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Announcements: Teaching and Researching International Law in Asia; UN Audiovisual Library of International Law; CfP Contingency in the Course of International Law; Legal consequences of the Separation of the Chagos Archipelago from Mauritius

EJIL:Talk! - Sun, 11/19/2017 - 10:00

1. Teaching and Researching International Law in Asia. The Centre for International Law at the National University of Singapore will be hosting a conference from 21 – 22 June 2018 on “Teaching and Researching International Law in Asia” (TRILA). The broad purposes of the Conference are to assess the current state of teaching and research in international law in Asia, to identify commonly experienced challenges for teachers of international law in the region, and to formulate a programme of further action and activities to assist individuals in their teaching and research. The Conference will be preceded by a Junior Faculty Workshop on 20 June, which is directed at assisting junior faculty with their scholarship and efforts to publish. Further details about these events and information on how to participate are available here.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs has launched a Moot Courts section under the Research Library of the UN Audiovisual Library of International Law (AVL), which organizes lectures and legal instruments useful for preparing for the 2018 Charles Rousseau Moot Court competition in international law. All interested parties are welcome to visit the AVL’s Moot Court page.  Additionally, the following lectures have recently been added to the AVL: Mr. Ahmed Mahiou “Les priorités actuelles du droit international” and “Coopération et intégration régionale en Afrique”, Mr. Yves Nouvel “ Le standard minimum de traitement des étrangers en droit international”.

3. Call for Papers – Contingency in the Course of International Law: How International Law Could Have Been.  The conference, in Amsterdam from 14-16 June 2018, will ask a question that is deceptive in its simplicity: How might international law have been otherwise? We want to question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: “If there is a sense of reality, there must also be a sense of possibility.” Fleur Johns (UNSW) will give a public keynote and Samuel Moyn (Yale) will give a closing address. Please see here for more information. The deadline for the submission of abstracts is 1 December 2017. 

4. Legal consequences of the Separation of the Chagos Archipelago from Mauritius (ICJ Advisory Opinion). This event, on Monday 11 December 2017, discusses the upcoming proceedings concerning the latest request by the General Assembly for an ICJ Advisory Opinion in the case of ‘Legal consequences of the separation of the Chagos Archipelago from Mauritius’. The discussion will centre on the efforts before domestic UK courts as well as the public international law discussion concerning the Chagos Islanders and examine the merits of the case before the ICJ with international legal experts. The event is at the British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP. Find out more and book online here.

Remaking the World towards ‘Fair and Reciprocal Trade’? The Case for (More) Interdisciplinarity in International Economic Law

EJIL:Talk! - Fri, 11/17/2017 - 08:00

Geopolitical changes were on full display last week at multiple economic summits in Asia, where red carpet pageantry converged with the dramatic publicity of States brokering new deals at the regional meetings for the Asia-Pacific Economic Cooperation (APEC) in Viet Nam, the Association of Southeast Asian Nations (ASEAN) Heads of State Summit and the 12th East Asia Summit (EAS) in the Philippines, the side meetings of the China-led 16-country bloc drafting the Regional Comprehensive Economic Partnership (RCEP), the Japan-led Trans-Pacific Partnership-11 (recently renamed into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership), with considerable focus on United States President Donald Trump’s 12 day tour in Asia for these meetings as well as for bilateral trade talks with Japan, South Korea, and the Philippines.  In Viet Nam, US President Trump suddenly renamed the Asia-Pacific into the “Indo-Pacific”, a deliberate policy strategy to define Asia beyond China’s growing hegemony into a sphere of alliances built with India, Japan, and other Southeast Asian countries.  

The Asia economic summits conveyed the implicit assumption that international trade and investment treaties had to be revised or rewritten towards “fair trade”, even if there were differing understandings of what that fairness meant.  US President Trump’s address at APEC demanded “fair and reciprocal trade” as part of his ‘America First’ policy, blaming trade agreements for serious US trade deficits with China and other countries. Canadian Prime Minister Justin Trudeau delayed agreeing to renew the TPP partnership under the aegis of the CPTPP, pushing for Canadian interests in ensuring strict environmental and labour standards in the agreement, and succeeding in suspending the problematic provisions in the intellectual property chapter which the US had originated in the TPP draft.  Newly-minted New Zealand Prime Minister Jacinta Ardern claimed victory with the suspension of investor-State dispute settlement clauses from the CPTPP, in favour of compulsory domestic court adjudication for any investment disputes.  In contrast, China took up the cudgels for globalisation and the established institutions and processes of the multilateral system, with Chinese President Xi Jinping firmly declaring at APEC that “economic globalisation is an irreversible historical trend…in pursuing economic globalisation, we should make it more open and inclusive, more balanced, more equitable and beneficial to all.”

The recent pronouncements by world leaders should be of considerable interest to international lawyers, given the heightened political and economic expectations placed on international economic agreements (trade and investment treaties), and what social outcomes they should (or should not) produce beyond the traditionally narrow objectives of liberalising foreign market access.  The international economic system is moving towards a multi-speed configuration of States oscillating between competing economic ideologies (e.g. resurgent new forms of “mercantilist protectionism”, revised ‘mainstream’ neoclassical economics, ‘new’ behavioural economics, among others); changing philosophies of government (e.g. the revival of authoritarianism and ‘illiberal’ democracies, leaning away from liberal democracies); evolving theories on the regulation of property, competition, and information given rapidly-developing technologies (e.g. artificial intelligence and the explosion of automation in supply chains, the domestic and transnational social impacts of the digital ‘sharing’ economy, climate change-driven restructuring to consumption patterns and production processes); and expanding understandings of domestic and transnational challenges to global public goods (e.g. environment, health, peace and security, among others).  Accordingly, there is an even greater burden for international lawyers (especially those that assist or advise States drawing up their respective visions for a new global economic architecture), to clarify and be transparent about how the political, economic, and social ends sought will be effectively met through the current and future mechanisms of international economic law and its institutions for governance and coordination.  Beyond the fog of press publicity, are we candidly and accurately communicating to the politicians the actual limits of international economic treaties, along with their potentials?  

In this post, I argue that international lawyers – especially international economic lawyers tasked with drafting, revising, critiquing, and building the new bilateral, regional, and global constellation of economic treaties – increasingly have to deepen interdisciplinarity, and not just in the sense persuasively observed by Tom Ginsburg and Gregory Shaffer as the “empirical turn in international legal scholarship” (106 American Journal of International Law (2012), pp. 1-46. Perhaps more fundamentally, international lawyers need even more interdisciplinarity, because we are at present hard-pressed to approximate, if not achieve, an idea of “fairness” in the international economic system’s treaties and institutions (no matter how contested that sense of “fairness” is, to begin with).  If we accept that the “fairness of international law” is legitimately our concern as international lawyers and scholars (as Thomas Franck famously argued), we should be more open to readily engaging the interdisciplinary assumptions marshalled in the reform and remaking of international economic treaties and institutions today.  

While we may not of course be the experts in these other disciplines, and we should, indeed, preserve the “relative autonomy” of international law (as Jan Klabbers cautions), some sharpening of our interdisciplinary sensibilities can nevertheless be useful in helping us to test the “good faith” nature of any postulation or assertion on the desired weight, form, content, and structure of our international economic treaties and institutions.  I use three examples of unstated assumptions in the debate over international economic treaties today that illustrate where interdisciplinarity is sorely lacking: 1) that international economic treaties can somehow erase trade deficits and permanently prevent trade imbalances; 2) that international economic treaties can anticipate and provide the most appropriate and suitable dispute resolution mechanism for the particular States parties to these treaties – for the entire life of these treaties – which is problematic with the growing depiction of a supposed ‘binary’ choice between investor-State dispute settlement mechanisms (ISDS) and local court adjudication (and/or political risk insurance); and 3) that international economic treaties can be designed to fully create desired social, environmental, labor, health, education, and all public interest outcomes.  I posit that while interdisciplinarity may show us that international economic treaties could be a correlative, if not possibly one of the causal, factors for desired outcomes, and that we can probably design them with sensitivity and vigilance towards controlling the negative externalities they cause and encouraging positive distributive consequences, the international economic treaty-writing (and rewriting) exercise is complex. We cannot – as politicians do – simplistically oversell or lionise these treaties as somehow the definitive “one size-fits all” solution to remake the world towards “fair and reciprocal trade”.

Trade Treaties as the Cure for Trade Deficits?

The seductive intuition to the United States’ current moves to renegotiate, terminate, revise, or reform trade agreements is that changing the terms of market access will somehow reduce, if not eliminate, US trade deficits with rivals such as China.  As reported by the Council on Foreign Relations, however, even among economists of different stripes, none have reached any definitive findings that the decisive actual cause of US trade deficits is the nature of its trade agreements. Rather, as the Cato Institute stressed:

“The most important economic truth to grasp about the U.S. trade deficit is that it has virtually nothing to do with trade policy. A nation’s trade deficit is determined by the flow of investment funds into or out of the country. And those flows are determined by how much the people of a nation save and invest – two variables that are only marginally affected by trade policy.” 

In March 2017, US President Trump ordered a “comprehensive study” of trade abuses that lead to trade deficits, which to date has not yet been declared to have been completed, much less publicly released.  Despite the absence of this information – and the positive finding that it is the capital, investment, and savings flows of a country that actually determine a trade deficit – the United States has nonetheless embarked on a policy of renegotiating or terminating its trade treaties such as NAFTA, KORUS FTA, and the TPP.  One can only wonder, despite the US Trade Representative’s stated objectives in these renegotiations, how international lawyers are drafting the new terms of US economic treaties.

ISDS, Local Court Adjudication, or Political Risk Insurance?

Various quarters immediately hailed victory when the resurrected Trans-Pacific Partnership Agreement (now CPTPP) considerably narrowed, if not de facto eliminated, investor-State dispute settlement clauses, making resort to local court adjudication compulsory.  There was no discussion in the press as to why local court adjudication in the 11 CPTPP countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam) was held to be superior to any other form of dispute settlement, or why local court adjudication ought to have been the exclusive method for dispute settlement given the prospective long duration or term of this regional agreement.  The UN Conference on Trade and Development (UNCTAD) recognises a spectrum of dispute settlement options for trade and investment treaties, emphasising the importance of contextual fit, host State institutional environments, and policy coherence.  No such reasons, however, were furnished for the exclusive choice of local court adjudication in the CPTPP.  Similarly, in NAFTA renegotiations, a public letter signed by prominent academics advocated the elimination of investor-State dispute settlement, in favour of exclusively taking out political risk insurance. Considering that the United States insurance industry also suffered heavily and had to be bailed out from the accumulation of systemic risk in the 2008/2009 financial crisis, it was puzzling that the proposed dispute settlement mechanism put forward was to make political risk insurance compulsory for an industry that is itself reportedly also a source of systemic risk, and all the more so when one considers the  limitations on the effectiveness of such insurance policies.  Unlike current open multi-stakeholder debates on the EU multilateral investment court, neither the CPTPP or NAFTA renegotiations presented interdisciplinary evidence (whether from law, economics, statistics, political science, or other social sciences) on why their exclusive choices (e.g. local court adjudication or political risk insurance) were the most appropriate dispute resolution fit for the States involved in these negotiations. Again, one can only wonder at how international lawyers are helping to draft these renegotiated terms sans focused interdisciplinary dialogue and evidence-based results.

Trade and Investment Treaties and Desired Social Outcomes

While many of us do write on the negative social, environmental, labor, and human rights impacts from trade and investment treaties, it was riveting to see Canada push for a “progressive” revision of the TPP into the “Comprehensive and Progressive Agreement on Trans-Pacific Partnership”, which presumably contains Canada’s articulated preferences for trade agreements encapsulating environmental, labor, and social rights, as recently exemplified in the Canada-EU Trade Agreement (CETA).  

To date, however, it must be acknowledged that while the UN Office of High Commissioner on Human Rights (along with the Committee on Economic, Social and Cultural Rights) has spearheaded efforts to mainstream human rights into trade and investment agreements, there is still not much standardisation or methodological uniformity when it comes to arriving at the pragmatic details on how best to operationalise human rights into economic agreements, whether by requiring human rights impact assessments for these agreements (as proposed by UN Special Rapporteur Olivier de Schutter), rewriting trade and investment treaty provisions to inject human rights provisions directly, embedding human rights norms directly into foreign investment contracts, among others.  These proposals stand alongside rather incipient human rights compliance measurement methods (e.g. the OHCHR refers to human rights indicators) that have not yet been universally determined or fully tested, and which, correspondingly, could make it equally difficult to determine if the new “progressive” trade and investment treaties are indeed achieving desired social outcomes.

Moreover, even international human rights lawyers themselves perennially debate what compliance with human rights means for States facing different factual contexts. As UN Special Rapporteur on Extreme Poverty and Human Rights Philip Alston powerfully argued in a recent article, human rights in a “populist era” indeed requires even more introspection and openness by its advocates and scholars. To a certain extent, while international lawyers are drafting economic treaties in the hope of reaching this desired consistency with States’ international human rights obligations, they do need to engage interdisciplinary experts and methods, to verify (with actual data) if the treaty language and institutional design they are prescribing to States are indeed achieving desired environmental, labor, social, and human rights outcomes.

Conclusion

It is a unique time to teach and research on international economic law and development today, when so much of pending international developments are anchored on remaking the world order towards our shared (or different) conceptions of “fairness” in the international economic system.  On my end, I am often agnostic about the form of an international economic treaty (bilateral, regional, multilateral, among others) or its dispute resolution clause (arbitration, adjudication, negotiations, conciliation, insurance, among others), for the basic reason that my own early training in economics taught me to look functionally at these instruments and institutions as proposed tools to solve defined problems. The challenge is always to find the ‘right fit’ (or the best achievable fit, given a range of feasible options) for trade and investment treaties and their dispute resolution methods, given the short and long-term needs and problems of the State and non-State constituencies involved. Much of what appears missing from the public debates about trade and investment today may well be something as pedestrian as calling for more regular interdisciplinary engagement between international lawyers and experts in other disciplines. It is a  conversation worth having on a regular basis, if only to better inform the work of international economic lawyers and scholars, especially to make explicit our criteria for what constitutes “fair and reciprocal trade”.

Individuals, groups, families, communities, and populations – who are the real stakeholders and beneficiaries of trade and investment agreements – deserve straightforward answers on how their governments ‘legislating’ through trade and investment agreements are solving (or at least getting closer to solving) felt problems of poverty, inequality, disenfranchisement, and disempowerment.  Politicians can certainly use “fair and reciprocal trade” as a soundbite in international economic summits, but to international lawyers, it is the goal of “fair and reciprocal trade” that justifies even more interdisciplinarity to help check (as well as validate) our assumptions for rewriting the legal foundations of a new international economic system.

The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

EJIL:Talk! - Wed, 11/15/2017 - 09:00

On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. This post serves as a follow-up to an EJIL:Talk!-post from 2014, in which André de Hoogh and I argued that the DRC decision wrongly assumed that the Council can remove immunities in an implicit manner and mistakenly conflated the obligation to waive immunities with their actual removal.

The South Africa decision is more sophisticated than the DRC decision by taking up the suggestion of Dapo Akande to treat Sudan like a state party. In my opinion, however, the Chamber’s new decision still does not resolve the matter of al-Bashir’s immunity in a legally convincing manner.

Two different turns to the Security Council

As a starting point, it is important to highlight the key differences between the two decisions. Both decisions turn to the Security Council, but in a slightly different manner.

In the DRC decision, the Chamber argued that the Security Council ‘implicitly waived [al-Bashir’s] immunities under international law’ (para. 29). When the Council referred the situation in Darfur, it obliged Sudan ‘to cooperate fully with and provide any necessary assistance to the Court’ (para. 2 of Resolution 1593). According to the Chamber, this cooperation requirement ‘was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities’, because any other interpretation would render Sudan’s obligation to cooperate fully ‘senseless’ (para. 29). Al-Bashir would not enjoy immunity because the Council removed his immunities by using its powers under Chapter VII of the UN Charter.

In the South Africa decision, the Chamber stated that the ‘necessary effect’ of the Security Council’s referral is that ‘for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of states parties to the Statute’ (para. 88). According to the Majority of the Chamber (with Judge de Brichambaut dissenting), Article 27(2) ‘applies equally with respect to Sudan’, which would mean that the immunities of al-Bashir ‘do not apply vis-à-vis states parties’ (paras. 91-93). The Chamber added that ‘it is immaterial … whether the Security Council intended – or even anticipated – that … al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest’ (para. 95). Unlike the DRC decision, the Chamber did not see ‘a waiver in the Security Council Resolution’ (para. 96). Such a waiver would also not be necessary, because Article 27(2) applies to Sudan.

In short, both decisions turn to the Security Council, but do so in a slightly different manner. In the DRC decision, the Chamber based itself directly on the powers of the Council under the UN Charter. The Council would have implicitly waived al-Bashir’s immunity and for this reason Article 98(1) would not apply. In the South Africa decision, the Chamber reasoned that the Council created obligations for Sudan under the Charter, which are similar to those of a state party under the Statute. Al-Bashir would not enjoy immunity, because the application of Article 27(2) would remove that immunity.

From a legal point of view, both approaches raise different questions. The DRC decision triggers questions about the powers of the Council and about the interpretation of Resolution 1593:  Does the Council have the power to deviate from customary international law or to remove immunities in an implicit manner? Does Resolution 1593 contain an implicit removal of al-Bashir’s immunity or only an obligation to waive his immunity, and can the Court invoke an obligation to waive al-Bashir’s immunity under the UN Charter against its own states parties?

For the South Africa decision these questions are less relevant, because if Sudan is placed in a similar position as a state party under the Statute, it does not matter whether the Council can implicitly remove immunities or whether there is a textual link in Resolution 1593 for an implicit removal. The inapplicability of al-Bashir’s immunity would not follow directly from the text of the Resolution, but from the applicability of the Statute as imposed by the Council on Sudan. This approach is more elegant than the reasoning in the DRC decision in the sense that it envisages a scenario in which there are no meaningful differences between a ‘real’ state party and a non-party that is obliged by the Council ‘to act like’ a state party. Yet, the South Africa decision does raise a number of other questions – and problems.

The problems of the South Africa decision

The key assumption of the South Africa decision is that the Court must treat Sudan like a state party. In considering this assumption it is important to note that the ICC’s legal framework is not explicit on how the Court should act when the Council refers a situation in a non-party to the Prosecutor under Article 13(b). Presumably, the effect of a Security Council referral is that the Statute applies in its entirety (Article 1 of the Statute). However, if the whole Statute applies, does this necessarily mean that a non-party like Sudan should in all ways be treated as a state party? – No, not necessarily!

A problem with the Chamber’s assumption is that it turns a blind eye to the numerous provisions in the Statute that explicitly distinguish the legal position of a state party from that of a non-party. When the Statute only refers to a state party, or to a non-party, why would Sudan have to be treated by the Court as a state party? There is no textual argument in the Statute for treating Sudan as a state party. A referral does not transform a non-party into a state party, it only triggers the Court’s jurisdiction. As acknowledged in the minority opinion of Judge de Brichambaut, if a Security Council referral triggers the applicability of the entire Statute, it logically follows that the referral ‘also activates provisions relevant to non-state parties’, and that ‘such a referral need not necessarily render a non-state party analogous to a state party’ (para. 56).

That being said, the Council has created obligations for Sudan which are in some ways similar to that of a state party. Sudan has to cooperate fully with the Court. It has an obligation under the UN Charter to arrest al-Bashir, to waive his immunity and to cooperate in any other way that is requested by the Court in accordance with the Statute. When Sudan fails to fulfil this obligation, the Court can refer Sudan, as it has done, to the Council.

However, the question at hand is whether the Court is allowed, under the Statute, to treat Sudan as a state party.  Both the Statute and the Council’s Resolution (which accepts the distinction between states parties and non-parties) indicate that Sudan remains a non-party. As a non-party, Article 27(2) does not apply to Sudan in the same way as it does to a state party. The Court can invoke Article 27 vis-à-vis Sudan to exercise jurisdiction and issue arrest warrants against Sudanese state officials (i.e. on a vertical level). Yet, while Article 27(2) completely removes the immunities of states parties, the immunities of non-parties continue to exist on a horizontal level for as long as these immunities have not been waived by the concerned state (for a more detailed analysis on this point, see our previous post).

For as long as Sudan has not waived al-Bashir’s immunity, the Court is bound by its own Statute in the sense that states parties are able to invoke Article 98(1). The reason for this is that Article 98(1) specifically addresses the legal position of a ‘third state’, which refers to a state that is not a party to the Statute (see South Africa decision, para. 82). The Security Council referral creates obligations for Sudan, but these obligations do not amount to a complete removal of al-Bashir’s immunity and do not turn Sudan into a state party.

To argue that Article 98(1) does not apply, even if Sudan has to be treated in this respect by the Court as a non-party, one of the following propositions needs to be proven:

  • Al-Bashir’s immunity has disappeared because of an exception under customary international law (as argued in the Chad and Malawi decisions);
  • The Council has somehow removed al-Bashir’s immunity from arrest (as argued in the DRC decision);
  • The Court can hold Sudan’s obligation under the UN Charter to waive al-Bashir’s immunity against states parties (as suggested by Erika de Wet, see here);
  • Article 98(1) does not cover the immunity of Heads of State (as argued by Jens Iverson, see here);
  • Sudan is a party to another treaty (Genocide Convention) that includes a permanent waiver for al-Bashir’s immunities (as argued by Judge de Brichambaut in his minority opinion).

The Chamber did not defend any of these propositions in the South Africa decision. The Chamber acted solely and without proper explanation on the assumption that it had no choice but to treat Sudan as a state party. This assumption ignores provisions like Article 98 that explicitly distinguish the legal position of a state party from that of a non-party. In the application of these provisions, the Court should treat Sudan as a non-party. This means that Article 98(1) continues to apply, unless his immunities are waived, removed or made inapplicable in some other way.

The need for new solutions

Looking forward, there are several ways for the Court and its states parties to clarify the ICC’s rules on immunity in general and the matter of al-Bashir’s immunity in particular. A first option is a decision from the ICC’s Appeals Chamber. The hope was that South Africa would appeal the Chamber’s ruling (see here), but the Government of Jacob Zuma decided not to. Other states parties that have hosted al-Bashir, such as Jordan, and who will be subjected to non-cooperation proceedings ought to consider requesting the Appeals Chamber to settle the matter of al-Bashir’s immunity in a more conclusive manner.

A second option is the rendering of an advisory opinion of the ICJ. While a proposal for a request from the UN General Assembly to the ICJ previously failed to gain momentum, there is no doubt that the Court could help to clarify the rules on state and diplomatic immunity under customary international law (for a detailed analysis of this option see here).

Finally, a last option for the Court’s states parties is to specify the rules for the implementation of Article 97 and 98. Amending these provisions may not be realistic at this point in time, but recent discussions in the ASP have shown a willingness of states parties to specify the rules on the consultation procedure of Article 97. Discussions on this matter could form the first step in a longer political dialogue on the ICC’s immunity regime as a whole.

For the time being, however, Article 98(1) and the specific question of al-Bashir’s immunity remain surrounded by ambiguity and uncertainty. The Court’s judges have left many fundamental questions unanswered. In the absence of a judgement from the Appeals Chamber and/or an advisory opinion of the ICJ, lawyers and states can reasonably disagree on the scope of Article 98(1) and the obligation of states parties to arrest al-Bashir. In this sense, the ICC’s immunity regime remains ‘unresolved’.

A Danish Crusade for the Reform of the European Court of Human Rights

EJIL:Talk! - Tue, 11/14/2017 - 10:55

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. In May 2016, the Danish Supreme Court delivered a judgment which reignited the debate, by preventing the deportation of a notorious convicted criminal and Croatian national, Gimi Levakovic. Despite Levakovic’s egregious criminal record, the Supreme Court found that his deportation would constitute a disproportionate interference with his right to respect for private and family life – protected both under EU law and ECHR. The Court justified its decision by emphasising that Levakovic had no real ties to Croatia, which he had not visited since he came Denmark at the age of three. It further noted that Levakovic had four children in Denmark, two of which were minors under his sole custody.

The decision by the Supreme Court caused a maelstrom. Public outrage was fuelled by the fact that Levakovic was a household name, after he had appeared on a 2015 Danish TV documentary, controversially titled: ‘The gypsy boss and his notorious family’. Politicians across the political spectrum have since called for reform of the European human rights system. The current minority centre-right coalition, consisting of three parties and supported by the DPP, adopted a political agreement in November 2016, which stated the need to:

critically review the way in which the dynamic interpretation of the European Court of Human Rights has broadened the scope of parts of the European Convention on Human Rights…

What would the reform entail?

The objective of the Danish Government’s proposed reform is somewhat unclear. The Government has published a list priorities, which include:

  1. The European human rights system in a future Europe
  2. Equal opportunities
  3. Involvement of children and young people in democracy
  4. Changing attitudes and prejudices about persons with disabilities
  5. Combating torture

The Minister of Justice has explained that the Government will use the chairmanship to focus on the European Court of Human Rights’ (ECtHR) dynamic interpretation of the Convention, which he thinks has gone too far. At a conference hosted by Copenhagen University, he referred to a controversial opinion poll showing limited public support for continued membership of the ECHR – unless it is reformed. This sentiment was reiterated by the Danish Prime Minister during a recent visit to Denmark by the CoE Secretary General, Thorbjørn Jagland. The Prime Minister said:

In Denmark… we have a critical debate about the expansive interpretation by the European Court of Human Rights, in particular on the question of the deportation of foreign criminals. It does not resonate with the general public understanding of human rights when hard core criminals cannot be deported. And I must admit, I cannot understand it…

He also suggested that national governments should have better means to influence the ECtHR’s interpretation of the ECHR. It is not, however, clear what he meant by this suggestion. The Prime Minister announced that the Government intends to propose a follow-up on the Brighton Declaration, which led to Protocol 15 introducing several amendments to the ECHR, including preambular references to the ‘principle of subsidiarity’ and the ‘doctrine of the margin of appreciation’. These amendments will enter into force once all CoE Member States have expressed their consent. According to the Danish Prime Minister, a declaration adopted under the Danish chairmanship would emphasise respect for local practices and the possibility for third party intervention in cases before the ECtHR.

Is there a need for reform?

The ECtHR has already been reformed in recent years. In 2015, a CoE report concluded:

In view of the positive results of the Court’s reforms so far, the challenge of clearing the backlog of non-repetitive priority and non-priority cases may entail allocating additional resources and more efficient working methods rather than introducing a major reform.

The report was adopted by the CoE Committee of Ministers in March 2016 and Denmark has struggled to garner support for further reform, with the possible sole exception of Hungary.

It also is worth pointing out that Art. 36(2) ECHR already allows third party intervention, but Denmark has only once intervened before the ECtHR, whereas other States have been more active. By comparison, last year alone Denmark intervened in 34 cases before the European Court of Justice. For this reason, ECtHR Judge Jon Fridrik Kjølbro has recently urged Denmark to engage more actively in Strasbourg. He and the Icelandic judge have openly questioned the need for further reform of the ECHR, noting that member States have a broad margin of appreciation in relation to deportation. Citing recent ECtHR decisions (Salem, Hamesevic, and Alam) Judge Kjølbro has pointed out that the court rarely second guesses national deportation decision, as long as there is evidence of a fair balance being struck between the individual’s rights and community interests.

What will happen next?

The first step in the Danish Government’s reform strategy is a High-level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’, which will take place in Denmark on 22-24 November 2017. Little information on this conference has been made publicly available. Given the paucity of details provided by the Danish Government, it is difficult to predict what the proposed reforms will concretely entail. Quite recently, however, the Government seems to have changed tack. While criticism was initially focused on the ECtHR, the Prime Minister noted in the above-mentioned press conference that Danish courts might have over interpreted the ECHR. This analysis has received the endorsement of the Danish Institute of Human Rights. Only time will tell whether the Danish Government will continue to pursue their crusade against the European human rights system, or whether they will decide to target their attention towards domestic courts, instead.

Author’s Note: This blogpost draws on a forthcoming publication: Danmark og Den Europæiske Menneskerettighedskonvention (Ex Tuto, 2017) Denmark and the European Convention on Human Rights (in Danish)

For more information, see the collection of documents available at: https://sites.google.com/site/dkogeuroparaadet/artikler-om-dk-og-europaraadet (mostly in Danish)

New Issue of EJIL (Vol. 28 (2017) No. 3) Published

EJIL:Talk! - Mon, 11/13/2017 - 09:30

The latest issue of the European Journal of International Law (Vol. 28, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Merris Amos, The Value of the European Court of Human Rights to the United Kingdom. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Announcements: Financing and the Right to Science in Technology Sharing for the SDGs Workshop; EFTA Court President Lecture

EJIL:Talk! - Sun, 11/12/2017 - 10:00

1. Workshop on Financing and the Right to Science in Technology Sharing for the SDGs. The Department of International Law, University of Groningen organises the Workshop on ‘Financing and the Right to Science in Technology Sharing for the SDGs’ which will take place on 24 November 2017 at the University of Groningen. The Workshop is co-sponsored by ESIL Interest Group on International Environmental Law and Global Law Initiatives for Sustainable Development (gLAWcal). The detailed programme is available here

2. EFTA Court President Lecture – City, University of London 23 November 2017. The City Law School is delighted to invite you to a lecture organized by the Jean Monnet Chair in European Law on Thursday 23 November at 18.00 (registration starting at 17.30). Carl Baudenbacher, President of the European Free Trade Association (EFTA) Court, will speak on the topic of “Brexit: Within the Single Market, Without the European Court of Justice?”. The event will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law, City, University of London). The event will take place at City, University of London, Oliver Thompson Lecture Theatre (Tait Building, Northampton Square, London EC1V 0HB), and will be followed by a wine reception. Attendance is free. You may sign up here

ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

EJIL:Talk! - Sat, 11/11/2017 - 11:50

On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 14. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. It would be the first time that there would be no British judge on the ICJ (and I think there was a British judge throughout the period of the Permanent Court of International Justice as well). It would break the tradition of there being a judge of the nationality of each of the permanent members of the UN Security Council on the ICJ. Finally, were he not to be re-elected, this would be a departure from the tradition that the regional allocation of seats on the ICJ bench mirrors the regional allocation of membership at the Security Council. This is because the re-election of Judge Bhandari from India and the election of Ambassador Salam from Lebanon would mean that Asia gets one additional seat on the Court and the WEOG (Western European and Other Group) gets one fewer seat.

I have spelled out the procedure for the election of ICJ judges, including what happens if the GA and SC are unable to agree initially on who is elected, in previous posts (here and here) and I won’t repeat it all here. Suffice to say that it is usual that several rounds of voting are needed in the GA and SC before candidates are elected. It only when the number of judges that have obtained an absolute majority in an organ is equal to the number of vacancies that the President of that organ notifies the results to the other organ. If more than five judges obtain an absolute majority (and this is easily possible) then further rounds of voting are required. On Thursday, the first time that only 5 judges obtained an absolute majority of votes was in the fourth round of voting in the SC and in the fifth round of voting in the GA. Four of the five on that list were the same in both organs and were duly declared elected. However, Judge Greenwood obtained an absolute majority of votes in the SC but not in the GA, and Judge Bhandari obtained an absolute majority in the GA and not the SC. In a sixth round of voting in the GA, with only Judges Bhandari and Greenwood on the ballot to fill the remaining vacancy, Judge Bhandari obtained 115 votes to Judge Greenwood’s 76. In the fifth round of voting in the SC, with only Judges Bhandari and Greenwood on the ballot, Judge Greenwood obtained 9 votes and Judge Bhandari 6. It was at this point that voting was suspended till Monday. On previous similar occasions, voting has been suspended for weeks (2014), a month (2011) or several months (1956). This time, we have just this weekend for the intense diplomatic negotiations that will inevitably take place.

As noted in a previous post, in prior cases where the SC and GA have initially reached divergent results in elections for the ICJ there has been the “democratic tendency” for the SC to defer to the GA as the plenary organ. However, there are reasons to suggest that in this case the matter may not be so straightforward.

For reasons already alluded to, it would be a dramatic result if Judge Greenwood were to fail to be re-elected. The composition of the ICJ usually mirrors the regional allocation of seats in the SC. If two Asian judges were elected in these elections, the result would effectively be a reallocation of a WEOG seat to Asia. It is worth pointing out that the allocation of seats to regions in the ICJ does not result out of a rule but only out of tradition. With the SC (and also the Economic and Social Counci), the GA decided on the regional allocation when it voted for amendments to increase the size of those bodies [GA Res. 1991 (XVIII)A and 2487(XXVI)]. That regional allocation was then included in the GA Rules of Procedure [footnotes to Rules 142, 143 and 145] and is also set out in the voting papers when elections occur for membership of those bodies. With the ICJ, Article 9 of the Statute requires the electors bear in mind that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the worlds should be assured.” However, there is no prescription in any rule as to how this is to be done but the tradition of regional allocation is an attempt to comply with the statutory prescription. Nonetheless, the regional allocation for the Court is not included in the voting papers given to electors and one only needs to study the arithmetic of the votes to see that individual electors do not necessarily vote according to the regional allocation. Former ICJ Judge Kenneth Keith, in an illuminating article [“International Court of Justice: Reflections on the Electoral Process” (2010) Chinese Journal of Int. L, para. 27 ] uses the 1999 election as an example and shows that:

“in the first ballot, the total number of votes for the two candidates who were seeking the Asian vacancy was 230 [with only 176 states voting], meaning that at least 54 States voted for both. Even in the second ballot when one of the Asian candidates did fall below the majority and was defeated, at least 44 States were still voting for both him and the successful candidate”.

The tradition of there being a Judge of the nationality of each P5 member is not an unbroken one. There was no Chinese judge on the ICJ bench from 1967 to 1985. However, this can be accounted for by the special position of China in that period. The beginning of this period maps was one where the nationalist government (in Taipei) represented China at the UN but was close to losing that representation to the communist government in Beijing. There might be some who question whether there should in fact always be a judge of the nationality of each P5 member on the ICJ bench given that a rule that may make sense on a political body like the Council (or made sense in 1945) is not easily justified on a judicial body like the ICJ . However, even if there were to be departure from this tradition, it would be a matter of regret if were the UK which suffered this loss first. The UK is not only a strong supporter of the Court but the only P5 member which has consistently accepted the compulsory jurisdiction of the ICJ, and always appeared in cases in which it is involved in at the Court (and other inter-state judicial bodies), which is not the case for other P5 members.

Let me conclude with a trivia question. As already mentioned, in this election all five judges whose terms were expiring stood for re-election. This is a rare occurence but I do not know how often this has happened and would be interested to know of other occasions when it has happened. If all five judges had been re-elected, which we now know will not happen, it would have meant that the composition of the ICJ bench did NOT change after a regular election. My question is this:

When has the composition of the ICJ Bench not changed after a regular election because all the judges whose terms were expiring were re-elected?

War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

EJIL:Talk! - Thu, 11/09/2017 - 13:30

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why.

The Afghan conflict, CIA black sites and IHL applicability

In its public announcement, the Prosecutor indicated that she will focus, in conformity with the ICC’s jurisdiction,

“solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

War crimes “closely linked to the situation in Afghanistan” but committed elsewhere are most likely allegations of torture and other forms of ill-treatment committed as part of the infamous CIA’s “extraordinary rendition programme.” The programme implicated the rendition, detention and interrogation of terrorism suspects, with the support of at least 54 States. Some of them, like Poland, Lithuania and Romania, hosted CIA-run secret facilities where detainees were allegedly ill-treated. These three States are parties to the Rome Statute, and as a result, the ICC’s jurisdiction extends to their territory. In her 2016 Preliminary Examinations report, the Prosecutor had already mentioned her determination that “there is a reasonable basis to believe” that:

“War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014” (para 198).

As to secret facilities outside of Afghanistan, the Prosecutor specifically mentions those located in the territories of Poland, Lithuania and Romania (para 199).

Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is distant, to say the least – if these crimes were ever to be prosecuted by the ICC, the judges would have to decide whether IHL applied to them. Indeed, even if the ICC has territorial jurisdiction in Poland, Lithuania and Romania, a distinct question is whether these acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL (under the Rome Statute and customary international law), this question preliminarily depends on whether IHL applied to these acts.

War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the “nexus” jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on “individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda” transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).

However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defense challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory (the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet). The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of my knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcment.

State of the debate on the geographical reach of NIAC rules

As the “fight against terrorism” has taken a global dimension, the question of the applicability of IHL beyond the State where a NIAC originates has become more pressing. While IHL instruments are largely indeterminate on the issue, the debate has polarized, in a nutshell, around two main conceptions of IHL applicability.

The first approach considers that IHL is geographically limited based on national borders. IHL applies in the territory of a given State if an armed conflict exists there. For instance, if the US is engaged in a NIAC against ISIS in Syria and launches operations against an ISIS cell located in, say, Mauritania (a non-neighboring State), IHL would not apply to such operations until the threshold of a NIAC is met in Mauritania. This would be doubtful in case of a single drone strike for instance. (Many proponents of this first approach would, however, accept that IHL applies to operations spilling over the Syrian border, into a neighboring country). One question resulting from this territorially-based conception of IHL applicability is whether IHL is applicable to the territory of States engaged in an extraterritorial NIAC even when no hostility is occurring there. While States’ pronouncements on this issue are scarce, France seems to consider that IHL does not apply to its territory despite its armed forces being engaged in several NIACs extraterritorially. The ICRC favors the contrary view.

According to the second approach, IHL is, generally speaking, territorially unrestricted. IHL attaches not to territories but to the conduct of armed conflicts and their effects on individuals, irrespective of location (except, of course, when provided otherwise by specific rules, e.g. rules on occupied territories). The only condition to the application of IHL to a given act or ommission is the existence of an armed conflict and of a sufficient nexus to it. For arguments in favor of this approach see here and here. Critics have expressed fears that this would result in a “global battlefield” as States would be able to rely on the supposedly more permissive rules of IHL to conduct hostilities across the globe.

Moving forward from the “global battlefield” critic?

If it were to adjudicate allegations of torture committed by the CIA in Poland, Romania or Lithuania, the ICC (or national courts) would have to take a stand in this debate. If judges follow the first approach, they will have to examine whether IHL applied in Poland, Lithuania or Romania. As no hostility occurred there, they will have to conclude that the NIAC threshold was not crossed there. A finding of war crimes would be possible only if they adopt the view -shared by the ICRC – that IHL is automatically applicable to the territory of States engaged in an extraterritorial NIAC. The three countries were indeed parties to the NIAC(s) against the Taliban (and other armed groups) at the time of the alleged crimes, as they were contributing troops to Operation Enduring Freedom and ISAF since early 2002 (Lithuania deployed troops under ISAF from October 2002 and OEP from November 2002 but had provided other kinds of support before). Then the judges would have to examine the existence of a sufficient nexus between this NIAC and the acts of ill-treatment.

Or they could adopt the second approach. In that case, once the existence of a NIAC is established, they would only have to address the nexus requirement. Because NIAC rules prohibiting ill-treatment contain no territorial limitation, the location of the incriminated conducts would not impact their analysis. In doing so, they would also leave the door open for the future prosecution of other crimes committed in the name of the global fight against terrorism, in connection to a distant NIAC. Indeed, if IHL applies across frontiers, it protects, for instance, anyone detained in connection to an armed conflict from ill-treatment, irrespective of where (s)he is being held. A breach of this IHL prohibition could then be prosecuted as a war crime by the ICC or non-territorial State courts (which otherwise would have no jurisdiction, unless the violation constituted another international crime, such as a crime against humanity), irrespective of whether the threshold of an armed conflict is met in the State where it occurred, and of whether the territorial State was a party to the conflict.

 The prospect of ICC and national proceedings over acts of torture committed in CIA-run black sites is a chance to expand the breadth of the debate on the geographical scope of IHL, zooming out from the recurrent focus on conduct of hostilities (CoH) rules. Critics tend to concentrate on the risk that if CoH rules can apply anywhere, States will feel incentivized to conduct hostilities everywhere. The risk of a “global battlefield” where some States feel entitled to use lethal force against ill-defined enemies across borders is real. But it remains to be seen whether this is not less a jus in bello issue than it is a jus ad bellum issue (related e.g. to overly broad definitions of the right to self-defense, to the fluidity of the notion of territorial consent or to  a lack of enforcement). The idea that States could invoke the more permissive rules of IHL to justify conduct-based targeting is also playing into the controversial view that IHL itself provides authorizations. At the same time, this CoH-focus may distract from the fact that global applicability would also concern rules protecting persons in the hands of parties to the conflict, such as Common Article 3. Critics will counter-argue that this is cold comfort because human rights law (HRL) provides largely equivalent protections including against all forms of ill-treatment. This being said, the concurrent application of IHL creates obligations not only for States but also for non-State actors (which remains a controversial issue under HRL). It also opens the possibility of war crime prosecutions and, as the ICC announcement just demonstrated, such prospect may be less hypothetical than it seems. While it remains less than clear that war will follow IHL, this may be one of the reasons why IHL should follow the war.

Those Who Live in Glass Houses….

EJIL:Talk! - Wed, 11/08/2017 - 09:00

The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges.

I am sure one can draw all kinds of Pharisaic distinctions between the Polish law and the European practice. I take cold comfort from the collegial and confidential nature of proceedings as a shield guaranteeing independence and the appearance of independence. 

There is clearly no such shield in the case of Advocates General. The old hands among you will remember from years past at least one much commented upon Opinion of an AG which gave the appearance of being compromised by this political dependence. AGs do not give Opinions in cases where ‘their’ Member State is a defendant in a direct action. But they frequently do in Preliminary References implicating directly or indirectly same. Far be it for me to impugn the integrity of any AG, present or past. But in this area appearances are as important as actual practice.

As regards judges, the shield, too, is far from a perfect answer to the appearance of independence. (This is often given as a reason why the European Court cannot entertain the idea of dissenting opinions lest judges be exposed to undue pressure or appear to be.) Leaks apart, in most cases the Court follows the outcome proposed by the Juge Rapporteur (though often with modified reasoning) which, given the concerns that are the subject of the infringement procedure, may result in a delicate situation, especially in chambers of three.

Also, recent practice (of 20 years or so) has seen Presidents serving for long terms. By not resubmitting their own national serving as President, a Member State can effectively terminate the mandate of the President of the Court.  

Thus, in the case of AGs egregiously and the Court as a whole and its President more obliquely, the situation is at its core cut from the same soiled cloth as is the situation in Poland about which the Commission rightly has taken action.

Hopefully Poland will correct this anomaly too in response to the infringement procedure before it winds its way to the Court. I would not like to be in the shoes of the Advocate General and the European judges should they ever be called upon to adjudicate the complaint, each one of them having already been or potentially could be in the future subject to a renewal process resting in the hands of politicians of the executive branch of their Member State – politicians whose actions they may have been called upon to pronounce in the past and may be called to pronounce upon in the future.

Be that as it may, in its forthcoming recommendations about its own future the Court should well consider proposing fixed-term appointments and rid itself of this cloud.

 

EJIL: In this Issue (Vol. 28 (2017) No. 3)

EJIL:Talk! - Tue, 11/07/2017 - 11:00

This issue opens with three articles addressing trade and investment in international law from different perspectives. In a valuable and timely contribution to the literature on the interpretation of investment treaties, Andrew Mitchell and James Munro consider whether the use of a third-party agreement in interpretation constitutes an erroneous application of the customary rules of treaty interpretation in the Vienna Convention on the Law of Treaties. Gracia Marín Durán then explores the respective responsibility of the European Union and its member states for the performance of World Trade Organization obligations, proposing a ‘competence/remedy’ model to help untangle this delicate question. And Sergio Puig and Anton Strezhnev investigate the legitimacy of international investment law, based on an experimental survey of 266 international arbitrators, concluding that there is strong evidence that arbitrators may be prone to the ‘David Effect’ – a relative bias to favour the perceived underdog or ‘weaker’ party when that party wins, through reimbursement of their legal costs.

The next set of articles in this issue focuses on human rights, with particular attention to the European Court of Human Rights (ECtHR). Merris Amos examines the continued value of the ECtHR to the United Kingdom, illustrating what might happen if the UK were to withdraw from the Court. Susana Sanz-Caballero investigates the scope of applicability of the nulla poena sine lege principle before the ECtHR, looking especially at the decisions in Kafkaris and del Río Prada to highlight the Court’s increasingly flexible approach to the concepts of penalty, foreseeability and enforcement of penalty. Oddný Arnardóttir argues that the Court has effectively used the margin of appreciation to engender an erga omnes effect for its judgments through the principle of res interpretata. Vera Shikhelman offers a fresh, empirical look at the work of the United Nations Human Rights Committee, exploring whether geographical, political and cultural considerations correlate with the voting of committee members. Lastly, Thomas Kleinlein addresses an important development in the ECtHR jurisprudence, positing that the Court’s legitimation strategy – comprising European consensus and the new procedural approach to the margin of appreciation – enhances the potential for democratic contestation and deliberation.

Roaming Charges in this issue takes us to the Negev Desert in southern Israel, where the photographer, Emma Nyhan, poignantly captures the ‘outsideness’ of a cultural minority, the Bedouins.

This issue features a lively EJIL: Debate!, centring on an article by Jonathan Bonnitcha and Robert McCorquodale, which addresses the concept of ‘due diligence’ in the United Nations Guiding Principles on Business and Human Rights. The authors criticize the uncertainty caused by two different concepts of due diligence invoked by the principles and suggest an interpretation of the Guiding Principles that clarifies the relationship between these concepts. John Ruggie (the author of the Guiding Principles) and John F Sherman, III, respond to the article, questioning the interpretive approach adopted by Bonnitcha and McCorquodale. The authors then offer a rejoinder.

This issue inaugurates a new rubric for the Journal, A Fresh Look at Old Cases. In the first entry under this rubric, William Phelan uses the writings of French judge Robert Lecourt to show how the legal philosophy he developed before his appointment to the European Court of Justice connects with the fundamental doctrines elaborated by the Court after his appointment. This discovery highlights what the Court was attempting to achieve in its ‘legal revolution’ of 1963-1964 and enhances our understanding of the EU’s essential organizing principles.

The articles section of the issue closes with a Critical Review of International Governance by Ekaterina Yahyaoui Krivenko who examines the jus cogens jurisprudence of the International Court of Justice as a means to analyse and appraise the potential for using feminist methods in the Court’s reasoning.

The Last Page poem in this issue, by Günter Wilms, was inspired by Georges Moustaki’s song ‘Sarah’ and presents a personal vision, both melancholic and euphoric, of the European Union 30 years after the Single European Act and 60 years after the signature of the Treaties of Rome.

New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

EJIL:Talk! - Mon, 11/06/2017 - 11:15

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

Those Who Live in Glass Houses …; In this Issue

Articles

Andrew D. Mitchell and James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Gracia Marín Durán, Untangling the International Responsibility of the European Union and its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model

Sergio Puig and Anton Strezhnev, The David Effect and ISDS

Focus: Human Rights and the ECHR

Merris Amos, The Value of the European Court of Human Rights to the United Kingdom

Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights

Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights

Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee

Thomas Kleinlein, Consensus and Contestability: The European Court of Human Rights and the Combined Potential of European Consensus and Procedural Rationality Control

Roaming Charges

Emma Nyhan, A Window Apart

EJIL: Debate!

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

John Gerard Ruggie and John F. Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Rejoinder to John Ruggie and John Sherman, III

A Fresh Look at Old Cases

William Phelan, The Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt

Critical Review of International Governance

Ekaterina Yahyaoui Krivenko, The ICJ and Jus Cogens through the Lens of Feminist Legal Methods

Book Review

Lauren Benton and Lisa Ford. Rage for Order: The British Empire and the Origins of International Law, 1800–1850; Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Prabhakar Singh)

The Last Page

Günter Wilms, L’Europe à soixante [Trent ans après l’Acte unique européen]

Announcements: CfP Cambridge International Law Conference; Immunity of State Officials Lecture

EJIL:Talk! - Sun, 11/05/2017 - 13:00

1. Call for Papers: 7th Annual Cambridge International Law Conference. The Cambridge International Law Journal is pleased to announce the call for papers for the 7th Annual Cambridge International Law Conference. The Conference will be held at the Faculty of Law, University of Cambridge, on the 3rd and 4th of April 2018. This year’s theme is ‘Non-State Actors and International Law’.  We welcome academics, practitioners and research students in presenting papers at the Conference. Prospective speakers are invited to submit abstracts of not more than 500 words in length, in addition to their CVs. The deadline to submit abstracts is Friday, 8 December 2017. Registration for the Conference will open in January 2018. Please see here for further information. 

2. Melland Schill Lecture – The UN International Law Commission: Lessons from the Topic Immunity of State Officials. Manchester International Law Centre has the immense privilege of welcoming Sir Michael Wood to deliver this year’s Melland Schill Lecture, with the title: “The UN International Law Commission: Lessons from the topic Immunity of State Officials”. The lecture is on 21 November at 17.30 in University Place, Lecture Theatre A. The lecture will be followed by a reception at 19.00 in the ground floor foyer of University Place. Please register for this event here

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

EJIL:Talk! - Fri, 11/03/2017 - 15:10

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

The Basque precedent

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

What happened after that?

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

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

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

Why is all this interesting?

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

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

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

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

EJIL:Talk! - Fri, 11/03/2017 - 09:00

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

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

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

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

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

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

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

Destruction of Boats

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

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

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

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

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

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

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

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

Enforcement and Adjudicative Jurisdiction over Individuals

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

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

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

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

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

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

Conclusion

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

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

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

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

Guantanamo Surrealism

EJIL:Talk! - Thu, 11/02/2017 - 02:24

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

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

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

The Continuing Utility of International Human Rights Mechanisms?

EJIL:Talk! - Wed, 11/01/2017 - 10:00

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

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

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

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

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

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

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

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

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

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

Enhancing international human rights mechanisms

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

EJIL:Talk! - Tue, 10/31/2017 - 09:00

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

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

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

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

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

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

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

Jurisdiction

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

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

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

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

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

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

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

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

Trends in the Jurisprudence – Scope for Supply Chain Liability

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

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

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

 

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

 

 

 

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

EJIL:Talk! - Mon, 10/30/2017 - 08:00

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

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

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

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

Statelessness in Southeast Asia

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

International Legal Framework

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

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

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

A New Regional Approach to Statelessness

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

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

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

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

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

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

EJIL:Talk! - Sun, 10/29/2017 - 10:00

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

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

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

EJIL:Talk! - Fri, 10/27/2017 - 06:00

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

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

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

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

Transparency, consultations, and participation

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

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

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

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

Human rights impact assessments

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

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

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

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

Interacting Long-Term ESC Rights and Environmental Obligations

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

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

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