essence enable the ECtHR through the interpretation of the ECHR to shape the interpretation of relevant EU law rules.

Besides, the existence of a binding, definitive interpretation of EU law by a non-EU court is what rendered the original EEA agreement incompatible with EU law. In Opinions 1/91 and 1/92 concerning the conclusion of the EEA Agreement, the Court ruled that the autonomy of EU law was violated, because “the proposed EEA Court could apply and interpret the EEA provisions without paying attention to future developments of the case-law of the CJEU”. As the EEA Agreement intended to ensure “homogeneity of EEA and EU law”, this meant that an interpretation of the provisions of the EEA agreement by the proposed EEA court would be binding on the EU. A similar threat to the autonomy of the EU legal order was also discussed in Opinion 1/00. That agreement essentially expanded the territorial scope of application of the EU acquis and required that identical provisions had to be interpreted identically. The Court found that autonomy was preserved, as the treaty contained assurances that its interpretation in non-EU states will follow the interpretation given by the CJEU.  Yet, homogeneity is not required under EU investment treaties. There is no provision in investment treaties that require their interpretation to follow that of specific rules of EU law.

Finally, any limitation on extra-EU ISDS would contradict EU’s past practices, which allow for dispute settlement fora to decide on the compatibility of EU or national measures in a non-binding manner. For example, measures taken by the EU and its Member States under relevant EU law rules have been the subject matter of international disputes in the context of the WTO on numerous occasions. Therefore, it should also be irrelevant whether investment tribunals offer their views on relevant EU law, and if so whether it is considered as part of domestic or international law.

The CJEU’s control over ISDS: can intra-EU BITs be saved?

The application of EU law by investment tribunals in intra-EU BITs is problematic, as long as it falls outside the oversight of the CJEU. Such a problem would not exist, were arbitral tribunals, including the ICS to be considered a court or tribunal of a Member State, as then it would be able to ask for a preliminary reference ruling under Article 267 TFEU, thus engaging the jurisdiction of the CJEU. In fact, AG Wathelet in his Opinion attempted to explain how arbitral tribunals satisfy the conditions set by the CJEU to  be considered “a court or tribunal of a Member State” (paras. 90-131). Without entering into the points as to whether investment tribunals are established by law, are permanent, have compulsory jurisdiction and are impartial, applying rules of law, it seems that the AG neglects in his analysis an essential characteristic of the test established in Article 267 TFEU, namely that it must be a Court or Tribunal “of a Member State”. The CJEU clearly explains in its judgment that investment tribunals are not part of the “judicial system” of Member States, similar to the Benelux Court, or commercial arbitration tribunals that are embedded in a national constitutional legal order (paras.43-45). A court or tribunal set up by an inter se agreement concluded by EU Member States is not automatically a court of EU Member States.  The Court could have also referred to Opinion 1/09, where it stated that a court established by an international agreement concluded by EU Member States “is outside the institutional and judicial framework of the European Union. It is not part of the judicial system provided for in Article 19(1) TEU. [it] is an organisation with a distinct legal personality under international law”. This was in fact the reason why the Patent Court had to be explicitly designed and acknowledged as a national court of EU Member States in order to qualify as a court of a Member State and in order to be compatible with EU law.

Even if investment tribunals are not courts or tribunals of Member States, they could still be subject to the CJEU’s oversight. In Achmea, arbitration was under UNCITRAL rules and was seated in Germany, thus allowing German courts to assess the consistency of the award with EU law and, if in doubt ask for a reference to the CJEU. Although the Court was happy in earlier cases to clear commercial arbitration that was subject to national court oversight, in Achmea the Court distinguished commercial from investment arbitration. It argued that while commercial arbitration “originates in the freely expressed wishes of the parties”, investment arbitration  derives from an international treaty by which Member States agree to remove from the jurisdiction of their own courts disputes which may concern the application or interpretation of EU law” (para.55). This argument is hardly convincing. Investment arbitration also originates in a “freely expressed wish” of the Member States to submit these disputes to arbitration. The opposite would be equivalent to arguing that when Member States signed a BIT were not expressing freely their wish to limit their sovereignty. Besides, the fact that such wish is expressed via an international agreement, rather than via national law as in the case of commercial arbitration, does not in any way influence the role of national courts in exercising oversight over arbitral awards, especially UNCITRAL ones, where the same rules for national court oversight apply!

The CJEU could have found a much stronger argument in its favour in Opinion 2/13. As the Commission pointed out and the AG acknowledged, in almost all intra-EU BITs, there is “the risk that the seat of an arbitration may potentially be fixed in a third country or that recognition and enforcement of an arbitral award that was incompatible with EU law may be sought in a third country, in which cases the courts and tribunals of the European Union would not be involved and the Court of Justice would therefore never be requested to give a preliminary ruling” (paras.252-253). The is particularly true for intra-EU BITS which designate the ICSID as an option for ISDS, as, ICSID awards are binding on the parties and could not be subject to any appeal or any other remedy except those provided for in the ICSID Convention. The AG dismissed the threat posed to the jurisdiction of the CJEU as purely hypothetical, as such avenues were not chosen in the present case. Yet, as has been already pointed out, the CJEU in Opinions 1/92 and 2/13 has clearly stated that even the very possibility of sidelining the jurisdiction of the CJEU is sufficient to render an international agreement incompatible with the principle of autonomy of EU law.

In that respect, the Court seems to indicate that the only way to provide for a distinctive mechanism to resolve intra-EU investment disputes, is by embedding it in the judicial order of the Member States. Following the UPCt paradigm, the conclusion of an inter se agreement that would establish a European investment court as a shared national court, which could apply EU law rules as well as additional standards of protection, would be the only way to retain a distinct dispute settlement mechanism for intra-EU investment. However, such system would always be subject the CJEU’s oversight.

The implications of Achmea

Achmea has far reaching implications for pending and future arbitrations under intra-EU BITs. These depend on identifying the legal effects of an incompatibility of a Member State international agreement with EU law, which creates different obligations on different actors under different legal orders. Firstly, EU Member States have an obligation to amend or terminate their BITs under EU law. The principle of primacy of EU law requires that Member States take all appropriate and available measures in order to eradicate the incompatibility. Disregarding the relationship between the EU treaties and inter se treaties under international law, the CJEU safeguards the international law validity of inter se treaties, but imposes an EU law obligation on Member States to cure incompatibilities. This means that Member States either have to terminate their intra-EU BITs, or amend them, for example by turning ISDS into a UPCt as mentioned above, to render them compatible with EU law.

Secondly, the incompatibility of intra-EU BITs with EU law creates EU law obligations on national courts to disapply the provisions that are incompatible with EU law. As the Court explained in Exportur, national courts in Member States are EU courts and thus required to consider provisions of inter se agreements that are in conflict with EU law as inapplicable, without again affecting the international law validity of the incompatible rule. This means that the provisions of intra-EU BITs that provide for ISDS and form the basis of the consent of Member States to arbitration are inapplicable; hence, arbitral tribunals lack jurisdiction under intra-EU BITs. As EU law is according to Eco-Swiss a public policy ground which requires national courts to review arbitral awards for their compatibility with EU law, this means that any arbitral awards where the arbitration seat is in an EU Member State, or the recognition and enforcement of the award in an EU Member State is sought, can be successfully challenged in front of national EU courts.

Thirdly, the incompatibility of ISDS provisions with EU law raises an obligation on arbitral tribunals to reconsider their jurisdiction under intra-EU BITs. As I have argued in the past, an incompatibility with EU law results in the international law inapplicability of the relevant ISDS provision, thus affecting the jurisdiction of arbitral tribunals. Besides, arbitral tribunals have an obligation to render enforceable awards. This means that intra-EU investment arbitration can survive only to the extent that (i) arbitrators are willing to disregard the implications of EU law incompatibility on their jurisdiction, (ii) arbitration is seated and awards enforced outside the EU, and (iii) national courts in non-EU jurisdictions are willing to defy the CJEU’s ruling.    

A New Legal Framework for the Enforcement of Settlement Agreements Reached through International Mediation: UNCITRAL Concludes Negotiations on Convention and Draft Model Law

Mon, 03/26/2018 - 07:00

Introduction

On February 9, 2018, the United Nations Commission on International Trade Law’s (“UNCITRAL”) Working Group II concluded negotiations on a convention and model law on the enforcement of settlement agreements reached through international commercial conciliation or mediation. Although the instruments still need to be finalized by UNCITRAL and then ratified by States, the completion of the drafting stage marks an important development in international commercial dispute resolution.

Given the debate regarding the increasing costs and time involved in international arbitration, greater attention has been paid to mediation as a method of dispute resolution. The flexibility involved in mediation eliminates many of the hurdles of arbitration, including bypassing disclosure. However, once a mediated agreement is reached, there is no comprehensive legal framework for the enforcement of international settlement agreements. The result is that parties are forced to attempt to enforce such agreements in domestic courts, typically as an ordinary breach of contract claim.

As a result, when a party to a mediated settlement agreement reneges on its obligations or otherwise refuses to uphold the terms of the agreement, the other party has had to commence separate proceedings in court or through arbitration to enforce the agreement. This has essentially meant initiating a new dispute after resolving the underlying one, adding increased costs and delay.

Through the creation of clear and uniform framework for the recognition of settlement agreements resulting from mediation – akin to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”) – the new draft convention and the draft amended model will increase the predictability of settlements achieved through international mediation.

Creating an Enforcement Framework

Generally, international commercial arbitration has been preferred over international mediation. This is likely because the widely adopted New York Convention provides a predicable framework for the recognition and enforcement of arbitral agreements and awards. Under the New York Convention, arbitral awards enjoy the same protection as domestic court decisions and deference is given to agreements to arbitrate.

Similar efforts have been made with regards to the enforcement and recognition of court judgments that result from domestic litigation. The Hague Conference on Private International Law has taken substantial steps toward realizing the conclusion of an international convention to allow judgments rendered by a court in one country to be recognized and enforced in another country. In fact, the latest draft of the convention was completed just a few months ago in November 2017 during the most recent meeting of the Special Commission on the Recognition and Enforcement of Foreign Judgments, which was attended by 180 participants from 57 States.

Through the creation of a uniform enforcement process for settlement agreements achieved through international mediation, the new draft convention and the draft amended model law will begin to place mediation on an equal footing with arbitration as a method of international dispute resolution. In fact, given that mediation is typically less expensive and quicker than arbitration, parties may prefer to mediate their disputes following the ratification of the convention model law. They may prefer to do so as they will then have the reassurance that their settlements can be enforced easily without having to resort to a lengthy breach of contract proceeding in the court in which they seek to enforce the agreement.

Application of the New Draft Convention and the Model Law

The convention and model law have been drafted to apply to all international agreements resulting from mediation and concluded in writing by parties to resolve commercial disputes, except for disputes arising out of transactions engaged in for personal, family or household purposes, relating to family or inheritance matters, or arising out of employment law issues. In addition, the instruments, if ratified, would not cover settlement agreements that are approved by a court or have been concluded in the course of proceedings before a court, or those that have been recorded and are enforceable as arbitral awards.

There is no limitation as to the nature of the remedies or contractual obligations that can be reflected in the international agreements in order for the convention and model law to apply. Thus, the agreement can involve both pecuniary and non-pecuniary remedies.

To seek the application of a mediated settlement agreement, parties will be required to furnish the competent authority of a Contracting State with the signed settlement agreement and with evidence that the agreement was the result of international mediation. Each Contracting State will then be required to enforce settlement agreements in accordance with its rules of procedure and the conditions set forth in the instruments.

The convention allows Contracting States to tailor their participation by making certain reservations or later withdrawing from the convention by a formal written notification. Once a Contracting State adopts the convention, the Contracting State will be required to enforce settlement agreements in accordance with its own rules of procedure and the conditions set forth in the convention and model law.

Similar to the New York Convention, the draft convention and amended model law set forth several narrow grounds for judicial review and non-recognition of a settlement agreement. Two of these grounds may be raised sua ponte by the court or other competent authority of the Contracting State where the agreement is sought to be enforced. Those grounds include if the subject matter of the dispute is not capable of settlement by mediation under the domestic law of the Contracting State, or if granting relief under the agreement would be incompatible with the public policy of the Contracting State. The remaining grounds are factual and depend on the manner in which the settlement agreement was created or drafted. In addition, these grounds must be invoked by the party against whom the settlement agreement is sought to be enforced, and require proof from that party that:

  • a party to the settlement agreement was under some incapacity;
  • the settlement agreement is null and void, inoperative or incapable of being performed under the law to which the agreement is subjected; or failing any indication thereof, under the law deemed applicable by the competent authority of the Contracting State where the agreement is sought to be applied, or the obligations in the settlement agreement have been performed;
  • the settlement agreement is not binding or final, is conditional so that the obligations in the settlement agreement of the party against whom the settlement agreement is invoked have not yet arisen; or has been subsequently modified or is otherwise incapable of being enforced because it is not clear and comprehensible;
  • there was a serious breach by the mediator of standards applicable to the mediator or the mediation, without which breach that party would not have entered into the settlement agreement; or
  • there was a failure by the mediator to disclose to the parties circumstances that raise justifiable doubts as to the mediator’s impartiality or independence, and such failure had a material impact on a party, without which failure that party would not have entered into the settlement agreement.

Next Steps

Both instruments will be considered for finalization by UNCITRAL at its next session, which will be held from June 25 to July 13, 2018 in New York. Once finalized, the Member States will begin the process of ratification and domestic implementation of the instruments.

Announcements: CfP Knowledge Product and International Law; UN Audiovisual Library of International Law; Responding to Hybrid Threats by Force Conference

Sun, 03/25/2018 - 09:00

1. Call for Papers: Knowledge Product and International Law. The Graduate Institute’s International Law Department of the Geneva Graduate Institute is opening a call for papers to explore the theme of knowledge production and international law at a conference to be held on 7 – 8 September 2018. The deadline for abstract submissions is 14 May 2018. This conference aims to contribute to filling this gap by initiating a discussion on knowledge production and international law through four thematic panels. Selected contributions will be included in a publication. The full call for papers is here

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Judge Iulia Motoc on “The European Court of Human Rights and General International Law” and by Professor Larissa van den Herik on “International Commissions of Inquiry”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Responding to Hybrid Threats by Force: International and National Law Aspects Conference. A conference called Responding to Hybrid Threats by Force: International and National Law Aspects will be held on 24 – 25 May 2018 at the Law Faculty of Palacky University Olomouc, under the auspices of the Director of Special Forces and the Czech Branch of the International Law Association. Several distinguished experts have already confirmed participation in the conference (such as Aurel Sari, Tamás Hoffmann, Russell Buchan or Kubo Mačák). Call for papers is still open! For more information, see here

African Union v International Criminal Court: episode MLXIII (?)

Fri, 03/23/2018 - 08:30

It never gets boring. At the latest African Union (AU) summit, which wrapped up recently in Addis Ababa, the AU-ICC controversy went into its next round; this time, however, with a rather constructive proposal for easing the tensions that had built up over the past decade or so as a result of the uneven application of international criminal justice. In this post I will reflect upon the implications of the recent summit decision for the future of international criminal justice, including the debate about immunities, the consequences of potential arrest warrants for high-ranking Burundian officials, as well as the debate about an African mass withdrawal. 

Previous AU responses to what was being perceived as neo-colonial interference on the part of the International Criminal Court had not been very constructive – ranging from issuing shrill statements calling the Court “a political instrument targeting Africa and Africans“, threatening mass withdrawal, blocking the opening of the ICC Liaison Office in Addis, and announcing non-cooperation in the arrest of suspects. This time, by contrast, the AU opted for a more constructive, de-escalatory approach, using the tools of international law – instead of international politics – to make its voice heard: It announced that it would seek, through the UN General Assembly, an advisory opinion from the International Court of Justice (ICJ) on the question of immunity. The AU also decided that it would seek an interpretative declaration from the Assembly of States Parties (ASP) on how Article 27 of the Rome Statute of the ICC, which removes immunity for state officials, and Article 98, which addresses cooperation with respect to a waiver of immunity and consent to surrender relate to one another, and the related question of how a Security Council referral affects the enjoyment of immunities of officials of non-state parties. The proposal to seek an advisory opinion from the ICJ was first made several years ago. It is not clear why this proposal was shelved in the meantime. Perhaps the AU feared the ICJ would find in favor of the ICC’s position.

Certainly, the ICC’s inconsistent stance on the effects of a UN Security Council referral on Al Bashir’s immunity has further muddied already murky waters, as has the adoption of the Malabo Protocol, which posits immunity for incumbents, and which would create a criminal chamber for the African Court of Justice and Human and People’s Rights in direct competition with the ICC. The decision of the AU Assembly to seek an advisory opinion from the ICJ is therefore a welcome development in a quarrel that thus far has had a highly detrimental impact on the administration of international criminal justice. The complexity of the immunity issue has been addressed at length elsewhere and hence will not be rehashed in this post. Suffice it to note that the ICJ, in the Arrest Warrant case, had previously ruled that incumbent officials – while enjoying immunity from prosecution in foreign national courts – “may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction“ (para. 61). However, as is well known, a difficulty arises when the Court in question claims jurisdiction over a non-state party – as in the case of President Al Bashir of Sudan. The question of how the ICJ will position itself on the issue is as interesting as the question of how the AU will respond to the ICJ’s opinion, should it bolster the ICC’s position. An ASP insider confirmed that she had personally witnessed a high-level AU representative saying that African states would abide by the advisory opinion handed down by the ICJ. While the ICC has repeatedly pronounced itself on the issue of immunities, there are two good reasons for additionally involving the ICJ. First, as argued above, the ICC’s decisions on this issue have been somewhat inconsistent and therefore not fully persuasive, drawing criticism not only from the usual suspects but also from commentators beyond the AU. Secondly, considering the legitimacy crisis of international criminal justice, the opinion of an objective third party will hopefully produce some clarity, legal certainty, and thereby strengthen the international rule of law.

Yet the process of obtaining an advisory opinion from the ICJ will be lengthy one – first, the African group must lobby to win a majority within the UN General Assembly and then the ICJ will have to decide whether or not it will offer its opinion. In the meantime, a number of contentious issues linger, which threaten the “re-commitment of African states to the ICC” described by Fatou Bensouda at last year’s ASP. This re-commitment, which Bensouda considers a “significant development”, was fostered by a confluence of variables, the most important one certainly being the “Kenya factor”, i.e. the dropping of the charges against President Kenyatta and other high-ranking Kenyan officials. Yet “softer” factors were also relevant, such as the intensified outreach efforts by Bensouda as well as Sidiki Kaba’s role as President of the ASP, whose personal engagement led to a more constructive discussion about the issues currently dividing the AU and the ICC. This re-commitment will likely be called into question should the ICC issue arrest warrants for President Nkurunziza of Burundi and other high-ranking Burundian officials. At its recent summit, the AU condemned the opening of ICC investigations into the situation in Burundi. If the ICC decides to go after Nkurunziza, the East African Community will likely rush to his defense. “IGAD and the EAC have been the biggest stumbling blocks in the Burundi crisis”, says Kwamchetsi Makhoka, a political analyst from Kenya. While the backlash is probably not going to be as intense as in the case of Kenya, it will still put a strain on the fragile bonds so carefully cultivated by Kaba, Bensouda and others over the past year.

Yet will the Burundi situation raise the specter of an African mass withdrawal that first shocked the world one year ago? Unlikely. For one, the AU 2017 withdrawal strategy, discussed by Patryk Labuda here, “is actually more of an engagement strategy” as Bettina Wambach, director of the Wayamo Foundation points out. Also, the AU legally not in a position to impose a withdrawal obligation on its members. Secondly, if one reads the fine-print of the withdrawal debate, one will realize that only a handful of states seem to be serious about leaving the ICC – namely Burundi, South Africa, Kenya, and Namibia. With the exception of Burundi, these states are unlikely to follow through with their threats in the near future. With regard to South Africa, observers tend to agree that the withdrawal option is off the table – despite the South African Justice Minister’s statement to the contrary at last year’s ASP. With Zuma losing the leadership of the ANC and now the Presidency to Cyril Ramaphosa –  who previously maintained that South Africa should not leave the ICC – and with all the other domestic problems South Africa currently faces, a relaunch of the withdrawal campaign is not very probable. Kenya in turn has lambasted the ICC for years, yet now that the cases against Kenyatta and associates have been dropped, it no longer sees a need for ditching the court. Kenya also no longer pushes for adding a criminal chamber to the East African Court of Justice – this initiative miraculously disappeared from the EAC’s agenda after the ICC’s charges against Kenyatta were dropped. With Kenyatta being off the hook, many observers believe that the debate about a mass withdrawal is dying. “I don’t see any African leader who is as powerful as Kenyatta in terms of rallying support against the ICC”, another ASP insider told me. Namibia in turn, all the while publicly denouncing the ICC’s “arrogance”, has admitted behind the scenes that it would not be leaving the Court. Another ground for cautious optimism is the fact that the moderates within the AU are increasingly speaking out in favor of the ICC. Nigeria and Senegal sought to push the mass withdrawal issue off the AU summit’s agenda last year, and together with Botswana, Tanzania, and others have issued statements in support of the Court. As Bensouda noted at last year’s ASP: “There is a lot of support within the African Union for the ICC, and this is something that we need to consolidate.”

Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Wed, 03/21/2018 - 09:00

CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative

In the draft GC, the Committee said that the internal flight alternative (where a person could be deported to an area of a State where they would not be exposed to torture) is “not admissible unless the Committee has received reliable information […] that the State of deportation has taken effective measures able to guarantee full and sustainable protection of the rights of the person concerned” (para 51).

Australia, Canada, Denmark, Finland, Norway and the US all pushed back against this position, arguing that internal flight options should be considered as part of an overall risk assessment and the Committee’s position was too rigid.

In the adopted GC, the Committee has gone beyond the position stated in the draft and strengthened its objection to internal flight options suggesting that the state pushback was entirely unsuccessful.  The provision on internal flight in the adopted GC makes no reference to the receiving state’s ability to guarantee protection, but instead asserts that the internal flight alternative is simply “not reliable or effective” (para 47).

Access to Rehabilitation Services

The draft GC held that if victims of torture need specialized rehabilitation services, then once their conditions have been medically certified they should not be removed to countries where they could not continue to receive their treatment (para 21).  There was strong pushback on this from several states – Australia, Canada, Denmark, Finland, Norway, the UK and the US – all of which argued that this creates additional non-refoulement obligations based on health rather than on future risk of torture, which is the position in the Convention.  Several European states referenced the ECtHR caselaw on deportation in situations of ill health, including N v UK, in support of their position.  The Committee caselaw is unequivocal that health conditions do not engage non-refoulement obligations under the Convention so the draft GC was an attempt to progressively develop the CAT’s position. Despite all of this pushback, the Committee has retained its position in the adopted GC.

Non-State Actors

The draft GC demanded that states refrain from deportations where there is a danger of torture or cruel, inhuman and degrading treatment at the hands of non-state actors over which the state of deportation has no control (para 31).

There was pushback on this from the US, UK, Russia, Canada and Australia.  These countries saw this interpretation as extending their non-refoulement obligations beyond the Convention, which asserts that torture must be at the hands of state agents.  States also pushed back regarding the fact that para 31 extended non-refoulement beyond torture to include cruel, inhuman, degrading treatment and punishment (CIDTP).  The pushback, in this instance, was unsuccessful as the adopted GC contains a similar provision on non-state actors, the only difference being the reference to CIDTP has been replaced by the term “other ill-treatment”.

Provision of Financial Assistance/Material Support

The draft GC made references to the duty to provide material/financial assistance to asylum seekers in para 14 and 43.  In Turkey’s submission, there was pushback on this point with concerns that “it may create [a] huge financial burden particularly in the large number of refugee and asylum seeker movements towards some states like Turkey” (para 7).  They also challenged the requirement to provide free legal assistance.  Norway, the UK and the US also pushed back on this theme, noting that there are no requirements under the Convention to provide financial assistance and decisions about this have to be made with regard to budgetary restrictions and in light of economic conditions.

Despite this pushback both provisions have been retained.  The revised GC notes that financial assistance should be provided when necessary (para 41) and the assertion that states should not cut assistance programs as a way to compel return is also retained (para 14).

Sexual Orientation and Gender Identity as an Indicator of Risk of Torture

Turkey asked that in paragraph 48(e) of the proposed GC that the term “sexual orientation and gender identity” should be deleted or replaced with the term “sex”, which, Turkey argues, is approved and accepted by the international legal literature. Qatar also expressed concern with the inclusion of “sexual orientation and gender identity” in paragraph 48 as this contradicts Qatari public order laws and Sharia.  This pushback was entirely unsuccessful, and the term “sexual orientation and gender identity” is retained in the adopted GC.

Interim Measures

In the adopted GC the text has changed slightly and the Committee has removed a direct assertion that not complying with interim measures would represent a failure to fulfil its obligations, but replaced this with a reference to “the Committee’s determination that the non-compliance with its request for interim measures constitutes a breach of Article 22 of the Convention” (para 37).  The change, therefore, does alter the gist of the Committee’s approach to interim measures  that non-compliance with requests for interim measures represents a breach or failure to uphold the Convention. 

In the draft GC, it was stated that non-compliance with interim measures ‘would make it evident that the that the State party failed in fulfilling its obligations to cooperate with the Committee” (para 39). There was strong pushback on this from several states, Australia, Canada, Denmark, Norway and China  (note that Chine has not accepted the right to individual petition before CAT), on the basis that interim measures are not legally binding, and that it us up to the states whether they accept or reject them. It was argued that even if states reject the request for interim measures, it does not show a lack of good faith and they can continue to engage in the Committee’s procedures. 

Our ongoing research of the CAT non-refoulement caselaw, shows a very high rate of compliance with interim measures, with only 14 instances of non-compliance between November 1994 and May 2017.  This positive trend especially applies to states, which were the most vociferous in their objection to the position on interim measures, with Canada the only country among them not to have complied with requests (and only on three occasions).  In any event, with such a high rate of compliance, the Committee must have been confident in not responding to this push back.

Concluding Thoughts

The recognition of non-refoulement as a fundamental norm was not directly challenged by the twenty-three states that provided comments. But states are seeking to interpret non-refoulement as narrowly as possible and do not provide support for the dynamic interpretation of the Convention offered by the Committee.

In contrast, the CAT has expanded the scope of non-refoulement in its revised General Comment. Whist it has conceded ground to state pushback on diplomatic assurances and duties to provide redress post deportation (also see the recent concession by the ECtHR on the latter in Nait-Liman v. Swizerland just a few days ago), it resisted pushback confirming some of its well established case law (e.g. its position with regard to non-state actors,  SJD v Australia, 17 Dec 13, para 10.9)). It also developed new interpretive standards. It created, for example, a new reverse burden of proof and a duty not to deport individuals who are undergoing rehabilitation treatment. The latter evidences a bold institution (somewhat refreshing in the current human rights climate), perhaps due to its non-binding nature, or because the CAT’s very mission is to both advance non-refoulement and fight torture.

We noted in Part 1 that the CAT may have been influenced by the constant references by states to the ECtHR in softening its position on diplomatic assurances. This stands, however, in stark contrast to its position on the internal flight alternative and non-refoulement for medical reasons. The position of CAT on these two issues now goes well beyond the ECtHR position, which accepts an internal flight alternative subject to certain criteria (see Sulfi and Elmi v UK) and does not recognise non-refoulement for medical reasons, unless the person risks death on her return journey. On these issues, CAT is now ahead of ECtHR standards

It remains to be seen whether CAT’s expansion of the scope of non-refoulement and associated duties of states on multiple fronts will be respected by states parties and followed by other UN Treaty bodies and regional human rights courts or whether it will lead to further pushback and a fragmentation of the regime on non-refoulement in the future, in particular between ECtHR and the UN Treaty bodies. We were also struck by the fact that several states providing robust pushback on a range of issues have not accepted the individual right of petition before CAT (the USA and the UK, for instance) and so, technically, are unaffected by the contents of the GC.  However, they seem much more invested in exerting influence on the CAT’s approach to non-refoulement cases.  The Committee and its general comment are perhaps taken more seriously than their soft constitution may initially suggest, after all.

Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Tue, 03/20/2018 - 09:00

On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded.  Here, in the first post, we focus on areas in which the state pushback appears to have been successful, or partly successful, and where the Committee softened or amended its position in the final adopted GC.

Diplomatic Assurances

In the state submissions, diplomatic assurances was the issue to which states paid the most attention – indeed, several countries responded only on this issue (including the submissions of Austria, Germany, Ireland, Latvia, New Zealand, the Netherlands, Mexico and Spain). There was also a joint submission specifically on diplomatic assurances prepared and submitted by the UK, US, Canada and Denmark. 

In the draft GC, the committee proposed that: “diplomatic assurances from a State party to the Convention to which a person is to be deported are contrary to the principle of ‘non-refoulement’” (draft para 20).  State pushback on this point was heavy with each individual state submission, as well as the joint submission challenging this apparent blanket prohibition on the use of diplomatic assurances in non-refoulement cases.  Almost all of the EEA countries, Latvia and Spain were the exceptions, and some non-European countries (New Zealand, for instance), referenced the ECtHR case of Qatada. This case set out a list of criteria that should be applied when considering the reliability of diplomatic assurances.  States were unequivocal that diplomatic assurances can be relied on, in certain circumstances, subject to an assessment of their credibility and reliability.  Russia also introduced the objection that an anti-diplomatic-assurances position represents an “interference in the sphere of interstate relations, which obviously denies the necessary trust in them”.

The pushback from states was successful as the statement that diplomatic assurances are “contrary to the principle of non-refoulement” has been removed from the adopted GC.  Instead, the Committee retains the softer position: “that diplomatic assurances from a State party to the Convention to which a person is to be deported should not be used as a loophole to undermine the principle of non-refoulement” (para 20).  This leaves open the possibility then that, if diplomatic assurances are not being used as a “loophole” to avoid duties under the Convention, they could be relied upon by the Committee.

Redress Post Deportation

Paragraph 22 of the proposed GC identified a range of measures that states should take if a person became a victim of torture post deportation.  It was suggested, among others, that deporting states should envisage mechanisms of financial and legal assistance to persons who face a substantial risk of torture, or actually are tortured, after they are deported “to enable them to get access to judicial procedures empowered to put an end to that risk or that offence.”  Furthermore, when necessary, deporting states should attempt to secure the return of the person back to their territory.

Australia, Denmark, Finland, Norway, Turkey, the UK, the US, Egypt, Morocco, and Switzerland all pushed back on this arguing that this creates new obligations that do not exist under the Convention.  The UK, for example, said:

The UK cannot agree, as suggested in paragraph 22, that the CAT, or indeed any other relevant international law obliges the sending State to go to the receiving State and facilitate the individual’s access to judicial remedies in the receiving State. This could be used to encourage an unwarranted interference in the internal affairs of the receiving State.

The pushback on this aspect of the GC appears to have been successful as it has been completely removed from the adopted GC and replaced with a vague and general statement with regard to the Committee’s views on redress in paragraph 21.

Territorial Application

Paragraph 10 of the draft GC made reference to the Convention being applied to territories under military occupation of the returning state and to territories under factual control and authority.  The UK and Russia specifically objected to this and there was some more general pushback by the US, Australia, Norway, Denmark and Canada, all seeking to limit the Committee’s position on the question extending the territorial reach of non refoulement duties.  In the adopted GC, reference specifically to foreign military occupations has been removed, so pushback on this issue was successful. Otherwise, the remainder of the text on territory remains unchanged (para 10).

Domestic Remedies

The US pushed back on paragraph 37 of the draft GC, which sets out what the Committee expects in terms of an effective domestic remedy. This maintains that CAT does not create specific obligations on states to enact precise domestic processes to evaluate cases and states can choose how they want to fulfil Article 3.  Canada asked for the removal of references to the fact that judicial remedies be provided “without obstacles of any nature.” Canada also asked for the removal of the assertion that a complainant’s case should be reviewed “by an authority independent from the authority which had initially decided” to enact the deportation.

In the adopted GC (now para 35) there is no longer any reference to the review being done by an authority independent from the initial decision maker but the remainder of the paragraph has been retained, including the reference to “without obstacles of any nature”, suggesting that pushback was partially successful.

Why was Pushback Successful?

It is, of course, difficult to know why the Committee conceded to state pushback on the issues above without having eavesdropped on their private deliberations. However, a number of possible reasons can be offered.  States pushed back on diplomatic assurances the most and in doing so,  many of the them referenced the ECtHR in the Qatada case, which found that diplomatic assurances were not a priori incompatible with the European Convention on Human Rights.  The fact that CAT ultimately softened its objection may suggest it was influenced by numbers and by  states’ repetitive references to the ECtHR on the issue.  This is noteworthy given that CAT rarely, if ever, references regional human rights courts in its decisions. 

The provision in the draft GC to provide post-deportation redress to victims of torture arguably created a new standard for states that was not envisaged in the text of the Convention, or reflected in the Committee’s caselaw. This may explain why the Committee ultimately conceded on this issue. However, the analysis in our next post will show that CAT used the draft GC to push interpretive standards beyond existing practices in several other areas, and despite significant state pushback to these changes, remained defiant and did not amend the adopted GC.

The CAT, dropping its explicit statements concerning  duties of non refoulement also applying in territories under occupation and specification of domestic remedies, does not, in effect, make significant differences. Territories under factual control is even a lower threshold than occupation, so it would also cover cases of occupation. On domestic remedies, the CAT arguably kept much of these under general principles (paragraph 13) requiring each case to to be ‘individually, impartially and independently examined through competent administrative and/or judicial authorities, in conformity with essential procedural safeguards, notably the guarantee of a prompt and transparent process, a review of the deportation decision and of a suspensive effect of the appeal’.

 

Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?

Mon, 03/19/2018 - 09:00

The question posed in the title of this post has been discussed in various blogs suggesting that recent decisions of the ECtHR rejecting cases for non-exhaustion of domestic remedies have been politically motivated.  I recently discussed this issue at a meeting organised by the Law Society in conjunction with the German Bar Association (DAV) in Berlin on 5th March 2018. 

Let me say from the outset that I will argue that this question, for someone who has worked for many years with the Court (ECtHR) and who has dealt with many Turkish cases, is not the right question to ask.

From my perspective, the right question to ask is not whether the Court is capable of offering an effective remedy to Turkish citizens – of course it is – BUT rather when, and under what circumstances, will the Court offer such an effective remedy? 

As you can readily appreciate, this is a more positive formulation which better accords to reality.  After all, we would not doubt the capacity of the UK Supreme Court or the German Constitutional Court to offer effective remedies for violations of fundamental rights. So, why should we doubt the capacity of the European Court to do so given its proven track record of upholding Convention (ECHR) principles, often in the face of vitriolic criticism from states and others?

Subject to that reservation, I make the following remarks about the matter.

My starting point in this argument is that the Court has been constantly involved in the adjudication of Turkish cases since the 1970’s. Many thousands of cases have been examined.  HUDOC- the Court’s case law search engine- records some 9600 judgments.  There have been many hundreds of violations recorded. The former Commission of Human Rights has carried out 37 fact-findings in Turkey concerning egregious human rights violations.

Many of the judgments against Turkey have been leading judgments in their field, contributing valuable principles to the corpus of international human rights law in areas as diverse as torture, killings, disappearances on the one hand and freedom of expression, the banning of political parties, the destruction of villages, expropriation of property, fair trial and the death penalty on the other. The Convention is of such importance to the Turkish legal system that every year, Turkish judges and prosecutors come to the Court’s headquarters to gain first-hand knowledge of the case law.  This practice has continued after the July 2016 coup d’état with the most recent visit taking place in December 2017. At one point many years ago, there were so many key Turkish cases being decided in Strasbourg that the authorities in Turkey spoke of the Court as being Turkey’s Constitutional Court (CC).  It was as a result of this long involvement in high profile cases that Turkey introduced a CC with a right of individual petition modeled on the Strasbourg system. A remedy which the Court recognised as effective in 2014 for complaints inter alia concerning unlawful detention.

Other parts of the Council of Europe have constantly engaged with Turkey since the coup; the Secretary General (SG) and the Venice Commission have both stressed the importance of compliance with the rule of law and the principle of proportionality rooted in Article 15 ECHR.   The Venice Commission has issued several important opinions concerning legislative decrees issued by the Government under its emergency legislation. Whilst acknowledging the right of a democratically elected government to defend itself, including by resorting to emergency government, the Venice Commission has also emphasised that measures such as mass closures of media outlets on the basis of emergency decrees, without individualised decisions, and without the possibility of timely judicial review, are unacceptable under international human rights law. These efforts have led to the setting up of a Commission to examine complaints from those adversely affected by the decrees with the possibility of appeals to the administrative, and subsequently, the Constitutional Court.

So, what are the reasons for believing, against this history of continuous direct involvement in the protection of human rights in Turkey, not only of the Court but of the Council of Europe as a whole, that the ECtHR would now seek to abandon its traditional judicial role in Turkish cases or would no longer be able to afford an effective remedy in cases that are calling out for one?

There are three main arguments that are being advanced by the Court’s detractors.

The most important argument is a legal one, namely that the Court has rejected four applications raising issues concerning dismissals of judges and civil servants in 2016 and 2017 for non-exhaustion of domestic remedies. The cases are Mercan (Hudoc Nov 2016), Zihni (Nov 2016) Catal (March 2017) and Koksäl (Nov 2017)]. The dates are important because the last ECtHR decision that considered the CC to be an effective remedy was in March 2016 and the attempted coup took place in July 2016.

Koksäl is the most important decision because the Court required the applicant to first bring his complaint to the new Commission (which was on the point of being set up as a result of the initiative of the SG and the Venice Commission) tasked with the role of examining dismissals individually and having powers of reinstatement.  Rejections by the Commission can be appealed to the administrative court and then the CC.  For the Court, mere doubts as to the prospects of success of these remedies was not sufficient to dispense the applicant from having recourse to them.  

These decisions have provoked considerable criticism and bewilderment in certain quarters, and have even been dubbed as politically motivated decisions to pacify Turkey and examples of excessive formalism in the face of a dire situation! 

They can doubtless be criticised on various grounds: the applications had not been communicated to the Government for observations; there was no real discussion as to what might be called the chilling effects of the emergency regime  – involving the suspension and arrests of thousands of judges and prosecutors, including two members of the CC – on the independence and impartiality of the remaining members of the Turkish judiciary; the Commission is a non-judicial body that had not actually come into force when Koksäl was decided.

However, the fact remains that none of these applicants sought any remedy in their own courts before coming to Strasbourg, which is surprising because in three of the cases they were complaining that they did not have access to a court to test their suspensions.  Why was this so?  Obviously, after the declaration of the state of emergency they no longer trusted their own courts. But this is not a valid excuse in such situations.  The European Court’s case law is clear that it is only in highly exceptional cases that it has been prepared to find that there exists special circumstances dispensing applicants from seeking a domestic remedy. 

The exhaustion rule is a jurisdictional norm of the highest importance in the Court’s case law and is a central component of the foundational notion that the Court’s role is subsidiary to that of the national courts.  It is the national courts which must first be given the opportunity to examine allegations of human rights violations.  It is a first order principle in the Convention, Art 35 para 1, which states that the Court shall not DEAL WITH complaints where domestic remedies have not been exhausted in accordance with generally recognised principles of international law.  Many very high-profile cases in most countries have fallen at this hurdle, including very serious complaints in some inter-state cases.

One could take the view that when there are gross violations of human rights, remedies tend to be side-stepped or rendered ineffective by the difficulties of securing probative evidence.  This was the position taken by the former Commission in the Greek case in the 1960’s. However, it is difficult for the Court to assume that there are gross violations or administrative practices in breach of Convention rights when these issues have not yet been determined by the Court.  There needs to be clear evidence that the court system is not functioning properly as there was in the Greek case and, as discussed in the Berlin meeting, such evidence (as opposed to repeated claims) needs to be presented to the ECtHR to challenge the effectiveness of remedies.  And that evidence is only beginning to emerge now in early 2018, but not in 2016 and 2017 when these decisions were taken.

These cases have not occurred in a conflict or war zone such as SE Turkey in the 1980’s or Chechnya, Nagorno Karabakh, Transnistria or Greece under the dictatorship of the colonels in the 1960s – where real impediments, including the risk of reprisals, existed to accessing the courts to seek remedies. 

Moreover, the Court has in many judgments and decisions prior to July 2016 recognised time and again that the CC provided an effective remedy to be exhausted before coming to Strasbourg.  Is it realistic to expect the Strasbourg Court to suddenly change its case law so soon after the coup – even a year after the coup – without having a solid objectively established basis on which to do so? 

In a significant development that suggests that the CC has remained an independent body, (even if at the end of the day its judgment was ultimately thwarted), that court (in a judgment of January 2018) found in favour of two journalists – Mehmet Altan and Sahin Alpay – holding that their detention contravened the freedom of the press and ordered their release.

There are other factors that must be borne in mind when assessing these decisions. The first is that Strasbourg has not shut its doors irrevocably to these applicants.  It remains open to their lawyers to file new complaints in Strasbourg if they lose before the Turkish courts. The second is that the Court has made it clear in the Koksäl decision that it will keep under review, in the light of experience, whether the Commission that has been set up is Convention compliant.  So, the burden remains on the government to demonstrate in future cases that this remedy actually works effectively in practice. 

The two remaining arguments are essentially political arguments. They suggest that the decisions are politically motivated. The first emphasises that Turkey has become a vital ally for Europe and is entitled as any other state to defend itself from attacks from within. Turkey’s support is vital in the fight against ISIS and in coming to terms with the refugee crisis. It is currently host to 3.2 million refugees, which is probably the largest number of refugees in any country. There is thus a certain pressure to be more tolerant to the internal political problems that Turkey is facing and its emergency responses.  The second political argument is institutional in nature. The Court is under pressure from the member states to adhere to the principle of subsidiarity – a key feature of which is the requirement to exhaust domestic remedies. By rejecting these four cases, the Court was able to reject in summary form a large number (25000+) of similar cases.

Both of these arguments are problematic.  Justice should not be a cloistered virtue and criticism is to be expected and welcome. Yet it is difficult for any court and much more difficult for an international tribunal – which unlike the national court does not have a natural constituency to spring to its defence – to counter accusations of political maneuvering, or even to stand up for itself generally.  It cannot enter the political fray and respond openly to its accusers.  It is obliged to stand on the touch line and grit its teeth in the face of uninformed or malignant comment, sometimes from self-interested or even political quarters.  Its best defence lies in the quality of its judgments and decisions as well as their consistency.  The Court is not a political body. It is not composed of political actors. The judges take an oath to behave independently and impartially just like judges in national courts. Even if they remain, as human beings, subject to a myriad of influences they must operate in a collegium and be seen by their colleagues and the international community to apply the rules justly. 

The Court has earned its badge of independence over many years in dealing with high-profile cases coming from Chechnya, Northern Ireland, Russia, Turkey, Ukraine and Georgia, – to name but a few.  Are these to be seen as political judgments too?  When the Court adjudicates on a case it does so on the basis of its legal merits with reference to what has been decided in previous cases just like national courts.  The exhaustion of domestic remedies rule has not been invented to help the Court with its case docket (even if it has this effect) or to avoid taking difficult unpopular decisions.  Nor is it so malleable a notion that it can be wielded to political effect by sweeping the undesirable under the judicial carpet. If it were that easy, the Court would have over the years, a considerably lighter case docket. It is a rule of the Convention set out in Art 35 para 1 ECHR and has been the subject of extensive interpretation since the system was set up sixty years ago. I would contend that the real political decision in these cases would have been to reach exactly the opposite conclusions on the basis of claims alone and in the absence of solid evidence. And if the Court had been motivated by political considerations then why use the exhaustion rule to dismiss the cases when this permits the applicant, unlike rejection as manifestly ill-founded, to come back to the Court after trying to seek a remedy before the courts?

Let us be realistic. If the Court wished to avoid taking unpopular decisions it would not be the subject of such recurrent attacks from politicians in certain Convention-allergic countries.

Yet for all that, the situation in Turkey continues to disturb. Her credentials as a rule of law state seem to be in tatters today with so many journalists and others in prison and countless thousands of civil servants and teachers having been suspended or dismissed and deprived of their passports.  It is questionable whether the right of individual petition can be relied on to provide a remedy when the state seems to be in a downward spiral and mass human rights violations appear to be occurring under the guise of a political emergency and the right of the state to defend itself.  The life of the nation is being threatened arguably by the very measures that have been decreed to save it.  Under the ECHR it is up to the states to lodge a collective action (an inter-state case) when confronted with alleged breaches of the public order of Europe. But there is no sign of this happening and such is Europe’s dependence on Turkey to solve its refugee problem that it is unlikely to happen. The days when states sought to uphold European public order without having a specific interest to defend as in the 1980’s appear to be over. If this is correct, then the drafters of the Copenhagen Declaration should be reminding all stakeholders that for the ECHR to remain an effective human rights instrument, it is imperative for states to act collectively and in a disinterested fashion when confronted with credible evidence that an ECHR country is detaching itself from the rule of law and apparently impeding national judges from upholding it.

In conclusion I come back to my point that the only question of relevance is, when and under what conditions the Court can provide a remedy for Turkish citizens? Today we may have an answer to that question although, an answer that comes from the fruit of a poisoned tree.

The Court has a large number of Turkish detention cases on its docket.  Many of these concern journalists who complain of violations of Articles 5 and 10.  The Court considers these cases to have priority because the vital watchdog functions of the press are imperiled when journalists are imprisoned, especially in an emergency situation where many of the traditional safeguards of the rule of law have been suspended. 

The fate of these cases depended on the outcome of the case brought to the Turkish CC by the applicants Mehmet Altan and Sahin Alpay.  As we know, the CC to its credit found in favour of these applicants but amazingly, a lower court considered that the CC did not have jurisdiction to order their release.  Accordingly, in these types of cases the effectiveness of the CC remedy can now be called into question – whether in all cases remains to be seen.  It would appear from several press articles by Turkish journalists, based on leaked information, that the Court will go to judgment in these cases on 20 March 2018 and perhaps find violations of press freedoms.

If this is so – and I have no real way of affirming or denying these reports although I must put on record that I deplore that the serenity and integrity of the Court’s procedures can be betrayed in this way – the effect of these judgments may be to re-open the question of whether the CC is able to perform its role generally in other cases. 

And give the lie to the idea that the Court has turned its back on Turkey.

Announcements: CfP New Security Challenges – Organized Crime and Urban Conflict in the Americas; CEILA Annual Lecture; UNIJURIS Conference

Sun, 03/18/2018 - 10:00

1. Call for Papers: “New Security Challenges: Organized Crime and Urban Conflict in the Americas”. Universidad del Pacifico Law School announces a Call for Papers for its conference “New Security Challenges: Organized Crime and Urban Conflict in the Americas” to take place 24 – 26 October, in Lima, Peru. The conference will explore the human rights challenges posed by militarization of responses against organized crime and seek to offer concrete steps and policy options for Latin American governments. Details for the event can be found here. The full call for papers is available here. The deadline for submitting abstracts is 15 May 2018.

2. CEILA Annual Lecture. On Wednesday 28 March 2018 (18.00-19.30), the Centre for European and International Legal Affairs (CEILA) Annual Lecture will be delivered by Professor Tulio Treves and is entitled “The EU and the Law of the Sea – An Assessment”. The lecture will be chaired by Professor Malgosia Fitzmaruice (Queen Mary University of London).  The event is free but there is a registration requirement. For more information, see here

3. UNIJURIS Conference 18 June 2018. Since 2013, a research project has been run at Utrecht University on ‘unilateral jurisdiction and global values’ (UNIJURIS), headed by Prof. Cedric Ryngaert. The project will present its results at a conference in Utrecht on 18 June 2018. The project has systematically mapped and critically analysed assertions of state (and EU) jurisdiction with an extraterritorial dimension, from a public international law perspective. The project has examined jurisdictional assertions in a considerable number of issue areas, in particular fisheries, marine pollution, business and human rights, climate change, anti-corruption, data protection, and cybercrime. The eight researchers involved in the project will present their findings, after which academic experts and practitioners will comment.  See here for more information on the project. To attend, please register by emailing Secretariaat.IER {at} uu(.)nl var mailNode = document.getElementById('emob-Frpergnevnng.VRE@hh.ay-50'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%53%65%63%72%65%74%61%72%69%61%61%74%2E%49%45%52%40%75%75%2E%6E%6C"); tNode = document.createTextNode("Secretariaat.IER {at} uu(.)nl"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-Frpergnevnng.VRE@hh.ay-50"); mailNode.parentNode.replaceChild(linkNode, mailNode); . The conference takes place from 8:30-17:10 at Pauzhuize, Kromme Niewegracht 49, 3512 HE Utrecht. For the full programme, please visit the event site here.

The Use of Nerve Agents in Salisbury: Why does it Matter Whether it Amounts to a Use of Force in International Law?

Sat, 03/17/2018 - 10:00

Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.  

Use of Force, Armed Attack & Self Defence

The first point is an obvious one, saying that an act is a use of force under international law potentially opens the door to a response in self-defence. Or to put it the other way round, for something to be an armed attack which would justify a response in self-defence, it would have to be a use of force. As the International Court of Justice stated in the Nicaragua case (ICJ Reps., 1986) : “it will be necessary to distinguish the most grave forms of use of force (those constituting armed attacks) from other less grave forms.”  (para. 191, emphasis added). In this particular context, one might ask whether this is an important point given that we are unlikely to see the UK taking military action on the territory of Russia anytime soon. However, if the UK were contemplating a cyber operation in response to the alleged Russian act (as has been mooted here and here), it may well need to consider whether that cyber operation amounts to a use of force and whether that use of force can be justified on the basis of self-defence. That would depend, in the first place, on whether the use of the nerve agents was an armed attack which would in the first place require one to categorise it as a use of force. And it would also depend on a determination that a use of force in self defence is necessary to bring an attack to an end or to prevent a future imminent one, and is proportionate to the armed attack (on which see Tom Ruys’ post).

Use of Force, Countermeasures and Circumstances Precluding Wrongfulness in the Law of State Responsibility

Second, if the use of the nerve agent was a use of force by Russia then it may not be justified as a countermeasure or reprisal under the law of state responsibility (Art. 50(1) ILC Articles on State Responsibility). Now, to be clear, Russian is not even admitting to undertaking the acts and is therefore clearly not seeking to preclude the wrongfulness of the act as a countermeasure in response to a perceived UK breach of international law. However, I note this point because in arguing about the principles at stake here one ought to be attentive to the implications of the argument being made.

It is worth noting that the two points made above arguably pull in different directions. To say that a low-level use of force like the attempting killing in Salisbury is not a use of force caught by the prohibition of force is to say that it can be lawful to do it as a countermeasure. So those like Marc Weller who take the view that these sorts of acts are below a threshold for the use of force can be said to take a permissive approach with respect to this type of low level activity, in that the view taken would allow states to do the act more often than would otherwise be the case. Permissive because it would open up the possibility that such acts may potentially be justified by circumstances precluding wrongfulness.

However, the pull in the opposite direction is this: to say, as Tom Ruys does, that the act is a use of force is to open up the possibility that self defence measures to be taken in response to it. And that position may be said to be a permissive one too with regard to the use of force.

Use of Force and Jus Cogens (and Circumstances Precluding Wrongfulness Again)

A third consequence of characterizing an act such as that in Salisbury (or any other low-level forcible act) as a use of force is that it is then arguably a beach of a jus cogens norm. This is because there is widespread acceptance that there is a jus cogens norm in the area of the prohibition of the use of force, even though there is not always agreement on how to formulate it. Whether one considers that the act in Salisbury amounted a violation of a norm of jus cogens would of course depend on what the jus cogens norm is. It may be argued that it is the prohibition of aggression that is the jus cogens norm and not the prohibition of the use of force itself. It may also then be argued that like the armed attack criterion in the law of self-defence, characterization of an act as an act of aggression requires a gravity threshold [see this piece by Antonios Tzanakopoulos and me, where we note that the General Assembly Definition of Aggression, GA Res 3314 (1974) seems to include a gravity threshold in Art. 2]. However, if one takes a broader view of the prohibition of aggression then any use of force which is a breach of the UN Charter, i.e a breach of the prohibition that cannot be justified under the recognized exceptions, is an act of aggression by the state concerned.

In any event, if one takes the view that the act is a use of force and a breach of a norm of jus cogens then certain consequences would follow. First circumstances precluding wrongfulness under the law of state responsibility may not pleaded as a defence to a breach of a jus cogens norm (Art 26, ILC  Articles on State Responsibility) except of course self defence and consent, which would already be ruled out for one to classify it as an act of aggression. Second if the breach is a serious one, because it is gross or systematic, there are certain consequences that follow under the law of state responsibility (Arts. 40 & 41 ILC Articles on State Resp.) – states must cooperate to bring it to an end and must not recognize the situation created by it.

Use of Force, Erga Omnes Breaches and Third Party Counter Measures

In the comments to Marc Weller’s post, Martin Dawidowicz points out a fourth consequence of determining that the act is a use of force, which is that it would be a breach of an erga omnes norm – one owed to the international community as a whole – such that third states can invoke Russia’s responsibility. More pertinently, such a breach would then permit (in Martin’s view, and mine too) third party countermeasures as a matter of customary international law. This would mean that states other than the UK can impose countermeasures (sanctions consisting of acts that would otherwise breach international law) on Russia. If the act is a breach of a jus cogens norm, then it would automatically be a breach of an erga omnes norm. However, it could be argued that the prohibition of the use of force is itself an erga omnes norm even if that prohibition standing on its own, as distinct from the prohibition of aggression, is not a jus cogens norm.

Use of Force and International Armed Conflicts (and International Criminal Law)

A fifth consequence of charactering the act as a use of force is that it brought into effect, even if only briefly, an international armed conflict between the UK and Russia. Some, like Federica Paddeu, in the comments to Marc’s post, and Charlie Dunlap have frowned on this possibility. I have previously discussed (here, here, and here) the argument that a use of force on the territory of a state without the consent of that state brings into effect an armed conflict between the two states thus leading to the applicability of the law of international armed conflicts in relation to that conflict between the two states. I won’t repeat the argument here. However, I would like to address the concerns that have been expressed by some in relation to this argument. As Rob Lawless points out in his comment to Marc’s post, there seems to be an assumption that if there is an international armed conflict this, on its own, provides authorization to use force on the territory of another state. But it does not! We need to be clear about the different functions of the jus ad bellum and the jus in bello. The former is about whether and when a state is entitled to resort to force. The latter is about the law that applies during an armed conflict. All that the applicability of the law of armed conflict does is to trigger for participants in an armed conflict, the prohibitions, protections and (in an international armed conflict) permissions that might exist in that body of law. Nothing in the law of armed conflict justifies or excuses a violation of the prohibition of the use of force on the territory of another state. Only the exceptions to the prohibition that are contained in the Charter would justify or excuse such a violation.  Thus, the only thing that authorizes the use of force in another state is the jus ad bellum. For the UK to use force against Russia, it would need to show that its actions are being conducted in self defence (since it would, in practice, be impossible for the Security Council to authorize such an action).

I take the point that this legal nuance may be lost on the public. But it is one that lawyers have an obligation to explain to policy makers.

As Ryan Goodman and Alex Whiting have pointed out, if there was an armed conflict between Russia and the UK then the possibility of treating the attempted killings as war crimes arises. This has implications not only for the ICC as the suggest but also has implications for domestic prosecutions whether in the UK or elsewhere of persons who are alleged to be responsible for the acts. Assuming these persons are Russian officials who were acting in their official capacity, the question whether they would have immunity ratione materiae from prosecution would arise. If the acts are war crimes then there is a strong argument that there is no immunity ratione materiae (see this article by Sangeeta Shah and me  and see also the International Law Commission’s  Draft Art. 7 on the Immunity of Officials from Foreign Criminal Jurisdiction adopted in 2017)

 

The Salisbury Attack: Don’t Forget Human Rights

Thu, 03/15/2018 - 19:10

It is fascinating to observe how international law has provided the frame for the escalating political dispute between the UK and Russia regarding the attempted murder of Sergei Skripal and his daughter with a nerve agent in Salisbury. The dispute is of course primarily factual. In that regard, both states generate their own facts, and the dispute revolves primarily on whom one chooses to trust – what does the average citizen (or international lawyer) know, after all, about the Novichok-class of nerve agents, their deployment, properties and effects? The attribution of the attack will thus inevitably depend on the credibility of the relevant experts, investigators and intelligence officials.

But again – note the framing effect of international law on this dispute. We saw how Theresa May chose her language very carefully when she accused Russia of an unlawful use of force (but not necessarily an armed attack). Both the UK and Russia have accused each other of failing to abide by the Chemical Weapons Convention. Russia has challenged the credibility of the UK’s investigation, asking for the involvement of the OPCW as an independent, expert and competent third party. The UK itself has engaged with the OPCW, asking it to verify its forensic analysis. The debate in the Security Council yesterday was replete with references to the Convention and OPCW specifically and international law generally. So was the debate earlier in the day in the British Parliament (Hansard transcript).

There is, however, one part of international law that has been largely and unjustifiably missing from this debate, and that is human rights. The attempted killing of Mr Skripal and his daughter is not simply  a violation of the UK’s sovereignty, as set out in today’s joint statement of the UK, US, France and Germany. It is a violation of these individuals’ right to life. In that regard, while I think the discussion that Marc Weller and Tom Ruys have so ably led about the de minimis thresholds (if any) of the concepts of the use of force in Article 2(4) and armed attack in Article 51 of the UN Charter is both interesting and very important, it is in my view somewhat distracting, as is the focus on chemical weapons. It is these two people (and others incidentally affected) who are the main victims here, not the British state. It is their rights in international law that we should primarily be concerned with, not those of the British state (or for that matter Russia). It is their life that was endangered, not that of the British state. And their right to life would have been no less harmed if they were simply shot or stabbed or even poisoned a bit more subtly by an FSB agent.

I am thus struck by the absence of public references to the violation of Skripals’ right to life. That, too, is I think calculated. The Prime Minister has repeatedly referred to the event as a (presumably domestic) crime; the UK ambassador to the UN has also said that ‘[t]he reckless act in Salisbury had been carried out by those who disregarded the sanctity of human life.’ But neither the Prime Minister nor the ambassador directly accused Russia of failing to comply with its obligations under human rights law. Why? Because if they did so, they would effectively be arguing that Russia’s obligations under say the ICCPR and the ECHR extend extraterritorially to a killing in the UK. And that, recall, is not what the British government wants to do, because it does not want to have to comply with these obligations if it used kinetic force abroad to kill an individual in an area outside its control, say by a drone strike.

Here, in other words, we can also see how international law shapes the arguments that are used, or not used. I have long argued that the 2006 killing of Alexander Litvinenko was – as far as the extraterritorial application of human rights was concerned – not legally distinguishable from cases of aerial bombardment a la Bankovic. The same goes for last year’s macabre killing of Kim Jong-nam in Malaysia, at the orders of his half-brother, the North Korean dictator. And the same is true here. Those arguing for a restrictive application of human rights – as the US and UK governments have both done – must be aware of the consequences of doing so. That argument necessarily implies that the interests of individuals like the Skripals, attacked so brutally by a hostile state, are not protected at all in international law. That vision of international law, in which individuals are the mere objects, and not subjects, of its regulation, is not terribly attractive, even – especially even – in 2018. And so I say: when talking about Salisbury, whether it is this Salisbury or some other Salisburys, don’t forget human rights.

An International Use of Force in Salisbury?

Wed, 03/14/2018 - 23:06

In the afternoon of Sunday, 4 March, Mr Sergei Skripal and his daughter Yulia were found slumped on a park bench in Salisbury. Mr Skripal is a former Russian agent convicted of espionage for the West, exchanged in a spy swap and brought to live in the UK. He, his daughter and a number of individuals who had attended to them were found to have been exposed to a nerve agent known as Novichok. At the time of writing, both remained in critical condition in hospital, with uncertain prospects of recovery. One of the first responders, Detective Sergeant Nick Bailey, was also kept in hospital in a serious condition.

On 12 March the British Prime Minister addressed the House of Commons. She claimed that it was ‘highly likely’ that the government of the Russian Federation was responsible for the action. She asserted that ‘either this was a direct action by the Russian state against our country, or the Russian government lost control of its potentially catastrophically damaging nerve agent and allowed it to get into the hands of others.’ She demanded a ‘credible response’ by Russia within a day, indicating that, failing such a response, the UK would conclude that this action ‘amounts to an unlawful use of force by the Russian state against the United Kingdom.’ [The Prime Ministers statement can be viewed at http://www.bbc.co.uk/news/uk-43377856.]

The responsibility for the action was placed on the Russian Federation by the UK government in view of its previous suspected involvement in the assassination in the UK of former Russian security operative Alexander Litvinenko in 2006 using the similarly exotic means of radioactive polonium, instances of politically motivated killings allegedly undertaken by Moscow elsewhere, and Moscow’s perceived generally aggressive attitude towards the West, and the UK in particular, especially after its purported annexation of Crimea in 2014.

The Russia government dismissed the allegations and requested samples of the nerve agent in order to mount its own investigation, ignoring Ms May’s deadline. Moscow instead offered cooperation through the relevant mechanism of the Organization for the Prohibition of Chemical Weapons (OPCW). While Russia’s responsibility for the action will evidently remain contested, this post considers the claim of the UK government that it amounts to a ‘use of force’.

The prohibition of the use of force is one of the cardinal, jus cogens rules of international law. Serious violations of the rule trigger consequences for the international community as a whole, including the obligation not to assist the author of the violation in maintaining its consequences in place, the obligation not to recognize the result, and to cooperate through international bodies in attempting to overturn it.

The killing of individuals by state agents outside of an armed conflict is however not ordinarily considered to be covered by the prohibition of the use of force. Where a state assassinates within its own domestic jurisdiction, the designation usually employed is extra-judicial killing, mainly raising issues of human rights. The killing of individuals abroad by military means (drones, missiles) in foreign territories is generally considered under the heading of ‘targeted assassinations’ which will tend to occur either with the active or tacit consent of the territorial sovereign (Yemen for some time, possibly Pakistan), in the absence of an effective government (Somalia) or during a time of armed contestation for power in a foreign territory (Syria and Iraq).

In addition to the human rights of the victims, assassinations on foreign soil without the consent of the local sovereign also amount to a violation of the territorial sovereignty of the state concerned—an act of intervention. An intervention consists of a public act committed by one state within the area of domestic jurisdiction of another without the latter’s consent.

It is, of course, entirely possible that an act of intervention may also amount to a use of force. The International Court of Justice has confirmed that acts which breach the principle of non-intervention ‘will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.’ [Nicaragua Case [1986 ICJ para 209], affirmed in DRC/Uganda Armed Activities [2005 ICJ para 164.]] For instance, if the armed forces of state A conduct a commando raid against an alleged terrorist base in state B, this would amount to an intervention and a use of force.

However, in the past, an individual assassination would not be seen to fit into this context. Article 2 (4) of the UN Charter is traditionally interpreted to concern itself with kinetic force of sufficient intensity administered across borders through regular or irregular military means. The use of force must be aimed at a sovereign object identified with a state, such as foreign territory, ships or aircraft. Arguably, an assault by military means on a group of nationals abroad on account of their nationality might also involve the prohibition of the use of force. However, violence against specific individuals is unlikely to cross that threshold.

A borderline case arose in April 1993, when former US President George HW Bush visited Kuwait to be decorated in the wake of the first conflict with Iraq. It was claimed that a plot by Iraqi intelligence to assassinate him was narrowly averted. Two months later, in June 1993, President Bill Clinton launched 23 cruise missiles against the Iraqi intelligence headquarters building in Baghdad. The US claimed that the attempted assassination of the former President was an attack against the United States and its people.

Such a claim could be arguably made, given the symbolic position of the former President, although the case for self-defence was not compelling for other reasons. But how about assaults launched by foreign states against individuals of lesser standing on foreign territory? Traditionally, these have been addressed through law enforcement action against the individual operatives involved, if detained, and by the invocation of state responsibility and demands for satisfaction and compensation in relation to the sponsoring state.

Of course, ordinarily the sponsoring state will deny its involvement. An exceptional case is furnished by France. Paris confirmed its commissioning of the sinking of the Greenpeace campaigning vessel Rainbow Warrior in Auckland Harbour in 1985 after two of its agents, Captain Prieur and Major Mafart, were detained in New Zealand. The pair had sunk the ship through the use of a limpet mine they had placed on the hull under the water-line, killing a Dutch/Portuguese photographer in the process.

New Zealand courts convicted both individuals, imposing ten-year sentences. However, under a diplomatic settlement negotiated by the UN Secretary-General, they were allowed to serve their sentence on the French Polynesian island of Hao and were later, controversially, repatriated to France.

Despite the use of a military-style assault on the Rainbow Warrior (limpet mines attached by frogmen/women) and the sinking of the vessel in consequence, the issue was not treated as an international use of force. Instead, it was considered an unjustified intervention in New Zealand territory and settled through apology and compensation.

Similarly, Malaysia has not pursued the assassination of Kim Jong-nam, half brother of North Korea’s leader, a year ago as an international use of force. He died after exposure to the deadly nerve agent VX at Kuala Lumpur airport by two operatives.

After her statement to Parliament, Theresa May’s addressed a letter to the UN Security Council, referring to an ‘attack’ on British soil which offended against the ‘rules-based international order.’ [S/2018/218] During the debate in the Council on 14 March, the UK Permanent Representative then reiterated the view that an attack had taken place which constituted an unlawful use of force, invoking expressly Article 2 (4) of the Charter as the very basis of the international legal order.

This position elevates what would otherwise be the commissioning of a crime on British soil and an act of intervention by a foreign state to a higher plane of violation of international law.

Clearly, invoking this legal category was meant to raise the stakes in the diplomatic confrontation with Russia that is now erupting. The experience of the UK in the Litvinenko case may explain this change of tack. There, the attempt to cooperate with the Russian Federation for over a decade in a law enforcement approach had visibly failed. Seemingly adding insult to injury, the principal suspect ended up as a high profile member of the Russian parliament, rather than face surrender for trial in Britain.

The UK may argue that the use of nerve agents on UK territory justifies this dramatic claim. The use of such agents is internationally proscribed. Deploying such weapons remains mainly the preserve of states due to the difficulties of producing and handling the compounds involved, moving such acts from a domestic crime into the area of state responsibility. But can the character of the weapon used transform an act of intervention into a ‘use of force’?

A focus on the weapons used, rather than on the actual harm done, reminds of the legal justification offered by the UK government when military action against Syria appeared to be contemplated in 2013 in response to the Sarin attack in Eastern Ghouta. At that time, the alleged use of chemical weapons by the Syrian government against civilian populations was invoked as a key argument to justify action under the doctrine of forcible humanitarian action.

While the Syrian population had suffered from very widespread, damaging and indiscriminate attacks (barrel bombs) for a considerable period, it appeared that the use of chemical agents was seen as a qualitatively different factor, adding to any available legal justification of the use of force in response. A similar argument appears to have underpinned the actual use of force by the Trump administration of April 2017. The Shayrat airbase, held by Syrian government forces, was targeted on account of its alleged involvement in a further chemical weapons attack.

Of course, in relation to Syria, there was indeed a very great deal of indiscriminate destruction of life in consequence of the use of chemical weapons. However distressing the events in Salisbury are, in terms of scale of the consequences of the action, the two cases do not easily compare.

Yet, anyone coming into contact with nerve agent or the primary victims in Salisbury may have been under threat. In her statement to parliament, the UK Prime Minister referred to the ‘potentially catastrophically damaging nerve agent’ that was used. In the Security Council, the UK claimed that as many as 100 citizens had been potentially exposed.

Evidently, the UK is seeking to set a signal at this point, asserting that some means of intervention are inherently of such a nature as to transform an unlawful intervention into an unlawful use of force. This special character is a reflection of the uncontrollable potential of chemical and related weapons for causing indiscriminate harm, whatever the scale of actual injury or death actually caused by its use.

It is not yet clear whether this strategy will succeed. All members of the Council condemned the action in Salisbury, variously describing it as an attack, an incident, a hostile act, a crime or a threat to international peace and security. The designation of the act as a use of force, on the other hand, was not echoed in the Chamber. Rather than discussing the matter in terms of the law on the use of force, the debate focused on law enforcement (accountability), resisting a violation of the chemical weapons convention and establishing the facts through the appropriate international mechanisms.

A number of related legal concepts may now come into play. In order to seize the UN Security Council, the UK had to point to an endangerment of international peace and security (Chapter VI), or even a threat to the peace (Chapter VII)—both terms were employed by other delegations in the debate. Clearly, this matter does fall within the remit of the Council, Russia’s claim that other mechanisms, such as the OPCW, are better suited to addressing it notwithstanding.

The use of the term ‘attack’ by the UK and several delegations raises the question of whether a claim to self-defence can be made. Article 51 of the UN Charter requires an ‘armed attack’ as the trigger point for self-defence.

NATO noted London’s position that an ‘indiscriminate and reckless attack against the United Kingdom, putting the lives of innocent civilians at risk’, had taken place. In its own statement, it expressed  ‘deep concern at the first offensive use of a nerve agent on Alliance territory since NATO’s foundation’.  The term ‘offensive use’ might conceivably be interpreted as equivalent to an ‘armed attack’. However, it is presumably no accident that the former term was used instead of the latter. Rather than invoking Article 5 of the NATO Treaty, or referring to a use of force, the North Atlantic Council instead considered the matter a ‘clear breach of international norms and agreements’.

In conclusion, the UK has upped the ante in its confrontation with Russia, moving the issue from a violation of its sovereignty and a crime committed on its territory to the realm of threats to the peace and the unlawful use of force.  The suggestion that an assault using toxic agents against individuals in a foreign territory constitutes a ‘use of force’ in the sense of Article 2 (4) of the Charter seems persuasive where their indiscriminate effect causes significant casualties meeting the threshold of that provision.

The thesis that any use of toxins would amount to a use of force, due to their potential (rather than actual) widespread and indiscriminate effects, will need to be tested in the further positions of states over the weeks to come. Presumably great care will be taken to ensure that talk about an ‘attack’ will not move the debate further, and recklessly,  into the territory of the jus ad bellum.

Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo

Tue, 03/13/2018 - 08:00

In his State of the Union speech on January 30, 2018, U.S. President Donald Trump announced his signing of a new executive order aimed at keeping open the U.S. detention facility at Guantanamo Bay, Cuba, as well as approving its repopulation. This post considers how the law of war governing detention in armed conflicts constricts the ability of the U.S. to hold persons in military prisons at Guantanamo in the manner suggested by this new order.

Formally speaking, Trump’s executive order repeals a critical portion of President Obama’s 2009 order calling for the Guantanamo prison site to be closed “as soon as practicable, and no later than 1 year from the date of this order.” The 2018 order also provides that the U.S. may “transport additional detainees” to the facility “when lawful and necessary to protect the nation.”

On the one hand, this executive order simply makes explicit what has already been President Trump’s de facto Guantanamo policy since taking office. While the Obama Administration worked to reduce the Guantanamo population considerably, resettling 197 of the 242 detainees remaining at the facility, President Trump has resettled none — not even five detainees cleared for release by the Department of Defense prior to Trump’s taking office. On the other hand, the order reflects a radical shift in policy. It suggests not merely the President’s tolerance of what has become the U.S.’ policy of indefinite detention — as some detainees have by now remained at Guantanamo for more than 16 years without charge — but indeed his more extreme belief in the value of Guantanamo detention, including indefinite detention, as a tool to keep (in his words) “dangerous terrorists” off the “battlefield.” Furthermore, by opening the door to future detentions, the order departs considerably from U.S. policy for more than a decade, as even the Bush Administration engaged heavily in detainee resettlement and ultimately concluded that maintaining the Guantanamo site was against national interests.

Policy aside, Trump’s executive order raises a number of important legal questions about the lawfulness of U.S. detentions at Guantanamo, some of which had also been raised in U.S. federal court cases even just a couple of weeks before Trump’s announcement. These questions pertain to U.S. authority to detain persons in times of armed conflict as a matter of international law, as well as, relatedly, as a matter of U.S. law.

Trump’s executive order makes a number of references to international law. The opening line, for example, states that “[c]onsistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.” Another line stipulates that the U.S.’ detention operations at Guantanamo are “conducted consistent with . . . international law.” But most importantly, the order invokes international law to articulate the particular “armed conflicts” in which persons captured in connection thereof purportedly might be detained — or continue to be detained, if already at the facility. According to Section 1(b), “the United States remains engaged in armed conflict with al Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.” Though stated in conclusory terms, these assertions do not necessarily align with the law of war.

For one, it is settled law that in international armed conflicts (IACs), states may detain prisoners of war only until the end of active hostilities (Third Geneva Convention, Article 118), and other persons only so long as their internment is necessary for security reasons, and no longer than the close of hostilities (Fourth Geneva Convention, Articles 42 & 132-133). This means that the detention of individuals picked up in relation to U.S. operations in Afghanistan cannot last forever. These detentions may last no longer than the presence of active fighting, a point that we return to below.

President Trump’s statements in favor of repopulating Guantanamo also seem to suggest the potential for an increase in the number of individuals detained in relation to non-international armed conflicts (NIAC) — perhaps individuals apprehended in the course of orchestrating ISIS activities, or in connection to other terrorist plots. While the law authorizing NIAC-based detentions is considerably less certain than the law governing IAC detentions, the bulk of authority seems to indicate that such detentions may also not last forever. Recent years have seen fierce debate over the question of whether the Geneva Conventions authorize and regulate detention in NIACs (as has been examined in prior posts, and in particular with regard to the Serdar Mohammed decision in the United Kingdom — see e.g. here and here). Nevertheless, Professor Ryan Goodman has convincingly argued with regard to U.S. detentions at Guantanamo that the authority to engage in particular detention practices under the Geneva Conventions in IACs a fortiori reaches NIACs, since states have accepted more stringent obligations in IACs. Though he leaves open the question of whether proscriptive rules constraining detention transfer from IACs to NIACs, he indicates that proscriptive rules constraining NIAC detention can also be found in other sources of international law. The ICRC maintains that Article 75 of Additional Protocol I — which provides that detainees must be informed of the reasons for their detention and released as soon as the circumstances justifying their detention cease to exist — reflects customary international law. (See The Relevance of IHL in the Context of Terrorism: 01-01-2011 FAQ, ICRC (Jan. 1, 2011)). Moreover, some commentators have specifically concluded that Article 75, or at least critical provisions of it, is applicable to NIACs as well as IACs. (See Knut Dörmann, Detention in Non-International Armed Conflicts, in Non-International Armed Conflict in the Twenty-First Century 347, 357 (Kenneth Watkin & Andrew J. Norris eds., 2012); Oona Hathaway et. al., The Power to Detain, 38 Yale J. Int’l L. 123, 157 (2013)). Knut Dörmann for instance has explained that various parts of Article 75(3) and (4) apply to NIACs as well as IACs. Likewise, Rule 128 of the ICRC Customary IHL Study states persons detained in NIACs “must be released as soon as the reasons for the deprivation of their liberty cease to exist.” Notably, the Obama Administration, which was not willing to accept that Article 75 was legally binding in NIACs, nevertheless took the position that its practices were consistent with Article 75. (See Oona Hathaway et. al., The Power to Detain, 38 Yale J. Int’l L. 123, 156-157 (2013)). Accepting this view, both NIAC- and IAC-based detentions must, at a maximum, come to a close at the end of active hostilities.

Another issue with Trump’s order comes via U.S. law, where these international law obligations have been understood to act as constraints on the Executive’s detention authority. Here it is again clear that the Executive’s authority must accord with IHL rules governing detention, including restrictions concerning “active hostilities.” Specifically, in the 2004 Supreme Court case Hamdi v. Rumsfeld, six Justices held that the Executive’s power to detain combatants in the War on Terror existed only so long as “active hostilities” remained ongoing in the relevant conflict. (Hamdi, p. 2639-44). Though the Court in that case addressed the nature of Mr. Hamdi’s detention as part of the U.S.’ IAC with Afghanistan, its pronouncements concerning the need to interpret the Executive’s authority under the AUMF in light of the “law of war” seem to equally support a restriction on detentions in NIACs to conditions of “active hostilities.” The plurality made explicit reference to the Third Geneva Convention of 1949 and enunciated its view that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” The Justices again pointed to the Third Geneva Convention in holding that “[p]risoners of war shall be released and repatriated without delay upon the cessation of active hostilities.” (Hamdi, p. 2641). They also appeared to rely on international law when interpreting “indefinite detention for the purpose of interrogation” as “[un]authorized” under the AUMF. (Hamdi, p. 2641; see also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2094 (2005)).

A key question under both domestic and international law in relation to Trump’s new order, then, is how “active hostilities” are to be determined. After all, a determination that hostilities have ceased, in the conflict connected to an individual’s detention, renders illegal that detention at both international and domestic law. Though not mentioned in the executive order itself, it appears that the Trump Administration maintains (or assumes) that the United States is currently engaged in “active hostilities” with all of the entities mentioned in the executive order. (See this letter from the President to Congress). These bald assertions, however, seem problematic from both the perspective of international and U.S. law.

First, as the ICRC has summarized, whether a non-international conflict continues to exist as a matter of international law “does not depend on the subjective judgment of the parties to the conflict” and “must be determined on the basis of objective criteria.” (Int’l Comm. of the Red Cross, Working Paper 8 (June 29, 1999)). Indeed according to the ICRC, the term “close of hostilities” in Article 133 of the Fourth Geneva Convention and the term “cessation of active hostilities” in Article 118 of the Third Geneva Convention refer to “a state of fact rather than the legal situation covered by laws or decrees fixing the date of cessation of hostilities.” (4 Int’l Comm. of the Red Cross, Commentary on the Geneva Conventions of 12 August 1949, Geneva Convention Relative to the Protection of Civilian Persons in Time of War 514-15 (Jean Pictet et al. eds., 1958) (emphasis added)). Moreover, history suggests that during the drafting of the Fourth Geneva Convention, the U.S. delegate specifically advanced an interpretation of the term “active hostilities” as based on facts on the ground, and not on a Presidential proclamation or the final surrender of all relevant groups. (See Bettina Scholdan, “The End of Active Hostilities”: The Obligation to Release Conflict Internees Under International Law, 38 Houston J. Int’l L. 99, 160 (2016)).

Second, in the case of domestic legal challenges, U.S. federal courts, not the President, will ultimately the determinants of “active hostilities.” Several such challenges are already ongoing in relation to existing Guantanamo detentions on this point. The main support for this position comes from Hamdi again, where the plurality referenced international law extensively in interpreting the Executive’s authority under the AUMF. In doing so, the plurality was careful to note that the detention authority provided by the AUMF only exists “if the record establishes that United States troops are still involved in active combat in Afghanistan.” (542 U.S. 507, 521 (2004) (emphasis added)). Consistent with this approach, U.S. courts have analyzed factual records on numerous occasions over the years to decide whether or not conflict exists, and whether or not hostilities are ongoing, in addition to considering statements of the political branches. (See Deborah Pearlstein, Law at the End of War, 99 Minn. L. Rev. 143, 151-69 (2014) (reviewing case law)).

As one recent example, the District Court of the District of Columbia in Al-Warafi v. Obama clarified that it would engage in an independent factual assessment in which the Executive’s opinion is considered but is by no mean dispositive. As that court noted: “By [the Government’s] logic, so long as he maintained that active hostilities were ongoing in Afghanistan, the President could preserve his AUMF detention power . . . . But . . . the President’s position, while relevant, is not the only evidence that matters.” (2015 U.S. Dist. LEXIS 99781 at *14 (D.D.C. 2015), order vacated, appeal dismissed (Mar. 4, 2016)). After rejecting the position that courts had to defer to the Executive’s viewpoint, the court explained that its “responsibility here is likewise to determine the existence or nonexistence of active hostilities using all relevant evidence.” Based on this precedent, Guantanamo detainee Moath Hamza Ahmed al-Alwi, who has been held at Guantanamo for more than 15 years, is presently contending before the D.C. Circuit that his detention is unlawful precisely because “active hostilities” have expired and the Executive lacks unilateral authority to determine the cessation of hostilities.

As such, executive pronouncements are not on their own determinative of whether a state is in state of “active hostilities.” Like the presence of an “armed conflict,” “active hostilities” is a legal state of affairs that under both international and U.S. law requires a factual determination — not simply a presidential decree. The Trump Administration would therefore be wrong to presume that its unilateral assessment of the conflict could suffice as authorization for new and ongoing indefinite detentions.

Such factual review of “active hostilities” is important as there may be room to question whether the U.S. is in a state of “active hostilities” in at least some of the conflicts mentioned in the order — particularly those in Afghanistan. At numerous points in 2014, for instance, President Obama officially declared that the combat mission in Afghanistan had reached its conclusion. See Official Statements here (“[O]ur combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.”), here (“Together with our allies and the Afghan government, we have agreed that this is the year we will conclude our combat mission in Afghanistan.”), and here. In its December 2016 Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, the Obama Administration discussed the AUMF authorization to use force against the Taliban, al-Qaeda, and associated groups in Afghanistan, as well as al-Qaeda in Syria and Libya. However, the Administration did not expressly characterize its actions against these groups as occuring within the context of armed conflicts. (See Dustin A. Lewis et. al. Indefinite War: Unsettled International Law on the End of Armed Conflict, Harv. L. Sch. Program on Int’l L. & Armed Conflict (HLS PILAC) (Feb. 2017), notes 368-74 (and sources cited therein)). Scholars such as Deborah Pearlstein and Bettina Scholdan have picked up on these uncertainties, questioning whether the U.S. is engaged in active hostilities with the Taliban in Afghanistan and emphasizing the critical distinction between U.S. military presence and actual “active hostilities” under international law.

Furthermore, President Trump’s past statements have envisaged use of the Guantanamo prison in manners in tension with the law of war. Notably, soon after the tragic October 31 truck attack in New York City, President Trump publicly explored the possibility of sending perpetrator Sayfullo Saipov to Guantanamo Bay, despite the fact that Saipov was never part of an ISIS armed group fighting in Iraq and Syria — and not part of an armed conflict in which the U.S. was engaged in “active hostilities.”

Ultimately, just how far the Trump Administration will take the order’s broadly-phrased authority to detain at Guantanamo whenever the Government deems it necessary to “protect the national interest” is yet to be seen. In any case, the executive order is another worrying sign that for this Administration, important restrictions provided by the law of war — guarding against the indefinite detention of persons in both NIACs and IACs — may take a backseat to impulsive policy.

Do We Need Another Database of International Law Documents?

Mon, 03/12/2018 - 08:00

Online databases and repositories appear to be the new golden calf of law publishers which have invested a lot of money in these new academic products. Some publishers secured an early lead position in this market while others are now catching up. From the perspective of the academics that contribute to the developments of such tools, the market still appears to be in development and below saturation. Yet, it cannot be excluded that the continued development of databases ends up cannibalizing publishers’ other, more traditional, products, such as reference books and law reports. This is however a debate for another day. For now, it suffices to note that users — whether students, researchers, practitioners — seem to value international law databases; at least as long as their institution can afford to provide them with access thereto.

It is against this backdrop that the recent launch of Oxford International Organizations (OXIO) – which was celebrated on the occasion of a well attended event hosted by the Graduate Institute in Geneva – raises the question of what epistemic and practical gaps which this new database of documents and annotations specifically dedicated to international organizations can potentially fill. This is why, in the following paragraphs, we inquire into some of the disciplinary assumptions upon which the development of such a product rests, especially in relation to the law of international organizations (1), as well as the concrete benefits which users can draw from OXIO (2).

Consolidating the Law of International Organizations?

The creation of a new database specifically dedicated to the law and practice of international organizations inevitably raises a number of foundational and conceptual questions. Indeed, while there may be a general consensus that international organizations, first created at the end of the 20th century, have come to proliferate since 1945 and today play an increasing role in international society, the actual extent of this role and the implications for international law remain the object of intense debate. For instance, it is not self-evident that there is such a clearly defined and epistemologically coherent area of law like ‘the law of international organizations’, distinct from both general international law and from individual institutional and treaty regimes. Moreover, the way in which the law and practice of international organizations is approached and theorized varies greatly. For some, the primary question and aim of any inquiry into the law of international organizations is to focus on the institutional arrangements and procedures of specific organizations; or on possible similarities between such regimes. Others would seek to extract general legal constraints or common institutional patterns with a view to postulating general principles applicable to all organizations. Still others would focus on the effect of general international law in its application to organizations as ‘global actors’. In this context, it is not surprising that the study of the law and practice of international organizations has grown ever more multifaceted, or arguably, cacophonic. And yet, although OXIO can itself be co-constitutive of the field and of the variety of understandings thereof, its creation does not prejudge the question of whether there exists a coherent ‘field’ like the law of international organizations. OXIO similarly can accommodate the contestations of the epistemological autonomy of the field as well as the various perspectives from which the law and practice of international organizations are examined, discussed and criticized.

True to say, the mission of OXIO is not without paradox. On the one hand, it capitalizes on the current popularity of the law and practice of international organizations among researchers and practitioners. In fact, the production of new articles, research monographs on the law and practice of international organizations, as well as the updates to the field’s foundational textbooks continues unabated. OXIO reinforces and consolidates this scholarly vitality and proliferation. On the other hand, OXIO is launched at a time in which support for the field’s main object of study, i.e. international organizations, seems to be plummeting to an all-time low inside and outside academic circles and across disciplines. Indeed, while for a long time organizations were seen as the embodiment of progress and a cosmopolitanism of sorts – not least due to the idea that the allocation of power and authority along functional rather than territorial lines seemed to mitigate many of the political and theoretical challenges of international affairs –, the 21st century has now found in international organizations the cause for many of the problems in this world.

In the light of the foregoing, one may wonder whether the omnifariousness of the study of the law and legal practice of international organizations coupled with the plummeting popularity of international organizations in political reality render the creation of a new database specifically dedicated to international organizations moot and futile? We think the opposite view is warranted. A field that bespeaks conceptual diversity and concentrates its efforts on the actions of elusive and sometimes contested global actors can only benefit from a new tool, one that is intended to be a central repository of the legal practice pertaining to international organizations. In particular, it is argued here that a database like OXIO, by centralizing the law and practice of international organizations in one single database, can help turn the ‘cacophony’ into a healthy pluralism and constitute a platform for a variety of distinct perspectives on the law and practice of international organizations. At a time when international organizations are contested, OXIO can provide researchers with innovative instruments to explore, unearth, report, reflect on, evaluate, justify, rehabilitate, repudiate, and criticize what international organizations do and where they stand as political and legal (f)actors in the global community.

It is with this in mind that OXIO has been designed to be not only a resource for the documents of international organizations, but also a substantive repository of thoughts. OXIO is therefore built to be a database which captures, and comments upon, the role of international organizations, their contribution to norm-creation and law-making in various substantive areas of international law, as well as the field of international institutional law in particular. Accordingly, OXIO does not only contain resolutions and decisions of organizations, draft normative texts prepared within the framework of organizations, and constituent instruments of organizations, but also court decisions relevant for the institutional law of organizations, as well as the occasional treaty to which an organization is a party where this brings light to issues of institutional law. As a result, OXIO arguably has the potential to offer unprecedented overview and access to the actual practice of organizations while also revitalizing fundamental questions of theory and doctrine. Ultimately, OXIO enables a field caught between disciplinary cacophony and growing contestation in practice of its object of study, to consolidate itself through new reflexive and investigatory tools.

What do users gain from OXIO?

The rest of this post provides some snapshots of how OXIO accommodates the variety of distinct perspectives on the law and practice of international organizations as well as the contestation of international organizations, while also being a repository for practice, theory and doctrine.

Each headnote contains a concise Summary of the document, relevant Background information, important Analysis and a helpful section which examines the Impact of the document on international law and international affairs.

Perhaps an obvious contribution expected of OXIO are its commentaries on the constituent documents of international organizations. This has never before been undertaken in such a systematic and therefore useful manner. An exemplary sample of this is the Headnote on the Statute of the European Investment Bank which, in addition to reporting on a little examined constituent document, looks at the relationship of the EIB with other European institutions.

 

(Author: Amy Dunne)

 

OXIO seeks to comment upon the relations between major international organizations too, such as the United Nations and the International Criminal Court which, it turns out, emphasizes a lack of a hierarchy between the two bodies. Such an agreement underlies many of the important issues of today, including the referral of the Darfur situation by the UN Security Council.

  (Author: Amy Dunne)

 

Significant historical documents feature in OXIO, including this headnote on the Statute of Jerusalem. It contains crucial insights into a continuing political situation nd it provides a snap shot of the thinking in the 1950s regarding the potential for a solution.

(Author: Michael Lancaster Steiner)

 

OXIO looks at issues that would be typically classified as institutional law, including the following headnote analysing issues to do with membership and suspension in the situation of Egypt following a military coup.

(Author: Işil Aral)

 

International organisations contribute enormously to ‘bread and butter’ issues of international law such as international peace and security. There are an increasing number of actors on the scene with roles in maintaining peace and ensuring security, which at times has led to conflicting legal interpretations. An important document on this issue is the ECOWAS Protocol on a Mechanism for peacekeeping and security on the continent of Africa. The following headnote examines the mechanism and situates the debate in the context of Chapter VII of the UN Charter.

Author (Zied Ayari)

 

Lastly, OXIO looks at issues which are dominated by specialised international organizations and experts, while not always addressed in, or fully appreciated by, mainstream international legal scholarship. These International Health Regulations are just one illuminating example of the increasing powers of international organizations in the field of global health law.

(Author: Suzanne You Zhou)

 

Conclusion

Do we need another database of international law documents as the one introduced here? Irrespective of one’s self-perceived interest in the practice, theory and doctrine about international organizations and the contestation thereof, taking a look at the database – which has open access until July 2018 – may be the simplest way to answer that question.

 

Announcements: CfP Military Law and the Law of War Review; Conference on International Investment Law and NCD Prevention; CfP German Yearbook of International Law; CfP Groningen Journal of International Law; CfP Unpacking Economic and Social Rights; UN...

Sun, 03/11/2018 - 10:00

1. Call for Papers: Military Law and the Law of War Review. The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its coming issue (vol. 56/2), the Review’s editorial board welcomes submissions that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). The deadline for submission is 30 April 2018. Submissions should be sent to brussels {at} ismllw(.)org var mailNode = document.getElementById('emob-oehffryf@vfzyyj.bet-49'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%62%72%75%73%73%65%6C%73%40%69%73%6D%6C%6C%77%2E%6F%72%67"); tNode = document.createTextNode("brussels {at} ismllw(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-oehffryf@vfzyyj.bet-49"); mailNode.parentNode.replaceChild(linkNode, mailNode); and will be subject to double-blind peer review. Articles should normally not be longer than 15.000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the abovementioned e-mail address. Selected papers will be published online on the Review’s website in advance access (in a non-downloadable and non-printable form) as well as on Hein Online following editing and type-setting. The print version of the issue is scheduled to come out in Autumn 2018.

2. Conference on International Investment Law and NCD Prevention. The Law & NCD Unit of the University of Liverpool is organising a conference in London on 10 and 11 May 2018. The conference will explore the relationship between international investment law and policies for preventing non-communicable diseases. The full call for papers and further details can be found here. The deadline for submitting abstracts is 15 March 2018.

3. Call for Papers: Volume 61 (2018) German Yearbook of International Law (GYIL). The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. The Editors are pleased to call for contributions to the “General Articles” section of Volume 61 (2018) of the GYIL. Prior to publication, all manuscripts are independently peer-reviewed by a board of renowned experts. Submissions from all areas of public international law are welcome. The paper should be 10,000-12,500 words inclusive of footnotes and conform with the house style of the GYIL (which is available on our website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent by 1 September 2018 to the Assistant Editors of the GYIL via e-mail: yearbook {at} wsi.uni-kiel(.)de var mailNode = document.getElementById('emob-lrneobbx@jfv.hav-xvry.qr-93'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%79%65%61%72%62%6F%6F%6B%40%77%73%69%2E%75%6E%69%2D%6B%69%65%6C%2E%64%65"); tNode = document.createTextNode("yearbook {at} wsi.uni-kiel(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-lrneobbx@jfv.hav-xvry.qr-93"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

4. Call for Papers: The Groningen Journal of International Law (GroJIL). The GroJIL is now receiving submissions on general topics related to international law for its Volume 6, Issue I to be published mid-2018. The GroJIL is a not-for-profit, open access electronic journal. It is led and edited by students at the University of Groningen, the Netherlands. We particularly welcome submissions that use innovative methods and/or suggest new solutions to overcome the contemporary issues facing international law. The Journal is open to all contributions on international law and particularly interested in receiving articles that specifically focus on how international law should engage with emerging challenges. The word limit for accepted articles is 12,000 words. For more detailed information please consult the GroJIL author guidelines here. The editorial board generally commits itself to reviewing submissions within 30 days. If you want your article to be considered for publication please submit it by sending an email to board {at} grojil(.)org var mailNode = document.getElementById('emob-obneq@tebwvy.bet-58'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%62%6F%61%72%64%40%67%72%6F%6A%69%6C%2E%6F%72%67"); tNode = document.createTextNode("board {at} grojil(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-obneq@tebwvy.bet-58"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by 6 April 2018. For more information, see here

5. Call for Papers: Unpacking Economic and Social Rights: International and Comparative Dimensions Göttingen, Germany. The Institute of International and European Law of the University of Göttingen and the Minerva Center for Human Rights at the Hebrew University of Jerusalem Faculty of Law will be holding a conference in November 2018 in Göttingen, Germany under the title “Unpacking Economic and Social Rights: International and Comparative Dimensions”. The conference is a culmination of a joint research project directed by Prof. Tomer Broude and Prof. Andreas L. Paulus. Scholars who work on economic and social rights are invited to submit abstracts (up to 2 pages). The proceedings of the conference and papers presented will be published in the Goettingen Journal of International Law. Deadline for submission of Abstracts is 1 June 2018. The full call for papers can be found here

6. New additions to the UN Audiovisual Library of International Law. To celebrate International Women’s Day, the Codification Division of the UN Office of Legal Affairs has recorded a lecture by Professor Hélène Tigroudja on “Women’s Rights and the Elimination of Discrimination” (« Droits des femmes et élimination des discriminations»), which is available on the UN Audiovisual Library of International Law website.

New EJIL: Live! Interview with Catherine O’Rourke on her Article “Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions”

Sat, 03/10/2018 - 14:00

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Catherine O’Rourke, Senior Lecturer in Human Rights and International Law at the Transitional Justice Institute and School of Law at Ulster University. Her article “Feminist Strategy in International Law: Understanding Its Legal, Normative and Political Dimensions” appears in issue 4 of volume 28 of the Journal. Rather than taking a specific problem and refracting it through gender and feminist concerns, this article constitutes a reflection on the field itself.

The conversation deepens that reflection, whilst offering fascinating insights on how and why the article came into being, how the study underlying the article was conducted and what kind of general lessons may be gleaned from it. The conversation concludes with some thoughts on how scholars may weave a feminist sensibility into a general international law course. The interview was recorded at the European University Institute.

 

New EJIL: Live! Interview with Yahli Shereshevsky on his Article “Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts”

Sat, 03/10/2018 - 10:00

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Yahli Shereshevsky, Michigan Grotius Research Scholar at the University of Michigan Law School, whose article “Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts”, co-authored with Tom Noah, PhD candidate in the Department of Psychology of the Hebrew University of Jerusalem, appears in issue 4 of volume 28 of the Journal.

The conversation takes viewers behind the scenes of this experimental study, one of the first of its kind in the international law field, to provide a deeper understanding of the motivation behind the study and the methodology used by the authors. The conversation highlights the importance of the study, not only for its results but principally for its methodology and the potential it reveals for future studies. The interview was recorded at New York University.

Turbulent Times for the International Rule of Law: A Reply

Fri, 03/09/2018 - 09:00

Note from the Editors:  This post concludes our first EJIL:Talk! Contributing Editors’ Debate, where our distinguished Contributing Editors lent their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (Wednesday’s post here), and Lorna McGregor (yesterday’s post here) for thought-provoking responses throughout this past week’s Debate.

I am grateful for the thoughtful comments this week by Lorna McGregor, Monica Hakimi and Christian Tams on my initial post. It is first worth noting that all three colleagues use in the headlines of their comments the notion of ‘turbulent times’ respectively ‘decline and crisis’ which indicates, at least in my view, that there is at least a certain intuition (as Christian Tams put it) that the international legal order (to use yet another maritime metaphor) currently has to navigate through heavy weather. This in and of itself seems to warrant the research agenda I have tried to lay out in my initial post.

Yet, while to some extent the comments have, at least partially, focused on what approaches or strategies are appropriate to eventually overcome any alleged ‘decline’ in the international rule of law, I continue to believe that the foremost question is, first, as to whether we indeed, if so to what extent, and in which areas of international law in particular, we currently face such decline.

In that regard I fully share the almost obvious position that any such determination requires much more research than what can even be hinted at in a short blog contribution like the one I have written. As a matter of fact such analysis must be nuanced (what areas of international are most concerned and why), multifaceted, interdisciplinary, and must focus, inter alia, on challenges for institutions that form the cornerstone of modern international law such as international organizations (providing for fora for interstate cooperation and the regulation of problems of international concern) and international courts and tribunals (providing for legally binding third party dispute settlement of international disputes).

Yet, it is certainly a truism that a mere quantitative approach does not suffice since, to paraphrase the example used by Christian Tams, one single withdrawal from the Rome Statute would probably at least be a more relevant sign than ten withdrawals from the 1968 Vienna Convention on Road Signs and Signals (as important the latter is for the daily routine of cross-boundary traffic). In particular, as part of a more qualitative approach, one needs to have a look whether the current perceived ‘turbulences’ have also by now reached the more fundamental layers of international law, i.e. meta-rules such as the ones on sources, State responsibility, State immunity, treaty interpretation, or res judicata effect of international court decisions must be abided by the parties involved, to name but a few, the general acceptance of which is indispensable for a functioning international legal system.

In my post at the start of this week, I had hinted as 1990 (and beyond) as a possible starting point for any analysis of a possible decline of the international rule of law. I did so since it is almost a truism that in the period thereafter a vast number of significant developments took place that many colleagues perceived as a significant ‘thickening’ of international law eventually even amount to, as I said, constitualization of international law. It is worth noting in passing that none of my colleagues seem to have questioned that this latter scholarly analysis of the post-1990 developments was mainly a Western European/ North American (if at all) discourse. I agree that the fundamental question indeed now seems to be whether we simply moving back to the pre-1990 era (with the then existing perceived limitations of international law), or whether instead we see something more fundamental. Put otherwise, is to provide but one example, e.g. the non-appearance by China and the Russian Federation in international judicial proceedings simply a mere repetition (by some other major powers) of the US non-appearing in the merits phase of the Nicaragua case – or is it more fundamental in nature.

I agree (and could not agree more as a matter of fact) with the statement by Lorna McGregor that one of the major – if not the major – current and essential problems international law is facing is to be seen in the (increasing?) lack of implementation of existing standards. Yet, it seems to me that – despite the adoption of OPCAT in 2002 (with by now not more than approximately 50 % of the ratifications of CAT anyhow) – not much steps have been taken let’s say in the  last ten years to further improve supervisory mechanism to make sure States abide by their obligations incumbent upon them under international law, the almost complete stagnation in the number of contracting parties of the Rome Statute since 2010/2011 (after an astounding start) being a particularly pertinent example at hand.

I tend to agree with the perception that it might very well be that it is not the least domestic politics that determine the approach States are taking vis-à-vis international law, with the ensign ‘backlash’ on the international legal order. Yet, what is striking that, it seems to me, an increasing number of States seem to be willing to disregard international law in order to cater for ‘domestic consumption, and that a cost-benefit analysis does not (or no longer) induce them to abide by international law, their domestic ‘audience’ notwithstanding. I doubt, however, whether non-State actors can under such circumstances (continue to) exercise a significant influence on the further development of international law. The recent processes in the field of international humanitarian law which unlike former processes (such as the customary law study or the ‘Direct Participation in Hostilities’ study undertaken by the ICRC) are almost exclusively State-driven (and which have not brought about any significant results anyhow) – these are relevant examples at hand.

Finally, let me conclude with some ideas as to the discursive character of international law. For one, it is noteworthy that there is a certain tendency to simply not engage anymore with international law. It suffices to note that while the United States have used military force against Syria in 2017 after the use of chemical weapons by Syrian armed forces (or their allies) without even making an attempt to justify such behavior under international law, and France has announced that it might follow suit. Besides, can it really be argued that the simple and obvious disregard of rules of international law is nothing but a mere contestation enabling conflict and further development? Mutatis mutandis, to provide an example from domestic law, that would mean that a pure and simple disregard by the Trump administration of US Federal Court decisions finding its entry ban to be unconstitutional, would have constituted nothing but a ‘healthy conflict’ between the various branches of government. I assume that everybody would have perceived such behavior of constituting a clear sign of a major constitutional crisis. Yet, at the same time, it is said that in international law, a parallel development of e.g. several State parties of the Rome Statute blatantly disobeying legal binding decision of the ICC, by which whatever their content they are formally bound, is perceived as fostering am ongoing dialogue on what the right interpretation of, in the case at hand, Arts. 27 and 98 of the Rome Statute is. I submit that this puts into question, as Hermann Mosler once put it so eloquently, the character of ‘[t]he International Society as a Legal Community’. This holds true, I submit, however, not only with regard to those norms of international law, then existence of which have been determined by international courts or tribunals, but also to rules which have been generally accepted, but which now seem to no longer be beyond contestation. Put otherwise (and I admit somewhat bluntly), can the claim that waterboarding did not amount to torture under both customary and applicable treaty law really be said to constitute nothing but a valid contestation of a certain interpretation of international law – or rather an obvious violation of the said norm? Unfortunately, the danger cannot be discarded that we face an ever increasing number of such ‘contestations’ by an increasing number of States, and a decreasing number of States willing and able to label them what they are – with the ensuing effect that the international community currently faces a decline of the international rule of law.

Yet, it remains to be see whether, to come back to the Bob Dylan metaphor I have used in my original post, we really have to ‘admit that the waters around us have grown’ and whether accordingly we indeed have to ‘accept that soon international law will be drenched to the bone’ – or rather not.

The Thickening of the International Rule of Law in ‘Turbulent’ Times

Thu, 03/08/2018 - 09:00

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams (yesterday’s post here), and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In a thought-provoking post, Andreas Zimmerman traces the ‘(increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such’. In his conclusion, he focuses on the role of scholars which he frames as a ‘vocation … to carefully analyse to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it’. He proposes that ‘at least for the time being, [the role of scholars] is to carefully analyse, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its content’. He argues that ‘[i]t is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest’.

In the constraints of this short blog, I focus on the argument made by Zimmerman that scholars should desist from ‘aspiring to further ‘improve’ [the] content’ of the international rule of law. In the first part of this post, I note that scholars and practitioners often make arguments against the creation of new treaties. On their face, these arguments appear to support a focus on ‘the rules to be applied’. However, they are usually (but not always) made on pragmatic grounds of what is politically and strategically possible and there are many examples of the adoption of new treaties to fill gaps and for other purposes such as enforcement. This is particularly the case during ‘turbulent times’. Moreover, I suggest that it is difficult to draw a clear distinction between ‘the actual rules to be applied’ and ‘improvements’ to them as the application of existing norms typically involves elaboration and a thickening of international law. I therefore ask whether a distinction between application and improvement inadvertently risks stifling the role of international law in ‘turbulent times’ and undermining its expressive function.

I then question whether aspirations to ‘improve’ the content of the international rule of law are in any case a central cause of backlash. This is a key determinant to whether such ‘aspirations’ should be curbed in scholarship. Drawing on the burgeoning literature on compliance and implementation of international law, I suggest that the reasons states disregard and challenge international law are complex and varied and scholarship needs to work within this complexity, particularly from a multi and interdisciplinary perspective, if it is to effectively protect the international rule of law.

Distinguishing between the rules to be applied and their improvement

During ‘turbulent times’, it is common for scholars and practitioners to caution against the pursuit of new treaties. The reasons for such caution are manifold (see Evans discussing debates on a treaty on freedom of religion or belief and McAdam discussing proposals for a climate change displacement treaty). They can be a response to the reality that during ‘turbulent times’, the reaffirmation of existing international rules becomes a principal objective. One of the most acute and persisting examples of this point is the multi-layered efforts to ensure that the absolute prohibition of torture was upheld in the years following 9/11. Moreover, as I have written about in this blog and elsewhere, implementation of existing standards is a key priority for international law. Where implementation rates are low or a culture of impunity exists, some may have concerns that the introduction of further norms may only exacerbate an existing problem. The point is also often made that in pursuing new treaties, states may roll back on established international law, thus resulting in regression rather than progression. Others worry that proposals for new treaties may imply a gap in the regulatory framework (for example, see Milanovic discussing a ‘Geneva Convention to the Internet’ which he argues implies that the ‘existing legal framework is incapable of meaningfully regulating surveillance practices’). Finally, commentators raise issues about the time and resource spent on attempts to develop new law, if it is unlikely to come to fruition. 

However, arguments against pursuing new treaties are typically (but not always, for example see Posner) drawn on pragmatic grounds. This does not necessarily imply normative opposition to the adoption of new norms but rather reflects political and strategic readings of whether the conditions exist for the adoption of new legal instruments (see Finnemore and Sikkink). In this respect, it is important to bear in mind that while ‘turbulent times’ can limit the appetite for the adoption of new norms, history also demonstrates that much of the international rule of law has been the direct result of such a context (see Alston). As Evans points out, ‘the construction of adequate normative frameworks always takes place in the shadow of states’ propensity to violate the very rights that they are being asked to establish and adhere to … unless there is perceived to be a problem, then there will be no motivation to address it’. Moreover, there are key differences between whether ‘improvements’ relate to the establishment of ‘new’ norms (gap-filling) or whether they have other objectives (see, for example, Donnelly’s typology of four types of international human rights law regimes as declaratory, promotional, implementation and enforcement and the range of ways in which these are achieved).

In any case, it is questionable whether it is possible or desirable to draw a broad distinction between the law ‘as it is’ and ‘improvements’ to it. The difficulty of drawing such a line arises in the everyday task of interpreting the terms of legislation or treaties which are necessarily general and top-level and their application in all contexts challenging to foresee. It is even more pronounced in ‘turbulent times’ as they often throw up new problems or challenges that have not yet been answered by international law and potentially require new approaches.

Take, for example, the contemporary nature of armed conflicts. These have not only resulted in the reaffirmation of well-established principles of international law, such as the prohibition of torture, in the face of significant backlash by certain states, but they have also required analysis of the scope and application of international law in new areas. Thus, detention during non-international armed conflict has and continues to generate significant scholarship on the sources of international law to authorise detention, the length of detention and the nature of safeguards to challenge detention as well as requiring interrogation of the relationship between international human rights law and international humanitarian law. Resolving these issues does not require ‘new’ law, but instead requires efforts to determine how existing legal regimes interact and how they are applied to emerging situations.

On the one hand, one might say that when faced with new contexts and new challenges, the task is simply to apply existing international law. However, in areas of uncertainty, it might also be argued that all attempts to articulate the law ‘as it is’ – even positivist approaches – are fused with a certain normativity. In this sense, the exercise of identifying and interpreting international law to new challenges is a more dynamic and complicated process that involves an element of development and growth. This is recognised by Dame Rosalyn Higgins who points out in her seminal text that ‘the very determination of specific disputes, and the provision of specific advice, does develop international law’ (see also, Boyle and Chinkin and Johnstone).

A further example of the challenges of separating application from improvement is the adoption of new instruments and processes to address supervisory and enforcement gaps such as the Optional Protocol to the UN Convention against Torture and the establishment of the Sub-Committee on the Prevention of Torture (SPT). On the one hand, this could be narrowly described as implementation of the ‘actual rules to be applied’ but in reality, it has thickened and developed the international rule of law through the functioning of the SPT as well as substantively through the obligation to prevent torture and other ill-treatment as well as on arbitrary detention. As Evans argues, ‘[o]ne of the great benefits of the preventive approach is that it is not tied to formal legal obligations: it looks beyond them and considers what might be done to further the enjoyment of a right, the exact contours of which may not be delineated with as much precision as one might wish’ (discussing OPCAT as well as making a proposal for a similar instrument on freedom of religion or belief).

Thus, even if the process is presented as one of application of the current rules, in addressing new situations and contexts, its content is simultaneously improved, thus making an analysis of the law ‘as it is’ and its improvement inseparable. On this view, one might characterise ‘turbulent times’ as moments of expansion and the thickening of the international rule of law and it would be expected for scholarship to be part of mapping, analysing and responding to that process (Gilbert and Rüsch, ‘Rule of Law and UN Interoperability’ forthcoming 30 International Journal of Refugee Law 2018). Focusing on the ‘rules to be applied’ might have the unintended consequence of undercutting efforts to effectively protect the international rule of law during turbulent times rather than safeguarding it.

Are efforts to improve the rule of law the cause of backlash?

Even if it was possible to isolate ‘improvements’ to the international rule of law, a further consideration in determining whether scholars should resist focusing on such ‘improvements’ is whether ‘improvements’ lie at the heart of backlash. In this respect, it is still unclear that ‘improvements’ are the central cause of disregard and challenge or that the focus of scholars on the ‘rules to be applied’ would effectively convince dissenting states to buy back into the system.

Certain applications and approaches of international institutions have been criticised by states on the basis of overreaching, interfering in their domestic affairs or adopting evolutive interpretations of the law. However, while arguments of overextension are often thrown into the mix of critiques of international legal institutions, studies suggest that such claims may sometimes be overblown or a guise for political undercurrents and that the reasons underpinning backlash and compliance are much more varied and multifactorial. For example, in a recent conference organised by Professor Marten Breuer and the University of Konstanz, participants determined that the ‘claim that the ECtHR had overstepped the boundaries of justified evolutive interpretation’ only featured as one reason by states for non-compliance with Court judgments, with the other eight reflecting more political motivations. Commentators emphasise that backlash tends to be driven by macro domestic politics (which can lead to inter-state contagion as demonstrated by the failure to implement the prisoner-voting cases in the UK, then motivating a similar response in Russia (see Leach and Donald)) rather than legal critiques alone. Indeed, scholars have noted that backlash against the international rule of law often results from objections to legal interpretations (even well-established and previously uncontroversial) that do not fit with the particular local politics and the self-identity of a state rather than jurisprudence that might be framed as pushing at the edges (see for example, Zoe Jay’s analysis of the UK’s failure to implement Hirst, the prisoner-voting decision). This can be aggravated further by fractures within a state structure which can contribute to non-compliance, thus challenging the idea of the state as a unified monolith, as commentators such as Donald have observed.

If this is the case, then it is also possible that changes in domestic politics, dynamics within a state, and the role of other social actors (see Cavallaro and Brewer) may result in support swinging back within the state to the international rule of law and highlights the risk of trying to respond to particular states’ views at particular moments in time. Further, backlash by some states can sharpen and trigger a counter-movement by other states and non-state actors in support of the international rule of law. This can include the emergence of new supporters and leaders of international law within states and beyond. Jensen points to moments in history in which smaller states have turned the course of history and garnered support for the international rule of law in the face of challenge. The support of Senegal and Botswana for the ICC following South Africa’s withdrawal provides another contemporary example. It can also result in new forums for the interpretation and application of international law, including national courts and parliaments and the championing of the international rule of law by other actors beyond states or by multi-stakeholder groupings (see Gilbert and Rüsch above). Thus, focusing on the law ‘as it is’ as a means to meet the concerns of certain states could undermine the value placed in the international rule of law by other states.

Conclusion

Without suggesting endless norm-proliferation, ‘turbulent times’ are often the points at which international law needs to develop and expand and scholars need to be part of the debate and discourse on how that should happen, which includes, but is not limited to, determinations of the law to be applied. Further, as we have seen within the rich but still emerging scholarship on compliance and implementation, much of this needs to take place in an interdisciplinary way in order to both diagnose the problem and have a vision for how the international rule of law can most effectively be developed. As others, such as Alston, have argued, challenges to the international rule of law also require the forging of new communities and supporters that may in turn shape the position of states.

Decline and crisis: a plea for better metaphors and criteria

Wed, 03/07/2018 - 09:00

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with Monday’s post, and to Monica Hakimi (Tuesday posts here and here), Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

Andreas Zimmermann’s introductory post offers an intriguing mix of grand theme and technical detail. It certainly prompted me to reflect on changes both great and small, and their impact on international law. Unlike Monica Hakimi, I have no issue with the thrust of Andreas’ argument; I notably share the feeling that (if I read his opening Dylan quote correctly) animated his post: “the waters around us seem to have grown”.  Perhaps more than Andreas, I remain uncertain whether that feeling is well-founded. More particularly, I wonder how much of our current talk about crises, dark times, disorder & contestation, new isolationism is just noise, perhaps even a reflex. (Ours is a ‘discipline of crisis’ after all; we “revel” in a good one, as Hilary Charlesworth noted perceptively two decades ago.) And how much is based on real, measurable changes in what Andreas refers to as “the social fabric of international law”, or its role in international relations.  It is to this question that my comments in the following are directed. They are an attempt to take the debate further, and they seek to do so by making two pleas: a plea for better metaphors, and a plea for criteria as we discuss ‘International Law in Dark Times’.

International law as an oil tanker: the need for better metaphors

My first point may sound silly, but it does have, I would say, at least a kernel of seriousness. It concerns one of the metaphors used by Andreas, viz his encouragement to perceive “the international legal system … as an oil tanker”. This is used to emphasise that international law — notwithstanding the seemingly irresistible attraction of notions signalling decisive change (the ‘Grotian moments’, ‘paradigm shifts’ and all that) — like an oil tanker takes time to change course. I could not agree more; but I wonder whether one need not go further. Yes, oil tankers move slowly, but their direction is clear: they may take time to complete the change of course, but the tanker as a whole eventually turns to one side.

I would suggest that if we want to visualise international law’s direction and if we want to use maritime metaphors (which are two significant ‘ifs’), we should think of a fleet of vessels swarming around, moving in different directions. Some may be changing direction, some to larboard, some to starboard; others stay on course; still others may in fact be at anchor. An overall direction is not easy to make out, or perhaps we will only be able to make it out with the benefit of hindsight. (A point Andreas hints at.)

So far so good, or perhaps so far so silly. So why should this matter? I think it matters because the oil tanker metaphor, while capturing the slow pace of movement, keeps up the myth that the movement of international law were mono-directional: that international law as such turned. But that in my view fails to account for the multi-layered, or (as James Crawford recently noted) “sedimentary”, nature of international law, some of whose layers are more affected by change than others. To illustrate by reference to recent debates, some principles and some institutions have come under stress: Andreas mentions a number of international courts and tribunals. Others worry about the fraying consensus on the ius ad bellum, about human rights limits to the fight against terrorism, about the paralysis of the WTO dispute settlement system, or about the legitimacy crisis of investment law. And hardly any crisis account fails to mention ‘Crimea’ or ‘Trump’. Elsewhere in international law, though, life seems to go on as usual. The ILC submits proposals enhancing our understanding of the sources of international law. At a dedicated treaty event in September 2017, 71 States signed, ratified or otherwise accepted to be bound by ‘multilateral treaties that safeguard humanity’. In May 2017, the State parties to the FAO Agreement against IUU fishing held their first meeting. The ICJ decides maritime boundary cases. None of the 65 State parties has so far denounced the 1968 Vienna Convention on Road Signs and Signals. And so on and so forth.  Crises and continuities coexist. Different vessels are moving in different directions.

None of this should be read as a plea for complacency. Nor is it meant to suggest that decline in one area of international law could be counterbalanced by continuity in another. (‘Three new treaty ratifications against one non-complied judgment’, anyone?) And still less that all developments were of equal relevance: we have to imagine vessels of different tonnage, speed and size. But different vessels there are – or in rival imagery: international law is a sedimentary formation, a layer cake, an iceberg of which only 10% are visible. ”From some of its layers of sediment”, notes James Crawford in the piece I have just referred to, “states can withdraw … more easily than from others”. And do (more easily). This is anything but surprising; it is common to many multi-layered areas of law. “Verfassungsrecht vergeht, Verwaltungsrecht besteht” (constitutional law changes, administrative law remains) – noted Otto Mayer when explaining why the 1919 edition of his treatise on German administrative law had required little updating. (A world war and a revolution were obviously not significant enough to affect its rock-solid sediments …). Not all things fall apart, some centres can hold. Metaphors should enable us to express as much. That is my first point: silly perhaps, but with a serious kernel.

‘Sensing’ crises: the need for criteria

My second point is related; like the first it is an attempt to get a grip on the state of international law. If we want to move from “sensing” crises to assessing (and perhaps responding to) them, it seems to me we need criteria and crisis indicators. ‘What frightens us needs to be measured’ say Daniel Kehlmann’s Alexander von Humboldt in Measuring the World. (Or something to this effect: I couldn’t find the passage in the translated version of google books.)

So how do we measure the ‘Rise and Decline of the International Rule of Law’? Andreas’ approach is a mix of the inductive and the intuitive. He looks at the conduct of three courts, which face a backlash of one sort or another and whose response reflects a “tendency … to take a transformation in [their] surrounding ‘legal space’ into account”. And he shares what seems to be an intuition: that “recent individual developments mentioned [ie Trump, Crimea and the like], as well as more structural changes such as the increasing role of the People’s Republic of China within the international legal system, indicate that … a turning maneuver is currently taking place”, which is one “towards a more traditional, State-centered and sovereignty-based system of international law”.

I doubt our approach could be anything but inductive. But it seems to me that when discussing crisis and decline, we should seek to substantiate our intuitions by reference to criteria. That to me seems a real challenge – and I say that, to reiterate, precisely because I share Andreas’ intuition, but struggle to spell out on what it is based. In the remainder of this short post, I outline three questions, which which I am struggling — and which, in my view, we should be able to answer if, in discussing crisis and decline, we want to move from intuition to assessment.

(i) Why do changes matter, and why do they matter for international law as suchThe first point goes back to my earlier comment about metaphors and sediments. If we accept that crises and continuities coexist, then in a first step we will need to make an effort to say why the crises matter more, even though they affect only parts of international law, and why our attention is not with the continuities. This need not be a difficult task, but it requires us to be selective and discriminatory – and say that (and why) certain developments matter more, are characteristic, representative of international law as such. Is it because crises affect many areas of international law? Is it because they affect areas that we consider vital, relevant or emblematic – eg because of their importance; their systemic relevance? Is it because in a particular crisis, “fateful issues” (in Stefan Zweig’s sense) are compressed into “a single moment” that “decides matters for decades and centuries to come”? (Would these be ‘Grotian’? Or ‘Hobbesian’?)

None of this, to reiterate, is necessarily difficult: a claim that the annexation of a significant part of territory is more relevant than a solid level of acceptance of the Roadsigns Convention will not face much opposition. But it seems to me that, as a threshold matter, we need to make the claim — and set out why a particular change amidst continue matters. And we should be prepared to offer nuance where changes affect only some of international law’s layers. (Who knows, perhaps even Otto Mayer has something to offer?)

(ii) Compared to when do we observe change? Second, we need to be clear about the time-frame across which we observe changes that pass the threshold test just mentioned. Andreas’ focus are the 1990s: then, before the current ‘turn’, the “international legal order [had] shifted towards a more robust, more elaborated and more efficient system of legally binding norms (rather than mere political ‘expectations’)”, and then, too, “euphoria [had] prevailed among international law scholars”. In this ‘halcyon days view’ of the 1990s, Andreas probably is not alone. And I certainly agree with his second aspect: too young to participate in debates, I was infused with a rather heavy dose of ‘international law euphoria’ at the Walther Schücking Institute in Kiel.

The choice of a comparator period focuses debates, but of course it also limits the claim one is making, and exposes it. Limits it, because it may well be that what we call ‘crisis’ or ‘decline’ means nothing more than ‘the 1990s are over’. And exposes it, because with the benefit of hindsight, we might remember of the 1990s not just the shifts “towards a more robust, more elaborated and more efficient system”, but also (in no particular order): the glaring failures of that system, from Srebrenica to Ethiopia/Eritrea; the hundreds of thousands of Iraqi victims of (still quoting from Andreas’ post) a “system of collective security [that had begun] …  to also work in practice”; the contentiousness of many of international law’s projects then euphorically pursued (think of investment law). But I am getting ahead of myself. The second point is really a straightforward one: when assessing developments over time, we need to offer a time-frame, a comparator; and be prepared to have our claim tested on that basis.

(iii) What has actually changed? The third question is key, and it, too, is relatively straightforward. When moving from ‘sensing’ crises to assessing them, we should be prepared to say with some level of specificity what has changed, and why things are different now; and prepared to have our criteria tested. In his post, Andreas mentions a number of criteria, but I hope he would not mind me saying that, like me, he seems to ‘feel’ his way around. A return to sovereignty is key to the current trend; and judging from his examples, he sees this reflected in the backlash against international institutions, and, tentatively, in “an (increasing?) tendency, at least by some States, to bluntly disregard international law and to challenge its normativity as such”. The present backlash is contrasted to the 1990s, when the trend was one of “increasing effectiveness, value-orientation and substantive enlargement of the scope of international law”. 

The claim that sovereignty-minded States have become wary of international law, at least where it is intrusive, is common to many crisis diagnoses. A backlash against courts (which Andreas discusses) might be said to illustrate such wariness; but given the relatively short history of many courts and the limited number of cases brought before most of them, the risks of ‘anecdotalism’ and anachronism are real. Do two instances of non-appearance and non-compliance (Arctic Sunrise, South China Sea) make for a trend? Is the Marshall Island case so different from Nuclear Weapons? How do we weigh the backlash against the ICC’s handling of immunity issues, given that in the halcyon days of the 1990s no ICC existed?

I am not raising these questions to dismiss the argument, not at all in fact; but as an encouragement for further engagement – an engagement that would then also need to clarify why a return to a more ‘sovereignty-based system of international law’ is treated as ‘deline’ in some fields and ‘rise’ in others: as for the latter, Andreas cites the Jurisdictional Immunities case, which reinforced one aspect of a sovereignty-based order and which many see as a contribution to the international rule of law. Investment treaties, too, are being recalibrated so to make investment protection less intrusive – does that signal ‘rise’ or ‘decline’? All of this merits debate. But my general point will have become clear. Our assessment of crises, rise and decline will benefit from criteria, nuance, and empirical data.

This is all the more true for other aspects mentioned by Andreas, such as international law’s “increasing effectiveness, value-orientation and substantive enlargement”. Looking at these, are we content to claim that things have changed? Does not international law continue to expand? Is it, or which aspects of it, are becoming less effective? And to what values is it no longer oriented? (To sovereignty, it seems to look, but that, too, is a value.) And is there really an increasing(?) tendency tobluntly disregard international law” and “challenge its normativity”? It may be no coincidence that Andreas in his post adds a question mark.

I have no intention at all to ‘define away’ Andreas’ and my shared intuition. But I am looking to research projects such as the one he mentions, on the ‘Rise and Decline of the International Rule of Law’, which I hope will yield data and criteria. Without them, we will be stuck with our intuitions.

International Law in “Turbulent Times,” Part II

Tue, 03/06/2018 - 15:00

Note from the Editors:  This week we hold the first EJIL:Talk! Contributing Editors’ Debate, where some or all of our distinguished Contributing Editors lend their views on broad themes of international law and the state of the art, science, and discipline of international law.  Our thanks to Andreas Zimmermann (Co-Director of the Berlin-Potsdam Research Group, ‘The International Rule of Law – Rise or Decline?’) for leading the charge with yesterday’s post, and to Monica Hakimi, Christian Tams, and Lorna McGregor for thought-provoking responses throughout this week’s Debate.

In my previous post, I argued that international law does not foster cooperation at the expense of conflict. It fosters both simultaneously. It helps the participants overcome their differences and achieve a shared agenda, while helping them have and sharpen their disputes. The two kinds of interactions are symbiotic, not antithetical, so the fact that international law cannot stop global actors from inflaming or continuing to have a conflict is not good evidence of its weakness or decline; international law itself enables such interactions. Below, I take my argument a step farther. I claim that the conflicts that are had through international law are not just something to grin and bear; they are often quite productive for the legal project. I then return to the central question that Andreas posed: how might we assess whether international law is in decline?

International Legal Conflict Is Often Productive

Consider three ways in which conflict can be valuable to any international legal project. First and as others have recognized, conflict is often an ingredient for further cooperation. In other words, an intense or prolonged conflict can enhance, rather than reduce, the likelihood that the participants will find and then support particular legal norms. An example is the dispute between Iran and the United States over Iran’s nuclear program. Before agreeing to the nuclear deal, the two states used international law for years to disagree. For example, the United States worked hard to obtain Security Council resolutions that created new nonproliferation obligations for Iran and either permitted or required sanctions for Iran’s noncompliance. The United States then used those resolutions to justify intensifying the dispute—by pressuring other states to impose more severe economic restrictions on Iran. This extended and at times heated conflict was not a perversion of or sideshow to international law. It was for a long time the reason that certain states engaged with international law. And it was critical to the process of clarifying where the participants stood and what terms they would accept. Iran and the United States used international law to reconcile their differences only after they used it to challenge and compete with each other.

Second, even when a dispute lacks substantive resolution, facilitating it gives the participants a way to air grievances that might otherwise fester or erupt in more virulent ways. The Iran nuclear deal is again instructive. Had the United States and Iran not reached a deal, their dispute through international law still would have stalled and released much of the steam behind the stated, more deleterious alternative: a military conflict. By helping the United States and Iran have and sharpen their dispute, international law also helped them channel their energy through the IAEA and UN Security Council, and release tensions that could easily have expressed themselves in more destructive ways. Note that international law will have had this effect, even if the nuclear deal now unravels. The appetite for a military conflict was largely appeased.

Third, as I argue in this piece, a protracted legal conflict can itself be a unifying force. It can help bind global actors together around a governance project. This idea might seem counterintuitive, but it is not new. When disparate actors persistently disagree about which legal standards apply to their group, or about who defines or enforces those standards for the group, they at least take for granted that they are a governed group—that they participate together in a shared governance project. One might prefer for them to coalesce through their commonalities. But if they have little in common and relatively few other reasons to interact on an issue, their legal conflicts will be a large part of what binds them together on an issue. In other words, the alternative to having such conflicts is not for them to experience a drastic uptick in social unity. It is for them to be less integrated and more disengaged from the joint enterprise. That alternative would be worse for any effort to regulate their behavior through international law. At least when they use international law to disagree, they concede that an issue is a matter of common concern, rather than within the exclusive purview of individual states. In addition, they can be pressed to articulate the considerations that are or ought to be at stake in their exercise of public power and to subject their conduct to external scrutiny and debate.

Assessing Whether International Law Is in Decline

I begin to explore some of the implications of my argument in my articles. For now, let me underscore that a protracted or irresolvable legal dispute—even one that involves a state’s persistent noncompliance—is not by itself evidence of international law’s weakness or decline. At most, it shows that states are using international law less to solidify an area of agreement and more to have a dispute.

Indeed, in the face of heightened normative divisions, the thing that would really evince the decay of international law is an absence of international legal conflict. It would suggest that global actors are choosing to sideline or disengage from the enterprise. This was precisely my concern shortly after President Trump took office: that he would be indifferent, if not openly antagonistic, toward the whole project of international law. He seems to be. Under him, the United States has initiated its withdrawal from the Paris Agreement, called into question longstanding security and economic agreements, declined to publicly explain or justify its new drone policy, denied that human rights promotion is an element of U.S. foreign policy, suggested that it might be a first-user of nuclear weapons, withdrawn from UNESCO and the UN Global Compact on Migration, and had a State Department that is in disarray and with little internal standing. The problem, then, is not that U.S. compliance rates have dropped precipitously. (See Ingrid Wuerth’s piece on this point.) The problem is that the United States increasingly seems checked out of international law and to be denying its normative relevance to U.S. governance decisions. That problem is evident in other countries, too, but it is particularly pronounced for the United States because the United States has long played such an outsized role in the international legal order.

For global actors who still see significant value in regulating human behavior through international law, the answer is not (as Andreas suggests) simply to insist that it be followed and to avoid pushing it in contentious directions. That approach would not be responsive to the current moment. The answer is to find ways for global actors to use international law in order to disagree about the aspects of it that are now so contentious—to use international law to communicate their evident discontent and fight about what to do with it. Because conflict is symbiotic with cooperation, such disagreements could help the participants find new, more stable common ground. But even if it does not, it would reinforce that which they already still share and help keep them engaged in the joint enterprise.

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