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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

EJIL:Talk! - Wed, 04/18/2018 - 07:30

On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice

The Prosecution argues that the Court has jurisdiction over the deportation of Rohinyga from Myanmar to Bangladesh for two reasons: First, and in contrast to the crime of forcible transfer, the crime of deportation is only completed when the victim has been forced across an international border (paras 15-27). Second, “Article 12(2)(a) [Rome Statute] requires at least one legal element of an article 5 crime to have occurred on the territory of a state party” (paras. 28-50). In short, the Prosecution’s case hinges on the point that, while the crime “began” in a non-State Party to the Rome Statute (Myanmar), it was completed in a State Party to the Rome Statute (Bangladesh).

Consequently, the Prosecution’s request does not capture crimes committed in Myanmar only. While this seems an obvious point to make, its consequences are wide-ranging. Notably, sexual and gender-based crimes against Rohingya by Myanmar officials are territorially limited to Myanmar and do not extend into Bangladesh. As such, and despite the credible and consistent accounts of sexual violence against Rohingya as outlined above, sexual and gender-based crimes committed in their entirety on Myanmar territory cannot be brought as individual charges.

First, the ICC Elements of Crimes readily accommodate sexual violence. In the definition of deportation or forcible transfer, the Elements provide that deportation and forcible transfer involve “expulsion or other coercive acts”. Footnote 13 elucidates that the term “’[d]eported or forcibly transferred’ is interchangeable with ‘forcibly displaced’”. Footnote 12 specifies that “[t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment”. These terms may be read to accommodate sexual violence: For example, with a view to Article 31 VCLT and the ordinary meaning of the term “violence” in its context, “sexual violence”, by its very denomination, is a type of violence. Sexual violence is also a form of coercion: Oxford dictionary defines coercion as “the action or practice of persuading someone to do something by using force or threats”. The Elements of Crimes require, inter alia, the presence of coercive circumstances both for rape and sexual violence. Thus, sexual violence is ipso facto coercive. It follows that sexual violence, including rape, constitutes a forcible act within the meaning of the Elements of Crimes.

Second, case law shows that sexual violence may be a factor in establishing the coercive element of the crime of deportation. Pre-Trial Chamber II held in its decision on the confirmation of charges in the case against Ruto and Sang that “deportation or forcible transfer of population is an open-conduct crime”, meaning that “the perpetrator may commit several different conducts which can amount to ‘expulsion or other coercive acts’, so as to force the victim to leave the area where he or she is lawfully present […]” (para 244). Further to this, and more specifically, Pre-Trial Chamber II considered in its decision on the confirmation of charges in the Kenyatta case that rape, together with the destruction of homes and brutal killings and injuries, as well as specific public announcements, amounted to coercion within the meaning of the Elements of Crimes (see para 244). These holdings also align with the jurisprudence of the ad hoc tribunals: The ICTY’s Trial Chamber in Stanišić and Simatović found that acts of sexual violence in combination with other acts may cause duress and fear of violence such that they create a coercive environment where persons have no choice but to leave, thereby establishing forcible displacement (paras 1094-1095). This holding was not challenged on appeal.

Therefore, the sexual violence committed against Rohingya may be considered a coercive factor for purposes of establishing the crime of deportation.

Beyond this, another question that might arise in this context is whether there exists any requirement that sexual violence must be committed with the intent to cause the forcible displacement. While the ICC has not yet had the opportunity to adjudicate this issue, it appears that the answer must be in the affirmative: First, such a requirement would be consistent with Article 30 of the Rome Statute. That provision requires that all material elements be committed with intent and knowledge. The Commentary to the Rome Statute elucidates that “material elements of a crime refer to the specific elements of the definition of the crimes […]” (Article 30, para 6). The Elements of Crimes require that “[t]he perpetrator deported or forcibly transferred, […] by expulsion or other coercive acts.” Consequently, the perpetrator must have the intent, inter alia, to deport by coercive acts. It follows that the perpetrator must commit coercive acts with the intent to effect deportation. Second, ICTY jurisprudence also required a link between the coercive act and the forcible displacement (see, for example, the Trial Judgement in Stanišić and Simatović, para 1097). Third, a nexus between the coercive act and the deportation may be necessary to distinguish crimes underlying deportation from individual charges of sexual violence and other coercive acts. Such distinction may be particularly decisive in the case at hand, given that, as outlined above, sexual and gender-based crimes committed wholly in Myanmar cannot be brought as individual charges under the present circumstances. It remains to be seen how the Court will address this point.

The importance of recognising sexual violence against Rohingya as a coercive act

Not only is it legally permissible to consider sexual violence within the realm of the crime of deportation, but it is also imperative that the Prosecution does so: It may be the only avenue for Rohingya victims of sexual and gender-based crimes to obtain justice, and thus the only way to hold perpetrators accountable. As mentioned above, given that any possible ICC jurisdiction could only extend to crimes that are completed in Bangladesh, crimes of sexual violence that occurred wholly within the territory of Myanmar cannot be brought as individual charges. In addition to this, however, the Myanmar Government’s acts and the domestic legal framework paint a picture where no justice for Rohingya women—and Rohingya generally—can be expected: Although the Myanmar government has recently acknowledged the existence of a mass grave (containing ten corpses), it failed to issue visas for members of a UN fact-finding mission and its own investigation results appear fairly rosy. Another obstacle in achieving justice is the expansive immunity granted to state agents under the 2008 Myanmar Constitution: Pursuant to Section 445, “[n]o proceeding shall be instituted against the [State Law and Order Restoration Council and the State Peace and Development Council] or any member thereof or any member of the Government, in respect of any act done in the execution of their respective duties”. Moreover, the Myanmar Penal Code addresses sexual and gender-based crimes only to a very limited extent: The definition of rape appears narrower than mandated by international law, in that it does not prescribe any presumption of non-consent in certain circumstances (see, eg, the Appeals Judgement in Kunarac et al., para 131), and seems to confine rape to vaginal penetration  (see section 375 of the Penal Code). Finally, other forms of sexual violence are barely, if at all, addressed.

Accordingly, the Prosecution’s legal appraisal of the sexual violence committed against the Rohingya within the ambit of the crime of deportation would be a watershed moment for the recently forcibly displaced Rohingya, enabling a pathway to justice—and, conversely, a necessary step to hold perpetrators accountable.

Conclusion

In brief, there is ample evidence showing that sexual violence has featured to a major extent in the violence against Rohingya. Even if the sexual and gender-based crimes committed thereby do not fall within the Court’s jurisdiction ipso facto, there is ample space for appraising the sexual violence committed against Rohingya in establishing the forcible element of the crime of deportation. Finally, doing so is crucial, for the Prosecution thereby could open up the possibly only avenue to justice for the Rohingya women and girls—and, in turn, the only path to holding perpetrators accountable.

JASTA Keeps Saudi Arabia on Trial for 9/11 Terror Attacks: The US and its Foreign Sovereign Immunity Issue

EJIL:Talk! - Tue, 04/17/2018 - 07:00

In its decision of 28 March 2018 the US District Court for the Southern District of New York denied Saudi Arabia’s motion to dismiss a high-profile lawsuit for its alleged involvement in the September 11 terror attacks, In Re Terrorist Attacks on September 11, 2001 (03-MDL-1570(GBD)) (“the Decision”). In doing so, the Court applied the Justice Against Sponsors of Terrorism Act, 28 USC §1605B (“JASTA”), for the first time since it was passed by the US Congress on 27 September 2016.

The JASTA created, inter alia, a new exception to the Foreign Sovereign Immunity Act, 28 USC §1602 (“FSIA”), to the effect that sovereign immunity under the FSIA is waived:

“in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by –

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless of where the tortious act or acts of the foreign state occurred.” (“JASTA exception”)

The Bill generated significant debate both within and outside the US, and whilst under consideration by Congress, Victor Grandaubert warned in a well-reasoned post on this blog that if passed the JASTA would “entrench the isolated and unlawful position of the US in this area”. We take the opportunity of this first application of the Act to provide an update on the recent developments. The post will examine first the Decision, and will then move to address the position of the US in relation to customary international law on sovereign immunity.

Background

Victims and families of victims brought consolidated lawsuits against Saudi Arabia and the Saudi High Commission for Relief in Bosnia and Herzegovina (SHC) alleging liability for:

“financing, sponsoring, conspiring to sponsor, aiding and abetting, or otherwise providing material support to Osama bin Laden and the terrorist organization known as al Qaeda, for the physical destruction, deaths, and injuries suffered as a result of the terrorist attacks on September 11, 2001 (9/11 Attacks)” [at p.2 of the Decision].

Regarding Saudi Arabia, the Plaintiffs argue that it “bears responsibility for the 9/11 Attacks because its agents and employees directly and knowingly assisted the hijackers and plotters who carried out the attacks” [at 2].

The FSIA provides the sole basis for federal courts of the United States to obtain jurisdiction over a foreign state. The FSIA treats foreign states (and their agencies and instrumentalities) “presumptively immune from the jurisdiction of United States courts[,]” unless an exception applies, 28 USC §1604. In 2015, the District Court granted the Defendants’ motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, because the Plaintiffs had failed to allege or present evidence of one of the existing exceptions to sovereign immunity set out in the FSIA, 28 USC §1605A. During the pendency of the Plaintiff’s appeal, Congress enacted the JASTA (overriding a presidential veto by President Obama), the aim of which is “in part to allow suits against Saudi Arabia for the September 11 attacks” (Lelchook v Islamic Republic of Iran). Recognising that the JASTA was intended to apply to this case, the Court of Appeal for the Second Circuit vacated the 2015 dismissal of the claims, and the case was remanded to District Court to consider whether the JASTA provides a basis for the Court to exercise subject matter jurisdiction where none existed before.

The District Court’s Application of the JASTA

The immediate proceedings concerned both whether JASTA affected the Defendants’ claim to sovereign immunity as an answer to the above claims, and whether it was cause to grant the Plaintiffs jurisdictional discovery [at 4]. Vital to the Court’s determination was the fact that these proceedings were interlocutory by nature, which involved the Court accepting the Plaintiff’s articulation of a “reasonable basis” for the Court to assume prima facie jurisdiction [at 4-7].

Judge George B. Daniels distilled the four elements of the new JASTA exception (28 USC §1605B(b)) as follows [at 9]:

  1. physical injury to a person or property or death occurring in the United States;
  2. an act of international terrorism in the United States, and a tortious act or acts by a foreign state or any official, employee, or agent of that state while acting within the scope of that person’s office, employment, or agency;
  3. causation; and
  4. damages. 

Judge Daniels extrapolated upon the contentious elements to explain the applicable legal standards of the JASTA [at 9]. Firstly, as no definition of ‘tortious act’ was promulgated by the Act, the Court accepted the agreement by the parties that it “at least includes the knowing or deliberately indifferent provision of material support to terrorists” [at 9-10]. Secondly, the JASTA exception extends foreign state liability to tortious acts by its agents (in addition to state officials and employees), which permitted the Court to attribute to Saudi Arabia, for the purposes of satisfying the JASTA exception, the actions of non-employees who were following instructions from senior officials in the Saudi Embassy. This represents a marked reduction in the scope of FSIA sovereign immunity, as the FSIA non-commercial tort exception waives immunity only for tortious acts by state officials or employees (28 USC 1605(a)(5)). Thirdly, Daniels resoundingly rejected the Defendant’s assertion that causation under JASTA involved a more stringent ‘but for’ test (noting, inter alia, that there was significant judicial precedent rejecting that standard in other FSIA exemption cases). Instead, the ‘proximate causation’ standard was held applicable, whereby the Defendant’s conduct had to be a ‘substantial factor’ in the sequence of events leading to the Plaintiff’s injury, and that injury had to be ‘reasonably foreseeable or anticipated as a natural consequence’ of the impugned conduct [at 14].

The Plaintiffs alleged that Saudi Arabia was directly and vicariously liable under the JASTA exception; directly for its own actions, and vicariously for the actions of certain employees, agents, and related charity organisations. Of all the claims, the Court held that it only had prima facie jurisdiction over Saudi Arabia for the actions of two individuals [at 23]. Judge Daniels found that there were no prima facie jurisdiction for the claims concerning the actions of the Saudi state, the other allegedly related individuals or charities, or SHC [at 15-37].

US Position – Sovereign Immunity in Customary International Law

The JASTA exception is significantly wider than the FSIA exceptions; it does not incorporate the FSIA non-commercial tort exception’s “entire tort” rule and, unlike the FSIA’s terrorism exception, does not require that the defendant be designated a state sponsor of terrorism by the Secretary of State.

Turning first to the terrorism exception, the US and Canada are still the only states to have enacted legislation to this effect. As noted previously by Victor Grandaubert and others, the Italian Court of Cassation in Flatlow v Iran accepted, in October 2015, the legality of this exception provided the act of terrorism constitutes a crime against humanity i.e. a breach of jus cogens. Yet the International Court of Justice (ICJ) found in Jurisdictional Immunities of the State (Germany v Italy) that immunity does not depend on the gravity of the unlawful act or its jus cogens nature, noting that the FSIA terrorism exception “has no counterpart in the legislation of other States” [at para.88]. In view of this, as well as the lack of general and uniform state practice, and the JASTA exception moreover being significantly wider than the FSIA terrorism exception, the US does not find itself on solid footing regarding such an exception in relation to sovereign immunity under customary international law.

Writing over on Just Security in 2016, in reference to the FSIA and Canadian Legislation, William Dodge argued that:

“neither exception, to my knowledge, has provoked the sort of widespread protests from other nations that one might expect in the case of a clear violation of customary international law”.

The same certainly cannot be said for the terrorism exception of the JASTA, which has indeed provoked outcry from a multitude of states. In a letter to the State Department, the EU expressed that JASTA “would be in conflict with fundamental principles of international law and in particular the principle of State sovereign immunity”, and the Gulf Cooperation Council, Russia, and France expressed similar concerns. The exception is neither supported by state practice nor opinio juris.

Whilst the JASTA is written as a terrorism exception, it also falls under the territorial tort exception, the existence of which in relation to customary international law of sovereign immunity is still unclear. The ICJ in Germany v Italy carefully restricted itself to an examination of whether a tort exception exists in customary international law for acts committed by armed forces in armed conflict [at para.65]. Acknowledging that such a tort exception has been included in the United Nations Convention on Jurisdictional Immunities of States and Their Property, and the European Union Convention on State Immunity, the former is not yet in force, and the latter has been ratified by only eight states. Moreover, other states with legislation to this effect have used almost identical, and more restricted, clauses; notably, they limit the exception to death, injury or damage “caused by an act or omission in the [State]” (see UK, South Africa, Canada, Australia, Singapore, and Israel, with the exception of Japanall or part of said act”, and Pakistan having no comparable provision). With the JASTA now explicitly widening the application of the US exception “regardless of where the tortious act or acts of the foreign state occurred”, the US’s position is arguably isolated even further.

It may also be asked how this JASTA decision relates to the case of Certain Iranian Assets (Islamic Republic of Iran v United States of America) concerning US domestic lawsuits against Iranian state and non-state assets, in connection with the 1996 FSIA amendment and ensuing enforcement measures. Unlike the terrorism in exception in the FSIA, the JASTA exception does not make reference to enforcement, and it is not immediately clear how the latter will interact with the broader protection FSIA affords the assets of sovereigns against execution, or indeed how any award in In Re Terrorist Attacks on September 11, 2001 would be enforced. Despite this, and bearing in mind that the accusation that the US legislation is contra to customary international law may be levelled in both instances, neither situation in its current un-adjudicated form is likely to affect the US position in the other.

 Conclusions, Looking Ahead

Although JASTA’s promulgation of a broader exception to sovereign immunity allowed parts of the Plaintiffs’ claims to succeed where they had not before, Judge Daniels still dismissed the vast majority of the claim. The jurisdiction of US courts over Saudi Arabia in the proceedings is far from determined, and the Plaintiffs remain a considerable distance from redress.

Whilst the Act represents a culmination of efforts to facilitate lawsuits by victims of terrorism against foreign states and officials supporting terrorism, it has undeniably placed the US even further out of line with sovereign immunity under customary international law. Admittedly, the outcome of In Re Terrorist Attacks on September 11, 2001 remains to be seen, but with the Court holding that it has prima facie jurisdiction over Saudi Arabia, and with the case Certain Iranian Assets pending before the ICJ, the US indeed finds itself in an isolated position.

The Syria Strikes: Still Clearly Illegal

EJIL:Talk! - Sun, 04/15/2018 - 03:00

The strikes conducted this week against Syrian government targets by the US, UK and France are as manifestly illegal as the strikes conducted by the US alone last year. With one exception, the strikes are identical in the arguments made by the intervenors, in the reactions to those arguments by other states, in the deliberate use of silence and ambiguity, and in the consequent inability of this breach of international law to actually cause a shift in international law.

Like last year, the US (and France) failed to put forward any legal argument as to the source of their authority to act under the UN Charter system of the prohibition on the use of force. Their leaders spoke of the imperative need to avoid normalizing the use of chemical weapons; President Trump stated that the purpose of the strikes ‘is to establish a strong deterrent against the production, spread, and use of chemical weapons;’ Prime Minister May said that there was ‘no practicable alternative to the use of force to degrade and deter the use of chemical weapons by the Syrian Regime;’ President Macron spoke of the operation being directed solely against the clandestine chemical arsenal of the Syrian regime.

The language of deterrence used has the flavour of armed reprisals. Not only are such reprisals widely regarded as unlawful, but none of these governments actually clearly sets out an argument on the basis of reprisals. As the ICJ has explained in Nicaragua, para. 207, it is for states to articulate their own legal views, and it is on the basis of these views that other states can react, perhaps towards the creation of a novel rule or exception to an existing rule. In the absence of such a position, however, the approval of the strikes or lack of condemnation by third states has no bearing on the formation of customary international law, or on the evolving interpretation of the Charter. This is the barest minimum of formality required in a legal system, even a flexible one. This is not, as Monica argues in her post, a ‘simplistic’ position lacking in nuance – even if it is conceptually simple, and should be conceptually simple. This is the only dividing line we can have between law and politics, between legal and political arguments.

States have to be taken at their word. It is not for international lawyers to invent justifications for state behaviour that these states do not themselves make. The fact that both the intervenors and their supporters studiously avoid the language of legality confirms that they do not regard the Charter as now encompassing an exception to the prohibition of armed reprisals against states using weapons of mass destruction (see e.g. here for a summary of the debate in the Security Council – note in particular the justifications for the vote against (or abstaining from) the Russian draft resolution condemning the strikes; here for the statement of the German chancellor; here for a statement of the NATO Council). Rather, what we have here are states willing to engage in, or tolerate, a one-off (or two-off) exceptional breach of Article 2(4) of the Charter for the sake of some other political and moral considerations, but unwilling to modify the law for the future as a general matter. Whether this is a good thing or bad (it’s bad) is a different question, but there is nothing unfathomable about this phenomenon – individuals and states frequently break the law (any law) if they think they can get away with it or the penalty for breaking it is light, and/or if some higher-order interests justify doing so.

This brings us to the one really exceptional state in this whole affair – the UK – which, unlike its allies, did now articulate a clear legal basis for its use of force: the doctrine of humanitarian intervention. Here is the summary of the UK’s official position, based in the advice of the Attorney-General, Jeremy Wright.  It is divided into two parts – first, the elements of the rule that the UK thinks governs/permits humanitarian intervention, and second, how these elements are satisfied on these specific facts. Note how the UK’s explicit reliance on humanitarian intervention – not repeated by its allies – by implication further supports the conclusion that the UK is not relying on any theory of permissible armed reprisals.

The first part is based on the UK’s official position after Kosovo, reiterated in 2013 regarding Syria:

3.The UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering. The legal basis for the use of force is humanitarian intervention, which requires three conditions to be met:

(i) there is convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;

(ii) it must be objectively clear that there is no practicable alternative to the use of force if lives are to be saved; and

(iii) the proposed use of force must be necessary and proportionate to the aim of relief of humanitarian suffering and must be strictly limited in time and in scope to this aim (i.e. the minimum necessary to achieve that end and for no other purpose).

The obvious problem with prong (i) is what does it mean for the ‘international community as a whole’ to generally accept evidence of extreme humanitarian distress on a large scale – presumably that would have to include Russia and China. But the general validity of the UK’s position aside, it is its application to the facts that is completely untenable:

(i) The Syrian regime has been using chemical weapons since 2013. The attack in Eastern Damascus on 21 August 2013 left over 800 people dead. The Syrian regime failed to implement its commitment in 2013 to ensure the destruction of its chemical weapons capability. The chemical weapons attack in Khan Sheikhoun in April 2017 killed approximately 80 people and left hundreds more injured. The recent attack in Douma has killed up to 75 people, and injured over 500 people. Over 400,000 people have now died over the course of the conflict in Syria, the vast majority civilians. Over half of the Syrian population has been displaced, with over 13 million people in need of humanitarian assistance. The repeated, lethal use of chemical weapons by the Syrian regime constitutes a war crime and a crime against humanity. On the basis of what we know about the Syrian regime’s pattern of use of chemical weapons to date, it was highly likely that the regime would seek to use chemical weapons again, leading to further suffering and loss of civilian life as well as the continued displacement of the civilian population.

(ii) Actions by the UK and its international partners to alleviate the humanitarian suffering caused by the use of chemical weapons by the Syrian regime at the UN Security Council have been repeatedly blocked by the regime’s and its allies’ disregard for international norms, including the international law prohibition on the use of chemical weapons. This last week, Russia vetoed yet another resolution in the Security Council, thwarting the establishment of an impartial investigative mechanism. Since 2013, neither diplomatic action, tough sanctions, nor the US strikes against the Shayrat airbase in April 2017 have sufficiently degraded Syrian chemical weapons capability or deterred the Syrian regime from causing extreme humanitarian distress on a large scale through its persistent use of chemical weapons. There was no practicable alternative to the truly exceptional use of force to degrade the Syrian regime’s chemical weapons capability and deter their further use by the Syrian regime in order to alleviate humanitarian suffering.

(iii) In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention to strike carefully considered, specifically identified targets in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable. Such an intervention was directed exclusively to averting a humanitarian catastrophe caused by the Syrian regime’s use of chemical weapons, and the action was the minimum judged necessary for that purpose.

The fundamental issue here is what exactly is the humanitarian catastrophe that requires a unilateral armed response, i.e. how the scope of that disaster is to be defined, because it is only then that we could do a necessity/proportionality analysis. One option is that the humanitarian catastrophe is the Syrian war as a whole; the hundreds of thousands dead and millions displaced mean that answering this question in the affirmative is relatively easy, and this is exactly what the UK government does in (i). But a different option is that the deaths resulting from the use of chemical weapons constitute a humanitarian catastrophe, which is the option the UK government uses in (iii). Note the inconsistency between these two positions, and the obvious reason for that inconsistency – the UK government knows well that only a military intervention on a truly massive scale could (potentially!) alleviate the suffering caused by the Syrian war as a whole; what it wants to do instead is a very limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe – only a minuscule proportion of all human casualties in the war, probably less than 1%, were caused by chemical weapons.

In other words, the necessity/proportionality analysis under the third prong of the UK test would be meaningless if the Syrian war as a whole constituted the relevant humanitarian catastrophe, because the allied response is manifestly unsuited to stopping that catastrophe – it just can’t work. Which is why the UK redefines the scope of the catastrophe, ending up with the entirely morally arbitrary conclusion that killing a thousand people with chemical weapons requires a unilateral military intervention without Security Council approval, whereas killing hundreds of thousands with conventional weapons does not. As I explained before, this is not a morally or legally coherent concept of humanitarian intervention. Even if the US/UK/France strikes are perfectly successful and Assad never uses chemical weapons again – and this is a big if, in light at least of the apparent failure of last year’s strikes to achieve that purpose – the war and the atrocities will still go on. In short, Donald Trump’s  indescribably inane tweeting of ‘mission accomplished’ is exactly what’s wrong about this whole operation if it is seen from the lens of humanitarian intervention. What is accomplished is so, so very little, at a potentially very high cost.

To conclude, the UK’s humanitarian intervention argument is so bad even on its own terms that it is clear why the US and France chose to stay silent – no legal argument is in their view a better option than a palpably bad one. And every legal argument that could be put forward here is a palpably bad one – morally right or wrong, wise or stupid, the strikes are simply, unconditionally, unambiguously illegal.

The Attack on Syria and the Contemporary Jus ad Bellum

EJIL:Talk! - Sun, 04/15/2018 - 01:00

The United States, Britain, and France have attacked various chemical weapons facilities in Syria. Even before they acted, a number of commentators claimed that any such attack would be internationally unlawful. Below, I explain why that claim is too simplistic and how we should situate the operation in the jus ad bellum going forward. Let me say at the outset that I don’t support this operation and have serious doubts about the capacity of the United States, in particular, to implement a coherent policy in Syria. (I also think the operation violates U.S. law.) So, I’m not arguing that the operation was a good idea or even that it should be lawful. I’m making an analytic argument about how the jus ad bellum works.

The April 2017 Incident

This was not the first attack against Syria for its use of chemical weapons. In April 2017, the United States struck Syria for the same asserted reason: as a reprisal for the regime’s use of chemical weapons in violation of international law. At the time, most commentators said that the U.S. operation was unlawful. It was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by the Charter exceptions. Assad didn’t consent to the operation, the Security Council hadn’t authorized it, and it wasn’t taken in self-defense.

There is an ongoing debate about whether the jus ad bellum contains another exception for humanitarian interventions. The dominant view is that it does not. States (as a group) have periodically condoned unilateral operations that can be labeled “humanitarian,” but the vast majority of them have declined to support a generally applicable humanitarian exception to 2(4). They have instead insisted that no such exception exists. Further, even if there were one, its application to the 2017 operation would have been dubious. The operation looked more like a reprisal than like what we usually mean by a “humanitarian intervention.” President Trump said that it was designed “to prevent and deter the spread and use of deadly chemical weapons,” not to avert the many other atrocities that were being committed in Syria. Forcible reprisals are by almost all accounts unlawful.

So, it would be hard to show that the 2017 operation was consistent with the formal legal doctrine on the use of force. For a sophisticated analysis of why, see the latest piece by Jack Goldsmith and Oona Hathaway at Lawfare. I think Jack and Oona are basically right as far as the doctrine goes. But I also think the doctrine doesn’t get us very far. We know that, in the jus ad bellum, as in other areas of international law, the formal legal doctrine is at times dissociated from the law’s operation. If we want to describe or understand how the law actually plays out in concrete cases, we have to go beyond it.

And when we do, we see something that might be surprising. States broadly condoned the 2017 operation against Syria. Eleven states expressly endorsed it at the UN Security Council the next day: Australia, France, Germany, Italy, the Netherlands, New Zealand, Saudi Arabia, Turkey, the United Kingdom, and Ukraine. Several other states — Canada, Israel, Poland, Qatar, the UAE, Bahrain, Kuwait, Jordan, and Spain—supported the U.S. operation in alternative arenas. So did the European Union. A different group of states, including China, expressed ambivalence about the U.S. operation; these states neither supported nor criticized what the United States had done. Only a small handful of states, including Iran, Syria, and Russia, expressly condemned the operation as unlawful.

The 2017 incident thus was not a case in which one state discretely uses force and others look the other way. The United States publicly owned what it did. The Security Council met to discuss it. Many other states affirmatively supported it. And very few states were willing even to say that it was unlawful. Here, states (as a group) made a decision on the law; they decided to deprive Article 2(4) of both its operational relevance and its normative bite. That looks a lot like deciding to make the operation lawful.

I say “looks like,” because I’m not arguing that the 2017 operation was actually lawful. As discussed, I don’t think it satisfied the formal legal doctrine. But I also don’t think that ends the legal inquiry. The jus ad bellum consists of more than just the doctrinal standards. It consists of a broader set of social institutions, practices, and expectations. So, in my view, the lawfulness of the 2017 operation is an open question and less clear-cut than the formalist doctrine would suggest. What’s significant is that almost every state acted as if, or almost as if, the 2017 operation was lawful.

A Legal Precedent?

Of course, any incident can be a precedent in the sense that it happened. The critical question is to what extent states may rely on it to justify a subsequent operation, like the one that the United States, the United Kingdom, and France undertook on Friday night.

Two responses to that question are common and, in my view, not compelling. One goes something like this: the 2017 incident is not legally relevant because it occurred entirely outside of and in contempt of the law. To take this claim seriously, one would have to accept that the vast majority of states openly disregarded the law in 2017, that many of them publicly defended their insubordination at the very institution that is legally charged with assessing this conduct, and that nothing happened in response. Those who have advanced this claim have not offered an account of why states bothered to go to the Council and endorse the U.S. operation, if they were acting outside the law, or why the best interpretation of what they were doing at the Council — when they were explaining their decisions not to apply Article 2(4) — is practicing not law but a kind of politics that is antithetical to law. I do not find that argument persuasive. But even if it were, its implications would be profound: it would suggest that the jus ad bellum is irrelevant not just to the United States but also to the Security Council and the many states that endorsed or supported, in one way or another, the U.S. action in 2017. It would also suggest that, in 2018, states that wanted to use force in Syria could do so without giving the law much thought.

A second response is to read the 2017 incident as evidence that the legal doctrine is not as I have described it — to say that the jus ad bellum actually contains or is developing a formal exception to Article 2(4) for cases like the 2017 operation. A few scholars took this position at the time. They suggested that there is or might be a general standard that licenses force in an entire category of cases (however that category is defined). The problem with this position is that it distorts what states did in 2017. They clearly signaled that their support for the U.S. operation was contingent on the facts and not a reliable indicator of how they would respond in the future. The reaction was meant to be fact-specific—to condone one operation, without purporting to apply or establish a standard of general applicability.

That tactic is not new and sometimes works. Unlike a general standard, which automatically applies to and helps justify every operation that falls within its scope, a fact-specific decision is designed only for the case at hand. The reaction in 2017 was not meant to be controlling in or a sufficient justification for any subsequent operation. The problem is that the facts in Syria in 2018 almost replicate those from 2017. In both cases, limited, targeted air strikes were launched after the Security Council failed to take meaningful action in response to reports that the Assad regime used chemical weapons against its own people. So, the precedent is directly on point. It is very good evidence of states’ expectations and normative priorities for this situation.

And, indeed, it largely foreshadowed the reaction to the latest attack. Despite the views of many international lawyers on Twitter and elsewhere, it is striking how many states have once again condoned or supported the operation against Syria for its use of chemical weapons. According to news reports, only three states — Russia, China, and Bolivia — backed a draft Security Council resolution that would have condemned the operation as an act of aggression. Eight states voted against the resolution, and four states abstained on it.

Appraising the 2018 Operation (and the Jus ad Bellum)

Though the pattern from 2017 seems to have carried over, it is still too early to know what to make of the 2018 operation or what it reveals for the jus ad bellum going forward. But for now, I want to leave you with five takeaway points.

First, the fact that the jus ad bellum did not constrain the states that used force against Syria does not mean that it was irrelevant. Although the modern jus ad bellum is often described as an instrument of peace and a constraint on cross-border force, it has always also facilitated some force. When it licenses force, it legitimizes that conduct in law. In these circumstances, it makes force easier to execute and more difficult to challenge than it otherwise would be. This means that the jus ad bellum can be relevant and effective even when it does not inhibit states from taking or supporting legally dubious operations. It might still confer legitimacy on or deny legitimacy to a given operation. For the operations in Syria, the jus ad bellum put the states that wanted to use force in the position of having to work to legitimize their conduct. Of course, these states might not have cared about their legitimacy, but they seemed to. Both in 2017 and in 2018, they expended considerable energy building a case for themselves at the Security Council.

Second, the fact that states have not defended the operation in expressly legal terms does not mean that their justifications are outside of law. As far as I know, the United Kingdom is the only state that has justified the 2018 operation in explicitly legal terms. It is one of the few states that recognizes a humanitarian exception to Article 2(4) and has invoked that exception here. By contrast, in 2017, the United States presented a set of case-specific considerations that, in its view, warranted the use of force. It did not expressly assert that it was acting lawfully. Neither did the states that supported it. I suspect that the United States and most other states will follow a similar script in 2018.

Some international lawyers have interpreted that to mean that the United States and its supporters did not present a legal justification for the 2017 operation. This position assumes that a justification is “legal” only if it expressly invokes a variant of the word “law” or relies on the formal doctrine. I think that position misunderstand how states engage with the jus ad vellum — that thus how the jus ad bellum actually operates — in cases like these. In 2017 and today, the United States and other states that have supported it have made claims on the law. They have argued, if only implicitly, against the application of Article 2(4). They have argued that the legal prohibition of chemical weapons is nearly sacrosanct and can, in certain circumstances, justify a forcible response. These are arguments about the law.

Third, if the reactions in 2018 look like the ones in 2017, it would not be evidence that states recognize or want to create an exception to Article 2(4) for an entire category of humanitarian interventions or reprisals. They plainly do not. States are balancing a number of competing considerations and have decided that not applying Article 2(4) was preferable to the alternatives in these cases.

Fourth, given the conflicting messages that states themselves are communicating, the best answer to the question of whether the two operations are lawful is not a simple “yes” or “no.” Such answers contain an element of advocacy; claims of legality or illegality are normative statements dressed up as descriptive ones. In my view, the answer to that question has to be more nuanced, contingent, and qualified.

Finally, these sorts of decisions rightly raise slippery slope concerns. If the United States and its friends may use force unilaterally when they please, what’s to stop other states from doing the same? I begin to tackle that question in my forthcoming article. For now, it’s worth keeping in mind that the jus ad bellum has never worked as it was originally intended. The challenge has always been to find ways to maintain its relevance and normative salience in a deeply imperfect world. As I intimated here and elaborate on in my article, the best way to preserve its regulatory purchase in today’s security environment is almost certainly not to squeeze, into the four corners of the formal legal doctrine, every operation that states choose to conduct, tolerate, and support. The gap between the formal doctrine and this practice might be unsatisfying, but it is not necessarily dysfunctional — or worse than the available alternatives.

Copenhagen – much ado about little?

EJIL:Talk! - Sat, 04/14/2018 - 00:10

The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. Previous installments were agreed at Interlaken, Izmir, Brighton and Brussels.

On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity.

The agreed declaration is strikingly different:  Instead of being skeptical to the Court’s achievements and its course, the final Declaration is explicitly supportive of the Court and its independence from the states. The large backlog of cases gives reasons for “serious concern”, though the principal problem is not the Court, but rather some states’ failure to implement the Court’s judgments. 

What is new? The Court and national authorities

The Declaration does not accept the objections against dynamic interpretation, which the draft considered a major challenge. Rather, it says that the Court should give “appropriate consideration to present-day conditions” (26).

The Declaration establishes that the Court through its case law “has provided a body of case law interpreting most Convention rights. This enables the States Parties to play their Convention role of ensuring the protection of human rights to the full” (paragraph 8).

This is an important starting point. The extensive case law from the Court enhances national authorities’ ability to implement the Convention – as interpreted by the Court.

Accordingly, the Declaration (28 c) seems to affirm but also generalize parts of the Court’s emerging ‘margin of appreciation’ doctrine. There must generally [our emphasis] be “strong reasons” for the Court to overturn the decisions of domestic courts concerning restrictions of the rights in Articles 8 to 11, if they have performed a proportionality test in accordance with the criteria of the Court.  

This goes further than the Brighton and Brussels Declarations. The account is based on the jurisprudence of the Court. The Grand Chamber held already in the von Hannover (No. 2) case (2012) that “[w]here the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of domestic courts” (107). The Court’s subsequent jurisprudence has confirmed this approach..

In its Opinion on the draft Copenhagen declaration, the Court emphasizes the context specific nature of its pronunciations on subsidiarity since it “in any given case will depend on factors including the provisions involved, the exact nature of the complaints raised, the particular facts of the case and its procedural background. It is therefore a matter for the Court to assess each time as it performs its function in accordance with Article 19 of the Convention, and in light of the relevant case-law” (13).

This point of clarification from the Court seems compatible with the Declaration, which underscores that “[t]he margin of appreciation goes hand in hand with supervision under the Convention system,” and the Declaration adds – beyond what the Draft proposed: “and the decision as to whether there has been a violation of the Convention ultimately rests with the Court” (28 d). The Declaration also insists that ‘strengthening the principle of subsidiarity is not intended to limit or weaken human rights protection’ (10). The standard adopted in the Declaration may nudge the Court to clarify the principle of subsidiarity and criteria for the required domestic “balancing exercise.”

The Danish draft required the Court to exercise less strict review for immigrant cases. This vanished without a trace in the final Declaration.  The Declaration also dismisses Danish proposals that the Court generally should practice less strict review and defer more to the various “constitutional traditions and in light of national circumstances.”

Dialogue

A major ‘rebalancing’ proposal disappeared. The Danes did not succeed in their efforts to control the Court through a political ‘dialogue.’

Instead, the Declaration welcomes thematic discussions in the Committee of Ministers – but limited to “major issues relating to the execution of judgments” (37 d) (emphasis added). The Declaration confirms the value of a “constructive and continuous dialogue between the States Parties and the Court on their respective roles in the implementation and development of the Convention system, including the Court’s development of the rights and obligations set out in the Convention,” but subject to “the independence of the Court and the binding nature of its judgments.” The Declaration also expressly widens the dialogue to include civil society (33).

The ministers rolled back the draft proposal that the Danes would host a series of informal meetings to discuss “general developments in the jurisprudence of the Court”: the Declaration invites the Danish Chairmanship to host one such informal meeting in 2018 for States Parties and other stakeholders, but insists that the discussion must take place with “respect for the independence of the Court and the binding character of its judgments” (41).

The Declaration accepts more use of third party interventions. . But this is within normal judicial procedure, and does not pose the same risks of political interference with the Court’s independent interpretation of the Convention and application to cases.

Overload

The Declaration notes that “the Court’s caseload still gives reason for serious concern” (44) and the States Parties express “serious concern about the large number of applications still pending before the Court” (49). They will conduct “a comprehensive analysis of the Court’s backlog, identifying and examining the causes of the influx of cases from the States Parties so that the most appropriate solutions may be found at the level of the Court and the States Parties” (54 a).

The Declaration does not indicate any solution to the overload.  One obvious tension is between the right to individual application and the number of applications. The Declaration strongly emphasizes the right to individual application “as a cornerstone of the Convention system” (48). At the same time, it supports that 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” (3). Strict application of jurisdiction and admissibility requirements, to only consider cases where applicants have suffered a significant disadvantage, also restrict the possibilities for individual applications – while upholding the possibility that well-founded applicants can have redress (32). The Declaration does not say anything about the controversial Burmych approach adopted by the Court (2017), whereby it refused to consider cases stemming from Ukraine’s non-execution of a pilot judgment – placing the responsibility with the Committee of Ministers.

Conclusions

All in all, when compared to the Danish draft, the Declaration gives strong support to the Court’s independence and legal approach, and underscores the importance of implementation by the states and the need for other actors to push for this. It does extend, somewhat, the margin of appreciation.

So what is the upshot? We may draw some more general and tentative conclusions. 

  • The process shows that worries about a ‘democratic deficit’ of an independent ECtHR and fears of unchecked ‘rule by judges’ may be overdrawn, whilst illustrating another democratic deficit: of holding politicians accountable for secret inter-state negotiations. Clearly, the state parties could have agreed with the Danish draft to restrain the Court’s discretion. So the Court is not completely beyond control and change by domestic politicians, though the states have agreed to entrench the existing agreements so that changes require unanimity. The Declaration could have followed the Danish drafters in objecting to the Court’s practices, but instead explicitly confirms several aspects, thus providing an ex post democratic endorsement beyond tacit consent. Such ex post checking is an important form of accountability.
  • The state parties deliberately chose to not rein in the Court’s independence. Why? Perhaps because enough of the states recognize that the sacrifice they risk by having their own democracies subject to such regional human rights review by the Court is a necessary and tolerable price to pay for a European human rights regime that provides some protection and promotion of important values in the long run: – democracy, rule of law and human rights in Europe.
  • The Copenhagen Declaration endorsed a more attractive version of a principle of subsidiarity than what seemed to animate the Danish draft. The Declaration’s understanding of subsidiarity is not negative and state centric – not focused on respecting the autonomy of states – but rather a version that supports various actors’ initiatives to promote what states’ sovereignty should also ensure: the human rights of individuals.- Should the hosts be happy with the result? On the one hand, a long list of proposals in the draft did not survive into the final Declaration. On the other hand, the hosts have stimulated a thorough discussion among the states – and political parties, civil society and the academic community – about the powers the Court needs vis-à-vis the state parties. It will be hard for the Danish government to lament the loss of democratic control when their failure to constrain the independent Court is due to other democracies refusal to thus restrain the Court, on the basis of deliberation. Indeed, optimistic supporters of the Danish government may maintain that it got the best result it might hope for, in a two-level game partly shrouded in secrecy. The Danish government can honestly tell their  voters that they tried their best to roll back the Court and push for more domestic control over issues of asylum – yet their proposal was rejected by the other European democracies.

OPCW Confirms the Identity of the Chemical Agent in Salisbury Attack

EJIL:Talk! - Fri, 04/13/2018 - 01:56

The OPCW Technical Secretariat released yesterday the findings of its investigation into the Salisbury affair. The report confirms the UK account of the nerve agent, without however specifically naming it in the unclassified executive summary; it also states that the agent was of a high purity, implying its manufacture by a state, but without naming Russia as the source (much in the same way as the UK’s own chemical weapons lab). Here are the key bits:

8. The results of analysis of biomedical samples conducted by OPCW designated laboratories demonstrate the exposure of the three hospitalised individuals to this toxic chemical.
9. The results of analysis of the environmental samples conducted by OPCW designated laboratories demonstrate the presence of this toxic chemical in the samples.
10. The results of analysis by the OPCW designated laboratories of environmental and biomedical samples collected by the OPCW team confirm the findings of the United Kingdom relating to the identity of the toxic chemical that was used in Salisbury and severely injured three people.
11. The TAV team notes that the toxic chemical was of high purity. The latter is concluded from the almost complete absence of impurities.
12. The name and structure of the identified toxic chemical are contained in the full classified report of the Secretariat, available to States Parties.

 

Unlawful Reprisals to the Rescue against Chemical Attacks?

EJIL:Talk! - Thu, 04/12/2018 - 07:00

Donald Trump has threatened Syria with a ‘big price to pay’ for an alleged chemical attack on 7 April in a Damascus suburb. Last year, in similar circumstances, Trump authorized an attack of 59 Tomahawk missiles that reportedly killed 9, including 4 children. The French and German governments responded with a joint press release finding it a ‘just and proportionate’ response. They did not say ‘lawful’–nor could they.

Armed reprisals are uses of military force that follow an incident, usually to punish or in retaliation or revenge and which do not fit the exception to the prohibition on the use of force for self-defence. See the same conclusion here  and here. Reprisals need Security Council authorization to be lawful. The Security Council has never authorized a reprisal and will not in the case of Syria.

In 1970, the General Assembly stated clearly in its Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States that among the fundamental rights and duties of states, is the ‘duty to refrain from acts of reprisal involving the use of force’ against other States. The International Court of Justice found in its 1994 advisory opinion on the Legality of Threat or Use of Nuclear Weapons that ‘armed reprisals in time of peace […] are considered to be unlawful.’ In the Oil Platforms case, it further held that US attacks on Iranian sites were not lawful acts of self-defense because of their retaliatory nature.

Thus, unauthorized reprisals are always unlawful, and, indeed, as Derek Bowett wrote in a 1972 article in the American Journal of International Law: ‘Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal.’ Nevertheless, Bowett preceded to construct an argument to reverse the ‘proposition’ eight years after the UK was condemned by the Security Council in Resolution 188 of 1964 for bombing Fort Harib in Yemen. The Council found the bombing an unlawful reprisal and ‘incompatible with the purposes and principles of the United Nations.’ (It is noteworthy and to the UK’s credit that it did not veto the resolution.)

Bowett had undertaken a similar effort at ex post facto justification when he came up with the ‘Caroline Doctrine’ to attempt to justify the force used in the 1956 Suez Crisis by the UK, France, and Israel. In reaction to the wide condemnation of the UK, he proposed a re-interpretation of UN Charter Article 51 on the right of self-defence reading out ‘if an armed attack occurs’ to replace it with a right to use force in cases of necessity that are ‘instant, overwhelming, leaving no choice of means, and no moment of deliberation’. Following 9/11 and the US declaration of a ‘war on terror’, the British government referenced Bowett’s argument as a better legal basis for using force than America’s assertion of global war. While perhaps an improvement on the ‘war on terror’, Bowett’s Caroline argument nevertheless conflicts with the Charter, a fact that is being underscored increasingly by scholars today.

Bowett’s arguments on reprisals have had and are likely to have far less influence. First, the US seems to have lost interest in providing legal justifications. None were offered in April 2017, and the new US National Security Adviser John Bolton published an opinion during the Kosovo crisis concluding that international law is an ‘academic sham’. Why bother making a weak argument where none will do?

This point in Washington has been reached after a long, steady decline in US respect for international law restrictions on the US of force. During the Cold War, the US tended to manipulate the facts, rather than the law. Respecting reprisals, the US tried to justify retaliatory attacks on Libya in 1986 as self-defence. Ronald Reagan ordered air attacks on Libyan military sites in Tripoli and Benghazi ten days after a terrorist bombing of a disco in Berlin. The U.S. said it had evidence that Libya was planning more acts of terrorism. On this basis, US government lawyers and scholars argued the bombing was lawful as self-defense under Article 51, though the facts fell far short of meeting the legal requirements.  The Berlin incident did not amount to a significant armed attack per the standard set out in the Nicaragua case.  Evidence of the necessity for military action was also lacking. Whatever vague evidence the U.S. had amounted to criminal plots, not armed attacks. The UN General Assembly condemned the Tripoli operation, the US not having the grace to abstain from using its veto in the Security Council.

With the end of the Cold War, US attempts at legal justifications began to noticeably dwindle. President Bill Clinton ordered unlawful armed reprisals on several occasions.  In 1993, he ordered an attack on government buildings in Baghdad in response to an alleged attempt to assassinate former President George H.W. Bush. In 1996, when Iraqi troops moved against Kurdish separatists in northern Iraq, Clinton ordered attacks in southern Iraq. The US and UK actually tried to argue that these attacks on Iran were lawful under the UN Security Council resolutions that had been adopted against Iraq following its invasion of Kuwait in 1990. (Yes, the same argument the two States tried in 2003 when invading Iraq.)  France and Russia disagreed in 1996 that resolutions connected with Kuwait’s liberation could justify the use of force years later for very different purposes. Even if the US and UK did have some sort of Security Council authorization, bombing southern Iraq to retaliate for action against Kurds in the north violated the principles of necessity and proportionality.

Clinton also carried out unlawful reprisals following terrorist attacks on the United States embassies in East Africa. He ordered missile attacks on Sudan and Afghanistan, which were a significant step beyond Reagan’s attack on Libya for state-sponsored terrorism. The US said the target in Sudan was a chemical-weapons related facility producing inputs for VX nerve gas. Many States condemned the air strike when the site turned out to have no connection with chemical weapons.

With 9/11, US justifications for using force became ever more attenuated variations on self-defence. In 2013, when Barack Obama sought Congressional authorization to use force in Syria following a use of chemical weapons, he asserted that a military strike was somehow linked to US national security. The Republican-controlled Congress refused to give him authorization, not because of the flimsy legal basis but because Republicans did not wish to give Obama a win.

At least Trump is no hypocrite. He offers no legal basis for attacking Syria other than to enforce the law in the case of a war crime. In other words, he plans to violate the prohibition on the use of force to send the message of how important it is to comply with the law on chemical weapons. And he is doing so with relish as he tweets, ‘Get ready Russia, because [the missiles] will be coming, nice and new and “smart!”’ 

French President Macron has actually chosen to encourage Trump and Britain’s Prime Minister May is still considering options. There should, however, be only one option for States committed to the rule of law: Use the means available in international law to seek accountability for law violations. It is a dangerous moment in history to do anything else.

The Dispute between Guyana and Venezuela over the Essequibo Region

EJIL:Talk! - Wed, 04/11/2018 - 07:00

Introduction

On 29 March 2018, Guyana filed an Application against Venezuela before the International Court of Justice (‘ICJ’) concerning the two States’ long-standing dispute over the Essequibo region. This Application was filed after the UN Secretary General decided on 30 January 2018 that the dispute between Guyana and Venezuela should be submitted to the Court. The Secretary General’s decision was welcomed in Guyana and received support from Caribbean countries. But it was received with some hostility in Venezuela. A decision by the ICJ could be the final act in a dispute which has, sometimes bitterly, divided the neighbouring countries for over a century. The dispute between the two States includes both procedural and substantive elements.

Procedurally, the parties disagree (and have disagreed for some time) as to whether the ICJ has jurisdiction to hear the dispute. As will be discussed below, the Secretary General’s role in the dispute is based on the provisions of the Geneva Agreement of 1966 between the UK (the colonial power in Guyana at that time) and Venezuela. Under this agreement, in the event that bilateral efforts to solve the dispute fail, the Secretary General is empowered to choose ‘…another of the means stipulated in Article 33 of the Charter of the United Nations…’. However, questions arise as to whether the Secretary General may submit the dispute to the ICJ in a manner which is binding on both parties. As for the substantive aspect of the dispute, the parties disagree as to the alleged nullity and invalidity of an arbitral award handed down in 1899 which found that the Essequibo region lies on British Guiana’s side of the border with Venezuela.

The resolution of the dispute is of significant economic interest to the parties, as the area is rich in natural resources: the world’s largest untouched oil reserves lay in the east of Venezuela, around the Orinoco river delta, close to the disputed border with Guyana. Natural resources are also present in the (as yet undelimited) coastal waters, and Guyana’s exploratory activities in the area have been protested by the Venezuelan government. In 2015, a Venezuelan Presidential Decree (1787, as amended by Decree 1859) laid claim to Atlantic waters off the Essequibo coast, and Venezuela’s navy has intervened in the disputed area on numerous occasions. The Decree met with protest from Guyana. As is common in these disputes, nationalist sentiment rides high as sovereignty over the area is seen as a matter of national honour and pride, and the rhetoric concerning the dispute has intensified on both sides. Venezuelan officials and civil society (see here and here) have decried the UNSG’s decision to submit the dispute to adjudication by the ICJ as a ‘hostile’ act against Venezuela. In Guyana, where Venezuela’s conduct is often perceived as a form of bullying by its more powerful neighbour, the Government is organising a public awareness campaign, including educating schoolchildren about the controversy.

The dispute has a long and complex history, so in this post we will offer only a brief outline of its historical context and the main issues now in contention between the parties, including the question of the ICJ’s competence to hear and determine the issue.

Background and the Paris Award of 1899

The disputed area between the two States lies roughly between the Orinoco and the Essequibo Rivers. Venezuela lays claim to this territory as successor to the Spanish Empire, from which it declared independence in 1810, on the basis that the Spanish established sovereignty in the late-16th century by discovering, settling and exercising political control over the region. The British, on the other hand, claim to have acquired the territory from the Dutch by a formal cession under the terms of the Anglo-Dutch Treaty of 1814. According to the British, Dutch subjects had settled in the area in 1616 and continued trading on the Essequibo and other rivers in the vicinity in the following decades. Dutch sovereignty over these settlements was recognized by Spain in 1648 when, as part of the Peace of Westphalia, the Spanish and Dutch signed the Peace of Münster to end the Eighty Years War between them. Under Article 5 of the Peace of Münster, Spain agreed that the Dutch would retain all of the ‘lordships, cities, castles, fortresses, trades and lands in the… West Indies’ under their possession at that time, but the treaty did not specify the boundary dividing their respective possessions in the region. From the 1650s onwards, the Dutch expanded their settlements and trading activities in the area, and the Dutch West India Company controlled the coast between the Essequibo and Orinoco rivers. The British seized the Dutch settlements in 1803, and in 1814 the Dutch formally ceded to them the colonies of Essequibo, Demerara and Berbice, though, again, the boundaries of these colonies remained undefined. In 1831, the British consolidated these settlements as British Guiana.

In 1840, Britain commissioned a German surveyor, Robert Schomburgk, who had previously explored the area, to delineate the boundaries of British Guiana (the ‘Schomburgk Line’). Venezuela disputed Schomburgk’s line, and in 1850 the parties agreed not to occupy the disputed area. Despite this, in the late 19th century, British citizens settled in the area, prompting renewed protests by the Venezuelan government, which later broke off diplomatic relations and sought assistance from the United States. In 1897, the parties agreed to submit the dispute to arbitration. A tribunal was constituted with two British members, two Americans, and the Russian jurist Fiodor de Martens as president. The tribunal sat in Paris and, during the proceedings, Venezuela was represented by American counsel. The tribunal issued a short, unanimous award in 1899, offering merely a description of the course of the boundary line, without giving any reasons for the decision. The award granted Britain almost 90% of the disputed territory, but assigned to Venezuela a valuable portion at the mouth of the Orinoco river. Under Article XIII of the Treaty of Arbitration, the parties had agreed to consider the result of the arbitration as ‘a full, perfect, and final settlement’ of the issue, and Venezuela did not protest the award after it was delivered. The border was subsequently fixed by the Anglo-Venezuelan Boundary Commission in 1905.

Claims of fraud and the Geneva Agreement

On 8 February 1944, Severo Mallet-Prevost, a junior lawyer in the Venezuelan legal team before the Paris Tribunal, wrote a letter which was posthumously published in the American Journal of International Law in 1949 ((1949) 43 AJIL 523). The letter contained allegations of impropriety by the tribunal, claiming that the award was the result of a secret deal between the president of the tribunal and the British arbitrators. In 1962, Venezuela declared that it would no longer abide by the 1899 Award on the basis that it was null and void. It claimed that the decision had not been based on a fair arbitral process, but was the result of a political deal made behind Venezuela’s back. The claim was communicated in writing to the UK and was also made, publicly, in the UNGA. The two States held talks and in 1966 signed an agreement to resolve the controversy (the ‘Geneva Agreement’). Article I of the Geneva Agreement provided for the establishment of a mixed commission, tasked with seeking ‘satisfactory solutions for the practical arrangement’ of the dispute. Furthermore, pursuant to Article IV, in the event that the mixed commission failed to reach a solution after four years, the parties would be required to select one the means of peaceful dispute settlement in Article 33 of the Charter to resolve the conflict. In accordance with Article VIII of the Agreement, Guyana became a party to the treaty when it gained independence in 1966.

The mixed commission referred to in Article I of the Geneva Agreement was established in 1966 and, after holding 16 sessions, its term expired in 1970 without a resolution to the dispute. In that same year, the parties agreed the Protocol of Port-of-Spain, which suspended the operation of Article IV of the Agreement for 12 years. The Protocol expired at the end of its term in 1982, after Venezuela decided not to renew the agreement.

In 1990, in accordance with Article IV(2) of the Geneva Agreement, the parties sought the Good Offices of the UN Secretary General in an effort to move the dispute forward. In 2016, the UNSG announced that absent significant progress towards a solution of the controversy by the end of 2017, and unless both parties jointly request that he refrain from doing so, he would choose the ICJ as the next means of settlement. As noted, after a series of unsuccessful meetings between the parties, the UNSG announced his decision to submit the dispute to the ICJ in January 2018.

Present dispute

The dispute between the two States includes both substantive and procedural elements.

Substantively, this is not a straightforward territorial dispute. Indeed, the parties disagree as to whether a territorial dispute exists at all. The current issue turns on the meaning and implications of the 1966 Geneva Agreement. Venezuela’s understanding is that the Geneva Agreement constitutes an implicit acknowledgement by the parties that the 1899 Award is invalid, with the result that the dispute between the two countries concerning sovereignty over the Essequibo remains unresolved (see here, here and here). According to Guyana, the Geneva Agreement carries no implications concerning the validity or nullity of the 1899 Award; in its view, the only subject in dispute between the parties is whether the 1899 Award is, as Venezuela asserts, null and void (see here). Indeed, in its Application, Guyana has asked the Court to confirm that the award is valid and binding.

Procedurally, the situation is certainly unlike any other, as noted by our colleague Mike Becker on Twitter. In Corfu Channel the UN Security Council recommended that Albania and the UK refer their dispute to the Court. But in this case, the UNSG seems to have the power to decide which means of dispute settlement to pursue: pursuant to Article IV of the Geneva Agreement, the UNSG ‘shall choose’ the means (absent agreement by the parties). The question is whether as one of those means, the UNSG can choose judicial resolution by the ICJ.

The parties have long disagreed on whether the ICJ has jurisdiction to hear the dispute. The Geneva Agreement does not expressly mention the ICJ as a means of dispute settlement. Rather Article IV(2) states that:

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

Article 33 of the UN Charter does not expressly refer to the ICJ either, but it mentions ‘judicial settlement’ as one of the means for the pacific settlement of disputes. It seems logical to interpret, as the UNSG has done, Article 33 as including judicial settlement by the ICJ, seeing that it is the principal judicial organ of the UN, and that both States are parties to the ICJ Statute. On this interpretation, Article IV of the Geneva Agreement could be read, as Guyana has done in its application to the Court, as a compromissory clause which confers jurisdiction on the ICJ, albeit indirectly.

This interpretation is, however, disputed by Venezuela for four main reasons (which it has raised at different times: see here and here). First, because the decision of the UNSG exceeds its competence as a ‘good officer’ as agreed by the parties. Second, because such an interpretation of Article IV would contravenes the spirit, purpose and object of the Geneva Agreement which is, as stated in its preamble, to amicably resolve the dispute in a manner acceptable to both parties. Third, because a judicial resolution of the dispute would be unacceptable to Venezuela since, in accordance with its longstanding reservations about third-party dispute settlement, it does not recognise the jurisdiction of the Court either generally or for this dispute specifically. Finally, and this is more properly a question of admissibility, because the means of dispute settlement referred to in Article 33 of the UN Charter are successive, with the result that adjudication may not be pursued until attempts to seek a solution by diplomatic negotiation have been exhausted.

It also remains to be seen whether Article IV of the Geneva Agreement grants the Court jurisdiction to hear all of the claims submitted by Guyana, since Guyana has included in its Application, along with the question of the validity of the 1899 Award, claims that Venezuela bears responsibility for the infringement of its territorial sovereignty, its territorial integrity and for the threat or use of force in the disputed area. Guyana’s Application would seem to require the Court to decide these matters on the basis of customary international law, since the Geneva Agreement does not include any of these rules.

What the next practical steps are remains somewhat unclear. In particular, it is uncertain whether under the Geneva Agreement either of the parties can seise the Court unilaterally or whether they need to do so jointly—which raises issues similar to those considered by the Court in Qatar v Bahrain. A joint application was most unlikely, given Venezuela’s vehement and repeated objections to the UNSG’s decision. Guyana’s only option would have been to file the claim unilaterally, which it has now done. As expected, this choice was objected by Venezuela in a diplomatic note of 30 March 2018, in which reiterated its position in respect of the ICJ’s lack of competence to hear the dispute. Venezuela also suggested the resumption of diplomatic negotiations to resolve the dispute and to evaluate whether to continue with the UNSG’s good offices to this end. Guyana’s Foreign Affairs Minister has since refused Venezuela’s request, stating that Venezuela would have to abide by a decision of the ICJ. Given Venezuela’s distrust of international dispute settlement (it has recently withdrawn from the ICSID convention and the jurisdiction of the Inter-American Court of Human Rights), it would be unsurprising if it decided not to appear before the ICJ in the proceedings unilaterally commenced by Guyana—though one would hope that the Government will not choose this course of action.

Was the UN Human Rights Council Wrong to Back China’s “Shared Future” Resolution?

EJIL:Talk! - Tue, 04/10/2018 - 07:00

On March 23rd, the 37th session of the UN Human Rights Council adopted a resolution (A/HRC/37/L.36) introduced by China, calling for “mutually beneficial cooperation” among states to promote human rights, with “the aim of building a community of shared future for human beings.” The vote was contested, with 28 states voting in favor, 17 abstaining, and one, the United States, voting against the motion. There has also been considerable criticism by legal experts and political officials in the West, who have argued that China’s resolution is an attempt to indirectly excuse its own rights lapses or to dilute the idea of international monitoring.

The substantial opposition, or at least discomfort, with the resolution seems somewhat inconsistent with the general thrust of the text, which consists largely of affirmations of the importance of human rights and endorsements of existing UNHRC practices and procedures. However, two aspects of the document (aside from the dissonance between rhetoric and practice) have been identified as problematic by critics. The first is the apparent focus on “state to state” obligations rather than on individuals as the focus on international human rights law, and the associated invocations of “cooperation” and “multilateralism” as opposed to “unilateral” critique. The second, and as I will argue the less convincing of these criticisms, is that by giving international endorsement to China’s “community of shared future” concept, the UNHRC is being made a vehicle for ideological propaganda of the Xi Jinping administration.

Dividing Positions from Practice

There are reasons to take the first ground of critique quite seriously. There is no question that China has historically sought to shift focus from individuals as rights-bearers to the rights and obligations of states, as well as to avoid external criticism for its rights record. It has opted out of optional protocols that establish individual complaint mechanisms in international human rights treaties and has, for example, issued reservations to Article 20 of the Convention against Torture allowing confidential inquiries by the Committee of the CAT. In terms of its practice on the UNHCR and in other UN human rights contexts, it has by various means discouraged NGOs and individuals from engaging with reporting mechanisms, rising to the level of harassment or detention of civil society members seeking to do so. In one of the more infamous such cases, the activist Cao Shunli, who sought to participate in China’s Universal Periodic Review in 2013, was apprehended by police at Beijing’s airport and then detained for several months—only to die while in custody, allegedly due to refusal of state security agents to provide medical care for several long-term illnesses.

It is especially because of cases like these, in which activists continue to be targeted for quite severe forms of repression, that human rights experts and others look at any Chinese initiative in this domain with skepticism. Six rapporteurs, for example, issued a joint statement on the same day that China’s resolution was adopted expressing their concern over reports of the deteriorating health of a Chinese lawyer, Jiang Tianyong, who was imprisoned in late 2016 on charges of “subverting state power,” based on his attempts to provide counsel to other human rights lawyers facing similar charges. More generally, China has resisted calls to ratify the ICCPR, which it signed in 1998, and has rejected dozens of the recommendations it received in its prior UPR rounds.

On the other hand, however, China’s resolution can hardly be interpreted as calling on other states to emulate its own human rights practices. With language emphasizing, e.g., that “all human rights derive from the dignity and worth inherent in the human person and that the human person is the central subject of human rights and fundamental freedoms,” there does not seem to be any risk that the resolution could be taken as an endorsement of severe violations like those committed against Cao Shunli or Jiang Tianyong. Could it, though, be taken as endorsing China’s position with respect to limiting civil society involvement in human rights monitoring? Probably no more than the highly similar statements that have been adopted in multiple previous resolutions, such as A/HRC/RES/25/3, calling for “enhancement of international cooperation in the field of human rights.” That 2014 resolution was promoted by China, Russia, and Iran, but adopted by consensus. It covers much of the same ground as the 2018 resolution, but contains more detailed instructions regarding the specific forms of “international cooperation” that are meant: E.g., the provision of special funds for developing countries to participate in UPR review, the strengthening of regional mechanisms for crisis management, and general promotion of inter-state dialogue. Though these initiatives are clearly not oriented towards individual rights protection, neither do they seem to renounce or threaten it in any way. Indeed, they might even have some effect on promoting poorer countries to engage with the UPR process.

The 2018 resolution is thus almost entirely a reaffirmation of the earlier 2014 resolution, but while the earlier was adopted by consensus, the latter is being decried in exaggerated terms as a “Trojan Horse” for the UN human rights machinery. The US was a member of the HRC at the time of both resolutions, but it has led opposition only to the more recent (weaker and briefer) statement. Why is this the case? The probable answer lies in the latter of the critiques noted above, which sees the resolution as a subtle attempt to use the UNHRC to endorse China’s state ideology, via the inclusion of a reference to “building a community of shared future for human beings.”

Coded Language?

The phrase “community of shared future for humanity” (人类命运共同体) was recently incorporated into the Chinese Communist Party’s charter in November 2017 and into the PRC state constitution in March 2018. It is very closely associated with the ideological platform of Party General Secretary and PRC President Xi Jinping. Indeed, it is one of the 14 points of “Xi Jinping Thought.” In terms of specific policies, it is most often discussed in relation to Xi’s massive overseas infrastructure investment program, the Belt and Road Initiative (aka “One Belt, One Road”), as well as forms of international cooperation such as the Paris Agreement. Though certainly having a prominent role in Party ideology, it has not been given any expansionist connotations, or indeed used to indicate anything else other than the Xi administration’s commitment to developing cooperative ties with other states and maintaining involvement in regional and international institutions. There does not seem to be any “hidden meaning” in the “community of shared future” phrase. Indeed the phrase actually appears to ultimately derive from a sociological term, Schicksalsgemeinschaft, that appears in the work of Max Weber and that has been referenced fairly frequently in policy and diplomacy debates in Germany as well as in Japan and other East Asian states.

It is doubtful whether the US and other countries would really have grounds to be fearful over a term with such an anodyne technocratic genealogy, even if it were, as the US diplomat Jason Mack claimed, a Chinese attempt to “glorify their head of state by inserting his thoughts into the international human rights lexicon.” In any case, previous resolutions adopted by the General Assembly, such as the November 2017 General Assembly resolution A/RES/72/250 on “further practical measures for the prevention of an arms race in outer space,” do already contain Xi’s exact phrase in their official Chinese versions (the UNHRC resolution, like two others adopted last year, actually contains only a near-approximation that sounds rather different in the Chinese version).

China’s continued exclusive focus on state-state rights and obligations, and especially its practices of deterring, intimidating, or punishing civil society members who try to participate in UNHRC and other rights monitoring processes, are serious grounds for concern. So are statements like that of the head of China’s UN mission to the UN, Yu Jianhua, rejecting the practice of “naming and shaming.” But advocating “mutual cooperation” among states poses no intrinsic threat to the role of the individual as the subject of international human rights law. Rather than seeing hidden threats in China’s dry diplomatic jargon, the US and others concerned over China’s international role should do more to directly promote its ratification of the ICCPR, adoption of UPR recommendations (several of which, such as abolition of the Reform Through Labor system and improving procedural protections against torture, it has actually proceeded to implement despite earlier officially “rejecting” them), and better treatment of its lawyers and activists.

The recent focus on “comparative international law” is an opportunity too for scholars and practitioners to reflect on the best way to pursue multilateral dialogues that result in meaningful convergence on individual rights protection. If the aim of Western states is to continue socializing China into key norms of the international community, this goal would probably be better served by more frequently, frankly, and publicly raising cases like that of Cao Shunli (though it is now too late to do so), Jiang Tianyong, Gao Zhisheng, et al.; by taking the lead in treaty ratification and compliance rather than (in the US case) setting an example for the opposite; or by making civil and political rights progress a prerequisite for economic, technological, and other forms of cooperation—rather than by issuing criticisms over those instances in which China actually does attempt modest engagement with the international human rights system.

The Katanga and Al Mahdi Appeals Judgments and the Right of Access to Justice for Victims: Missed Opportunity?

EJIL:Talk! - Mon, 04/09/2018 - 12:30

On 9 March 2018, the International Criminal Court (ICC) Appeals Chamber rendered two judgments on reparations, namely the Al Mahdi and Katanga cases. The general principles and approaches of ICC reparations have been previously addressed in this blog (here and here). This time, the two appeals judgments were the first occasions for the Court to review the right of access to justice for victims during these reparations proceedings. InAl Mahdi, the Trial Chamber delegated the task of eligibility screening to the Trust Fund for Victims (TFV), thereby allegedly failing to accord victims a right to judicial assessment of their applications for reparations by a competent tribunal. In Katanga, it was argued that the right of victims to receive continuous legal representation was essential for a meaningful and practical right to claim reparations, given the complexity of the proceedings.    

At the outset, both rights to judicial assessment by a tribunal and to legal representation come within the purview of the right of access to justice, a right guaranteed in international human rights instruments (ICCPR article 14(1); ECHR article 6(1); ACHR article 8(1); ACHPR article 7(1)). The purpose of this post is not to say that the appeals judgments were incorrect in affirming the Trial Chamber’s decisions on these issues because the rights of victims had been violated. Rather, it takes a helicopter view on the way these issues have been dealt with. Whereas the Al Mahdi judgment recognises that the judicial assessment of reparations must ultimately be before trial chambers, the Katanga judgment dodged the relevance of continuous legal representation of victims to their right of access to justice during the reparations proceedings.

Bearing in mind that chambers are obliged to ensure the compliance of international human rights law (Rome Statute, article 21(3); ICC Rules of Procedure and Evidence, Rule 97(3)), both judgments may have indicated a judicial practice of non-interventionism within the Court by over-relying on procedural discretions.

Al Mahdi: delegation of administrative screening permissible

In Al Mahdi, the Legal Representative for Victims (LRV) contended that the Trial Chamber erred in granting a “power of adjudication” to the TFV, a non-judicial entity (LRV’s Appeal Brief, p. 11). On this issue, Trial Chamber VIII had earlier relied on the “impracticability of identifying all those meeting its individual reparations parameters” (Reparation Order, ¶144).

The Appeals Chamber first noted that the ICC legal text does not directly “regulate the content of a chamber’s final decision on reparations”, referring to the discretion of trial chambers in article 75(1) when making reparations orders and rule 98(2) which allows chambers to order that a reparations award “be deposited with the Trust Fund where [..] impossible or impracticable to make individual awards directly to each victim.” (¶60). In a more extreme tone, the Appeals Chamber held that “it is within a trial chamber’s discretion to grant, or not to grant, individual reparations and that, therefore, victims do not have a right to an individual award as such” (¶66).

Importantly, for the first time, the Appeals Chamber dispersed the speculation of whether the Trial Chamber shall have the final say in the TFV’s eligibility screening:

  1. The Appeals Chamber notes that the entire procedure for implementation of the Impugned Decision, including the screening process by the TFV, will remain under the supervision of the Trial Chamber. […]

  2. The Appeals Chamber finds that the oversight of the Trial Chamber exercising judicial control over the screening process shall include that the Trial Chamber finally endorse the results of the screening, with the possibility of amending the conclusions of the TFV on the eligibility of applicants for individual reparations, upon request of those applicants, or proprio motu by the Trial Chamber.

This oversight requirement appears to be in line with the robust approach in international human rights law. As correctly noted by the Appeals Chamber, in any event, the non-judicial nature of the TFV would be remedied by the final determination of trial chambers (¶¶68-69). On ICCPR article 14(1) (right of access a tribunal), the Human Rights Committee stated that the determination of civil rights (in this case the right to reparation) “must be done at least at one stage of the proceedings by a tribunal” (GC No. 32, ¶18). The European Court of Human Rights consistently found that ECHR article 6(1) an administrative procedure may precede the determination of civil rights by tribunals as long as a judicial body has subsequent control (Zumtobel v. Australia, ¶64; Albert and Le Comptev. Belgium, ¶29).

Katanga: no continuous legal representation for victims

In Katanga, the Office of Public Counsel for the Victims (OPCV) alleged that the Trial Chamber failed to appoint a new counsel for 32 victims immediately after approving the withdrawal of the former legal representative. It averred that “there should be ‘no gaps’ in the legal representation of victims as they must remain represented throughout the proceedings” (OPCV’s Appeal Brief, ¶32).

Unlike Al Mahdi, the Katanga Appeals Judgment did not recognise the issue as one to be analysed alongside international human rights law. Rather, it simply notes that firstly the Rules and Regulations of the Court sporadically requires the appointment of legal representative to victims “where the interests of justice so require” and secondly “the Court’s legal texts do not expressly provide that victims must be represented by counsel at all times”. Accordingly, the Appeals Chamber dismissed the OPCV’s appeal based on the late stage of the reparations proceedings without much opportunity to submit new evidence to substantiate specific applications for reparations.

In so doing, the Appeals Chamber glossed over two important areas. First, it restricted the meaning of “interests of justice” to merely the submission of evidence, in disregard of other aspects of access to justice, such as to ensure the flow of information and to receive legal advice. Second, it neglected the OPCV’s reliance on human rights jurisprudence. For instance, the European Court of Human Rights in Artico v. Italyemphasised a positive obligation to ensure an effective fair trial right (¶36). The case of Pakelli v. Germanyfound that legal representation is determining for one to develop legal arguments, in particular given the complexity and voluminous nature of the case (¶37).

Implications beyond the judgments

No doubt, both judgments have filled in the legal voids of the ICC reparations proceedings. In Al Mahdi, the Appeals Chamber finally delineated part of the blurred line on the TFV’s functions vis-à-vis the trial chambers. In ongoing cases, such as Bemba which deals with 5000 individual applications for reparations, the Trial Chamber can now comfortably fasten up the process by charging the TFV with permissible tasks. In fact, functional delegation is no stranger to the ICC chambers: think about the delegation by Single Judge Fernández in the Gbagbo pre-trial decisionand by two Kenya chambers (Ruto and Sangand Muthaura andKenyatta) during trial concerning the participation of victims. In the context of reparations proceedings, as noted in the Al Mahdi judgment, trial chambers are to maintain “a high level of control over the activities of the TFV” which gives effect to victims’ right to access a tribunal.

Likewise, the Katanga Appeals Judgment provides some guidance, albeit not comprehensively, on when a trial chamber should take active steps to ensure legal representation for victims during the reparations stage.

There, however, seems to be a worrying trend for the Court, where faced with human rights issues, to develop an instrumental argument that because the ICC legal text does not expresslygovern or providefor certain rights, they are not directly transposed into the unique system of the Court. In particular, the Katanga judgment refers to the absence of an absolute right for continuous legal representation. The Al Mahdi judgment relies substantially on the discretions conferred upon trial chambers under article 75 of the Rome Statute, based on which it held that “it is within a trial chamber’s discretion to grant, or not to grant, individual reparations” (¶66).

While this may be satisfactory in a strictly legalistic approach, such micro-analysis is not sustainable and puts at risk the rights of the parties in the entirety of the proceedings. More could have been done by classifying the action or failure of trial chambers as (un)lawful. This is particularly needed when the part of the ICC’s mandate on reparations was highly debated at Rome.

Rightfully so, to an extent, the Appeals Chamber must still defer to the trial chambers in the cases of factual errors. Yet, the failure to guarantee procedural rights of parties would appear to be a legal error. By over-relying on discretionary clauses, the Court may be blurring the standard of review in its non-interventionist practice and without high-quality internal scrutiny. In the particular context of reparations, the ICC is still “testing the water”. There is an extra amount of responsibility in the appellate decisions to progressively fill in the gaps, rather than letting the “constructive ambiguities” in the textual silence of Rome Statute create variegated practices of the lower chambers. By prioritising discretionary powers, the Court might be creating a catch-22 situation, whereby counsels can theoretically invoke human rights guarantees but are succumb to the primacy of ICC text granting procedural discretions.

On the way forward, serious consideration must go to the way in which victims’ rights are being handled. Tempted by the expeditiousness of proceedings, one must careful not to use procedural discretions as a shield to compromise the respect for the rights of all parties.

Revising the verdict in Ireland v UK: time for a reality check?

EJIL:Talk! - Fri, 04/06/2018 - 07:04

There is a general misunderstanding about the revision judgment that was delivered by the European Court of Human Rights (ECtHR) on 20 March 2018.  The Court does not have the power under the Convention (ECHR) to revise a past final judgment because it considers it is wrong or was wrongly decided.  It only has an inherent power to revise a judgment where an error has been made concerning matters that were unknown to the Court and which, had they been known, might have had a decisive influence on the outcome of the case.  This power is exercised sparingly and reluctantly because there is almost a presumption that judgments have been correctly decided and should not be revised.  All revision requests will thus be subject to strict scrutiny in the interests of preserving legal certainty.

The newspaper headlines that the Court had found that the five techniques did not amount to torture is thus misleading.   The Court has decided not to alter the original judgment’s characterisation of the five techniques.  It has made no finding of its own about torture and it has made this clear.

Apart from the victims’ understandable sense of injustice and bewilderment there is an air of unreality surrounding these proceedings.

Firstly, it is beyond doubt that if the same issue was decided today the five techniques would be held to amount to torture.  The law on torture has evolved considerably since 1978 – the date of the Court’s original judgment – to take account of society’s sensitivity to and condemnation of the use of torture. The present Court has expressed the view that an increasingly high standard is required in the protection of human rights and that this “inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.” The decision of the Court in 1978 to characterise the five techniques as only amounting to inhuman and degrading treatment which was strongly criticised at the time by many commentators is arguably one of the reasons for this increasingly high standard. Another is the realisation that torture has not been eradicated and that it can involve many different and sophisticated forms of unlawful treatment, such as water-boarding, and other variants of sensory deprivation techniques. It is a sad consequence of the old Court’s characterisation that it was used by the US government to assert that ‘water-boarding’ did not amount to torture. This was entirely spurious and self-serving since US government lawyers chose to ignore the marked evolution of the concept of torture that had occurred since 1978.

Secondly, the UK government had accepted the Commission’s finding of torture back then and did not seek to contest it before the Court. They even argued that the Court should make no ruling on the matter because they had accepted the Commission’s verdict of torture.  Had this argument been accepted the judgment would have formally recorded that it was not necessary to examine the complaint since the respondent Government had accepted that there was an administrative practice of torture in breach of Article 3.  The then Attorney-General, Sam Silkin QC, in keeping with this concession, formally promised before the Court that the five techniques would never be used again.  So, it came as a major surprise to the parties to the case and to legal commentators that the Court came to the conclusion that it did. But the fact remains that the UK had conceded that torture had occurred.  

Third, it should not be forgotten that the Court had nevertheless found that there existed a practice of inhuman and degrading treatment in violation of Article 3 of the Convention – i.e. a policy tolerated at the higher echelons of the state – which was an historic vindication of those who had been subjected to the five techniques and the Irish government that had brought the case.

Fourth, it is now clear that the UK had withheld material evidence from the Court. This material indicated that their medical experts were aware of the risk of long term health damage connected with the use of the five techniques although they had testified to the Commission that the risks were short term and minor.  There was also a failure by the UK to cooperate fully with the Commission’s delegates on the basis that ministers needed to be protected from embarrassment by revelations concerning their involvement in authorising the techniques; that senior officials should not be put in a position as witnesses where the Irish Government might seek to draw them out on the matter of ‘deep interrogation’ and that the litigation strategy was to ‘spin things out’ to cause the maximum delay.  Had such tactics been employed in proceedings today the Court would draw adverse presumptions from the government’s behaviour and place the burden of proving that the applicants were not tortured on the government.  This legal development on an important question of evidence is directly linked to the rich past experiences of both the Commission and Court in dealing with governments that do not cooperate and do all in their power to conceal the truth.

The Irish Government were arguing in the revision case that had all this been known to the original Court the finding would or might have been different, especially the information about the long-term effects of the techniques. But would it?  How can we know? The original Court certainly knew that the UK had not cooperated fully and had held back important information. This is clear from the 1978 judgment and the Commission’s report. Yet it still expressed the view that that only inhuman and degrading treatment was involved. We can speculate that this new information about the extent and nature of the withholding of information might possibly have altered the judges’ opinion.  But whether it would or might have been decisive in changing the verdict remains in the realm of speculation.  This is not a sufficient basis on which to revise a judgment handed down 40 years ago in an inter-state case which had actually found a violation of the Convention.   

The focus of the European Court of Human Rights in examining the revision request was always going to be a narrow one since the notion of legal certainty tends to prevail.  The Irish Government’s request to revise the judgment was thus a juridical long shot.

Today the Court has its hands full with a case docket of more than 55,000 serious cases to examine, including seven pending inter-state cases. Seeking to alter out-of-date and questionable assessments made by the Court 40 years ago is an historical luxury that should be left to academic debate.  The fact is that such interrogation techniques, if employed today, would amount to torture – the original Court’s finding has paradoxically contributed to this – and that the UK government believed that to be the case also in 1978.  

Why the ECHR Decided not to Revise its Judgment in the Ireland v. The United Kingdom Case

EJIL:Talk! - Thu, 04/05/2018 - 07:00

The European Court of Human Rights (“ECtHR”) recently rejected a request by Ireland to revise its judgment in the 1978 Ireland v. The United Kingdom case, where the Court found that the use by the then U.K. government of five techniques of interrogation on fourteen individuals amounted to “inhuman and degrading treatment” in breach of Article 3 of the European Convention on Human Rights (“ECHR”), but did not rise to the level of torture. In the recent revision request Ireland asked the ECtHR to revise the original judgment, based on evidence that has recently become available, and to find that the five techniques did amount to torture.

The Court rejected Ireland’s request, a decision that was met with disappointment by human rights advocates. Grainne Teggart, Amnesty International’s Northern Ireland campaigns manager remarked that this was “a very disappointing outcome, for the men and their families” and argued that the Court “missed a vital opportunity to put right a historic wrong.” Without taking away from the anguish of the fourteen individuals who suffered and continue to suffer as a result of being subjected to the harsh interrogations, it is necessary to understand the reasoning behind the Court’s decision and challenge the notion that it was a denial of justice.

A revision request is not an opportunity to fix the Court’s past mistakes or re-evaluate a case in light of more recent case-law. Rather, it is a technical process that allows the Court to revise a judgment only when new facts emerge which should have been made available to the Court at the time of the original judgment and which would have had a decisive influence on the Court. Should the Court agree to revise a case where any new fact or later case law would point to a different outcome, or where it finds the Court simply made a mistake, it would lead to complete chaos and uncertainty. In this case, the decision to deny the revision request was justified on the basis of maintaining legal certainty, a fundamental aspect of justice.

Context/Original judgment

The story begins with the application lodged before the European Commission of Human on 16 December 1971 by Ireland against the United Kingdom. The Irish Government brought the application on behalf of fourteen men, later known as the “hooded men”, who were subject to harsh interrogation techniques implemented by the U.K. government in Northern Ireland during the 1970s. The five techniques consisted of: hooding, wall-standing in stress positions for long periods of time, noise, sleep deprivation, and food and water deprivation.

The Commission issued its decision on the 25 January 1976 and held, by a unanimous vote, that the use of the five techniques constituted a practice of inhuman treatment and of torture in breach of Article 3 of the Convention (Report of Commission of 25 January 1976, ¶ 147 (iv)). The case was then referred to the ECtHR by the Irish Government. The Court agreed that the five techniques amounted to a practice of inhuman and degrading treatment, but failed to find that they also amounted to torture (Ireland v. U.K., ¶ 167). To distinguish between “inhuman and degrading treatment” and “torture”, the Court looked at “the intensity of the suffering inflicted,” finding that there was a special “stigma” associated with the notion of “torture”, which causes very serious and cruel suffering (ibid.). The Court found that the five techniques, “did not occasion suffering of the particular intensity and cruelty implied by the word torture” as understood by the Court at that time (ibid.).

The unfortunate consequence of this finding was not only that the Court rejected the Commission’s findings that the techniques did, in fact, amount to torture, but also that the holding in this case was subsequently cited by the United States to legitimize the use of similar methods in the aftermath of 9/11. The now infamous Bybee Memo, cited the Court’s decision to support its conclusion that the severity of the methods deployed by the U.S. did not amount to torture.

The Current Revision Case

Pursuant to Rule 80 of the Rules of the Court, a party may request the ECtHR to revise a previous judgment “in the event of the discovery of a fact which might by its very nature have a decisive influence [on the Court]” and which was not known to the Court or the party asking for a revision when the original judgment was delivered.

In 2014 the Irish Government lodged an application with the Court stating that certain documents had come to their knowledge which might have had a decisive influence on the Court’s decision in the original Ireland v. The United Kingdom case. The documents relied on were released into the public archives by the U.K. Government pursuant to the “thirty years rule” between 2003 and 2008 (Ireland v. U.K. (revision), ¶ 17) and were brought to the attention of the Irish Government by the Pat Finucane Centre (“PFC”) as early as August 2013. It was not until the Irish television network, Raidió Teilifís Éireann (“RTÉ”) broadcast a program, entitled “The torture files” on 4 June 2014, that the Irish Government claimed to have become fully aware of the extent and content of the documents available.

Based on these documents the Irish Government formulated two grounds for revision (Ireland v. UK (revision), ¶ 20):

I. The U.K. Government had within their possession, at the time of the original proceedings, evidence that suggested the effects of the five techniques could be “substantial, severe and long-lasting,” while at the same time alleging that the side effects were “minor and short term.”

II. Newly uncovered documents showed that the then U.K. Government had adopted a clear policy of withholding information regarding the techniques from the Commission and the Court, including that their use had been authorized at a ministerial level and their purpose in doing so.

Had the Court been aware of the facts detailed in the documents now available they would have or might have had a decisive influence on the specific question of whether or not the use of the five techniques amounted to torture.

The review procedure

The review procedure, which to a certain extent calls into question the final character of the Court’s judgments, is an exceptional procedure. A request for revision is not a means for a party to ask the Court to review an original judgment in light of subsequent law or to decide the same questions as if they were brought before the Court today. It is also not a form of appeal, nor is it a way to make up for the Court’s past mistakes.

In this revision request, the Irish Government was not asking the Court to re-evaluate whether or not the five techniques amount to torture. Over the past thirty years, the Court’s case law on what constitutes “torture” has developed significantly. Subsequent case law has expanded the notion of “torture” and has explicitly taken into account long-term effects of a treatment (Ireland v. UK (revision), ¶ 124). In contrast, based on the Court’s reasoning in the original case, long-term effects were not taken into consideration by the Court when assessing whether treatment amount to “torture” or “inhuman and degrading treatment.” The focus, instead, was on the intensity and severity of the treatment. In its request, Ireland asked the Court to put itself in the position of the Court as it was in 1978 and decide whether the newly released documents contain any facts that the Court would have considered important when deciding whether the five techniques deserved the “special stigma” of being branded as torture in 1978.

It could be argued that the Court erred in its original judgment. Not only did it contradict the findings and conclusion of the Commission, it did so without either party contesting the Commission’s decision. Neither the Irish Government, nor the U.K. government challenged the Commission’s classification of the techniques as torture. The U.K. government simply argued that it had stopped using such techniques, thus the point was moot. The Irish Government’s states object in referring the case to the Court was to “ensure the observance in Northern Ireland of the engagements undertaken by the respondent Government” by asking the Court to “consider the report of the Commission and to confirm the opinion of the Commission that breaches of the Convention have occurred” (Ireland v. U.K., ¶ 2).

The Court, acting on its own, decided to take up the question of classification of the techniques and subsequently found that the five techniques did not rise to the level of torture, contrary to what the Commission had concluded. Whether or not the Court erred in 1978, those mistakes cannot be undone by the Court today. This notion is central to the functioning of the Court. Legal certainty “constitutes one of the fundamental elements of the rule of law which requires, inter alia, that where a court has finally determined an issue, its ruling should not be called into question” (Ireland v. UK (revision), ¶ 122).

The Court’s reasoning and decision

With regard to each ground for revision, the Court had to consider two questions: 1) are the facts presented to the Court “new”? and 2) would they or might they have had a “decisive influence on the court”?

The first ground for revision

Assuming that the new documents contained new facts, the Court was not convinced that these would have had a “decisive influence” on the Court at the time of the original judgement. Ireland, relying on documents that pertained to the testimony Dr L., an expert called by the U.K. Government, argued that Dr L. misled the Commission regarding the long term effects of the five techniques. While Dr L. testified that the techniques only presented minor and short term effects, the documents now available show that Dr L. had expressed elsewhere a different opinion (Ireland v. UK (revision), ¶ 20). The Irish Government pointed, in particular, to a medical report Dr L. compiled for another individual subjected to the same techniques, where Dr L. acknowledged their possible long-term effects.

The main issue with reliance on Dr L.’s opinion is that the new evidence relates primarily to the “long-term effects” of the techniques, and not their severity. Even if the Court had this information in 1978, it is difficult to argue it would have been decisive in its decision whether or not to classify the techniques at torture. This is because, at the time of the original judgment, the decisive element for the Court was not the long-term effect of the techniques, but rather their intensity and severity. The newly discovered information does not speak to the intensity or severity of the techniques, and thus the Court today cannot hold that this information would have had any impact, let alone a decisive impact, on the Court in 1978.

The second ground for revision

As to the second ground for revision, the Court found that the documents did not, in fact, contain “new facts.” Ireland alleged that newly released documents show that the five techniques constituted an administrative practice that had been authorized at a high level. While the documents do provide more clarity on exactly what the then U.K. knew at the time, they provide nothing new per se. In fact, both the Court and the Commission at the time of the original proceedings were aware of the U.K. Government’s hesitation in providing full cooperation (Ireland v. UK (revision), ¶ 116). The Commission even noted the “embargo” on evidence imposed by the U.K. government. The authorization of the techniques on a high level had already been accepted and admitted by the U.K. government, which had conceded that the use of the techniques had indeed been authorized at “high level” and had been taught to members of the Royal Ulster Constabulary (RUC) (ibid.). The new documents did not meet the higher bar of illustrating “new facts” necessary for a revision procedure. As such, the Court did not go on to assess whether these facts would have had a “decisive influence” on the Court at the time.

Conclusion

If the Court were to revise its case law not only when new, determinative facts emerge, but any time a new fact or later case law would point to a different outcome, it would lead to chaos and uncertainty. Similarly, the Court could not review every case where an applicant argues the Court made a mistake. This would destabilize the entire jurisprudence of the Court, as there would be no firm end to any dispute. Any applicant could re-open proceedings by arguing that the Court erred in the smallest and most insignificant ways. Legal certainty, a fundamental aspect of justice, is not a notion that should easily be dismissed. Especially for a Court that has been burdened by an increasing load of cases, it is vital that it not be further encumbered by additional applications.

In their assessment of this case, Amnesty International considers the outcome disappointing because it was decided on a “technical legal point.” But that is what the Court’s role and one of its most important functions is – to create legal certainty by deciding applications not on any other grounds than legal points. The Court would otherwise be no different to a political institution, making and changing decisions based on social, political, and economic considerations. As international legal institutions, including the ECtHR, continue to face threats from numerous angles – including political and financial pressure from certain Member States – their main weapon against this tide of criticism is to stay true to the law; especially the “technical legal points.” It must protect its integrity by ruling according to such technicalities.

That is not to say that what happened to the fourteen “hooded men” was not tragic, and under the current understanding of the term, even torture. A good case could be made that the Court made a mistake holding that such intensive interrogation did not amount to torture. However, the revision request cannot be used to undo the mistakes of the past. The only thing the Court can do, when presented with a revision request, is step back in time and consider whether the new information would have been determinative to the Court’s decision making at the time of the original judgment. In this case, the Court decided it would not.

By finding that it would not have been determinative to the Court’s decision-making process in the original proceedings, the Court’s decision today should not been seen as a dismissal of the tragic experiences of the individuals at the centre of this case, but rather, as a reasonable assessment of the evidence before it and the accurate and methodical application of the rules guiding the Court.

Reply to Dunoff and Pollack: ‘Experimenting with International Law’

EJIL:Talk! - Wed, 04/04/2018 - 07:00

In the last issue of the European Journal of International Law we published an experimental study on the ability of international law students and experts to ignore information in the context of treaty interpretation. The same issue included a follow-up article by Jeffrey Dunoff and Mark Pollack. We find Dunoff and Pollack’s practical exercise of critically reading experimental studies important and helpful in moving the broader methodological and theoretical concerns into a concrete discussion of actual studies. In the following sections, we will try to contribute to this effort by reflecting on their assessment of our study.

The Study

Before delving into Dunoff and Pollack’s discussion of our paper, we would like to briefly summarize our study, which one of us also summarized in this EJIL:Live! interview. Our study was designed to empirically test a notion that has been mentioned in the treaty interpretation literature, which suggests that it is practically impossible to ignore the content of preparatory work after exposure, even when a rule prohibits the use of such material. This notion is supported by studies on the difficulty of ignoring information in other legal contexts, such as exposure to inadmissible evidence. To test this notion’s validity, we conducted three experiments that examined the ability of international law students and experts to ignore information about preparatory work while interpreting treaties. Our findings indicate that experts are better able than students to ignore preparatory work when they believe that the Vienna Convention on the Law of Treaties (VCLT) rules on treaty interpretation do not allow the use of such information. This suggests that there is something unique about international law expertise (or legal expertise in general) that enables the experts to resist the effect of exposure to such information.

In addition, we used the study to gather information on contemporary approaches to the debate about the hierarchy of the VCLT interpretation rules. We found that the vast majority of experts support the “traditional approach” to the rules, which prohibits the use of supplementary means of interpretation – including preparatory work – to determine the meaning of the text if interpretation under the General Rule leads to a clear and reasonable result. International human rights law (IHRL) experts provided the main exception to this finding. Although, like other types of experts, the majority of IHRL experts supported the traditional approach, their support rates were significantly lower than those of other types of international law experts. Almost half of the IHRL experts supported the “corrective approach,” which always allows the use of supplementary means to determine the meaning of the text.  

Dunoff and Pollack raise some concerns regarding our findings and conclusions, to which we will reply in the following section. We begin by addressing the concerns regarding external validity and continue to discuss the internal validity of our study.

External Validity

External validity is the ability to generalize from the findings of a study to real-life settings. This is a serious concern in experimental research, and every experimental study should be read while taking into account its limitations. Dunoff and Pollack focus on three issues: (i) the difference between the scenarios used in the study and real cases; (ii) the potential difference between individual and group decision making; and (iii) the ability to generalize from studies that are being conducted on students’ decision making to experts’ decision making. All three issued were discussed and acknowledged in our paper and, in a way, the external validity section of Dunoff and Pollack’s paper rephrases parts of the general discussion and limitations section of our paper.

The first external validity concern involves the difference between the scenarios in the study and actual cases. While the former feature a clear divergence between the text and the preparatory work, the latter are usually more nuanced. The implications of these differences, according to Dunoff and Pollack’s account, are that in actual cases adjudicators might ignore preparatory material more easily. This might be a valid concern if our study suggested that preparatory work affects those experts who try to ignore it. Since we did not find any effect of the preparatory work on such experts, it is hard to think of the relevance of such a concern to our case. This point demonstrates the importance of taking into account the direction of the findings when discussing these concerns.

Second, Dunoff and Pollack refer to the difficulty of generalizing from individual to group decision making, taking into account that in many cases treaty interpretation involves a collective decision-making setting. They do not, however, explain how the potential differences between individual and group decision making can influence our results. We explicitly addressed this concern in our limitations section, by mentioning that we believe that group decision making is not likely to change one’s ability to ignore preparatory work since in other contexts it has a moderating effect on the difficulty of ignoring information. However, we raised the possibility that it might influence the positions in the hierarchy debate. In any case, our study is the first study on the subject, and naturally future studies should examine group decision making, and could contribute to our understanding of the ability to ignore information in the context of legal interpretation.   

Lastly, Dunoff and Pollack question the ability to generalize from students to international judges. We completely agree that this is an important concern in empirical legal studies, and see the difference between students and experts as one of the main contributions of our study. Therefore, it is not clear to us why Dunoff and Pollack classify this point as one of the “three external validity challenges that Shereshevsky and Noah’s studies share with other experimental studies of international law.” As they subsequently rightly acknowledge, our study actually involved both students and international law experts. As we state in our paper, and as Dunoff and Pollack acknowledge, we believe that our findings call for caution in using students as proxies for legal experts when it comes to tasks that are unique to legal expertise.

Nevertheless, we acknowledge in the paper that our study involves a similar external validity limitation that was not discussed by Dunoff and Pollack. It relates to the ability to generalize from the experts who participated in our study to international judges. Because the interpretation of international law is a task that is not unique to judges, our study did not focus on international judges but on international experts more generally. However, judicial interpretation is highly important in international law, and only a small minority of our participants were international judges or arbitrators. While we explain in the paper why we think that our experts might be good proxies for international judges, we believe that future studies that use international judges will be highly beneficial.  

Internal Validity 

Dunoff and Pollack also address the internal validity of our study. Specifically, they raise concerns regarding whether our research design was indeed sufficient to demonstrate the effect of exposure to preparatory work on the decisions of the participants.

The first issue that Dunoff and Pollack address is the decision to design the experiment with one group that was exposed to preparatory work and a control group that was not exposed to preparatory work. They suggest that since interpreters are usually exposed to such materials in practice, our question “possesses limited real-world purchase.” Instead, they suggest that the more relevant question is whether “those who think they are permitted to use these materials for interpretive purposes read the treaty differently than those who think that they are not permitted to use preparatory materials.” This concern is puzzling for several reasons. First, we actually used the suggested research design in Experiment 1B: in this experiment, all participants were exposed to the preparatory work, and the two groups differed in only one respect: whether they were allowed to use the preparatory work or not. Dunoff and Pollack refer to this experiment in their analysis as similar to the first experiment, without acknowledging that Experiment 1B was designed as they suggested. Second, and more importantly, the best way to assess the influence of exposure to preparatory work is to manipulate the exposure to preparatory work. A design in which both groups are exposed to preparatory work, as Dunoff and Pollack recommend, enables one to test the effect of the exposure to preparatory work only in cases where the two groups – those who think that the use of preparatory work is permitted and those who think that it is forbidden – differ from each other. In the case where there is no significant difference between the two groups, it is impossible to infer whether the exposure had no effect on participants’ decisions, or whether the effect was similar in the two groups. Moreover, even in cases where such an effect is found, it is impossible to infer whether both groups were influenced by the preparatory work (with a difference in the strength of its influence) or only one of the groups was. The design we used in our studies enables one to test both the influence of the exposure to preparatory work, and the moderating effect of whether the participants believed that its use is allowed or forbidden. Finally, the concern that our study has limited “real-world purchase,” which is a concern of external validity (rather than internal validity), does not seem warranted since their concern regarding the lack of “real-world purchase” is relevant only to the control group. The control group’s aim is only to make sure that we indeed isolate the effect of the exposure and not to demonstrate “real-world purchase.” The relevant group, the experimental group, was exposed to preparatory work similarly to individuals in real cases.   

Dunoff and Pollack’s second internal validity concern is based on what they describe as a “puzzling anomaly” in which, among participants who were not exposed to preparatory work, there was a difference between the decisions of those who reported that they were allowed to use the materials and those who reported that such use was not allowed. According to Dunoff and Pollack, this challenges the attribution of the difference in decisions of participants to exposure to preparatory work. Dunoff and Pollack raise two concerns: the first is the possibility that posing the questions regarding the interpretive position after the decision in the scenarios might have influenced participants’ answers as a result of attempts to justify their decisions post hoc. The second is that the difference between the groups is a result of their broader approaches to legal interpretation.

It important to first note that Dunoff and Pollack’s concern does not affect the most important findings of the study regarding the ability of international law experts who hold to the traditional approach to better resist the influence of exposure to preparatory work compared to students who hold a similar interpretive attitude. Before addressing the two challenges, we want to suggest a much simpler explanation of the “puzzling anomaly.” Under the VCLT rules, even proponents of the traditional approach allow the use of preparatory work to determine the meaning of the text if interpretation under the General Rule leaves the meaning ambiguous or leads to a manifestly absurd result. Since our goal was to examine the influence of preparatory work when its use is prohibited, our groups were not divided merely according to their general support of the traditional or corrective approach, but rather according to those who thought that in the specific scenario the use of preparatory work was allowed or prohibited. This means that in addition to those who belonged to the corrective approach, the first group included those who belonged to the traditional approach but believed the text was ambiguous. The other group included only those who held the traditional approach and in addition believed that the meaning was clear. Thus, it is reasonable to assume that the main explanation for the “puzzling anomaly” is not the general interpretive approach, but specifically the position regarding the ambiguity of the specific case. Indeed, the direction of participants’ decisions further supports this hypothesis: those who determined that the text was clear more often found that there was a violation of the relevant norm, in line with the direction that the plain meaning of the text seemed to suggest.

Of course, explaining the anomaly does not excuse us from addressing the two challenges. As to the first challenge regarding the danger of insincere answers, we want to start by demonstrating that this concern does not explain the “puzzling anomaly.” To explain why, let us further develop Dunoff and Pollack’s suggestion of the potential influence of participants’ decisions on their reported attitudes. The only group that potentially faced a contrast between the decision and their broader interpretive attitude consisted of the participants who were exposed to the preparatory work and in addition held to the traditional approach and thought that the text was clear, but realized ex post that their decisions had been influenced by the preparatory work. All other groups were either not exposed to the materials or believed that its use was allowed. However, the “puzzling anomaly” that Dunoff and Pollack address concerns only participants who were not exposed to preparatory work, and thus were not part of those who allegedly falsely reported their positions in the hierarchy debate.

As to the concern itself, we have strong reasons to believe that participants’ reports on their interpretive attitude were not influenced by their decisions in the scenarios. To justify their decisions, these participants should have reported that they believed that they were allowed to use the preparatory work, in contrast to their genuine position. However, there is an easier and less burdensome way for these participants to justify their decisions: to determine that the text is ambiguous. As was explained above, even the traditional approach allows the use of preparatory work when the meaning is ambiguous. This does not require them to report a different interpretive approach than their actual position in the hierarchy debate, but only an ambiguity in the specific case. Thus, if Dunoff and Pollack’s concern is valid, we would have expected to see that participants’ determinations regarding the ambiguity of the text were influenced by exposure to preparatory work. However, as we report in the paper, we examined whether the exposure to preparatory work affected the determinations of ambiguity (in order to examine a potential indirect and unintentional effect of the exposure), but did not find such an effect. In addition, each participant received one scenario with preparatory work and one scenario without it and, as a result, all participants were exposed to the preparatory work before addressing their position in the hierarchy debate. This further decreased the need to report a false general position rather than the actual position regarding the specific case. In addition, the study was completely anonymous; thus the participants’ incentives to falsely report their position seemed very low. To sum up, it does not seem plausible to us that the participants falsely reported their positions only with regard to their general position in the hierarchy debate (which is more demanding for them compared to determinations of ambiguity).

Unlike with the other concerns, we cannot rule out the possibility that there is something qualitatively different between those who hold the traditional approach and those who hold the corrective approach, and further research of this question would be welcome. However, we are skeptical of the significance of such potential differences to the results of our study. If the different decisions were due to the different interpretive attitudes of the participants, we would have expected to see no significant difference between the decision patterns of students and experts that hold the same interpretive approach (or alternatively, we would find significant differences between all groups of students and experts if, in addition to the differences that result from general attitude, students and experts hold qualitatively different interpretive approaches). Nonetheless, we found a significant difference only between the decisions of students and experts who determined that they were not allowed to use preparatory work, and no such difference was found between students and experts who determined that such use was allowed. This suggests that the ability to resist the influence of preparatory work is the main difference between the two groups, rather than qualitatively different interpretive approaches.

We want to conclude by thanking professors Dunoff and Pollack for taking the time to engage so closely with our paper. It is truly a blessing to know that our scholarship has an audience. We hope that this exchange contributes to Dunoff and Pollack’s overarching goal of enabling international lawyers to become “knowledgeable and critical consumers of experimental research.”

Right of Access to a Court in Civil Claims for Torture Committed Abroad: The European Court Grand Chamber Decision in Naït-Liman

EJIL:Talk! - Tue, 04/03/2018 - 07:00

The Grand Chamber of the European Court of Human Rights has announced its judgment in the case of Naït-Liman v Switzerland, confirming that the refusal of the Swiss courts to examine a refugee’s civil claim for torture in Tunisia was not a violation of Article 6 § 1 of the European Convention on Human Rights. The decision addresses the concepts of forum of necessity and universal civil jurisdiction, and has important implications for civil claims arising out of wrongful acts that have taken place abroad.

Initial Proceedings

In April 1992, Tunisian national and political activist Abdennacer Naït-Liman was arrested in Italy and flown to Tunis, where he was handed over to members of the Tunisian authorities. Naït-Liman subsequently alleged that on the orders of the then Minister of the Interior, Abdallah Kallel, he was detained for 40 days and brutally tortured with bats, electric shocks, and suspension. He escaped Tunisia in 1993 and travelled to Switzerland with his wife and children, where he was granted refugee status in 1995 and Swiss nationality in 2007.

Naït-Liman learned on 14 February 2001 that Abdallah Kallel was in Switzerland receiving treatment at a hospital, and filed a criminal complaint against him. Kallel was, however, able to leave Switzerland before he was apprehended by the Swiss authorities.

Following the failure of the criminal action, and unable to obtain justice in Tunisia, Naït-Liman initiated a civil action for damages in Switzerland against Abdallah Kallel and the Tunisian Government. He was supported in the Swiss and subsequent European Court proceedings by Swiss NGO TRIAL International.

The Swiss courts refused to assume jurisdiction for Naït-Liman’s claim, on the basis of their interpretation of Article 3 of the Swiss 1987 Federal Act on International Private Law (Loi fédérale sur le droit international privé (LDIP)). Article 3 provides:

Where this Act does not provide for any forum in Switzerland and proceedings abroad prove impossible or it cannot reasonably be required that they be brought, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection shall have jurisdiction. (Translated to English)

While the provision appears to provide a forum of necessity for civil claims that do not have an available forum elsewhere, the Swiss Federal Supreme Court narrowly interpreted the term “case” (in French, “cause”) as referring only to the facts of the case at the time of wrongful act – in Naït-Liman’s case at the time of his alleged torture in 1992. As a result, the Court did not consider Naït-Liman’s subsequent receipt of refugee status in Switzerland, his 14 years of residence in Switzerland, his eventual naturalisation in Switzerland, or the previous presence of Abdallah Kallel in Switzerland, as relevant to establishing a “connection” between his case and Switzerland. On that basis the Swiss Federal Supreme Court concluded that Naït-Liman had failed to establish the “sufficient connection” that was necessary for the Swiss courts to assume jurisdiction under Article 3 of the LDIP.

European Court Proceedings

With the support of TRIAL International, Naït-Liman filed an application with the European Court of Human Rights in November 2007, alleging that Switzerland’s refusal to assume jurisdiction for his civil claim was a violation of his Article 6 § 1 right of access to a court under the European Convention.

On 21 June 2016, the Chamber held by a 4-3 majority that Switzerland had not violated Article 6 § 1 in refusing jurisdiction to Naït-Liman’s claim. Naït-Liman appealed to the Grand Chamber.

The Grand Chamber ruled on 15 March 2018, by a 15-2 majority, that there had been no violation of Article 6 § 1.

Legitimate Aims of the Restriction

The Grand Chamber found that Switzerland’s restriction of Article 6 § 1 in Naït-Liman’s case pursued several legitimate aims relating to the proper administration of justice [para 122]. It referred to problems in gathering and assessing evidence and of enforcing any judgment that would have resulted from Naït-Liman’s claim; it agreed with Switzerland’s concerns about discouraging forum-shopping and the risk of putting too great a burden on the Swiss courts by allowing claims from other claimants in a similar position to Naït-Liman; and it accepted that a “State cannot ignore the potential diplomatic difficulties entailed by recognition of civil jurisdiction in the conditions proposed by the applicant” [paras 123-127]. The Grand Chamber did not appear to have been persuaded by the increasing number of cases in which States have exercised universal (both criminal and civil) jurisdiction despite those challenges.

Proportionality – Public International Law

Turning then to proportionality, the Grand Chamber noted that the scope of Switzerland’s margin of appreciation depended, among other things, on the relevant international law in this area [paras 173-175]. The Court considered it necessary to examine two international law concepts that it saw as being relevant to the case: universal civil jurisdiction and forum of necessity.

Naït-Liman’s position before the Grand Chamber was that the case did not require the Court to rule on the existence of universal civil jurisdiction. It was argued that the case concerned instead whether a State that had legislated for a right of access to its courts based on forum of necessity could interpret that provision in a manner that disregarded the ties that one of the parties to the dispute had with that State. However, the Court still considered it necessary to examine universal civil jurisdiction, as it viewed Naït-Liman’s arguments as coming very close to such an approach. The Court noted that of the 39 European States that had been examined in the Court’s comparative law analysis, only the Netherlands recognised universal civil jurisdiction for acts of torture [para 69].  The Court also noted that the United States and Canada recognised universal civil jurisdiction, although the latter required torture to have taken place in the context of terrorism. The Court recognised, as was pointed out by joint interveners REDRESS and l’Organisation Mondiale Contre la Torture (OMCT), that a number of States also allow victims to join as civil parties to criminal proceedings brought on the basis of universal jurisdiction [paras 79-83]. The Court concluded, however, that there currently existed no customary international law rule of universal civil jurisdiction.

In the Grand Chamber’s discussion of the international law on universal civil jurisdiction, a certain amount of attention was devoted to Article 14 of the Convention Against Torture providing for victims’ right to redress. Naït-Liman, as well as a number of interveners, REDRESS, OMCT, Amnesty International and the International Commission of Jurists, had argued that Article 14 required States to interpret their domestic legal provisions in a way that did not negate the right of victims of torture to redress, even when that torture took place abroad. The United Kingdom, which also intervened, disagreed with that interpretation. While the Court acknowledged that the Committee Against Torture had endorsed an expansive interpretation of Article 14 in its General Comment No. 3, it did not consider that sufficient to establish a rule of international law, in part because the Court considered that the Committee Against Torture had taken a more restrictive interpretation in its examination of individual communications [paras 189-190].

On the question of forum of necessity, in a fairly brief examination of the issue, the Court similarly found no existence of a customary international law. According to the Court, 28 European States did not recognise the concept of forum of necessity [para 200]. In all States that recognised forum of necessity, some form of connection between the dispute and the State was required, although practice varied between States on what that connection needed to be.

Proportionality – Swiss Courts’ Decision

The Grand Chamber went on to find that the Swiss Federal Supreme Court’s interpretation of Article 3 of the LDIP had not been arbitrary or manifestly unreasonable. It reached this conclusion on the basis of the wide margin of appreciation granted to Switzerland in the absence of an applicable rule of customary international law, and also on the basis of previous practice of the Swiss courts in interpreting Article 3 of the LDIP.

The Grand Chamber therefore concluded that Switzerland’s restriction of Naït-Liman’s right of access to a court under Article 6 § 1 was proportionate to the legitimate aims pursued. It did, however, offer this conciliatory note at the end of the judgment:

[I]t should be reiterated that this conclusion does not call into question the broad consensus within the international community on the existence of a right for victims of acts of torture to obtain appropriate and effective redress, nor the fact that the States are encouraged to give effect to this right by endowing their courts with jurisdiction to examine such claims for compensation, including where they are based on facts which occurred outside their geographical frontiers. In this respect, the efforts by States to make access to a court as effective as possible for those seeking compensation for acts of torture are commendable.

However, it does not seem unreasonable for a State which establishes a forum of necessity to make its exercise conditional on the existence of certain connecting factors with that State, to be determined by it in compliance with international law and without exceeding the margin of appreciation afforded to the State under the Convention.

Nonetheless, given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future. Accordingly, and although it concludes that there has been no violation of Article 6 § 1 in the present case, the Court invites the States Parties to the Convention to take account in their legal orders of any developments facilitating effective implementation of the right to compensation for acts of torture, while assessing carefully any claim of this nature so as to identify, where appropriate, the elements which would oblige their courts to assume jurisdiction to examine it. [paras 218-220]

Dissenting Judgments

Two judges dissented with the majority’s decision and found that there had been a violation of Article 6 § 1. Judge Dedov considered that the majority decision, among other things, attached “too much importance to the principle of non-interference” between States, and failed properly to account for the Committee Against Torture’s comments on the interpretation of Article 14 of the Convention Against Torture.

Judge Serghides’s view was that the Swiss Federal Supreme Court’s interpretation of Article 3 of the LDIP was so restrictive as to render it meaningless. He therefore found the Swiss courts’ interpretation to be manifestly unreasonable.

Commentary

This decision will no doubt be seen by some as a missed opportunity to underscore States’ obligations to provide a means of redress to the victims of torture and other international crimes. There will be disappointment in particular at the Grand Chamber’s failure to give more weight in its analysis to the right of torture victims under international law to an effective remedy and reparation.

From a policy perspective, one might ask, as Judge Serghides did, whether the Grand Chamber accepted too easily Switzerland’s argument that the purported aims of the restriction on jurisdiction were legitimate. Are difficulties in evidence gathering and enforcement of judgments a legitimate basis for applying a blanket rule against exercising jurisdiction, or are they principally concerns for the claimant that are best examined by the court on a case-by-case basis? Was a concern about forum shopping relevant at all to Naït-Liman’s case, when the Swiss courts themselves acknowledged that Naït-Liman had no other forum available to him? Are the supposed burdens on the domestic court system of accepting claims like Naït-Liman’s borne out in practice in the countries that take a more expansive approach to jurisdiction? And are these concerns any more relevant in stand-alone civil claims than they are in civil claims that are attached to criminal proceedings, where, as pointed out by interveners REDRESS and OMCT, States have demonstrated more of a willingness to exercise forms of universal jurisdiction?

There may be some sympathy with Naït-Liman’s position that the Swiss courts’ interpretation of the forum of necessity provision in Swiss law was so restrictive as to have been manifestly unreasonable. The Swiss Federal Supreme Court decided that only facts that existed at the time of the wrongful act (in Naït-Liman’s case his torture in Tunisia in 1992) were relevant to establishing a sufficient connection for forum of necessity. The result of such an approach is that the range of circumstances in which forum of necessity would provide a basis for exercising jurisdiction that would not already be covered by one of the more typical bases of jurisdiction would be limited severely, perhaps entirely.

There are, though, still some grounds for optimism in the decision for those that advocate for the rights of victims. The Grand Chamber underlined that States are permitted to exercise universal civil jurisdiction and encouraged States to “make access to a court as effective as possible.” It clearly recognised the potential for further changes to the law, and left the door open for future developments.

The author contributed to REDRESS and OMCT’s joint third-party intervention before the Grand Chamber in Naït-Liman v Switzerland. The author wishes to thank Naomi Barker for her assistance with this piece.

 

Protean ‘National Security’ in Global Trade Wars, Investment Walls, and Regulatory Controls: Can ‘National Security’ Ever Be Unreviewable in International Economic Law?

EJIL:Talk! - Mon, 04/02/2018 - 07:00

National security seems to be the protean norm du jour in international economic law these days.  On 23 March 2018, the United States’ Trump Administration imposed a 25% tariff against around US$60 billion of imports from China, 15 days after the United States imposed tariffs on imports of steel and aluminum (25% on steel imports, and 10% on aluminum imports) from around the world.  US President Trump accused China of “economic aggression”, and is leaving the door open for negotiations with all States to force them to take measures to eliminate the United States’ “$800 billion trade deficit with the world”.  Chinese President (for life) Xi Jinping’s administration subsequently announced preliminary retaliatory tariffs against over $3 Billion in American products such as apples, steel, and pork, even as US Treasury Secretary Steve Mnuchin stated that the tariff wars are part of the United States’ negotiation strategy with China. (Both sides are reported to be quietly negotiating, even amid the climate of mutually announced tariffs. China has started making concessions, such as relaxing its foreign investment rules and expanding imports of US semiconductors.)  Even as World Trade Organization (WTO) Director General Roberto Azevedo cautioned against the impact of such a trade war on the global economy, the WTO did not deny that under GATT Article XXI(b)(iii) (Security Exceptions), the United States could take “any action which it considers necessary for the protection of its essential security interests…taken in time of war or other emergency in international relations.”  President Trump’s two presidential proclamations declaring tariffs against aluminum imports and steel imports heavily refer to the impairment of the United States’ national security interests as the basis for imposing tariffs.  The United States provisionally exempted NAFTA partners Canada and Mexico from the steel and aluminum tariffs, using the bludgeoning effect of threatened tariffs in the pending NAFTA renegotiations.  Last weekend, South Korea acceded to the United States’ demands to revise their KORUS Free Trade Agreement, which US President Trump is now tying to the outcome of its forthcoming summit with Kim Jong Un of North Korea. Trade is now more deliberately leveraged as a national security issue.

Significantly, no State in the international community seriously challenges that the security exception in GATT Article XXI is a self-judged matter that takes a governmental measure out of the ambit of WTO law. (Qatar’s pending complaint against the United Arab Emirates (UAE) at the World Trade Organization – previously featured here – seeks review of any Member’s assertion of national security under GATT Article XXI, but it appears other Members such as the United States have taken the opposing view that “national security issues are political and not appropriate for the WTO dispute system.”)  Even the European Union, which threatened tariffs against the United States if it was not exempted from the US tariffs on steel and aluminum (it eventually got the exemption for all EU Members), did not challenge the factual basis behind the United States’ use of the national security justification in its presidential proclamations on tariffs against steel and aluminum imports.  The United States had invoked, as its factual basis for invoking national security, the supposed “weakening of (its) internal economy, leaving the United States almost totally reliant on foreign producers…that is essential for key military and commercial systems”.  Considering that President Trump had just boasted about the tremendous strength and independence of the United States economy at the World Economic Forum in January 2018, it was baffling that the United States made this seeming volte face to invoke GATT Article XXI.  The Trump administration has also invoked the President’s self-judged discretion to decide when national security is impaired in the case of foreign investment into the United States, most recently to block Singaporean company Broadcom’s US$117 billion takeover of Qualcomm, thereby increasing the number of blocked proposed acquisitions of United States businesses (by countries such as Germany, China, and Singapore) on national security grounds. 

And yet, it is not only the United States that has resorted to national security reasons in the past year for retaliatory trade measures, investment restrictions, and other international economic measures.  The European Commission anchors its new proposal to tax digital business activities; the forthcoming implementation of the General Data Protection Regulation (GDPR) (ensuring data privacy and protection rules applicable to all companies processing data of EU nationals, whether located in the EU or elsewhere); as well as the recently opened investigation of the massive data leak from Facebook and Cambridge Analytica, ultimately on the Commission’s many concerns about EU Members’ regional, national, and economic security.  China has set up its own national security review of foreign investments into China, mirrored by Australia’s recently strengthened national security review of foreign investments (China-sourced or otherwise) into critical infrastructure.  India and Sri Lanka have also raised national security concerns over China’s One Belt, One Road (OBOR) program.  Nigeria demurred from joining the recently-launched 44-member African Continental Free Trade Area, citing economic and security implications of the agreement.

Such muscular and frequent assertions of ‘national security’ as justifications for international economic measures does bring to the forefront the timeless debate on whether international courts and tribunals can review a State’s assertion of ‘national security’.  In this post, I maintain my key argument in 2012 that modern international law still does not subscribe to the classical view of ‘national security’ as a Schmittian exception – e.g. one that takes a measure justified by national security outside of the purview of any law – but instead continues to regulate the safety-valve functions of national security or national emergency clauses as exceptions, to the point that the mere assertion of national security cannot completely take out an economic measure from the purview of international economic regulations either.  Whether a State invokes ‘national security’ to impose or threaten measures for bargaining leverage in negotiations or to force reductions of trade deficits; or to impose new economic regulations, review, or restrictions against foreign businesses – the current framework of international law and international economic law has at least developed to the point that there will be some review of a State’s asserted national security justification, even if it is only for international tribunals to preliminarily decide whether they have jurisdiction over the disputes before them.  I refer to dispute settlement under the WTO, foreign investment arbitral tribunals, international investment court proposals such as China’s investment court for OBOR projects and the EU’s multilateral investment court, as well as traditional court adjudication under the International Court of Justice.

Security Exceptions in WTO

The drafters of GATT Article XXI were conscious that while States solely judge their essential security interests, they should also be cautious against undermining the entirety of GATT altogether.  This need for balance has always been central to the usages of GATT Article XXI, as recounted by the drafters of GATT Article XXI with respect to documented practices on the 1970 Arab League boycott against Israel; the 1975 Swedish global import quota system for footwear and its subsequent termination by Sweden; the April 1982 suspension of imports of Argentine products by the European Economic Community, Canada, and Australia; the May 1985 United States prohibition against all Nicaraguan imports and all exports to Nicaragua; and the the 1991 European Community trade measures against Yugoslavia. (Analytical Index of GATT, pp. 602-604).  At the very least, there has never been a consensus (hard or otherwise) among WTO Members that GATT Article XXI operates to completely remove a challenged measure from the WTO system, although the United States has often taken this position.  As the Chairman of the commission that drafted GATT Article XXI stressed, it is the spirit in which the Members interpret GATT Article XXI that would ultimately guarantee against pretextual security measures that actually have commercial purposes.  (Analytical Index of GATT, p. 600).  The landmark fact that the WTO is now constituting the panel in the Qatar complaint versus the United Arab Emirates – where the GATT Article XXI defense has been raised – at least shows that a panel will make a threshold determination as to whether or not any Member’s insistence that a challenged measure is justified under GATT Article XXI ultimately deprives all WTO panels of any jurisdiction over a dispute.  That in itself is a far cry from a Schmittian interpretation of GATT Article XXI, where a Member can (supposedly) automatically insulate a measure from any challenge whatsoever through its self-judged assertion of GATT Article XXI(b)(iii).

Foreign Investment Arbitral Tribunals

Investment treaty arbitration tribunals likewise overwhelmingly reject the notion that a State’s invocation of national security or national emergency ipso facto deprives any arbitral tribunal of jurisdiction, much less any assertion that the national security or national emergency defense is unreviewable. The widespread use of national security clauses in international investment agreements, as the United Nations Conference on Trade and Development (UNCTAD) concluded in its 2009 report, suggests that: “Whatever policy a country adopts, it is important that the goal of preserving the sovereign right of each country to adopt any kind of measures it considers appropriate to respond to economic crisis and to protect its strategic industries does not come at the price of having a discouraging effect on foreign investors and undermining the attractiveness of the country as a foreign investment location.” (p. 137)  Very few investment tribunals (such as in the award in Continental Casualty v. Argentina, or to a certain extent, the annulment decision in Sempra v. Argentina which ultimately found that the tribunal acted in manifest excess of powers by wholly failing to apply the ‘essential security interests’ provision in the investment treaty), have been willing to interpret ‘essential security interests’ clauses in investment treaties in a manner that causes the complete non-applicability of the investment treaty itself the moment that a State asserts its ‘essential security interests’.  At the very least, the investor-state arbitral jurisprudence consistently shows that tribunals will exercise jurisdiction to admit some review of such national security clauses or defenses invoked by host States. [See also pp. 273-300 in Mary E. Footer, Julia Schmidt, Nigel D. White, and Lydia Davies-Bright (eds.) Security and International Law, Hart Publishing 2016.] Thus, while parties can verily dispute whether the circumstances do involve the contemplated ‘essential security interest’ provisions in investment treaties (and what qualifies as national security or an essential security interest), there is no dispute whatsoever that a tribunal indeed has the competence to determine the threshold applicability of such investment treaty provisions on national security to claims against host States. 

New Proposals for Investment Courts in the EU and China

Details are scarce thus far on the proposed EU multilateral investment court or China’s recently announced three international courts in Beijing, Xi’an, and Shenzhen for One Belt, One Road (OBOR) disputes.  What appears clear from preliminary reports (see here and here) on these permanent investment courts is that they are intended to exercise exclusive jurisdiction over all investment disputes, with the goal of ultimately displacing investor-State arbitration.  It has been said thus far that investment treaties may form part of the applicable law before these courts, which would, in many instances, likewise involve ‘essential security interests’ provisions in these treaties.  Arguably, it would be highly unlikely that these international courts – which are supposed to displace investor-State arbitration – would immediately decline jurisdiction when a State declares ‘national security’ .  Otherwise, the wide and exclusive jurisdiction purportedly to be vested in these international courts to resolve investment disputes would be easily defeated, if these courts were to accept such a Schmittian interpretation of national security or ‘essential security interests’ clauses that would – as if by magical incantation – automatically shield these States from the courts’ jurisdiction the moment ‘national security’ is declared.

Adjudication at the International Court of Justice

Finally, one only has to recall the landmark cases where the International Court of Justice has robustly reviewed ‘essential security interests’ provisions in treaties to determine the legality of the State’s use of such provisions, to see that the Court has thus far never proclaimed the existence of an unreviewable ‘Schmittian exception’ under international law.  In Case Concerning Oil Platforms (Judgment of 6 November 2003), the Court explicitly reviewed the United States’ assertion of essential security interests, even determining on both facts and the applicable law that:

“…the actions carried out by United States forces against Iranian oil installations on 19 October 1987 and 18 April 1988 cannot be justified, under Article XX, paragraph 1(d), of the 1955 Treaty, as being measures necessary to protect the essential security interests of the United States, since those actions constituted recourse to armed force not qualifying, under international law on the question, as acts of self-defence, and thus did not fall within the category of measures contemplated, upon its correct interpretation, by that provision of the [Treaty of Amity, Economic Relations, and Consular Rights].” (para. 78).

The Court also elaborated in its Judgment on the Merits in Nicaragua v. United States on the nature of ‘essential security interests’ under a Freedom of Commerce and Navigation (FCN) treaty between the United States and Nicaragua, finding that “the concept of essential security interests certainly extends beyond the concept of an armed attack, and has been subject to very broad interpretations in the past.” (at p. 116 of the Judgment).  Likewise, even in its famous articulation of the customary nature of the state of necessity in Gabcikovo v. Nagymaros, the Court still demonstrated that this norm is reviewable on the merits.

Conclusion

Undoubtedly, States today are wielding a broad – even protean – sense of ‘national security’ to justify their international economic measures, whether as a strategy to force trade and investment partners to reconsider their positions (as in the case of the United States); to devise new measures to protect consumers and the general public from likely abuses brought on by technological innovations (as in the case of the European Union); or even to withhold acceptance or raise concerns about the terms of trade agreements and long-term investment projects (as in the case of Nigeria, Sri Lanka, and Pakistan).  The strategic deployment of ‘national security’ justifications for global trade wars, investment walls, or new economic oversight regulations, however, will not mean that these asserted justifications are insulated from some international or domestic judicial or arbitral review in the future.  In the history of nation-States, this is hardly the first time that politicians have used ‘national security’ as a club (or a carrot) to change their international political, economic, and security arrangements with other States.  But at least as of today, international law is nowhere at the point that ‘national security’ functions as a Schmittian exception that States can incant against any rule of law.  For better or for worse, we are (thankfully) not there yet.

Announcements: CfP Workshop on the Sociology of International Law; Additions to the UN Audiovisual Library of International Law; CfS International Legality of Economic Activities in Occupied Territories Workshop

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

1. Call for Papers: Workshop on the Sociology of International Law. A growing community of scholars has recently been bringing international law into conversation with sociological research and theory. The fourth workshop on the sociology of international law will be held on 8 – 9 November 2018 at the Max Planck Institute Luxembourg for Procedural Law, and it aims to focus on various sociological perspectives on international tribunals. Scholars and graduate students are invited to submit abstracts by 18 May 2018.  Abstracts of no more than 300 words should be sent to Nathalie Perrin nathalie.perrin {at} mpi(.)lu var mailNode = document.getElementById('emob-angunyvr.creeva@zcv.yh-66'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6E%61%74%68%61%6C%69%65%2E%70%65%72%72%69%6E%40%6D%70%69%2E%6C%75"); tNode = document.createTextNode("nathalie.perrin {at} mpi(.)lu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-angunyvr.creeva@zcv.yh-66"); mailNode.parentNode.replaceChild(linkNode, mailNode); by 18 May 2018, and should include the author’s name, affiliation, and full contact information. Decisions regarding inclusion in the workshop program will be sent by 17 July 2018.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Professor Marcelo Kohen on “The Institute of International Law” in English and French, Professor Jean-Marc Thouvenin on “La nationalité des navires”, and Professor Joseph Weiler on “A Geology of International Law”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

3. Call for Submissions: International Legality of Economic Activities in Occupied Territories Workshop. The T.M.C. Asser Institute, the Centre for the Law of EU External Relations (CLEER) and The Hague University of Applied Sciences, under the aegis of The Hague Academic Coalition (HAC), invite submissions of abstracts for a workshop on the ‘International Legality of Economic Activities in Occupied Territories’. The workshop will take place at the Asser Institute in The Hague, on 17 October 2018. For further information, see here

Two Times Too Many: Botswana and the Death Penalty

EJIL:Talk! - Fri, 03/30/2018 - 07:00

Without wanting to trivialise the hard work needed to litigate human rights cases, it is often implementation that is considered the pinnacle of achievement. Put simply, it is one thing to convince a commission or court that a countries’ policies or actions contravene a human rights instrument, it is quite another for that country to implement the decision. A blog post therefore about another failure by another country to implement another human rights decision may not immediately pique the interest of EJIL:Talk! Readers. But I hope this case might just do so.

In November 2015, the African Commission on Human and Peoples’ Rights rendered a decision following a case brought by NGOs Interights and Ditshwanelo acting on behalf of detainee Mr Oteng Modisane Ping, challenging Botswana’s use of the death penalty. The complainants alleged, inter alia, that the death penalty is by its very nature a violation of Article 4 (right to life) of the African Charter on Human and Peoples’ Rights. In addition, they argued that Botswana’s specific death penalty procedures also violated of Articles 1, 4 and 5 of the African Charter. In particular, they contended that hanging violated the prohibition of torture and cruel, inhuman and degrading treatment under Article 5 of the African Charter.

Whilst the African Commission did not go so far as to declare the death penalty itself in contravention of the African Charter, it did pronounce that the use of hanging as a method of execution violated Article 5 of the African Charter (the decision can be accessed here, see in particular paragraph 87). This pronouncement was lauded by many as a significant step towards the eradication of the death penalty in Africa, since hanging is a form of execution favoured by several African countries. (Although it should be noted that the African Commission does not render binding decisions like its judicial cousin the African Court on Human and Peoples’ Rights, but rather recommendations.)

Despite this apparent victory however, the applicant, Mr Ping, was in fact executed. How did this happen? The decision explains that despite the African Commission using its powers to issue provisional measures preventing execution pending the outcome of the case, a temperamental fax machine prevented this decision being sent directly to the Botswana Office of the President. The provisional measure order to halt the execution therefore never reached Botswanan officials, who went ahead with the execution (yes, you read that correctly, see paragraph 24 of the decision).

So, whilst this decision was rightly lauded, the inescapable tragedy of Mr Ping’s death remains. However, with the decision having been in place and available on the African Commission website for some time, and no doubt with the Botswanan government for years, one could perhaps safely assume that at the very least we would not see an execution by hanging in Botswana any time soon.

Sadly, however news reached us last month that Botswana had executed Joseph Poni Tselayarona; seemingly the first execution since Mr Ping. The reported method of execution? Hanging. As I mentioned at the beginning of this post, another country not implementing a human rights decision may not be particularly novel, but where it involves the use of a form of execution specifically outlawed, involving the very same country subject to the previous decision, this a case worth highlighting.

The African Commission has issued a statement condemning the execution of Mr Tselayarona. In it, the African Commission mentions the death penalty “may” be a violation of Article 4 of the African Charter whilst stating that Article 5 of the African Charter prohibits cruel, inhuman or degrading punishment in broad terms. It does not however reference its own decision on this very issue, involving the exact same country.

Botswana’s failure to not only remove the death penalty but at the very least abstain from using the very mode of execution which the African Commission has decided is in violation of the African Charter merits a further response from the African Commission. But what can be done? The African Commission can send cases to the African Court on Human and Peoples’ Rights (see Rules 118 of the African Commission Rules). However, from the wording of the African Commission rules and the African Court’s reciprocal rules, it appears Botswana must have at the very least signed up to the African Court by signing the African Court Protocol. At present Botswana has not, and therefore a formal transfer from the African Commission to the African Court of the 2015 decision for, say, non-compliance seems off the cards.

Therefore, the matter likely remains within the African Commission’s jurisdiction. One option now is for the African Commission to issue a formal resolution calling on Botswana to implement its 2015 decision and no longer use hanging as a method of execution. Could this resolution be applied to all 55 African Union member states? Possibly. The African Commission has issued such a resolution once before to my knowledge. In November 2009, the African Commission considered the case of Endorois v. Kenya. In this case, the Endorois people alleged violations resulting from their displacement from their ancestral lands around Lake Bogoria, Kenya and Kenya’s failure to adequately compensate them. The African Commission found in the Endorois peoples’ favour, ruling Kenya had violated numerous articles of the African Charter, and recommended several ways to rectify the situation. It appears that Kenya did little to implement the African Commission’s recommendations, and so in November 2013 the African Commission issued a resolution calling on Kenya to implement its recommendations.

Whether the resolution issued in the Endorois case had much effect is up for debate (although it appears that the next time a Kenyan case involving indigenous peoples’ came before the African Commission it transferred the case to the African Court proprio motu). In the current Botswana situation, where we have the same country using precisely the same form of execution found by the African Commission to be in violation of the African Charter, it seems the very least the African Commission should do is issue a similar resolution. Such action would at least go some way to ensuring we are not faced with similar cases such as those of Mr Ping and Mr Tselayarona. It may be a small step, but it would be a start.

Time to Investigate European Agents for Crimes against Migrants in Libya

EJIL:Talk! - Thu, 03/29/2018 - 07:00

In March 2011, the ICC Office of the Prosecutor of the international criminal court opened its investigation into the situation in Libya, following a referral by the UN Security Council. The investigation concerns crimes against humanity in Libya starting 15 February 2011, including the crimes against humanity of murder and persecution, allegedly committed by Libyan agents. As the ICC Prosecutor explained to the UN Security Council in her statement of 8 May 2017, the investigation also concerns “serious and widespread crimes against migrants attempting to transit through Libya.” Fatou Bensouda labels Libya as a “marketplace for the trafficking of human beings.” As she says, “thousands of vulnerable migrants, including women and children, are being held in detention centres across Libya in often inhumane condition.” The findings are corroborated by the UN Support Mission in Libya (UNMSIL) and the Panel of Experts established pursuant to Resolution 1973 (2011). Both report on the atrocities to which migrants are subjected, not only by armed militias, smugglers and traffickers, but also by the new Libyan Coast Guard and the Department for Combatting Illegal Migration of the UN-backed Al Sarraj’s Government of National Accord – established with EU and Italian support.

These acts are not usually regarded as the bread and butter of international criminal law. Yet, for influential observers, they have seemed to reinstitute a modern form of slavery and to conjure images of mass arbitrary killings reminiscent of atrocity. For example, in a statement from November 22, 2017, French President Emmanuel Macron invoked slavery, explaining that trafficking in Libya has become a crime against humanity. For its part, the International Organisation for Migration, via its Missing Migrant project, has documented 46,000 cases of dead or missing worldwide since 2000.

During the whole time, however, various observers have pointed to the complicity of European countries with the relevant acts. Since 2011, Forensic Oceanography has been doing important investigative work in which the ethically fraught European involvement in preventing migration from Libya has been unfolded. Amnesty International has exposed a dark web of collusion, whereby EU states and Italy in particular have used Libyan militia to ensure migrants do not make it across the Mediterranean. Last December, John Dalhuisen, Amnesty International’s Europe Director, denounced European governments for:

“not just be[ing] fully aware of these abuses; by actively supporting the Libyan authorities in stopping sea crossings and containing people in Libya, they are complicit in these abuses.”

In perhaps the most recent evidence of such complicity, Italian authorities have seized the Spanish NGO rescue boat Open Arms and initiated a criminal investigation against members of its crew. The Open Arms, in response to a call from MRCC Rome of March 15, 2018, had rescued 218 people on the high seas and subsequently refused to deliver them to the (so-called) Libyan Coast Guard. After a row lasting several hours and including death threats, the vessel headed north for a medical evacuation in Malta, before requesting permission to disembark in Sicily. Despite Italy’s authorization, the captain and mission coordinator have been charged on counts of “criminal association” and “facilitation of irregular migration”. Italy claims they were obliged to hand over the survivors to Libya under its NGO Code of Conduct, disregarding that that would have amounted to refoulement. Italy thus flouted the requirement of delivery to a “place of safety” under the maritime conventions. It has become overwhelmingly clear that Libyan rescue operations in the Mediterranean are tantamount, as Charles Heller put it, to a plan of “rescue at gunpoint.”

European Agents and the Alleged Crimes

On September 13, 2017, UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions, Agnes Callamard, published her report to the UN General Assembly, on the “Unlawful Death of Refugees and Migrants”. The report meticulously documents border control practices with horrible impacts on the world’s most disempowered populations: mass deaths by drowning, an epidemic of mental illness and self-harm in refugee camps, and indefinite detention periods in harrowing conditions. One of the main concerns the report presents is with the population of migrants trying to find their way out of Libya through Mediterranean routes.

Callamard’s report does not absolve human traffickers in Libya from responsibility. In that sense, it goes hand in hand with Bensouda’s investigation. Yet it casts a much wider net for a future international criminal investigation focusing on crimes against migrants, including indictments of agents of “developed” countries. She observes that non-governmental organizations offering rescue services for migrants and refugees attempting to escape Libya “are under increasing pressure from the European Union, which is undermining, if not preventing, their efforts.” She condemns the underlying “policies based on deterrence, militarization and extraterritoriality which implicitly or explicitly tolerate the risk of migrant deaths as part of an effective control of entry”. In her eyes, it is simply “not acceptable” to “deter entry” (or discourage exit from unsafe countries) “by endangering life”. And in her recommendations, she spells out the practical implications:

“The International Criminal Court should consider preliminary investigation into atrocity crimes against refugees and migrants where there are reasonable grounds that such crimes have taken place and the jurisdictional requirements of the court have been met.”

A few weeks ago, on 1 March, 2018, Nils Melzer, UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, joined many of Callamard’s conclusions about the treatment of migrants. He too argues for personal criminal responsibility. As Melzer writes,

“States  and the ICC-Prosecutor should examine whether investigations for crimes against humanity or war crimes are warranted in view of the scale, gravity and increasingly systematic nature of torture, ill-treatment and other serious human rights violations  suffered  by millions of migrants in all regions of the world,  as a consequence of corruption and crime, but also as a direct or indirect consequence of deliberate State policies and practices of deterrence, criminalization, arrival prevention, and refoulement” (emphasis added).

Both Callamard and Melzer do not set the preferences in terms of what particular situation should be investigated. Elsewhere, a group of international legal scholars working with a clinic at Stanford Law School and the Global Legal Action Network (GLAN) have argued that “Deliberate state practices of deterrence, criminalization, arrival prevention, and refoulement” have been central to Australian policies. The group (including one of us) sent a communication to the prosecutor, alleging that Australian agents would be good candidates for a preliminary examination by the prosecutor. But, as scholars have long demonstrated, deterrence, arrival prevention and refoulement policies are also a key feature of policies led by European countries. The ongoing investigation into the situation in Libya must therefore examine these practices as well. If we believe Melzer, severing the acts of traffickers from Italian aiding and abetting (under Article 25(3) of the Rome Statute) is artificial, and would likely miss investigating the main reasons migrants are abused in the first place. The role of the EU, through its missions and agencies operating in Libya and at sea, should also be scrutinized. Assisting, training or funding organs of countries that disregard human rights may trigger international responsibility. In fact, in the face of gross and systemic human rights violations, no aid or assistance should be rendered that contributes to “maintaining that situation”.

Highlighting Structure

In recent years, news media has often circulated disturbing photographs of the abuse migrants suffer in the hands of their captors in Libya. We have seen mutilated bodies, and the exposed torsos of shackled men. The scenes could have just as easily been taken from the 2013 box-office hit by director Steve McQueen: 12 Years a Slave.

Yet, as Melzer adds – echoing Callamard:

“[t]he primary cause for the massive abuse suffered by migrants … including torture, rape, enslavement, trafficking and murder, is neither migration itself, nor organised crime, or the corruption of individual officials, but the growing tendency of States to base their official migration policies and practices on deterrence, criminalisation and discrimination, rather than protection, human rights and non-discrimination.”

Investigating exclusively crimes occurring in Libya by human traffickers – awful as they may be – reflects an unacceptable bias, and would likely amount to selective prosecution. An alternative decision to also investigate the collusion of European actors would more adequately address the entire situation, its systemic nature and programmed design. It will expose the “industrial” character of smuggling and trafficking for what it is: The consequence rather than the cause of suffering, in a system that traps migrants in a “vicious circle” of more control, more danger, and more dependence on facilitators to escape life-threatening perils. Such a decision is likely within the Prosecutor’s mandate under the UN Security Council referral and is called for by Callarmard’s and Melzer’s important conclusions.

A finding that European actors were involved in such crimes would highlight structural aspects of the situation in Libya, and not only serve to lay blame on a few relatively powerless actors. It would show that militia and trafficking agents are often working at the service (or for the ultimate benefit) of European principals, precisely for the purpose of preventing poor and black populations from access to European sources of wealth – sources of wealth that are, moreover, typically located in countries that were previous colonizers in some of the places migrants are now coming from. Human rights violations can indeed be perpetrated by action or omission. Practices of “consensual containment” and “contactless control” can be deemed equivalent to active forms of abuse where the end effect is the same. Libya has fallen to militia rule following military intervention by a U.S.-European coalition. Exclusively investigating Libyan actors would be bitterly ironic.

A New Extraterritorial Jurisdictional Link Recognised by the IACtHR

EJIL:Talk! - Wed, 03/28/2018 - 07:05

In its recently published Advisory Opinion on “The Environment and Human Rights of 15 November 2017 (in EJIL: Talk! summarized here; on its potential diagonal effect see here), the Inter-American Court is the first human rights court to recognise a new extraterritorial jurisdictional link based on control over domestic activities with extraterritorial effect. This post explains how the conclusions of the Advisory Opinion specifically on the first question recognise a new extraterritorial jurisdictional nexus (1) and argues that despite certain welcome developments (2), the Inter-American Court failed to give a comprehensive guideline as to the limits of the jurisdictional link (3).

1.    Summary of the new jurisdictional test

In its advisory opinion, the Inter-American Court had to answer the question whether a State Party has jurisdiction under Article 1(1) of the Pact of San José over a person situated outside the territory of that State Party if his or her human rights have been violated as a result of damage to the environment or of the risk of environmental damage that can be attributed to that State party.

This is the first occasion the Inter-American Court faces the question of the extraterritorial applicability of the American Convention on Human Rights. Therefore, the Court examined the case law of the Inter-American Commission on Human Rights, the European Court of Human Rights and other treaty regimes and confirmed the Convention’s extraterritorial applicability, recognising two alternative bases of extraterritorial jurisdiction: effective control over territory or persons. However, the Inter-American Court did not stop here and accepted a third jurisdictional link “when the State of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights” (para. 104(h)). The Inter-American Court widens extraterritoriality by establishing a new jurisdictional link that departs from the criteria for extraterritorial jurisdiction of effective control over territory/persons: it is based on the factual – or, as the Court formulates, “causal” – nexus between conducts performed in the territory of the State and a human rights violation occurring abroad (paras. 95, 101-102). While the European Court of Human Rights (ECtHR) vaguely recognised that “acts of the Contracting States […] producing effects […] outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1” (e.g. Al-Skeini), it has never applied it as a standalone basis to establish the State’s extraterritorial jurisdiction.

The Inter-American Court elaborated the new jurisdictional link by applying the general international principle of due diligence (see its traditional concept in Trail smelter or Corfu Channel cases), while broadening its content. Doing so, the Inter-American Court followed the numerous recommendations of UN treaty monitoring bodies, requiring the States not only to respect human rights abroad, but to prevent third parties from violating human rights in other countries, if they are able to influence these third parties (e.g. CESCR, General comment Nos. 14, 15, 24; CRC, General comment no. 16 or HRC, Draft General comment No. 36).

2.    The Advisory Opinion’s importance

The new jurisdictional link is arguably broader than any other extraterritorial jurisdictional nexus used before. Some intervenants in the advisory proceedings warned against such a broadening of the existing case law (e.g. Argentina). We might remember that this is similar to what the ECtHR has carefully struggled to avoid, fearing a “cause-and-effect” notion of jurisdiction (see Bankovic). However, this is not exactly the jurisdictional link that the Advisory Opinion constructs. The new nexus does not bring under the State’s jurisdiction “anyone adversely affected by an act imputable to a Contracting State, wherever in the world” as the ECtHR feared, but the State would incur responsibility for the failure to exercise its due diligence within its territory.

With the new jurisdictional link, the Court opens the door to extraterritorial jurisdiction in various scenarios where a State is factually linked to extraterritorial situations, without physical control over territory or persons, and where it has the knowledge on the risk of wrongful acts and the capacity to protect due to its effective control over activities within its territory. It is enough to think of the proposed jurisdiction of multiple States over migrants at high seas (here), that of the home State for the extraterritorial violations by multinational companies (here) or that of the State of nationality over its nationals seeking diplomatic or consular assistance against human rights violations (see the inadmissible precedents here or here).

While the Court does not distinguish between State actions and omissions that cause an adverse extraterritorial effect (e.g. para. 103), the most important novelty is to expect from States not only negative, but positive obligations in an extraterritorial situation. In other words, if a company operating in State A causes transboundary environmental harm that adversely affects an individual’s life and physical integrity in State B, then the individual is within A’s jurisdiction. This makes sense under due diligence as far as State A failed to take reasonable steps to protect individuals abroad from human rights violations, i.e. it had the capacity to protect and the knowledge on the risk of the wrongful act. However, the devil is in the details: the question whether the new jurisdictional link would place a reasonable or unbearable burden on States depends on its limits.

3.    The lack of comprehensive guideline

The Inter-American Court however fails to give a comprehensive guideline and adopts an unqualified formulation of the new jurisdictional nexus, while it should have determined its limits for the sake of legal certainty. The limits are understood as the minimum threshold of the seriousness of the human rights violations, the scope of the affected rights and the nature of the factual/causal link.

Firstly, the Advisory Opinion refers to “significant” or “serious” adverse impact on the environment abroad as a consequence of the State’s failure to exercise due diligence, but it is not clear what gravity the human rights violation shall reach. The Advisory Opinion only focuses on the right to life and the right to personal integrity, and concludes that “any damage to the environment that may entail a violation” of those rights (para. 140). Beyond referring to the usual case-by-case analysis, the Court could have set a minimum threshold, similarly to the fourth report of the ILC Special Rapporteur on the protection of the atmosphere, who held that there must be a minimum level of environmental degradation to be able to amount to a human rights violation: “[t]he assessment of that minimum standard is relative and depends on the content of the right to be invoked and all the relevant circumstances of the case, such as the intensity and duration of the nuisance, and its physical or mental effects”.

Secondly, it is unclear whether the State’s non-compliance with its due diligence can establish its extraterritorial jurisdiction with regard to only the most important rights such as the right to life and the right to personal integrity or any rights under the American Convention. The general wording of the cited conclusions implies such a broader view. This could be problematic especially regarding economic, social and cultural rights under Article 26 of the Convention which require from the State a duty of progressive realisation and where the threshold of due diligence is different for each member State. Shall the Court look at the threshold of ECOSOC rights in the State of origin or in the State of the occurrence of the harm? Can “serious” adverse impact on the right to property in State A by activities under the effective control of State B performed within its territory instigate the extraterritorial jurisdiction of State B? The range of affected human rights opens a series of new questions that the Advisory Opinion should have addressed.

Thirdly, the Inter-American Court should have given a guideline as to the required factual/causal link, especially as to the required proximity. The Advisory Opinion merely speaks about a link of causality (paras. 101, 103), “possible” significant harm (para. 189) or “plausible” factors of the risk (para. 180). Referring merely to “causality” might be an oversimplification to describe the often complex factual link between the State’s omission and its extraterritorial consequences, especially in case of a multiplicity of States contributing to the human rights violation. Causation is linked to questions of foreseeability and proximity or direct harm. Other monitoring bodies have applied certain tests to better identify this link: the European Court of Human Rights required “direct and immediate link” in Article 8 cases; “direct and immediate cause” (Andreou); “sufficiently proximate repercussions” (Ilaşcu); “real and immediate risk” (Rantsev); while the HRC’s Draft General Comment No. 36 provides for “a [direct], significant and foreseeable impact on the right to life of individuals”. In one paragraph, the Advisory Opinion does refer to such a threshold of “real and immediate risk” (para. 120), but only with respect to the protection of the right to life. To serve legal certainty, and in conformity with the Court’s intention to interpret cases of extraterritorial jurisdiction restrictively, as an exception (paras. 81, 104(d)), the minimum proximity of the factual/causal link should have been formulated as a threshold criterion of the new extraterritorial nexus. In other words, the unlimited formulation by the Inter-American Court does not explain how causality can be interpreted as an exceptional situation of extraterritorial jurisdiction.

Conclusion

While the construction of the jurisdictional link based on due diligence is a welcome development that other universal and regional human rights bodies might follow, its limits are still unclear. Now it is up to the applicants – individuals, NGOs and perhaps States Parties? – to exploit the potential of the new jurisdictional link and define its limits.

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

EJIL:Talk! - Tue, 03/27/2018 - 06:08

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

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

EU law under ISDS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The implications of Achmea

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

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

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

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