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

EJIL:Talk! - Sat, 03/10/2018 - 10:00

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

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

Turbulent Times for the International Rule of Law: A Reply

EJIL:Talk! - Fri, 03/09/2018 - 09:00

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

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

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

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

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

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

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

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

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

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

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

EJIL:Talk! - Thu, 03/08/2018 - 09:00

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

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

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

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

Distinguishing between the rules to be applied and their improvement

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

Decline and crisis: a plea for better metaphors and criteria

EJIL:Talk! - Wed, 03/07/2018 - 09:00

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

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

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

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

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

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

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

‘Sensing’ crises: the need for criteria

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

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

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

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

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

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

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

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

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

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

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

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

International Law in “Turbulent Times,” Part II

EJIL:Talk! - Tue, 03/06/2018 - 15:00

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

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

International Legal Conflict Is Often Productive

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

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

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

Assessing Whether International Law Is in Decline

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

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

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

International Law in “Turbulent Times,” Part I

EJIL:Talk! - Tue, 03/06/2018 - 09:00

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

Andreas Zimmermann’s interesting post raises foundational questions about international law’s role in the global order. In suggesting that international law is in decline, he assumes a particular vision of what international law does or should do, and thus of how we might evaluate its decay. The vision seems familiar. Many contend that the role of international law is to help global actors curb their disputes and promote their common interests, policies, or values. Of course, these actors will at times disagree. But according to this view, conflicts—normative disputes that manifest in materially relevant ways—are impediments to international law or problems for international law to overcome. They detract from or betray the limits of international law, at least insofar as they persist without final or authoritative resolution.

For example, Andreas suggests that states’ noncompliance with judicial decisions is evidence of international law’s weakness or decline. It shows that international law cannot effectively or legitimately resolve a dispute that is impeding the realization of the prescribed (and presumably shared) agenda. He thus ends his post by arguing that, “in turbulent times,” like the current one, international lawyers and legal scholars ought to insist that the law be applied as it is, and ought not push it in more contentious, value-laden directions that would further destabilize it.

Below and in a follow-up post, I draw on two of my recent articles to explain why that vision for international law is flawed. I then use this analysis to bring into sharper focus one of the principal challenges that international law now confronts.

International Law Enables Conflict

The problem with the vision that I just articulated is that it assumes that conflict detracts from or pulls in the opposite direction of international law—that conflict must be defused or resolved in order for international law to serve its functions. In fact (and as I argued here), international law itself enables conflict. This claim is not as radical as it might appear. A prominent school of thought already defines international law as an argumentative practice. International law establishes a set of ground rules—texts, processes, methods, sources of authority, and so on—that structure cross-border interactions. These interactions can be congenial; the participants can use international law to identify and work toward common aims. But they can also use it to compete and disagree with one another.

I have built on that school of thought to advance three points that are relevant here. First, international law does not just channel the conflicts that would occur in its absence. It affirmatively enables conflict. Having shared ground rules helps the participants identify and crystallize their areas of disagreement. It gives them normative material with which to condemn particular situations as problematic and justify responding antagonistically. It establishes mechanisms to communicate their discontent. And it creates incentives for them to fight by promising material or normative support if they prevail. In all of these ways, international law provides the tools and sometimes the reasons for global actors to disagree. It facilitates and even fuels their conflicts.

Second, although international law is an argumentative practice, the conflicts that it enables are not only discursive or confined to legal arenas. Law is a social phenomenon that shapes how people experience the material world. Global actors use international law to foster real-world collaborations, but they also use it to foster real-world conflicts—conflicts that play out through, for example, economic restrictions, deteriorated diplomatic relationships, and the like. To say that international law enables conflict is to say that it sometimes contributes to these things happening in the world.

Third, the conflicts that occur through international law are not necessarily evidence of its weakness or dysfunction. Rather, such conflict is symbiotic with the very forms of cooperation that many international lawyers prize. Even as international law helps the participants achieve their shared ends and reconcile their differences, it also helps them have and sharpen their disputes. The two kind of interactions are interdependent because the legal mechanisms for both are the same, and the more global actors work together on a governance project, the more reasons and occasions they have to disagree about different facets of the project.

My debate with Dan Bodansky, as part of a symposium on one of my articles, helps flesh out these points. Dan used as his example the Montreal Protocol on Substances that Deplete the Ozone Layer. He argued that describing the Protocol as conflict-enabling is misleading because the Protocol clearly “establishes a cooperative regime to promote states’ common interest in preserving the stratospheric ozone layer.” This is exactly the logic that I am resisting. It assumes that conflict is antithetical to and detracts from the common interest—that the Protocol either enables conflict or promotes the preservation of the ozone layer. According to Dan, the fact that the Protocol does the latter makes the claim that it does the former misleading. In my view, Dan’s logic is itself misleading. The Protocol clearly enables not cooperation at the expense of conflict but both kinds of interactions simultaneously. Indeed, Dan himself concedes that the Protocol “might be understood as enabling conflict, by using ambiguous terms that permit different interpretations and by authorizing parties to use trade measures against non-participating states.” That is essentially my point. The Protocol helps the parties reach a mutually beneficial goal, and it gives them new grounds and reasons to disagree. For example, it entitles them to argue over its application and to contest behavior that now constitutes a breach. The key point is that enabling conflict is an integral part of, not inherently antithetical to, regulation through international law.

Some readers might intuit that any legal arrangement would be stronger still if the participants managed to avoid or defuse a dispute than if they allowed it to get inflamed or persist without substantive resolution. That intuition reflects the same, flawed logic. Because conflict is part of any social order, its absence is more likely to reflect the participants’ disengagement from or subordination through the enterprise than their strong and unified commitment to it. This is especially true in international law. The actors who participate in international law are extremely diverse, so they are bound to have different, sometimes incompatible views on how best to achieve specific policy goals or balance the competing considerations that are at stake. As such, a protracted or irresolvable dispute might show not that an arrangement is weak or decaying but that it is robust—that because the participants are all so committed to it, they are willing to expend the energy to fight hard about what it requires in specific contexts.

The WTO offers a compelling example. Historically, the two most active proponents of the WTO have been the United States and the European Union. These two actors have used WTO law to cooperate in ways that deeply and broadly affected their national economies. They have also routinely used WTO law to disagree. The United States and the European Union have been the most frequent litigants at the WTO, and many of the most heated and protracted WTO disputes have been between them. They have used WTO law both to cooperate deeply and to conflict sharply. Again, cooperation and conflict go hand-in-hand; it is wrong to assume that their conflicts are impediments to their cooperation or to international legal regulation more generally.

Times Are Changing – and What About the International Rule of Law Then?

EJIL:Talk! - Mon, 03/05/2018 - 09:00

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

 

Come gather around people, wherever you roam
And admit that the waters around you have grown
And accept it that soon you’ll be drenched to the bone
If your time to you is worth savin’
Then you better start swimmin’ or you’ll sink like a stone
For the times they are a-changin’

Bob Dylan, The Times They Are Changing, 1964

In 2013, I, as a member of a group of Berlin-Potsdam-based international law scholars, together with colleagues from political science, applied for major funding for what we considered an evolving and growing research question in international law, namely whether the international legal order is facing a significant structural change, which we referred to as a possible ‘Rise or Decline of the International Rule of Law’. What we could not and did not expect (or in order to be cynical: did not hope for) was that major political developments such as, to name but a few, inter alia, the crisis in Ukraine; the election of US President Trump (as to effects on international law thereof see here) and his ensuing political steps such as the termination of US participation in the Paris Agreement to provide but one example; or the growing critique vis-à-vis the International Criminal Court, and other developments we have witnessed in recent years would prove that indeed this is a valid research question to be asked.

What is even more striking is that a significant number of academic events that have recently taken place such as a seminar on ‘International Law in a Dark Time’, a workshop on “International Organizations in Crisis? Rising Authority and Perceptions of Decline”, a conference on a “New International Order in an Isolationist World”, the 2018 ESIL Research Forum on ‘International Law in Times of Disorder and Contestation’ follow a similar, or at last closely related, research agenda. That clearly indicates that the debate as to the rise or decline of the international rule of law is in itself also on the rise, rather than in decline.

It is this setting that provides the background for this EJIL Talk contribution, in which I will set out some of my own ideas underlying this research focus, albeit obviously only with a broad brush, and hence also in a more general fashion, to arouse discussion.

Setting the scene: 1990 and beyond

One can seriously doubt whether the international legal order, given its inherently decentralized character and its manifold actors organized in a horizontal manner (namely first and foremost the approximately 193 plus States) may know ‘constitutional’ or ‘Grotian moments’ where international law is, almost by a sudden, shifting. Rather, the international legal system should be perceived as an oil tanker. Even once it is decided (and by whom anyhow?) that a change in its direction ought to take place, it still takes time, patience and a broad consensus within the international community at large, for such change to happen. To provide but one example the holding by the ICTY in Tadic (paras. 96 et seq.)  became a turning point in international criminal law once it was endorsed by the States negotiating, and later ratifying, the Rome Statute.

Notwithstanding, during the post-1990 years the World had witnessed an ongoing and almost obvious process whereby the international legal order shifted towards a more robust, more elaborated and more efficient system of legally binding norms (rather than mere political ‘expectations’). This development extended to both, pre-existing, almost traditional, areas of international law as well as to somewhat more recent areas of international law. Thus, on the one hand, the system of collective security provided for by the UN Charter started to also work in practice, while in the field of human rights the European Court of Human Rights (ECtHR) became a court exercising compulsory jurisdiction over 47 member States of the Council of Europe. On the other hand, international environmental law, international trade law or international criminal law either saw the development of new substantive rules, or the creation of new organizations to enforce those rules.

At the same time, these developments came with, or brought about, at least in Europe but also in North America, a widened scholarly perception as to the very fundamental characteristics of the international legal order. In particular, the roles of non-State actors (such as international organizations rather than merely their member States) in the creation, interpretation and enforcement of international law have fundamentally increased. Accordingly, the argument went that the international legal order had lost (or was in the process of losing) its inherently State-centered character. It was further argued that it might have even moved towards a system akin to a domestic constitutional system.

It is striking, however, that this perception was not shared by (indeed not even reflected in the work of) large parts of non-European international law scholarship. Even more important, it was neither reflected in State practice. Rather, States continued to be concerned with the daily work of applying (or not), further developing and enforcing specific rules of international law.

Back to Square One?

At least by now, this prevailing euphoria among international law scholars as to the ever (almost endless) increasing effectiveness, value-orientation, and substantive enlargement of the scope of international law) seems to have come to an end. I submit that this new (or rather old?) perception is warranted by a realistic analysis of the international order as it is currently developing.

At the same time, one must also consider whether any such developments take place across the board, or whether instead they concern only certain, specific areas of substantive international law, certain institutions only, or whether, finally, they also extend to the set of meta-rules such as e.g. the law of treaties, the law of State responsibility, or the rules on how customary law develops. Put otherwise: are the most prominent political developments mentioned in the beginning merely the tip of an iceberg being the symptom of an overall ‘melting’ of the social fabric of international law? Or are they rather exceptions that confirm that still, as of today, the famous phrase of 99 % of all States abiding by 99 % of all rules of international law still holds true, and will hold true in the years to come? And if the latter were the case, will these be still the same rules, enshrining the same values and concepts, and being enforced by the same institutions?

Once more, there is no clear ‘cut-off’ date and no alleged ‘contra-constitutional’ Grotian moment that could be identified as the point where the oil tanker of international law might have started to change its course again. Indeed, it might very well be that one can only ex post facto determine that, as of today and seen in retrospective, the development of the international legal system had once again started turning around. Still, I submit that recent individual developments mentioned above (as well as a significant number of more such signals), as well as more structural changes, such as the expanding role of the People’s Republic of China within the international legal system, indicate that such a turning maneuver is currently taking place. This may be seen as a development back towards a more traditional, State-centered and sovereignty-based system of international law, as it was perceived in the years predating 1990, and the changes that had since then taking place. This raises the ensuing issue then, as to the roles of institutions, international tribunals, as well as legal scholars in the development and application of international law.

Current role of international courts and tribunals

Ever since the 1990s, international courts and tribunals have played an important and increasing role in both, enforcing, but also in further developing, international law. This impact extended to both, international law generally, but also to ‘their’ respective treaty regimes. Prominent examples come from the field of human rights (with the ECtHR, but also the Inter-American Court of Human Rights being pertinent examples at hand), but also from international criminal law (with the dynamic jurisprudence of the ICTY being of particular relevance). Yet, those and other judicial institutions are currently facing a somewhat uphill battle with some contracting parties no longer implementing (at least some) of their decisions.

One example, obviously, is the ECHR. There, the United Kingdom has not been implementing for years the Hirst line of judgments by the ECtHR on voting rights of inmates. The same holds true for Bosnia and Herzegovina not implementing the Sejdic-Finci judgment, and finally and most recently, also for the Russian Constitutional Court, when denying enforcement of the Yukos judgment of the ECtHR, such judgment allegedly violating the Russian constitution (for a debate see here). It seems that it is quite possible, to say the least, that more contracting parties of the ECHR might follow suit.

As far as the ICC is concerned, there is obviously a whole set of contracting parties of the Rome Statute not surrendering Sudanese President Al Bashir in violation of their obligation to do so. They do so despite decisions of the ICC which are legally binding upon them regardless of how these States perceive the legal situation. Finally, we have also seen China (see here) and the Russian Federation (see here) first not participating in arbitral proceedings, and later not implementing arbitral awards under Annex VII UNCLOS (and previously Russia neither implementing an ITLOS order on provisional measures, see here).

Further analysis will be needed to evaluate whether (and if so to what extent and why) more technical dispute settlement mechanisms such as the WTO DSU, and, albeit to a lesser extent, also the system of investment arbitrations, have been less exposed to formal contestations of their role, the increasing critical political debate surrounding the latter notwithstanding.

By way of reaction to the above contestations by some of its contracting parties, the ECtHR seems to have granted contracting parties more leeway in applying the ECHR. This holds true at least when it comes to socially sensitive issues such as freedom of religion, as confirmed by the ECtHR’s recent ‘burkha judgments’ (see here and here). It must be also noted, however, that such deference to contracting parties of the ECHR does not extend (yet?) to other similarly politically controversial areas such as migration control, the recent N.D. and N.T. v. Spain judgment being the latest proof thereof. The recent Grand Chamber judgment in the case of Burmych and Others v. Ukraine further demonstrates that the Court is willing to pass the ball back into the field of the Committee of Ministers (and thus to a political rather than a legal solution of the matter), in case of a structural unwillingness of a given contracting party to implement the ECtHR’s judgments.

This development might also raise a more fundamental question as to the dynamic interpretation of the ECHR (and other human rights instruments) as constituting ‘living instruments’. In the past, this concept, which was meant to consider social realities within contracting parties, served to further enlarge the human rights guarantees, as compared to the standard envisaged in 1950. One wonders whether instead, the said concept might not also conceptually serve to limit such guarantees provided the prevailing social ‘understandings’ in the majority of (or a significant number of ?) contracting parties move in such a way.

It is also worth noting that, as far as the ICC is concerned, a recent decision of one of its Pre-Trial Chambers. Without any need to decide the matter, while (rightly) denying President Al-Bashir immunity as an acting Head of State given that the situation in Darfur had been referred to the ICC by the Security Council, the chamber found that, absent such a Security Council referral the ICC “may not, in principle, (…) request a State Party to arrest and surrender the Head of State of a State not party to the Statute.” (see here) The ICC thus, somewhat akin to the ECtHR, attempted to already do ex ante and without any concrete need, to avoid a future collision course with a certain number of contracting parties which might be unwilling to cooperate with the Court where there is not even an underlying Security Council action.

Finally, the ICJ’s current decisions in the various cases brought by the Marshall Islands, and related to the politically sensitive issue of nuclear disarmament, rejecting the various applications for lack of a dispute (for a discussion of the Court’s judgments see here), can also be perceived as avoiding ‘problematic’ issues. At least, this more subtle, ‘technical’ and fact–specific solution chosen by the ICJ provides the Court with significantly more maneuvering space when it comes to future cases than any substantive decision.

What is brought out by these few examples alone is that there is a current tendency among international courts and tribunals to take a transformation in its surrounding ‘legal space’ into account when deciding whether they should act more cautiously, or whether they should continue to be at the forefront of the development of international law. Under prevailing circumstances, it might very well be appropriate for them, in order not to endanger their legitimacy, to not move ahead too fast. Besides, the International Court of Justice, representing the overall international community at large might, unlike regional courts such as the ECtHR or those representing a still unfortunately limited number of contracting parties such as the ICC, be best placed to set the pace for any future normative developments. The well-known controversy between the ICTY and the ICJ as to the standard of attribution of acts under Art. 8 ILC Articles on State Responsibility (see here (para. 115), here (paras. 98 et seq.) and here (paras. 403 et seq.)) obviously come to one’s mind in that regard. Another example relates to the ICJ’s somewhat cautious and careful approach in the field of reservations to treaties. Its step-by-step approach is somewhat contrary to the ILC’s ambitious approach contained in its ‘Guidelines on Reservations to Treaties’. Generally speaking, the ICJ might thus in the years to come serve even more than ever as a necessary ‘neutralizing’ element balancing forward–looking and backward-leaning trends within the international community at large.

Role of scholars

Given these current political circumstances and developments what might then be, to paraphrase Savigny, the vocation of our age for international legal scholarship. I submit that, first and foremost, a detailed and detached, open-minded analysis of the ongoing development described above has to take place in order to ascertain whether indeed a rise or rather a decline of the international rule of law is in the process of taking place. This must be done (and can be done, I submit) without any preconceived a priori results.

In a second step, one must then evaluate the further consequences, if at all, of such a development. Indeed, it is these two steps that form the very core of the research project I am involved in. It is only once those two steps have been undertaken that one can then consider what might be possible strategies by States, and other actors, to counter such a possible decline of the international rule of law.

This task might have become somewhat more difficult by the fact that over the years international law scholars on the one hand, and international lawyers practicing international law on the other, have become somewhat used to living in two separate worlds. Put otherwise, diplomats, legal advisers of international organizations or of States, international judges or counsel advising States or appearing on their behalf in various fora on the one hand, and scholars of international law on the other have started speaking ‘different languages’. That has happened to an extent that parts of such scholarship have become irrelevant for those practicing (and thus applying in concreto) international law. That in turn has led to a decrease in the interaction between these two groups, and hence also to a decrease in the impact legal scholarship has on international law generally. This gap might widen if, indeed, a decline in international law can be discerned.

Besides, third, not infrequently the admittedly nebulous boundary between the existing international lex lata, and lex ferenda had become somewhat blurred in legal scholarship. One possible example might be the claim that, as of today, the death penalty is prohibited as a matter of universal (rather than regional) customary law. Such far-reaching propositions, not well-founded in State practice, or in the subsequent practice of States (as contracting parties of a given treaty regime), once again limit the ‘impact’ of such scholarship on the actual application of the relevant rules of international law in a given context, and in understanding what the current challenges to international law are.

Finally, fourth, not infrequently formal arguments such as the need to insist on uniform State practice, on abiding by rules on treaty amendments, or on the obligation to implement a judgment of an international court or tribunal regardless of its legitimacy, are set aside by relying on more general considerations of what a more value-based international legal order ought to be. Relevant examples one might refer to are the Assembly of State Parties’ activation of the ICC’s jurisdiction on the crime of aggression, as well as the debate surrounding the implementation and enforcement of the ICJ’s 2012 judgment in the State immunity case (Germany v. Italy).

Notably in ‘turbulent times’, such as the ones the international legal order is currently undergoing, where there is an (increasing?) tendency, at least by some States, to bluntly disregard international law, and to challenge its normativity as such, it is the vocation of scholars of international law to carefully analyze to what extent, and for what reasons, the international rule of law may thus have become an endangered species, and how to protect it. The best way to do so, however, at least for the time being, is to carefully analyze, first, what the actual rules to be applied are, rather than aspiring to further ‘improve’ its contents. It is only this way that under the prevailing circumstances as many States as possible may be convinced that abiding by the international rule of law continues to be in their own interest.

In that sense, it might be said that at least in that regard times have not been changing given the intrinsically ‘weak’ character of international law. As a matter of fact, ever since international law came about it was always dependent on the will of States not only to further develop the international legal system, but, first and foremost, to apply and enforce it, the development of other enforcement mechanisms notwithstanding.

Announcements: CfS UCL Journal of Law and Jurisprudence; Screenings of It Stays With You by Geneva Academy and Birkbeck; University of Manchester Presidential Fellowship in International Law; Seattle Mass Atrocity and Human Rights Seminar; PhD...

EJIL:Talk! - Sun, 03/04/2018 - 10:00

1. Call for Submissions
 Volume 7, Issue 2 (Autumn 2018). The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and will be available open access. All submissions are assessed through double blind peer review. The Editorial Board is pleased to call for submissions for the second issue of 2018. The Board welcomes papers covering all areas of law and jurisprudence. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The deadline for submissions is 16 April 2018. Manuscripts must be uploaded via the submissions section on our website. For further information and guidelines for authors please visit our website. Please direct any further queries ucljlj.submissions {at} ucl.ac(.)uk var mailNode = document.getElementById('emob-hpywyw.fhozvffvbaf@hpy.np.hx-37'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%75%63%6C%6A%6C%6A%2E%73%75%62%6D%69%73%73%69%6F%6E%73%40%75%63%6C%2E%61%63%2E%75%6B"); tNode = document.createTextNode("ucljlj.submissions {at} ucl.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-hpywyw.fhozvffvbaf@hpy.np.hx-37"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

2. Geneva Academy ‘It Stays With You’ Event. ‘It Stays With You’ is a documentary film about the impact on the local community of United Nations (UN) peacekeepers’ use of force in Cité Soleil, Haiti, during the period 2004-2007. Geneva Academy will be showing the film on 12 March 2018, 18:15-20:15. The film raises serious questions about the responsibilities of the UN with regard to non-targeted (but often foreseeable) deaths and injuries to civilians as a result of use of force by UN peacekeepers when carrying out mandated operations. The film is 50 minutes long, and will be followed by a panel discussion and questions from the audience. The event will be chaired by Professor Noam Lubell (University of Essex, Swiss Chair of International Humanitarian Law at The Geneva Academy). A light cocktail will follow the event. See here for further information.

3. Birkbeck University ‘It Stays With You’ Event. The film ‘It Stays With You: Use of Force by UN Peacekeepers in Haiti’ (2017) will also be screened in Birkbeck University of London, on March 17 at 2pm. Andy Leak, Prof of Francophone Studies (UCL) and secretary of the Haiti Support Group, will speak on the post screening panel and there will be a Q&A with the co-directors. For further information see here

4. University of Manchester Presidential Fellowship in International Law. The University of Manchester wishes to appoint a Presidential Fellowship in International Law. The successful candidate must have the ability to make a significant contribution to, and actively participate in, the work of the Manchester International Law Centre. Applications are sought from early-career academics who can deliver world-leading research and teaching. They should have a high academic standing, a growing reputation in research, and the specialist knowledge needed to develop cutting-edge research programmes. This is currently envisaged as a four-year appointment. The Presidential Fellow will do no or only minimal teaching in the first year and minimal teaching in the second year. In subsequent years, teaching commitments shall increase. Following a four-year probationary period, and subject to satisfactory performance, the Fellow will transfer to an appropriate academic contract. Successful candidates must have a relevant PhD (or equivalent) awarded prior to commencing the appointment. and this must not have been awarded more than five years before 3 April 2018, which is the closing date for applications. Further details may be found here. Inquiries may be directed to Professors Jean d’Aspremont and Iain Scobbie at (milc[at]manchester.ac.uk) with the title “presidential fellowship”.

5. Seattle University School of Law Mass Atrocity and Human Rights Seminar. Seattle University School of Law will be hosting a Mass Atrocity and Human Rights Seminar as part of its summer practice academy June 20 – 22, 2018. The seminar is ideal for anyone interested in this particular subject matter (whether you practice law or not). CLE credits are offered and participants will earn a certificate if they attend all 3 days whether in person or via the web! Registration is now open. See here for further information.    6. Open call for 2 PhD Positions for the European Research Council (ERC) Funded Research Project, “The Rules of Interpretation of Customary International Law” (TRICI-Law), University of Groningen. TRICI-Law is a research project funded through an ERC Starting Grant (on ERC StGs see here), which was awarded in 2017 to Prof. Panos Merkouris. Based at the Department of Transboundary Legal Studies of the University of Groningen, TRICI-Law is seeking two PhD Researchers, each of which will be a four-year appointment. The research focus of the PhD positions will revolve around the theory of interpretation of customary international law, and the manner in which both international and domestic courts have approached it in their own jurisprudence (on the research focus of each position see here). The successful applicants will be appointed starting 1 May 2018 (or soon thereafter). More information on the positions, the project, submission of applications and selection process can be found here. Applications must be submitted by 29 March 2018 (23:59 CET). Informal enquiries may be directed to Prof. Panos Merkouris (p.merkouris {at} rug(.)nl var mailNode = document.getElementById('emob-c.zrexbhevf@eht.ay-37'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%70%2E%6D%65%72%6B%6F%75%72%69%73%40%72%75%67%2E%6E%6C"); tNode = document.createTextNode("p.merkouris {at} rug(.)nl"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-c.zrexbhevf@eht.ay-37"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

Foreign Office Certificates and Diplomatic Immunity in the Assange Affair

EJIL:Talk! - Fri, 03/02/2018 - 07:40

The Assange saga continues with recent decisions in the English Courts upholding the warrant for Julian Assange’s arrest. Dapo’s recent post on Ecuador’s purported appointment of Julian Assange as one of its diplomats to the UK considered the position on this issue as a matter of international law. However, a related issue is how the relevant provisions of the Vienna Convention on Diplomatic Relations (VCDR) would be applied if the issue were to arise in domestic proceedings in England and Wales. In other words, if Assange were to leave the embassy, and were to be arrested and prosecuted for failing to surrender, would he be able to rely, in an English court, on diplomatic immunity under the VCDR? Thinking through this question involves a degree of speculation, for we don’t yet know what the Foreign and Commonwealth Office’s (FCO) posture towards any such claim would be. We will assume, however, that the FCO will maintain an approach consistent with its statement (reported here) of 11 January 2018: ‘The government of Ecuador recently requested diplomatic status for Mr Assange here in the UK. The UK did not grant that request, nor are we in talks with Ecuador on this matter.’ In other words, we will assume that the FCO would not recognise Assange as a diplomat.

How the matter would be resolved in domestic English proceedings is a difficult question. It involves consideration of the respective roles of courts and the executive in matters of foreign affairs, the distinction between questions of fact and questions of law in giving effect to FCO certificates, and the potential continued application of the common law principle that the courts and the executive should speak with one voice.

The Diplomatic Privileges Act

As a matter of domestic law, the starting point is the Diplomatic Privileges Act 1964 (DPA), which gives effect to the VCDR. In thinking through how the Assange matter would proceed in a domestic court, Section 4, which sets out the role of the FCO in matters of this kind, is crucial:

‘If in any proceedings any question arises whether or not any person is entitled to any privilege or immunity under this Act a certificate issued by or under the authority of the Secretary of State stating any fact relating to that question shall be conclusive evidence of that fact.’

In recent years, domestic courts in the UK have dealt with a number of immunity cases centred on the effect of FCO certificates – both under the DPA and other legislation. Most significant is the decision of the Court of Appeal in Al-Juffali. In Al-Juffali, previously discussed by Philippa Webb on this blog, the appellant had applied to strike out a claim by his wife on the basis that he was entitled to immunity as Permanent Representative of St Lucia to the International Maritime Organisation. There was little doubt that his appointment was spurious – the appellant appeared to have no experience of matters relating to the work of the IMO and was said by the High Court to have secured appointment with the sole intention of defeating his wife’s claim. Indeed, it was on this basis – applying a functional approach – that the High Court looked behind the formal recognition of appointment in the FCO certificate to hold that the appellant had not, ‘in any real sense, taken up his appointment.’

The Court of Appeal held that the High Court was wrong to conclude that the husband was not entitled in principle to immunity. Two complementary strands of reasoning in the CA’s decision are relevant for the present discussion. First, the Court held that ‘Article 39 [VCDR] makes it plain that diplomatic immunity starts before the diplomat begins to perform any diplomatic functions when he enters the receiving State “on proceeding to take up his post” or “from the moment when his appointment is notified to the Ministry of Foreign Affairs”’ (para 27). Second, the Court emphasised the conclusive nature of the certificate issued by the FCO on the underlying factual matter. Here, that certificate stated that the FCO had been notified of the husband’s appointment as Permanent Representative to the IMO and that it had not been notified of any subsequent termination of his functions (para 42). The CA’s legal interpretation of the relevant treaty provision and FCO’s conclusive factual determination lead to the conclusion that the husband was entitled in principle to immunity.

The formal approach to the effect of FCO certificates in Al-Juffali might be read to mean that any denial by the FCO of Assange’s status as a diplomat would likewise be conclusive in domestic proceedings. Such a reading would be too quick – that is not quite what the case stands for. To understand why, it is critical to emphasise a distinction between questions of law and questions of fact built into the Diplomatic Privileges Act. As noted above, Section 4 renders conclusive the FCO’s certification of any fact relating to a question of immunity. In Al-Juffali, the Secretary of State certified that (i) ‘he had been notified of H’s appointment and of H’s “arrival date” and (ii) he had not been notified that H’s diplomatic functions had been terminated’ (para 42). These facts then grounded the CA’s legal determination.

Embedded in this fact / law distinction is a constitutional concern about the respective roles of the executive and judiciary in this context. As in other areas of law, the distinction can be elusive. In the context of diplomatic immunities, to see how it plays out consider these three questions:

  1. Has D’s appointment as a diplomat been notified to the FCO by the sending state?
  2. Has D been accepted/recognised/accredited by the FCO as a diplomat?
  3. Is D entitled to diplomatic immunity?

Questions 1 and 2 are certainly questions of fact while question 3 is certainly a question of law. Under the DPA, the FCO’s statement is conclusive on factual questions but the court determines the legal question. As emphasised by Elizabeth Wilmshurst in 1986:

‘[i]t is not for the Foreign Secretary to certify (though he is often asked to do so) whether a diplomatic agent is immune from suit in relation to particular proceedings. All that he can do is to certify whether or not a person has been notified to him as a diplomat; it is for the court to determine whether in consequence of that fact that person is entitled to immunity.’ [“Executive Certificates in Foreign Affairs: The United Kingdom” (1986) 35 ICLQ 157]

Wilmshurst’s point that the Foreign Secretary is often asked to certify the immunity question itself remains true today. Indeed, in the recent case of Al Attiya, the Court directed the parties to write jointly to the FCO seeking a certificate answering both questions 1 and 2 (para 6). In response, the certificate simply answered the question on notification (para 9).

However, it is important to note that whether a factual question is relevant to the determination of an issue is a question that depends on the construction of the law and the relevant legal criteria to be applied. Thus, if the legal rule under the VCDR is that on notification by the sending state D has the status of a diplomat and is entitled to immunity, Question 2 is irrelevant to the legal question. It is for the court, on the basis of the law, to determine what facts are relevant. In this specific context, to consider Question 2 above to be relevant and any FCO certification on that issue determinative has the potential to unbalance the constitutional scheme set up by the DPA as to the respective roles of the court (giving force to legislative choice) and the executive.

One final point bears emphasising. The distinction drawn above as to the roles of the executive and court is specific to the statutory scheme of the DPA – it need not be the same in other contexts. Consider Section 21(a) of the State Immunity Act 1978: ‘A certificate by or on behalf of the Secretary of State shall be conclusive evidence on any question… whether any country is a State for the purposes of Part I of this Act.’ Here, then, the executive has within its jurisdiction a much wider determination and the respective roles of the court and the executive break down differently. The executive’s determination of whether or not a country is a state resolves the question of whether an entity is to be treated as a state under the Act, although that question that might be regarded as raising both factual and legal issues that the court would be competent to determine on its own (See Re Al-Fin’s Corporation’s Patent [1970] Ch. 160).

Speaking with One Voice – A Wider Principle?

Is that, then, the end of the matter? If the Assange matter came to court and the FCO issued a certificate stating (i) that it has been notified of appointment by Ecuador, but that (ii) it did not accept or recognise such an appointment, is the fact that notification is what matters legally enough to dispose of it? This is exactly the situation Lord Parker feared in the older case of ex parte Teja, later overruled on this point: ‘I confess that at the very outset this argument, simple as it was, seemed to me to produce a frightening result in that any foreign country could claim immunity for representatives sent to this country unilaterally whether this country agreed or not.’ Would the Court grant Assange immunity in the face of objection by the executive that it did not recognise any such claim?

It is here where the idea of a wider principle that the executive and judiciary must speak with one voice might be thought relevant. That principle was articulated most evocatively by Lord Atkin in The Arantzazu Mendi:

‘Our state cannot speak with two voices on such a matter [that is state sovereignty and matters flowing from it], the judiciary saying one thing, the executive another. Our sovereign has to decide whom he will recognise as a fellow sovereign in the family of states; and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.’

In Al-Juffali, the Court of Appeal invoked Atkin’s dictum, explicitly accepting ‘the submission of the Secretary of State that the same considerations of law and policy apply in the present context’ (para 42). On this basis, the government may be tempted to argue that preceding case law on the centrality of notification ought to give way in the light of the principle that the executive and judiciary must speak with one voice on matters relating to foreign relations.

That argument doesn’t seem right. As the CA notes in Al-Juffali, the one voice principle is most commonly discussed in the context of state immunity – the sovereign must decide whom to recognise as a fellow sovereign. And, indeed, Atkin’s principle is realised in the State Immunity Act – as noted above, Section 21(a) renders conclusive the executive’s judgment of whether any country is a state. But that is quite different from holding that the general principle overturns the specific statutory scheme established in the context of diplomatic, rather than state, immunity.

Abuse of Rights

We should point out that if an English court were to determine that Assange’s status as a diplomat is ordinarily determined by notification by Ecuador, the argument suggested in Dapo’s previous post that that such a claim of diplomatic status might be defeated because of an abuse of rights relating to the conferral of Ecuadorian nationality would remain a possibility. However, Section 4, allowing certification of relevant facts by the Secretary of State might also be relevant this question. But here, too, the distinctions drawn above between questions of law and questions of fact remain important. First, whether the law (i.e international law as it applies in English law) allows rejection of a claim of nationality would be a question of law for the court to decide. Second, whether a given act or course of conduct constitutes an abuse of rights would presumably also be a question of law. Third, whether any facts are relevant for the determination of an abuse of rights would also be for the courts to decide. Only if the court decides that there is a fact relevant to this determination does one get to the question of a certificate. For example, if the court were to decide that the date on which Assange acquired Ecuadorian nationality was relevant to the inquiry, that would seem to be a matter on which a Section 4 certificate could be provided and would be determinative.

It remains to be seen how the Assange affair will play out. The English courts have already had the opportunity to pronounce on issues relating to his failure to surrender. Were he to leave the embassy, it is possible that they will be called upon to decide some interesting questions relating to diplomatic immunity in international law. 

Security Council Resolutions as Evidence of Customary International Law

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

In 2012 the International Law Commission began to address one of the last major uncodified areas of public international law: how norms of customary law (CIL) are to be identified.  The exercise at the ILC has not been an easy one.  States commenting in 2016 on the Commission’s “draft conclusions” expressed concerns on a variety of issues.  One of the most contentious was the role of international organizations (IOs) in the creation of custom. 

The topic has been the subject of academic conferences at the University of Manchester, the University of Michigan and elsewhere, as well as a growing volume of law review commentary (see here, here, here, here and here).  And in early January, the United States submitted comments on the draft conclusions that were, to put it mildly, opposed to any role for IOs.  Closer to home, Kristen Boon, Isaac Jenkins and I have just published an article on the role of the Security Council in generating evidence of custom related to non-international armed conflicts (NIACs), an area of intense Council involvement. In this post I’ll describe the ILC’s view of IOs, the United States’ response, and then our affirmative arguments specific to the Security Council.

The ILC addresses IOs’ role in generating custom in two of its draft conclusions.  First, Conclusion 4(2) on the “Requirement of Practice” provides, “In certain cases, the practice of international organizations also contributes to the formation, or expression, of rules of customary international law” (p 76).  Second, Conclusion 12 addresses “Resolutions of International Organizations and International Conferences”:

  1. A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law.
  2. A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development.
  3. A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris) (p. 78).

On their face, these provisions represent a modest relaxation of the traditionally state-centric nature of CIL.  But ambiguities abound.  Article 4’s statement that “in certain cases” IO practice may contribute to CIL provides no detail on the circumstances in which that might happen.  Article 12 is a bit more specific, focusing on IO resolutions, but in saying only that such resolutions “may provide evidence for establishing the existence and content of” CIL, it provides no guidance on when or how that might occur.   Nor does either provision address how IO practice of any sort might embody either or both of the two traditional elements of CIL, practice and opinio juris.

Adding to this ambiguity is the ILC’s extraordinarily limited notion of when an IO acts in its own legal capacity for purposes of contributing to CIL, as opposed to merely serving as a forum in which its member states express their own views.  The Commission states in commentary that this should occur most clearly “where member States have transferred exclusive competences to the international organization.”  (p. 89).  The sole example given is the European Union and it is difficult to think of others.   IOs may also act on their own behalf when member states “have conferred powers upon the international organization that are functionally equivalent to the powers exercised by States.” (id.). An example of those actions is IO secretariats serving as treaty depositories.  (id).  Acts not functionally equivalent to those of states “are unlikely to be relevant practice.” (id.). This last category would seem to encompass most IO actions. 

The ILC underlines this exceptionally narrow view of IO corporate action in a comment on the “certain circumstances” language in Conclusion 2: “References in the draft conclusions and commentaries to the practice of States should thus be read as including, in those cases where it is relevant, the practice of international organizations.”  (p. 88). Most IO practice, in other words, is actually state practice. 

The ILC’s narrow approach continues when it discusses the United Nations, the IO most frequently cited as a source of custom.  While one might imagine UN organs with specific competences having a role in generating evidence of custom in those areas, the ILC commentary discusses only resolutions of the General Assembly (p 107).   Readers are left to wonder whether this is because, in the Commission’s view, only the GA can contribute to custom by virtue of it being “a plenary organ of near universal participation,” (id.) or whether it is just the best example among many others.  The most obvious explanation is that the ICJ has cited almost exclusively to GA resolutions when invoking IO practice in cases such as Congo/Uganda (¶168), Nicaragua (¶195) and the Nuclear Weapons Advisory Opinion (¶70).

But even this narrow view of IOs’ role in CIL was unacceptable to the United States.  In comments submitted to the Commission on January 5, the US ruled out any role for IOs: “It is axiomatic that customary international law results from the general and consistent practice of States followed by them out of a sense of legal obligation.” (p. 2; emphasis in original). The US argued “there is no support” for the “some circumstances” language in Conclusion 4(2) and proposed that the section be deleted entirely. (p. 5).  Following on this position, the US described IO resolutions (the subject of draft conclusion 12) as embodying “the opinio juris of States, although potentially also their practice.” (p. 17).

Perhaps anticipating that this categorical position would not carry the day in the Commission, the US went on argue that even if one accepted a role for IOs in CIL, Conclusion 4(2) and accompanying commentary is vague and question-begging in ways that mirror many of the problems noted above (pp. 3-5).  These objections are thought-provoking are deserve serious consideration, even if one supports an IO role in custom.

The proposal that Kristen, Isaac and I make, however, rests on several facts and legal propositions neither side in this debate has raised.  We argue that the Security Council regularly and consistently imposes obligations on parties to NIACs that differ in important ways from otherwise applicable international law or, in some cases, from one side in a dispute over the content of a particular customary norm.  We created a dataset of all Security Council resolutions on the most significant NIACs from 1990-2013 and coded them for the imposition of binding obligations on a range of international law issues. 

Two findings from the data stand out.  First, the Council has been omnipresent in contemporary NIACs, passing at least one resolution on 76% of all NIACs from 1990 to 2013, increasing to 80% for NIACs that began after 1990.  Second, the Council imposed obligations that are highly relevant to several unresolved CIL debates.  In particular, our data show that the Council required non-state actors (usually armed rebel groups) to respect human rights in 68% of NIACs in which it had invoked Chapter VII and in 83% of such conflicts that commenced after 1990.  Similarly, the Council ordered non-state parties to abide by NIAC peace agreements in 83% of conflicts with such agreements, and in 92% of such conflicts in which it invoked Chapter VII.   We argue these findings are evidence of CIL with regard to whether non-state parties are bound by human rights obligations and whether peace agreements ending NIACs are legally binding.  Both issues are highly contested and the addition of Council practice could well sway the debates.

From a theoretical perspective, we argue that when the Council imposes such obligations it acts as an agent for all UN member states.  Article 24(1) of the Charter provides that member states “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.   (emphasis added).   The Special Court for Sierra Leone relied on an Article 24(1) agency theory to hold that an agreement between Sierra Leone and the UN was, as a result of Council approval, “an agreement between all members of the United Nations and Sierra Leone.” (Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction, ¶38 (May 31, 2004) (emphasis in original). 

Does the agency theory mean that member states have delegated to the Council a capacity to contribute to CIL?  In its ILC submission, the US argued emphatically not: the mandates of IOs are “carefully negotiated treaties” that “rarely, if ever” provide an express authorization “that the organization exercise the powers of member States to generate practice for purposes of customary international law.” (p. 4).  This was obviously true when the UN Charter was negotiated.  But the US position seems anachronistic today.  Consider the consequences of states having delegated to the Council authority to address an extraordinary range of legal questions arising from NIACs – and having done so for more than 25 years — but withholding any CIL consequences of that delegation.   Those consequence – i.e. evidence of custom — would not be attributable the Council.  But neither would they be attributable to the member states, who would have delegated the authority to act to the Council, effectively disengaging those acts from their (state-based) customary law implications.  Member states cannot claim ownership of acts they have delegated to the Council.  The acts would thus disappear into a legal black hole.  An entire realm of rich international practice in responding to and remediating NIACs would be lost to CIL.

Second, the post-Cold War Council has developed a set of legal tools to address NIACs that no state possesses individually.  It can impose obligations on non-state rebel groups.  Under Charter Article 2(7) it can address NIAC issues normally within a state’s domestic jurisdiction. And it can legitimize or delegitimize the use of force by some or all NIAC parties.  Council acts pursuant to these exclusive powers cannot be attributed to member states.

Third, our data show a Council involved in almost all contemporary NIACs.  The Council has addressed NIACs in every year, in every region, of varying duration, of varying number of actors, of varying battle deaths and civilian casualties, at various points in the conflicts, and both inside and outside the spheres of influence of every hegemonic state.  No state or group of states comes close to matching this breadth of practice.  The nature of Council involvement is also remarkably deep, ranging from simply imposing obligations to dispatching peacekeeping missions to imposing sanctions.  To take sanctions as an example, only four of the sixteen Council sanctions regimes in place in 2017 targeted state actors exclusively; the rest targeted non-state actors exclusively or both state and non-state actors.   Obviously, no state or group of states has addressed NIACS more broadly or more comprehensively.

In sum, the Council has exercised unique Charter to powers to intervene in extraordinarily intrusive ways into the most severe NIACs of the post-Cold War era.  It has done so using authority specifically delegated by all member states.  And in its interventions, the Council has consistently imposed the same obligations on NIAC parties for over two decades, despite wide variations in the causes, location, severity and duration of the conflicts.         

This is not to say the case for considering Council practice as evidence of custom is an easy one.   Many other objections can be raised, most of which we address in our article.  Circling back to the US objections outlined above, we believe our views are potentially consistent with its position that while an IO can never contribute to custom on its own behalf, IO resolutions can be evidence of state practice.   If UN member states have enlisted the Council as their agent to address legal issues in NIACs, then Council practice is ultimately state practice, since member states are the principals in the principal-agent relationship.   The US omits discussion of the agency provision of Charter Article 24(1), perhaps because it, like the ILC, is focused almost exclusively on the General Assembly.   But our view would admit Council practice to the mix of evidence relevant to custom while not radically departing from the fundamentally statist conception of CIL the US advances.

Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution

EJIL:Talk! - Wed, 02/28/2018 - 09:00

While the failure of cyber security negotiations under the auspices of the UN GGE has created a huge void in international regulation, recent cyber-attacks with global reach have shown that action is more urgent than ever. Reflection on standards, good practices and norms should include private sector actors who are often the first victims of cyber-attacks. We consider that the solution to the current vacuum in multilateral cybersecurity negotiations is the creation of a flexible and inclusive body within the OECD that would act as a hub for the various initiatives while promoting close cooperation between States, the private sector and civil society in order to promote standards of responsible conduct in cyberspace.

In recent years, States have tackled the problem of cyber security by multiplying initiatives in various intergovernmental organizations, be they universal organizations (such as the United Nations or the ITU) or regional or restricted organizations such as the European Union (with, for example, the recent cybersecurity package announced by the EU Commission in September), the Council of Europe, the OSCE, the OECD, the African Union, the Shanghai Cooperation Organization, NATO, ASEAN, the G7 or the G20. These initiatives are also developed in ad hoc frameworks specifically dedicated to cyber-security, where an impressive number of conferences are initiated by States, such as the Global Conference on Cyberspace (GCCS) which has launched the Global Forum on Cyber ​​Expertise (GFCE) – and this without counting academic initiatives such as the process that led to the adoption of the Tallinn Manuals 1 and 2 or the creation of Think Tanks like the Global Commission on the Stability of Cyberspace chaired by Marina Kaljurand (formerly Estonian Foreign Minister).

The failure of the UN GGE

Among the many fora of discussion and negotiation, the most important was undoubtedly the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security of the United Nations (UN GGE). This group, consisting of representatives of 25 countries, affirmed the applicability of international law to cyberspace. Its latest report, published in 2015, focused specifically on the application of certain principles and norms of international law and proposed a series of rules of responsible behavior of States. Following this report, and in accordance with the mandate given to it, the GGE engaged in work aimed at clarifying and deepening these rules, norms and principles. A new report was eagerly expected by the international community. Unfortunately, this report was never published. While significant progress had been made on important subjects, disagreements had emerged on some issues (including the issue of self-defense and the applicability of humanitarian law) and negotiations ultimately failed last summer (for conflicting views of the reasons for this failure compare the statements by the United States and Cuba; for scholars’ comments read for example this, this, this and this). While some proposals have been made in order to “resurrect” in the future the UN GGE, there are good reasons to believe that this would be hard in the short term; and even if this could become possible, the “new” GGE will certainly not fly high (see for example on this the pessimism of France in p.36 of its just published Strategic Cybersecurity Review).

This failure of the GGE leaves the international regulation of cyberspace without a centralized forum and this at a time when the urgency to act is more pressing than ever – as evidenced in particular by the first cyber-attacks with a truly global reach such as Wannacry or NotPetya and several recent studies highlighting that cybersecurity risks “are increasing exponentially” (see for example here, here and here).

Some have proposed the creation of a new international intergovernmental organization specialized in cyber security that could act in a centralized way. However, in the international arena, it is no longer the preferred option to establish heavy structures that must result from time-consuming negotiations of new treaties constituting international organizations – which could also never be ratified by some States. Nor is any more the era of the creation of new universal international organizations with important normative powers. It is therefore difficult to see how States could engage in the creation of an international intergovernmental organization specialized in this field. It is also unclear how States could agree to transfer to such an organization important tasks in cyber security that are widely perceived as falling within the realm of “national security”, the human security of their populations and their sovereign powers.

The OECD Solution

While the need for coordination, coherence and rationalization of initiatives is evident (as is the need to strengthen confidence-building measures and technical assistance to countries that are lagging behind in cyber security), the solution we suggested in the conclusions of a study published several months ago was the establishment of an open, flexible and inclusive platform of multi-stakeholder negotiation. This solution is to be found within the OECD.

To understand the interest that the OECD presents, we must first be reminded that the recent years have been marked by significant institutional changes in the context of international governance. The creation of international organizations has often been replaced by the creation of more informal international institutions under variable names such as “forum”, “network”, “groups” (the G7 or the G20 being the best known), “agencies”, “committees” which, perhaps, do not really correspond to the conventional definition of the classical intergovernmental organizations but which fulfill their functions with some effectiveness.

There are several advantages to these institutions, the most important of which is flexibility.

First of all, there is flexibility in terms of representation and composition. Henceforth, it seems necessary to give private actors a real stand in cybersecurity discussions through a multipartite composition or, at least, the creation of a formal mechanism of integration of the private sector such as a “Corporate Partnership Board”. In this regard, we recall Microsoft’s proposal to create an informal body composed of a G20 and an ICT20 – the 20 largest information and communication technology (ICT) companies. However, this interesting proposal presents some difficulties, including the fact that institutions such as the G7 or the G20 suffer from the lack of a permanent secretariat and of expertise of their own, let alone problems of democratic legitimacy. Nonetheless, the idea of ​​involving private actors and States in an international institution is something that needs to be taken into consideration. The private sector association should not be limited to the major players in ICT, but also include other important players such as insurance companies, or even representatives of SMEs. The G20 could thus give impetus to such an initiative while entrusting the mission of technical realization to the OECD – exactly as it has done with several other ambitious projects, most recently the BEPS project.  

Flexibility also exists with regard to the powers of these institutions, which often lack normative powers, which does not however prevent them from being fora for discussion and negotiation or from taking initiatives such as the adoption of codes of conduct or even “hard law” instruments.

The experience of the OECD seems, therefore, particularly interesting. In fact, the OECD, which is an international intergovernmental organization of the classical type, comprises of flexible and autonomous institutions that manage different fields and issues concerning international co-operation. One example is the International Transport Forum in the field of transport; the Financial Action Task Force (FATF) in the field of finance; or the Global Forum on Transparency and Exchange of Information for Tax Purposes. These institutions – and others – operate effectively and have significant regulatory capacity, though often more by soft law than by hard law. They are administratively integrated within the OECD which lends them, inter alia, its legal personality, while being entirely autonomous on the merits. The 35 OECD Member-States are the driving force behind these institutions, but other countries are also participating on equal grounds, including China, Russia, India, Brazil, South Africa and others. Some of them also include “Corporate Partnership Boards”, thus allowing the involvement of major private sector players. The OECD has also experience in engaging the civil society through organs such as the Civil Society Information Society Advisory Council.

Our proposal was thus to establish within the OECD an “International Forum for Digital Security” which would play a role of hub and coordination for the various initiatives while allowing States, the private sector and civil society to work closely together for the development of standards of responsible conduct in cyberspace. The OECD is perfectly suited for the “multi-stakeholder” approach absolutely essential in order to promote effectively digital security for economic and social prosperity.  

The OECD has a real legitimacy in the field of cyber security, in which it has already played a pioneering role. It started to work on digital security in the early 1990s and was the first international organization to adopt Guidelines for the security of information systems. In 1996 the OECD created the SPDE (Working Party on Security and Privacy in the Digital Economy) which has worked on several important issues including national digital security strategies, digital security and resilience in critical infrastructures and essential services, malware, cryptography policy, statistical measurement, etc. The dramatic increase in cyber-attacks and their global reach; their impressive cost that could reach, according to some estimates, $6 trillion by 2021; the fact that cyber-attacks have become, according to the most recent reports, the top “external risk factor” for business, indicate the OECD as an almost natural forum to promote standards of cyber-hygiene, cyber-resilience or cyber-diligence.

On the diplomatic front the negotiations could, perhaps, be less difficult than within the United Nations. Given its mission and nature, the OECD should not focus on sovereign issues such as self-defense or the law of armed conflict that crystallize opposition between States. The forum set up within the OECD could, on the other hand, focus on cyber security issues from a more economic and social angle, while closely cooperating with organisations working in other fields such as standards (ISO/IEC; IETF…), international security (UN, OSCE…) or the fight against cybercrime (Council of Europe, UNODC…). Its mission could be, thus, to promote responsible behavior for States and the private sector by developing good practices, codes of conduct, confidence-building measures, notification and cooperation protocols, but also by encouraging the emergence of legal instruments and control mechanisms.

Post Scriptum: 

By the time of publication of this blog we are happy to learn the official creation of the OECD “Global Forum on Digital Security for Prosperity”, founded very much on the basis of the proposal presented above and having as a first mission the organisation of events enabling all stakeholder communities to share on a regular basis good practices, experiences and views related to digital security. Among the priority items in the agenda of the Global Forum we can mention digital security governance, including public-private partnerships, as well as digital security in the Internet of Things (IoT) and digital security risk management in relation to artificial intelligence. The Global Forum will be operational soon.   

 

The IACtHR Advisory Opinion: one step forward or two steps back for LGBTI rights in Costa Rica?

EJIL:Talk! - Tue, 02/27/2018 - 09:00

On 9th January 2018, the IACtHR issued Advisory Opinion No. 24 on gender identity, equality and non-discrimination for same-sex couples, a ground-breaking decision for the advancement of LGBTI rights in the Americas. However, the adverse effect it had on the recent presidential elections in Costa Rica may jeopardise this achievement.

The Advisory Opinion was requested by Costa Rica in 2016. the IACtHR was called to clarify the interpretation and scope of several articles of the American Convention on Human Rights (ACHR) in relation to the following questions:

  1. Considering that gender identity is a protected category within the American Convention, does the state have an obligation to recognise and facilitate the change of name of individuals in accordance with their own gender identity?
  2. If so, is the judicial procedure for the change of name, instead of an administrative one, contrary to the American Convention?
  3. According to the American Convention, is the current Costa Rican judicial procedure for the change of name not applicable to individuals who wish to change their name based on their gender identity? Should they rather be given the possibility of resorting to a free, fast and accessible administrative procedure?
  4. Considering the duty not to discriminate on the basis sexual orientation, should the State recognize all patrimonial rights deriving from a same-sex relationship?
  5. If so, is it necessary for the State to establish a legal institution regulating the legal status of same-sex couples, and to recognise all patrimonial rights stemming from such relationships?

In response to the first three questions, the IACtHR recalled its jurisprudence on the matter (e.g. Atala Riffo and Daughters v Chile and Duque v Colombia) and strongly confirmed that sexual orientation and gender identity are protected categories under the American Convention. As such, any discriminatory treatment on this basis constitutes a breach of the ACHR. However, the IACtHR went further, considering gender identity as an integral and essential element of a person’s identity and linking its recognition by the State to the enjoyment of other fundamental rights, such as human dignity, self-determination, freedom from torture and freedom of expression (para 98). In light of this, the Court established that Costa Rica had a duty to recognise and facilitate the change of name according to gender identity in order to fully ensure that everyone, regardless of their sexual orientation or gender identity, enjoys the same dignified life (vida digna) (paras 100, 116).

As for questions 2 and 3, the IACtHR established that the aforementioned rights should be practically guaranteed by developing procedures for modifying registry entries of gender or sex, name and images that are based on a list of principles that significantly increase transgender rights and finally overcomes differences in domestic legislations. Indeed, these procedures should be: i) based on a self-perceived gender identity; ii) based on free and informed consent of the interested person without requiring medical or psychological certificates or other documents; iii) confidential, and amended documents should not report changes of gender identity; iv) expedient and, as far as possible, free of charge; v) not requiring the performance of surgical and/or hormonal treatments. Therefore, Costa Rica could maintain its current judicial procedure, although an administrative one would be preferred, provided its interpretation, in line with the conventionality control doctrine, is interpreted in conformity with the IACtHR’s opinion.  

Moving to question 4, the IACtHR held that the concept of family should be broadly defined and that a same-sex couple does constitute a family for the purposes of article 11 (right to private and family life). In doing so, it relied heavily on the established jurisprudence of the European Court of Human Rights (ECtHR) and the Yogyakarta principles, recognising that the social norms have always developed faster than domestic legislation (paras 177-178). The IACtHR then concluded that the family bond, which stems from a same-sex relationship, is protected under the American Convention and, therefore, it should be recognised and protected by the state parties so as to ensure the enjoyment of patrimonial rights without discrimination between homosexual and heterosexual couples (para 199).

The final part of the opinion, addressing question 5, is certainly the most controversial and innovative. It is the only section in which the Court was not unanimous (Judge Vio Grossi voted against and wrote a very detailed separate opinion). The question,  formulated in very general terms, was whether it was necessary to establish some kind of legal institution to recognise same-sex relationships and the deriving rights and duties. The IACtHR acknowledged the vagueness of the question and decided to take advantage of this to expand and advance LGBTI’s rights in the Americas. Recalling the case-law of the ECtHR and the domestic legislation of some countries in the region (with no reference to a regional consensus though), the IACtHR argued that member states have a duty to provide some kind of legal recognition to homosexual relationships. As established by the ECtHR in Karner v Austria, the options are different and include civil unions and other partnerships. However, in the case of Costa Rica, the Court observed that it would not be necessary to establish a new legal institution since civil marriage is already in place. What Costa Rica does need to do in order to comply with the ACHR, is to extend the existing institution of marriage to same-sex couples (para 218). In supporting this landmark statement, the IACtHR held that any argument in favour of the exclusivity of a heterosexual marriage (because of religious or philosophical beliefs or based on the alleged natural link between marriage and procreation) is not acceptable to justify different treatment between heterosexual and homosexual couples and that “there is no legitimate aim that could make this distinction necessary and proportionate under the Convention” (freely translated from Spanish throughout-para 220). Moreover, “the Court observes that often the opposition to same-sex marriage is based on religious or philosophical beliefs. While recognising the importance of these beliefs […], they cannot be used as parameters of conventionality and cannot guide the Court’s interpretation of human rights” (para 223). And even more strongly, the Court opined that: “establishing a legal institution that produces the same effects and grants the same rights as marriage but under a different name carries no purpose, except to socially mark and stigmatise same-sex couples, or at least convey that they are undervalued.” (para 224).

In a slightly milder final paragraph, the Court acknowledged that some countries may encounter difficulties in adapting their legislation to the ACHR as interpreted by the Court and allowing same-sex marriage. In light of this, the Court will allow member states to maintain temporarily, and in good faith, an exclusive heterosexual marriage with the condition that they grant to homosexual couples the same rights and duties of heterosexual married couples.

This Advisory Opinion is certainly a win for the LGBTI communities across the Americas, both for the strong protection of gender identity and for the opening to same-sex marriage. It is a natural follow-up of the US Supreme Court’s judgment of 2015 (see Marko Milanovic’s post here).

However, this leads to a clear situation of judicial fragmentation within IHRL. Although the IACtHR made extensive use of external references, especially to UN Human Rights Committee (HRC) and to the ECtHR, the conclusions of this ruling clearly divert from the position of the other two bodies, both in relation to transgender rights and to the right to marry for same-sex couples.

Requiring its member states to recognise a change of gender identity where the individual has not undergone hormonal or surgical therapy nor provided a medical certificate is a massive advancement for transgender rights and goes well beyond the existing case-law from other human rights bodies. Indeed, the ECtHR recognised in A.P. v France that making recognition of the sexual identity of a transgender conditional on undergoing an operation or sterilising treatment was against the Convention but considered that France was not in breach of the ECHR when ordering forced medical examination or mental health diagnosis. 

On same-sex marriage, perfectly in line with the HRC in Joslin v New Zealand, the ECtHR, in Schalk and Kopf v Austria (oddly repeatedly cited in the opinion), held that while same-sex couples should be legally recognised, there was no duty upon states to allow these couples to enter into marriage.  The ECtHR, indeed, found that there was no regional consensus on the matter and decided to grant a wide margin of appreciation to its member states. On the contrary, the IACtHR in this Advisory Opinion acknowledged the lack of a regional consensus (only Argentina, Brasil, Colombia, Uruguay and some Mexican states recognise homosexual marriages) but strongly stated that this should not constitute an obstacle to the advancement of human rights (219). Even more, in virtue of the conventionality control, all member states are now required to align their domestic legislation with the current interpretation of the ACHR provided by the Court, thus establishing a further layer of control over its member states.

This landmark ruling had an immediate effect on Costa Rica and its current presidential elections. On Sunday 4th February, Costa Rica held the first round of its presidential election with the unexpected exploit of Fabricio Alvarado, an evangelical preacher that centred his campaign on the defence of traditional family and the opposition to same-sex marriage following the Advisory Opinion. Fabricio Alvarado surprisingly led the first round with 24.8% of the vote, gaining more than 15 points in less than a month (in the polls made before the issuing of the Advisory Opinion in early January he was given between 3 and 9.5%). Alvarado was able to lure all the conservative and catholic voters by labelling the IACtHR’s decision a violation of Costa Rica’s sovereignty and threatening to withdraw from the Court’s jurisdiction in order not to comply with the opinion.

Considering how, apparently, the IACtHR contributed to boosting the conservative evangelical candidate, it is worth reflecting upon the possible adverse effects of supranational adjudication on domestic politics. If Fabricio Alvaredo wins the second round in April and stays true to his promise of opposing this Opinion and withdrawing from the Court’s jurisdiction, this could be an enormous step backwards for Costa Rica, for the IACtHR, and for the LGBTI community in the region. In light of this, it is legitimate to question whether this very proactive and confident approach of the IACtHR towards the advancement of human rights is really effective in practice, considering the high risk of political backlash. Possibly, the ECtHR’s approach, more cautious in establishing anything new and strongly relying on the regional consensus, may be more appropriate. However, it could be argued that if you lower the bar, there will always be someone who believes that bar is still too high. (see the separate opinion of Judge Pinto de Albuquerque in Hutchinson v UK)

A balanced attitude may be the best solution but it should be taken into consideration that the regional specificities play a huge role in influencing the behaviour of a court. In the meantime, it will be interesting to see what happens in Costa Rica on the 1st April and how the rest of the region reacts to this Advisory Opinion, with the hope that some countries will ultimately follow the recommendations of the Court.

The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights

EJIL:Talk! - Mon, 02/26/2018 - 14:00

The Inter-American Court’s Advisory Opinion on Environment and Human Rights, released on 7 February 2018 (in Spanish only) (for brevity “AO”), is the latest and potentially most significant decision in a series of high profile international judicial rulings which acknowledge legal consequences for environmental harm. As recently as 2 February 2018, the International Court of Justice in the conjoined Costa Rica v. Nicaragua / Nicaragua v. Costa Rica cases ordered Nicaragua to pay compensation to Costa Rica for environmental damage, its first ever order for such compensation. Earlier, the ITLOS issued a landmark provisional measures order in Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case 23), prescribing provisional measures protecting the marine environment, inter alia suspending all ongoing oil exploration and exploitation operations in a disputed area. To that list one could add the 2017 decision of an ICSID tribunal in Burlington Resources, Inc. v. Republic of Ecuador to award some US$39 million in damages in favour of Ecuador for environmental remediation costs.

The AO (summarized in EJIL: Talk! here) focuses on State obligations under international environmental law and human rights law in the transboundary context, in particular as concerns the construction and operation of infrastructure mega-projects, petroleum exploration and exploitation, maritime transportation of hydrocarbons, construction and enlargement of ports and shipping canals, and so on. 

The AO is ground-breaking in several respects. It is the IACtHR’s first pronouncement on State obligations concerning environmental protection under the ACHR (§ 46). Indeed, it is the first ruling ever by an international human rights court that truly examines environmental law as a systemic whole, as distinct from isolated examples of environmental harm analogous to private law nuisance claims (e.g. Lopez-Ostra v. Spain in the ECtHR). Perhaps most importantly, it is a landmark in the evolving jurisprudence on ‘diagonal’ human rights obligations, i.e. obligations capable of being invoked by individual or groups against States other than their own. The AO opens a door – albeit in a cautious and pragmatic way – to cross-border human rights claims arising from transboundary environmental impacts.

This post examines the wider significance of the AO for international law. It assesses its significance from three main angles, namely: (i) the nascent area of diagonal claims; (ii) climate change; and (iii) business and human rights.

The Advisory Opinion in its context

In March 2016, Colombia requested the IACtHR to opine on three related questions on the interpretation of the ACHR, namely (as a précis):

I. Should the term “jurisdiction” in Article 1(1), ACHR be interpreted so as to allow a State party (“State X”) to the ACHR be made the respondent to a claim by an individual living in another State (“State Y”) for violations of human rights recognized in the ACHR where those violations are caused by environmental harms emanating from State X, and in particular where the two states are parties to a treaty-based system of environmental protection, such as the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (“Cartagena Convention”)?

II. If so, would it be a breach of the ACHR for State X, by act or omission, to cause serious transboundary environmental damage that undermined the rights to life and personal integrity protected by Articles 4 and 5, ACHR?

III. In order to protect human rights in State Y, does the ACHR require State X to comply with the norms of international environmental law, and what does that entail?

The IACtHR’s response was broadly in the affirmative on all three questions, except that on (I) the IACtHR declined Colombia’s invitation to base the scope or extent of ACHR obligations on the presence or absence of an environmental treaty regime.

Colombia’s Request was directed at a pressing international issue. In today’s world of intensified economic development, we are indeed “living at a time when major infrastructure projects are frequently being built and brought into operation … with effects that may exceed State boundaries” (Request §9). Damage to the marine environment would be one example; others would include climate change, toxic air pollution, persistent organic pollutants and endocrine disruptors, mercury, and many more. Given the magnitude of transboundary effects and their consequences, it is clear that some human rights recognized in the major conventions will be de facto inoperable and meaningless unless the States that are the sources of these harms bear an international responsibility capable of being invoked under those conventions’ accountability mechanisms, such as Article 63, ACHR. This is the context for the evolving field of ‘diagonal’ human rights obligations. State practice to date has been limited and cautious, but scholarship and ‘soft’ law have sought to develop balanced and workable principles: key examples include the detailed reports by the U.N. independent expert and special rapporteur, Prof. John Knox (available here), and, in the context of the ICESCR, the 2011 Maastricht Principles (here).

At the same time, there was an inescapable political ‘edge’ to Colombia’s Request. It was made in a context where Nicaragua’s plans for major development projects (including a possible Chinese-funded trans-isthmus canal) had aroused widespread concerns about the likely effect on the vulnerable island-dwelling and coastal communities in the Caribbean region, and where Colombia – after withdrawing its consent to the ICJ’s compulsory jurisdiction following the ICJ’s 2012 judgment in Nicaragua v. Colombia – no longer has a right of recourse to the ICJ should its maritime provinces be harmed by the side-effects of such projects. The Request could be seen as Colombia opening up a new front in that political dispute. The IACtHR has deftly defused that aspect by concentrating on the issues of principle.

An indication that the Request transcended any particular bilateral dispute is the fact that a number of other States parties to the ACHR (Guatemala, Honduras, Bolivia) submitted observations to the IACtHR in support of affirmative answers to questions (I) – (III), and Argentina’s submissions, though more cautious and context-driven, still accepted the principle that ‘diagonal’ jurisdiction could be possible on concrete facts – not unlike the IACtHR’s eventual ruling.

The wider significance of the Advisory Opinion for international law

The door is open to diagonal environmental claims

The main significance of the AO is that it signals the possibility of ‘diagonal’ human rights claims in circumstances far broader than those which have been held admissible under the Inter-American system, or indeed any other system, to date.

Questions of extraterritorial human rights obligations and (concomitantly) ‘diagonal’ claims under human rights accountability mechanisms have become an increasingly acute problem in the international human rights system.

The problematique of ‘diagonal’ human rights obligations can be encapsulated in the clash between two propositions, each widely accepted. One is that a State should not be able to use national boundaries to escape responsibility for human rights violations which it actually committed: e.g., the U.N. Human Rights Committee has said, with reference to the ICCPR, that:

“[i]t would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory”.

On that principle, a direct causal relationship between State conduct and violations of human rights should be sufficient of itself to give rise to responsibility, and “jurisdiction”. The second, countervailing, proposition is that all the major international human rights treaties were conceived as applicable primarily between a State and its own citizens: each State is responsible to establish the conditions for a dignified human life to the individuals within its boundaries. This principle, or at least a strong version of it, would hold that States can only be responsible for ensuring the human rights of individuals who are within its borders or, at the outermost, within territory that State is administering for the time being.

Both propositions have some validity, but in real cases they quickly come into mutual conflict and one must give way to the other. The much-debated ECtHR case of Banković v. Belgium and others, Application no. 52207/9, is an example of the second proposition completely ousting the first. The ECtHR held that “jurisdiction” in Article 1 of the ECHR was to be given its “ordinary meaning”, said to be “primarily territorial” with limited exceptions recognized, such as flag state jurisdiction over ships (§§ 56-61). The Court noted that it had recognized another exception, viz. where a state had “effective control” over foreign territory, such as Turkey exercised in northern Cyprus (§§ 68-71, citing Loizidou v. Turkey). It rejected the applicants’ argument that “effective control” (and hence jurisdiction) could be founded simply on the basis that the State had caused the impugned act itself (§ 75). It also held that jurisdiction could not be “divided and tailored in accordance with the particular circumstances of the extra-territorial act in question” (§ 75), i.e. a State is either internationally responsible for fulfilling all of the ECHR rights in a particular territory, or it is not responsible at all.

In practice, however, neither the requirement for “effective control” over territory nor the indivisibility principle has been adhered to in subsequent ECtHR case law. In Pad v. Turkey, Application No. 60167/00, the ECtHR held that Turkey had had “jurisdiction” over the applicants’ relatives when they were killed by a Turkish helicopter inside Iran. In Al-Skeini v. United Kingdom, Application No. 55721/07, the ECtHR held that Iraqi men killed by UK armed forces in southeast Iraq, some in UK detention facilities and others killed by UK soldiers on street patrol, were all within the UK’s “jurisdiction” under Article 1, ECHR, notwithstanding that the UK was clearly not obliged to ensure all human rights to all people in Iraq. The ECtHR thus quietly and incrementally moved towards accepting the concept of jurisdiction based on the State’s assertion of authority, or “effective control”, over the individual victims rather than control of territory (without attempting to reconcile that with its holding in Banković).

In the Inter-American system, the Inter-American Commission (“IAComHR”) had already accepted a similar notion. The relatively few extraterritorial cases found to be admissible have involved direct exercises of violence by State agents outside a State’s borders – what might be termed the exercise of authority or “effective control” over specific individuals, but not over an entire territory – e.g. Coard v. United States, Report No. 109/99, Case 10.95, Alejandre and others v. Cuba, Report No. 86/99, Case 11.589 and Molina (Ecuador v. Colombia), Report No. 112/10, Inter-State Petition IP-02. In all those cases, applying the Banković reasoning would have required dismissal of the petition. In Molina, the IAComHR overtly distanced itself from the logic in Banković by holding that what was required was only “the exercise of authority over persons by agents of a State”, and that a “formal, structured and prolonged legal relation in terms of time” was not needed in order for a State to be responsible for the acts of its agents abroad.

In this context, one of the most interesting features of the AO is the Court’s handling of the concept of “effective control”. In summing up its answer to Colombia’s question (I), the IACtHR held (§ 104(h)) that:

“As regards transboundary harms, a person is under the jurisdiction of the State of origin if there is a causal relationship between the event that occurred in its territory and the affectation of the human rights of persons outside its territory. The exercise of jurisdiction arises when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights.”

It will be seen that, as compared to the ECtHR case law (Loizidou, Banković, Al-Skeini), and even compared to the IAComHR in Molina, a subtle but important shift has occurred: in the AO, as concerns transboundary environmental harms, “effective control” is no longer something which has to be exercised over the territory where the victim was, nor even over the individual victim herself. Rather, what matters is whether the source state has effective control over the activities that caused the transboundary harm. This is significant, because the types of transboundary harm at which Colombia’s Request was directed, and which it can be foreseen are sadly likely to occur with severe impacts on vulnerable people, are types of activity over which States do exercise effective control. It is hard to see how any State which decided, for example, to build a trans-isthmus canal, or license drilling in an offshore oil field, or indeed authorize any infrastructure mega-project with environmental impacts, could credibly claim that such activities were outside its effective control. It follows that the IACtHR’s ruling permits cross-border human rights claims in respect of transboundary ecological damage to be pursued before the IAComHR and (subject to the procedural requirements in the ACHR) before the Court itself.

The IACtHR was nonetheless careful to emphasize in the AO that extraterritorial obligations are exceptional and should be restrictively construed (§§ 81, 104(d)).

Climate change

The AO does not address climate change, but some of the Court’s observations on States’ duties (see especially § 242) are clearly pertinent to this ultimate example of transboundary pollution. Moreover, the Court’s reasoning on the “jurisdiction” issue could be used to support an argument that a State’s contribution to the accumulation of greenhouse gases in the atmosphere should result in State responsibility and accountability under the ACHR to victims living in other States, e.g. persons whose lands have become submerged or uncultivable due to rising sea levels. Any such claim would of course be politically controversial, and would also face formidable obstacles regarding proof of causation. Arguably, it might also be preempted by the access to national remedies, especially if tort lawsuits based on climate change prove to be viable (the world is of course watching Lluiya v. RWE in the German courts for a signal), or by the existence of alternative mechanisms for compensating the victims’ State, such as the Warsaw International Mechanism under the UNFCCC. Nonetheless, it is striking that the IACtHR’s ruling is that States can (depending on the precise circumstances and a sufficient causal link) be accountable for the emission of pollutants from activities in their territory which cause transboundary ecological harm. Whereas in 2005, the IAComHR decided against accepting a petition by Inuit peoples that climate change was violating their ACHR rights, in the light of the AO, the arguments of the Inuit (and other vulnerable groups for whom climate change has become an existential threat to their lands, livelihoods and cultures) benefit from an enhanced weight of principle and authority.

The Business and Human Rights debate

The AO also helps to draw attention to an under-emphasized aspect of current debates about regulating multinational corporations to protect human rights. These debates have tended to focus on (1) the responsibility of States to protect persons within their own territory (Principle 1 of the 2011 UN Guiding Principles on Business and Human Rights), and (2) the question whether States can, should, or must regulate extraterritorially to control what corporations domiciled in their territory do overseas. The latter issue is referred to in Principle 2, with the current lex lata apparently being that States can but need not so regulate: moves in the U.N. Human Rights Council since 2014 to elaborate a binding treaty has so far only won support in the global South, which portends continuing statemate. In this situation, we should not lose sight of a third dimension, which does not feature prominently in the UN Guiding Principles: whether under existing international legal instruments such as human rights treaties, States may already be obliged to regulate domestically with a view to controlling overseas impacts? This is likely to be especially necessary in cases where the impacted State is not realistically able to block the adverse transboundary effects of the activity, either through lack of capacity or because the inherent nature of the consequences flowing from the activities makes it impracticable. In the latter category could be included cases of environmental harm, such as cross-border pollution, accidents involving hazardous substances, and unsustainable fishing; but also non-environmental harms such as (potentially) deaths in one State that are traceable to another State’s toleration of the activities of extremist groups or of terrorist financing.

The AO draws attention to this third dimension, and hopefully may help to give it the emphasis which it deserves in Business and Human Rights debates. Under existing international law, it is at least arguable that a State may be obliged to regulate domestically in order to require multinationals domiciled in its territory to adopt, at the headquarters level, policies and frameworks aimed at ensuring that subsidiaries, subcontractors or supply chain partners in the global South do not infringe human rights in their places of operation. The reasoning in the AO would be supportive of such arguments, at a general level – with the caveat that the IACtHR has succeeded in drawing a careful balance between recognizing the fundamental nature of the right to a healthy environment as a necessary condition for enjoyment of human rights generally, and continuing to treat extraterritorial obligations and claims as “exceptional” (whatever exactly that may mean). The door to new scenarios for human rights claims is open but – one could say – ‘diagonally’.

Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights

EJIL:Talk! - Mon, 02/26/2018 - 08:00

On 7 February 2018, the Inter-American Court of Human Rights (the Court, IACtHR) issued the much awaited advisory opinion (A/O) concerning the obligations of States Parties to the American Convention on Human Rights (American Convention, ACHR) in respect of infrastructural works creating a risk of significant environmental damage to the marine environment of the Wider Caribbean Region.

This entry sets out the main findings of the Court, including its approach to the extraterritorial application of the American Convention. With the text of the A/O currently available in Spanish only (here), this post seeks to provide an annotated summary of the A/O to EJIL:Talk!’s readership in the English speaking international law world.

The reformulated scope of the advisory opinion

Colombia, the requesting state, asked for the A/O to be limited to the jurisdictional area established by the 1984 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention).

Colombia’s original, complex and prolix request originally read as follows:

“I. In accordance with Article 1.1 of the [American Convention], should it be considered that a person, although not located within the territory of a State party, is subject to its jurisdiction where the following four conditions are cumulatively met?

1) the person is present or resides in an area defined and protected by a conventional regime for the protection of the environment to which the relevant State is a party; 2) that the said regime establishes an area of functional jurisdiction, for example, as envisaged in the [Cartagena Convention]; 3) that in the said jurisdictional area the States parties have the obligation to prevent, reduce and control pollution through a series of general and/or specific obligations; 4) that as a result of the environmental damage or risk of environmental damage in the area protected by the relevant treaty, which is attributable to the State who is party to both that treaty and to the [American Convention], the human rights of the affected person had been breached or are in risk being breached.

II. Are measures and conduct that through action or omission by a State party have effects which are capable of causing grave damage to the marine environment, compatible with the obligations enshrined in articles 4.1 and 5.1, read in light of article 1.1 of the [American Convention], or any other provision therein in light of the fact that the environment is a framework and an indispensable source for the livelihood of the inhabitants of the coasts and/or islands of the other State party?

III. Should we interpret, and if yes to what extent, that the obligations to respect and ensure human rights and liberties set out in article 4.1 and 5.1 of the [American Convention], provide for an obligation on State parties to respect international environmental norms that seek  to prevent environmental damage capable of limiting or impairing the effective enjoyment of the right to life and physical integrity, and that one of the ways to comply with the said obligation is through an environmental impact assessment in an area protected under international law, and through cooperation with the affected states? If applicable, which general parameters should be considered in carrying out environmental impact assessments in the Wider Caribbean Region?”

However, the Court exercised its discretion to reformulate the advisory requests and decided that the opinion would cover the “general environmental obligations arising out of the obligations to respect and ensure human rights” (para. 35), and in relation to the rights to life and personal integrity in particular (para. 38).

The protection of the environment and the American Convention

The Court reaffirmed (paras. 47, 54, 55, 57) the principle of human rights interdependence and indivisibility (see Lagos del Campo para. 141, where it used the principle to adjudicate on socio-economic rights). In this case the Court used interdependence to construe an inter-American environmental legal framework. The Court affirmed the existence of a “right to live in a healthy environment” as a guarantee with protracted individual and collective dimensions. As to the conventional legal basis of this right, the Court stated that it not only had a basis in the San Salvador Protocol on Economic, Social and Cultural Rights, but also in Article 26 of the American Convention (para. 57), entitled “Progressive development”. Accordingly, the right to a healthy environment was defined as an “autonomous right” under the American Convention, different from the environmental implications of other rights. Concretely, the Court stated this right to have connections and implications for the rights to life, personal integrity, privacy, health, water, housing, cultural participation, property, the prohibition not to be forcibly displaced, etc. (para. 66).

As underlined by judges Vio Grossi and Sierra Porto in their concurring opinions, what paragraph 57 entails is that the right to a healthy environment “shall also be considered as included within the economic, social and cultural rights protected by Article 26 of the American Convention”. The consequence of this, following the Court’s ground-breaking (and perhaps controversial) decision in Lagos del Campo v. Peru of August 2017, is that these rights are directly “justiciable” and fall under the American Convention-based contentious jurisdiction of the San Jose tribunal.

First question: the extraterritorial application of the American Convention (Article 1.1 ACHR)

The Court reformulated Colombia’s first question as follows:

“In accordance with article 1.1. of the [American Convention] and in assessing compliance with the State’s environmental obligations, should it be considered that an individual, although not within the territory of a State party, may be subject to the jurisdiction of that State?” (para. 37).

According to Article 1 (1) of the American Convention:

“The States Parties to this Convention undertake to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination [….].”

The Court held that a person may be subject to a State’s jurisdiction under article 1.1 ACHR even if not physically in that State’s territory. It proceeded to construe the term “jurisdiction” for the first time in its case law. The Court held that an individual may be under a State’s jurisdiction if that individual is in its territory or is in any way under its authority, responsibility or control (para. 73). It stated that an individual may be exceptionally under a State’s jurisdiction on an extraterritorial basis (para. 75-78, 81). It then proceeded to provide a fairly accurate account of the European Court of Human Rights, the Human Rights Committee on the subject, and the few cases decided by the Inter-American Commission on that basis (para. 79, 80). The Court noted however, that the cases cited did not correspond to events of a similar nature to those that would arise vis-à-vis environmental obligations under the ACHR.

In that sense, the Court seems to have adopted an enhanced personal model of jurisdiction, one where transboundary effects appear to be enough to put individuals under a State’s jurisdiction on an extraterritorial basis, at least when it comes to environmental obligations under the ACHR:

“The Inter-American Court considers that an individual is under a State’s jurisdiction, in respect of conduct undertaken outside the territory of the said State (extraterritorial conduct) or with effects outside its territory, if that State is exercising its authority over that person or when that person is under its effective control […]” (para. 81).

States’ obligations under special environmental regimes

Perhaps sensing the potentially overbroad consequences of its construction of ‘jurisdiction’ — or perhaps because of that — the Court went on to comment on States’ obligations under special environmental regimes.

The Court recalled that the Cartagena Convention, as part of UNEP’s initiative to tackle the accelerated degradation of the oceans through regional treaties, establishes a special regime for the prevention, reduction and control of marine pollution within its jurisdictional area.

The Court made clear that “the exercise of jurisdiction by a State under the American Convention does not depend on the relevant conduct being performed in a delimited geographic area.” What is relevant is that the “State is exercising authority over the person” or that “the person is within the effective control of that State”. Thus, the fact that the environmental obligations in those areas are conducive to the protection of human rights is not necessarily tantamount to the exercise of jurisdiction under the American Convention (paras. 89-94).

Here the Court correctly distinguishes between the relevant primary norms at stake and the question of the extraterritorial application of the American Convention as governed by Article 1.1. Its subsequent approach however raises room for concern.

States’ obligations to prevent transboundary environmental damage

By drawing from decisions of the ICJ, the Court recognised the obligation on American States not to allow their territory to be used against the rights of third States, as well as to use all available means to prevent activities taking place in their territory or in any area under their jurisdiction causing significant environmental damage against third States.

The following paragraphs detail the Court’s position on the extraterritorial application of the American Convention in cases of environmental damage:

“The obligation to respect and ensure human rights requires States to abstain from impeding or rendering more difficult the compliance of the obligations of the Convention by other State parties. The activities undertaken in the jurisdiction of one State party shall not deprive other States of their capacity to ensure that persons under their jurisdiction enjoy their rights under the Convention. The Court considers that States have an obligation to avoid transboundary environmental damage that may affect the human rights of persons outside their territory. For the purposes of the American Convention, it is understood that the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of person outside its territory” (Emphasis added) (para. 101).

“The exercise of jurisdiction by a State of origin in relation to transboundary damage is based on the understanding that it is the State in whose territory or in whose jurisdiction these activities are undertaken, who has effective control over them and is in a position to prevent the causation of transboundary damage that may affect the enjoyment of human rights of individuals outside its territory. The potential victims of the negative consequences of these activities should be deemed to be within the jurisdiction of state of origin for the purposes of any potential state responsibilities for failure to prevent transboundary damage. In any case, not every injury activates this responsibility” (para 102).

There are two main propositions at play here:

First, that the obligations to respect and ensure human rights require States to abstain from impeding or rendering more difficult other States’ compliance with the obligations of the Convention. Notwithstanding the general scope of this proposition, its legal basis, as discerned from footnote 194, are the Committee on Economic, Social and Cultural Rights’ General Comments 14 and 15.

Second, that for the purposes of the American Convention, the person whose rights have been breached fall within the jurisdiction of the State of origin if there is a causal link between the facts occurring in its territory and the violation of the human rights of persons outside its territory.

This is confusing. Although the conditions for the extraterritorial application of the Convention were said to be exceptional, the Court effectively conflates the extraterritoriality threshold with the obligation to prevent transboundary damage. In other words, by relying solely on the obligation to prevent transboundary damage (now part of the Convention’s portfolio), the Court rendered the extraterritorial threshold nugatory in practice. Pursuant to paragraph 101 above, the question remains whether the same is applicable regarding the positive obligation to ensure.

Paragraph 103 adds to the existing complexities by declaring a sine delicto regime in the American Convention when human rights are affected by significant environmental transboundary damage. It reads:

“Therefore, it is possible to conclude that the obligation to prevent environmental transboundary damage is an obligation recognized by international environmental law, by virtue of which States can be held responsible for significant damage caused to persons located outside their territory as a result of activities originating in their territory or under their authority or effective control. It is important to highlight that this obligation does not depend on the lawful or unlawful character of the conduct causing the damage. This is because States are obliged to repair promptly, adequately and effectively, transboundary damage resulting from activities undertaken in their territory or under their jurisdiction. This obligation is independent from the question of whether the activity in question is prohibited or not under international law. In any case, there must always be a causal link between the damage caused and the act or omission of the State of origin in respect of activities within its territory or under its jurisdiction or control”.

The introduction of this new regime in the American Convention is done by reference to the ILC Articles on the prevention of transboundary damage resulting from hazardous activities, and paragraphs 181 to 184 of ITLOS’ A/O on the “Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area”. Strikingly, neither text provides legal authority for the Court’s invention. In particular, paragraph 181 in ITLOS’ A/O makes it clear that in:

“order for the sponsoring State’s liability to arise, it is necessary to establish that there is damage and that the damage was a result of the sponsoring State’s failure to carry out its responsibilities”.

Second and third questions: Obligations deriving from the duties to respect and ensure the rights to life and the personal integrity in the context of the protection of the environment

With reference to the negative obligation to respect human rights, the Court affirmed that States shall abstain from (i) any activity that denies or restricts access to a decent life; and (ii) the illegal pollution of the environment in a manner that affects the conditions allowing for a decent life. As to the positive obligations, they arise when (i) the State authorities knew or should have known that there is a real or imminent risk against the life of a determined group of people, and measures reasonably available were not undertaken to prevent or tackle the risk; and (ii) there is a causal link between the violation and the significant damage caused to the environment (para. 120).

Although a more detailed section, the mere reaffirmation of a causal link as the relevant criterion for the extraterritorial application of the American Convention comes without much needed clarification.

Specific obligations in relation to potential environmental damage in order to respect and ensure the rights to life and personal integrity

Vis-a-vis Colombia’s question on the specific obligations arising out of the respect and guarantee of the rights to life and personal integrity, the Court stated it would instead address the following general obligations (para. 126).

The obligation to prevent transboundary environmental damage

The Court declared the customary nature of the obligation to prevent transboundary environmental damage (para. 129). The Court then clarified that this principle imposes obligations that are similar to the general obligation to prevent violations of human rights and is not restricted to inter-State relations (para. 133). The Court did not however, provide any reasoning on a state practice and opinio juris basis.

The precautionary principle

With reference to the Rio Declaration, the Court defined the precautionary principle as one requiring measures to be adopted in cases where there is no scientific certainty as to the environmental impact of an activity (paras. 180-181).

Obligation to cooperate

The Court affirmed the customary character of the obligation to cooperate (para. 184) and recalled that as per the ICJ’s jurisprudence, this obligation is indispensable for the protection of the environment. The obligation includes the specific duties on previous and timely notification, together with consultation and negotiation in good faith with potentially affected States (paras. 186-205).

Procedural obligations to ensure the rights to life and personal integrity in the context of the protection of the environment

The Court characterised these procedural obligations as deriving from the human rights of: access to information (paras. 213-225); public participation (paras. 226-232); and access to justice (paras. 233-240), all in connection with the general obligation of States to protect the environment.

In conclusion, the Court’s first approach to “jurisdiction” in Article 1.1 of the American Convention, although timely, requires further elucidation. Currently, the question remains whether the exceptional criteria of extraterritorial application recognized at 73 to 81 of the A/O govern the application of the negative obligation to prevent transboundary damage, now part of Article 26 of the American Convention, or whether the extraterritoriality threshold has in fact been collated with the human rights obligation to prevent transboundary damage. Importantly, subsequent case-law, including the one concerning the requesting State, would offer further guidance on the concrete content and scope of this very pertinent A/O.

Announcements: Postgraduate Colloquium in Critical International Law; International Law Programme at Chatham House Event

EJIL:Talk! - Sun, 02/25/2018 - 10:00

Postgraduate Colloquium in Critical International Law. The Centre for the Study of Colonialism, Empire and International Law at SOAS University of London and Durham Law School’s Law and Global Justice research centre are delighted to launch the Postgraduate Colloquium in Critical International Law to be held at SOAS in London on 20 September 2018. The colloquium will focus on postgraduate research in international law that takes a critical approach (broadly understood). The organisers are keen to hear from junior scholars taking an innovative or in some sense alternative approach to the study of international law. Relevant approaches might include, for example: feminism/gender studies, queer theory, critical race theory, Marxism, TWAIL/(post-)colonial approaches, international legal history/history and international law, psychoanalysis, structuralism and post-structuralism, post-modernism, law and literature, law and art, realism, law and science, and/or empirical approaches. The full call for papers can be found here. The deadline for receipt of applications is 15 April 2018.

International Law Programme at Chatham House Event. The International Law Programme at Chatham House will be hosting a meeting on ‘Strategic Litigation for Social Justice: Lessons Learned’ on 14 March 2018. For further details and to enquire about registering, see here. 

Copenhagen: Keeping on Keeping on. A Reply to Mikael Rask Madsen and Jonas Christoffersen on the Draft Copenhagen Declaration

EJIL:Talk! - Sat, 02/24/2018 - 10:30

The debate about the future of the European human rights system is absolutely vital, and with that in mind we venture here to reply to just some of the points made by Mikael Rask Madsen and Jonas Christoffersen in their post about the draft Copenhagen declaration.

Commenting on the position paper recently published by the European Court of Human Rights itself, Madsen and Christoffersen detect a ‘strikingly different tenor’ compared with our comments and those of other academics. However, the Court’s reticent tone is only what one would expect from an international judicial institution, in commenting on draft proposals by a member state of an inter-governmental institution such as the Council of Europe. We would observe that the Court’s apparent cautiousness should not be mistaken for consent to the proposals in the declaration. Indeed, we understand that the draft declaration has caused no little concern within the Council of Europe. We also understand that a number of states have already expressed their serious reservations about the way in which the draft declaration downplays the Court’s oversight, queries its independent judicial role, pronounces on how the Court should interpret and apply the Convention, and questions the principle of the universality of human rights. Closer to home, the Danish Helsinki Committee for Human Rights has called for its ‘complete revision’.

Subsidiarity

It is suggested by Madsen and Christoffersen that the declaration is simply codifying recent developments relating to subsidiarity, and they identify ‘an increased demand’ for subsidiarity since the Brighton Declaration. However, in its paper the Court underlines that the concept of subsidiarity is nothing new, and that it is context-dependent – a matter for the Court to assess in each case. The Court acknowledges the many cases in recent years where it has been unnecessary to intervene, because there has been effective respect for the protection of human rights at the domestic level, but adds (paragraph 14) that,

such cases must be contrasted, however, with the many others in which it is clear that such progress is simply absent, and that reveal instead a failure to engage effectively not only with the reform process, but with the Convention itself.

As the Danish Helsinki Committee for Human Rights has rightly argued

The ECtHR is not and must not become a battleground for member states’ national interests […] the Court is not in need of political admonitions about subsidiarity, but of adequate funding and clear political support for its mission from all member states.

Most contentious amongst the points made by Madsen and Christoffersen is the suggestion that international courts need to be ‘continuously re-legitimated’, which is posited as the basis for ‘increased political dialogue’. Dialogue, of course, yes, in general terms, but this cannot justify political pressure being exerted on the Court by states (who, let’s not forget, are the defendants in the ‘Strasbourg dock’) either in relation to particular decisions, or vis-à-vis certain lines of its jurisprudence of which some states may disapprove. Some of the proposals made by academics at the Kokkedal conference in November 2017 would, in our view, inevitably lead to states seeking to re-argue the merits of cases which had already been lost before the Court.

Conflict cases

There is no doubt, of course, that the Court’s caseload (currently at about 57,000) remains too high and needs to be addressed. However, that cannot justify arbitrarily selecting a particular group of cases, such as those arising from armed conflict, for exclusion (as the Draft Copenhagen Declaration does at paragraph 54.b). Madsen and Christoffersen observe that ‘at no point does the Declaration suggest that such cases will be scrapped’, but how else can its proposal that such cases be dealt  with by “separate mechanisms or other means” be interpreted except as a suggestion that individuals and states will no longer be able to take these cases to the Court? The exclusion of conflict cases is cited as an example of a reform which is ‘most likely to achieve concrete benefits’. But on what basis? Madsen and Christoffersen acknowledge that ‘the preliminary work has not yet been done’ – therefore, they still provide no justification whatsoever for focusing on such cases, beyond a reference to ‘many unreasonably old cases stemming from inter-state conflicts’ remaining on the Court’s docket. Can that be a responsible basis for suggesting the inclusion of such a drastic provision in an inter-state declaration, which could potentially mean the denial of access to justice for many thousands of particularly vulnerable people? By way of example, at EHRAC and GYLA we are litigating a series of cases arising from the 2008 South Ossetia conflict between Georgia and Russia, on behalf of individuals expelled from their villages and the relatives of people killed. Those cases were lodged almost ten years ago, and have not yet been communicated by the Court. Such delays (for which the applicants are in no way responsible) are highly regrettable, but, if asked, those applicants would strenuously resist any suggestion that they should not be able to seek justice at all from the European Court.

It is reassuring that Madsen and Christoffersen suggest that the proposal on conflict cases is about ‘rethinking how justice can better be served’ for such applicants, but there is nothing to that effect in the draft declaration, and we consider that it is naïve to assume that a better system of justice will somehow emerge.

Funding

Finally, to return to the critical question of funding, given the continuing caseload burden on the Court, and the recent withdrawals or reductions of contributions by Russia and Turkey, it is important that its strong call for additional financial resources is heeded. We recall that the Court made a request for a temporary extraordinary budget of 30 million euros over eight years starting in 2015, to deal with the so-called “Brighton backlog” of cases. This shows that the Court has developed workable plans to eliminate the Brighton backlog while dealing expeditiously with new applications. Therefore, it is up to states to ensure that it is properly resourced to do so. 

It does seem apparent that the draft declaration will be significantly revised, which Madsen and Christoffersen themselves appear to acknowledge towards the end of their blog. Is there a possibility that the Danish government has sought to ‘fly various kites’, with the intention of appearing to fall back, in the face of opposition, to certain proposals, which were actually their intended objectives in the first place? As outsiders to the negotiations we cannot know, but continued vigilance and close scrutiny is certainly needed, since we are debating the very future of human rights in Europe.

The European Court of Human Rights’ View of the Draft Copenhagen Declaration

EJIL:Talk! - Fri, 02/23/2018 - 09:00

The draft Copenhagen Declaration has already triggered some debate at this blog. So far the tone has been highly critical. Donald and Leach denounce the Declaration as essentially a tool for institutionalizing undue political pressure on the European Court of Human Rights (ECtHR) that risks jeopardizing the Court – even European human rights at large. Geir and Føllesdal follow suit and declare that the Declaration‘s mantra of dialogue and shared responsibility is a thinly concealed attempt at weakening the court and empowering states.

The Court itself has now published its own Opinion on the draft Declaration and it has a strikingly different tenor than that of the cited academics. That difference, we will argue, is not simply the effect of different institutional roles, but also of a different appreciation of the problems facing the ECtHR in terms of case-load and the need for an enhanced and more structured dialogue between the major stakeholders in the system in order to safeguard the Court’s institutional authority.

In fact, the Court and its President, Guido Raimondi, have very openly recognized that the Court faces two fundamental challenges. In a speech in Nijmegen on 18 November, 2016, he noted that, first, ”the very high number of cases” was ”a cause of great concern to the Court”, but that it faced another fundamental challenge:

“The second challenge is of a different nature. It is essentially a political one. The challenge is to the very idea of the Convention system. It questions the authority, and even the legitimacy of the European Court of Human Rights.”

The draft Copenhagen Declaration is an attempt at addressing precisely these two fundamental challenges: caseload and authority.

So what does the ECtHR state about the draft Declaration in its opinion? Generally the Court welcomes a whole set of initiatives presented in the draft Declaration, notably on interpretation and increased participation in proceedings (paras. 27-28), selection and election of judges (29-31) and execution of judgments (32-34), noting however with regard to the latter, that it would appreciate a stronger wording. The Court is perhaps particularly welcoming towards the draft Declaration sections on the caseload problems facing the court. We cite here paras. 20, 22 and 24-26 of the Court’s opinion, which refer to paras. 43-54 of the draft Copenhagen Declaration:

“20.  The Court appreciates in particular the explicit acceptance and encouragement of the use of summary procedures to deal with straightforward applications. It welcomes the clear support that is given to the strategies applied so as to focus resources on the cases of most importance and those with the most impact, and to increase the institution’s capacity to process and decide applications.

22. The Court also appreciates the text’s general encouragement to explore all avenues to bring down the caseload. Building on the measures referred to in the previous paragraph, it will continue to seek ways to work more efficiently, and counts on the active co-operation of all its interlocutors.

24.  The Court is prepared to examine the suggestion made in paragraph 50 concerning repetitive applications in the context of non-executed pilot judgments.

25.  Regarding paragraph 54(a), the Court is receptive to the idea of consultation by the Committee of Ministers on the subject of increased use of friendly settlements and unilateral declarations as an avenue to reduce the backlog of cases.

26.  Concerning paragraph 54(b), raising ideas relating to inter-State disputes and individual applications arising out of situations of State conflict, the Court considers it important to acknowledge in the declaration the challenges posed to the Convention system by such situations in Europe. While noting the mention in the draft of “separate mechanisms” for dealing with such cases, the Court considers that clarification of this idea is required before it can be analysed.”

As it appears, there is a general alignment between the Declaration and the Court’s own plans in this regard. The Court’s comment in para. 26, calling for more preliminary work, should be emphasized. The blog statement by Donald and Leach, and the corresponding opinion in the joint statement by a series of NGOs, with respect to the same paragraph of the draft Declaration is in our view downplaying or even disregarding the real issue here — namely, disagreggating the backlog of cases to identify areas where additional reforms are most likely to achieve concrete benefits. For example, the ECtHR’s docket contains many unreasonably old cases stemming from inter-state conflicts. At no point does the Declaration suggest that such cases will be scrapped – as insinuated by Donald and Leach – but rather it calls for rethinking how justice can better be served in those difficult circumstances. The preliminary work has not yet been done, but it is necessary, nonetheless, to put the question on the agenda and begin serious thinking of how these applications can be handled in order to provide justice to victims who have been waiting for review of their complaints for years.

Another particularly contentious point in the current debate over European human rights is subsidiarity, which for better or worse has become linked to questions related to the authority of the Court. Although subsidiarity is implicit in the institutional set-up of the Convention system, there has been increased demand for subsidiarity since the Brighton Declaration. This has materialized in several judgments from the Court. The Court’s case law on the matter dates back to the late 1960s but it took a significant turn towards subsidiarity around 2003 which has continued ever since. We also find new approaches to judicial review being promoted in the writings of individual judges.

The draft Declaration can be said to attempt to codify some of these developments, which the Court itself notes (para. 13 and 14). But contrary to the accounts published on this blog, the Court does not see a sharp contrast between the concepts of effectiveness and shared responsibility. Instead, it repeatedly emphasizes instead that shared responsibility and subsidiarity are linked – fundamentally – to effective implementation of the Convention (para. 13 and 14). This is in our view unsurprising; indeed, it would be surprising if the Declaration were somehow attempting to deviate from this basic idea. But the on-going negotiations should make sure that this correlation is hammered out in the final text as it is apparently not widely appreciated.

The most controversial issue, if assessed by the writings on this blog, is linked to dialogue and increased participation of member states. We agree with the critics that there is too much emphasis on the member states in the Declaration and this has to be balanced with the role of other parties. If the goal is to secure the wider authority of the Court, it is fundamental that all the Court’s constituencies have opportunities for input and consultation, including NGOs, civil society groups, and National Human Rights Institutions.

The Court’s comments in this regard are limited to dialogue related to court proceedings broadly speaking. It welcomes general dialogue between courts, increased participation in cases, including better coordination among member states, third parties, etc. (paras. 15-17). But it refrains from commenting on suggestions made for more political dialogue on European human rights, as it consider these questions outside its institutional scope (para. 18). It does however emphasize that such debate should respect the independence of the court (para 18) and the binding character of the Court’s judgments. The Declaration seems in line with this (Declaration para. 41).

We know from participating in some of the high-level seminars held in preparation of the Declaration that the suggestion for increased political dialogue originates in an attempt at opening other channels for communications in addition to litigation before the Court. It further stems from observations made by academics that international courts need to be continuously re-legitimated – particularly an issue for long-existing international courts such as the ECtHR. The fundamental question raised by the Declaration is how such communication is operationalized. In a classic democratic system, dialogue and debate would naturally take place in the Parliament, which in the Strasbourg scenario would imply the Parliamentary Assembly. There is seemingly not support for that solution. An alternative is to host meetings at the Committee of Ministers, but that adds yet another role to Committee, and one that sits oddly with its existing role in terms of execution of judgments. The Declaration therefore suggests a third way (para. 42), namely a series of special seminars held annually and sponsored by the Danish Chairmanship.

It is of course difficult to object to the general idea of political debate, including about human rights. Without question, the dialogue sketched in the draft Declaration should fully respect the Court’s independence and authority. We therefore strongly suggest that the language in para. 42 that refers only to State Parties needs to be broadened and include other relevant stakeholders as mentioned above.

In sum, the draft Copenhagen Declaration addresses important and fundamental issues for the long-term functioning of the ECtHR. We do however agree with our colleagues that the wording is at times inaccurate and even counterproductive to the broader aims: there is, for example, no argument for singling out immigrants and asylum seekers other than satisfying Danish domestic politics; the reference to “constitutional traditions” and “national circumstances” in the context of subsidiarity seems unnecessary and potentially risky; we also would like to see some more “balances” to the many proposed “checks” on the Court; and, in this context, a clear restatement of the Court’s fundamental independence and final call on when subsidiarity is warranted.

Our bet is, however, that all of this is very likely to be repaired in the now on-going negotiations. The risk is, therefore, that we lose sight of the fundamental and important objectives of the Declaration, and the real underlying problems it addresses, by focusing only on these matters. This also seems to have been the approach taken by the Court in its Opinion.

Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

EJIL:Talk! - Thu, 02/22/2018 - 14:00

There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

This passage from Snyder’s essay ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine 1939-91’ challenges the ‘official’ truth of the two countries and, in light of recent legislative changes, can be considered ‘illegal’ both in Poland and Ukraine. (See: Timothy Snyder, ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine 1939-1991’ in Jan-Werner Muller (ed.), Memory and Power in Post-War Europe: Studies in the Presence of the Past (Cambridge University Press, 2002), 39-58, 41-42).

What does the law say?

Ukraine

In April 2015, as a part of the so-called decommunisation package, Ukraine adopted the Law On the Legal Status and Honoring the Memory of Fighters for Ukrainian’s Independence in the Twentieth Century (the Law on fighters). This law is a development in the extremely controversial Ukrainian historical initiative to glorify the OUN, which dates back to the Yushchenko’s presidency (2005-10). In 2010, President Yushchenko awarded Stepan Bandera, a leader of the OUN, the title of ‘National Hero of Ukraine’. This decision polarized the Ukrainian society as Bandera has always been a divisive figure: a hero in the West and Kiev, a Nazi criminal everywhere else east of the Dnieper. Bandera’s glorification was not supported in Europe and ‘deeply deplored’ by the European Parliament.

There were several attempts to challenge the constitutionality of the President’s decree. The Verkhovna Rada of the Crimea Autonomous Republic appealed to the Constitutional Court of Ukraine arguing that this decision violates Ukrainian legislation (Law ‘On the State Awards of Ukraine’) as a title of ‘National Hero of Ukraine’ should be granted only to a person with Ukrainian citizenship. Bandera, due to obvious historical reasons, had never been a citizen of Ukraine. The Constitutional Court of Ukraine refused to consider thw claim and found it inadmissible. Interestingly, the President’s decree was declared illegal by the District Administrative Court of the Donetsk region.

The proponents of the Law on fighters present it as a matter of national security: for Ukraine, which suffers from Russia’s aggression, it is important to forge national identity based on glorification of the past. The Law portrays those who fought for Ukraine’s independence as heroes, never perpetrators. To erase from collective memory unwholesome moments when the national heroes were involved in crimes against civilians, the state holds responsible those who ‘publicly display a disrespectful attitude’ toward the fighters and ‘publicly deny the legitimacy of the struggle for Ukraine’s independence’. It should be noted that the Law does not determine the liability measures to be used. Instead it states:

Ukrainian nationals, foreigners and stateless persons who publicly express disrespect for … [fighters for independence. – A.Ch.]… bear liability in accordance with current Ukrainian legislation. Public denial of the legitimacy of the struggle for Ukraine’s independence in the twentieth century is deemed desecration of the memory of fighters, …denigration of the dignity of the Ukrainian people and is unlawful.

The unclear wording of the Law makes its practical legal application quite problematic. Yet, the Law is still able to freeze historical discussion and silence questions about the crimes committed by fighters. As noted, the Law ‘[…] exempts from criticism the OUN, one of the most extreme political groups in Western Ukraine between the wars, and one which collaborated with Nazi Germany at the outset of the Soviet invasion in 1941 […]’

Ukraine’s policy of memory aimed at monopolizing interpretations of the past was been met with indignation by the two states concerned – Israel and Poland. For instance, Reuven Rivlin, the President of Israel, speaking at the session of the Ukrainian Parliament devoted to the commemoration of the 75th anniversary of the Babi Yar massacre, dwelt on the crimes committed against Ukrainian Jews by Nazis and also mentioned Ukrainian collaborators: ‘Many collaborators to crimes were Ukrainians. And among them were the fighters of the OUN – who mocked the Jews, killed them, and in many cases handed them over to the Germans […]’

The Polish reaction was more radical. In July 2016, the Polish Parliament adopted a Resolution ‘On the Perpetuation of the Memory of Victims of Genocide Committed by the Ukrainian Nationalists Against the Citizens of the Second Rzeczpospolita in 1943-5’, which recognized the Volyn events as a ‘genocide’ (the Resolution on the Volyn genocide). The Resolution gave Ukraine a reason to blame Poland for the ‘politicization of tragic chapters of the Ukrainian-Polish history’ and ‘triggering of anti-Ukrainian moods […] at a time of most considerable sensitivity of the Ukrainian State’.

Poland

Soon after the Resolution on the Volyn genocide, in August 2016, the Polish Sejm, the lower house of the Polish Parliament, initiated a bill – an Amendment to the Act on the Institute of National Remembrance – to make the denial of crimes committed by the Ukrainian Nationalists punishable. The bill was adopted on 26 January and approved by the Polish Senate on 01 February 2018. On 06 February, the Polish President signed it into force. Reacting to the bill, the Ukrainian Foreign Ministry expressed ‘concern about the attempts to portray Ukrainians exclusively as “criminal nationalists” and “collaborators of the Third Reich”’. In turn, the Ukrainian Parliament stressed that ‘the Amendment contradicts the nature and spirit of the strategic partnership between Ukraine and Poland’ and warned against ‘incitement of conflicts between traditionally friendly Ukrainian and Polish peoples’ as these conflicts are in the interests of their common enemies ‘which were the Nazi and communist regimes in the past’ and ‘the Russian aggressor today’.

It is undoubtedly wrong to state that every member of the OUN was a Nazi collaborator and was involved in crimes against Jews and Polish civilians (the Polish historical narrative). It is also incorrect to claim that the OUN played no role at all (the Ukrainian historical narrative). This is a matter of historical discussion which should be free from the states forcible imposition of ‘official’ truth. Unfortunately, the Ukrainian Law on fighters and recent Polish legal initiatives make this discussion impossible.

It should be stressed that besides criminalization of the denial of crimes committed by Ukrainian Nationalists, the Polish bill sets measures to protect the ‘reputation of the Republic and the Polish Nation’. It provides that anyone who:

[…] publicly and contrary to the facts claims the Polish State or the Polish Nation to be responsible or co-responsible for the Nazi crimes […] or for the other crimes against peace, humanity or war crimes or in another manner grossly diminishes the responsibility of the true perpetrators of these crimes, shall be a subject to a fine or imprisonment of up to three years.

This provision referred as ‘the Polish Holocaust bill’ and strongly criticized by the US and France, has sparked a diplomatic row between Israel and Poland. The Israeli Foreign Ministry stated:

The State of Israel opposes categorically the Polish Senate decision. Israel views with utmost gravity any attempt to challenge historical truth. No law will change the facts.

As a countermeasure, the Israeli Parliament is ready to amend Israel’s law on the Holocaust denial to make it a crime to diminish or deny the role played by those who aided the Nazis in their persecution of Jews. Also, it has been proposed to provide legal defense to anyone prosecuted under the new Polish law.

‘The Polish Holocaust bill’ is a rebirth of Article 132a of the Polish Criminal Code which was in force in 2006-8 and punished (up to three years of imprisonment) ‘anyone publicly accusing the Polish Nation of participating in, organizing, or being responsible for Nazi or communist crimes’. The Article was called to protect official historical narrative pursuant to which in World War II Poles fought against the two totalitarian regimes – Nazism and Stalinism – and have never collaborated with them. Interestingly, that Article 132a was named ‘Gross’ law’ as it was directed against Jan Gross, a Polish-American historian. In his internationally acclaimed book ‘Neighbors: The Destruction of the Jewish Community in Jedwabne’ (2000), Gross challenged Polish ‘official’ truth and showed how in July 1941 local population of the small eastern Polish community of Jedwabne murdered their Jewish neighbors without direct involvement from the Germans. Article 132a had to prevent publication of Poland Gross’ next book ‘Fear: Anti-Semitism in Poland after Auschwitz’ (2006).

In 2008, the Polish Constitutional Tribunal declared Article 132a unconstitutional based on procedural grounds. The February bill reestablishes this provision. But even without a norm directly aimed at protecting reputation of the state and nation, opinions and memories which challenge the Polish ‘official’ interpretation of the past can be punished under Article 133 of the Polish Criminal Code (public insult of the Nation or the Republic of Poland). For reference, the Criminal Code of Ukraine does not contain a similar article. Yet, there is a risk that following the destructive logic of memory wars, Ukraine will introduce criminal responsibility for public denigration of the state and national dignity.

What about the freedom of speech?

Despite the fact that Ukrainian and Polish regulations protect mutually exclusive historical narratives, they are very similar; these are examples of the state’s attempts to be the only caretaker of national memory. While protecting national heroic myths, both states treat freedom of speech as a secondary value. Poland and Ukraine use the same ‘totalitarian’ approach to history as, for instance, the Russian Federation and Turkey in Article 354-1 and Article 301 of their national criminal codes accordingly. Under the tag ‘Rehabilitation of Nazism’ Russia punishes ‘spreading of knowingly false information on activities of the Soviet Union during World War II’ to suppresses a discussion about crimes committed by the Stalinist regime and protect Russia’s mantel of Europe’s liberator. Turkey uses criminal sanctions against those who call the 1915 mass killings of Armenians in the Ottoman Empire genocide as these statements are said to be a ‘public denigration’ of the Turkish state and nation.

In Dink v. Turkey  and Akçam v. Turkey the European Court of Human Rights (ECtHR) recognized that criminal prosecution for expression of an ‘unfavorable’ opinion on the Armenian issue violates Article 10 of the European Convention on Human Rights (ECHR). The ECtHR stressed that Article 301 of the Turkish Criminal Code (public denigration) is ‘too wide and vague’ and ‘constitutes a continuing threat to the exercise of the right to freedom of expression’ as ‘any opinion or idea that is regarded as offensive, shocking or disturbing’ can easily be the subject of criminal punishment. This can be said about any attempt of a state to whitewash its past and ensure historical loyalty under the threat of punishment. In this sense, the best way to judge a state’s overall attitude towards human rights is to observe its attitude towards history.

In general, criminal sanctions are called to demarcate and protect fundamental values of society. Doubtfully, that preservation of state-sponsored historical narratives is a social interest worthy of being granted the highest level of protection. The proliferation of memorial laws with criminal sanctions reflects an escalation of memory wars in which historians, journalists and civil activists are the first victims. Indeed, ‘remembering the past and writing about it no longer seem the innocent activities they once were taken to be’.

When assessing memorial laws (laws through which states regulate historical narratives) with criminal sanctions one should keep in mind their purposes. The laws aimed to condemn the past and protect dignity of victims (particularly, the Holocaust denial ban) can be, if not accepted, at least explained based on the theory of ‘militant democracy’. While criminal punishment for challenging ‘glory of the past’ is a univocal violation of freedom of speech, there is no difference in being punished for criticizing a state’s current policy or disclosing its past wrongdoings.

The Polish-Ukrainian case proves well that a clash of historical narratives should not be solved with the use of criminal sanctions, that limitation of historical discussion by the threat of punishment makes it impossible to have reconciliation through a dialog on dark legacy of the past. The conflict over the history of the Second World War raises a question about a set of the European principles of mnemopolitics to stop current memorial wars (all is not quite on the European memory ‘front’) and prevent them in future.

The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?

EJIL:Talk! - Thu, 02/22/2018 - 09:00

Scattered responsibility and Melian dialogue?

The Danish Chairmanship of the Council of Europe has proposed a new installation to the reform saga of the European Court of Human Rights (ECtHR). Their recipes sound innocuous: no one can be against ‘sharing responsibility’ for human rights protection, or for improved ‘dialogue’ between the Court and states. Yet some suspect that one may smile, and smile, and be a villain; at least it may be so in Denmark. Many fear that in the Danish details, sovereignty will trump human rights protection. Alice Donald and Philip Leach have provided detailed annotations to the Copenhagen draft in support of the criticism of eight NGOs in their joint response of 13 February 2018.

Broader trends and issues in the shadows of subsidiarity merit further attention, lest shared responsibility morphs into no one’s responsibility, and the discursive dialogue turns Melian, allowing state executives to do as they can and leave the Court to judge as it must.

States surely have grounds for concern about international courts, who have grown in numbers, functions and influence. State ambivalence is even greater about the ECtHR that allow individuals to challenge states. Still, some of the recent resisters are surprising. They count not only those with weak traditions for human rights and the rule of law, among the main suppliers of the large backlog of ECtHR cases – 57 350 by 31 January 2018. Vocal critics include Denmark and other states where little is rotten when it comes to human rights. One explanation may be prominent political parties’ general calls to renationalize authority from international institutions, further fueled by perceptions that the ECtHR protects bad people, criminals in particular, and hinders the defense of democracies under threat.

The vague phrases of ‘shared responsibility’ and ‘dialogue’ serve to hide the striking Copenhagen ‘rebalancing’: to restrict the Court and empower the states. Earlier reform proposals by High Level Conferences in Interlaken (2010), Izmir (2011), Brighton (2012) and Brussels (2015), expressed states’ concerns both with the Court’s dynamic interpretation and with the backlog. To their honour, several of the Ministerial Declarations – especially the last from Brussels – focus on steps to alleviate the root causes of the backlog, namely states’ human rights violations and failures to execute the Court’s judgments. The draft Copenhagen declaration has no new recommendations for how the states can reduce their supply of cases brought to the Court, and how states should improve their execution of judgments. Judging from the new proposals, the drafters concern is not states’ lack of respect for human rights, but the Court’s interference in domestic politics and the backlog of cases.

The aims of reform

The objectives of reform should be to promote and protect the independent, supportive role of the ECtHR as specified in the Convention Preamble and as developed historically – and only too necessary today.

By this standard, the Court should protect states from human rights violations, and from sliding into non-democratic rule. It should:

  1. Supplement, strengthen and safeguard domestic processes of varying democratic quality, including protecting the conditions that make democratic decision-making worthy of respect, such as freedom of the press and freedom of association; 

  2. Monitor minority rights, which are at risk even in well-functioning majoritarian democratic processes among voters of good will, not to mention the risk under populist rule; and

  3. Finally, the Court should seek to protect the rule of law including the independence of domestic judiciaries.

Shared responsibility

The draft Copenhagen Declaration calls for:

‘the concept of shared responsibility, by which a better balance may be found between the national and European levels of the Convention system, and an improved protection of rights may be ensured’ (para. 11, emphasis added).

So what is new and likely to improve rights protection?

Indeed, the metaphor of ‘balancing’ is misguided. The proper relationship between the state and the Court is not a 0-sum of responsibilities – though the Copenhagen declaration seems to insinuate that at times: It states that the Court:

‘should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level’ (para. 22).

Subsidiarity may sometimes defend the immunity of local autonomy against intrusion from central authorities. But subsidiarity also requires central authorities to support the well-functioning of local authorities. When domestic authorities can be trusted to protect and promote human rights, as seen by their good faith consideration of the Convention, the Court may grant them a ‘margin of appreciation’ regarding the hard balancing of some rights restrictions against other rights and societal objectives. However, when domestic authorities fail in their responsibilities, subsidiarity supports and may indeed require ECtHR intervention to strengthen domestic efforts – not only the executive, but also the legislature and the judiciary. By this more nuanced account of subsidiarity, the Copenhagen draft fails, and consistently errs in favour of state sovereignty.

Consider six flaws in the Copenhagen state centric subsidiarity:

1 Limited domain of the margin of appreciation

Even in the best of cases, the Court should not grant states a margin to restrict all Convention rights – such as the non-derogable rights against torture or forced labour.

2 National traditions are not sacrosanct because states say so

One of the worrisome implications of the state centric subsidiarity conception is how the draft declaration will secure support of human rights by all people in Europe by letting states protect those rights ‘in accordance with their constitutional traditions and in light of national circumstances’ (para. 14). To grant states this discretion is to revoke the protection minorities sorely need precisely against oppressive historic traditions and circumstances.

3 Court abdication from proportionality assessment?

The draft declaration insists that:

‘if a genuine balancing of interests has taken place at the national level, it is not the Court’s task to conduct the proportionality assessment afresh. Where domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and the Court’s case law, and adequately balanced the interests at stake, it is not for the Court to substitute their assessment with its own, unless is has identified strong reasons for doing so’ (para. 24).

To propose this as a blanket rule is too sweeping, based on recent Court judgments (especially Ndidi v. the UK, 41215/14 paras 76, 81).

4 Differences in democratic policies does not give immunity from scrutiny

Likewise, protection by the Court is at risk if it is left to domestic democratic organs to ignore human rights in ‘matters of general policy, on which opinions within a democratic society may reasonably differ widely’ (para. 23) – see e.g. SAS v France 43835/11 (GC) para. 129. Variations among European states due to democratic majoritarian decision-making merit respect – but only within limits. And the pruning of majority policies for the sake of minorities, the rule of law and well-functioning democratic processes cannot be simply left to the majority. The fact that the ‘the role of the domestic policy-maker should be given special weight’ does not immunize from Court scrutiny.

5 Whose standards of review?

The interpretational standards of the Vienna Convention on the Law of Treaties should be respected. The draft declaration introduces an additional standard that the text of the Convention should be interpreted ‘reasonably’ (para. 55). This risks politicization – at the expense of legal certainty and human rights protection.

6 No issue area should be exempt from standards of review simply because states say so

The Copenhagen draft holds that when examining cases related to asylum and immigration, the Court should ‘avoid intervening except in the most exceptional circumstances’ (para. 26). The focus on asylum seekers reflects the current political concerns in several European states, including Denmark. However, this is precisely the sort of majority preferences against minorities that may need particular protection against majoritarian ill will or ignorance. For states to require less strict scrutiny for no other reason than that they want to is highly troubling, in light of the historic backdrop for establishing the European human rights system.

Dialogue

The draft Copenhagen declaration proposes several ways to enhance the ‘dialogue’ between the Court and other parties, especially state executives. Who can be against dialogue?

There are several reasons for concern about the proposals. They focus almost exclusively on the need to ensure state parties’ interventions, not civil society etc. (paras 34, 39, 40, 41). The Court should instead listen also to civil society and NGO groups, and speak with domestic judiciaries and parliaments. Those who are not invited to the table often find themselves on the menu.

We should also be wary when such ‘dialogue’ is not among equals. These problems of ‘dialogue’ are pressing for international courts, such as the ECtHR. Such courts lack the power both of the purse and of the sword – indeed, it is the state parties that control both.

What is more, human rights courts are peculiar in that they seldom adjudicate among states. If that was the case, states might more often discuss the rules for dispute settlement under a partial ‘veil of ignorance’, not knowing which rule specification they would benefit from most in the long run. But when it comes to human rights, state executives may more easily agree that they are all better off with weaker human rights court supervision. It is others than the executive that benefits from stronger human rights protection: civil society, parliaments, etc. Dialogues about the ECtHR’s level of supervision and support should therefore not be limited to state executives, but include these affected parties. The Court should be able to give many its ear, to avoid being the voice of the states.

Dialogue may also raise issues with respect to the separation of powers between the Court and the Committee of Ministers. The draft declaration states that the dialogue ‘should take place with respect for the independence of the Court and the binding character of its judgments’ (para. 33). But the ‘use of thematic discussions in the Committee of Ministers on major issues relating to the execution of a number of judgments’ (para. 37 c) can easily become a procedure of second-guessing the judgments of the Court, and establish the Committee as a ‘fifth instance’.

Conclusions

Shared responsibility and dialogue are important overarching themes to maintain and improve the European system of human rights protection under stress. But the draft Copenhagen declaration specify these honorifics in ways that will likely damage the system rather than improve it. The proposals will empower the executives of states and weaken the Court – without even trying to explain how the changes might increase the respect for human rights.

The draft appears to ignore and even abet several current urgent issues in Europe: populist forces that abuse their majority positions to undermine the domestic rule of law and impose restrictions on the rights of minorities. Consider that the draft singles out one vulnerable group, i.e. immigrants, whose treatment by states should be subject to less scrutiny by the Court.

Shared responsibility and dialogue should be further developed, guided by sound understandings of the important supportive tasks of the Court based on a broader understanding of subsidiarity. The human rights problems in Europe mainly stem from disrespect for the human rights standards by states and non-execution of the Court’s judgments. When supervision and support for domestic institutions that protect the rule of law and human rights is urgently needed, more unreasoned deference to states is not part of the solution.

A Wolf in Sheep’s Clothing: Why the Draft Copenhagen Declaration Must be Rewritten

EJIL:Talk! - Wed, 02/21/2018 - 14:00

The Danish Chairmanship of the Committee of Ministers of the Council of Europe has issued a draft declaration ahead of the High Level Conference of foreign ministers of the 47 states in Copenhagen on 12-13 April 2018.

Here, we argue that the Draft Copenhagen Declaration poses a grave risk to the independence, integrity and authority of the European Court of Human Rights – and, in turn, to the protection of human rights in Europe – and should be substantially rewritten. Our concerns echo those raised in a detailed joint response to the draft declaration issued by eight non-government organisations that have monitored and participated in the process of ameliorating the Convention system, including at the high-level conference in Kokkedal in November 2017, after which the NGOs expressed disquiet over the proposed approach of the Danish Chairmanship.

That disquiet is borne out by both the tone and content of the draft declaration. While it professes to respect the Court, its leitmotif is a misconstrued understanding of the principle of subsidiarity, which underpins proposals that would seriously infringe on the role and jurisdiction of the Court and potentially expose it to permanent political pressure from states. Moreover, the draft declaration contains errors, contradictions and indeterminate proposals that would, if they are not removed, become dangerous weapons in the hands of those who bear ill-will to the Convention system, undermining it through weak implementation and/or politicised attacks (see here and here).

In so doing, the draft declaration irresponsibly squanders the opportunity to build upon the Brussels Declaration of March 2015 by reinforcing the imperative on states to strengthen national implementation of the European Convention on Human Rights and judgments of the Court.

Below, we contextualise the Copenhagen process before explaining our principal concerns about the tenor of this dangerous draft in terms of how it misconstrues subsidiarity and the margin of appreciation, undermines the universality of human rights, and creates channels for states to apply political pressure on the Court. Further, we highlight an unexplained and extremely worrying proposal to remove human rights litigation arising from armed conflict from the Court’s remit.

How did we get here?

Copenhagen will be fifth in a series of inter-governmental conferences reviewing the Court system, starting with Interlaken in 2010, followed by Izmir in 2011, Brighton in 2012 and Brussels in 2015. While Interlaken and Izmir were principally concerned with the backlog of applications to the Court, which peaked at 160,000 in September 2011, subsequent conferences rehashed “subsidiarity”, a principle confirmed by the Court long beforehand.  

The Brighton conference took place in an inflamed political atmosphere, in the midst of the Abu Qatada saga and shortly after David Cameron’s speech in Strasbourg, suggesting a need to “re-balance” states’ relationship with the Court. A leaked draft of the Brighton Declaration contained several contentious proposals which, thankfully, were strongly diluted, with the result being an express reference to subsidiarity and the margin of appreciation to be inserted in the Preamble of the Convention via Protocol No. 15 (not yet in force).

The Brussels conference decisively, and commendably, shifted the focus towards practical steps to strengthen national implementation. It is regrettable that the Danish draft text channels the spirit of Brighton rather than Brussels. This may not come as a surprise, as Denmark has been described as waging a “crusade” against the Strasbourg Court, fuelled by anti-immigration sentiment stoked by the Danish People’s Party and focused in particular on the Supreme Court’s invocation of the right to family life to prevent the deportation of a convicted Croatian national.

Subsidiarity and margin of appreciation misconstrued

Although the draft declaration starts promisingly, underlining states’ “deep and abiding commitment” to the Convention and “strong attachment” to the right of individual application as a “cornerstone” of the Convention system, the rest of the draft is punctuated by pretexts for states to apply political pressure on the Court.

At the root of these regressive proposals is a mischaracterisation of subsidiarity and the doctrine of the margin of appreciation, two well-established principles of interpretation in the Court’s case law.

Subsidiarity is the principle that states (governments, parliaments and courts) have the primary responsibility to secure to everyone within their jurisdiction the Convention rights and freedoms, and to provide an effective remedy when these are violated, always subject to the Court’s supervision. What subsidiarity is not is a basis either for asserting the primacy of national law over Convention law, or for demarcating national spheres of exclusive competence, free from Strasbourg’s supervision. Yet the draft declaration embraces exactly this misconception.

For example, at paragraph 4, it notes that:

States Parties have underlined the need for a more effective, focused and balanced Convention system, where the Court can focus its efforts on identifying serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention (emphasis added).

As the NGO response states (p. 3), this suggestion misconstrues subsidiarity “as allowing or even requiring the Court to limit or delegate aspects of its material jurisdiction to states”. Indeed, Council of Europe governments considered – and rejected – similar proposals in the report (paragraphs 90-94) on the longer-term future of the Court issued by the Committee of Ministers’ Steering Committee for Human Rights in December 2015.

Confusingly, at paragraph 13, the draft declaration suggests that the larger-scale the human rights violation in terms of the number of people affected, the more “unrealistic” it becomes for individual solutions to be found “at international level” as opposed to national level. This not only contradicts paragraph 4, cited above, but also carries the highly questionable implication that national authorities which have presided over systemic or widespread abuses are presumed to be trusted to resolve them without individual victims having recourse to a supranational judicial mechanism – in other words that the worst offending states should expect less rather than more scrutiny from Strasbourg.

Another attempt to handcuff the Strasbourg judges (at paragraph 26) is an extraordinary proposal for the Court, when examining cases related to asylum or immigration, to take full account of the effectiveness of domestic procedures and, where these procedures are assessed as operating fairly and with respect for human rights, to “avoid intervening except in the most exceptional circumstances”. The language of “non-intervention” is wholly inappropriate and infringes the Court’s authority to interpret Convention rights independently. Moreover, no justification is offered as to why asylum and immigration cases are singled out as requiring a lower standard of review by the Court.  

Other mischaracterisations of the principle of subsidiarity appear in paragraphs 22-24, where the margin of appreciation is also deployed in questionable terms. The margin of appreciation is the doctrine, underpinned by the principle of subsidiarity, according to which states enjoy a degree of latitude in deciding from a range of possible ways of giving effect to the Convention rights and freedoms, subject to the ultimate supervisory jurisdiction of the Court. Regrettably, the draft declaration omits to clarify that states do not always have a margin of appreciation and that the scope of the margin of appreciation, if any, is determined by the Court and not by states. As the NGO response rightly points out (p. 6),

it is not for a political Declaration to seek to determine what and how judicial tools of interpretation, such as the margin of appreciation, apply. This is the sole task of the Court, and it must remain so, including with a view to respecting the Court’s integrity, authority and independence.

The draft declaration goes on (at paragraphs 27-28) to “strongly encourage” the Court to continue “robustly” to apply the principles of subsidiarity and the margin of appreciation, which it says provide “important incentives for national authorities properly to fulfil their Convention role”. This appears to refer to what Judge Robert Spano has called a “parliamentary-oriented” conception of subsidiarity whereby, in cases where an impugned law or policy is the result of reasoned, participatory deliberations within a parliament working conscientiously to ensure human rights compatibility, it is more likely to be defensible in a democratic society and hence the Court is less likely to find a violation.

Crucially, however, the draft declaration overlooks one side of the equation, seeking weaker supervision from Strasbourg while neglecting to exhort states to strengthen the parliamentary human rights mechanisms that would allow them to “earn” deference from the Court (aside from a passing reference at paragraph 18). This is a glaring omission from the draft declaration, and stands in sorry contrast to the Brussels Declaration, which contains numerous references to the importance of parliaments in implementing Convention rights and judgments of the Court. This matters because, as we have argued elsewhere, the perceived “democratic deficit” afflicting supranational human rights regimes stems less from a surfeit of judicial intervention than from the inadequacy of political mechanisms to “domesticate” human rights at national level.

Universality  

A further concern about the draft declaration is the challenge it poses to the universality of human rights. The assertions (in paragraphs 10 and 14) that rights should be “determined” at national level as a “natural step in the evolution of the Convention system” and protected “predominantly” at national level “in accordance with their constitutional traditions and in light of national circumstances”, reinforces – as the NGO response observes (p. 5) – “the risks of fragmentation of the European human rights protection framework”. The final declaration should, the NGOs propose, “use inclusive language to recognize the importance of adequate implementation of all human rights in all situations in all State Parties” (emphasis in original).

“Dialogue and participation” – or institutionalising political pressure?

Another predominant theme of the Danish text is that of insisting on a more direct dialogue between governments and the Court, beyond the existing frameworks of the Committee of Ministers’ processes, litigation and third party interventions before the Court. This strange proposal suggests, in effect, states’ interference in “applying and developing the Convention” (paragraph 31) and “the general development of case law in important areas” (paragraph 33). Why the necessity to seek “appropriate access” for states to “participate in relevant proceedings before the Court” and the creation of “further possibilities to state their views and positions, and draw attention to the possible consequences for their legal systems” (paragraph 34) when the Court does so already in appropriate cases? What is the point of states, in addition, being encouraged to “discuss the general development of areas of the Court’s case law of particular interest to them and, if appropriate, adopt texts expressing their general views” (paragraph 41)?

Such proposals for dialogue between the political and judicial levels could “inappropriately lead to political pressure on the Court, compromising its independence and authority” (see NGO response, p. 7).

A related concern is the apparent suggestion in the draft declaration that the development of rights and obligations under the Convention should, as the NGO response puts it (p. 2) be “conditioned by majority views”. For example, paragraph 32 notes the “significant impact” of the Court’s case law on “States Parties and their citizens” and calls for “ongoing dialogue in which States Parties and their populations are appropriately involved”. The reference to “citizens” is especially problematic here, given that states are obliged, under Article 1 of the Convention, to secure Convention rights to “everyone within their jurisdiction” (emphasis added) and not only citizens. While democratic deliberation on human rights is to be welcomed, such proposals come dangerously close to suggesting that the Court’s interpretation of Convention rights and obligations should be made dependent on majoritarian support – a position which runs counter to the role of the Convention system in protecting the rights of relatively powerless minorities who are especially vulnerable to discrimination.

Conflict cases

Also of considerable concern is the proposal (paragraph 54.b) to establish “separate mechanisms” to deal with both inter-state and individual cases arising from international conflicts, in the interests of achieving a “balanced caseload”. This would mean that the Court would no longer have remit, as it does now, over human rights litigation arising from armed conflict in regions of Europe such as eastern Ukraine, Crimea, South Ossetia, Abkhazia, Nagorno-Karabakh and northern Cyprus. It would also rule out cases from conflicts such as Iraq, testing the legality of states’ powers of detention and the use of lethal force (see, for example, Al-Skeini v UK, Jaloud v Netherlands, Hassan v UK). There is no explanation as to why this category of cases has been selected for exclusion, over and above any other category of case which may have its complexities and result in substantial litigation. Nor has there been any prior discussion, as far as we are aware, as to the requisite elements of an alternative mechanism, or whether it is politically, practically and financially feasible to establish a viable alternative (providing a level of procedural and substantive access to justice which is at least equivalent to that currently offered by the Court).

What is more, this proposal fundamentally contradicts the express Convention stipulation that its provisions continue to apply in situations of “war or other public emergency” (see Article 15).We recall that in 2015 the Steering Committee for Human Rights ventured as regards large-scale violations that “[t]he Court has a pivotal role in this domain and is equipped to examine large-scale abuses of human rights…” (paragraph 88). Myriad questions would be raised, such as the logic of excluding litigation from eastern Ukraine (if an international armed conflict), but not Chechnya (a non-international armed conflict) – although if Russia’s pleas of its lack of involvement in Ukraine are to be believed, would cases from there also be beyond the Court’s jurisdiction?

Time to heed the warnings

The declaration that will emerge from the high-level conference in April will set the tone and priorities for the Council of Europe for several years to come. While the Brussels Declaration has yielded constructive developments in getting states to recognise and act upon their shared responsibility to secure human rights, the Draft Copenhagen Declaration, as it stands, gives a green light to recalcitrant states to apply pressure on the Court and perpetuates mistaken understandings of the key principles that underpin the Convention system.    

Given serious human rights regression across Europe – especially prevalent in Poland and Hungary, Turkey, Azerbaijan and Russia, as well as Ukraine and Crimea – a secure, independent Court is needed for the continent more than ever. We trust that the warnings already issued by civil society will be heeded and that the drafters head straight back to the drawing board.

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