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International Law in “Turbulent Times,” Part II

Tue, 03/06/2018 - 15:00

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

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

International Legal Conflict Is Often Productive

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

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

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

Assessing Whether International Law Is in Decline

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

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

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

International Law in “Turbulent Times,” Part I

Tue, 03/06/2018 - 09:00

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

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

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

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

International Law Enables Conflict

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

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

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

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

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

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

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

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

Mon, 03/05/2018 - 09:00

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

 

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

Bob Dylan, The Times They Are Changing, 1964

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

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

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

Setting the scene: 1990 and beyond

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

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

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

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

Back to Square One?

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

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

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

Current role of international courts and tribunals

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

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

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

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

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

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

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

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

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

Role of scholars

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

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

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

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

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

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

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

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

Sun, 03/04/2018 - 10:00

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

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

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

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

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

Foreign Office Certificates and Diplomatic Immunity in the Assange Affair

Fri, 03/02/2018 - 07:40

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

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

The Diplomatic Privileges Act

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

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

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

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

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

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

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

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

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

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

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

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

Speaking with One Voice – A Wider Principle?

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

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

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

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

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

Abuse of Rights

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

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

Security Council Resolutions as Evidence of Customary International Law

Thu, 03/01/2018 - 09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wed, 02/28/2018 - 09:00

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

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

The failure of the UN GGE

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

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

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

The OECD Solution

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

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

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

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

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

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

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

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

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

Post Scriptum: 

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

 

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

Tue, 02/27/2018 - 09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mon, 02/26/2018 - 14:00

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

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

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

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

The Advisory Opinion in its context

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

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

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

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

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

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

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

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

The wider significance of the Advisory Opinion for international law

The door is open to diagonal environmental claims

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

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

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

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

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

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

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

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

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

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

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

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

Climate change

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

The Business and Human Rights debate

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

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

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

Mon, 02/26/2018 - 08:00

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

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

The reformulated scope of the advisory opinion

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

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

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

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

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

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

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

The protection of the environment and the American Convention

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

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

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

The Court reformulated Colombia’s first question as follows:

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

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

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

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

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

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

States’ obligations under special environmental regimes

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

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

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

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

States’ obligations to prevent transboundary environmental damage

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

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

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

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

There are two main propositions at play here:

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

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

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

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

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

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

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

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

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

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

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

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

The obligation to prevent transboundary environmental damage

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

The precautionary principle

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

Obligation to cooperate

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

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

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

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

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

Sun, 02/25/2018 - 10:00

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

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

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

Sat, 02/24/2018 - 10:30

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

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

Subsidiarity

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

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

As the Danish Helsinki Committee for Human Rights has rightly argued

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

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

Conflict cases

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

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

Funding

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

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

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

Fri, 02/23/2018 - 09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thu, 02/22/2018 - 14:00

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

Ilana R. Bet-El

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

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

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

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

What does the law say?

Ukraine

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

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

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

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

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

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

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

Poland

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

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

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

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

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

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

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

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

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

What about the freedom of speech?

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

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

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

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

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

The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?

Thu, 02/22/2018 - 09:00

Scattered responsibility and Melian dialogue?

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

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

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

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

The aims of reform

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

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

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

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

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

Shared responsibility

The draft Copenhagen Declaration calls for:

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

So what is new and likely to improve rights protection?

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

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

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

Consider six flaws in the Copenhagen state centric subsidiarity:

1 Limited domain of the margin of appreciation

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

2 National traditions are not sacrosanct because states say so

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

3 Court abdication from proportionality assessment?

The draft declaration insists that:

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

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

4 Differences in democratic policies does not give immunity from scrutiny

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

5 Whose standards of review?

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

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

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

Dialogue

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

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

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

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

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

Conclusions

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

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

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

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

Wed, 02/21/2018 - 14:00

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

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

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

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

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

How did we get here?

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

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

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

Subsidiarity and margin of appreciation misconstrued

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

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

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

For example, at paragraph 4, it notes that:

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

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

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

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

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

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

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

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

Universality  

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

“Dialogue and participation” – or institutionalising political pressure?

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

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

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

Conflict cases

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

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

Time to heed the warnings

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

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

Wikileaks Documents are Admissible in a Domestic Court

Wed, 02/21/2018 - 09:00

On 8 February 2017, the UK Supreme Court held unanimously that a Wikileaks document is admissible in a domestic court. The Wikileaks document in issue purported to be a copy of a diplomatic cable from the US Embassy in London summarising a meeting between US and British officials. In reaching their decision, the Court had to interpret the Vienna Convention on Diplomatic Relations 1969, which provides that a document and archive of a diplomatic mission is “inviolable”. The importance of this case, the lack of any strong precedent anywhere in the world, and its broad ramifications, led the Court, unusually, to sit as a 7 member panel.

The case, R (Bancoult) v. the Secretary of State for Foreign and Commonwealth Affairs (Bancoult 3), was part of a series of cases brought by representatives of Chagossians, who were removed by the UK government from the Chagos Islands (a British colony) in the 1970s. A factor in their removal was the leasing of the main island (Diego Garcia) to the US government for a military base. Several actions by successive British governments have prevented the Chagossians from returning to the Chagos Islands and these actions have, to date, eventually been held to be lawful by the highest UK courts. The publication of the Wikileaks document, which was then published in The Guardian and The Telegraph, arguably brought into question the legality of one of these actions: the decision in 2010 by the then Secretary of State for Foreign and Commonwealth Affairs, David Miliband, to impose a Marine Protected Area (MPA) around the Chagos Islands.

The claim against the government by the Appellant was that this decision to impose an MPA was undertaken not for environmental purposes, but to prevent the return of the Chagossians, which was an improper purpose. Ultimately, the Supreme Court held (with Lady Hale and Lord Kerr strongly dissenting) that no improper purpose could be found, not least as it was the motivation of the Secretary of State that was relevant and not that of the civil servants who were managing the process. The Court also noted that the fishing rights of the Chagossians had not been properly considered by the Secretary of State (and in so doing relied on the finding by an international arbitral tribunal that these fishing rights did exist) but that this did not make any consultation on the MPA invalid. Thus, the appeal by the Chagossians failed.

This post focusses on the consideration by the Court as to whether the Wikileaks document could be allowed into evidence at all. The importance of the Wikileaks document to the claim was that the document, being a summary by the US Embassy in a diplomatic cable, of a meeting between US and UK officials held in May 2009, included the words:

[Colin] Roberts [of the FCO] stated that, according to the [UK government] current thinking on a [marine] reserve there would be no ‘human footprints’ or ‘Man Fridays’ on the BIOT’s [British Indian Ocean Territories] uninhabited islands. He asserted that establishing a marine park would, in effect, put paid to resettlement claims of the [Chagos] archipelago’s former residents […]. Establishing a marine reserve might, indeed, as the FCO’s Roberts stated, be the most effective long-term way to prevent any of the Chagos Islanders’ former inhabitants or their descendants from resettling in the BIOT.

This statement (beyond its reporting of the use of appalling pejorative terminology), and other indications in the Wikileaks document, seemed to indicate that the reason for the MPA was to prevent the Chagossians returning and not to protect the marine environment around the Chagos Islands. During cross-examination of Mr Roberts at the initial stage of the case, the case was halted as the FCO cleverly argued that the Wikileaks document, being apparently a copy of a diplomatic cable, was inadmissible in a UK court as it was contrary to the Vienna Convention on Diplomatic Relations 1961 (VCDR). The two key provisions of the VCDR are:

Article 24: The archives and documents of the mission shall be inviolable at any time and wherever they may be.

Article 27 (2): The official correspondence of the mission shall be inviolable.

There was considerable argument before the Supreme Court as to what was meant by ‘inviolable’. In the absence of any case law directly on this point, the Supreme Court referred to a range of commentators, such as Eileen Denza, Rosalyn Higgins and FA Mann, who sought to interpret the VCDR. Mann’s view, which was accepted by the Court of Appeal, was that ‘inviolability’ protected against interference (by the claimant or the receiving state) with the document and was not a general rule against inadmissibility in a domestic court. Denza’s view was that inviolability meant inadmissibility in any domestic court no matter how they came into possession of a party to the case. This latter view, in the Supreme Court’s opinion, was correct as it was supported by the House of Lords in Shearson Lehman Bros v Maclaine Watson [1988] 1 WLR 16.  Accordingly, the Supreme Court (Lords Mance, Neuberger, Clarke and Reed in the main decision) concluded that:

In principle, therefore, inviolability of documents which are part of the mission archive under articles 24 and 27(2) extends to make it impermissible to use such documents or copies in a domestic court of the host country, at any event absent extraordinary circumstances such as those of the Cellamare conspiracy or Rex v Rose and absent express waiver of the inviolability by the mission state [para 20].

Lord Sumption, in his separate opinion (with whom Lords Neuberger, Clarke and Reed agreed), noted that Article 24 is not only violated where the receiving state fails to protect the archives and documents against third party action but also if a domestic court, as an organ of the receiving state, receives and uses this material [para 71]. This includes, in his view, where the document comes into the hands of a third party. He makes clear that this is not due to the words ‘wherever they may be’ in Article 24 but because it is contrary to the confidential status of the mission’s archives and documents of which inviolability is founded.

Nevertheless, the Court noted that this principle of inviolability is subject to two qualifications:

First, the document must constitute or remain part of the mission archive, and, second, its contents must not have become so widely disseminated in the public domain as to destroy any confidentiality or inviolability that could sensibly attach to it. These two qualifications may sometimes, but certainly not always, coincide. [para 20].

In this case, there was no suggestion that the Wikileaks document came directly from the US Embassy in London, as it probably came from the US State department somewhere else (most likely from Iraq). Accordingly, the Court held:

it is not therefore established, even as a matter of probability that the cable remained part of the archive of the London mission, when it was extracted [by Wikileaks]. On that simple basis, the Wikileaks cable was available for use and admissible as evidence of its contents in the present proceedings [para 20]. 

Lord Sumption explored this issue further by clarifying that, while the diplomatic mission and the sending State are not separate legal entities, the protection of Article 24 is limited to the archives and documents of the mission. He notes that it is not the location of the archives (as they could be on a server anywhere) which is relevant but whether they are under the control of the mission’s personnel as opposed to the control of other agents of the receiving state [para 68]. Lady Hale agreed with this on the understanding that control can include where there are specific restrictions (other than generally being ‘confidential’) placed on the documents when they leave the mission [para 127].

The Court also held that any inviolability was lost due to the Wikileaks document coming into the public domain. This was the case even if it had been unlawfully extracted from the mission archive [para 21]. As Lord Sumption explained, once the documents have been published to the world, any confidentiality of them has been lost and there is ‘nothing left to be preserved of the interest protected by Article 24’ [para 75]. He indicates that this may be the case even where the documents were put into the public domain by the person relying on them. He also notes that any finding by the Court as to the authenticity of the Wikileaks document can be done without the consent of the sending state, as the document is already in the public domain and so subject to public scrutiny [para 77].  Accordingly, it would not be a violation of the VCDR for the Appellant to use the Wikileaks document and it not could ‘be a violation for the English courts to take cognizance of a document which has escaped from the control of the US embassy and whose confidential status long ago came to an end’ [para 76] and so the courts can consider its authenticity and evidentiary value.

This is a clear decision by a strong court. Yet, disappointingly, the Supreme Court did not itself undertake a close interpretation of the VCDR using the public international rules for interpretation of a treaty. While Lord Mance noted that inviolability ‘may embrace different shades of meaning according to the context in which it is deployed’ [para 13], and Lord Sumption noted that inviolability ‘is a protean word, whose meaning is necessarily sensitive to its context and purpose’ [para 69], they did not reach these conclusions through use of these public international law rules, though Lord Sumption did consider some of the relevant international instruments and he did try to discern the object and purpose of the VCDR, which he concluded was to ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’ (relying on the fourth preamble of the VCDR). This general approach by the Supreme Court is in contrast with that of other UK courts when interpreting a treaty that is incorporated into domestic law, as they normally use the rules of interpretation of a treaty by following Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (see, for example, R (Hoxha) v Special Adjudicator [2005] UKHL 19 and Ben Nevis (Holdings) Ltd v Commissioners for HMRC [2013] EWCA Civ 578). While it might appear that the end result may not be different, adopting an approach that follows expressly the international rules of treaty interpretation can be of great value in terms of consistency of interpretation of a treaty across domestic and international courts and tribunals.

By focussing on the idea of ‘control’ by the diplomatic mission, the Court did clarify that the term ‘wherever they may be’ in Article 24 could not mean simply wherever in the world the documents are located (as was Denza’s view). As Lord Sumption noted, electronic files can be located away from the mission premises and yet may be part of the mission’s archive or not. What was determinative was whether ‘access to them is under the control of the mission’s personnel, whether directly or by virtue of the terms on which the mission transmitted the document to another [sending state’s] governmental entity’, or obtained it or a copy of it from the sending state [para 68]. However, the difficulty of moving the issue to one of control by the mission of the document rather than about the limits of responsibility of the receiving state (such as to prevent interference or otherwise to protect the mission – see Re Minister of Foreign Affairs and Trade v Magno [1992] FCA 566) is that it may be very difficult for a claimant or the court to determine the level of control by a mission of a document. It is also not clear what restrictions are needed to be placed on a document send by a mission so as to keep it within the inviolability of the mission’s archives, as simply marking it ‘confidential’ is insufficient.  This is particularly the case where, as here, the sending state (the US) did not appear before the courts or where a sending state may be tempted to indicate a greater level of control by the mission of the document in order to gain inviolability of that document. To prevent this expansion, the courts may need to adopt an independent approach to the determination of the control a document, much as they do with the commercial exception to the State Immunity Act 1978.

It is welcome that the Court acknowledged the absurdity of trying to maintain confidentiality of a document in the public domain, even where a document is a diplomatic document and has been unlawfully obtained. This is a realistic and wise approach.

This is a powerful decision by the Supreme Court that a Wikileaks document can be admissible into a UK court and its evidentiary value and authenticity can be weighed by the courts.  While some domestic and international courts and tribunals have taken into consideration Wikileaks documents (see, for example, Republic of Djibouti v Boreh [2016] EWHC 405 (Comm), Persia International Bank v Council [2013] EUECJ T-493/10 (6 September 2013) and ConocoPhillips v Venezuela ICSID Case No Arb/07/30), in each instance, they had not considered the issues of inviolability under the VCDR. In this case, the UK Supreme Court has reviewed the VCDR and decided that a Wikileaks document is admissible in evidence before a domestic court in circumstances that are likely to be applicable to most Wikileaks documents involving diplomatic cables in a non-US court.

Robert McCorquodale appeared for the Appellant in the Bancoult 3 case, and undertook the advocacy about the Wikileaks document issue before the Court of Appeal and the Supreme Court.

Turkey’s Military Operations in Syria

Tue, 02/20/2018 - 13:00

Turkish Armed Forces (TAF) carried out ‘Operation Euphrates Shield’ for 216 days from August 2016 to March 2017 in the triangle between Azaz, Jarablus and al-Bab in northern Syria. Thanks to this military operation, Turkey cleared Daesh from the region and halted the risk of the PYD/YPG exercising control of the Syrian side of the shared 911km border by wedging itself between two PYD/YPG controlled areas. In addition, some displaced Syrians voluntarily returned to this region from Turkey, which currently hosts around 3.5 million Syrian refugees — more than any other country.

In line with this previous operation, the TAF launched ‘Operation Olive Branch’ on 20 January 2018 in Afrin, which has been controlled by the YPG. In its letter to the UN Security Council (UN Doc. S/2018/53), Turkey justified this operation on the basis of self-defence and various Security Council resolutions calling on Member States to fight terrorism. 

Since the indicated UN Security Council resolutions do not explicitly authorize the cross-border use of force, Turkey’s reliance on it as a justification of its extraterritorial military operation is unacceptable in international law. As far as I see in legal discussions, there is no dispute over this. However, the question of whether Operation Olive Branch can be justified on the basis of self-defence has brought with it some controversy.

Armed attack

According to both Article 51 of the UN Charter and related customary international law, occurrence of an ‘armed attack’ is required for the activation of the inherent right of self-defence. The ICJ identified ‘scale and effects’ as the criteria that ‘distinguish the most grave forms of the use force (those constituting an armed attack) from other less grave forms,’ but has not specified indicators of these criteria (Nicaragua judgment, 1986, para. 191). It should be noted that the scale and effects criteria have nothing to do with numbers. Rather, it is a legal assessment depending on facts and circumstances at hand.

Turkey’s letter indicates that:

‘[t]he recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.’

These trans-border attacks originating from Syria’s Afrin may individually fall below the threshold of an armed attack, but this series of attacks needs to be regarded as cumulative in character. If, as Turkey has asserted, the series of these incidents resulted in deaths and injuries, then it can be treated as a composite armed attack within the meaning of Article 51 of the UN Charter, which entitles the victim State to self-defence. At this point, one should also remember the fact that Turkey has long been targeted by terrorist organizations from the territories of its unstable neighbours, Iraq and Syria. NATO Secretary-General Jens Stoltenberg affirmed this view by stating that:

‘Turkey is the NATO [a]lly which has suffered most from terrorist attacks over many years and Turkey, as all of the countries, have the right to self-defence, but it is important that this is done in a proportionate and measured way.’

Anticipatory self-defence

Some scholars, such as Peters and Talmon, are sceptical that the terrorist attacks occurred prior to the launch of Operation Olive Branch. Their suspicion is understandable, as it is the burden of the victim State to provide substantiating evidence of the factual occurrence of an armed attack (Armed Activities judgment, 2005, para. 146). Turkey should therefore have substantiated the YPG’s attacks and their consequences in its letter to the UN Security Council. Turkey still has the opportunity and burden to convince the international community in this regard.

Supposing that Turkey could not substantiate its allegation, I think the legality of its extraterritorial military operation is worth discussing on the basis of anticipatory self-defence. According to this controversial doctrine, a State is permitted to defend itself not only when an armed attack has already materialized, but also when it is ‘imminent’, as has been accepted by the majority of States and scholars since the Caroline incident. However, the meaning of imminence as a matter of law is the subject of some controversy (for this discussion, see Green, Hakimi and Milanovic). Reisman and Armstrong survey the contemporary State practice and conclude from statements of several States that imminence is interpreted more flexibly in State responses to terrorist organizations. In line with this conclusion, Hakimi indicates that anticipatory self-defence ‘might already be shifting or might soon shift from the restrictive position toward the more permissive one.’ 

In its letter to the UN Security Council, Turkey indicated that Operation Olive Branch was initiated to respond to the recent increase in the PKK/YPG’s long-standing attacks and to counter terrorist threats from Syria. Turkey’s military actions and legal position in this respect seem to be in line with the practice and legal positions of some States such as Australia, Canada, the UK and the US, which justified their use of force in Syria on the basis of an individual or collective right of self-defence to respond to terrorist threats or imminent armed attacks. Peters rightly expresses her concern that opening the door of self-defence to ‘the threat of terrorism’ may trigger abusive invocations of self-defence. Likewise, it should be kept in mind that the requirement of imminence is more likely to be satisfied with evidence of a perpetrator’s concrete plan to launch an armed attack rather than just the mere capability to launch one in future. However, what Turkey argues here is not only the general threat of terrorism or mere capacity of a non-State actor: Turkey points directly to the propensity of the PKK and its affiliates to launch attacks when conditions are suitable. In other words, Turkey has considered the recent increase in the PKK’s long-standing attacks and concluded that it represents a permanent and active threat of further attacks, both in terms of capacity and intent.

The PKK has caused the loss of more than 40,000 people, including civilians, in its terrorist attacks in Turkey since 1984. States including but not limited to members of the EU, Australia, Canada, the UK, and the US, as well as international organizations such as NATO and the EU, see the PKK as a terrorist organization. A report published by The Henry Jackson Society, a London-based think tank, in 2017 indicates that the PKK and the PYD/YPG ‘are organically integrated components of the same organisation — sharing membership, ideology, and a command structure.’ Iraqi Kurdish leader Masoud Barzani in 2016 indicated that the PYD/YPG and the PKK are ‘exactly one and the same thing.’ Even the former U.S. Secretary of Defence Ashton Carter and the U.S. Central Intelligence Agency have confirmed that they see the PYD/YPG as a Syrian wing of the PKK terrorist group. The aim here is not to put all Kurds in the PKK/PYD/YPG terror basket. On the contrary, the PYD/YPG should not be considered a legitimate representative of the Kurdish population in that region due to its affiliation with the PKK, and should not be a partner in the fight against Daesh. The reason why this terrorist organization operates under different brands is explained by the US Army General Raymond Thomas, the head of Special Operations Command, as following:

‘They formally called themselves the YPG, who the Turks would say equated to the PKK. So we literally played back to them that you’ve got to change your brand. What do you want to call yourself besides the YPG? With about a day’s notice they declared that they were the Syrian Democratic Forces.’

Whatever they name themselves, this kinship seems sufficient to categorize the PYD/YPG as a Syrian wing of the PKK. The YPG has taken advantage of the conditions of the instability in Syria and expanded its control over the areas in northern Syria alongside the Turkish border thanks to extraordinary US military support, repeatedly condemned by Turkey. Under these circumstances, had it not launched this military operation, Turkey may have lost the opportunity to defend its border security effectively. In other words, failure to stop the advance of the YPG along its border today would reasonably be expected to result in the YPG’s larger-scale attacks against Turkey in near future.

Australian Attorney-General, Senator the Hon. George Brandis QC, has expressed the long-held position of his country regarding anticipatory self-defence by stating that:

‘[…] acting in self‑defence does not require a State passively to await attack. That view is shared by the United Kingdom, the United States, and other like‑minded countries.’

That view is also shared by Turkey as it launched Operation Olive Branch to stop the advance of the YPG and its terror corridor in northern Syria before it loses the opportunity to defend itself effectively.

Non-State actors

Although there is significant legal uncertainty over the question of whether an armed attack by a non-State actor not attributable to a State suffices to trigger self-defence (for this discussion, see Milanovic’s article), State practice in the wake of 9/11 has started to evolve in the direction of affording States the right of self-defence in response to attacks conducted by non-State actors. This evolution is, in fact, not contrary to the UN Charter, as nothing in the language of Article 51 limits ‘armed attack’ to attacks attributable to a State. Accordingly, as has been embraced by some States, such as Australia, Canada, Germany, Turkey, the UK and the US, when the host State is ‘unable or unwilling’ to prevent its territory being used as a base for launching attacks against the victim State’s territory, the victim State is permitted to exercise its right of self-defence providing that its requirements are met.

The ICJ, however, has not embraced this approach yet (Wall advisory opinion, 2004, para. 139; Armed Activities judgment, 2005, para. 147). In line with the jurisprudence of the ICJ, many scholars, such as Heller and Green, argue that there is no consistent State practice supporting the ‘unable or unwilling’ test in relation to self-defence actions adopted against non-State actors.

The willingness of subjects of international law to apply the right of self-defence against non-State actors can be observed by the recognition of the US right to respond in self-defence against the 9/11 attacks (see Paust’s article). I think, in the face of such recognition by the Security Council, NATO as well as majority of States, international courts and scholars should have been prepared to review their traditional approach. Otherwise, giving this right to one State but not to others would be a double standard, violating the understanding of the equality of States enshrined in Article 2(1) of the UN Charter and undermining the international legal order.

Proportionality and necessity

In accordance with customary international law, the ICJ confirmed that two more criteria, proportionality and necessity, need to be met for a lawful exercise of self-defence (Nicaragua judgment, 1986, paras. 176, 194; Oil Platforms judgment, 2003, paras. 43, 73-74, 76).

The scale, scope, duration and intensity would be determinant factors in an assessment of the proportionality of any self-defence action. Turkey should, therefore, exercise its military operation in accordance with the statements of Turkish officials emphasizing its temporary nature and limited purpose of clearing its border from terrorist organizations.

As to necessity, the US has been warned by Turkey several times in recent years for its increasing military support to the YPG by providing heavy weapons, training its fighters and even planning to create a so-called ‘Border Security Force’. This support has increased the YPG’s military capacity in Afrin, triggering Operation Olive Branch. Given this growing capacity, no less intrusive means remain available to Turkey to defend its national security interests aside from conducting an extraterritorial military operation against the YPG.

A Cold War like Thriller in Summer – Icy Times Between Vietnam and Germany

Tue, 02/20/2018 - 08:45

If “all options are on the table” in the international arena, it is a reliable indicator that the stakes are high. We still recall when President Trump put all options on the table in August last year responding to North Korean missile tests. Just a few days before, Germany, usually not known for Trumpish rhetoric, also placed “all options on the table” in a dispute with Vietnam. This was not because Germany was concerned about a nuclear escalation. Germany was responding to a kidnapping of a Vietnamese citizen and asylum seeker, which Germany’s foreign minister accurately described as something “we believe one sees only in sinister thrillers about the cold war.”

Trinh Xuan Thanh, a former high-profile constructive executive, for whom Vietnam issued an international arrest warrant for corruption, sought refuge in Germany. Thanh however never showed up for the hearing scheduled in his asylum case. Instead, a few days later, he appeared haggard-looking on Vietnamese television. Vietnam stated Thanh had voluntarily turned himself in.  Germany presents a different version of Thanh’s return, accusing Vietnam of abduction. Purportedly, witnesses saw armed men dragging Thanh into a rental car in the middle of Berlin. After a stopover at the Vietnamese embassy, it is believed that he was clandestinely transported by ambulance to Eastern Europe from where he was flown to Vietnam.  Germany had no doubts that Vietnamese officials were responsible. On February 5, the second trial against Thanh concluded. While he escaped the impending death penalty, he received two life sentences for embezzlement.

These are only the core facts of this surreal story with many more thriller-like details, leading Germany to put “all options on the table”. Germany initiated criminal investigations (leading to a first arrest). Germany suspended a public official pending an inquiry into his involvement in the kidnapping. Germany harshly and repeatedly denounced the kidnapping as an “unprecedented and blatant violation of German law and international law”, see here, here, here. Germany found it “just unacceptable that foreign States on German territory under German sovereignty trample German law.” As a consequence, Germany first demanded Thanh’s return to further examine his case. Realizing the futility of this claim, Germany requested an apology and a guarantee of non-repetition. Furthermore, Germany declared Vietnamese diplomats persona non grata. Finally, in reaction to Vietnam’s failure to meet Germany’s demands, Germany eventually suspended her Strategic Partnership with Vietnam.

Violation of international law by Vietnam

Assuming Germany’s allegations prove true, there is little doubt that Germany’s outrage is legally well-founded. An abduction carried out by Vietnamese agents within German territory violates Germany’s sovereignty and territorial integrity deriving from Article 2(1) UN Charter. Also, the embassy’s involvement amounts to a violation of the Vienna Convention on Diplomatic Relations, in particular Article 41, which states that it is the duty of all persons enjoying diplomatic privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.  And finally, it is established that abductions violate the abductee’s right to liberty and security as guaranteed in Article 9(1) ICCPR, also when conducted extraterritorially.

One might ask if Vietnam’s action may be justified. Thinking creatively, two facts may be relevant here: Germany has not followed numerous Vietnamese requests for extradition of Thanh. Second, Vietnam presses apparently legitimate charges of corruption against him, uncontested by Germany. However, none of these arguments is convincing. First, in absence of an extradition treaty between Germany and Vietnam, Germany has no obligation to extradite Thanh. Second, even though it ultimately did not materialize, Thanh faced a real risk of being subjected to the death penalty in Vietnam. Thus, the obligation of non-refoulement even prohibited Germany from extraditing him. Moreover, Germany was not categorically unwilling to extradite Thanh, but rather was conducting high-level negotiations about an extradition consistent with human rights. (This also explains why Germany speaks of “an extreme breach of trust.”) Finally, even if Germany was wrongfully denying extradition and impeding Vietnam’s claim to justice, no circumstances of precluding wrongfulness permitted those means of archaic self-help Vietnam resorted to. Under current international law, justice has to cooperate and wait. Calls to pierce State sovereignty to fight impunity still have their limits at State borders (see for the discussion on State immunity). Even the abduction of Eichmann, one of the main organizers of the Holocaust, prompted Argentine to strongly protest against the violation of its sovereignty and complain to the Security Council. The Security Council agreed and requested Israel to make appropriate reparation. And Israel accepted that it “infringed fundamental rights of the State of Argentine.” International law‘s position has not changed despite recent extraordinary rendition practice in the fight against global terrorism – and hence gave valid reason to Germany to put “all options on the table.”

Germany‘s Reaction

However, it is also beyond doubt that Germany’s “all options” have their limits in international law. This case illustrates however that defining those limits may prove difficult. First, Germany accepts and closely follows the trial against Thanh, and has limited herself to requesting due process guarantees. This appears as an implicit acceptance of the heavily criticised, but accepted doctrine of male captus bene detentus. Apparently, Germany’s “options” do not include contesting Vietnam’s right to conduct the trial. Moreover, the incident allows us to assess the limits of a state’s freedom to choose an adequate form of reparation and to respond to internationally wrongful acts.

Choosing Reparation

Since the famous Chorzow Factory decision of the PCIJ it is generally accepted that every breach of an international obligation entails the obligation to repair the damage caused by said breach. Reparation has to wipe out all consequences of the wrongful act. To that end, the ILC’s Articles on State Responsibility establish a clear hierarchy between the different forms of reparation, giving primacy to restitution over compensation and satisfaction. In principle the injured state can overturn this primacy by choosing another mode of reparation. This right to choose however only applies “in most circumstances”. Or as the ILC goes on to explain in more detail: “there are cases where a State may not, as it were, pocket compensation and walk away from an unresolved situation, for example one involving the life and liberty of individuals […]“. (ILC ARS Commentaries, Art 34, para 4 and Art 43, para 6)

Germany gave up on her initial request to have Thanh returned in favour of demanding an apology and a guarantee of non-repetition. Thus, even though Germany did not take money and run, she chooses satisfaction over restitution, turning her back on Thanh, who at the time Germany made her choice still faced the death penalty. How does such a reaction square with the ILC’s remarks?

It is clear that Germany cannot be obliged to demand Thanh’s freedom by way of restitution. For the injured state, reparation is a right not an obligation. Germany also does not owe release efforts to Thanh. She has no extraterritorial human rights obligations towards him, now in Vietnam. She played no part in his abduction and there are no indications that she violated a positive obligation to protect Thanh. Germany also complied with her procedural obligation to investigate human rights violations on her territory. Moreover, Germany does not have any obligations towards any third party in that matter either.

But still, according to the ILC, Germany is not free to choose the reparation she wants. This of course for an obvious reason: choosing other forms of reparation over restitution would be detrimental to the individual’s position. Taking our case as example, Vietnam has the obligation towards Germany to return Thanh to German territory as restitution. By giving up on this claim, Germany absolves Vietnam from this obligation, leaving Thanh to face the death penalty or life imprisonment. This constellation may be best explained by the notion of abuse of rights: Even if a state does not owe a certain behaviour to anyone, it must make use of its rights in a way that does not infringe the valid interests of others without good reason. Hence, the right to choose a form of reparation is subject to a balance of interests of the parties affected. By indicating that Germany has to accept that a trial is happening, a German spokesperson hinted to the fact that it is hard to obtain restitution from Vietnam. Should that be the only reason for Germany‘s choice of reparation, this will hardly hold up in a balance of interests, considering the fact that an individual’s freedom and life were in danger.

In sum, it is Germany’s sovereign decision whether she seeks reparation at all. It is also her sovereign decision by what means and with how much effort she tries to enforce her right to reparation. However, Germany may not exercise her right to reparation in a way that she enriches herself – even if only immaterially – to the detriment of the valid interests of a third party. Thus, in our case, while Germany in a mitigative manner pushed for due process rights in the trial, Germany could not have simply taken the easy way out by choosing satisfaction and leaving Thanh to his fate.

Of course, these are only first thoughts on a subject which received little attention in academic discourse so far and calls for a thorough review of international practice. Coming back to the Eichmann case, Argentine did not demand Eichmann‘s return either. Yet, it can easily be imagined that due to the advancement of human rights and the individual’s heightened position in international law today a similarly high profile case nowadays would be treated differently. For example, Libya demanded the return of Abu Anas al-Liby whom the United States kidnapped from Libyan territory in a counterterrorism operation.

Suspension of the Strategic partnership – Enforcement of what?

Finally, Germany suspended the strategic partnership with Vietnam, which was founded on the Hanoi-Declaration 2011. Unfortunately, only sparse reliable information is available on what this meant in practice. If it was only the Hanoi-Declaration that was suspended, there is good reason to assume that the suspension would only constitute an unfriendly, though lawful retorsion. Throughout its provisions, the Hanoi-Declaration merely expresses the intent to deepen cooperation between Germany and Vietnam, stopping short of entering into hard legal commitments. The suspension constitutes hence a strong political sign, but no countermeasure.

It is however worth asking which obligation violated by Vietnam Germany thus sought to enforce. Arguably, primarily, the suspension was directed at enforcing the new legal relation arising due to Vietnam breaching its obligation to respect Germany’s sovereignty; an obligation owed to Germany individually, which Germany is entitled to invoke responsibility for according to Article 42 ARS – and if so wished even through countermeasures. The same is true for Vietnam’s violation of the law of diplomatic relations. It is also owed to Germany individually. The nature of the law of diplomatic relations as so-called “self-contained regime” does not stand against this. It only prohibits any means targeting diplomatic institutions and personnel themselves (except by the means foreseen in the VCDR). The “self-contained regime” however must not be confused with a prohibition to take enforcement measures (retorsion or countermeasures) for the law of diplomatic relations by other means.

Finally, Germany‘s reaction could also be read as an attempt to induce Vietnam’s compliance with Thanh’s human rights, in particular Article 9(1) ICCPR, which is continuingly violated throughout Thanh’s captivity. This would mean that Germany attempted to enforce human rights of a Vietnamese citizen against his home State. Controversial questions on Germany’s entitlement to invoke those violations and if so by what means arise. While Germany arguably may invoke Vietnam’s responsibility pursuant to Article 48 I ARS, the permissible means pose more difficulties. Beyond the categories specified in Article 48 II ARS one rapidly comes across rough grounds – the fiercely debated question whether third States may take countermeasures to enforce erga omnes obligations has been deliberately left unanswered by the ILC (see Article 54 ARS). Germany, similarly, leaves those controversial questions open. By taking political means only and by remaining vague on the norms she aims to enforce, Germany (maybe unintentionally, but skilfully) avoids going through the door she opened putting “all options on the table”. Still, the case shows how closely related the enforcement of sovereignty and human rights may be.

Conclusion

In short, a surreal story resembling sinister thrillers about the cold war serves as another example of the complex interplay between sovereignty and human rights and gives reason to dedicate further thought to legal consequences of transboundary abductions. While it is beyond doubt that those abductions constitute serious violations of international law, the international community still struggles with how to adequately respond. In this respect, nothing appears to have changed since the Eichmann case: the Security Council found a violation of international law, but evaded the question of what should be the concrete consequence. The answer to that question is still to be determined.

 

Je Suis Achbita!

Mon, 02/19/2018 - 09:00

Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

Chaya Levi lives in Antwerp. She is part of the large Jewish Hassidic community in that town. She, like other members of that community, follows the strict norms of Orthodox Judaism. Some refer to them as Ultra-Orthodox. She works as a receptionist in a general services company which, inter alia, offers reception services to customers in the private and public sectors. As a receptionist she comes into contact with customers. No fault is found with her job performance. Chaya Levi falls in love and marries Moses Cohen of her community. Under Jewish law she now must wear a scarf covering her hair, not unlike the Islamic headscarf. In Antwerp this is an immediate tell-tale sign that she is an observant Jewess.

She is told by her supervisors that under company policy this headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the company’s policy of neutrality (Weiler, ‘Je Suis Achbita’, 28 European Journal of International Law (2017) 989.)

Chaya Cohen (née Levi) refused to remove the scarf and was dismissed. She lodged an appeal before the competent Belgian courts and eventually comes by way of Preliminary Reference to the ECJ and is considered primarily under Directive 2000/78 (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303.) The Directive refers in Recital 1 to fundamental rights protected under the ECHR which provides in Article 9 that everyone has the right to freedom of thought, conscience and religion, a right which includes, in particular, freedom, either alone or in conjunction with others, and in public or private, to manifest her religion or belief in worship, teaching, practice and observance.

The Court points out that these same rights are reflected in Article 10(1) of the Charter. The references to the Charter and the ECHR are important since whereas the Directive is concerned specifically with non-discrimination, the Charter and the ECHR more capaciously refer to freedom of religion. Both principles come into play in this decision.

  1. The Framing of the Factual Matrix

As cited, approvingly, by the ECJ, the Belgian Higher Court ‘… noted … that it was common ground that [Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf’. (Para. 18. I say ‘approvingly’ because when the ECJ analyses the case its entire focus is on the right under the different legal norms, international and European, to ‘manifest’ one’s religion. See e.g. para. 28. Nowhere does it consider other provisions in the same norms to freedom of practice and observance. (Cf. para. 26 with references therein)).

The first major problem with the approach of the Court is rooted in this very framing of the case.

I invite you to consider two variations of the factual setting as presented above.

Variation 1. Chaya Cohen, in addition to her scarf, also sports a Star of David pendent.

Variation 2. Moses Cohen also works at the company. He, too, sports a Star of David pendent, but in addition wears a yarmulke (skull cap) and has long dangling side locks, which are required under similar strict Jewish law. (You have seen these men around in airports, etc.)

When told of the policy of the company that they may not ‘manifest’ their faith visibly during working hours, both immediately offer to remove the Stars of David. That indeed is an identity marker which manifests their Jewishness. Moses offers to wear a hat and to try and hide his side locks behind his ears. His supervisors are dubious: Who wears a hat indoors if he is not a Jew, they ask? That, too, is a clear tell-tale sign, he is told, and thus contrary to company policy. His side-locks, it turns out, are too long and, alas, are still visible. Reach for the scissors if you wish to keep your job.

Be that as it may, Moses and Chaya try to explain that in wearing the scarf, the yarmulke and the side locks they are not ‘wishing to manifest their faith’. The Star of David can come off at the blink of an eye. But in relation to the scarf and yarmulke they are practising their faith. They have no option by law the observance of which in their eyes overrides, quelle horreur, even European law.

Grant me that there is, phenomenologically-speaking, a difference between the wish to manifest one’s religious identity and the practising and observing of such. Or, put differently, between forbidding someone from manifesting his or her religious identity and actually coercing them to violate religious norms which they consider sacred.

Here are two examples to underline the difference. It is one thing to tell a vegetarian or vegan that they may not show up at work wearing a lapel button proclaiming their belief in animal rights but quite another to coerce them to eat meat. Or telling a gay man or woman that they may not show up with a rainbow tie and telling them they may not actually practise homosexual love.

It follows, in my view, that the ‘common ground’ to which the Belgian Court alluded and which seems to underlie the judgment of the ECJ should not be that:

[Chaya Cohen] was dismissed not because of her [Jewish] faith but because she persisted in wishing to manifest that faith, visibly, during working hours, by wearing [a Jewish] headscarf.

But instead quite differently:

Chaya Cohen was dismissed precisely because of her Jewish faith – a faith which manifests itself in a Nomos which includes (to the bewilderment of some) a duty and commitment to wear a scarf once married.

Or, put differently:

She was dismissed not because she persisted in wishing to manifest her faith but because she persisted in wishing to practise what she, as an adult woman, or her husband (variation 2), as an adult man, held to be their religious legal duty as an expression of loyalty to, and love of, the Almighty and, born into an eternal Covenant to which they choose to remain loyal.

After all, Moses wears his yarmulke even when alone at home. To whom is he manifesting his religion then? ‘To God’ would be the only dignified answer. One might raise the philosophical objection – replicating the debate of aims and effects in international trade law – that Chaya was not dismissed because of her Jewish faith but simply in ‘neutral’ application of company policy. I think this is splitting hairs. If, say, Columbia Law School had in place a similar policy of ‘neutrality’ it would mean that the illustrious Lou Henkin, one of the ‘fathers’ of international protection of human rights law, would have lost his job. I assure you he would not have removed his yarmulke. If asked why he lost his job, he most likely would have answered ‘because of my faith’; ‘because I am an observant Jew’. And if, hypothetically, the ECJ were to adopt a similar rule of neutrality as regards the attire of lawyers appearing before it, the distinguished British barrister, Shaheed Fatima QC would be excluded. I assure you she, too, would not remove her hijab.

 

Editor’s note: The rest of this post can be read here

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