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The European Arrest Warrant against Puigdemont: A feeling of déjà vu?

Fri, 11/03/2017 - 15:10

On 2 November 2017, the Spanish State Prosecutor asked Carmen Lamela, a Spanish judge, to issue a European Arrest Warrant against Carles Puigdemont and four of his former ministers following the vote of secessionist Catalan MPs to declare independence. They face potential charges of sedition, rebellion and misuse of public funds. Carles Puigdemont, who arrived in Brussels a few days before the news of the warrant was made public, called in a Belgian lawyer to defend his case. The Spanish authorities may not be thrilled by his choice.

The Basque precedent

In 1993, Spain issued an extradition warrant against two Basque secessionists who fled to Belgium, Moreno Ramajo and Garcia Arrantz. They were accused of participating in an unlawful association and an illegal armed band. The Court of Appeal of Brussels issued an Advisory Opinion according to which, the warrant was founded on political crimes and therefore, the extradition request should not receive a favourable response. The Belgian Ministry of Justice nevertheless ruled in favour of the extradition. In the meantime, Moreno Ramajo and Garcia Arrantz lodged an asylum application in Belgium, which was received admissible for further consideration. The extradition procedure was put on hold until a final decision to reject their asylum applications was made in 1994 on the grounds that despite the fact that cases of abusive behaviours of Spanish authorities towards Basque secessionists existed, these were isolated cases. Therefore, the argument was that there was no reason to believe that the Spanish justice system would fail to provide them with a fair trial. Thus, the extradition request was pursued and accepted. Following this decision, the couple submitted a procedure of extreme urgency before the Belgian Council of State in order to stop their extradition. This was successful and their extradition did not proceed(E. Bribosia and A. Weyembergh, ‘Asile et extradition: vers un espace judiciaire européen?’ (1997)  at 73-77).

What happened after that?

The Spanish authorities, offended by the Belgian decision, questioned the relevance of the possibility for asylum in the European Union, a Union of democratic countries that respect the rule of law. Their argument queried the need to grant asylum for EU citizens in a system that endeavors to advance mutual assistance in criminal matters and the fight against terror.

This led to the adoption of two major legislative instruments. First, the Convention on Extradition between the Member States in 1996. This Convention removed the option to refuse extradition of a political offender to another EU Member States.

The adoption of this Convention was then followed by the Aznar Protocol, an Annex to the Treaty of Amsterdam. This Protocol made asylum in the EU almost impossible for EU citizens (some exceptions to this rule are nevertheless listed in it) by stipulating that “given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”.

Why is all this interesting?

Although asylum in the EU for EU citizens has not been an option since 1996, the issue recently resurfaced when Theo Francken, the Belgian State Secretary for migration and asylum policy, mentioned the possibility. This is hardly a surprise since Mr. Francken is a member of the N-VA, the Flemish secessionist party. On top of this, Bart Maddens, a leading Belgian political scientist who is very close to the N-VA and to the Flemish nationalist movement, acted as an accredited observer on the day of the referendum. This is, again, very familiar, as in 1993, the Garcia-Moreno couple gathered large support amongst the Flemish community in Belgium.

Although Charles Michel, the Belgian Prime Minister, already clarified that an asylum application was not on the agenda and Mr. Puigdemont has already stated that he would not lodge such an application, this situation raises a strange feeling of déjà vu and might take Spain captive by its old demons. This feeling is only further strengthened by the latest news that the lawyer of Carles Puigdemont was also the lawyer of Moreno Ramajo and Garcia Arrantz. The words he used against the extradition of the Catalan leader are also familiar; he is now invoking risk of unfair trial should his client be sent back to Spain.

The Flemish nationalist party’s political agenda might, as it was the case with the Garcia-Moreno case, fuel tensions between Spain and Belgium. However, twenty years later, the legislative tools the Spanish government would have needed at the time of the Garcia-Moreno case, the ones which they pushed for, have since been adopted. Indeed, the Convention on Extradition between Member States as well as the European Arrest Warrant are strong, although not infallible, guarantees that the extradition of Mr. Puigdemont and his ministers will take place. Similarly, should Mr. Puigdemont and his ministers lodge an application, the Aznar Protocol would offer very little chance of this being duly considered. Given the high political issues at stake, Belgium will surely be under the spotlight in the upcoming weeks. Indeed, although many EU leaders have shared their concerns about the use of force by Spanish authorities to stop the vote, EU Member States have shown support to Spain in this independence process. In this context, a Belgian decision not to extradite Mr. Puidgemont and his ministers might create a political tsunami.

Repressing Migrant Smuggling by the UN Security Council and EU Naval Military Operation Sophia: Some Reflections on Jurisdiction and Human Rights

Fri, 11/03/2017 - 09:00

On 5 October 2017, the UN Security Council through S/RES/2380 (2017) renewed for the second time the enforcement powers that S/RES/2240 (2015) granted to states in order to fight migrant smuggling and human trafficking off the coast of Libya.

In a previous blog post that I wrote here in October 2015, I concluded by wondering what the effects will be of S/RES/2240 (2015) and by questioning, from several standpoints, the use of military action against migrant smugglers and human traffickers and in the overall management of the migrant crisis.

These UN Security Council resolutions profagainstvide the legal basis for the EU naval operation mandated with the task of disrupting the business model of migrant smugglers and human traffickers in the Southern Central Mediterranean: EU NAVFOR MED Operation Sophia. Established in 2015 by Council Decision (CFSP) 2015/778, its mandate has been renewed until 31 December 2018.

Criticisms of Operation Sophia are widespread and concerns over its failure to meet its objectives and its human rights implications are no secret (see among others Meijers Committee and Not so Humanitarian after All). On the occasion of the second renewal of the S/RES/2240 (2015), it’s time to take a closer look at Operation Sophia’s results, at the legal shortcomings of the web of legal instruments regulating its actions, and the various consequences these have had.

Has Operation Sophia achieved its goal to disrupt the business model of migrant smugglers and human traffickers (Article 1 of Council Decision (CFSP) 2015/778)?

First, let’s look at the flows of migrants, which might be an indicator. Operation Sophia’s area of operation is the Southern Central Mediterranean. The area south of Sicily off the coast of Libya in the Central and Southern Mediterranean remains the most intensively used pathway into Europe  (UNHCR, June 2017, p. 9). Libya is the main country of embarkation for people going to Italy: according to the UNHCR ‘96% of arrivals crossed from Libya’ (UNHCR, July 2017) and, in the first six months of 2017, irregular migration from Libya increased (91,584 persons) compared to the first six months of 2016 (84,444 persons) (UNHCR, July 2017). Flows of migrants have not been stopped.

Second, let’s assume that the UN Security Council and the EU legislator by using the wording ‘disruption’, also mean ‘deterrence’ (after all, one of the main aims of criminal law policy). Have smugglers and traffickers been deterred? This raises the question of how to achieve deterrence

Destruction of Boats

Absent any provision on the exercise of jurisdiction over individuals (see below), it seems that the destruction of boats has been considered the main tool for suppressing and deterring these crimes (para 8 S/RES/2240 (2015) and Article 1(1) and 2(2)(c) of Council Decision (CFSP) 2015/778).

In order to achieve its goal of disrupting the business model of migrant smugglers and human traffickers, Operation Sophia military vessels were endowed with the powers to board, search, seize and divert (Articles 2(2)(b)(i) and (ii) of Council Decision (CFSP) 2015/778) vessels suspected of being used for migrant smuggling and human trafficking while also being allowed to dispose of them and render them inoperable. As of June 2017, more than 400 boats have been ‘removed from criminal organisations’ availability’, i.e. destroyed.

Here, a question arises as to whether the destruction of boats is an appropriate criminal law measure in compliance with international human rights law? Destruction of boats during or after the interception may prove problematic as demonstrated by concerns already raised in relation to the consistency of counter-piracy operations with the right to property (see Bodini). First, in the absence of a legal basis, it may entail violations of the right to property (Article 1 of Protocol 1 to the ECHR).  

While the UNCLOS provides for a legal basis for the seizure of pirate ships (Article 105 UNCLOS), it does not do so in relation to ships suspected of being used for migrant smuggling or human trafficking. Even if all boats used by smugglers and traffickers happened to be ‘ship[s] without nationality’, UNCLOS only envisages the right to visit (i.e. stop, board, and search) such ships (Article 110 (1)(d) UNCLOS); it does not accord states the power to seize them. Moreover, the destruction of the corpus delicti in the absence of criminal conviction goes against the cardinal criminal law principle of presumption of innocence.

Gaps in the international law of the sea as to the right to seize and dispose of smugglers’ vessels are filled by S/RES/2240 (2015), as lastly renewed by S/RES/2380 (2017), which accords states the right to inspect, seize and dispose of vessels suspected of being used for migrant smuggling and human trafficking on the high seas off the coast of Libya (paras. 7 and 8).

Strangely enough, Council Decision (CFSP) 2015/778 does not reproduce such authorization: while on the high seas vessels contributing to Operation Sophia have the power to board, search, seize and divert (Article 2(2)(b)), the power of disposal (Article 2(2)(c)) will be allowed only when Operation Sophia will move into the territorial/internal waters (Phase 2B) and territory of Libya (Phase 3). Currently, Operation Sophia is in Phase 2A: its vessels only operate on the high seas off the coast of Libya, and transition to Phase 2B and 3 seems unlikely (see below). One could argue that UN Security Council resolutions could be a sufficient legal basis however, by virtue of the lex specialis principle, norms of Council Decision (CFSP) 2015/778 should be considered the applicable legal framework.

Article 8(7) Protocol against Migrant Smuggling allows boarding and searching suspected flagless vessels and the taking of ‘all appropriate measures in accordance with domestic and international law’. This provision, while far from clear, as will be seen, may justify law enforcement powers, including disposal.

Finally, one of the unexpected consequences of the destruction of boats is that smugglers and traffickers now send people out to sea in unseaworthy rubber dinghy instead of using wooden boats. This has led to an increase in deaths.

Enforcement and Adjudicative Jurisdiction over Individuals

Coming back to the question as to how to achieve deterrence, one cannot fail to think that criminal jurisdiction should be the main instrument.

 As opposed to UN Security Council resolutions on Somali piracy and the consequent CSFP instrument that established the EU military operation meant to deal with this threat, no mention is made in either S/RES/2240 (2015) and following resolutions, or Council Decision (CFSP) 2015/778, of enforcement and adjudicative powers against individuals, i.e. no mention is made of the powers to apprehend, arrest, detain suspected smugglers and traffickers and transfer them for prosecutions.

UN Security Council resolutions authorize ‘all measures commensurate to the specific circumstances in confronting migrant smugglers or human traffickers’ (para. 10 S/RES/2240 (2015)). However, this authorization does not seem to include the exercise of criminal jurisdiction insofar as states are authorized to use such measures in the context of ‘carrying out activities under paragraphs 7 and 8’, i.e. inspections, seizures and all actions, including disposals, taken against suspected boats. It does not provide any legal basis for enforcement and adjudicative jurisdiction over suspected individuals. Moreover, the question of criminal jurisdiction remains regulated elsewhere in the resolutions and essentially is up to states to exercise it on the basis of international and national law (para. 15 S/RES/2240 (2015)).

As far as international law is concerned, migrant smuggling and human trafficking are not universally justiciable crimes. The UNCLOS does not provide any jurisdictional ground with specific regard to migrant smuggling. In case of foreign flagged vessels suspected of being used for migrant smuggling, there is no provision in the UNCLOS according either enforcement or adjudicative jurisdiction. Article 8(2) of the Protocol against Migrant Smuggling requires states to obtain the flag state’s consent in order to be allowed to board, search and ‘to take appropriate measures’, which may include apprehension, detention and transfer of suspects for prosecution.

As mentioned, states can make use of the enforcement powers granted by Article 110 (1)(d) UNCLOS insofar as ships without nationality engage in this crime. Some authoritative voices argue that there exist universal enforcement powers over stateless ships (see Gallagher and David, The International Law of Migrant Smuggling, 422 and 423). In line with the UNCLOS, as far as ships without nationality are concerned, Article 8(7) of the Protocol against Migrant Smuggling accords states a discretionary power to board and search them. Once suspicion is confirmed, then a vague obligation ‘to take appropriate measures in accordance with relevant domestic and international law’ is triggered. Domestic law, EU law (see Ventrella p. 10) and transnational criminal law play a significant role in shedding some light on this provision by determining which measures could be taken by Operation Sophia vessels and in affording jurisdictional grounds with respect to ships without nationality suspected of being engaged in migrant smuggling. This analysis however is beyond the bounds of this post. It suffices here to say that the legal basis for enforcement powers over suspected smugglers is far from being foreseeable, certain and accessible, characteristics which are necessary for deprivation of liberty to be lawful (see Medvedyev and Others v. France, ECtHR, 29 March 2010, App. No. 3394/03, para. 80).

Without a clear legal basis for coercive powers over individuals, Operation Sophia vessels operate in murky waters, as far as jurisdiction over individuals is concerned. Now one can understand the reasons why the successes of the operation in relation to crime repression are phrased as an unclear, indirect contribution to the arrest of smugglers and traffickers (see European Council’s press release of July 2017 ‘the operation has contributed to the arrest and transfer to the Italian authorities of 110 suspected smugglers and traffickers’).

Conclusion

As mentioned, currently Operation Sophia is in Phase 2A: its vessels only operate on the high seas off the Libyan coast. Only in the subsequent phases will military vessels of Operation Sophia be allowed to enter Libyan internal and territorial waters (Phase 2B) and territory (Phase 3). The transition to these phases would seem the most appropriate tool in terms of criminal law policy. After all, traffickers and smugglers are mainly acting on the territory or in the territorial sea. Should a legal basis for criminal jurisdiction be provided, how could investigations in relation to land-based criminal networks be collected from the high seas (see House of Lords, European Union Committee, 2nd Report of Session 2017–19, p. 24)?

However, moving into the next operational phases seems uncertain. In international law, as demonstrated by the counter-piracy regime, for police functions to be carried out in another state territory or in its territorial/internal waters, in a manner consistent with the principle of territorial integrity, UN Security Council authorization under Chapter VII or the consent of the coastal state is needed. For countering piracy off the Somali coast we had both (see S/RES/1816 (2008) and following resolutions). In relation to migrant smuggling and human trafficking in, through and from Libya, neither of the two legal bases are there yet. UN Security Council authorization under Chapter VII has not been granted and consent expressed from a government in Libya seems impossible to be acquired in view of the current political and security situation.

It is probably in light of the abundant shortcomings inherent in the multilayered legal regime governing Operation Sophia and in light of the unintended human rights consequences that these brought about, that Operation Sophia has turned into a de facto search and rescue operation. Despite not being within Operation Sophia’s explicit tasks (Council Decision (CFSP) 2015/778), the duty to save life at sea (enshrined, among other instruments, in Article 98 UNCLOS) is applicable to its military vessels (both military and to private vessels are bound, Papanicolopulu, 495 and 496). As of July 2017 Operation’s Sophia rescued over 40.000 individuals.

Notwithstanding these face-saving results, we cannot avoid demanding more legal certainty in relation to the objectives and powers of military missions deployed for law enforcement purposes and therefore exercising their enforcement powers over individuals, be they suspects or migrants. This is how human rights law works. 

Guantanamo Surrealism

Thu, 11/02/2017 - 02:24

The surrealism of the moment defies description. Who would have thought, even only a short while ago, that on a nice November morning a US military commission judge in Guantanamo would be holding a Marine general and chief defense counsel for the commissions in contempt, sentencing him to 21 days of confinement in, well, Guantanamo? Who would have thought that on that same day the President of the United States would be deriding the US criminal justice system as a “joke” and a “laughingstock,” while suggesting that the “animal” who perpetrated a deadly vehicular terrorist attack in New York City be sent to that same Guantanamo, with its oh-so-successful, cost-effective military commissions? That he and his White House would, in 2017, be calling this individual an “enemy combatant”?  That he would be joined in doing so by prominent US senators, lamenting the fact that the individual concerned has not yet been shipped off to Gitmo, despite the fact that he essentially committed his crime in full public view and on camera, so that the likelihood of his acquittal before any regular civilian court would effectively be nil? 

Surrealism is by definition unexpected. Slippery slopes  are not. They can often be seen from a very, very long way off. And many of us have spent years warning some of our US colleagues of the dangers of some of the theories they have been advancing in the pursuit of the global conflict against terror. Just a few weeks ago we had just such an “IHL party” on the blog, provoked by a post of Ryan Goodman on Just Security. I pointed out in that discussion that while there was a measure of agreement on the geographic scope of application of IHL, that issue was part of a broader package, and that some items in that package – above all the definition of the relevant armed conflict and the classification of individuals with a nexus to that conflict – continued to attract controversy, inter alia because of the manifest possibility of abuse of some of the lines of argument put forward and their lack of basis in conventional and customary IHL.

So I therefore have a question for our American colleagues, including my friends on Just Security and Lawfare – let us assume that the facts about the New York terrorist continue to be as we know them today, i.e. that he essentially self-radicalized by looking at ISIS materials on the Internet and that he, beyond professing allegiance to ISIS, was at no point subject to the chain of command of that armed group fighting in Iraq and Syria. On these facts, are we in agreement that there is no way that this individual could be qualified, under the relevant rules of international law, as a fighter in any IHL-cognizable armed conflict? I am not asking what consequences this would have under US domestic law, including the AUMF; I am only interested in IHL. Under IHL, it seems to me that there is not even a remotely plausible, let alone genuinely persuasive, argument that this individual has a nexus to any armed conflict/was a member of a non-state armed group engaging in hostilities in such a conflict. He is not an “enemy combatant” in any international legal sense of the word; he is only a (vicious) criminal. This is not a hard or difficult case – it’s an easy, obvious one, again assuming the facts as we know them today. Do we agree? 

The Continuing Utility of International Human Rights Mechanisms?

Wed, 11/01/2017 - 10:00

Can a convincing case still be made that the pursuit of international human rights mechanisms leads to efficacious results? The challenges to, and criticisms of, human rights systems in recent years are legion. Their legitimacy has been questioned (leading in some instances to the threat of state withdrawal, such as the case of Russia within the Council of Europe, complaining that it no longer has a role in electing judges to the European Court of Human Rights). It is also said that human rights mechanisms are inefficient and overloaded and that decisions are not implemented. Litigation can of course set bad precedents, resulting in regression, and even progressive decisions can lead to backlash – as a response, legislation may be introduced which is aimed at narrowing or reversing the positive effects. It remains very difficult to measure the impact of strategic litigation: governments seek to deny any impact; there may be a range of legal, social and political dynamics at play; and a lack of baseline data or analysis.

Their effectiveness relies on a minimum level of good faith shown by the executive and sufficient political will to lead to positive change. How viable is that when increasingly we are faced with the perilous position of the executive taking control of the judiciary, as is already the case in countries like Azerbaijan, and as we are seeing in Venezuela and Poland? It is also suggested that there is an over-legalisation of the human rights movement, which is not capable of addressing complex social problems, as a result of its distance from grass roots and the inadequate contextualisation of human rights issues at the national or local levels.

And yet….recent research suggests on the contrary that these legal mechanisms are indeed productive and viable, although we may need to do more to understand their various impacts and to develop different approaches to ensure we are getting the best out of them.

In her new book, Evidence for Hope, Kathryn Sikkink marshals a compelling argument that human rights laws and institutions have had positive impacts, especially in states undergoing political transition to greater democracy. She discerns both evidence of the socialisation of states taking place within these institutions, and also change from the bottom up: as a consequence of domestic social movements in repressive societies using legal tools. Sikkink suggests that the multiple accountability mechanisms (international and regional) address different kinds of impunity and serve to reinforce one another, and that strong domestic courts act to enhance the effects of states’ international commitments.

Writing recently in the American Journal of International Law, Gráinne de Búrca analyses international human rights mechanisms through the lens of experimentalist governance theory, which views the process of policy development as being iterative and participatory, through the interactions of different stakeholders at various levels. De Búrca detects a positive correlation between the adoption of human rights treaties and improvements in human rights standards, which is most likely where there is a degree of political liberalisation and a strong domestic civil society movement. It is the experimentalist functioning of these treaties which explains their positive impact: any apparent ambiguity in standards or weaknesses of enforcement are actually to be viewed as strengths from this perspective. For de Búrca, certain features of human rights systems serve to achieve progress: the identification of shared perceptions of common problems; a framework of goals; continuous feedback through monitoring and reporting to the ‘centre’ (such as a UN mechanisms); and the periodic revision of practice and goals through experience. These elements, combined with the active participation of NGOs, lead to the ‘vernacularisation’ of international human rights law at the domestic level.

Another strain of recent research has been led by the Open Society Justice Initiative (OSJI) who have published a series of reports analysing the impact of strategic human rights litigation. The most important lesson to be learned from these OSJI reports is the need to recognise and evaluate the full range of different types of impact, direct and indirect. In his report on the Impacts of Strategic Litigation on Indigenous Peoples’ Land Rights, Jérémie Gilbert evaluates three types of impact: material; jurisprudential and policy; and behavioural impacts. Although the actual restitution of land is rarely the result of litigation, Gilbert points to other material impacts, such as the provision of alternative land and shared community resources (vehicles, cattle etc). Moreover, he identifies other collateral benefits of the wider attention which such litigation may create – resulting in the provision of new civil society grants.

Jurisprudential and policy impacts may include changes to legal frameworks, but for Ann Skelton (author of another OSJI report on The Impacts of Strategic Litigation on Equal Access to Quality Education), litigation can also assist in ‘backfilling’ the content of broadly framed rights (to help concretise, for example, what the right to education means). Both Skelton and Gilbert cite examples where new administrative systems and institutions (such as investigative commissions) have been set up as a result of litigation. It can also lead to the reframing of issues: Gilbert describes a process of trespass cases targeting an indigenous community being transformed into land rights cases.

Finally, the OSJI reports identify a range of behavioural results, first and foremost of which are the participatory effects on the affected communities themselves. Gilbert points to communities’ legal and political empowerment, their greater cohesion and enhanced activism. For some there is even cultural regeneration (through mapping the land and gathering together documentation), and an improved synergy between the litigators and social movements. There are impacts too on media and public awareness – reporting of cases can reduce negative stereotypes (although the opposite may also be true). Policy-makers and other officials will have greater awareness of the issues at stake, and litigation can lead more generally to an expansion of the democratic space and increased dialogue between civil society and the state. It can of course impact too on the terms of public discourse: Skelton cites the issue of pregnancy of schoolgirls, no longer being considered as a disciplinary issue, but as a matter of the right to education.

How does this theory of multifarious impacts apply, for example, to the body of litigation which we have brought at the European Human Rights Advocacy Centre (EHRAC), which has been taking cases to the European Court with NGO partners from the former Soviet region since 2003? Certainly for some cases, the direct impacts are clear. Take Oleksandr Volkov v Ukraine, the judgment concerning the unfair dismissal of a supreme court judge, which led not only to his personal reinstatement, but also to changes in legislation and to the Ukrainian Constitution. However, the picture is much murkier in other realms. What has been the impact of the litigation focusing on egregious human rights violations committed by the Russian security forces in Chechnya and other parts of the North Caucasus? Although there have now been in excess of 250 judgments since 2005, finding the Russian authorities responsible for such breaches, there has been little or no political will to respond. However, even here, there are discernible impacts, both present and future. First, the judgments go some way to meeting societies’ need to know what happened – the right to establish the truth. Second, it is possible that their findings could act as a basis for other future justice processes. Third, the decisions have helped to establish relevant European Convention standards across the European continent in national laws – take, for example, the notion of an Article 2-compliant investigation.

The potential impact of other cases is very considerable. Take the Nagorno-Karabakh litigation – cases arising from the ongoing conflict between Armenia and Azerbaijan, concerning the loss of homes and land over decades. There is still no political will within either state to come to terms, but as I have argued before on these pages, the European Court’s judgments from 2015 should now lead to the establishment of a property restitution mechanism, one that could provide a measure of restitution for more than a million refugees and IDPs who were victims of that conflict. It is clear, however, that that will not come about without a range of different actors, local, national and international, working together to bring about change on the ground.

Enhancing international human rights mechanisms

How can we enhance our use of international human rights mechanisms further, in the light of the many challenges, and the lessons from previous strategic litigation? Two broader questions are also raised – given the iterative, participatory nature of these processes, do we need to establish a greater role for civil society organisations, and does greater synergy between litigators and social movements lead to more innovative tactics? In the remainder of this blog, I would like to propose a number of areas where we may need more thinking.

The choice of forum may be critical. That is certainly one of the arguments made by David Cole in his recent study, Engines of Liberty, which discusses the role of civil society in bringing litigation which has changed the Constitution in the United States. Cole recalls that the organisations involved in the campaign for same sex marriage strove to keep the early cases away from the Supreme Court, where they considered they had little or no chance of success, but instead petitioned at the state level. So, do we need to be more adept at invoking multiple fora?

Is it feasible to broaden rules of standing? Skelton suggests that has been the case, for example, for disadvantaged groups in India. At the European Court, the formerly strict ‘victim status’ rule has been relaxed marginally in cases such as Câmpeanu v Romania and Kondrulin v Russia, where NGOs have been allowed to stand in for deceased individuals who would otherwise have been unrepresented. But much wider forms of NGO representation have been common at both the Inter-American and African Courts – an issue which raises broader questions about access to justice.

If the OSJI studies suggest that one of the results of litigation may be to create more opportunities for dialogue, one question which then arises is whether we are fully exploring the potential role of forms of settlement. Are those who represent applicants and states fully aware of the possibilities which settlement can offer? Where governments make specific undertakings (for example, to carry out an effective investigation into the incident in question) which are then incorporated into settlements, does this create additional potential for leverage, in the form of measurable, enforceable obligations?

As regards substantive law, we have seen an increasing emphasis on the notion of positive obligations, allowing for far more ‘horizontal effect’, meaning that human rights standards are applied vis-à-vis non-state actors. Examples of this include litigation relating to domestic violence and gender-based violence, trafficking and domestic servitude. But do we know how far the notion of positive obligations could, or should, go – to require not only that the state should establish an apposite legal framework, but also ensure its effective implementation?

One of the focuses of our current research within the Human Rights Law Implementation Project (HRLIP) is the form of redress provided by international human rights systems. In Europe, we have seen the use in recent years of evolving and ground-breaking remedies, but they remain relatively rare, and their development arguably requires further impetus from both within the systems, and the ‘users’. The identification and analysis of systemic violations, and forms of collective redress (pilot judgments and Article 46 judgments) arguably signal an attempt by the European Court to exert greater influence on the execution of its judgments. One of the questions we are grappling with at the HRLIP, is whether greater specificity in terms of remedies, leads to better implementation.

The international and regional human rights systems continue to struggle with the question of the implementation of decisions. Some commentators, such as Helen Keller and Cedric Marti, have called for a greater judicialization of implementation processes. To an extent, this seems to have been acknowledged by Council of Europe states when it introduced the notion of infringement proceedings – enabling the Committee of Ministers to refer unimplemented cases back to the European Court. Only now, the Committee of Ministers has signalled its intention to use this mechanism for the first time – as regards Azerbaijan’s recalcitrance over the continuing imprisonment of opposition politician Ilgar Mammadov.

Establishing a facet of implementation which is independent of states themselves would certainly seem to be important, but the domestic context will remain the most significant element, and changes will only follow where the conditions at the national level are sufficiently receptive. Within the HRLIP, we hold to the premise that human rights systems represent a complex web of interaction and interdependence between institutional actors, both domestic and supranational, each of which has different functions, expertise and competences. No one of these actors could secure the objectives of the system alone. Further, states are of course not monolithic entities, but a collection of actors which, acting both collaboratively and competitively, in practice determine whether and to what extent implementation occurs. Taking, broadly, a constructivist approach to international relations, this emphasises the non-coercive, norm-shaping and socialising role of international law. Such an understanding lays down a challenge to civil society to find new, productive ways of engaging with states and the full range of state bodies, in tackling the thorny issue of implementation.

Conclusion

We do need to be able to see, and communicate, the positives. Kathryn Sikkink, and others, have provided an emphatic rebuttal to the prevailing pessimism about human rights laws and institutions. It is true that change may only come slowly and as the result of struggle, but in the long term, human rights movements have been vastly effective. The evidence shows that human rights progress has been greatest where there are strong regional human rights institutions, and strong social movements. This necessitates collaboration – we need even stronger domestic movements that engage both at the domestic level and internationally. David Cole describes civil society organisations as vital agents of constitutional change, often succeeding against daunting odds, and Chris Stone has recently reminded us that it was Wiktor Osiatyński who argued that it is civil society not states which contribute most to the protection of rights.

However, some significant challenges remain. As Cole makes clear, framing and messaging can be as important as legal argument. He emphasises the importance of seeking cultural transformations – for example, some of the most important gay rights advocacy was focused not on legal and political change but on cultural and political campaigns.

More fundamentally, Stone underscores Osiatyński’s call (made back in 2009) for the human rights movement to close the gap between itself and the public, especially, in an era of globalisation, for those who have not seen the benefits of economic growth. This point is echoed by the Ford Foundation’s Martín Abregú in his challenging call for the need to do more to make human rights real by engaging with non-human rights sectors, to challenge the very structural inequalities which underlie so many human rights violations.

We should continue to respond to, but also challenge, the idea that the human rights movement is an elite which is disconnected from the public or in thrall to foreign powers. For example, research published recently by the Pew Research Center about public attitudes showed that NGOs are not seen as elite or the tools of foreign states. Of course, some authorities (such as those currently in power in states like Poland, Hungary, Russia and Azerbaijan) view human rights as an effective and unwanted challenge to their hold on power, and who see human rights standards as an inconvenient obstacle. In the light of states’ cynicism towards human rights, Chris Stone suggests that we should insist on the legitimacy of civil society organisations as independent pillars of constitutional democracy. We also need more thinking about how to develop the existing human rights processes, so that they can be enhanced and diversified, not least by building stronger domestic collaborations. Effectively communicating the results and worth of litigation before human rights mechanisms should be a high priority. Strategic human rights litigation represents just one of many tools of social change, and requires a long term strategy, but it continues to be a viable and effective lever for change.

Access to Remedy Under the UNGPs: Vedanta and the Expansion of Parent Company Liability

Tue, 10/31/2017 - 09:00

On Friday, 13 October 2017 the UK Court of Appeal handed down its long anticipated decision in Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc [2017] EWCA Civ 1528 (“Vedanta”). The appeal was brought by UK-based Vedanta Resources Plc (“Vedanta Resources”) and its Zambian subsidiary Konkola Copper Mines (“KCM”), against a decision dismissing certain jurisdictional challenges brought by each of Vedanta Resources and KCM.

The underlying claim was brought by a group of Zambian Villagers alleging that harmful effluent from the appellants’ Zambian copper mining operations had been discharged into the local environment, including waterways that were of critical importance to the livelihood of the claimants, and to their physical, economic and social wellbeing. Rejecting the appeal, the Court of Appeal found that the claim could proceed against the appellants in the UK.

The Vedanta litigation is a critical avenue for the claimants to pursue effective remedy as envisioned by the UN Guiding Principles on Business and Human Rights (“UNGPs”) and represents a significant development in the emerging doctrine of parent liability.

Accessing Human Rights Remedies against Companies – the Importance of Tort Claims

The UNGPs are structured around three pillars: first, the State duty to protect against human rights; second, the corporate responsibility to respect human rights; and third, the need for greater access to effective remedy for victims of human rights abuses. The UNGPs do not provide any enforcement mechanism, and with the exception of the obligation of non-state actors to comply with international criminal law, there are no direct international law obligations on corporate actors to respect human rights.

Conventional tort litigation can provide an avenue for private parties to bring suit against multinational corporations in domestic courts based on conduct which violates international human rights (“IHR”) standards. Given the dearth of direct IHR obligations on corporate actors, pursuing human rights breaches in the form of domestic tort claims remains one of the few avenues for those impacted by human rights violations to obtain effective remedy.

While it may be preferable to bring a claim based on human rights abuses in the jurisdiction in which the underlying events occurred, where a domestic court in a host jurisdiction is unwilling or unable to provide a judicial avenue for redress, plaintiffs may seek to bring claims in the home state of a corporate actor. Although the future of corporate liability under the Alien Tort Statute in the US remains uncertain pending the outcome of the Supreme Court’s decision in Jesner at al v Arab Bank Plc No 16-499, there are promising developments in the case law in Canada (Choc v Hudbay Minerals Inc [2013] ONSC 1414), the Netherlands (Akpan v Royal Dutch Shell PLC Arrondissementsrechtbank Den Haag, 30 January 2013 Case No C/09/337050/HA ZA 09-1580) and the UK (AAA and Anor v Unilever PLC and Anor [2017] EWHC 371) where courts have been willing to assume jurisdiction over cases where harms the subject of the claim have occurred outside the home state. Vedanta represents the latest development in this global body of case law

Jurisdiction

The Court of Appeal’s decision to accept jurisdiction over this case is undoubtedly significant and represents a clear statement on the non-applicability of forum non conveniens in the EU where a claim is in a court in which the defendant is domiciled, confirming the widely accepted interpretation of Owusu v Jackson (case c-281/02) [2005] QB 801 to that effect.

However, in addition to allowing the case to proceed in the UK, and perhaps more significantly, Simon LJ made a number of remarks in Vedanta indicating the Court’s receptiveness to a potential duty of care owed by a parent company to those affected by acts of its subsidiaries.

Parent Duty of Care Owed to those Affected by Acts of Subsidiaries

In the context of deciding whether Vedanta Resources was a “necessary or proper party” to the proceedings for the purposes of paragraph 3.1(3) of Practice Direction 6B, Simon LJ reviewed the current state of the law in the UK on the existence of a duty of care owed by a parent concerning acts of its subsidiary, concluding (emphasis added):

[83] It seems to me that certain propositions can be derived from these cases which may be material to the question of whether a duty is owed by a parent company to those affected by the operations of a subsidiary. (1) The starting point is the three-part test of foreseeability, proximity and reasonableness. (2) A duty may be owed by a parent company to the employee of a subsidiary, or a party directly affected by the operations of that subsidiary, in certain circumstances. (3) Those circumstances may arise where the parent company (a) has taken direct responsibility for devising a material health and safety policy the adequacy of which is the subject of the claim, or (b) controls the operations which give rise to the claim. (4) Chandler v. Cape Plc and Thompson v. The Renwick Group Plc describe some of the circumstances in which the three-part test may, or may not, be satisfied so as to impose on a parent company responsibility for the health and safety of a subsidiary’s employee. (5) The first of the four indicia in Chandler v. Cape Plc [80], requires not simply that the businesses of the parent and the subsidiary are in the relevant respect the same, but that the parent is well placed, because of its knowledge and expertise to protect the employees of the subsidiary. If both parent and subsidiary have similar knowledge and expertise and they jointly take decisions about mine safety, which the subsidiary implements, both companies may (depending on the circumstances) owe a duty of care to those affected by those decisions. (6) Such a duty may be owed in analogous situations, not only to employees of the subsidiary but to those affected by the operations of the subsidiary. (7) The evidence sufficient to establish the duty may not be available at the early stages of the case. Much will depend on whether, in the words of Wright J [in Connelly v RTZ Corporation Plc [1999] CLC 533], the pleading represents the actuality.

That a duty may be owed not only to the employees of a subsidiary, but also to those affected by its operations in analogous situations has significant implications, particularly for practitioners seeking to find avenues for access to effective remedy as set out in Pillar III of the UNGPs via domestic tort law.

While the scope of any such emerging duty remains theoretical and will depend in large part on the facts of a particular case, Simon LJ went on to note that the fact that no such duty had been found in the jurisprudence to date was not of itself a bar to such a duty being established in the future, stating that:

[88] [Counsel for the appellants] also pointed out that there had been no reported case in which a parent company had been held to owe a duty of care to a person affected by the operation of a subsidiary. That may be true, but it does not render such a claim unarguable. If it were otherwise the law would never change.

Trends in the Jurisprudence – Scope for Supply Chain Liability

Acceptance of the corporate responsibility to respect human rights enshrined in Pillar II of the UNGPs and the need for access to effective remedy in Pillar III have developed alongside an escalating trend toward the recognition of a duty of care based on control or superior knowledge in recent case law. Vedanta affirms the emergent doctrine of parent liability established in Chandler v Cape Plc [2012] EWCA Civ 525 and Thompson v The Renwick Group Plc [2014] EWCA Civ 635 and introduces the possibility that a parent may owe a duty not only to the employees of a subsidiary, but beyond.

Simon LJ’s obiter remarks in Vedanta confirm that liability may extend where there is direct responsibility or control over the human rights impacts of another corporate entity. This trend in the jurisprudence, which aligns with the principles set out in the UNGPs, could potentially extend beyond the corporate group and into the supply chain. While liability will ultimately turn on whether “the pleading reflects the actuality”, on the current state of the case law, a parent company with active control over its global operations is increasingly less likely to be in a position to exclude liability through complex corporate structures and reliance on separate corporate personality.

The development of a global body of case law in this area has been slow, given that most claims of this nature settle. The significance of Simon LJ’s obiter remarks lie in the fact that should Vedanta settle, or should the claimants fail on the facts, future claimants may take confidence that such a duty of care may exist, that the law is open to extension of the parent duty of care, and that UK courts are willing to take an expansive approach to jurisdiction in line with trends in the global jurisprudence.

 

The British Institute of International and Comparative Law (BIICL) and Norton Rose Fulbright are currently undertaking a research project on the law and practice of Human Rights Due Diligence in Supply Chains

 

 

 

Myanmar’s Rohingya Crisis and the Need for a Regional Response to Statelessness in Southeast Asia

Mon, 10/30/2017 - 08:00

Over the past two months, about half a million Rohingya people have fled from Myanmar (Burma) to neighboring Bangladesh. The immediate trigger for this mass exodus was a crackdown by Myanmar’s security forces against Rohingya insurgents and civilians, which reportedly included widespread torture, rape, and killing. However, the roots of this conflict lie far in the past.

The Rohingya are a Muslim ethnic minority based in the western part of predominantly Buddhist Myanmar. Since the establishment of Myanmar in 1948, Rohingya leaders have made separatist claims, at times accompanied by a violent struggle by some insurgent groups. The government, on its part, has denied Burmese citizenship to the Rohingya people and refused to include them among the country’s 135 officially recognized ethnic groups. The government asserts that the Rohingya are illegal migrants from Bangladesh, whereas the Rohingya consider themselves to be indigenous people of western Myanmar. Neither Bangladesh nor any other country has been willing to grant citizenship to Myanmar’s Rohingya, and the vast majority of the group’s one million members have thus remained stateless.    

As a stateless minority, the Rohingya have suffered severe discrimination in Myanmar. They have been denied the right to participate in elections and have faced severe restrictions on movement, land ownership, family life, religious freedom, education, and employment. They have also been persecuted by extremist Buddhist groups without government interference. During the last decades, this reality has pushed tens of thousands of Rohingya to seek asylum in neighboring countries. The present crisis thus marks the culmination of the longstanding persecution of this stateless minority.

In this contribution, I argue that the adoption of a more effective regional response to the problem of statelessness is essential in order to ameliorate the plight of the Rohingya and other stateless groups in Southeast Asia. I begin by providing a brief factual background on statelessness in Southeast Asia. I then describe the existing international legal framework on statelessness, noting the limited impact that it has had in Southeast Asia. Finally, I present the justifications for adopting a new Southeast Asian regional approach to statelessness, and discuss the role that the Association of Southeast Asian Nations (ASEAN) should play in this respect.

Statelessness in Southeast Asia

According to the estimates of the United Nations High Commissioner for Refugees (UNHCR), there are currently more than 10 million people around the world who are stateless, that is, not considered as nationals by any state under the operation of its laws. The highest concentration of stateless persons can be found in Southeast Asia, with Myanmar’s Rohingya forming the largest stateless group in this region (and worldwide), and Thailand’s half million stateless hill tribe people forming the second largest group. Stateless groups in Southeast Asia also include ethnic Vietnamese in Cambodia, semi-nomadic sea-based people in the Philippines (Sama Dilaut) and in Burma (Moken), and many others. Another notable category of stateless people in the region are children born to unwed mothers in countries whose nationality laws constrain the ability of women to confer their nationality on their children, such as Nepal, Malaysia, and Brunei.

International Legal Framework

International norms addressing statelessness can be divided into two types: protection norms and prevention norms. Protection norms require states to respect the basic human rights of stateless persons regardless of their statelessness. The 1954 Convention relating to the Status of Stateless Persons is a clear example of this type. It establishes the duty of states to ensure that stateless persons within their territory have free access to courts, enjoy religious freedom, are entitled to primary education, and more.

In contrast to the 1954 convention, most subsequent international norms on statelessness focus on the prevention of statelessness rather than the protection of stateless persons. The major prevention treaty is the 1961 Convention on the Reduction of Statelessness, which places limitations on the discretion of states with respect to granting and revoking citizenship. In addition, relevant international human rights conventions—including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women—enshrine the right of every person to nationality and prohibit discrimination in the enjoyment of this right.

Both the 1954 and the 1961 statelessness conventions have had limited influence on state practice, which may be attributed to the absence of adequate monitoring and enforcement mechanisms and to the poor ratification of these treaties. By the end of 2013, less than half of the world’s states (79) had ratified the 1954 convention, and less than a third (55) had ratified the 1961 convention. Against this background, in 2014 the UNHCR launched the #Ibelong campaign to end statelessness by 2024. This campaign has induced ten governments worldwide to accede to one or both of the statelessness conventions. In addition, it has led to the adoption of regional decisions and action plans to eradicate statelessness in Latin America, West Africa, and Europe. Southeast Asia has been less responsive to the UNHCR campaign. Although a regional Ministerial Declaration to “Get Every One in the Pictureˮ was adopted in Bangkok under UNHCR auspices in December 2014, this declaration is dedicated to promoting the registration of births, which is crucial for the prevention of statelessness, but is hardly enough. Other aspects of statelessness have yet to be addressed by regional decision-makers in Southeast Asia, and accession to the statelessness conventions has remained remarkably low, with the Philippines being the only country in the region to have ratified them.

A New Regional Approach to Statelessness

Why are Southeast Asian countries reluctant to take part in the international legal regime on statelessness? I believe that a major reason for their reluctance is that this regime focuses almost exclusively on preventing statelessness, as opposed to protecting stateless persons as such. Admittedly, the elimination of involuntary statelessness seems to represent an ideal goal in the current world order, which is organized around the assumption that states, as the main guarantors of human well-being, have stronger duties toward their citizens than toward non-citizens. However, this ideal solution may be impracticable in situations where the denial of citizenship is rooted in deep cultural and ideological divides, as is the case in some Southeast Asian countries.

In the case of Myanmar, for example, it may be extremely difficult to induce the government to grant citizenship to the Rohingya anytime soon. So far, the best that the government has been willing to do is to grant citizenship to Rohingya who agree to be registered as Bengalis. For the Rohingya, however, this condition amounts to erasing their indigenous identity, and is therefore unacceptable. To take another example, the widespread public hostility toward ethnic Vietnamese in Cambodia, which has been fueled by ongoing governmental incitement against them, is likely to present a serious obstacle to the full naturalization of this group, although most of its members have lived in Cambodia for several generations and are not recognized as nationals of any other state. This does not mean that the prospects for the naturalization of stateless people are poor throughout the region. For example, in recent years the government of Thailand has responded to international and civil society pressures and changed its naturalization policies to allow for many long-excluded hill tribe people to acquire citizenship, and the government of Indonesia has acted similarly with respect to local ethnic Chinese.

This suggests that different measures may be needed to address statelessness in different Southeast Asian countries, depending, inter alia, on the nature of the country’s regime and its relationship with stateless minorities within its territory. However, despite these differences, it is important to develop solutions to the problem of statelessness at the regional level, for several reasons. First, the persecution of stateless groups in one country often has destabilizing effects on neighboring countries, as in the case of the Rohingya people seeking asylum in Bangladesh, Thailand, Malaysia, and Indonesia. Hence, adjacent countries have a common interest in preventing the persecution of stateless people in their region. Second, regional coordination can facilitate reciprocal improvement in the treatment of stateless groups, as for example in the case of ethnic Vietnamese in Cambodia and ethnic Cambodians in Vietnam. Third, in the absence of regional coordination, countries may be hesitant to adopt favorable policies toward stateless persons that might spark an influx of migrants from the entire region.

ASEAN can and should play a central role in the promotion of a concerted regional response to statelessness. Until recently, ASEAN did not place the protection of human and minority rights high on its agenda. However, in recent years the organization has demonstrated greater commitment to promoting these goals. In 2007, ASEAN Member States adopted the ASEAN Charter, which enumerates the promotion and protection of human rights, fundamental freedoms, and social justice among the core purposes and principles of the organization, to which all states must adhere. The Charter, which envisions a “new” ASEAN with wider authority and stronger institutions, has instigated the creation of several human rights bodies and mechanisms, including the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), which were established in 2009 and 2010, respectively, with the mandate of developing strategies for the promotion and protection of human rights; the 2012 ASEAN Human Rights Declaration, which enshrines, inter alia, the right of every person to a nationality; and the ASEAN Socio-Cultural Community Blueprint, which stresses the need to promote and protect the human rights of all ASEAN people, including ethnic minorities and other vulnerable groups. ASEAN members have also demonstrated—inter alia by adopting the 2015 ASEAN Convention Against Trafficking in Persons and the 2016 East Asia Summit Declaration on Strengthening Responses to Migrants in Crisis and Trafficking in Persons—their commitment to respond to conflict-induced transboundary migration and to human trafficking, two urging regional problems which are exacerbated by statelessness.

All of these instruments and mechanisms can support the development of regional schemes for addressing statelessness. Such schemes should encourage states to change their nationality laws to eliminate ethnic- and gender-based discrimination in the granting of citizenship. They should also outline methods and best practices for enhancing the efficiency of naturalization policies and removing bureaucratic, financial, and informational barriers that may prevent eligible applicants from obtaining citizenship. At the same time, ASEAN should induce member states to improve the protection that their legal systems provide to those who remain stateless and to ensure, in particular, that they enjoy basic freedoms and socioeconomic rights and are not persecuted or abused by other people. Such a combination of prevention and protection measures can allow all ASEAN members to take part in the regional regime on statelessness, while providing the best available solution to the quandary of stateless populations. 

Announcements: Crisis of International Criminal Law in Africa Seminar; Neglected Methodologies of International Law Workshop

Sun, 10/29/2017 - 10:00

Modern Law Review Seminar: ‘The Crisis of International Criminal Law in Africa’. This joint conference between University of Leicester and University of Johannesburg will take place on 7 November 2017, 8.45 am-5 pm (UK time) in the Haldane Room, Fielding Johnson Building, University of Leicester, UK, and Faculty of Law, University of Johannesburg, South Africa (both venues will be linked by Skype). Confirmed speakers include Judge Morrison, International Criminal Court (ICC), Sarah Swart, International Committee of the Red Cross (ICRC), and members of the International Law and Policy in Africa Network (ILPAN). For further information, see here. The contact for bookings or further enquiries is eyo1 {at} le.ac(.)uk var mailNode = document.getElementById('emob-rlb1@yr.np.hx-93'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%65%79%6F%31%40%6C%65%2E%61%63%2E%75%6B"); tNode = document.createTextNode("eyo1 {at} le.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-rlb1@yr.np.hx-93"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

Workshop on ‘The Neglected Methodologies of International Law – Empirical, Socio-Legal and Comparative’. This workshop is being held at the University of Leicester on 31 January 2018. Methodologies of international law remain predominantly doctrinal. However, new approaches to international legal research are emerging. We welcome submissions that engage with innovative, non-dogmatic approaches to the study of international law – either in the form of theoretical analysis or case studies. The  full call for abstracts can be found here.

The Human Costs of Exiting Trade Agreements: The Right to Development in an Era of Policy Uncertainty

Fri, 10/27/2017 - 06:00

October 2017 has been a cliffhanger month for global policy uncertainty, especially highlighted by the mirroring acts of brinksmanship during intense trade negotiations on both sides of the Atlantic.  With the looming 29 March 2019 Brexit deadline, UK Prime Minister Theresa May surprised Brexit hardliners when she announced on 23 October that there will be no implementation period or transition period for Brexit without a final trade treaty concluded between the EU and the UK.  The EU’s Chief Brexit negotiator, Michel Barnier, has already announced that “it would take years to complete” such a treaty, making it clear at this point that Brexit will proceed without a transitional period unless Mrs. May reverses course. Without a transitional period before Brexit, significant uncertainty in the regulatory environment is estimated to already deter investment in British manufacturing sectorslose 100,000 jobs in the finance sector in the UK, with small and medium enterprises (SMEs) estimated to be hit hardest because of impacts to banking, capital access, and markets for British goods. According to a 2016 OECD study estimating the economic consequences of Brexit, “Brexit would be akin to a tax on GDP, imposing a persistent and rising cost on the economy that would not be incurred if the UK remained in the EU. The shock would be transmitted through several channels that would change depending on the time horizon. In the near term, the UK economy would be hit by tighter financial conditions and weaker confidence and, after formal exit from the European Union, higher trade barriers and an early impact of restrictions on labour mobility. By 2020, GDP would be over 3% smaller than otherwise (with continued EU membership), equivalent to a cost per household of GBP 2200 (in today’s prices). In the longer term, structural impacts would take hold through the channels of capital, immigration and lower technical progress. In particular, labour productivity would be held back by a drop in foreign direct investment and a smaller pool of skills. The extent of foregone GDP would increase over time. By 2030, in a central scenario GDP would be over 5% lower than otherwise – with the cost of Brexit equivalent to GBP 3200 per household (in today’s prices).”  All this, without even factoring in the cost of the Brexit divorce bill (estimated loosely so far at a gross bill of about €100 billion euros) as the financial settlement for all obligations the UK made as a member of the EU.  

Similarly, uncertainty pervaded the fourth round of renegotiation talks in October between the United States, Canada, and Mexico on the future of the North American Free Trade Agreement (NAFTA) – taking place under the Damocles sword of US President Donald Trump’s threats of withdrawal from NAFTA.  The US Trade Representative’s demands to “rebalance” NAFTA and restore US trade deficits, through an aggressive set of negotiation objectives, have been rejected by the US agricultural sector, and also opposed by the United States Chamber of Commerce as ‘dangerously’ intended to scuttle NAFTA altogether. Scholars, such as Joel Trachtman, have argued that the United States cannot, in any case, unilaterally withdraw from NAFTA without Congressional approval.  While NAFTA renegotiation talks have been extended to the first quarter of 2018 (when the US President’s authority to negotiate trade deals under the Congressional grant of Trade Promotion Authority is also up for Congressional renewal), the persistent uncertainty is also hurting farmers, and small business owners in local communities throughout the North American region, deterring investments into the United States, threatening the loss of 14 million jobs in the United States – with 47 economists of the National Association for Business Economics reporting that the United States economy will not gain from, but will be harmed by, the NAFTA renegotiations.

The strident assertions of sovereignty notwithstanding, one has to wonder whether the States willingly inviting the policy, regulatory, and economic uncertainty in their domains are transparently discussing the human costs to these changes, and enabling the widest possible consultations with, and participation of communities, individual persons, and groups in the lasting economic decisions being taken on their behalf.  Regardless of the form of the economic decision that treaty negotiators and politicians reach – whether bilateral, trilateral, or multilateral trade agreement or any other political arrangement conceived to steer the State’s course towards more economic development – do States muscling the argument of sovereignty in the current debates about global economic treaty changes recognise the higher claims of the communities, groups, and individual persons – who are the ultimate constituencies of the sovereignties that these States assert?

In this post, I point out that, in this critical time of change that could be both perilous and promising, States immersed in the processes and politics of these tectonic global economic treaty changes have muted the human costs and impacts of change in the policy debates, without giving an equal place for the independent participation of individuals, civil society groups, and local communities alongside lobbying efforts of chambers of commerce and market players.  This seeming ‘business as usual’ ethos in the writing and rewriting of trade agreements undermines the right to development as a “comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom.”  (Declaration on the right to developmentPreamble, paragraph 2.)  I discuss four overlooked aspects in the current global debates on economic treaty changes and supposed exits from trade agreements: 1) transparency, consultations, and participation; 2) human rights impact assessments; 3) short and long-term trade adjustment strategies through labor and education policies; and 4) interacting long-term economic, social, cultural, and environmental obligations that already constrain how States rewrite the new global terms of trade for future generations.

Transparency, consultations, and participation

Brexit negotiations have thus far not created a formal channel for the time being on the participation of individuals, groups, or communities in the UK. Dr. Alan Renwick explains

“All sides agree that public opinion should continue to influence the process, but there are two views on what that should mean. One view is that the public spoke in the referendum and the task now is simply to implement that decision. The other view is that opinion is more complex and changeable and that evolving public views should also be considered. One way public opinion might be heard is through a referendum on the final deal. The form this would take, the effects it might have, and how it might come about are complex issues. The most like version would pit the negotiated deal against remaining in the EU. Circumstances leading to such a vote are imaginable, but its outcome is impossible to predict. The prevailing public mood will, in any case, influence MPs’ and ministers’ day-to-day decisions. Direct public intervention could also come in the form of a general election.” (at p. 3)

In a letter dated 28 February 2017, the EU Ombudsman urged the EU Commission to ensure transparency and consultation with all stakeholders in the Brexit negotiations, to “assist in protecting EU citizens’ rights”.  In response, the Commission has adopted a tailor-made policy of “maximum level of transparency” opening all negotiation documents on the Article 50 negotiations with the UK.

In contrast, the NAFTA renegotiations process has not built in formal channels for negotiation transparency, public consultations with all stakeholders, and public participation, although the United States Trade Representative set up a public comment period on its NAFTA renegotiation objectives. This flies in the face of the basic objective of ensuring public participation in development decisions under Article 8 of the Declaration on the Right to Development (“States should encourage popular participation in all spheres as an important factor in development and in the full realisation of human rights”).  Without access to information on the terms of the ongoing negotiations, individuals, groups, and local communities who are denied stakeholder participation will not be able to weigh in on the ultimate terms of the NAFTA renegotiation, contrary to business groups, chambers of commerce, producer groups, and other supply chain firms who have a greater wherewithal of resources to make their positions known to their respective governments conducting the NAFTA renegotiations.

Human rights impact assessments

In December 2016, the UK Parliament released its report on “The human rights implications of Brexit“, noting the Government of the UK “has not been able to set out any clear vision as to how it expects Brexit will impact the UK’s human rights framework.  The Government “seemed unacceptably reluctant to discuss the issue of human rights after Brexit. The Minister of State responsible for human rights was either unwilling or unable to tell us what the Government saw as the most signicant human rights issues that would arise when the UK exits the EU.” (Conclusions, paras. 1 and 2.)  The ongoing omission to conduct ongoing human rights impact assessments for the UK’s departure from the EU continues to be criticised.  In contrast, the European Commission Directorate General for Trade has preexisting Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives  as well as settled practices on sustainability impact assessmentsalthough the Commission has not yet released any such impact assessment report in relation to the ongoing Brexit negotiations and supposed negotiation thereafter for a new UK-EU trade treaty.  The NAFTA renegotiations process does not provide for any such human rights impact assessments, especially since human rights have not figured much in public discussions of the NAFTA “2.0”.

The right to development does not specifically mandate human rights impact assessments, but in the aftermath of global financial crises and upheavals in States’ economic decision-making policies in the last decade, the UN Human Rights Council issued its Resolution dated 16 March 2017 which requests the Independent Expert (on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights) to “develop guiding principles for human rights impact assessments for economic reform policies, in consultation with States, international financial institutions and other relevant stakeholders, and to organize expert consultations for the development of the guiding principles and a mapping of existing impact assessment tools.” (para. 13.)  Likewise, the Committee on Economic Social and Cultural Rights’ General Comment No. 24 (which I summarised here) emphasises the need to conduct human rights impact assessments before entering into trade and investment agreements:  “The conclusion of such treaties should therefore be preceded by human rights impact assessments that take into account both the positive and negative human rights impacts of trade and investment treaties, including the contribution of such treaties to the realization of the right to development.” (para. 13.)  

Short & Long-Term Trade Adjustment Strategies through Labor and Education Policies

While it may seem premature to formulate trade adjustment strategies when negotiations on Brexit and the supposed new UK-EU treaty are in early stages, and NAFTA renegotiations are nowhere near reaching agreement on discrete points, the uncertain duration of global economic treaty rule changes – whether from exiting trade agreements or concluding new ones – makes it imperative, however, for States focused on properly ensuring the right to development for their populations, to also adopt foresight in planning short-term and long-term trade adjustment strategies by forecasting worker displacements, shifts in demands for skilled and unskilled labor, corresponding needs for worker adaptability through continuing training, and for education strategies that anticipate the diversification of needed skills and relevant expertise from those expected to join the job market after the new global economic treaty rules are concluded and enter into force.  NAFTA took 14 years to conclude in 1994, from the time US President Ronald Reagan first articulated a proposal for such an agreement in 1980.  In that span of time, the United States has repeatedly been called upon to anticipate labor market changes and corresponding educational needs arising from changing labor markets adapting to NAFTA, such as in the United States Government Accountability Office’s 1997 Report on NAFTA Impacts and Implementation, a 2010 report filed with the National Bureau of Economic Research, and even a 2017 Congressional Research Service Report on NAFTA.  In 2016, the OECD G20 Employment Working Group issued its report, Enhancing Employabilitywhich emphasises the need for continuing evaluation of the adaptability and fit of education policies and labour market strategies in the face of structural shifts from changes in global economic rules, the challenges of obsolescence arising from technological innovation and automation – alongside the need for States to adopt policy coherence as they make economic decisions that stand to have lasting impacts on populations.  In this era of expected global economic rule changes, it is troubling that States are not holding counterpart discussions on devising long-term labor and education strategies to adapt to future competitiveness under the new economic rules. The World Bank’s 2017 World Development Report just called the attention of States to an urgent learning crisis in global education, where learning outcomes and targets are misaligned with future job market needs.

Interacting Long-Term ESC Rights and Environmental Obligations

Finally, during the period of rewriting economic rules through negotiations on Brexit and the supposed new UK-EU treaty, as well as the NAFTA renegotiations, it should also be emphasised that the States involved do not negotiate in a vacuum.  There are dense international obligations taken on by all States involved which do not just refer to economic agreements, but more pertinently involve the rights owed under international human rights law to all individuals, groups, and local communities to be affected in the short term by the uncertainty of the regulatory environment, and in the long-term by the new rules arrived at by States’ treaty negotiators.  Especially since, as shown above, there are few direct opportunities for full participation by, and information exchange with, individuals, groups, and local communities in the NAFTA renegotiations process or the negotiations on Brexit and the new UK-EU treaty, it will be foreseeably harder for these constituencies of international human rights law and international environmental law to check their political representatives in real time during treaty negotiations.  If the ultimate sources of sovereignty – which are precisely individuals, groups, communities, and populations – have to wait for a referendum to approve the new draft treaty texts; elections to replace or give another negotiating mandate to their current or future political agents; or even to seek recourse through domestic, regional, and/or international courts and tribunals (where possible), before they can vindicate their preexisting economic, social, cultural, and environmental rights as against infringing provisions of the new economic treaty rules, the exercise of sovereignty through exiting and concluding new trade agreements rings hollow.  

The ends of trade and investment agreements, after all, are to realise the authentic meaning of development under the right to development, which is “the inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised.” This right is all the more crucial in these times, when politicians are obscurely rewriting the rules for all of us and fueling the global economic policy and treaty uncertainty, without ensuring that individuals, citizens, groups, and communities actively take part in drawing the terms of bargaining for the future global economic order.

A Footnote on Secession

Thu, 10/26/2017 - 01:34

We have had a very rich debate on secession on the blog in recent weeks, and we will have more posts to follow. For my part, I would agree with much of what Jure Vidmar has said in his post this week, with the proviso that I personally don’t think the argument out of comparative constitutionalism necessarily has much purchase – that argument is contextually specific, and what works constitutionally in Canada or in the UK need not be the position in Spain. The ultimate arbiter of the Spanish constitutional order – the Constitutional Tribunal – has (for good or ill) not gone the Quebec Reference path. I agree in particular that international law has little to say on the secession of Catalonia specifically; Kurdistan is a more difficult question (on which a bit more below). What I would like to do in this post, however, is take a step back and reflect more generally on how secession is regulated by international law – and it is indeed regulated, if not wholly so.

It seems to me most useful to conceptualize international law’s regulation of secession in a three part model. First, there are cases where international law explicitly prohibits secession, when it is being effected through the violation of some fundamental norm of international law, such as the prohibition on the use of force or the prohibition on racial discrimination – this was the case, for example, with the Turkish Republic of Northern Cyprus. Such fundamental illegality is an impediment to the achievement of statehood which otherwise satisfies the relevant factual criteria, and thus bounds effectiveness. Crucially, as the ICJ has confirmed in the Kosovo AO, among these norms is NOT the principle of territorial integrity insofar as it does not govern the relationship between the parent state and an internal secessionist movement; that principle is only relevant if a third state assists a secessionist entity, as with Turkey and the TRNC.

Second, there is a middle ground, a zone of tolerance, where international law is neutral towards secession, neither prohibiting it nor creating a right to it. This neutral zone is what is left over from the classical position towards secession in international law, which was essentially that in order to establish itself as a state against the wishes of its parent, the secessionist entity needed to fight – and win – a war of independence against its parent (e.g. the USA, or most of the states of Latin America).

Finally, in the third part, a zone of entitlement, international law creates a right to secession under external self-determination, or perhaps remedial secession. The argument of Serbia and most of its allies in the Kosovo advisory proceedings was essentially that no zone of tolerance existed between prohibition and entitlement; the argument of Kosovo and its supporters that international law at the very least tolerated the declaration of independence/secession. Serbia could also have argued that even if the territorial integrity principle did not generally prohibit non-state actors from declaring independence, it did so here because Kosovo’s independence was as a matter of fact enabled by an unlawful use of force contrary to the Charter by NATO in 1999. Serbia of course deliberately chose not to do so, and for three basic reasons: it did not want to antagonize the NATO powers, as this argument would inevitably do, the Resolution 1244 regime came after the initial use of force and authorized the presence of international forces in Kosovo, and it was highly unlikely that the Court would want to rule on it in the context of the advisory proceedings.

How do the second and the third component of the three-part model of secession differ? Under the neutrality paradigm an entity would need a great deal of effectiveness in order to successfully attain statehood; it would certainly need to build independent, viable, long-term institutions, free from the interference of the parent state, if it was creating a new state from scratch. Today the requirements for ‘winning’ in a unilateral secessionist claim are much stricter – perhaps even arbitrarily so – compared to the 18th or 19th century practice (see, e.g., Somaliland, whose claim to statehood goes unrecognized despite a significant degree of effectiveness). But a secessionist entity would need less effectiveness if it was in the third part of the model, i.e. if it had the right to secede; East Timor needed less effectiveness than say Abkhazia in order to become a state. Legality thus advances or compensates for effectiveness.

Reading through the debates we had on the blog, it seems to me (but I am happy to be corrected if I am mistaken) that we are all in agreement that Catalonia today falls within the middle, neutral zone of the three-part model. That is, its purported claim to independence is neither prohibited nor advanced by international law. It very much IS prohibited by Spanish law – and I agree with all of the commentators to Marc Weller’s post who said, contra Marc, that it is perfectly appropriate to judge the Catalan attempt at secession by reference to Spanish law. However, that domestic illegality as such has no bearing on international legality; virtually all unilateral secessions violated the municipal laws of the parent state, and this is neither here nor there for the position of an entity in the neutral zone. 

But I was struck by how not even Marc – in an opinion commissioned by one of the secessionist parties – claimed that Catalonia had a right to secede, i.e. that it was in the third part of the model. And rightly so. Even if an entitlement to remedial secession existed in modern international law (and it almost certainly does not, on which more below), Catalonia is factually very far indeed from situations in which such a right might apply.

What then of Kurdistan, whose claim in that regard would historically be much stronger, in light of the extreme oppression that was inflicted on the Kurdish people under the Saddam Hussein regime? I would drop a second footnote here to the Kosovo advisory proceedings; another remarkable thing about that case was just how small a role self-determination and remedial secession played in it. For instance, only two pages out of almost two hundred in the first written contribution of Kosovo in that case concerned self-determination, and even there the main claim was that this was a point that the Court did not need to reach (as it did not).

That said, arguments were certainly joined with regard to remedial secession/self-determination. Of the 43 states (excluding Kosovo) that appeared before the Court in the three rounds of pleadings, 14 asserted that this right existed in principle, 14 denied its existence, and the remaining 25 were silent or neutral. When it comes to the five permanent members of the Security Council, only Russia endorsed remedial self-determination in principle (while rejecting its applicability to Kosovo on the facts; cf. its hypocritical position regarding Crimea), China opposed it, while France, the UK, and the US remained neutral. (For detail/references, see my chapter ‘Arguing the Kosovo Case,’ in M. Milanovic and M. Wood (eds.), The Law and Politics of the ICJ’s Kosovo Advisory Opinion (Oxford University Press, 2015) 21).

If we take the views of the committed states as expressions of their opinio juris, we can only really say that the question of the existence of the right to remedial secession would remain inconclusive if the states appearing before the ICJ were a representative sample of the international community as a whole. The silence of the neutral states cannot be taken as expression of opinio juris one way or the other, but it still speaks volumes, politically if not legally. Coupled however with the fact that no state in the world today clearly obtained its statehood by virtue of a principle of remedial secession, and that those claiming a right exist bear the burden of proving it, the absence of a concordant practice would seem to negate the existence of any such rule.

Even if the right was available, it could be exercised only as an ultima ratio. And this is where Kurdistan’s claim flounders; the government of Iraq today is not Saddam’s, and has no particular desire to systematically oppress the Kurds or deny them internal self-determination. Whatever positive entitlement to secession that they may once have had, that right has lapsed in the intervening years. Kurdistan is thus, like Catalonia, and like Kosovo, in the middle, neutral zone of the tripartite model above,  in which international law has to say the least. It is through politics, not law, that these matters can only be resolved.

Sir Elihu Lauterpacht: A Celebration of His Life and Work

Wed, 10/25/2017 - 08:00

A memorial symposium celebrating the life and work of Sir Eli Lauterpacht was held at the Faculty of Law in Cambridge on Friday, October 13, 2017, followed the next day by a memorial service in the chapel of Trinity College, Cambridge.  Both were extremely well attended, with about 200 people at the symposium and more at the memorial service.  Trinity College chapel was packed, with the congregation over-spilling into the antechapel.  It was touching to see how many people had come from all over the globe to pay their respects.  A record of both the symposium and service will be created in due course on the Squire Law Library’s Eminent Scholars Archive.

Judge Christopher Greenwood and President Steven Schwebel delivered eulogies at the memorial service. Chris told me that it was the first time in years that he had written out a speech rather than just rely on notes. Eli’s youngest child, Conan ended his eulogy with one of Eli’s favourite jokes about the priest, the vicar, and the rabbi trying to convert a bear to their religion.  This was characteristic of both the symposium and service, which were affectionate and humorous, reflecting Eli’s personality and love of jokes.          

The organisers of the academic symposium which examined Eli’s professional life were clear: no–one who had been asked to talk had refused, and acceptances had been immediate.  It was very well organised with speakers ranging from seriously senior, such as Dame Rosalyn Higgins who opened the symposium, President Steve Schwebel, and Judges Chris Greenwood and James Crawford, to some of Eli’s more recent research associates. Immediately after Dame Rosalyn’s opening address, Professor Dino Kritsiotis delivered the first Sir Eli Lauterpacht memorial lecture, which placed the Caroline correspondence of the 1830s and 19840s into its historical and legal context. The event was good–humoured, Professor Roger O’Keefe chaired one of the sessions with a constant litany of jokes, and Chris ended his presentation by recounting the story of the editorial assistant of International Law Reports who had posed for a Playboy centrefold with a strategically placed copy of the latest volume of the Reports.  Apparently Eli, on seeing this, asked Chris whether that was why he had argued in favour of a bigger page size for the Reports?

Some of us, while cushioned by the affection of the day, and buoyed up by our fellows, yet started to feel a bit lost as the day wore on and increasingly brought home the absent presence of Eli.  We were all talking about him; his photograph was on–screen; we heard a clip of his voice: he was there, and yet not there.  A bunch of us went out for late night drinks after the symposium.  It was warm enough for us to sit outside until around midnight, an affectionate gathering of old friends for the most part, but we were slightly subdued.  More than one remarked how Eli would have enjoyed himself not only at the symposium, but also sitting with us having a drink or two.

These are the remarks I made at the symposium:

It is a privilege to have been asked to contribute these few inadequate remarks in this celebration of Eli, and I thank the organisers for giving me the honour to take part.  I think I said most of what I wanted to say about Eli–the–man in my tribute to him published by the EJIL:talk! blog in February, although I must reiterate that he was a wonderful and inspiring teacher and an assiduous PhD supervisor, despite some of the misgivings I am sure he had of the broadly theoretical nature of my research.  I am convinced I worried him at times because he thought I was about to disappear up my own fundament, especially when I developed what he thought was an unhealthy interest in formal logic.  (I have since recovered.)

What I would like to consider today is Eli’s not inconsiderable contribution to the doctrinal study of international litigation.  Of course his academic writings were informed by his practice, but I think that his achievement has been overshadowed, possibly for two reasons.  One is the reputation of his father who is, after all, regarded as a significant figure in this field given his Private law sources and analogies of international law (1927), The function of law in the international community (1933), and The development of international law by the International Court (1958).  The second is Eli’s stellar reputation as an adviser, as an advocate, and as an arbitrator, as well as his work for so many years as editor of the International Law Reports.

This might have led to the impression that Eli’s contribution lay only in his practice and the substantive jurisprudence of courts and tribunals.  I should like to bring Eli the academic out of these shadows by drawing on three principal doctrinal works—Equity, evasion, equivocation and evolution in international law, Proceedings of the American Branch of the ILA (1977-78); Aspects of the administration of international justice (Grotius: Cambridge: 1991), which comprises lectures delivered in honour of his father on the thirtieth anniversary of his death; and his Hague Academy lectures on Principles of procedure in international litigation which were published in 2011, although they had originally been delivered in 1996.  I must admit that I can only admire a publication deadline so gloriously missed.

A striking characteristic of these three works lies not only in the substantive knowledge and reflective insights they contain, but also something that was apparent in Eli’s earlier series of lectures in 1977 at the Hague Academy on The development of the law of international organization by the decisions of international tribunals.  They demonstrate a drive for systematisation, a search for common underlying principles which aim to unify specific areas of law.  This was a clear intention of these earlier lectures which did not discuss individual organisations in isolation but tried to explore common ground to uncover where the practice of one organisation had influenced others.  As far as I can recall, this integrative approach was fairly unusual in the late 1970s, there only being one or two other commentators who were similarly exceptional, such as Wilfred Jenks, but it was a far more interesting and rewarding method than the bare recitation of the organs and competences of particular organisations which was standard at that time and which, quite frankly, bored me rigid.

Eli’s work on international litigation and in particular its procedural aspects also took a broad view which brought together the practice of diverse courts and tribunals which uncovered similarities but which also discussed differences in the way that international tribunals handle cases.  Eli, rightly, saw an understanding of procedure as crucial, but he also conceded in his Hague Academy lectures that its study ‘does not play a prominent part in the general syllabus of international dispute settlement’—which is still far too true today.  But that concession only led up a classic Eli comment—‘Procedure is to litigation what cooking is to food’.

In this brief comment, I cannot cover all of Eli’s incisive observations.   I shall pick out two, namely, his views on consent to international litigation, and those on the notion of equity. 

In both Aspects of the administration of international justice and his Hague Academy lectures, Eli challenged the received wisdom that international litigation should be dependent on the consent of the parties.  Partly he did this by burrowing below the formal surface of international law to uncover the wealth of arrangements which functionally contradict consensual jurisdiction, but also he challenged its very conception.  His aim was to question whether there was any continuing justification for, to use his words, ‘this so–called general principle’.  He noted that its roots are historical: international arbitration preceded the emergence of international adjudication, but arbitration crucially relied on the parties’ consent as this was needed to create a tribunal in the first place.  With permanent courts, however, consent is only practically necessary for the establishment of the court, but once it exists then the need for consent in practical terms disappears—so, for Eli, the question was why is consensual jurisdiction still included as the keystone in the architecture of international courts? 

On first glance, this might seem to be a reversion to some of his father’s views, expressed principally in the Function of law on the need for compulsory jurisdiction, but Eli’s approach and argument were different.  Eli’s father argued for compulsory jurisdiction essentially because of his Kelsenite understanding of law and the desire to demonstrate that things like vital interests clauses in arbitral agreements created a false dichotomy between legal and political disputes.  While Eli freely accepted that all disputes have some legal element that can be processed and thus are amenable to judicial or arbitral decision, he saw the requirement of consensual jurisdiction as lying in late nineteenth century positivist concepts of the absolute sovereignty of the State.  He argued that this mindset is outmoded, as absolute conceptions of sovereignty have been eroded by developments in the structure and content of international law–for instance, with the increasing importance and prevalence of international organisations, and the accumulation of treaties which include compromissory clauses which create compulsory mechanisms for the settlement of disputes. 

Eli identified trends in international jurisprudence where the strict requirement of consent has been relaxed, but saw one contrary trend in the International Court, in its dealing with disputes which implicate third party interests in matters of intervention and the indispensable third party doctrine.  In his Hague Academy lectures, he was rather scathing about the Monetary gold doctrine and its significance in cases such as East Timor and Phosphate lands in Nauru.  ‘Scathing’ is really an understatement: he bluntly excoriated the Court’s initial formulation of the doctrine and its relevance in subsequent cases.

Turning to the question of equity, I think that Eli was prescient in his analysis in the Equity, evasion, equivocation and evolution paper in the late 1970s which he subsequently developed at more length in Aspects of the administration of international justice.  This interest in equity was obviously sparked by an increased reference to equity or equitable principles by international tribunals, principally the International Court, or in treaties.  As Eli said, equity and equitable principles ‘are intended to refer to elements in legal decision which have no objectively identifiable normative content’.  Eli saw the use of equity as resulting in increased discretion on the part of decision-makers because it is an inherently subjective concept.  Even if the application of equity is based on the enumeration of factors which should be taken into account, Eli did not see this as a shackle on discretion.  He argued:

the mere listing of factors involves no predetermination of their respective roles and thus does not significantly limit the discretion which the basic provision vests in the adjudicator…unless an enumeration is made very specific and detailed, not only as to the factors to be considered but also as to the relative weight to be given to each of them, it will make little substantive difference.

Eli based a fair bit of his initial analysis on critical, incisive, and pertinent analysis of the North Sea continental shelf cases and the UK-France Channel arbitration.  This elicited a letter from Gerald Fitzmaurice, which is quoted in Aspects of the administration of international justice.  Fitzmaurice agreed with Eli’s ‘strictures’ on the failure to identify the content and source of the equitable principles employed, but he continued:

where…the Tribunal is precluded by its Statute or terms of reference from deciding ex aequo et bono, but is in fact doing just that, it cannot avow it, and has to take refuge in silence. [Emphasis in original.]

While Eli saw dangers in the use of equity, particularly the extent of discretion it confers on decision–makers, and consequently a lack of legal certainty, he thought that this was not necessarily a bad thing because it reflected an attempt to solve a problem, particularly in a treaty text—‘We must not be so idealistic as to deny that even a poor result in negotiation is better than none at all’.  Shades of Brexit anyone?

But with equity, perhaps we tie back into his criticism of consensual jurisdiction, as Eli saw the use of equity as necessitating some form of third party settlement, whether judicial or conciliatory, because of its inherently subjective nature.  But he wondered if international litigation was a suitable or appropriate mechanism.  Because of its subjective and discretionary nature, he argued that in resorting to equity a tribunal is not applying the law, but is creating the law for the parties.  A problem he perceived was that a tribunal might not have enough knowledge to do this adequately and so he argued that there should be an interchange between the bench and the parties on the standards and factors to be involved.  He drew a parallel with legislation which, maybe a bit idealistically, he thought should not be adopted without an understanding of all the relevant elements, and wondered—‘Why should we be prepared to accept less when it comes to law–making in the international community through this process of third–party settlement?’. 

But on equity, I think I should end with another characteristic Eli comment:

Attractive though the concept of equity may be in many situations, and perhaps as beyond criticism as is mother love, it is not a concept that can be sprinkled like salt on every part of the law.

Eli and cooking again.

Finally, despite Eli’s manifest attachment to the complexities and niceties of international litigation, he was very clear on its limitations, exhorting the students attending his Hague Academy lectures, and those of us reading them, that ‘The first rule of international litigation is to avoid it if at all possible’.

Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument

Tue, 10/24/2017 - 08:00

On 10 October 2017, Catalonia issued and then immediately suspended its declaration of independence, and urged Spain to negotiate. Spain does not want to negotiate. Rather, it sought clarification as to whether or not Catalonia’s manoeuvre indeed was a declaration of independence. Such clarification was needed, according to Spain, in order to decide on an appropriate response. Subsequently, Spain announced its plan to remove certain political leaders of Catalonia and impose direct rule on the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on secession and indeed even on statehood. Statehood is quite simply a politically-created legal status under international law. Catalonia is yet another proof that statehood is a complicated nexus of law and politics which cannot be explained by legal rules alone. International law merely delineates the field for a political game. Just as studying football rules cannot tell us which team is going to win – Barcelona or Real – studying the law of statehood alone cannot tell us how states emerge. We need to see the game played within certain rules. In this post, I will explain the international legal framework that defines the rules of the political game and argue that the game itself may be much more influenced by comparative constitutional rather than international legal argument.

Unilateral secession between Kosovo para 81 and Quebec para 155

In the modern world, new states can only emerge at the expense of the territorial integrity of another state (see here for details). The emergence of a new state is then a political process of overcoming a counterclaim for territorial integrity. Sometimes states will waive such a claim – the United Kingdom was willing to do that with regard to Scotland. Where the parent state does not waive its claim to territorial integrity, an attempt at secession is unilateral.

The international law on unilateral secession is determined by the Kosovo Advisory Opinion para 81 and the Quebec case para 155. It follows from Kosovo para 81 that unilateral declarations of independence are not illegal per se, i.e. merely because they are unilateral, but illegality may be attached to them in situations similar to Northern Cyprus and Southern Rhodesia. This is not the case with Catalonia. Pursuant to Quebec para 155, the ultimate success of unilateral secession depends on recognition by other states. This pronouncement may sound somewhat problematic in light of international legal dogma that recognition must always be declaratory. Where independence follows from a domestic settlement (e.g. had Scotland voted for independence in 2014), recognition indeed plays little role. But the Supreme Court of Canada was quite right that recognition is much more instrumental – even constitutive – where a claim for independence is unilateral.

 

The Kosovo and Quebec doctrines lead us to the conclusion that where the Northern Cyprus or Southern Rhodesia type of illegality is not attached to a declaration of independence, the obligation to withhold recognition under Article 41 ARSIWA does not apply, and pursuant to Quebec para 155 foreign states may grant recognition, taking into account the legality and legitimacy of a claim for independence. This means that foreign states could recognise Catalonia, but they are under no obligation to do so.

Since there is no positive entitlement to independence, the secession-seeking side does not have a vehicle on which it could attach its claim to move it forward and change the territorial status quo. This is not illegal under international law, but it is very difficult politically. It seems that extreme, i.e. ‘remedial’ circumstances would make independence more likely, but they would still not create an entitlement. Quebec para 155 refers to legitimacy of secession. This is, arguably, where ‘remedial secession’ could be accommodated. Remedial secession is not a self-standing international legal concept or a self-executing legal entitlement, but rather a political consideration when states decide whether or not they would grant recognition. As Malcolm Shaw noted already in 1997, it may well be that recognition would be more forthcoming in ‘remedial’ circumstances. The situation in Catalonia probably has not reached the ‘remedial’ threshold, but a suspension of autonomy, direct rule and more violence in the streets of Catalan cities would no doubt add to the legitimacy of the independence claim and gradually make recognition politically more likely.

The comparative constitutional argument kicks in

Professor Marc Weller on this blog helpfully refers to some democratic aspects of independence referendums presented in the Quebec case. A caveat applies that the Supreme Court of Canada separately considered the constitutional and the international aspects of secession whereas the democratic aspects of independence referendums were expressly based on Canadian constitutional law. The Court recalled that the Canadian Constitution is underpinned, inter alia, by the principles of democracy and federalism, which we cannot say of international law. The Quebec analogy in this part is rather a comparative constitutional argument which is nevertheless important as it influences the political game potentially leading to a new international legal status.

The Supreme Court of Canada noted that even where the right to independence does not exist, such a wish cannot be ignored in a democratic state. A clear expression in favour of independence creates a duty on both sides to negotiate their future relationship without a predetermined outcome (Quebec paras 90-95). A successful independence referendum therefore does not create a right to independence, but possibly only triggers a process of democratic deliberation. At the same time, independence referendums ought to be an instrument of deliberative democracy and not simple majority rule (Quebec para 76). This has implications for both sides. Spain should negotiate and Catalonia should be aware that independence is not the default setting of such negotiations. Both sides also need to take into account that there is strong opposition to independence even within Catalonia, and pursuant to the Quebec deliberative model the opponents of independence cannot be simply outvoted. It is true, however, that for the time being Catalonia has no one with whom it could practice such a deliberative process.

Conclusion

Catalonia does not have a right to independence, and at the same time it is not doing anything illegal internationally when claiming or declaring independence. For better or worse, this is everything that the international law of statehood has to say on the matter. The rest is a political game. There is the Quebec authority that in a democratic state a popularly-supported claim for independence cannot be ignored and creates a duty to negotiate. Such negotiations do not need to lead to independence. This authority is of comparative rather than public international persuasiveness, and should be taken seriously in a constitutional democracy.

 

The Limits of Diplomatic Immunity in the Age of Human Trafficking: The Supreme Court in Reyes v Al-Malki

Mon, 10/23/2017 - 08:00

Disclaimer: The author was counsel to the Intervener, Kalayaan, a charity that supports migrant domestic workers, some of whom have been trafficked. This post is written in the author’s personal academic capacity and does not necessarily represent the views of her client.

Last week the UK Supreme Court delivered judgments in two landmark cases on immunity. This post examines the Judgment in Reyes v Al-Malki on diplomatic immunity.

There is much of interest in the Reyes Judgment – the relationship between State and diplomatic immunities, approaches to treaty interpretation (including temporal dimensions), the appeal by Lord Wilson to the International Law Commission to take this issue forward (para 68), and the Court allowing a diplomat to be served by post to their private residence (para 16). I will focus on the approach to diplomatic immunity in the context of human trafficking.

The Court decided that Mr and Mrs Al-Malki, a former member of the diplomatic staff of the Saudi embassy in London and his wife, are not entitled to immunity from the claim brought against them by Ms Reyes, a Philippine national who was their domestic servant for two months in 2011. The appeal proceeded on the basis of assumed facts. Ms Reyes alleges that she had entered the UK with a contract showing that she would be paid £500 per month by Mr Al-Malki. Instead, she says she was paid nothing. She alleges she was made to work excessive hours, had her passport confiscated, did not have proper accommodation, and was prevented from leaving the house or communicating with others (para 1). She eventually escaped.

UK Visas and Immigration had found that there were reasonable grounds for concluding that Ms Reyes was a victim of human trafficking.

The Supreme Court decided on the basis of Article 39(2) of the Vienna Convention on Diplomatic Relations, which sets out the residual immunity enjoyed by diplomats who are no longer in post:

When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist. (emphasis added)

The Judges unanimously held that the employment and maltreatment of Ms Reyes were not acts performed by Mr Al-Malki ‘in the exercise of his functions as a member of the mission’ and he was therefore not immune.

Another provision of the Vienna Convention – Article 31(1)(c) – had formed the centrepiece of the parties’ arguments in the Court of Appeal and the Supreme Court. It sets out an exception to immunity for diplomats who are currently in post:

A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of : 

(c) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. (emphasis added)

Lord Sumption wrote the lead Opinion (with which Lord Neuberger agreed), disposing of the case on the basis of Article 39(2), but also analysing Article 31(1)(c) in depth. Lord Wilson agreed with Lord Sumption’s analysis of Article 39(2), but expressed ‘doubts’ regarding his interpretation of Article 31(1)(c), with Lady Hale and Lord Clarke sharing these ‘doubts’.

We thus have a straightforward, unanimous decision on the basis of Article 39(2) applicable to former diplomats, but we also have a split within the Court on the interpretation of Article 31(1)(c), with obiter ‘doubts’ on obiter reasoning. The Court of Appeal had decided on the basis of Article 31(1)(c) and its reasoning was largely followed by Lord Sumption.

A key difference between the Supreme Court Judges is the understanding of the phenomenon of human trafficking and its link to commercial activity. The Appellant and the Second Intervener had put forward a ‘supply chain’ theory of human trafficking – the international law definition of human trafficking deliberately treats all those persons who are knowingly involved in the process from beginning to end as effectively jointly engaged in a common, illicit, commercial activity. A diplomat who employs and exploits a trafficked person in the knowledge that he or she has been trafficked is thus as much a part of the illicit commercial activity of trafficking as the recruiter, transporter and other professional traffickers.

Lord Sumption (and Lord Neuberger) rejected this theory (para 45).

… One can readily imagine circumstances in which someone who employed a trafficked person as a domestic servant had obtained her through a chain of intermediaries engaged in human trafficking as a business, although that does not appear to have happened in Ms Reyes’ case. In such a case, the employer may incur criminal or civil liability along with the other participants who brought the victim to his door. But his liability would be for the trafficking. It would not without more make him a joint participant in the intermediaries’ business. Doubtless, without customers professional traffickers would have no business, but that does not make the customers into practitioners of a commercial activity. By way of analogy, if I knowingly buy stolen property from a professional fence for my personal use, both of us will incur criminal liability for receiving stolen goods and civil liability to the true owner for conversion. The fence will also be engaging in a commercial activity. But it does not follow that the same is true of me. (emphasis added)

For these two Judges, a victim being treated as a ‘commodity’ did not bring him/her within the legal concept of ‘commercial activity’ for the purpose of Article 31(1)(c).

Lord Wilson (and Lady Hale and Lord Clarke), on the other hand, said there is ‘another rational view’, namely:

that the relevant “activity” is not just the so-called employment but the trafficking; that the employer of the migrant is an integral part of the chain, who knowingly effects the “receipt” of the migrant and supplies the specified purpose, namely that of exploiting her, which drives the entire exercise from her recruitment onwards; that the employer’s exploitation of the migrant has no parallel in the purchaser’s treatment of the stolen goods; and that, in addition to the physical and emotional cruelty inherent in it, the employer’s conduct contains a substantial commercial element of obtaining domestic assistance without paying for it properly or at all. (para 62)

The three Judges had in mind the ‘universal determination to combat human trafficking’ (para 60), of which the UK is the leading State: with its pioneering Modern Slavery Act and leadership that last month brought together 37 states in ‘A Call to Action to end forced labour, modern slavery and human trafficking.’

Lord Wilson recognised that current State practice on the Article 31(1)(c) exception supports Lord Sumption’s position, but he observed that ‘it is difficult for this court to forsake what it perceives to be a legally respectable solution and instead to favour a conclusion that its system cannot provide redress for an apparently serious case of domestic servitude here in our capital city. In the event my colleagues and I are not put to that test today’ (para 68).

Where does this leave us for future cases?

Lords Sumption and Neuberger have indicated that where there is ‘something more’ than the employment of a trafficked person by a diplomat, such as their exploitation as a prostitute, this would fall within the commercial activity exception (para 45). Lord Wilson, Lady Hale and Lord Clarke have said that nothing more may be needed – being the purchaser at the end of a human trafficking chain may bring a diplomat within the exception.

Last year I did a survey of employment cases brought against diplomats. Of the 12 cases in the US and UK involving an employee suing a diplomat, immunity was set aside in 4 cases. All 4 cases concerned former diplomats and Article 39(2). The Judgment in Reyes is thus consistent with the jurisprudence in interpreting Article 39(2) more narrowly than Article 31(1)(c), finding that it does not cover acts incidental to the exercise of the diplomat’s official functions, which are at best of indirect benefit to the diplomat.

From a policy perspective, this is understandable because the risk of interference in foreign relations by exercising jurisdiction is smaller with respect to a former, rather than incumbent, official. At the same time, the chance of the victim receiving compensation is also smaller as the diplomat has usually returned to their home jurisdiction, leaving no assets behind.

From the perspective of victims of modern slavery in diplomatic settings, it is a relief that the Court has not given a binding answer to the question whether the Article 31(1)(c) ‘professional or commercial activity’ exception applies to a diplomat in post. Lord Sumption and Lord Neuberger took a strict approach to interpreting ‘professional or commercial activity’, suggesting that Mr Al-Malki would have to be carrying on an ‘alternative occupation’ (para 51) to fall within the exception. Three other Judges expressed ‘doubts’ that prevent this strict interpretation having a ‘chilling effect’ on future employment claims against diplomats.

Someday we will have another case, with different facts, that may allow a claim to pass through the door that has been left open by the Court.

Announcements: UN Audiovisual Library of International Law; ICON-S Book Prize; CfP GoJIL; CfS UCL Journal of Law and Jurisprudence

Sun, 10/22/2017 - 09:00

1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Ms. Laurence Burgorgue-Larsen – “Le système conventionnel européen des droits de l’homme” and “El sistema convencional europeo de los derechos humanos”.

2. First International Society for Public Law Book Prize (ICON-S Annual Meeting of June 2018 in Hong Kong). The International Society for Public Law (ICON-S) is pleased to announce the launch of the International Society for Public Law Book Prize. In line with the Society’s mission, the prize will be awarded to an outstanding book in the field of public law, understood as a field of knowledge that transcends dichotomies between the national and the international as well as between Constitutional Law and Administrative Law. Preference will be given to scholarship which, in dealing with the challenges of public life and governance, combines elements from all of the above with a good dose of political theory and social science. The first book prize will be awarded at the Society’s next annual meeting taking place on 25-27 June 2018 in Hong Kong to a book published in the two calendar years prior to the conference (2016-2017). The nomination process is open now! Members of the Executive Committee of the ICON-S and the Society’s Council, groups of at least three ICON-S members, book review editors of academic journals, as well as publishing houses are invited to nominate books. Proposals coming directly from authors will not be considered and edited books are not eligible for nominations. The deadline for the submission of nominations is 31 December 2017. Nominations can be made via e-mail, together with an up to 200 word justification of the proposal, to icons {at} icon-society(.)org var mailNode = document.getElementById('emob-vpbaf@vpba-fbpvrgl.bet-69'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%63%6F%6E%73%40%69%63%6F%6E%2D%73%6F%63%69%65%74%79%2E%6F%72%67"); tNode = document.createTextNode("icons {at} icon-society(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vpbaf@vpba-fbpvrgl.bet-69"); mailNode.parentNode.replaceChild(linkNode, mailNode); (reference: Book Prize, attn. of the chairperson of the Book Prize Committee). Please consult the procedures for the ICON-S book prize on the webpage of the ICON-S for further information.

3. GoJIL Deadline Extension. In 2018, with Till Patrik Holterhus as special issue editor, the Goettingen Journal of International Law (GoJIL) will publish a special issue on “The law behind rule of law transfers”. Due to the many responses concerning this special call for papers, the deadline for the submission of paper abstracts has been extended to 29 October 2017. For further information see here.

4. Extended Deadline for Submissions: UCL Journal of Law and Jurisprudence Volume 7, Issue 1 (March 2018). The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to advise that the call for submissions for the first issue of 2018 has now been extended by 3 weeks, to 6 November 2017. Manuscripts must be uploaded via the submissions section on our website. The Board welcomes papers covering all areas of law and jurisprudence. For further information and guidelines for authors please see the original Call for Submissions, and visit our website.

Part II: Analysis of Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean

Fri, 10/20/2017 - 08:00

An overview of the Ghana/Côte d’Ivoire judgment is provided in the first part of this post. The purpose of this second part is to highlight issues of practical significance which flow from the judgment.

In two important ways, the Ghana/Côte d’Ivoire judgment has demonstrated the functionality of dispute resolution processes under Part XV of UNCLOS, both in the context of maritime delimitation disputes and more generally.

Consistency with international delimitation jurisprudence

First, the ITLOS Special Chamber evidenced a desire to contribute to the development of consistent delimitation jurisprudence, and confirmed that the ‘equidistance/relevant circumstances method’ is now standard in a delimitation process – regardless of whether the coasts of claiming States parties are opposite or adjacent to one another. Importantly, it adhered to the three-step methodology identified and employed by the International Court of Justice (ICJ) in Black Sea. It did so by drawing a provisional equidistance line between the relevant coasts, considering the factors which might warrant adjustment of that line, and then applying an ex-post facto (dis)proportionality test to verify that the delimitation line was equitable. Notably, the Special Chamber maintained consistency with recent maritime delimitation jurisprudence by underscoring the primacy of criteria associated with coastal geography (concavity, coastal length, etc.) and ignoring factors related to offshore oil activities or the presence of seabed resources in the relevant area.

Also in accordance with international judicial practice is the Special Chamber’s decision to uphold its own jurisdiction [paras 76-88; 482-495; 545-554] and delimit the outer continental shelf areas beyond 200nm, notwithstanding the absence of recommendations from the Commission on the Limits of the Continental Shelf. Other courts and tribunals have indicated that a lack of relevant Commission recommendations does not deprive them of the competence to determine delimitations. For example, in Bangladesh/Myanmar, ITLOS upheld its jurisdiction over outer continental shelf-designations, and went on to effect delimitation.

States’ obligations under UNCLOS

Second, the Ghana/Côte d’Ivoire judgment provides valuable analysis of States’ UNCLOS obligations with regard to unilateral petroleum activities in disputed maritime areas. It indicates that, prior to an international judgment attributing the disputed area to the complaining State, the initiating State’s unilateral actions on the EEZ or continental shelf of that area will not have breached the former’s sovereign rights if the latter can show that it acted in good faith and with the honest belief that those areas were within its territory [para 592]. Consequently, the initiating State’s international responsibility will not be engaged; there will be no duty to provide reparations for harm caused.

It is suggested here that the Special Chamber’s reasoning might spell trouble for other maritime boundary disputes, especially in oil-rich regions. If misinterpreted, the finding that an initiating State bears no international responsibility for alleged violations of the other claiming State’s alleged rights could encourage more unilateralism in areas with seabed resources. A claiming State may seek to move faster towards oil development and production in the disputed area, with a view to creating a fait accompli which renders nugatory or of no effect the final decision of a court or tribunal.

This raises a question of practical significance: What would be the most meaningful remedy for a State pursuing legal action against another State’s unilateral oil activities in the disputed maritime area? The Special Chamber’s reasoning suggests that the most practical response is to trigger compulsory resolution under Part XV of UNCLOS and request provisional measures as a means of restraining oil activities. With regard to provisional measures in the context of unilateral seismic exploration surveys in disputed maritime areas, the ICJ held in Aegean Sea (a pre-UNCLOS case of 1976) that seismic operations may constitute a violation of the ‘sovereign right of a State to explore its natural resources’ [Aegean Sea (1976) paras 30-33]. However, the ICJ concluded that provisional measures were not justified, since seismic surveys are unlikely to cause irreparable harm to the rights at issue [Aegean Sea (1976) paras 30-33]. The Special Chamber maintained consistency with this judicial practice: it required Ghana to refrain from disclosing exploration data to private-sector companies to the detriment of Côte d’Ivoire and to suspend the drilling of new wells in the disputed area [Order of 25 April 2015, para 108(b)], but it did not order Ghana to suspend all ongoing or future seismic surveys. Therefore, in the absence of agreed maritime boundaries, unilateral seismic surveys do not immediately raise questions of irreparable infringement of the claimant party’s rights; nor do they justify the prescription of interim protection measures (such as immediate cessation of seismic activities). Presumably, this is due to the perception that seismic testing on seabed, subsoil and superjacent waters has a lower intrusiveness threshold than the drilling of wells.

Nevertheless, it has been established that any form of drilling causes irreparable and irreversible damage to the seabed. According to the Order of 25 April 2015, no form of compensation could ever restore such damage [Order of 25 April 2015, para 90]. In this respect, the Special Chamber’s reasoning closely followed the decision of the Guyana/Suriname Tribunal, which considered that ‘activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves … may hamper or jeopardise the reaching of a final agreement on delimitation’ [Guyana/Suriname (2007) paras 267-470]. Therefore, drilling will justify the prescription of provisional measures of protection, on the basis that this activity so modifies the continental shelf’s physical characteristics, that irreparable prejudice is caused and financial compensation can never be sufficient.

Also important in this regard is the Special Chamber’s decision to prescribe the suspension of new drilling through its Order. Ghana’s oilfield projects were unaffected if already in the development and production phases. This finding suggests that the right to interim protection for a complaining State could be weakened by the other claiming State’s advanced petroleum development operations in the disputed area. Indeed, if such operations have progressed to the point of drilling, an adjudicating body may find, as the Special Chamber did, that suspension of all operations poses an ‘undue burden’ on the initiating party and risks harming the marine environment through ‘deterioration of equipment’ [Order of 25 April 2015, paras 99-100]. Thus, when considering an application for provisional measures, the court or tribunal must inevitably consider the preservation of both States’ sovereign and economic rights. This may be adjudged in its final judgment on merits.

If the above analysis is correct, then at which stage of unilateral oil and gas operations should the complaining State seek provisional protection measures? Previous judgments of international tribunals, along with the relevant academic literature, suggest that provisional measures are legally and factually justified only in relation to drilling (which necessarily has a higher impact threshold than seismic surveys). However, the fact remains that any drilling – be it exploratory, appraisal- or development-related – causes irreversible damage and permanent modification of the continental shelf, which no form of compensation can remedy. In such circumstances, provisional measures would not preserve the parties’ alleged rights pendente litis. It appears, therefore, that the optimum moment to seek interim protection is before commencement of drilling operations. If the complaining State received no pre-drilling notice from the initiating State, it could invoke this factor during a trial on merits as a violation of the latter’s due diligence obligations under Articles 74(3) and 83(3) of UNCLOS. Inevitably, however, this would never restore the continental shelf.

Effect of maritime delimitation disputes on oil projects’ profitability

Finally, the Ghana/Côte d’Ivoire case demonstrates that maritime delimitation disputes may adversely affect the profitability of oil and gas discoveries. There is no doubting the present dispute’s economic impact on Ghana and its concessionaries. Ghana had approved development of the TEN oilfields in 2013, even though the location of its maritime boundary with Côte d’Ivoire remained contested. As discussed, the Special Chamber did not order full suspension of the TEN fields (which had already advanced to 50 percent completion-stage, with over 2 billion USD invested by Tullow Oil and other commissionaires). Nonetheless, it ordered Ghana to refrain from drilling additional wells in the disputed maritime areas – including the TEN fields – until full resolution of the dispute. Thus, the Ghanaian concessionaries, having already drilled ten wells, were unable to drill the further fourteen required for full development of the oilfield. The rate of oil production significantly decreased.

In addition, once a reservoir has commenced production, additional wells are often required in order to maintain pressure and achieve necessary production rates. Loss of petroleum revenue is further incurred if there can be no drilling of new wells required for maintenance of pressure. This scenario played out in Ghana/Côte d’Ivoire when Côte d’Ivoire considered the eleventh well (Nt07) drilled in TEN to constitute a violation of the Order’s moratorium on new drilling. However, the Special Chamber accepted Ghana’s argument that the well did not constitute new drilling; it was required as a water-injector for improving production of existing wells.

Conclusion

The ITLOS Special Chamber’s judgment in Ghana/Côte d’Ivoire came down overwhelmingly in favour of a single multi-purpose boundary, both within and beyond the 200nm limit, based on the principle of equidistance. It refuted the existence of a tacit agreement as to the maritime boundary, but upheld an unadjusted equidistance boundary line favouring Ghana. Thus, the location of all ongoing oilfield-development projects in the area in question remained under Ghana’s control and jurisdiction. The judgment illuminated the application of the three-stage methodological approach to maritime delimitation in adjacent geographical situations, thus enriching the doctrine of maritime boundary delimitation within a successful body of law developed by the ICJ and other international tribunals. At the same time, and in view of the Special Chamber’s Provisional Measures Order of 2015, the legal reasoning and conclusions of the judgment are significant, in that they shed light on States’ rights and obligations under UNCLOS in respect of undelimited maritime areas, and also on the potential to respond meaningfully to unilateral, resource-related activities in disputed waters through recourse to provisional measures of protection.

Part I: Analysis of Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean

Thu, 10/19/2017 - 10:00

On 23 September 2017, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) rendered an award in Ghana/Côte d’Ivoire. It is only the second case, following the Guyana/Suriname Arbitration of 2007, in which an international adjudicating body has ascertained the meaning and scope of Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea (UNCLOS) within the context of unilateral oil and gas operations in disputed areas.

The Special Chamber delimited the parties’ territorial sea, exclusive economic zone (EEZ) and continental shelf boundaries within and beyond 200 nautical miles (nm) with the boundary being an unadjusted equidistance line favouring Ghana. Other key questions for adjudication were a) Ghana’s claim regarding a long-standing, tacit agreement as to the existence of a maritime boundary and b) Côte d’Ivoire’s allegation that, by continuing with oil activities in the disputed area, Ghana had violated its Article 83(1) and (3) UNCLOS obligations to negotiate in good faith and to make every effort through provisional arrangements not to jeopardise or hamper arrival at an agreement.

In its judgment, the Special Chamber reached a number of conclusions which, taken with its Order for the prescription of provisional measures of 25 April 2015, will have significant, practical implications for the future conduct of unilateral oil and gas activities in disputed maritime areas, as well as for the associated rights and obligations incumbent upon States concerned.

This post is divided into two parts: the first part provides a brief background of the case and presents the most notable features of the Special Chamber’s judgment; the second part analyses several issues of general significance which flow from the judgment. 

Historical Background

Ghana and Côte d’Ivoire are adjacent to each other in the Gulf of Guinea on the Atlantic Ocean – a maritime area containing large reserves of hydrocarbons which both States have been eager to exploit. In 2007, the discovery of the major Jubilee oilfield 32nm off the Ghanaian coast attracted significant interest from foreign investors in Ghana’s hydrocarbon potential. Subsequently, in March 2009, the Tweneboa, Enyenra and Ntomme (TEN) fields were discovered only 3nm east of Jubilee. By the time the issue of maritime delimitation was brought into bilateral negotiations between the parties, the TEN and Jubilee oilfields were all under development by a consortium of companies led by London-based Tullow Oil. Côte d’Ivoire objected to Ghana’s ongoing oil activities, asserting that they were being conducted in the Ivorian maritime area. Following this assertion, the parties agreed to establish the ‘Joint Ivorian-Ghanaian Commission on Maritime Border Demarcation’, and maritime delimitation negotiations commenced. On 3 December 2014, after little progress in diplomatic negotiations, Ghana and Côte d’Ivoire agreed to submit the maritime boundary dispute to the Special Chamber of ITLOS. Both States are parties to UNCLOS; the Convention was applicable to their dispute as a matter of treaty law [Judgment, para 91-99].

Provisional Measures Order of 25 April 2015

A subsequent dispute arose regarding Ghana’s oil exploration and exploitation operations. Côte d’Ivoire filed with the Special Chamber a Request for the prescription of provisional measures under Article 290(1) of UNCLOS, asking that Ghana be ordered to suspend immediately all oil activities in the disputed maritime area. Côte d’Ivoire argued that Ghanaian geophysical surveys were infringing its exclusive, sovereign right to conduct marine scientific research, pursuant to Article 246(5) of UNCLOS, and its associated right to access, possess and control all confidential information relating to exploration of the continental shelf. [Request of Côte d’Ivoire, 25 February 2015, para 30] It also argued that the oil activities impeded the implementation of Ivoirian domestic energy policy (constituting infringement of another sovereign right), [Request of Côte d’Ivoire, 25 February 2015, para 38] and that Ghana was violating its Article 83(3) UNCLOS obligation to ‘make every effort to enter into provisional arrangements of a practical nature and … not to jeopardize or hamper the reaching of the final agreement’ on delimitation.

The Special Chamber’s Provisional Measures Order recognised that drilling causes a ‘permanent physical modification’ of the area in dispute, which no financial compensation or reparation could restore. [Order of 25 April 2015, para 89-90] Nonetheless, the Chamber stopped short of ordering the complete shutdown of Ghana’s petroleum exploration and exploitation operations in the disputed area. Instead, it required that Ghana ‘take all necessary steps’ to prevent information resulting from its oil activities to be used to the detriment of Côte d’Ivoire, and that no ‘new drilling’ take place in the disputed area until resolution of the dispute [Order of 25 April, para 108(1)(a)]. Crucially, the Special Chamber did not order the full suspension of exploitation activities in the TEN fields, recognising that the development phase was already underway, and that the abandonment of operations – and consequent deterioration of equipment – risked causing ‘considerable financial loss to Ghana and its concessionaries’, and posed ‘a serious danger to the marine environment’. [Order of 25 April 2015, para 99]  

Judgment of 23 September 2017

Existence of a tacit agreement

The Special Chamber first addressed the substantive legal issues relating to Ghana’s claim that the parties had effected, by tacit agreement, the course of their maritime boundaries in the territorial sea, EEZ and continental shelf within and beyond 200nm. The Special Chamber noted that the parties’ oil activities had been confined to areas lying on their respective sides of a line which ‘was of relevance to both Parties when conducting their oil activities’ [Judgment, para 146]. However, it found that oil practice (being limited to seabed exploration and exploitation within 200nm) and petroleum legislation enacted by the two States were of limited relevance to the process of establishing a common, multi-purpose boundary for the territorial sea, the EEZ, and continental shelf within and beyond 220nm [paras 148-150; 163]. The Special Chamber also noted Côte d’Ivoire’s history of objections to Ghana’s activities in the disputed area, [para 147] and dismissed Ghana’s claim that a tacit agreement existed.

Delimitation of the maritime boundary

The Special Chamber went on to delimit the maritime boundaries between the two States. Both parties were in agreement that the Special Chamber could draw a single boundary, and that the same methodology should be employed for delimitation of all maritime zones. Given the absence of complex, geographical peculiarities (such as small islands) in the delimitation area [para 285], the Special Chamber opted for an equidistance/relevant circumstances-methodology’ – a ‘delimitation methodology which has been practised overwhelmingly by international courts and tribunals in recent decades’ [para 287-289].

In order to draw a provisional equidistance line, the Special Chamber needed to identify the parties’ relevant coasts and the relevant area (i.e. the area over which the projections of the parties’ coasts overlap) and the coastal base points from which to draw the provisional equidistance. It held that the relevant coastlines had no marked concavity or convexity; the provisional line required no adjustment. It considered as irrelevant the location of hydrocarbon resources and previous oil practice [paras 475-479].

For the third and final stage of delimitation, the Special Chamber employed an ex-post facto (dis)proportionality test to verify that the provisional equidistance line did not produce an inequitable result by reason of any marked disproportion between the ratio of respective coastal lengths and the ratio between relevant maritime areas allotted to each party [para 533]. It held that the ratio of relevant areas was Ghana 139km : Côte d’Ivoire 352km (approximately, 1 : 2.53); the ration of allocated maritime areas was approximately 1 : 2.02 in favour of Côte d’Ivoire. The Special Chamber concluded that the equidistance line is the single maritime boundary for the territorial sea, EEZ and continental shelf within and beyond 200nm [para 540]. The established boundary is a strict equidistance favouring Ghana.

International responsibility of Ghana

Lastly, the Special Chamber considered the issue of Ghana’s unilateral activities in the disputed maritime area, and whether such activities engaged its international responsibility [para 541-544].

According to Côte d’Ivoire, Ghana’s hydrocarbon activities in the relevant area constituted a violation of Côte d’Ivoire’s sovereign rights over its continental shelf. Ghana had continued with several drilling operations in the TEN oilfields and, crucially, the TEN fields were located in the maritime area claimed by Côte d’Ivoire. Nevertheless, the Special Chamber considered that, in the case of overlapping continental shelf claims, ‘both States concerned have an entitlement to the relevant continental shelf on the basis of their relevant coasts’, and that ‘only a decision of delimitation establishes which part of the continental shelf appertains to which of the claiming States’ [para 591]. Therefore, it held that hydrocarbon activities undertaken by a State in an area subject to overlapping claims, before the area in question has been delimited by adjudication, does not give rise to international responsibility of that State – even when it turns out that these activities were conducted in an area belonging to the other claiming State [para 589].

The Special Chamber next turned to Côte d’Ivoire’s claim that Ghana’s hydrocarbon activities in the disputed area constituted a violation of the obligations enshrined in Articles 83(1) and 83(3) of UNCLOS [para 609]. The Special Chamber noted the prominence in UNCLOS of Article 83(1) – the obligation to negotiate in good faith [para 604] – but observed that the parties had conducted several diplomatic negotiations on maritime delimitation between 2008 and 2014. Côte d’Ivoire had failed to provide convincing evidence that those negotiations had not been meaningful, and so the Special Chamber rejected its claim relating to Article 83(1).

Turning to the alleged violation of Article 83(3), the Special Chamber explained that that treaty provision contains two interlinking obligations for the States concerned, namely: ‘to make every effort to enter into provisional arrangements of a practical nature’; and, ‘during this transitional period, not to jeopardize or hamper the reaching of the final agreement’. In relation to the first obligation, the Special Chamber noted that Côte d’Ivoire had not requested that Ghana enter into provisional arrangements, but only that it refrain from further oil activities. This prevented Côte d’Ivoire from arguing that Ghana had breached that obligation. With regard to the second obligation, the Special Chamber found that Ghana’s continuation of hydrocarbon activities was not a violation: Ghana had suspended its drilling activities by implementing the Order of 25 April 2015, and it had only undertaken hydrocarbon activities in the area which the Special Chamber found to be within Ghanaian waters. Therefore, none of Ghana’s activities occurred within Ivorian waters, and Côte d’Ivoire’s submission was without foundation [para 633].

The second part of this post will comment on some of the key issues raised in the judgment, particularly the question of State responsibility and the Special Chamber’s treatment of Article 83(1) and (3) of UNCLOS within the context of unilateral petroleum operations in disputed maritime areas.

Secession and Self-determination in Western Europe: The Case of Catalonia

Wed, 10/18/2017 - 08:00

This presentation is based in part on the Legal Opinion by an International Commission of Legal Experts addressing the question of Catalonia: The Will of the People and Statehood. The Commission was composed of Professors Marc Weller (UK ), John Dugard (South Africa), Richard Falk (USA) and Ana Stanic (Slovenia). Although the Opinion was commissioned by Esquerra Republicana de Catalunya, its findings represent the agreed and independent views of the authors. While based on the Opinion, which will be published in due course, this contribution does not purport to give an authoritative rendering of it, but instead represents the views of the author.

This contribution assesses the claim to statehood of Catalonia, addressing in turn:

  • The criteria for statehood;
  • The legality or otherwise of unilateral declarations of independence;
  • The issue of self-determination;

Objective criteria of Statehood

Catalonia can easily meet the classical, objective criteria for statehood. It has a clearly defined territory of some 32,000 sq km, featuring clearly defined boundaries. Its stable population numbers around 7.5 million, far in excess of many recently independent states in Europe and beyond. It is the most economically viable region when compared to other parts of Spain. Even under autonomy within Spain, Catalonia has exhibited most of the functions of effective government.

Whether Catalonia would in fact exercise fully independent powers of government can only be assessed if and when it decides to implement its declaration of independence, at present suspended in application. Catalonia has generated a substantive transitional law, to apply pending the adoption of a new constitution once independence proceeds. That law would assign all public powers to the new state, including foreign affairs powers (‘capacity to enter into international relations’). Hence, Catalonia is, at least potentially, capable of statehood.

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and positive subjective criteria of statehood. The negative criterion, confirmed by the International Court of Justice in the Kosovo Opinion, demands that statehood must not be tainted by jus cogens violations. There is no suggestion of such conduct by Catalonia in this instance.

First positive subjective criterion: A manifestation of popular will

The positive subjective criteria come in two guises: first, there must be an act of will of the population, and second, that will must be enacted through a declaration of independence.

Any change in the social contract of a political community as dramatic as an act of secession from the established legal order must be based on the will of the people. Ordinarily, this would take the form of a referendum, although in some instances (dissolution of Czechoslovakia), concurrent decisions of the elected national and regional assemblies have been taken to be sufficient.

The international legal requirements for a valid referendum are only emerging. Still, in analogy to emerging standards on democratic governance, at least within Western Europe, it is clear that there must be a free and fair campaign and a transparent and open balloting process. In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials.

It has recently been asked whether a referendum should take place within the potentially seceding entity, or whether it needs to take place throughout the state from which secession is sought. This argument was attempted by the USSR, when seeking to oppose the secessions of the Baltic republics, before the Union dissolved. Clearly, widespread practice in the dozen or more cases since then has confirmed the obvious fact that the referendum requirements relates to the population seeking to establish a new legal order for itself. The interests of the other parts of the state are to be preserved through the requirement of negotiation, to which reference will be made below.

In some instances, a transition agreement provided for a minimum threshold of voter participation in a referendum (South Sudan). However, there are no firm international standards in this respect. The Catalonia referendum attracted participation of some 42 per cent of the electorate. However, Catalonia asserts that an additional large percentage of voters were precluded from participation due to the forcible closure of voting stations and other acts of interference by the central Spanish authorities. Had they been able to participate, Catalonia claims, participation would have been around 57 per cent. It is assumed that the overwhelming majority in favour of independence of some 92 per cent of votes actually cast would have been retained.

Given the active obstruction of the poll by the Spanish central authorities, extending even to forcible interference in it, any claim that that referendum lacks credibility due to insufficient participation rings somewhat hollow. Moreover, non-participation does not provide a way for the side likely to lose in a referendum to frustrate it, provided the poll was sufficiently fair and inviting for all. This was confirmed by the Badinter Opinion in relation to the Bosnian referendum that was boycotted by ethnic Serbs.

Second positive criterion: Declaration of Independence

The nature of the declaration of independence, signed by the President of Catalonia on 10 October 2017, but immediately suspended, has remained slightly uncertain thus far, leaving room for negotiation with the central authorities of Spain. Its entry into force would require a further act on the part of the Catalonian authorities, potentiallyto be backed by a vote of the elected representatives.

A criterion of internal legality?

Spain has argued that the actions of the Catalan authorities, reaching back to its declaration of sovereignty on 23 January 2013, are in violation of Spanish constitutional law. The Constitutional Court of Spain has consistently supported this view. Somewhat oddly, it has recently started to act as enforcement agent of its decisions, assigning what appear to be disproportionate fines to individuals supposedly disregarding its findings (apparently accumulating at a staggering rate of Euro 12,000 a day in some instances).

This issue raises the question of which legal order governs an act of secession. Obviously, an act of secession consists precisely of the removal of a population and territory from an existing legal order and the consecration of a new, independent legal order. Hence, it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed.

The international Court of Justice found as much when it considered the declaration of independence of KosovoIt Court determined that the declaration was not issued by the elected representatives of Kosovo acting as an organ of the state from which secession was sought (in that case, the Provisional Institutions of Self-government of Kosovo). Rather, one might assert, these representatives were now exercising a direct mandate from the people in founding a new, original jurisdiction. The Court continued: ‘nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated,’ thus clarifying expressly that a declaration of independence does not take place within the legal order from which the entity seeks to remove itself [Kosovo AO, para 121.] In relation to Kosovo that legal order was based in a Chapter VII decision of the UN Security Council. The rationale of the Court would, a fortiori, apply to cases of ‘ordinary’ constitutional law not based in such a higher-level, supranational decision. Hence, much of the argument relating to the purported unconstitutionality of Catalonia’s conduct at the point of declaring independence appears to be misplaced.

Capacity to Enter into Foreign Relations and Recognition

It is broadly accepted that the existence of a state is a matter of fact, rendering recognition declaratory. This was noted in the Badinter Opinions and confirmed in subsequent pronouncements. Hence, the attempt by some to conflate the requirement that a state must have the capacity to enter into international relations with the need to attract widespread recognition is not persuasive—it would mean introducing the constitutive theory of recognition through the backdoor, after having just rejected it. Instead, capacity to enter into international relations means just that: capacity. A state must claim for itself the legal competence to engage in foreign relations. This requirement, drawn from the venerable Montevideo criteria, made sense when the international system was populated with a range of quasi sovereign entities, such as protectorates, which might have been lacking in that attribute.

That said, it is for course clear that recognition remains crucial, if not for statehood as such, then for the ability of an emerging state to actualize its statehood through international intercourse and membership in international relations. As Somaliland has found for over two decades, statehood in the absence of significant recognition remains precarious. And, as Kosovo is still finding despite having assembled some 115 recognitions, independence without membership in key international institutions can be uncomfortable.

No prohibition of independence

In the past, it was sometimes argued that unilateral independence cannot lawfully occur, as it would breach the rule of territorial integrity in international law. The only way to cure this defect would be consent to independence from the central authorities, or perhaps overwhelming international acceptance of statehood in exceptional circumstances. This minority position has now been overcome by the International Court of Justice. In the Kosovo Opinion, the Court confirmed that ‘the principle of territorial integrity is confined to the sphere of relations between states.’ [Id., para 80.] That is to say, the principle precludes disruption of the territorial integrity of one state by another, but it does not apply internally, in relation to populations seeking secession.

It is clear that there is a strong policy preference of states for maintaining territorial unity. At times, this preference has been reflected in pronouncements by the UN Security Council. However, as a matter of law, rather than policy preference, the international system is neutral on the question of secession. [Quebec Reference, para 140].

An entitlement to secession?

If secession is not prohibited, this means that its success of failure will be determined by the question of whether or not the seceding entity gains and maintains effectiveness. This type of case might be termed an ‘unprivileged’ secession. Of course, international law also provides for privileged secession. These are instances covered by the principle of self-determination in the sense of secession.

In cases of privileged secession, international law positively supports possible independence as a desired outcome. This effect is particularly powerful in colonial cases. By 1960, the organized international community accepted that colonialism is a historic wrong. It later enacted an aggressive doctrine of self-determination, aiming to ensure that that decolonization would succeed in relation to the increasingly few holdout colonial states (mainly pariah states like the then still fascist Spain and Portugal, and racist South Africa).

The immense power of the doctrine of colonial self-determination is however balanced by its restrictive field of application in the colonial context, by its confinement to self-determination within uti possidetis boundaries, and by the fact that the doctrine generally only applies at one single moment in time. Many populations around the world experience what they consider colonial domination or exploitation. However, it is clear that colonial self-determination now only applies to a handful of cases that remain clear instances of classical colonialism so listed by the UN. Or, in other words, these are cases of the acquisition and domination of a territory and population, during the time of imperialism, by a metropolitan power that is radically racially distinct and divided from the colonial territory by an ocean, for the purposes of economic exploitation. Catalonia is clearly not among them.

Catalonia can also not rely, at least directly, on the doctrine of constitutional self-determination which was consecrated in the wake of the secessions from, and then the dissolution of, the former Yugoslavia. Under Spanish constitutional law, Catalonia is clearly an autonomous territory. Indeed, in contrast to some other autonomies in Spain, it is an ‘original’ autonomy, taking account of its distinct history, language and culture. However, in view of the clear provisions opposing secession in the Spanish constitution, it would not be easy to derive a claim to self-determination from the domestic legal order of Spain.

Catalonia will undoubtedly point to the increasing human rights violations committed by the central government over the past weeks. Moreover, there is the threat of placing Catalonia under direct rule, suspending its autonomy, which may well be implemented before this contribution is posted. It might be tempted to invoke the doctrine of remedial secession in consequence. According to that still contested doctrine, repression of a population, or its exclusion from representation in the state, generates a self-determination entitlement in the sense of secession. However, it is not clear that the gravity of repression or exclusion is sufficiently well established as yet to trigger the application of the doctrine.

Self-determination in Democratic Societies

This does however not mean that self-determination as a legal entitlement is irrelevant in this instance. It is universally agreed that the authority to govern must be based on the will of the people, as is stated in innumerable international standards, starting with the Universal Declaration of Human Rights. Virtually all national constitutions are expressly based on this democratic principle which has also been determined to be a ‘fundamental feature of the European public order. [Mathiue-Mohin and Clerfays, ECTHR Judgement of 2 March 1987, para 47.]

The highly nuanced ruling of the Canadian Supreme Court in the Quebec case has applied this doctrine to the present context of possible secession. It was noted above that a declaration of independence marks the point at which the seceding entity steps out of the constitutional order of the central state. Its conduct up to that point remains subject to constitutional law, although even then the central state is not unconstrained. While the Court found that there was no positive entitlement to statehood outside of the colonial context or in the absence of severe repression or exclusion from the state, it nevertheless concluded that a state cannot ‘remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec chose that goal, so long as in doing so, Quebec respects the rights of others.’ [Quebec Reference, para 87.]

The mechanism to ensure that a seceding entity respects the rights of other parts of the state is, according to the Supreme Court of Canada, negotiation. Secession should not be imposed unilaterally, nor can it be excluded from the outset. Iinstead both sides are required to negotiate in good faith about a settlement. As the Court put it: ‘The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed.  There would be no conclusions predetermined by law on any issue.’ [Id, para 151.] Others might add that alternatives to secession should be attempted, before independence should be contemplated.

In this instance, Catalonia can claim to have embraced alternatives to independence and offered negotiations throughout. In 2006, it settled for an enhanced autonomy arrangements that would have recognized its identity as a nation. This agreement was accepted by the Spanish and Catalonian parliaments, followed by a referendum in Catalonia. The Constitutional Court, in 2010, struck down key elements of the deal, including the recognition of Catalonia as a ‘nation’ within Spain.

Since then, Catalonia has taken a series of steps, including its declaration of sovereignty of 2013an informal public consultation on possible independence of 2014, the regional elections of 2015 billed as a virtual referendum on independence, and now the recent referendum.

Catalonia points to the fact that it has offered negotiations throughout. Spain has refused and instead insisted on compliance with the existing constitutional order, and continues to do so.

To the Catalonians, it may appear as if this legal order has been used at every step as a means to disenfranchise, rather than enfranchise them in relations with Spain. After all, that legal order has already failed to deliver even the modestly enhanced autonomy backed at the time by popular will in Catalonia and by the acts of the Spanish legislative and executive adopted according to the constitutional process.

If discussions within the constitutional order cannot produce results, or if it appears to one side that that order is bound to place it in a position of inequality and disadvantage, it is not surprising that pressure to simply step out of that framework through a declaration of independence increases. Croatia and Slovenia took that view when the central authorities in Belgrade failed to contemplate a looser federal system for Yugoslavia. Belgrade had relied on its dominance in the Yugoslav central institutions, and on the fact that independence did not appear to be available in the alternative. In the end, the entire state dissolved in consequence.

The lesson of the past therefore may be that it is good to talk.

Is N.D. and N.T. v. Spain the new Hirsi?

Tue, 10/17/2017 - 09:00

On 3 October the Third Chamber of the European Court of Human Rights published its judgment N.D. and N.T. v. Spain, which concerns Spain’s pushback policy in Melilla. It found a violation of Article 4 of Protocol 4 (prohibition of collective expulsions of aliens) and of Article 13 (right to an effective remedy) taken together with Article 4 of Protocol 4. This post focuses on the issues of jurisdiction and the prohibition of collective expulsions addressed in the judgment, as well as its policy implications. 

Facts

The facts of the case are straightforward: on 13 August 2014 a group of Sub-Saharan migrants, including the applicants, tried to enter Spain via the Melilla border crossing which consists of three consecutive barriers. They managed to climb to the top of the third barrier. When they climbed down with the help of the Spanish forces, they were immediately apprehended by members of the Spanish civil guard and returned to Morocco in the company of 75 to 80 other migrants who had attempted to enter Melilla on the same date. Their identities were not checked and they did not have an opportunity to explain their personal circumstances or to receive assistance from lawyers, interpreters or medical personnel.

Jurisdiction

Spain argued that the events occurred outside its jurisdiction because the applicants had not succeeded in getting past the barriers at the Melilla border crossing and therefore had not entered Spanish territory. The Court first recalled its general principles on jurisdiction (paras 49-51), referring in particular to Hirsi Jamaa and Others v. Italy, and specifying that when the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation to secure the rights and freedoms that are relevant to the situation of that individual (para 51). Applying these principles to the facts of the case, the Court first observes that:

‘la ligne frontalière entre le Royaume du Maroc et les villes de Ceuta et de Melilla a été délimitée par les traités internationaux auxquels les Royaumes d’Espagne et du Maroc sont parties et qu’elle ne peut pas être modifiée à l’initiative de l’un de ces États pour les besoins d’une situation de fait concrète’ (para 53).

Yet in the next paragraph the Court explains that it is unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory because:

dès lors qu’il y a contrôle sur autrui, il s’agit dans ces cas d’un contrôle de jure exercé par l’État en question sur les individus concernés (Hirsi Jamaa, précité, § 77), c’est-à-dire d’un contrôle effectif des autorités de cet État, que celles-ci soient à l’intérieur du territoire de l’État ou sur ses frontières terrestres. De l’avis de la Cour, à partir du moment où les requérants étaient descendus des clôtures frontalières, ils se trouvaient sous le contrôle continu et exclusif, au moins de facto, des autorités espagnoles.

Three points deserve attention here. First, the Court explicitly holds that a State cannot modify the border in order to address the needs of a specific situation. In other words, States cannot move their borders inwards in order to prevent asylum seekers from making an asylum claim. The judgment thus echoes Amuur v. France, which held that States cannot deny the applicability of domestic asylum law in the international zones of airports. Second, the Court finds it unnecessary to establish whether the border crossing between Morocco and Spain is located on Spanish territory. This implies that even if the border crossing had been located at the border or on Moroccan territory, the applicants would still have been under Spanish jurisdiction because they were under the continuous and exclusive control of the Spanish authorities. In other words, if border guards prevent an individual from entering the State’s territory, the State has the obligation to secure that person’s right to apply for asylum and not to be pushed back (see also Kebe and Others v. Ukraine). Third, the statement in paragraph 54 that where there is control over an individual this is de jure control raises questions regarding the nature of Spain’s jurisdiction. The Grand Chamber indeed said so in paragraph 77 of Hirsi, but that paragraph deals with a State’s flag jurisdiction (which amounts to de jure control), which is not relevant in the present case. Moreover, in Al-Skeini and Others v. United Kingdom the Court explicitly noted, first, that there are cases where the use of force by a State’s agents may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction and, second, that what is decisive in such cases is the exercise of physical power and control over the person in question (para 136). This is arguably also the case in N.D. and N.T.: the applicants were under the de facto control of the Spanish civil guard, as the Court itself recognises in the same paragraph. They were also under its de jure jurisdiction to the extent that the events occurred on Spanish territory, but the Court explicitly chooses not to address that aspect. Thus, although it is good news that the Court confirms that the use of force by State agents at the border triggers a State’s jurisdiction under Article 1 ECHR, it is regretful that it creates confusion by referring to Spain’s de jure jurisdiction. Let’s hope that the Court’s next decision on this issue (a similar case is currently pending before it) will bring some much-needed clarity to this area of the law.

Prohibition of collective expulsions

The Court’s ruling on the merits does not come as a surprise, as the facts are so straightforward that it would have been difficult for the Court to find otherwise. The Spanish practice of pushbacks at the borders of its enclaves Ceuta and Melilla is well-known, the applicants submitted videos of the events of 13 August 2014 to the Court, and the applicants’ version of events was corroborated by many witness statements gathered inter alia by UNHCR and the Council of Europe Human Rights Commissioner. As the Court itself notes, if interceptions on the high seas are covered by Article 4 of Protocol 4 (as Hirsi established) refusal of entry to the territory must also amount to expulsion (para 104). Furthermore, as the applicants were not subject to any identification procedure whatsoever, the expulsions were collective and breached Article 4 of Protocol 4 (para 107). Likewise, the Court holds that the applicants’ lack of access to any domestic remedy against their expulsion is in breach of Article 13 taken together with Article 4 of Protocol 4 (paras 121-22). More interestingly, the Court repeats (at para 101) what it had previously stated in Khlaifia and Others v. Italy:

‘The Court has also taken note of the “new challenges” facing European States in terms of immigration control as a result of the economic crisis [and] recent social and political changes which have had a particular impact on certain regions of Africa and the Middle East’ (para 241).

The message is clear: even when facing high migratory pressure States have to guarantee the rights of migrants, including refugees, and pushbacks are out of the question.

Implications

The most interesting question is of course: what are the consequences of this judgment? Will it impact European policies like Hirsi and M.S.S. v. Belgium and Greece did? As this is a Chamber judgment, it arguably carries less weight, and can still be referred to the Grand Chamber – although it is unlikely that the latter would rule differently. In any event for now N.D. and N.T. signifies that if Spain wants to avoid being found guilty of pushbacks at the Moroccan border it has to grant all migrants who reach the border crossing in Ceuta or Melilla access to its territory and to an asylum determination procedure. Inevitably, some will argue that this would open the floodgates. Indeed, given that the routes to Europe through Greece and Italy have been largely closed since the EU-Turkey deal and increasing European and Italian involvement in Libya, it is likely that those trying to reach Europe will knock at the – now open – door in the Spanish enclaves. However, it is unlikely that Spain will be willing to grant such access to its territory, especially in view of the limited reception capacities in the enclaves and the poor track record of solidarity shown by EU Member States with border States, notably Greece and Italy. Rather, it can be expected that Spain will either continue its pushback policy in spite of the Court’s ruling, or that it will look for new ways to prevent migrants, including refugees, from reaching the border crossing at all. This would fit in the current trend of the EU sealing off its external borders and cooperating with States of origin and transit in order to stop migration flows at all costs.

Oppenheim’s International Law: United Nations

Mon, 10/16/2017 - 09:15

October 2017 marks the publication of a new two-volume work under the prestigious ‘Oppenheim’ banner, Oppenheim’s International Law: United Nations. It traces the evolution of the United Nations and the legal issues it daily faces. It is also an essential tool for practitioners as they address the legal problems of today at the United Nations.

In 1992, Sir Robert Jennings and Sir Arthur Watts, to great acclaim, had published the 9th edition of Oppenheim’s International Law, Volume I: Peace. It had taken them long years to prepare. The eighth edition, prepared by Sir Hersch Lauterpacht, had been published in 1955.

In 1994, I received an unexpected letter from Sir Robert Jennings and Sir Arthur Watts. In it they informed me that in the Preface to the 8th edition of Oppenheim, it had been envisaged that one day a volume of that great work would need to address the new phenomenon of international organizations. A new volume would be required for this work, which they invited me to undertake.

I was, of course, hugely honoured by this invitation, though I realised from the outset that the amount of work it would involve was enormous. I was at that time Professor of International Law at the London School of Economics and Political Science, in practice at the Bar as a silk, and a member of the UN Human Rights Committee under the International Covenant on Civil and Political Rights. There seemed not a spare moment, and I was increasingly wondering how I could continue both as an academic and at the Bar, and whether one of these strands to my life should go. But this suggestion that I should prepare a new Oppenheim was too great an honour to decline.

Apart from pressures of work and time, there was another aspect that worried me greatly. By the early nineties there were already some wonderful books on legal aspects of international organizations. In particular, Henry G. Schermers’ International Institutional Law, seemed to me to have fully covered the ground, in a scholarly and comprehensive way.

Jennings and Watts had a short reply to that anxiety: ‘This is not to be a book about constitutions, statutes and rules’, they said. ‘It is to be about how things really are’. Legal reality, they explained, is what is required for a practitioners’ book – and what has distinguished Oppenheim from other legal texts is that it is a practitioners’ book (albeit of interest to academics).

During the next weeks, I worked on an extensive and detailed outline for a new Oppenheim on International Organizations. Jennings and Watts had some small suggestions to make, but seemed entirely content with my efforts. My anxieties about how on earth this project could be added to an already overfull work life; and whether the ground had not already been sufficiently covered continued to weigh heavy.

And then I learned that Sir Robert Jennings was to retire from the Bench of the International Court of Justice and that I had been nominated by the United Kingdom National Group to this seat.

Everything had changed. And although I now left behind my academic life, the Bar and the Human Rights Committee, there followed fourteen-and-a-half years so absorbing, so very busy, so focused on the expanding docket of the Court and all the issues facing the UN’s principal judicial organ, that there was simply no time at all to think about the new Oppenheim.

Sadly, Sir Robert Jennings died in 2004. And by the time I retired from the Court in February 2009, the world of international organizations had simply exploded. There was no way – even leaving aside my concern about the Schermers book, now in its 5th edition under the co-authorship of Niels Blokker – that this seemed a feasible Oppenheim-style undertaking. I shared this view with Sir Arthur Watts. I told him that all that might be feasible would rather be an Oppenheim on United Nations law – and, given all that had happened in the last 20 years, this project would still be a vast undertaking for one person. Sir Arthur was sympathetic and the matter was left open.

Going to the Preface of the 8th edition (having hitherto relied on Jennings’ and Watts’ resumé as to believe that it was there expressed that there would soon be needed an Oppenheim on the law of international organizations), I discovered a rather different version of events – and one that was much closer to the only option that I now regarded as remotely realistic. Hersch Lauterpacht had there written, ‘…the present volume includes a chapter in the form of an Appendix covering over fifty pages and entitled “Specialised Agencies of the International Co-operation and Administration”. The Appendix gives an analysis, supplemented by bibliographies of the constitutions of specialised agencies of the United Nations and an account of the basic aspects of their activity. The great assistance of Dr CW Jenks was there acknowledged.

In Chapter I, on the Foundation of the Law of Nations, Lauterpacht again referred to all the international activity now being undertaken by the various ‘permanent organs and institutions of the League of Nations, of the United Nations, and of the International Labour Organization’ (p 12). The explosion of international organizations quite outside the United Nations, which has so characterised the last 60 years, had yet to happen.

I now began to work on a comprehensive new Outline, which would address the law of the UN ‘as a reality’, rather than the entire vast field of international organizations.

But this field, too, had hugely grown, with the new membership that came with decolonization, the rejuvenation of the UN at the end of the Cold War, and myriad institutional and practical changes as the UN developed and evolved beyond all recognition. So there remained the deeply troubling question of how all this could be realistically prepared, without help, by one person. Even though I had over the years written on various aspects of the UN       , and regularly visited UN Headquarters, and knew the changing staff of the UK Mission and of other Missions, and had always received support from within the Secretariat, the expansion of the UN was such that the task looked impossibly daunting.

I was also acutely aware that there was by the 2000s a world of research methodology entirely different from that which I had myself employed over the years.

So it was still not possible to see a way forward.

And then something remarkable occurred. I learned that I had been awarded the 2007 Balzan Prize for ‘International Law since 1945’. This generous prize carried with it the instruction that half of its funds were to be used for the advancement of a research project involving young scholars in the field. It began to feel as if my retirement from the Court was meant to lead to the preparation of an Oppenheim’s International Law: United Nations rather than the half-longed for life of cocktails and golf.

I shared the news with Arthur Watts over breakfast at the Hotel des Indes in The Hague. The idea of bringing a handful of young scholars into this project met with his warm approval. I was relieved that we had managed to have this conversation. His unexpected death followed in late 2007 and has been so keenly felt in the world of international law.

The next task was to choose my team of young scholars. I wanted a small team of the ‘brightest and the best’ young international lawyers, each of whom I knew well and who would be excited to participate in this collaborative work.

Philippa Webb, who had been my Special Assistant and Legal Officer when I was President of the International Court of Justice in 2006 to 2009, was an obvious choice. I had known her since 2004, when she was at Yale Law School and came to the ICJ for a year as a University Trainee, working for Judge Owada and myself. She then took up a post as Associate Legal Adviser to the ICC Prosecutor (from where I persuaded her to return to the ICJ, where she was to play an invaluable role in the President’s Office). In the years that followed, she was first a Visiting Assistant Professor at Leiden University and a Legal Consultant, and then came in 2012, as a Lecturer in Public International Law, to King’s College London. In 2015, she was made a Reader (Associate Professor) in Public International Law. Dr Webb is also a barrister at 20 Essex Street Chambers. As well as being – like all of the young colleagues – an active collaborator in this book, she took on the role of Project Manager. This has involved a substantial amount of extra work, such as organizing work schedules, liaising with the British Academy (who have been responsible for disbursement of the Balzan Funds), writing to third parties. Her contribution to this project has been both invaluable and essential.

Dapo Akande, now Professor at the University of Oxford, had been a student of mine when studying for the LLM at the London School of Economics in 1993-4. His exceptional abilities were apparent to me already then. He assisted me with some research and, after staying on to teach some classes at the LSE, he became Lecturer at the University of Nottingham in 1998. Two years later he moved, as a Lecturer, to the University of Durham. In 2004 (after some persuasion on my part), Dapo Akande applied for a University Lectureship at Oxford and moved there, holding also a fellowship at St Peter’s College. He is Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations. In September 2014, he was promoted to a professorship, where his interests in all aspects of international law (including blogging) are pursued.

I first met Sandesh (Sandy) Sivakumaran when he was my University Trainee from New York University at the ICJ in 2003-4. At that time the General Assembly had not yet granted clerks to the Judges. Our University Trainees performed much the same role for us (though as they were not staff members, certain matters were restricted for them). Sandy Sivakumaran then spent a year working at the ICTY, and then a year at the Lauterpacht centre for International Law at Cambridge. In 2006 he took up a Lectureship at the University of Nottingham and was in this post when our collaborative work began on this project. I had been impressed by his calm, systematic and careful work when a University Trainee at the ICJ and had remained in touch with him when he left. In 2014, he was appointed Professor of Public International Law at Nottingham.

James Sloan was another obvious choice. He too had been my student on the LSE LLM in 1993-4. He made a favourable impression during his time there had I valued his assistance in some research work. Upon leaving the LSE, he did an internship at the Office of the United Nations High Commissioner for Human Rights (OHCHR), and then became the First Law Clerk to Antonio Cassese at a formative time at the ICTY. After a period in human rights postings in Geneva, James Sloan was appointed to a post of extraordinary responsibility for one so early in his career, as Political Adviser to the UN Mission in Bougainville. When the Head of Mission fell ill and left the country for two months, he was Acting Head of Mission. His duties as Political Adviser included advice about a final peace agreement, preservation of the ceasefire and arms disposal issues. He went to the University of Glasgow Law School, being a Lecturer when he joined them. In June 2015, he was appointed to a Chair.

There was initially one more member of our team, Ralph Wilde, a Reader at University College London Law School, as we embarked on our venture. He had been a very accomplished student while I was at the LSE. To my regret, he felt it necessary, for personal and professional reasons, to leave the project in 2012.

All of the work on this project – explained in more detail in the Introduction to these new volumes – has been done while my colleagues have been in full-time employment in their respective universities. They have each had their teaching duties, their administrative tasks, and their own individual research. It has been important to all of us that their major commitment of time and effort to this project should not be to the detriment of their universities or their students.

Following the example of Jennings and Watts in the ninth edition of Oppenheim’s International Law, Volume I: Peace, I have seen this new Oppenheim as a collaborative endeavour and not as a series of essays attributed to different authors. At the same time, universities in the UK have to demonstrate high quality research outputs attributable to individual academics as part of the periodic Research Excellence Framework, which determines the allocation of government research funding. There has obviously been a difficult line to draw and I am grateful to all concerned for being willing to walk this tightrope.

The Introduction gives some sense of where each of the team has made his/her major input. But it has been a collaborative endeavour. Our drafts have been circulated among the team and we have met once or twice a year, for a couple of days at a time, to discuss them, to hear comments and suggestions (and offers of assistance for finding this or that). Every chapter in this volume is the result of particular efforts and collaborative improvement and refining. Every chapter has been through at least two revisions. The ultimate responsibility remains mine.

I have been full of admiration not only for all the hard work of my younger colleagues, but also their remarkable knowledge and their impressive research skills. We have also managed to have fun, if not in the preparation of our work, then at our periodic meetings. My hope that I would find a team who enjoyed working together has been fully realised.

Of course, there are very many people and institutions to whom thanks are due. These are mentioned in detail in the Preface.

Announcements: GoJIL CfP The Law Behind Rule of Law Transfers; CfA Environmental Protection, Resource Rights and Evolving Geopolitics in Antarctica; CfP Italian Society of International and EU Law; Criminal Justice and Accountability in Africa Conference

Sun, 10/15/2017 - 09:00

1. The Law Behind Rule of Law Transfers – GoJIL Call for Papers. In 2018, with Till Patrik Holterhus as special issue editor, the Goettingen Journal of International Law (GoJIL) will publish a special issue on “The law behind rule of law transfers”. This GoJIL special issue will feature several case studies that identify and explore the legal sources, norms and procedures that drive and govern the various transfer processes, with a particular focus on transfers occurring in complex, interdependent supranational and international contexts. The submissions deadline for papers is 31 December 2017. The full GoJIL call for papers can be found here.

2. Call for Abstracts: Environmental Protection, Resource Rights and Evolving Geopolitics in Antarctica. This call for abstracts is for the session about “Environmental Protection, Resource Rights and Evolving Geopolitics in Antarctica” of the POLAR2018 Open Science Conference. The conference is a joint event from the Scientific Committee on Antarctic Research (SCAR) and the International Arctic Science Committee (IASC), and will take place in Davos, Switzerland from 15 – 26 June 2018. This is the session SH-1 of Social Sciences and Humanities category of the meeting’s program. The deadline for submissions is 1 November 2017. More information and a description of the session can be found here. Details on abstract submission can be found here. More information about the POLAR2018 meeting can be found here.

3. Call for Papers for the ​XXIII Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). On 7-8 June 2018, the University of Ferrara will host the XXIII Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). The Conference’s theme is Codification in International and EU Law. One session of the Conference will deal with Coordination between different codification instruments (8 June 2018, 9am – 1pm). Speakers will be selected through a call for papers. Scholars of any affiliation and at any stage of their career are invited to submit proposals, either in English or in Italian. The deadline for submitting proposals is 10 January 2018. The call for papers and further information are available here. Proposals and any communications relating to this call should be sent via email to: callsidi2018 {at} unife(.)it var mailNode = document.getElementById('emob-pnyyfvqv2018@havsr.vg-90'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%61%6C%6C%73%69%64%69%32%30%31%38%40%75%6E%69%66%65%2E%69%74"); tNode = document.createTextNode("callsidi2018 {at} unife(.)it"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pnyyfvqv2018@havsr.vg-90"); mailNode.parentNode.replaceChild(linkNode, mailNode); ​.​

4. Criminal Justice and Accountability in Africa Conference. This conference, to be held on 26 and 27 October 2017, is organised by Queen Mary University of London’s Criminal Justice Centre in collaboration with the Centre of African Studies at SOAS, University of London. It seeks to bring together insights from across disciplines to engage with emerging trends in regional justice mechanisms in the quest to strengthen justice and accountability for international crimes. The aim is to provide a forum that shifts the discourse away from the devaluing of African initiatives and approaches, while also taking into account gaps and challenges that affect the development of regional criminal justice and accountability systems. The conference will look into the strengths and weaknesses of international criminal law as it has been applied and the potential of regional mechanisms and responses. Although the ICC is not the focus of the conference, consideration will be given to relevant issues that will shape and enhance discussions on regional and national accountability mechanisms. The discussion will focus on regional initiatives and efforts to address criminal liability and end impunity, including reflecting on the trials, courts and mechanisms – both proposed and established at the national, sub-regional and regional levels. Tickets cost £20 per day (£35 per 2 days), or £5 students per day and £10 SOAS/QMUL alumni per day. For more information please see here.

Joint Blog Series on International Law and Armed Conflict: Jann Kleffner on ‘Wounded and Sick and the Proportionality Assessment’

Fri, 10/13/2017 - 10:00

The final installment of our joint blog series arising from the 2017 Transatlantic Workshop on International Law and Armed Conflict, ‘Wounded and Sick and the Proportionality Assessment’- by Jann Kleffner (Swedish Defence University) is now available on Intercross

Here’s a taster of Jann’s post:

For all wounded and sick other than civilian ones, the question looms large how that obligation to respect and protect in all circumstances can be squared with the absence of such persons from the collateral damage side of the proportionality equation. The following possibilities present themselves.

Option 1The obligation to respect and protect such wounded and sick in all circumstances could be interpreted to mean that any incidental harm to them falls foul of the obligation and hence constitutes a violation of the law of armed conflict.

[…]

Option 2: The right of parties to an armed conflict to attack lawful targets could be understood to supersede the obligation to respect and protect the wounded and sick other than civilian ones.

[…]

Option 3The obligation to respect and protect could be interpreted to require a proportionality assessment in which incidental harm to wounded and sick other than civilian ones is legally assimilated to harm to civilians.

Read the rest of the post over on Intercross.

 

Thanks to all who participated in this joint blog series. Special thanks to post authors, readers and commentators, and to our partners over at Intercross and Lawfare. 

 

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