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Book Discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international”.

EJIL:Talk! - Tue, 05/30/2017 - 08:00

The blog is happy to announce that over the next few days we will host a discussion on Djemila Carron’s book, “L’acte déclencheur d’un conflit armé international“. 

Djemila Carron is a lecturer at the Law Clinic on the rights of vulnerable people at the University of Geneva. She will kick off the discussion this afternoon with an introductory post about her book. Comments by Julia Grignon (Professor of the Faculty of Law at Laval University (Quebec)) and Dr. Tristan Ferraro (Senior Legal Advisor at the ICRC (HQ Geneva)) will follow. Djemila will then bring the discussion to a close with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in – comments will of course be open on all posts.

Facts, Alternative Facts, and International Law

EJIL:Talk! - Mon, 05/29/2017 - 08:00

On October 3, 2015, at 2:08a.m., a U.S. Special Operations AC-130 gunship attacked a Doctors Without Borders [Médecins Sans Frontières, MSF] hospital in Kunduz, Afghanistan, with heavy fire. Forty-two people were killed, mostly patients and hospital staff members. Dozens of others were injured, and the hospital building was severely damaged and subsequently closed. When the dust finally settled, the question that pre-occupied the press and most pundits was whether this was a war crime.

Attempts to answer this question prompted discussions about the relevant laws and their proper interpretation, which, in turn, fueled disputes about specific facts relevant to these laws. Recent news stories about the Trump administration’s plan to relax some of the battlefield rules further intensified the legal controversies. Unfortunately this focus on questions of law, guilt, and blame divert attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future.

The attack on the Kunduz hospital and the controversy that followed it exemplify a broader phenomenon. Legal fact-finding reports set to resolve factual disputes often trigger more controversies, and are poorly equipped to mobilize domestic sanctioning and condemnation of war criminals by their societies. People are motivated to believe what they already know, and to reject facts that are inconsistent with their prior beliefs and political ideology. Legal fact-finding reports are susceptible to social biases just as any other source of information. Therefore, they often fail to create a shared understanding of ‘what happened’ or to combat denialism of crimes. They also lack the emotional appeal, participatory value, and social cues that moral expressions or other types of social truth-telling entail.

One such example is the overwhelming rejection by Israeli society of the 2009 Goldstone fact-finding report. The report, which accused Israel of committing war crimes and crimes against humanity, was condemned by most Israelis as “false and distorted,” a reflection of “double standards” and antipathy to their beleaguered state. The national Israeli ethos that “the IDF is the most moral army in the world” was repeated continually. More importantly, the language of the Goldstone report shifted the focus of attention from factual questions about the number of casualties, or the causes of death, and the decision-making processes that lead to the bombing of civilians, to highly politicized questions about the legal definitions of “direct participation in hostilities” and “proportional collateral damage.” As Marco Milanovic Recently demonstrated, even an established court, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY), has failed to produce a shared narrative of events and to combat denialism. In fact, twenty years on, barely 20% of Bosnian Serbs believe that any crime (let alone genocide) happened in Srebrenica.

As evidence of backlash and rejection of legal fact-finding reports mount, it is time to develop ways to evaluate the intended and unintended outcomes of international and domestic investigations of wartime events. In a forthcoming article in the Chicago Journal of International Law, I attribute some of this backlash to the legal discourse adopted by international fact-finding bodies, and their focus on legal accountability and blame. To directly measure the impact of legal discourse on attitudes and beliefs, I fielded survey-experiments with representative samples of 3,000 U.S. nationals. Participants read a short summary of an international fact-finding report concerning an incident in which U.S. Marines killed civilians in Afghanistan. For all participants, the report included the same set of facts, but for some participants the report concluded that the U.S. Marines violated international law, for others it read that they had committed war crimes, for others that it had violated moral standards, and for still others that it had acted completely lawfully or completely morally. A final group of participants read the summary of the facts alone, without being given any final judgment or conclusion. After reading the facts and the judgment, participants were asked about their opinion on the accuracy, objectivity, fairness and believability of facts, as well as their levels of support for various accountability measures.

As expected, liberals and conservatives differed in how willing (or unwilling) they were to believe facts and conclusions suggesting U.S. misconduct. Individuals who hold conservative ideological beliefs were significantly more likely than those who hold liberal views to discredit information that incriminates U.S. soldiers for committing war crimes in Afghanistan. Individuals who hold liberal ideological beliefs were significantly more likely than those holding conservative ideological beliefs to discredit information absolving the U.S. from responsibility for war crimes. These findings are consistent with other studies measuring political and ideological polarization in the U.S. society relating to other sources of information (“the hostile media bias”) and other social controversies (death penalty, global warming). It is nonetheless valuable to establish the failure of authoritative legal institutions to effectively resolve factual controversies, as “recording the truth” and “combating denialism” are chief goals of legal fact-finding mechanisms.

Figure 1. Report Fairness, by Judgment Condition and Ideology

Figure presents the mean values of the Report Fairness, by ideology. 95% CI’s shown.

In addition to testing willingness to believe the facts, the experiments also tested the impact of fact-finding reports on attitudes about various accountability measures. I found that participants were more willing to support compensating Afghan victims and sanctioning the U.S. soldiers responsible for the attack when their misdeeds were described as a violation of moral standards than when they were described as a violation of international law. The experimental manipulation was very subtle: instead of describing the relevant norm as “legal” standard it was described as a “moral” standard. The standard itself, as well as the judgment (and everything else), were identical. Finding that when prompt with a “moral” standard people may be more inclined to condemn their fellow nationals for committing war crimes and demonstrate more empathy to out-group victims is powerful, because it demonstrates that even when keeping the technical and formalistic structure of legal reports––and the exact same standards––individuals are more likely to be influenced by the report when we frame the findings as moral, rather than legal. A possible explanation for this finding lies in the public perception of legal findings as adversarial, technical, and too complicated for non-lawyers to understand. In contrast, a conversation about morality is inclusive, does not require sophisticated legal knowledge, and is more intuitive.

Figure 2. Willingness to Prosecute, by Judgment Condition

Figure presents the mean values of Willingness to Prosecute the Soldiers, by Experimental Condition (Legal Judgment and Framing). 95 percent CI’s shown.

Let us now return to the attack on the MSF hospital in Kunduz. At the time of this writing, Doctors Without Borders, the UN Assistance Mission in Afghanistan, and several other human rights organizations, continue to demand the establishment of a legalized fact-finding mission to investigate the attack (or to task the existing IHFFC with this responsibility). It seems that the international community has been trapped in the misconception that legal fact-finding is the only method to resolve wartime controversies and mobilize for action. However, as my research suggests, it may be the case that legal fact-finding is ineffective in realizing both.

Based on MSF’s communications, it seems that the organization’s main goal is not individualized prosecutions and adjudication, but rather protecting its people, its medical facilities, and its patients from future attacks. To achieve this goal, it would be wise to focus on systemic failures rather than on individual blame. We have come to recognize that in investigations of medical and aviation catastrophes, a “learning from failure” approach, one focusing on organizational culture, decision-making processes, and structural biases leading to erroneous risk assessments, has many benefits with regard to prevention of recurrences. Such an approach is better suited to motivate information sharing and disclosure, as well as organizational reform. It would also shift the focus of attention from issues relating to legal interpretation and individual criminal responsibility to broader issues, such as biased decision-making processes and other structural biases, which may better account for some of the failures leading to the attack on the Kunduz hospital. In a current study, I continue exploring the impact of different fact-finding methods, including comparing a ‘learning from failure’ design with the traditional legal design.

Henry Kissinger once defined the creation of a fact-finding mission as “the standard device for diplomats signaling that inaction is the desired outcome.” Insofar as the goal of such a mission is determination of legal responsibility and punishment of guilty parties, history confirms Kissinger’s cynical observation. In our “post truth” era, where ‘alternative facts’ are often produced to counter unwelcomed facts and narratives, it is more important than ever to seek new and better ways to produce and introduce information, and prompt reforms based on the lessons learned.

Announcements: Lectureships at Maastricht University Faculty of Law; CfP Workshop on Transformative Constitutionalism in Latin America and International Economic Law

EJIL:Talk! - Sun, 05/28/2017 - 10:30

1. 5 Lectureships at Maastricht University Faculty of Law. The Maastricht Law Faculty is advertising 5 teaching-intensive lectureships in international and European law. At least three successful candidates will be required to teach in both Dutch and English, while arrangements can be made for up to two new lecturers to teach only in English. While the Faculty particularly encourages qualified Dutch-speaking candidates to apply, applicants without any prior knowledge of Dutch will also be considered. Prospective applicants are advised that these are teaching and not research positions. Successful applicants will hold a good advanced degree in law (although not necessarily a PhD). For more information see here and here.

2. Call for Papers: Workshop on Transformative Constitutionalism in Latin America and International Economic Law – Avoiding Conflict and Fostering Dialogue. This expert workshop on Transformative Constitutionalism in Latin America and International Economic Law – Avoiding Conflict and Fostering Dialogue is jointly organized by the Fundação Getulio Vargas and the Max Planck Institute for Comparative Public Law and International Law. It will be held in Rio de Janeiro 28 and 29 August 2017.  The deadline for the submission of proposals is 12 June 2017. See here for more information.

Minnesota Protocol on the Investigation of Unlawful Death Gets a New Life

EJIL:Talk! - Fri, 05/26/2017 - 08:00

The Revised Minnesota Protocol on the Investigation of Potentially Unlawful Death has just been published. It sets out the international human rights and criminal justice standards applicable to national investigations into alleged summary executions and other suspicious deaths, while also providing detailed advice on crime scene investigation and forensic methodology.

The document is highly relevant for human rights lawyers and criminal justice practitioners.  As I also discuss here [pp. 204ff], human rights cases dealing with suspicious killings regularly turn on the quality of the national criminal investigation into the crime. If the investigation was done properly, international human rights mechanisms will typically defer to its findings; if not, they will find a procedural violation of the right to life, even if state responsibility for the killing itself cannot be proven.

The original Minnesota Protocol was prepared in 1991 by a small group of lawyers from that icy state and later published by the United Nations Secretariat. Formally also known as the United Nations Manual on the Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the document has been cited with approval by the Inter-American and European human rights courts.

The just published version of the Minnesota Protocol/U.N. Manual maintains the established brand names. But the text has been completely overhauled by the drafting team around outgoing U.N.  Special Rapporteur on Summary Executions, Christof Heyns (note: the author was not involved). A biopsy of the old and new versions of the Minnesota Protocol goes to show how far human rights law has advanced over the last quarter century.

Expansion into the Private Sphere

Commensurate with the expansion of human rights law into the private sphere, the subject-matter of the Minnesota Protocol has grown from state-sponsored executions to the investigation of all potentially unlawful deaths. In addition to killings by state officials and deaths in custody, the Protocol now also covers  deaths linked to a possible state failure “to exercise due diligence to protect an individual or individuals from foreseeable external threats or violence by non-State actors” ( see para. 2.c).

This expansion accounts for a reality where the biggest threats to human rights defenders, journalists and environmentalists often emanate from extremist groups, unscrupulous private sector interests or shadowy death squads whose affiliation with the state may be hard to prove. Investigations into hate crimes involving the killing of minorities or other vulnerable groups are also covered by the scope of the Revised Minnesota Protocol.

Application of the Human Rights Duty to Investigate Peace Time and Armed Conflict Killings

According to the Minnesota Protocol, the duty to investigate is triggered where the State “knows or should have known of any potentially unlawful death, including where reasonable allegations of a potentially unlawful death are made” (see para. 15). Any unlawful killing reported by a credible human rights NGOs or international human rights body should therefore lead to a national criminal investigation. A formal complaint to the police is not necessary. This long-standing human rights principle takes the heat off bereaved families who might otherwise be pressured into dropping the case.

IHL lawyers will be interested (or alarmed) to learn that the Protocol addresses the contested question, (see here, here and here) to what extent casualties occurring in hostilities must be investigated. The Protocol confirms that the basic human rights obligation to investigate also applies to conflict-related killings. While it stops short of requiring full investigation into any conflict-related killings, it calls for the systematic assessment of battlefield casualties (see para. 21):

Where, during the conduct of hostilities, it appears that casualties have resulted from an attack, a post-operation assessment should be conducted to establish the facts, including the accuracy of the targeting.  Where there are reasonable grounds to suspect that a war crime was committed, the State must conduct a full investigation and prosecute those who are responsible.

IHL violations, which fall short of a war crime and are not subject to specific duties to investigate, must still be subject to “further inquiry.” If unlawful conduct is found, a full investigation must be carried out.

It should be emphasized that these standards also apply to conflict-related killings occurring on territory that the State does not control such as killings caused by airstrikes or shelling.  While the Minnesota Protocol concedes that practical challenges may prevent compliance with all aspects of the duty to investigate in such situations, it firmly demands that “the constraints and reasons for non-compliance should be recorded and publicly explained” (see para. 20).

Universal Investigative Standards

Through a process of legal cross-fertilization that reaches back to the venerable Velazquez Rodriguez judgment, the jurisprudence of universal and regional human rights bodies has converged on a set of principles with which any criminal investigation into deaths (or serious injuries) must comply. Investigations must be prompt, effective, sufficiently independent, impartial and reasonably transparent vis-à-vis the victim’s family and the general public. The Minnesota Protocol does an admirable job of providing a concise summary of what human rights law demands in relation to each of these attributes.

Independent investigations require that security officials suspected of wrongdoing must not investigate themselves. Instead, the investigation must be “capable of being carried out free from undue influence that may arise from institutional hierarchies and chains of command.” Law enforcement bodies therefore must set up institutionally independent internal investigation bodies considering that investigations must go beyond the direct perpetrators and identify others “in the chain of command who were complicit in the death” (see para. 26).

Military abuses pose particular challenges regarding the independence of investigations. In light of strict chains of command and a strong esprit de corps within the military, human rights advocates have often demanded that the investigation of serious violations by the military should be left entirely to civilian authorities. State practice is not there yet. The Minnesota Protocol navigates between both positions by demanding at least civilian judicial oversight over investigations into serious violations (see para. 28):

Inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture must be conducted under the jurisdiction of ordinary civilian courts.

The Right to the Truth

From the mid-1990s, first the Inter-American Court, later followed by U.N. mechanisms, started developing the right to know the truth about human rights violations and their causes; a right that is owned by victims, their families and the public as a whole. The Minnesota Protocol references the right to the truth and it reverberates throughout the text. Investigations “must be transparent, including through openness to the scrutiny of the general public and of victims’ families” (para. 32). This requires, at a minimum, that the authorities are “transparent about the existence of an investigation, the procedures to be followed in an investigation, and an investigation’s findings, including their factual and legal basis” (id.).

The Minnesota Protocol also clarifies that investigations must seek to determine both individual criminal responsibility and the larger truth about “policies and systemic failures that may have contributed to a death, and identify patterns where they exist (para. 26).” Investigations into broader patterns of dubious killings may therefore have to pursue two separate tracks: a criminal investigation aimed at establishing individual responsibility and another inquiry focused on systemic failures and related political accountability. Increasingly, states set up national commissions of inquiry, blue ribbon panels or other special mechanisms to address the latter dimension. Unfortunately, however, some states have become very adept at playing off both types of investigations against each other: A special mechanism is charged with an open-ended inquiry of uncertain duration that effectively blocks ordinary criminal investigations from advancing. The Minnesota Protocol sees and addresses that very problem (see para. 40):

The effective conduct of a special investigative mechanism – designed, for example, to investigate the systemic causes of rights violations or to secure historical memory – does not in itself satisfy a state’s obligation to prosecute and punish, through judicial processes, those responsible for an unlawful death. Accordingly, while special mechanisms may play a valuable role in conducting investigations in certain circumstances, they are unlikely on their own to fulfil the State’s duty to investigate. Fulfilment of that duty may require a combination of mechanisms.

A Duty to Request External Investigative Assistance?

The second part of the Protocol is devoted to providing highly detailed and practical guidance on how crime scene and forensic investigations should be conducted in cases of potentially unlawful deaths. The guidance is based on good practices gleaned from developed countries with a sophisticated law enforcement apparatus. It will be interesting to see to what extent, human rights bodies such as the European Court of Human Rights will use this guidance as the due diligence yardstick for assessing compliance with the duty to investigate. So far the European Court tends to find violations only, where investigative shortcomings were so blatant that they raised questions about the goodwill of the investigating authorities (see here, pp. 206ff.).

Certain investigative techniques identified as good practices by the Revised Minnesota Protocol may be beyond the means of many developing countries. For instance, many states will be unable to deploy “satellite/aerial image analysis or hyperspectral image analysis, and geophysical survey equipment such as ground-penetrating radar” (para. 112) in order to locate hidden mass graves. This raises the question whether states have a duty to request international assistance where locally available investigative capacities fall short. The Minnesota Protocol sidesteps the question and merely notes that “[t]he assistance of law enforcement agencies in other States may help the investigation cover any gaps in the technical capacity of local investigators (para. 77).” But it is worth recalling that, human rights duties to request and accept external assistance also exist elsewhere. Notably, states must seek and accept international assistance when they cannot ensure freedom from hunger or other core minimum standards emerging from economic and social rights (see e.g. here and here).

Credible Investigations in a Post-Factual World

Assuming the human rights world will embrace it, the revised Minnesota Protocol will make it much harder for national authorities to get away with bogus investigations by claiming that the standards were not clear. At the same time, it provides states committed to conducting proper investigations into the most serious human rights violations with comprehensive, practical guidance on how to proceed.

Rigorous adherence to a credible investigate methodology is human rights’ best defense against the specter of a “post-factual world” where the distinction between truth and fake news derives from preconceived partisan beliefs and even the most blatant violations can be easily dismissed as  biased fabrications. The update of the Minnesota Protocol – and its underlying promise that credible, competent and impartial investigations can determine the truth about dubious deaths – could not be published at a more timely moment.

The Right of Self-Defence Against Imminent Armed Attack In International Law

EJIL:Talk! - Thu, 05/25/2017 - 08:00

On 11 April 2017, the Australian Attorney-General, Senator the Hon. George Brandis QC, delivered a public lecture on “The Right of Self-Defence Against Imminent Armed Attack In International Law”, at the T C Beirne School of Law, University of Queensland. The text of the speech has just become available and is posted below. This talk follows on from an earlier talk given by the United Kingdom’s Attorney-General, the Rt Hon. Jeremy Wright QC MP on “The Modern Law of Self-Defence,” which was also posted on in EJIL: Talk!

Acknowledgments

Thank you very much indeed, Sarah. Might I also begin by acknowledging the traditional custodians of the land on which we meet, the Turrubul peoples, and by acknowledging you, Professor Derrington, in your role as Dean, T C Beirne School of Law. Members of the Faculty of this Law School, of other faculties of the University of Queensland and the faculties of other law schools who I gather have come here this evening. We are honoured by the distinguished presence among us this evening of Justice Edelman of the High Court, and of Justices Greenwood, Logan and Derrington of the Federal Court, and Dr Christopher Ward SC, the Australian President of the International Law Association. Other distinguished guests, ladies and gentlemen.

Introduction

It is a great pleasure to return tonight to my old law school, be it not physically within the law school precincts. May I congratulate the Dean, Professor Derrington, and the members of the faculty, on all that they have done to propel UQ into the front rank of Australian law schools. I note that the 2017 QS ranking places this law school among the top 50 in the world – a distinction enjoyed by no other law school in Queensland and by only six others in Australia. No doubt your new policy of limiting the undergraduate intake to fewer than 200, which means that new entrants are likely to come only from a cohort students who achieve an OP 1, will reinforce its position as one of Australia’s elite law schools. And that intellectual excellence has recently been complemented by a physical manifestation: the very handsome new Law Library and facilities which were opened only last month by Chief Justice Kiefel.

As a student, tutor and lecturer, my association with this law school spanned more than 15 years, from 1975 to 1991, so it is more than 25 years ago that I last gave a lecture here. That was when, for some eight years, while in my early days at the Bar, I taught a unit of the Jurisprudence course called “Recent Developments in the Theory of Justice”. My focus was primarily on John Rawls, as well as such other scholars as Robert Nozick, Ronald Dworkin and Bruce Ackerman.

Tonight, however, it is not jurisprudence with which I am concerned, but international law. The topic of the paper I am about to read, is the right of self-defence against imminent armed attack in international law. I propose to address this question of the circumstances which justify the use of armed force in the face of imminent armed attack. Specifically, I want to state publicly the Australian Government’s position on the principle of imminence of armed attack as a ground for the use of force justified by the principle of self-defence.

May I stress that what I am about to say does not represent a new position of the Australian Government, but a public statement and explanation of the Government’s existing position. As well, may I stress, that the remarks I am about to make are not related to the decision of the American President to deploy force against Al-Shayrat air base in Syria last week. Indeed, these remarks had been prepared before the Australian Government was given advance notice of that intervention, and nothing which follows is intended to be a commentary upon it.

As you know, Australia, currently, has defence personnel engaged in conducting operations with our international partners against ISIL in Syria, as part of Operation OKRA. The justification in international law of those operations is based upon the well-established principle, enshrined in Article 51 of the UN Charter, of individual and collective self-defence, in this case, the defence of Iraq against attack by Islamic State, or ISIL. That operation has led to much discussion, in particular among the so-called “Five Eyes” nations – Australia, the United Kingdom, New Zealand, Canada and the United States – about the operation and extent of the principle of imminence as a ground for the defensive use of force.

The observations I am making tonight complement, and reflect, a similar approach to that of the Attorney-General of the United Kingdom, the Rt Hon Jeremy Wright QC MP, who on 11 January this year delivered a landmark speech to the International Institute for Strategic Studies articulating the United Kingdom’s approach to the law of self-defence.[1] The Australian Government agrees with the position stated by my United Kingdom counterpart; the remarks that follow address similar issues and build upon what Mr Wright had to say on that occasion.

While we are accustomed to thinking of the law of armed conflict in relation to nation states, the rise of globalized – and militarised – terrorist networks, presents new legal issues.

What does ‘imminence’ mean when terror cells can plan an attack in one country and then go dark, perhaps until the attack is remotely triggered from abroad? How does a government decide when a violent intent expressed by a terrorist organisation online has crossed from mere aspiration to ‘imminent’ threat? Crucially, how do we protect ourselves from such threats, whilst ensuring that legitimate constraints on the use of force are not undermined?

Foundations of anticipatory self-defence doctrine

The legal requirements for establishing self‑defence by a State against an imminent armed attack find their modern antecedents in the Caroline incident of 1837. It will be recalled that the incident involved a pre-emptive attack by British forces based in Canada against an American ship, the Caroline. American sympathisers with the rebels against British rule in Canada were using the ship to ferry arms to insurrectionists.

Since the date they were penned in 1841, the words of the then US Secretary of State Daniel Webster to his British counterpart Lord Ashburton have become canonical.

Secretary Webster wrote that a State claiming self-defence would have to show that the:

necessity of self‑defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation …, and that the [State’s] force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.[2]

The Caroline incident preceded the first international elucidation of the prohibition on the use of force, in Articles I and II of the Kellogg‑Briand Pact of 1928, by some 50 years. It preceded the modern prohibition, found in Article 2(4) of the UN Charter, and the principle of individual and collective self‑defence, now enshrined in Article 51, by some hundred years.

There is little doubt that Webster’s formulation has played a central role in cementing the requirements of necessity and proportionality as limits on the use of force in self‑defence.

It is also clear, however, that technology and the nature of national security threats have been revolutionised; they would be utterly unrecognisable to Secretary Webster and Lord Ashburton.

Australian and global security context

Today’s threats to Australia’s national security are real, they are evolving, and they are global.

There are several particular factors requiring us to be innovative in our approaches to protecting Australia and its interests from the threat of terrorism and politically‑motivated violence.

First, there is the increasing speed of radicalisation, facilitated, in particular, by the internet. Once it was months, but now it can take as little as a few weeks for someone to develop an intent to perpetrate an act of terrorist violence. While the internet is one of the most powerful drivers of innovation and commerce in human history, it is also fertile ground for recruiters to extremist ideologies.

Secondly, there is the speed with which people, money, information, and misinformation move across borders so that conflicts, and the ideologies that fuel them, are rarely contained within one State or between two belligerent States. They can reverberate with spill-over effects in France, in Germany, in India, in Indonesia, in Australia. Since 12 September 2014, Australia has experienced four domestic terror‑related attacks; three of them lethal and one resulting in serious injury. In the same period, our law enforcement and security agencies have disrupted another 12 imminent attacks within Australia.

And third, we are faced with the phenomenon of access by criminal and terrorist groups to weapons that allow them to spread violence on a scale previously reserved to States. No longer can it be said, as was for centuries the assumption of international law and the law of war, that States have a monopoly on the tools of war.

Australia’s response and the rule of law

How does Australia respond?

The highest priority for any government is of course the security of its people.

As the Prime Minister told Parliament in his national security statement on 1 September last year, “the Government is resolutely committed to ensuring Australians remain safe, secure and free”.[3]

Even in the face of today’s evolving threats, the rule of law and our commitment to upholding an international rules-based order must remain foundational. And the need for clear legal principles is nowhere more apparent than when it comes to the justification for the use of force.

Now, it goes without saying that Australia regards the use of force always as a last resort. Where a threat is not an actual or imminent ‘armed attack’, as that term is understood in international law, Australia responds in a variety of other ways. These include domestic law enforcement, as well as collaboration with the justice and security agencies of other countries.

But where a threat does give rise to a right of self-defence under international law, Australia is firmly of the view that clear rules must be in place to delimit the bounds of the use of that force, and to avoid its abuse. That remains true even as we grapple with entirely novel security threats. The challenge is to ensure that our understanding of international legal principles adapts to those threats in a manner which does not leave States hamstrung in the defence of their people.

The historical right to act in self‑defence

As I have said, some manifestations of terrorist threats are appropriately handled only by law enforcement agencies, but others are of sufficient gravity to constitute an imminent or actual armed attack. My focus tonight is on the latter.

Let me return, then, to the fundamental questions of the jus ad bellum: when is it lawful for a State to use force in self‑defence, and what is the scope of a State’s right to respond to imminent threats?

Absent consent, international law recognises at least two exceptions to the prohibition on the use of force against the territorial integrity or political independence of another State:

  • a clear and formal authorisation by the UN Security Council; and
  • the inherent right of individual or collective self‑defence, which does not rely upon UN Security Council authorisation.

Of course, international law is capable of, and must be permitted to, evolve in light of the development of State practice and changing circumstances. International legal principles need to be interpreted in light of contemporary challenges. And customary international law is sufficiently flexible to allow this to occur.

For instance, let us recall that historically, self-defence only applied in response to armed attack from another State. But, following the 9/11 attacks against the United States of America in 2001, the UN Security Council passed Resolution 1368, which implicitly affirmed the right of self‑defence against non‑State actors for the first time.

And more significantly for this evening’s purposes, it is now recognised that customary international law permits self‑defence not only against an armed attack that has occurred but also against one that is imminent.[4]

It has certainly been the long‑held Australian position that acting in self‑defence does not require a State passively to await attack.

That view is shared by the United Kingdom, the United States, and other like‑minded countries.

In their letters to the UN Security Council notifying the exercise of self‑defence in relation to the use of force in Syria (as required by Article 51 of the Charter), Australia, the United States, Canada, Turkey, and the United Kingdom all cited the individual or collective right of self‑defence to respond to imminent armed attacks, or threats of armed attacks, from ISIL.[5]

Applying the law on imminence

An important issue which requires careful consideration is the scope of the notion of imminence. It is all well and good to permit the use of force in self-defence against an imminent armed attack. But what counts as ‘imminence’ in this context?

The concept has been the subject of longstanding historical debate and differing interpretations by States and by scholars.[6]

Secretary Webster, of course, thought the use of force would not be permissible unless its necessity was “instant, overwhelming, and leaving no choice of means, and no moment of deliberation”. How might this formulation be adapted to the realities of the threats we face in the 21st century?

How, in other words, will customary international law play its traditional role of flexibly accommodating the facts as they evolve?

Allow me to state the Australian Government’s position on the question of imminence. In broad terms, Australia agrees with the criteria outlined in 2012 by Sir Daniel Bethlehem QC in his article in the American Journal of International Law, with which those present tonight, and scholars in this field, would be familiar.[7]

Sir Daniel’s formulation – which is one of twelve rules which have quickly acquired near to doctrinal status as “the Bethlehem principles” – states that whether an armed attack is imminent will fall to be assessed by reference to all relevant circumstances, including:

  • the nature and immediacy of the threat;
  • the probability of an attack;
  • whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of a mitigating action; and
  • the likelihood that there will be other opportunities to undertake effective action in self‑defence that may be expected to cause less serious collateral injury, loss or damage.

Australia agrees with and adopts that formulation.

In Australia’s view, the factors adumbrated by Sir Daniel Bethlehem provide an appropriate — if non‑exhaustive — framework to assess whether an attack is imminent.

It follows that imminence is not simply a question of timing. The temporal aspect is unquestionably relevant, but it is by no means the sole relevant factor. All the circumstances, including those factors identified by Sir Daniel in particular, may be relevant.

Though it is unsettled, I do not think this proposition is controversial. The same approach was adopted by the prominent group of experts who developed the Tallinn Manual – the first fully elaborated statement on the international law applicable to cyber warfare. The Tallinn Manual clearly rejected a strict temporal approach to the question of imminence.

The position was also affirmed by some of the most eminent international jurists in the 2005 Chatham House Principles on the Use of Force in Self‑Defence,[8] which emphasise the importance of reflecting the wider circumstances of the threat, not simply the temporal criterion.

The last window of opportunity

In today’s world, the precise timing of a threatened attack is often unclear or unknown. In Australia’s view, then, the appropriate question to ask when it comes to assessing imminence is: “What is the last feasible window of opportunity to act against the threatened armed attack?”

Put another way, a State may act in anticipatory self‑defence against an armed attack when the attacker is clearly committed to launching an armed attack, in circumstances where the victim will lose its last opportunity to effectively defend itself unless it acts.

This standard reflects the nature of contemporary threats, as well as the means of attack that hostile parties might deploy.

Consider, for example, a threatened armed attack in the form of an offensive cyber operation (and, of course, when I say ‘armed attack’, I mean that term in the strict sense of Article 51 of the Charter). The cyber operation could cause large-scale loss of human life and damage to critical infrastructure. Such an attack might be launched in a split‑second. Is it seriously to be suggested that a State has no right to take action before that split-second?

By what standard, though, is a Government to judge when the last window to act in self‑defence against an imminent armed attack will close? The question, of course, is not a simple one.

Allow me to illustrate why that is so with another hypothetical scenario.

Assume a government is certain that a terrorist group has planted explosive devices within its jurisdiction, but does not know the precise locations. The devices may be detonated instantaneously, and they may be detonated remotely, from abroad. But it is not clear when that is planned to occur. Now assume that mobile phone chatter between group members is known generally to cease at some unspecified point prior to a detonation attempt. And mobile phone chatter has indeed just ceased. Do we, here, face an imminent attack? What if no other information is available? Is this now the last window of opportunity to take action?

Remember: the State does not know how long before a detonation attempt the group’s mobile phone chatter generally ceases. On a strict temporal approach to imminence, then, the State would have no right to take action, notwithstanding the clear threat to human life.

Consider another example.

The Tallinn Manual cites a scenario where a ‘logic bomb’, or malicious code, is inserted into software, with the conditions for activation being likely to occur.[9] It is certain that activation of the ‘logic bomb’, when those conditions arise, will cause significant harm and will constitute an armed attack within the meaning of Article 51. Does insertion of the ‘logic bomb’ herald an imminent attack? Must it be known precisely when that ‘logic bomb’ will be activated? What is the last feasible window of opportunity to take action?

As I have said, such questions are fraught, and it would be unwise to venture answers in the abstract.

I can, however, state the standard that Australia applies to such questions. Australia’s longstanding view is that there must be a reasonable and objective basis for determining that an attack is imminent. And this view can only be formed on the basis of all available evidence when the assessment is made.

Of course, to state Australia’s understanding of the applicable standard is not to diminish the difficulty of the task of making the assessment.

Nevertheless, it is an assessment which must be carried out in “good faith and on the basis of sound evidence”, the standard reflected in the Chatham House Principles. Nothing less will establish a sufficient level of confidence to justify the use of force in self‑defence against an imminent armed attack.

I return to the point I made earlier: this is not a mere theoretical exercise. Governments have to weigh the consequences not only of action but equally the consequences of inaction, in light of the harm that can follow. Charged with the responsibility to ensure the safety of the community, governments cannot be expected to watch helplessly as the shutter comes down on the last window of opportunity to prevent an attack.

As my United Kingdom counterpart Jeremy Wright put it:

“In a world where a small number of committed plotters may be seeking to inspire, enable and direct attacks around the world, and indeed have a proven track record of doing so, we will not always know where and when an attack will take place, or the precise nature of the attack. But where the evidence supports an assessment that an attack is imminent it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack. Apart from anything else, our enemies will not always have fixed plans. They are often opportunists.”

Necessity and proportionality

It should not be thought that in saying what I have said I am supporting an overly expansive view of the notion of self‑defence — a loose test that may be open to abuse by States. There is penetrating insight in a passage from the Roman scholar Aulus Gellius, cited by Grotius: “When a Gladiator prepares to enter the lists for combat, such is his lot that he must either kill his adversary, or be killed himself. But the life of man cannot be circumscribed by the hard terms of such an over-ruling necessity, as to oblige him to do an injury to prevent him from receiving one.”[10]

In the law of self‑defence, the touchstones of necessity and proportionality ground us in the principle of legality. What I have said does not give a State a free pass to act unrestrained.

Australia applies the twin requirements of necessity and proportionality to any use of force in self‑defence against an imminent armed attack. They are essential checks on the exercise of anticipatory self‑defence. What does that mean in practice?

The requirement of necessity means that the State must have no other reasonably available option in the circumstances to protect itself from the imminent attack, other than to use force in self‑defence.

This is not a new criterion. You will recall that the concept of necessity found voice in Secretary Webster’s 1841 letter from which I have quoted. The requirement of military necessity, and the balance which must be struck with the principle of humanity, finds early roots in the Lieber Code of 1863, that body of 157 articles drafted by Dr Francis Lieber at the request of President Lincoln during the American Civil War. Indeed, we may go back further to Grotius, who spoke of the lawfulness of killing an aggressor if the danger to one’s life “cannot otherwise be avoided.”[11]

Proportionality, meanwhile, acts as a restraint to ensure that any use of force in self-defence corresponds to the gravity of the imminent attack sought to be repelled. Like necessity, proportionality is “fundamental to legitimising any claim of self-defence”.[12] Importantly, it ensures that an imminent armed attack cannot be used as a pretext to engage in a wider act of aggression. Again, you will recall that this requirement was also articulated in Webster’s correspondence; the State using force in self-defence, Webster opined, must do “nothing unreasonable or excessive, since the act justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.”

Anticipation and pre-emption

Before turning briefly to the role of States in articulating international legal principles, I want to make myself very clear about one such important principle. It is the distinction between ‘anticipatory’ and ‘pre‑emptive’ self‑defence.

Anticipatory self‑defence refers to the resort to force in response to an imminent (rather than an actual) armed attack. As I have already said, Australia regards anticipatory self-defence as a right of States under customary international law.

Australia, however, does not adhere to any doctrine of so‑called ‘pre‑emptive’ self‑defence. Pre‑emptive use of force is an entirely different thing from the use of force in anticipation of an imminent threat. The former is not an accepted application of the principle of self-defence; the latter, for the reasons I’ve explained, clearly is. Australia’s view, maintained over a long period, is that States are not permitted to use force to respond to threats which have not yet crystallised but which might materialise in the future. As Livy wrote, “Men, to guard against their alarms, make themselves objects of terror; averting the danger from their own heads, by imposing upon others the necessity of either doing or suffering the evil which they themselves fear.”[13]

The Australian Government maintains this important distinction between anticipatory self-defence and pre-emptive self-defence.

States are the key proponents in the articulation and development of international law

In closing, let me pose the question: why is it so important to articulate, as I have sought to do this evening, Australia’s position on the international law of self‑defence, and in particular our understanding of the principle of imminence?

The American Legal Adviser Brian Egan termed this kind of public discussion ‘legal diplomacy.’[14] His predecessor, Harold Koh, made reference in a 2016 article to the “legal adviser’s duty to explain”.[15] Egan said — and I agree — that legal diplomacy allows us to navigate and possibly bridge the inevitable gaps between States’ international legal obligations, and their differing interpretations of common obligations.

I would take this further. Since customary international law places State practice at the heart of the law’s development, we have a responsibility to proactively engage in debate, including public statement of the positions of governments. Where possible, as I have sought to do tonight, we must articulate and explain our legal reasoning.

It is vital that States (and their international legal advisers) have the courage to explain and defend their legal positions.

Because it is in this way that we ensure that States maintain control over the development of international law. We should not abandon the elaboration of legal doctrine to the realm of academia, unmoored from an appreciation of the operational realities confronting executive governments. Indeed, it was something like this concern that led Sir Daniel Bethlehem to articulate his principles governing the use of anticipatory self-defence.

And there is another reason for a State like Australia to articulate its reasoning on important questions of international law. Applying Koh’s ‘duty to explain’ or Egan’s ‘legal diplomacy’ will strengthen within Australia what the late South African Professor Etienne Mureinik termed the ‘culture of justification’.[16] It will make our legal deliberations more transparent, so that decisions are understood and respected — by Australians as well as by the international community.

Earlier I endorsed the requirement that assessments of risk to Australia must be carried out in good faith and on the basis of sound evidence. Plainly, classified information is rarely made public. However, military force should only ever be used in a principled way. That is why we must make clear the principles (such as the Bethlehem Principles) upon which we intend to act, against which the decisions of government, in deciding to use force, may be judged. 

Conclusion

As the First Law Officer, I am acutely aware that the use of lethal force by Australia must occur only as a last resort, only in the direct protection of human life, and only in accordance with international law.

As is, I think, widely acknowledged, in ISIL we face an enemy with no discernible conception of the rule of law, certainly no conception of international humanitarian law.

That is what makes Australia’s determination to uphold these norms all the more important. Our steadfast adherence to the rule of law, our willingness to explain, articulate and defend the international legal principles according to which our decisions are made and will be judged, are among the things that differentiate us from our enemy. They are among the things which imbue our cause with moral strength, as well as legal authority.

International law should not be characterised merely as a set of constraints upon State action. It is more than that. When we hold firmly to an international rules‑based order, the law’s “wise restraints” (in the words of Professor John MacArthur Maguire) provide legitimacy to States’ conduct. They do so because when we adhere to them — and we do so explicitly, for reasons we are prepared to articulate, explain and defend — we demonstrate that our conduct on the international stage is principled. And it is only when we behave in a principled fashion that we can hope our conduct will be respected and regarded as lawful and legitimate. That legitimacy is all the more important to Western liberal democracies such as ours.

Respect for an international rules‑based order, however, does not mean adherence to static norms, in blithe disregard of the evolving facts on the ground. We must be particularly sensitive to rapid changes in the means and methods of warfare, in the application of those rules and norms.

As I’ve said, not all security threats raise questions of armed force and self-defence. We in Australia continue to work with our partners’ law enforcement and security agencies to counter foreign threats in ways far removed from questions of jus ad bellum. Australia will use lethal force against an imminent or actual armed attack when we must do so, and as a last resort.

And when we reach that moment of last resort, when lives are imperilled and when we have no choice but to take up arms, we do so from a position of legal authority and moral strength. For all around us towers the great edifice of the international legal order: an edifice that we have done so much to build — a legal order to which, this evening, I restate the Australian Government’s deep and enduring commitment. I thank the University of Queensland Law School for its hospitality in providing me with this occasion to do so.

[1] Speech by UK Attorney-General, the Rt Hon Jeremy Wright QC MP, on ‘The modern law of self-defence’ at the International Institute for Strategic Studies‘, 11 January 2017

[2] Extract from note of 24 April 1841

[3] Prime Minister, The Hon Malcolm Turnbull MP, ‘National Security Statement on Counter-Terrorism’, 1 September 2016

[4] UN High Level Panel Report, In Larger Freedom: Towards development, security and human rights for all, UN Doc A/59/2005, [124]‑[125].

[5] Australia (9 September 2015, S/2015/693), United States (23 September 2014, S/2014/695), Canada (31 March 2015, S/2015/221), Turkey (24 July 2015, S/2015/563), United Kingdom (7 September 2015 and 3 December 2015, S/2015/688 and S/2015/928).

[6] See, for example, former US Legal Adviser Harold Koh’s comments on the Obama Administration’s policy of self-defence against a “continuing imminent threat” based on an “elongated” notion of imminence, in a speech delivered on 12 February 2016.

[7] Sir Daniel Bethlehem KCMG QC, ‘Principles Relevant to the Scope of a State’s Right of Self‑Defense Against an Imminent or Actual Armed Attack by Non‑State Actors’ (2012) 106 American Journal of International Law 769.

[8] Chatham House, Principles of International Law on the Use of Force by States in Self‑Defence, ILP WP 05/01.
The experts included Judge Sir Christopher Greenwood CMG QC, Sir Daniel Bethlehem KCMG QC, Sir Michael Wood KCMG, Professor Vaughan Lowe QC, Sir Adam Roberts KCMG FBA and Professor Malcolm Shaw QC.

[9] Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge University Press, 2017), p 352.

[10] Hugo Grotius, The Rights of War and Peace: Book II, Chapter 1 (New York: M Walter Dunne, 1901) p 78.

[11] Hugo Grotius, The Rights of War and Peace: Book II, Chapter 1 (New York: M Walter Dunne, 1901) p 76.

[12] Noam Lubell, ‘The Problem of Imminence in an Uncertain World’ in Marc Weller (ed), The Oxford Handbook on the Use of Force in International Law (Oxford University Press, 2015) pp 697, 699.

[13] Hugo Grotius, The Rights of War and Peace: Book II, Chapter 1 (New York: M Walter Dunne, 1901) p 78.

[14] Brian Egan, Legal Adviser, US Department of State, ‘International Law, Legal Diplomacy, and the Counter-ISIL Campaign: Some Observations’ (2016) International Law Studies, Vol 92, 235

[15] Harold Hongju Koh, ‘The Legal Adviser’s Duty to Explain’ (2016) Yale Journal of International Law, Vol 41, Issue 1, p 189:

[16] Étienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights, 31 at 32.

Evacuation of Civilian Populations and Criminal Complicity: A Critical Appraisal of the February 2017 Report of the Syria Commission of Inquiry

EJIL:Talk! - Wed, 05/24/2017 - 07:30

In its February 2017 Report (A/HRC/34/64), the Independent International Commission of Inquiry on Syria made the bold statement that the evacuation of the civilian population from Eastern Aleppo, pursuant to an agreement between the Syrian government and the armed groups “amounts to the war crime of forced displacement” since it was made “for strategic reasons” and “not for the security of civilians or imperative military necessity.” (para. 93). A – perhaps unintended – consequence of this proposition would be that staff of NGOs or other non-state actors who assisted in this evacuation may be criminally liable as accomplices in this war crime.

I will argue here that this proposition is incorrect for basically two reasons. First, the Report does not make a persuasive argument that a war crime has been committed and thus there is no criminal conduct to which other individuals could have been contributed. Secondly, even if, arguendo, one assumes that the evacuation amounted to a war crime, to provide assistance in the evacuation of civilians does not constitute criminally relevant complicity.

With regard to the first argument – the criminality of the evacuation – the relevant codification can be found in Art. 8(2)(e)(viii) ICC Statute according to which the “[O]rdering the displacement of the civilian population for reasons related to the conflict” amounts to a serious violation of the laws and customs applicable in a non-international armed conflict, “unless the security of the civilians involved or imperative military reasons demand”. I think in the case at hand, it is plausible to argue that, contrary to the Commission’s view, the evacuation was demanded by the security of the civilians and military necessity. As to the former, it is quite evident that the evacuation of civilians from a conflict zone to a safe(r) area increases their security even if the warring parties pursue other, e.g. “strategic”, interests. As a matter of fact, strategic interests may constitute themselves a sufficient reason for an evacuation if their aim is, for example, to remove civilians from the conflict zone to avoid collateral damage. The evacuation would then at least be justified by military necessity. Admittedly, as previously argued by Elvina Pothelet in this post, the idea of the evacuation was that Syrian troops would regain control of the city and combat operations would therefore stop; under these circumstances the evacuation would at best be lawful with regard to the wounded and sick (cf. Pothelet, ibid.). As to the forceful character of the evacuation two things must be noted. First, the evacuation was agreed between the warring parties. While this is not necessarily binding on the civilians concerned (Naletilic Trial Judgement, para. 523), the displacement could only have been “forced” with regard to those civilians who explicitly opposed it (cf. Pothelet, ibid). Secondly, the displacement must have been “ordered” but it is difficult to find any indication of such an order in the Report or elsewhere (see also Pothelet, ibid.). To argue the order element away, as done by Matt Brown here, is certainly to the detriment of the accused and thus hardly compatible with the legality principle (especially the lex stricta component) as enshrined in Art. 22, 24 ICC Statute. Clearly, the civilians concerned always have a right to return (cf. Rule 132 of the ICRC Customary Law Study).

At any rate – and that is my second, complicity related argument – to assist such an evacuation does not amount to criminally relevant complicity in the sense of Art. 25(3)(c) or (d) of the ICC Statute (requiring an act of assistance or “any” contribution). This follows from normative, value-based considerations which limit accomplice liability to those acts of assistance/contributions which either create a risk/harm, or increase an existing risk/harm and this risk/harm is disapproved of by the legal order (prohibited risk/harm) (cf. Ambos, Treatise on International Criminal Law, Vol. I, OUP 2013, p. 165). In other words, the otherwise limitless accomplice liability must be limited by normative considerations which focus on the quality of the act of assistance/contribution with a view to exclude the apparently innocent (neutral, daily etc.) contributions from the scope of criminality. To be sure, this is primarily an objective assessment in order to limit criminally relevant complicity to conduct which constitutes a significant deviation from standard social or commercial behaviour which modern capitalist societies approve of and even demand. Take the following examples from ordinary criminality: The baker sells bread to the wife who fills it with poison to kill her husband; the shopkeeper sells a screwdriver to a man who uses it to stab another man at the next corner; the taxi driver brings the bank robber to the bank she wants to rob without any knowledge thereof just rendering his normal service. In all these cases the act of assistance (selling a certain good or giving a service) is causal for the main act (killing, bank robbery), at least in the sense of a naturalistic, but for, causality, with hypothetical courses of causation excluded. Thus, causality as the (only) requirement to more precisely define a criminally relevant contribution does not – contrary to, most recently, Bemba et al., Trial Judgment [Art. 70 case], ICC-01/05-01/13-1989-Red, para. 90, 19 October 2016 – provide stringent, normatively convincing, criteria to delimit criminally relevant from irrelevant (innocent, neutral) complicity.

Intuitively, we hesitate to consider the baker, shopkeeper or taxi driver criminally liable as accomplices as long as they only perform their normal, daily – per se neutral – commercial activity. Only if, from an objective perspective, the respective conduct creates or increases a prohibited risk, e.g. the shopkeeper selling a weapon to a person without licence (in jurisdictions, like the European ones, where such licence is necessary), it amounts to a criminally relevant complicity. Otherwise, in a liberal society, it is not the responsibility of citizens performing normal, socially desirable services to play police and find out the perhaps malicious intentions of their clients. This objective assessment does not change without more with the existence of a mens rea on the part of the person making the contribution. Thus, mere awareness that the client misuses the service to commit a crime, e.g. awareness that the wife buys the bread to poison the husband with it, does not convert the per se neutral contribution into a criminal one. Subjectively more is required, namely that the accessory shares the criminal intent or purpose of the perpetrator, that is, s/he must pursue the same criminal purpose as the perpetrator. In national doctrine it has been argued insofar that the accessory’s contribution must possess a “deliktischer Sinnbezug” (C. Roxin, Strafrecht Allgemeiner Teil, Vol. II, München: C.H. Beck 2003, pp. 207 ff.), that is s/he must give his/her contribution a criminal meaning by solidarizing him-/herself with the perpetrator’s criminal purpose.

The reasons why we in these and other cases of per se neutral contributions tend to reject accomplice liability are thus of a normative nature. Those reasons are equally valid in the context of macro-criminality dealt with by international criminal law since Nuremberg, and have recently indeed been discussed in this context. ICC President and Judge Fernández de Gurmendi employed the term “neutral” contributions with regard to Art. 25(3)(d) ICC Statute in the Mbarushimana Appeals confirmation decision and referred, somewhat mysteriously, to “the normative and causal links between the contribution and the crime” (ICC-01/04-01/10-514, 30 May 2012, Separate Opinion of Judge Fernández de Gurmendi, para. 5 ff., at para. 12). Judge van den Wyngaert invoked the ICTY Perišić “specific direction” standard (IT-04-81-A, para. 44) as a follow-up to Judge Fernández de Gurmendi’s approach and required that the assistance within the meaning of Art. 25(3)(d) ICC Statute must be “specifically directed to the criminal or non-criminal part of a group’s activities” (ICC-01/04-01/07-3436-AnxI, 7 March 2014, Minority Opinion Judge van den Wyngaert, para. 287; see for a discussion with further references Ambos, in Stahn, (ed.), The Law and Practice of the ICC, OUP 2015, pp. 598, 600 ff.).

The same inherently normative reasoning applies to possible accomplice liability of members of humanitarian organisations which assisted in the evacuation of the civilian population in the case at hand. Here, too, normative considerations, albeit of a different nature, speak against a criminal accomplice liability of the staff of these organisations. The main argument against criminalisation is a sort of reduction of harm argument. The conduct of these organisations does not in any way increase the risk/harm of the civilian population but it reduces/diminishes it. They take care of the civilian population and make sure that the evacuation takes place in an orderly and, above all, humanitarian manner (in the same vein Pothelet, op.cit.). Thus, in principle, such a conduct should not be criminalised but praised. Of course, the legal qualification of the conduct of such organisations is always case- and context-dependent and there may be situations where they really lend their hand to criminal enterprises which may then give rise to accomplice liability.

Be that as it may, the Report’s bold punitive approach entails unintended consequences by the certainly well-intended members of the Commission. The purpose of this post is simply to create awareness of the problem among the relevant actors. A call for a more cautious approach to legal qualifications is certainly justified. Probably, it would be more prudent if such commission limit themselves to factual findings and leave the legal qualifications to the competent legal authorities. In the long run more concrete guidelines on how to handle these kind of cases implicating humanitarian action – certainly not limited to the Syrian conflict – are to be developed. Academics could assist in that regard. As a first proposition one could submit that there is a presumption of lawfulness in favour of the activity of these organisations as long as they act in accordance with their humanitarian purpose.

The views expressed are those of the author and do not necessarily reflect the views of the Kosovo Specialist Chambers.

A Proposal for a Multilateral Border Carbon Adjustment Scheme that is Consistent with International Trade Law if the Trump Administration withdraws from the Paris Agreement

EJIL:Talk! - Mon, 05/22/2017 - 16:21

On the campaign trail, President Trump repeatedly promised to “cancel the Paris Climate Agreement and stop all payments of US tax dollars to UN global warming programs”. He had previously called global warming a “hoax” and a “con” numerous times, and “a concept created by and for the Chinese in order to make US manufacturing non-competitive.” Although Trump quietly dropped his pledge to cancel the Paris Agreement from his 100-day “Contract with the American voter”, and has since said that he “has an open mind” on the Paris Agreement, there remains at present a fierce debate within his administration on whether to withdraw, with no final decision expected before the end of the G-7 summit on May 26 and 27.

The essential thesis of this blog post, which summarizes a longer paper available on SSRN, is that international trade law will permit border carbon adjustments (BCAs) on products from the US, if the Trump Administration withdraws from the Paris Agreement, so long as these schemes are well-designed to avoid the World Trade Organization (WTO) prohibitions on arbitrary or unjustified discrimination and on disguised protectionism, as interpreted by the WTO’s Appellate Body in its US–Shrimp report and US–Shrimp 21.5 decision. This post proposes a multilateral border carbon adjustment scheme (MBCA) that other countries could agree to impose on the US should it withdraw from the Paris Agreement.

The proposed multilateral border carbon adjustment scheme  

Form: A multilateral or plurilateral agreement within the framework of the Paris Agreement

Article 6 of the Paris Agreement recognizes that some parties may choose to pursue voluntary cooperation in the implementation of their carbon emissions targets to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity (Article 6.1), and mandates the creation of a mechanism to contribute to GHG emissions mitigation and support sustainable development (Article 6.4). This mechanism is not stated to be the exclusive means through which parties may pursue voluntary cooperation. The proposed multilateral border carbon adjustment scheme could therefore be agreed under the mechanism created under Article 6.4, or as a plurilateral agreement under Article 6.1 between countries that wish to take collective efforts to tackle climate change. While it would be preferable for the MBCA to be adopted by the Article 6.4 mechanism created by the Paris Agreement, it is arguably possible for the MBCA to be adopted under Article 6.1 of the Paris Agreement should non-state parties pressure states parties to block consensus within the Article 6.4 mechanism.

Design and structure

The proposed MBCA would distinguish between states parties to the Paris Agreement and non- states parties. In its simplest form, such a scheme could (a) exempt states parties from BCA, as they have committed to undertake efforts to reduce GHG emissions within the UNFCCC framework (i.e. by submitting carbon emissions targets (Intended National Determined Contributions or INDCs) within the framework of the Paris Agreement), while (b) permitting participating countries to impose BCA on products from non-states parties that have not committed to undertake efforts to reduce GHG emissions, subject to the principle of common but differentiated responsibilities and respective capabilities; and (c) create a rule enabling sub-national entities or foreign companies to apply for exemption from the MBCA if they participate in equivalent carbon pricing initiatives.

While ideally participating countries would agree on a common BCA measure, given the diversity in practice of carbon pricing initiatives and the necessity under international trade law of not imposing measures that unduly disadvantage imports against domestic production (e.g. by imposing a carbon tax of $20/ton of CO2 on imports when domestic carbon trading permits cost $10/ton of CO2), participating countries may find it difficult to develop a common BCA measure (which is not a “lowest common denominator”), but should (d) commit to imposing BCAs that are designed to ensure equivalent carbon pricing on their domestic production and imports from non-participating countries. This would have the effect of requiring exporters from non-states parties to either comply with the national carbon pricing regimes of all participating countries that they export to, imposing a regulatory burden on them; or to voluntarily participate in equivalent carbon pricing schemes.

Justifications

The MBCA should be justified on the basis of non-economic environmental reasons (rather than economic competitiveness reasons, in order to be international trade law compliant), such as internalizing the social cost of carbon, reducing carbon leakage, enabling wider and deeper emissions reductions within the regulating countries, incentivizing others to join the Paris Agreement, and ensuring that domestic consumers are not incentivized to buy products from countries that make no attempt to internalize the cost of carbon, and do not share the regulating countries’ commitment to reducing carbon emissions. These justifications and the structure of the MBCA demonstrate that the primary motivation behind the MBCA would not be concerns to protect the economic competitiveness of domestic industries (since countries that are party to the Paris Agreement which are doing less to internalize the cost of carbon would not face similar BCA), but to exclude non-states parties to the Paris Agreement from a benefit exclusive to states parties – exemption from BCAs.

Consistency of Proposed Multilateral Border Carbon Adjustment with International Trade Law

Because the proposed MBCA treats imports from countries which have submitted INDCs differently from imports from countries which have not, it would appear to violate the most-favored-nation obligation under international trade law (Article I of the General Agreement on Tariffs and Trade or GATT for short). However, the violation can be justified under the general exceptions regime to the GATT (Article XX) as being necessary for the protection of human, animal, or plant life or health, or relating to the conservation of exhaustible natural resources.

Jurisdiction: A “sufficient nexus”

Some might argue that countries should not be allowed to regulate activity (in this case, carbon emissions) that occur outside their territory or jurisdiction, essentially requiring their import sources to adopt similar conservation policies. This argument parallels the reasoning of the first Tuna/Dolphin Panel in the US–Tuna disputes, which prioritized the effectiveness of international trade rules over the conservation object, and attempted to limit the US’s right to regulate to matters within its territory. This Panel report was not adopted by the DSB, meaning that it has little precedential weight (as the US rejected this view). The better view, which was set out by the Appellate Body (AB) in its US–Shrimp report, is that countries may regulate activities outside their territory or jurisdiction and may even do so unilaterally, provided that there is a “sufficient nexus” between the territory or jurisdiction of the regulating country and the object of protection. Although the AB in US–Shrimp deliberately left open the question of whether there is a jurisdictional limitation on the reach of conservation policies justified by paragraph (g), there is no need for this question to be addressed when considering BCAs, as the DSB is likely to accept that there is a “sufficient nexus” between measures taken to protect the planet’s climate and the territory of the regulating countries (which will be affected by climate change).

Non-arbitrary and justified discrimination

The non-discrimination requirement in the chapeau of Article XX requires that the MBCA takes into account the local conditions in foreign countries, since discrimination occurs (a) when countries in which the same conditions prevail are treated differently; and (b) when the measure “does not allow for an inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries.” This principle aligns well with the principle of “common but differentiated responsibilities and respective capabilities” (CBDRRC), which calls for developed countries to take the lead in tackling climate change, while recognizing that developing countries may bear little historic responsibility for existing GHGs in the atmosphere and a lower ability to address carbon emissions while pursuing economic development (as manifested in Article 4 of the Paris Agreement). Hence, BCAs should take into account the CBDRRC principle, in order to avoid arbitrary or unjustified discrimination.

To avoid arbitrary or unjustified discrimination, AB jurisprudence in the US–Shrimp 21.5 report requires that the MBCA should not seek to rigidly impose one policy or measure on all countries, but allow for “sufficient flexibility in the application of the measure” for other countries to adopt programs “comparable in effectiveness”. While the MBCA cannot require that all other countries “adopt essentially the same policy” and refuse to take into account the “other specific policies and measure that an exporting country may have adopted for the protection and conservation of [the planet’s climate]”, the AB has stressed (in its US–Shrimp report) that “countries are free to adopt their own policies aimed at protecting the environment” and that importing countries may require exporting countries to maintain specific environmental policies and measures that are comparable in effectiveness in dealing with the policy concern it is invoking.

To strike the balance between recognizing the principles of non-discrimination and CBDRRC, giving exporting countries sufficient flexibility to adopt their own measures, while preserving importing countries’ right to regulate to protect the planet’s climate, the proposed MBCA would impose BCAs only on countries that have not submitted INDCs under the Paris Agreement, while allowing developing countries that are unable to submit INDCs to apply for exemption from BCAs. This proposal recognizes INDCs as each country’s attempt to pursue measures of “comparable effectiveness” in pursuit of the common object of protecting the planet’s climate, taking into account their different circumstances, while preserving importers’ right to impose regulation on exports from countries that do not adopt any measures to protect the planet’s climate. While the imposition of BCAs only on countries that do not adopt any measures to protect the planet’s climate is discriminatory, this can is arguably non-arbitrary and justified, and the WTO DSB is likely to find the proposed MBCA to be consistent with its jurisprudence to date, provided that it finds on the facts that that the proposed MBCA is designed and intended to protect the environment and not to protect the economic competitiveness of domestic industries, and the proposed MBCA meets its other standards.

The requirement for negotiations

Before the proposed MBCA is imposed, “serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements” that address climate change need to be undertaken, although those negotiations need not lead to the conclusion of agreements. The AB found the revised unilateral measures undertaken by the US examined in its US–Shrimp 21.5 decision to be justified under the chapeau, as long as the “ongoing, serious good faith efforts to reach a multilateral agreement continue.” Since the Paris Agreement is a multilateral agreement that represent the culmination of years of efforts to reach consensus on measures to address climate change, it arguably suffices for the imposition of the proposed MBCA on countries that refuse to submit INDCs or that leave the Paris Agreement, as long as the parties to the Paris Agreement make ongoing, serious good faith efforts to negotiate with these countries.

Design considerations that demonstrate environmental protection/non-economic competitiveness concerns

While the above design considerations should be sufficient for the proposed MBCA to pass muster under Article XX, additional design considerations will improve the chances that the WTO DSB will find that the measure is motivated by concerns to protect the planet’s climate, and not economic protectionist sentiment. Firstly, the MBCA should allow industries and sub-national entities within non-Paris Agreement countries to avoid BCAs by participating in equivalent carbon pricing schemes. Secondly, BCAs should only be imposed on imported goods, and there should not be attempts to subsidize or provide rebates to exports to countries with no carbon prices, as the intent and likely effect of this is to bolster exports, not to reduce emissions.

Finally, if the entire proceeds or a substantial part of the border carbon adjustment are transferred to a climate change mitigation or adaptation fund that provides assistance to affected countries, this would help the MBCA pass Article XX scrutiny, as well as improve its political acceptability to many of the developing countries opposed to BCAs.

Recommendations for the design and use of BCAs based on international trade law

To conclude, international trade law provides a number of rules and disciplines that will govern the design and use of BCAs, which make it difficult but not impossible to enact BCAs. These rules may be distilled into seven recommendations, which all BCA schemes should comply with, in order to maximize their compatibility with Article XX of the GATT:

  • Be justified on the basis of environmental protection rather than competitiveness concerns;
  • Be adopted within a multilateral framework (such as Article 6 of the Paris Agreement);
  • Be adopted alongside ongoing, serious good faith attempts at negotiating a solution with countries that the BCA would apply to (though such negotiations need not be successful);
  • Meet the WTO standards for basic fairness and due process, such as publication and the provision of a mechanisms for appeals;
  • Allow industries and sub-national entities within non-Paris Agreement countries to avoid border carbon adjustments by participating in equivalent carbon pricing schemes;
  • Take into account the principle of “common but differentiated responsibilities and respective capabilities” in order not to constitute an arbitrary restriction on developing countries with little historic responsibility for existing GHGs in the atmosphere and a lower ability to address carbon emissions while pursuing economic development; and
  • Only impose border carbon adjustments on imported goods (and not attempt to subsidize or rebate exported goods).

While the above recommendations should suffice to ensure that the WTO DSB finds the BCA to be consistent with international trade law, another recommendation that may greatly strengthen the political feasibility of a BCA is (8) transferring the proceeds of the BCA to a climate change mitigation or adaptation fund for affected countries.

The proposed MBCA has been designed to meet these recommendations, while targeting only countries that are not signatories to, or have withdrawn from, the Paris Agreement, and/or the UN Framework Convention on Climate Change. The possibility of BCAs being imposed on US exports should provide a strong incentive for the US to stay within both agreements.


 

Announcement: New Additions to the UN Audiovisual Library of International Law

EJIL:Talk! - Sun, 05/21/2017 - 10:30

New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Philippe Gautier on “1996-2016 : 20 ans de jurisprudence internationale relative au droit de la mer”, Dr. Jean Ho on “State Responsibility for Breaches of Investment Contracts”, and Professor Michael Ewing-Chow on “Coherence in Trade and Investment Law”.

A Turning of the Tide against ISDS?

EJIL:Talk! - Fri, 05/19/2017 - 08:00

The Court of Justice for the European Union fired a significant shot at investor-state dispute settlement (ISDS) this week, and the result is likely to be much more than just a flesh wound. In deciding that the European Union did not have exclusive competence to enter into agreements including ISDS clauses, the Court made it significantly more likely that the EU would jettison these clauses from its FTAs and seek to conclude separate, parallel agreements dealing with dispute resolution. Along with a series of other developments, this may mark a turning of the tide against the inclusion of ISDS clauses in trade and investment agreements.

Background to the European Court’s Opinion

The case concerned the European Union’s competence to enter into the EU-Singapore Free Trade Agreement. This is a newer style FTA that, in addition to covering classic trade issues, like reductions in customs duties, includes provisions on a range of other trade-related matters, such as intellectual property protection, investment, public procurement, competition and sustainable development. This FTA also included investor-state arbitration.

The question that the Court had to grapple with was whether the European Union had exclusive competence to enter into such agreements, or whether this competence was shared between the EU and the Member States (or even fell within the exclusive competence of the Member States), at least with respect to certain issues. The European Commission and Parliament wanted EU exclusive competence, but this received pushback from many of the Member States.

In many ways, the Court handed a significant victory to the European Union on these issues. Going further than had been suggested by the Advocate General’s Opinion in that case, the Court found that the European Union had exclusive competence over almost all aspects of the EU-Singapore FTA, which paves the way for them to enter into such agreements without requiring the approval of all of the Member States. But this general ruling was subject to two notable exceptions.

First, the European Union had exclusive competence over provisions concerning the protection of direct foreign investment, as provided for by the Lisbon Treaty, but not those concerning non-direct foreign investments (which are often referred to as “portfolio” investments that are made without any intention to influence the management and control of an undertaking). I’m not going to address that issue here.

Second, the European Union did not have exclusive competence to enter into treaties including ISDS provisions. The Court reasoned that the EU-Singapore FTA gave the claimant investor a choice between bringing a dispute before the courts of a Member State and submitting the dispute to arbitration. As the latter had the effect of removing disputes from the jurisdiction of the courts of the Member States, it could not be established without the Member States’ consent.

I am no EU lawyer, so I don’t plan to address the merits of the Court’s decision as a matter of EU law. In many ways, the Court seems to be reacting to the political controversy that has emerged about ISDS clauses, which often function as lightening rods for complaints about the excesses of economic globalisation. Instead, I am interested in what this ruling likely means for the future of EU Free Trade Agreements and the longer-term viability of ISDS clauses in trade and investment agreements more generally.

What does this mean for the future of EU FTAs?

One response to the Court’s decision would be for the European Commission to keep these broad newer style FTAs and simply accept that they must be approved by both the EU and the Member States as a matter of mixed competence. This option is relatively unattractive, however, as it is likely to lead to drawn out and messy political fights of the kind the European Union witnessed last year when ratification of its CETA agreement with Canada was almost derailed by the objection of the regional government of Wallonia in Belgium.

Another option would be to reverse the merger of trade and investment provisions into FTAs and go back to the earlier world of separate trade and investment agreements. This would mean cutting out the investment chapter and the ISDS clause from the main FTAs and making them subject to a separate agreement. This option would presumably be less attractive to the European Union given that it has exclusive competence over protections relating to foreign direct investments, even if not ISDS with respect to them.

The Commission could also try to make recourse to national courts a condition precedent to bringing an international claim and in this way seek to reinvolve national courts. But it isn’t clear that this approach would satisfy the concern that Member States need to consent to issues being removed from their jurisdiction if it would ultimately result in the introduction of an international level of dispute resolution to which they have not consented. Many developed states also have concerns about accepting the reintroduction of domestic remedies with respect to some of their treaty parties.

Instead, I think that the most likely response would be for the European Commission to remove ISDS clauses from these FTAs and make dispute resolution the subject of a side agreement. The main FTA could still include a chapter with protections relating to foreign direct investment. The EU could then have a parallel agreement or an optional protocol where the treaty parties agree to adopt a form of investor-state dispute settlement, most likely an investment court, with only that side agreement being subject to mixed competence. The main FTA could be ratified easily and it would stand regardless of whether, when or by whom the side agreement was ratified.

The European Commission now favours the use of an international investment court instead of investor-state arbitration, but this change would not in itself address the concern about Member States needing to consent to issues being removed from the jurisdiction of their national courts. Still, this ruling may well confirm the European Commission’s instinct that it should be working toward adopting a Multilateral Investment Court Convention along the lines of the Mauritius Convention that would be ratified by both the European Union and its Member States. Such a Convention could then be applied to the EU’s existing FTAs, including ones that do not provide for ISDS.

In some ways, entering into a single multilateral Convention would be easier than entering into side agreements for every FTA. But one would still expect that the European Union would start out with the side agreements given that no one knows whether, or when, an agreement might be reached on a Multilateral Investment Court. The European Commission also wants to get more partners on board with its court proposal and it would be seeking to do that through its existing FTA negotiations. So the separate agreements may well occur now while the European Union seeks to move forward on the multilateral reforms for the future.

What does this mean for ISDS clauses more generally?

This decision of the European Court is the latest development in a series of setbacks for ISDS clauses. A number of other states have actively rejected the use of ISDS clauses or significantly limited their scope. Notable examples include:

  • Brazil, which has never ratified an investment treaty providing for investor-state dispute settlement. More recently, it has started signing Cooperation and Investment Facilitation Agreements that encourage the use of alternative dispute resolution mechanisms, such as conciliatory settlement of disputes through Ombudsmen that are subject to a Joint Committee of the treaty parties, and ultimately permit state-to-state arbitration but not investor-state arbitration.
  • South Africa, which began a process of terminating its investment treaties in 2012 and in their place has passed the Protection of Investment Act 22 of 2015, which gives primacy to domestic remedies, including mediation and domestic courts. This Act provides that South Africa may consent to international arbitration over an investment dispute, but this would be subject to exhaustion of domestic remedies and would also take place on a state-to-state, rather than an investor-state, basis.
  • India, which radically revised its Model BIT in 2015, to significantly limit access to ISDS. Before an investor can bring an investor-state claim under the Indian Model, it must first seek to exhaust domestic remedies for a period of up to five years. It may then proceed to arbitration, subject to a six-month negotiation period, provided that it brings the claim within six years of knowing about the measure that it is complaining about. These tribunals are also not permitted to review the merits of a decision made by domestic courts.
  • Australia, which has adopted some FTAs (e.g., with the United States and Japan) that do not include ISDS clauses.
  • Ecuador, which recently terminated 16 of its investment treaties, following the recommendation of a national Commission that Ecuador pursue new treaties that exclude investor-state dispute settlement mechanism and instead provide investors with access to national courts.

 Perhaps one of the most significant effects of the European Court’s ruling will be to give cover to other states that are wishing to hit the pause button when it comes to ISDS clauses. At the moment, states have to buck the general trend if they wish to actively reject the use of ISDS clauses. This carries with it some stigma. But, with the European Union having to reconsider its approach, the exclusion of ISDS clauses from FTAs might become more mainstream and politically acceptable. Some states might happily put dispute resolution in a side agreement and then fail to ratify that side agreement or be pleased if the EU Member States failed to do so.

States often find safety in numbers and they are typically conscious of the company they keep. If more states start not including ISDS clauses in their FTAs and investment agreements, and the reasons for doing so become more varied, other states may feel comfortable in making the same choice without the fear that they will be brandished as unfriendly to investors. If so, the decision of the European Court may well end up being the tipping point against the inclusion of ISDS clauses in modern FTAs and other investment agreements, in Europe and beyond. And this may also serve as further impetus for the European Union to pursue a multilateral convention on investor-state dispute resolution.

Forcible Humanitarian Action in International Law- part II

EJIL:Talk! - Thu, 05/18/2017 - 08:00

Part II of a Two-Part Post

Interpreting Article 2 (4) of the UN Charter

According to the concept of representation noted in Part I, forcible humanitarian action is not intervention or a prima facie unlawful use of force, given the actual or implied consent of the true sovereign. However, even if forcible humanitarian action is considered an instance of the use of force that requires justification, it is still lawful.

Article 2(4) of the UN Charter precludes the threat or use of force against the territorial integrity and political independence of any state, or in any manner inconsistent with the purposes of the United Nations. The reach of that obligation has been debated since the inception of the Charter. Some argue that Article 2(4) did not affect pre-existing customary law, which permitted forcible humanitarian action, much like Article 51 of Charter on self-defence has not overturned the conditions for the exercise of that right expressed in the Caroline formula of 1841/2.

Others claim that Article 2(4) was meant to impose a blanket prohibition of the use of force, save for self-defence and action mandated by the UN Security Council under Chapter VII of the Charter. This is countered, however, with reference to the fact that Chapter VII never came into full operation, at least during the Cold War years.

Even after the termination of the Cold War, collective action has often been precluded by the particular interest of the one or other permanent member of the Council holding a veto. This would leave populations without the protection of international action which was assumed to be available when Article 2(4) was drafted. It would be manifestly unreasonable to leave them exposed to destruction merely due to the peculiar interest of the one or other powerful state exercising a capricious veto. It is implausible that the drafters of the UN Charter might have contemplated such a result, the world having just emerged from the experience of the holocaust.

Even if this had been the case, important changes have occurred since the end of World War II. It is broadly accepted that the UN Charter is a living instrument and there are many instances of its evolving interpretation. Article 2(4) itself opens up this prospect by suggesting that only uses of force ‘inconsistent with the purposes of the Charter’ are precluded. The increased emphasis on human rights and the changing appreciation of the nature of sovereignty alluded to above make it impossible to argue that forcible humanitarian action could be considered inconsistent with the purposes of the Charter. This is confirmed in international practice.

Practice and the Development of Custom

The Security Council has enacted forcible humanitarian action in some 30 cases. Clearly, this practice has confirmed the authority of the Council in this regard. But this practice is also relevant in a broader sense. It represents the universal and collective will of the organized international community to act on behalf of threatened populations in cases of overwhelming humanitarian emergencies. The Council has been enacting the changed understanding of sovereignty and of representation noted above also in relation to humanitarian emergencies. There is no reason to question that this practice, although administered through the Council, confirms and strengthens the underlying doctrine of forcible humanitarian action on which is it based, much as the Council has done when acting in relation to colonialism, armed occupation and the other types of cases it has addressed.

Some states have insisted that the Council should declare that each resolution individually should not be taken as a precedent. Such an attitude rings hollow if repeated again and again. The consistency of the practice and of the universal determination to address overwhelming humanitarian emergencies, forcibly if necessary, can no longer be denied.

This fact is reinforced by positive international standards in favour of forcible humanitarian action. The Constitutive Charter of the African Union expressly mandates the organization to undertake forcible humanitarian operations. This is reflected in a whole series of implementing instruments.

Moreover, sub-regional organizations have undertaken forcible humanitarian operations, either beyond existing Security Council authority (Sierra Leone) or before such authority was obtained (Liberia). There has been no international condemnation of these actions.

Similarly, the humanitarian operations of states and coalitions of states have passed with international approval, or unremarked, as occurred in relation to the two instances of forcible humanitarian action concerning Iraq of 1991 and 1992 respectively.

It is true that the armed action by NATO in relation to Kosovo gave rise to international debate, and was rejected by a number of states, including larger groupings of states such as the Neutral and Non-aligned Movement or the Islamic Conference. However, the value of such group-pronouncements may be doubted. Several of the states voting for these documents actually opposed condemnation of the action in the Security Council, where a Russian initiative to that end was defeated by a spectacular vote of 3 in favour and 12 against, and others still have in fact supported forcible humanitarian actions, such as the ECOWAS operations initially conducted without a Security Council mandate.

Rather than as a mark of division, the Kosovo case may be seen as an initial point impelling states to express themselves formally in favour of forcible humanitarian action as a matter of law. Indeed, it is a myth that only the UK and Belgium have endorsed forcible humanitarian action as a matter of law. The list of positive endorsements also includes Denmark, Hungary, Latvia, Netherlands, Spain, Saudi Arabia and Sweden, with Australia having found the doctrine to be emerging in law and Canada having taken the initiative which led to the adoption of R2P. A very significant number of additional states professed understanding for, rather than uttering condemnation of, the action.

When seen against the actions of the Security Council, the range of support for forcible humanitarian action in overwhelming humanitarian circumstances appears broad. This is even exceeded by international support for R2P, which was universally endorsed at the UN World Summit of 2005. Although focused on Security Council action as a matter of process, the underlying sense that the authority of the government can be overridden in extreme cases is confirmed.

If, as is maintained here, the legal basis for this phenomenon is representation, rather than an exception to the prohibition of the use of force, no new rule of custom would need to be found to exist. Similarly, no such new rule or exception would need to be consecrated if forcible humanitarian action in customary law had remained unaffected by the adoption of the UN Charter. Even if neither of these two positions were accepted, at least it is difficult to deny that there is an emerging rule, based on this practice and opinio juris.

The Jus Cogens Question

Some doubt that support for forcible humanitarian action is sufficient to constitute a new rule of custom. Even if there were sufficient support, they add, it would lack the demanding characteristics of uniformity and special opinio juris required of a change to the prohibition of the use of force, which is undoubtedly a jus cogens rule.

This argument is indeed decisive, although it works the other way. It is indeed unquestioned that the prohibition of the use of force is a jus cogens rule. A jus cogens rule is one from which no derogation is permitted. A legal instrument containing a provision offending against jus cogens is null and void in its entirety.

No-one has argued that the Constitutive Charter of the African Union is a legal nullity, given its endorsement for the doctrine of forcible humanitarian action.

Moreover, states are required to resist serious violations of jus cogens by failing to recognize the result of the violation, abstaining from providing assistance in maintaining it, and acting together in overturning that result. The UN has not opposed, but formally endorsed, regional action in relation to Liberia and Sierra Leone. While not endorsing coalition action in relation to Iraq, it has nevertheless taken over the humanitarian operation commenced by the intervening states through the deployment of UN guards, rather than seeking to overturn the outcome of the operation. Similarly, the UN literally administered the result of NATO action concerning Kosovo over close to a decade, in accordance with Security Council Resolution 1244 (1999). The end-result, Kosovo independence, occurred with active UN involvement, in consequence of a UN-sponsored status process.

All of these facts conclusively demonstrate that forcible humanitarian action cannot be prohibited by the jus cogens rule of the prohibition of the use of force reflected in Article 2 (4) of the Charter.

This overall finding is now also increasingly reflected in scholarship. While this is of course not a scientific test, during the Cold War years, opposition to forcible humanitarian action stood at a ratio of about two to one, with a further group arguing that action would be at least legitimate, if not lawful. Now, the figures are reversed. Opposition stands at about one third, with about a third supporting the doctrine, and a further third arguing that it is emerging, or that forcible humanitarian action is at least legitimate.

Process Issues and the Risk of Abuse

There is of course a clear preference for action through the Security Council. Some opponents to unilateral forcible humanitarian action would at least admit the doctrine if the UN General Assembly endorsed action in the event of the Council veto. This admission too strengthens the case in support of forcible humanitarian action as a matter of law.

The General Assembly has no authority to authorize the use of force that is not already permitted in international law. In endorsing humanitarian action in individual cases, it rather serves to authenticate the facts which trigger the application of the authority to use force, confirming the underlying legal basis in general international law.

This process function is not confined to the UN General Assembly. It can be exercised by other, best placed, international agencies, including the Security Council making a determination of that kind without granting a mandate, potentially regional organizations, or possibly even particulary well-placed and well-respected UN expert bodies or Rapporteurs of independent standing.

This requirement to obtain external validation of claims of fact, coupled with clear legal criteria for action, adds a useful safeguard to the application of the doctrine. Of course, all legal justifications for the use of force can be abused. Virtually all unlawful uses of force have been defended as self-defence by the perpetrators. But this does not mean that self-defence cannot exist as a legal justification. Instead, the existing legal tests for forcible humanitarian action, which cannot be reviewed here for reasons of space, have proven robust. They have, for instance, helped identify the abusive invocation of that doctrine in relation to Georgia, while helping to defeat the wrongful condemnation of operations undertaken for genuine humanitarian purposes.

The problem with the doctrine of forcible humanitarian action is thus not its frequent abuse. Rather, the problem is the fact that governments, acting in the Security Council or outside of it, have been reluctant to devote lives and treasure towards its application where genuinely overwhelming humanitarian circumstances so demand.

Mr Jake Rylatt kindly offered corrections and comment.

Forcible Humanitarian Action in International Law- part I

EJIL:Talk! - Wed, 05/17/2017 - 08:00

Part I of a Two-Part Post

There is a widespread myth amongst international lawyers. This is the apparently unshakeable proposition that forcible humanitarian action is clearly unlawful. Any changes to that proposition would be impossible, given:

  • The preponderance of the doctrine of sovereignty over countervailing considerations, such as human rights;
  • The requirements for the formation of a new rule of customary international law in favour of forcible humanitarian action;
  • The additional requirements involved in any change to the prohibition of the use of force, which unquestionably enjoys jus cogens status; and
  • The supposedly inevitable abuse of the doctrine.

The recent blog debate about the cruise missile strike in connection with the use of chemical weapons in Syria offers an example of this, starting with a presumption against forcible humanitarian action that can hardly be overcome ( see herehere, here, here and here).

That default proposition may have been persuasive to some during the Cold War years. However, it can no longer be maintained. For it is not in accordance with an unbroken understanding of the relationship between the state and its population since the emergence of states and the doctrine of sovereignty in the renaissance, it disregards very clear evidence of international practice, and it ignores very fundamental shifts in legal doctrine and scholarly opinion.

Balancing Sovereignty and Human Rights?

The first myth is that forcible humanitarian action is the invention of powerful, imperialist states, aiming to force their interest on others. There are in fact very few international legal precepts enjoying the unbroken and impressive legal pedigree that adheres to the principle of forcible humanitarian action since the very foundation of international law during the renaissance. While the relationship of loyalty between monarch and citizens made it difficult for a range of classical authorities to endorse a right of populations to resist their own, personal sovereign, there was near unanimity of view that other sovereigns, or states, did have a right or duty to act on behalf of manifestly mistreated populations.

Contrary to prejudice, this view was not overturned by the advent of the doctrine of sovereignty. Jean Bodin, taken by many as the originator of the doctrine of absolute sovereignty, himself very clearly admitted a right to forcible humanitarian action. His views were nearly unanimously adopted by the principal authorities in international law during the absolutist age, including Zouche, Gentili, Grotius and Vattel. When nationalism and enlightenment social contract theory fused in the nineteenth century to consolidate a view of mono-dimensional sovereignty, the doctrine of forcible humanitarian action remained dominant. This view prevailed up to the League of Nations period, as is evidenced in Stowell’s vast treatment of practice and doctrine of that time.

Subsequent hostility to the doctrine was in line with the demands of the Cold War era. During this period, much reference was made to self-determination and the rights or people freely to choose their economic, political and social system. However, in practice, governance was not questioned. Instead of legitimacy of the exercise of state authority, the doctrine of effectiveness prevailed. Self-determination in its internal sense was translated into a doctrine of non-intervention which protected and preserved whatever authority might have managed to capture power, rather than the rights and interests of the people. As the Cold War was a violent contest about social systems and the nature of governance, it is no wonder that the issue of the manifest abuse of governmental power had to be effectively excluded from international law.

However, with the end of the Cold War, the principle that the authority to govern is based on, and must be limited by, the interest of the people has gained in prominence again. The question of forcible humanitarian action represents the sharp end of that development.

Already in 1999, in the wake of NATO action in relation to Kosovo, then UN Secretary-General Kofi Annan, referring to the ‘developing international norm in favour of intervention to protect civilians from wholesale slaughter’ noted that ‘state sovereignty, in its most basis sense, is being redefined … . States are now widely understood to be instruments at the service of their peoples, and not vice versa’ [Kofi Annan, ‘Two Concepts of Sovereignty’, The Economist, 16 September 1999].

It has of course long been recognized that the principle of state sovereignty is subject to human rights and elementary considerations of humanity. The principle of non-intervention expressed in Article 2(7) of the Charter and customary international law does not preclude international interest or even action in relation to manifest abuses against a population perpetrated by its own government.

This universal interest in violations of this kind is recognized through the doctrine of serious violations of peremptory norms in international law. Violations of these most fundamental and universal rules of humanity expressly affect the ‘international community as a whole’ and permit an international response. States are under obligations not to recognize the situation that obtains from such egregious violations, not to assist the state concerned in maintaining that situation in place, and to cooperate in seeking to overturn it.

The UN Security Council has recognized, as early as 1992 in relation to the grave humanitarian crisis in Somalia, that circumstances of extreme humanitarian emergency constitute not only an affront against universal moral and legal principles, but that they can amount to a ‘threat to international peace and security’ [SC Resolution 794]. This technical legal term from the UN Charter describes the most severe form of challenge to the international legal order—so severe that it can be addressed through forcible collective measures.

Some argue that sovereignty, or at least reliance on the doctrine of non-intervention, are suspended where a government manifestly mistreats its own population. Others note that human rights trump sovereignty where the two clash. However, it may be somewhat antiquated to assume that sovereignty and the rights and interests of citizens stand in opposition. Instead, the essence of sovereignty lies in the state function of securing the rights and interests of the true sovereign—the population. The powers of the state and government are dedicated towards, derived from, and conditioned by, this requirement.

The shift in the interpretation of sovereignty away from a right dedicated to the preservation of governments, however abusive, to a doctrine that seeks to empower and protect populations is of course evident in the inauguration of the doctrine of responsibility to protect (R2P) and its endorsement by the international community as a whole. That doctrine holds that governments are required, in the first instance, to ensure the survival and, to the extent possible, the wellbeing of the population. Where they are manifestly unwilling or unable to do this, other agents of the international system, in particular the Security Council, can step in and discharge this obligation.

A Theory of Representation

This proposition accords with long-standing trends in the development of international law. These are instances where the effective authority of a government does not translate itself into an exclusive right to represent the state or its population to the full:

  • It is axiomatic that colonial rule, however effective, does not translate itself into full powers to represent the colonial population internationally, in view of the universal rejection of the practice of colonialism. The UN established the UN Council for Namibia to substitute for the effective but unlawful South African authorities;
  • Armed occupation too does not result in power to represent, given the imposed nature of governance, as was demonstrated when the government of Kuwait continued to represent the state after it had been entirely submerged in unlawful Iraqi occupation;
  • Persistent internal armed conflict involving long-term loss of control over significant parts of territory or population will result in partial loss of the power of the government to represent the state in relation to the use of force issue. This is evidenced by the routine practice of the UN Security Council of imposing arms embargos on both the government and the armed opposition (Syria being the exception, due to the application of a double veto) until fresh elections have been held;
  • A government, however effective, brought into power by a counter-constitutional coup or maintained in power by failing to implement an election result, is not taken to represent the state, as has been demonstrated by a series of some 20 cases of action by the Security Council following the case of Haiti (1994) and by the African Union. Manifestly, a government that overturns the social contract it is meant to administer, or which has just been directly disowned by the population in elections, cannot claim to represent that population;
  • Arguably, a government loses full authority to represent in the wake of very widespread public dissociation from it, answered by unconstitutional or internationally unlawful means, as occurred when the National Transitional Council of Libya obtained widespread recognition from States, the African Union, the EU and even the Libyan seat in the UN by 114 votes to 17, with 14 abstentions [GA/11137, 16 September 2011]; and
  • International action can be taken directly on behalf of threatened populations in the wake of governmental collapse, as was the case in Somalia from 1991 onwards.

The same applies in cases where a government actively destroys or forcibly displaces a population or significant population segment, or denies to it what is necessary for its survival. The government destroying a population simply cannot at the same time rely on the legal expression of the collective rights of that population in the shape of the doctrine of sovereignty and non-intervention to exclude action necessary for the survival of that population. Instead, as R2P suggests, action can be taken directly on behalf of the true sovereign, the population. The use of force in such instances is thus justified by virtue of the actual or implied consent of the actual sovereign, the population. It is manifestly reasonable to imply that, at a minimum, a population would wish for action preserving it from destruction—forcible humanitarian action does not justify action going beyond that immediate aim. It would on the other hand be absurd to require the consent for international action to preserve the population from the very government intent on destroying it.

Mr Jake Rylatt kindly offered corrections and comment.

China’s ‘One Belt, One Road’ Initiative: Can A Bilaterally-Negotiated ‘Globalization 2.0’ Internalize Human Rights, Labor, and Environmental Standards?

EJIL:Talk! - Tue, 05/16/2017 - 00:00

Over the weekend, while the world’s largest economy was focused on internal fallout from the presidential sacking (and subsequent threatening) of the United States’ FBI Director (and amid calls for impeachment of President Trump), China hosted its ‘One Belt, One Road’ Summit, grandly showcasing its US$1 Trillion spending plan for transport and other infrastructure connectivity projects throughout Asia, Africa, and Europe.  (See map below of covered countries in the One Belt, One Road initiative covering six east-west or north-south transregional corridors, affecting 4.4 billion people, and around 65 countries.  Also available here.)

On its own, the scale, frequency, magnitude, reach and undisclosed duration of the One Belt, One Road initiative significantly outspends traditional project-by-project development finance decisions of established international financial institutions such as the World Bank and the Asian Development Bank, with its funding sourced from the China Development Bank, the China-led Asia Infrastructure and Investment Bank, four state-owned commercial banks, China’s Export-Import Bank, and China’s Silk Road Fund.  The One Belt One Road initiative has been hailed as “perhaps the world’s largest platform for regional collaboration”, with Chinese President Xi Jinping declaring that the initiative underscores “the need to improve policy coordination and reject beggar-thy-neighbor policies…[the] need to seek win-win results through greater openness and cooperation, avoid fragmentation, refrain from setting inhibitive thresholds for cooperation or pursuing exclusive arrangements and reject protectionism.”  While Human Rights Watch raised concerns about the long-term and short-term human rights impacts of the behemoth development projects under the One Belt, One Road initiative, others have raised geopolitical caution with a China-dominated global development trajectory.

No other country will be in a position to directly influence regional and/or global development outcomes, with projected greater impact than the United States’ reconstruction assistance to Europe under the Marshall Plan.  The irony here is that while the United States under the Trump administration may keep publicly lionizing the virtues of bilateralism in the international economic order by threatening to withdraw from (or when that proves difficult, settling on renegotiating) the terms of multilateral trade (whether under the World Trade Organization or the North American Free Trade Agreement), China is literally leading the path through a bilaterally-negotiated ‘Globalization 2.0’ through its One Belt, One Road Initiative.  While much of the technical contours of One Belt, One Road projects remain undisclosed, this post examines some aspects of the rising de facto Chinese global monopoly on bilaterally-negotiated development finance standards and foreign investment governance.

The One Belt, One Road Public-Private Paradigm 

The World Economic Forum praised five virtues of the public-private partnership paradigm under the One Belt, One Road initiative: “1) based on a multi stakeholder approach, which is conducive to dialogue, multilateral cooperation, and long-term shared interests; 2) leverages market forces while promoting greater social inclusion and risk resilience; 3) helps prepare economies for the Fourth Industrial Revolution; 4) is based on an ‘open platform’ concept which could enable increasingly dynamic interaction and innovative outcomes; and 5) represents a positive message for resetting the world on a path towards shared value and global harmony.”  While these virtues sound enticing, the lack of public transparency or specificity about project terms of reference under the One Belt, One Road’s program scope raises questions on how to truly operationalize an ‘inclusive’ and multi-stakeholder approach, especially since the financing country is of course expected to have more bargaining leverage than the recipient country over the terms of a China-financed infrastructure project.  As a Chinese scholar put it in regard to China’s development projects in Africa:

“China’s intention in Africa is benign. Beijing has no intention to colonize the continent, dictate the politics or economy of the local countries or deprive them of development opportunities. On the contrary, China truly sees itself as Africa’s “brother” and hopes to help African countries develop through infrastructure projects. Beijing seeks an approach different from that of the West, one that avoids the “meddling” with the internal affairs of African countries through conditional aid. In the last several years, China has contributed significantly to the economic growth of some of Africa’s poorest nations. China wants to see a prosperous Africa, which is beneficial to China’s interests as well.

However, this does not mean China is being altruistic. Helping Africa is important, but China would not do so if it had nothing to gain.  Indeed, China emphasizes that any bilateral relationship has to be mutually beneficial. And China’s investment in Africa does pay itself back in multiple ways economically: development and exploitation of Africa’s natural resources, access to local market, employment opportunities for Chinese labors and service contracts for Chinese companies on infrastructure projects that China funds. When Chinese officials emphasize that China also invests substantially in countries that are not rich in natural resources to defuse international criticisms, they often forget to mention that China also has its eyes on other things that these countries can deliver, such as their support of Beijing’s “one China” policy, of China’s agenda at multilateral forums and of China as a “responsible stakeholder”.  While there is nothing wrong with not being altruistic in one’s motives, it should be noted that China is not helping Africa in exchange for nothing.” (Italics added.)

To the extent that developing nations covered under the One Belt, One Road initiative are able to realistically negotiate the terms of development finance-based infrastructure and transport projects, can they do so in a manner that internalizes their international environmental legal obligations, such as conducting the required due diligence and environmental impact assessments, ensuring wildlife conservation and regulating the pace and manner of resource use to avoid exploitation?  As a recent study significantly pointed out, “China-led infrastructure projects need not lead to widespread environmental damage when nearby ecosystems are appropriately protected, and domestic environmental governance plays a crucial role in shaping forest cover outcomes.” Accountability in Foreign-Financed Infrastructure Projects

Others have argued that domestic labor or social safeguards are not the responsibility of Chinese concession operators and funders, which only makes it all the more imperative for China’s bilateral partners under the One Belt, One Road initiative to themselves act to ensure that international environmental, labor, and social safeguards form part of their domestic regulatory frameworks.  In this respect, China’s bilateral partners under the One Belt, One Road initiative have to be mindful of their obligations to regulate business activities in a manner that internalizes human rights as part of the proposed regulatory framework of any public-private partnership project.  In particular, under the International Covenant on Economic, Social and Cultural Rights (where significantly, China has been a State party since 2001), it would be relevant for the host country of the One Belt, One Road initiative project, to also consider the current draft General Comment on State Obligations under the ICESCR in the Context of Business Activities, which was recently introduced in the latest session of the Committee on Economic, Social and Cultural Rights in February 2017 by Rapporteurs Olivier de Schutter and Zdzislaw Kedzia:

The obligation to respect [the International Covenant on Economic, Social and Cultural Rights] is also violated when States Parties facilitate a violation of the Covenant rights by third parties, including business actors. For instance, forced evictions often occur in the context of investment projects, accompanied by the State failure to intervene or provide victims with access to remedies. In a number of cases, States Parties have seized land that is crucial to certain individuals or communities and to their enjoyment of Covenant rights in order to make it available to investors and businesses.

Furthermore, a State failure to adopt and implement effective measures to prevent businesses from violating Covenant rights may constitute a violation of the obligation to respect. Covenant rights may be abused by, for instance, lowering the criteria for approving new medicines or granting exploration and exploitation permits for natural resources without giving due consideration to the potential adverse impacts of such activities on the individual and community’s enjoyment of Covenant rights. The Committee also notes that corruption of public officials often facilitates and enables such failure by States Parties to respect the Covenant rights. In addition, judicial corruption results in impunity for business actors and injustice for victims without access to effective remedies.

The obligation to protect means that States Parties must effectively prevent the infringements of economic, social and cultural rights in the context of business activities, both domestically and, to the extent compatible with international law, extraterritorially. The obligation to protect requires States Parties to adopt legislative, administrative, educational, as well as other appropriate measures, to ensure effective protection against Covenant rights violations linked to business activities. This obligation also requires States Parties to ensure that businesses exercise due diligence in order not to impede the enjoyment of the Covenant rights of those who depend on their business activities or who may be negatively affected by them. As part of this obligation to protect, States Parties must also provide victims of such business abuses with equal and effective access to remedies.

The obligation to protect entails a positive duty to establish clear human rights standards for business actors and regulate relevant activities by adopting legislative and other measures. To this end, States Parties should adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent, mitigate, as well as to account for the negative impacts caused by their decisions and operations on the enjoyment of Covenant rights. In addition, States Parties should also require businesses, if needed, to adopt human rights based codes of conduct for their management and employees; impose criminal and administrative sanctions and penalties for violations by business of the Covenant rights; enable civil suits by victims of rights violations against perpetrators; revoke business licenses and subsidies, if and to the extent necessary, from repeat offenders; and revise relevant tax codes to deny business exemptions in case of human rights violations and to align business incentives with human rights responsibilities. The obligation to protect also requires States Parties to monitor the impacts of business activities on the enjoyment of economic, social and cultural rights, to regularly review the adequacy of laws and identify and address compliance and information gaps and emerging problems.” [Italics added. Committee on Economic, Social and Cultural Rights, General Comment on State Obligations under the International Covenant on Economic, Social, and Cultural Rights in the Context of Business Activities, paragraphs 15 to 18, E/C.12/60/R.1, 17 October 2016, prepared for the Sixtieth Session of the Committee on February 2017.]

Finally, it bears stressing that the kind of long-term infrastructure projects contemplated in the One Belt, One Road initiative will expectedly carry various kinds of risks – project risks, political risks, credit or currency risks, social risks, among others – and it is important to determine the lines of accountability between China and all the countries participating in the One Belt, One Road initiative, particularly with respect to issues such as project risk sharing; risk-mitigation measures permitted under foreign investment project contracts; host country oversight over the content and implementation of foreign-financed infrastructure projects; political risk insurance; possibilities for shared technology transfers, among others.  Many (if not all) of these projects will most likely be covered and/or protected within the terms of China’s (currently 145) bilateral investment treaties with developing countries covered in the One Belt, One Road initiative.  In light of recently demonstrated African trade deficits with China; the alleged ‘dark side of Chinese infrastructure’ supposedly due to inefficiencies and other project pathologies; China’s critiqued track record on infrastructure projects in countries such as Venezuela, Sri Lanka, and Myanmar (among a corpus of infrastructure projects deemed to have “destroyed, and not generated, economic value”), it may also be prudent to ask the extent to which there would be any Chinese sovereign control, oversight, influence, or any lasting preferential arrangements for China over these ‘trans-regional corridors’ after infrastructure projects are completed, especially if they stand to strategically alter the terms of the level playing field of foreign market access envisaged under the world trading system.  Would the One Belt, One Road initiative be another demonstration of “China’s emerging institutional statecraft“?

It would also be an appropriate time for One Belt, One Road initiative recipient countries to review and revisit the terms of their bilateral and/or regional investment treaties with China, to determine the extent to which their regulatory powers as host States of investment are affected (if at all); to determine their institutional, practical, and legal ability to defend against any possible investor-State claims in the future over the long-term implementation of One Belt, One Road initiative projects; and to evaluate the suitability of their current regulatory environments and institutions to the long-term infrastructure concession and connectivity projects contemplated.

What Kind of Development Will the One Belt, One Road Initiative Create?

The One Belt, One Road Initiative may indeed lead the world towards its “Fourth Industrial Revolution”, but the lack of other truly competitive sources of foreign financing is what ultimately reinforces China’s monopolistic advantage over foreign-financing of infrastructure and connectivity projects. It should also serve as a prudential warning for developing countries, to be vigilant about their own regulatory environments and institutional capacities and to avoid “neocolonialism” achieved through negotiating disparities in bilateral arrangements.  Directly internalizing international economic, social, and cultural rights, international labor agreements, and international environmental agreements – (to many of which China is already a State party, see here, here and here) into the long-term domestic regulatory frameworks governing One Belt, One Road projects is one way of redressing the bargaining imbalance for developing countries and ensuring mutual accountability for all global partners in China’s push as a ‘responsible power’ driving ‘Globalization 2.0’ bilaterally through the One Belt, One Road initiative.

In December 2016, China publicly articulated its philosophy, contribution, and practice on the right to development.  It is also up to China’s partner countries in its One Belt, One Road initiative to be active investment partners conscious of their duties to ensure the protection of this “inalienable human right [to development] 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 realized…[which] also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.” (Declaration on the Right to Development, Articles 1.1 and 1.2).  Calling for the transparency of One Belt One Road projects, and the internalization of human rights, labor standards, and environmental duties under international law in all projects, is one concrete way for developing country states partnering in the One Belt, One Road initiative to realize the right to development of the 4.4 billion persons that stand to be affected by this global program of development for generations to come.

Is International Investment Law moving the ball forward on IHRL obligations for business enterprises?

EJIL:Talk! - Mon, 05/15/2017 - 08:41

The question of whether businesses are subjects of international law in the absence of express treaty provisions to that effect, and thus can have IHRL obligations, receives mixed answers from legal scholars. Rights granted to businesses under international investment law and under human rights law, and obligations imposed on them under some environmental protection treaties (e.g. the International Convention on Civil Liability for Oil Pollution Damage) show that businesses can be right or duty bearers under international law. The UNGPs also recognise that businesses have a responsibility to respect human rights and remedy violations, but since they are non-binding, they do not introduce a legally enforceable obligation. Since 2014, discussions for a global treaty regulating business impact on human rights have been taking place at the UN level. There is yet little clarity on the form (regional, sectoral, global) and content of such a treaty. Among the key disagreements as to the content of the treaty is whether it should introduce direct human rights obligations for businesses under international law. Some argue that imposing direct IHRL obligations on businesses would not add much to the already existing IHRL framework that requires states to already protect against human rights abuses by business, and that it should not be a “substitute for the states’ duties to fulfil their human rights obligations”. Others argue that effective legal protection requires legal responsibilities of businesses to respect human rights to be recognised in an internationally binding instrument.

While the debate on the BHR treaty is likely to continue for a while longer, some recent developments in international investment law (IIL) seem to be moving the ball forward, albeit slowly, on IHRL obligations for businesses. IIL has been viewed by some of its critics as a force undermining IHRL and this is rightly so in some circumstances. But IIL can also act as a conduit to improve IHRL protection. I will discuss here some of the progress made in this area by the ICSID award in Urbaser v Argentina and some “next generation” investment agreements, most notably, the Morocco-Nigeria BIT and the Indian Model BIT.

Direct IHRL obligations for businesses

It is well-established that states have a duty to protect against human rights abuses committed within their territory by businesses. To fulfil this duty, they are required to appropriately regulate business activities and provide effective remedies to victims of business related human rights abuses. In an ideal world, this could have sufficed to prevent and remedy negative impacts of business on human rights. But in our not so ideal world, the territorial nature of the state’s duty to protect and the lack of clear international law on the question of direct human rights obligations for business cause challenges in holding certain businesses accountable for their adverse impacts on human rights.

Many, but certainly not all, business related human rights abuses are committed by businesses operating on a cross-border basis, many of them benefitting from IIL protections. Many of the most egregious abuses are committed in overseas operations of investors that have their headquarters in the global north. When victims face difficulties in accessing remedies in the host state, the alternative route for accountability is the home state. But, the territoriality rule places limitations on holding these investors liable in their home state for abuses committed overseas. While this could be overcome by exercising jurisdiction over such investors under the ‘nationality’ principle, since international business often operates through subsidiaries, the separate legal personalities of these entities act as an obstacle to taking the ‘nationality’ route. Unless states voluntarily regulate extraterritorially (e.g. the UK Bribery Act 2010 or the French Duty of Vigilance Legislation), the accountability gap created by the territoriality principle remains.

If home states choose not to regulate extraterritorially in this area in their domestic law, could introducing direct IHRL obligations for businesses alone be a solution? Recognizing human rights obligations of businesses in international law, if accompanied by the right to seek remedies in home states could be effective in closing the accountability gap in this field. It appears that IIL might have a role to play in moving in that direction.

Recent developments in IIL                             

Two developments in IIL seem to be moving the ball forward on IHRL obligations for businesses. The first one is the recognition by an investment arbitration tribunal in Urbaser v Argentina that businesses have negative obligations under IHRL. Implications of this award for host state human rights counterclaims were discussed by Edward Guntrip in his EJIL:Talk! post in some detail. In Urbaser, the claimants sought payment of damages arguing that the treatment their investment in a concession for water and sewage services by Argentina violated their rights under the Spain-Argentine BIT.  Argentina argued in a counterclaim that the investors failed “to provide the necessary investment into the Concession, thus violating its commitments and its obligations under international law based on the human right to water.” [para 36] The tribunal recognised that corporations can be subjects of international law and that while there was no general obligation for companies to act in accordance with IHRL, international law obligations could attach to their specific activities where these relate to a human right [para 1195].

While the tribunal did not explicitly distinguish between positive and negative obligations under IHRL, its understanding of IHRL obligations of businesses coincided with the UNGPs, in that it only recognised an obligation to ‘do no harm’ [para 1199]. Later in its assessment [para 1206], it considered whether the investor had an obligation to provide drinking water and sanitation services to the relevant population under IHRL, in addition to its obligation to provide that service under the concession.  On this issue, the tribunal held that under the current IHRL regime, only states have a positive obligation to fulfil the human right to water and sanitation [para 1208]. The tribunal concluded that in the absence of express IHRL rules imposing positive obligations on businesses, their obligations under IHRL would be limited to negative obligations [para 1210].

While the tribunal did not find positive IHRL obligations on businesses in the absence of explicit treaty provisions imposing such obligations, it did recognise that businesses can be subjects of international law and at a minimum they do have negative obligations under IHRL. Though some might find the conclusions of the tribunal disappointing, the recognition of IHRL obligations for businesses, albeit limited to negative obligations, by an investment tribunal is a positive step towards the recognition of relevance of IHRL to investment protection. This can particularly have meaningful impact on assessment of investment treaty claims when states raise human rights as a defence (not a counter-claim) in situations where the investor’s activities cause human rights harm.

The question remains as to how a company’s negative obligations can be enforced by individual claimants harmed by the investment. Mere recognition of existence of a duty to ‘do no harm’ may not suffice to make the rights enforceable against investors, especially where victims are unable to enforce these rights in the host state. Some of the new investment treaties developed in the global south could provide a solution to that challenge, taking me to the second development in this field.

The Nigeria-Morocco BIT, signed in late 2016, was described by Tarcisio Gazzini in an EJIL:Talk! post as a “new generation” investment treaty. The most surprising feature of the treaty, in my opinion, is that it explicitly places human rights obligations on investors. In Article 18 (2), the treaty stipulates that “Investors and investments shall uphold human rights in the host state”, and in 18(3) it requires investors to “act in accordance with core labour standards as required by the ILO Declaration on Fundamental Principles and Rights of Work, 1998.” While the question remains as to what exactly those obligations and their content would be (will they have an obligation to fulfil, or only respect? Will they be bound by all human rights norms or some? How will the content of a right in question be determined?), the recognition of human rights obligations for businesses in an international treaty is a promising step forward towards acceptance of internationally binding human rights obligations for business.

Once again, however, the question remains as to how affected individuals may obtain redress from investors when the latter causes human rights harm to the former in the course of their investment. Recognition of human rights law as part of the legal framework applicable to an investment alone may allow host states to raise defences grounded in human rights law more successfully against investor claims, but it will not allow victims who are unable to obtain remedies in the host state legal system to seek remedies in the home state of the investors. The Nigeria-Morocco BIT (Article 20) and the new Indian Model BIT (Article 13) might be offering a solution to overcoming the obstacles to home state litigation to redress such human rights harms. Both instruments require (following closely the Model BIT drafted by the IISD) state parties to allow investors to be subject to civil liability claims in their home state for damage caused to third parties in the host state in the conduct of the investment. While these provisions do not explicitly refer to damage caused in breach of human rights, this is not an impediment, as most of the business and human rights litigation is usually brought under civil liability regimes (e.g. tort) and not necessarily formulated as a human rights claim. These provisions might just improve chances of victims to have access to an effective remedy for human rights abuses caused by investor activity.

Conclusion

It is promising to see investment treaty practice moving towards a more balanced approach to investor and state obligations. It is also promising to see third party interests being taken into consideration more seriously in the investment protection regime, not only by way of a reference to investors acting in a ‘socially responsible manner’, but actually recognising that investors should uphold human rights and that they can be held responsible in their home states if they cause damage in breach of human rights standards.

Having these obligations elevated to the treaty level in BIT practice has its advantages and disadvantages. The bilateral nature of the commitments means the application of the standards is limited to the investors from the BIT signatories. Unless it is taken up in the BIT practice more broadly (at least by the EU, binding 27 potential home states to large investors), these provisions might not have meaningful benefits for victims. However, there is still an advantage to introducing these obligations in bilateral relations, as it is easier to reach a consensus on a bilateral setting than on a multilateral setting, as the BHR treaty is trying to achieve.

Announcements: CfP Hague Yearbook of International Law; Sussex Centre for Human Rights Research Vacancy; Helsinki Summer Seminar on International Law; Dispute Resolution in the Law of the Sea & International Watercourses; The Future of International...

EJIL:Talk! - Sun, 05/14/2017 - 10:30

1. The Hague Yearbook of International Law (HYIL) – Call for Papers. Deadline: 30 June 2017. HYIL welcomes submissions of original articles – written in English or French – on any topic of public or private international law. Prospective authors should consult the HYIL house style. Submissions should be made by email at: hagueyearbook {at} gmail(.)com var mailNode = document.getElementById('emob-unthrlrneobbx@tznvy.pbz-33'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%68%61%67%75%65%79%65%61%72%62%6F%6F%6B%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("hagueyearbook {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-unthrlrneobbx@tznvy.pbz-33"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

2. Sussex Centre for Human Rights Research Visiting Research Fellow in Human Rights Law. The Sussex Centre for Human Rights Research invites applications for the award of Visiting Research Fellow in Human Rights Law for the 2017-2018 academic year. Applications are open to human rights law scholars who wish to spend time at Sussex Law School, attached to the Sussex Centre for Human Rights Research. This ‘visiting’ status is normally offered to members of faculty at another institution, either in the UK or abroad, those working in the public or private sectors, and/or self-employed research consultants. Appointments can be made for periods of one to three terms (Autumn 2017, Spring 2018 and/or Summer 2018). Applications for the 2017-2018 academic year are due no later than Monday 31 July 2017. Further details including the application process can be found on the Centre’s webpage.

3. Helsinki Summer Seminar on International Law. The 30th Helsinki Summer Seminar on International Law, organized by the Erik Castrén Institute of International Law and Human Rights will discuss the Ideal of the International – Principles, Backlash and Resistance. The seminar will take place from 21 – 25 August 2017 in Helsinki, Finland. Registration is now open, and will be open until 31 May 2017. For more information see here.

4. Conference on Dispute Resolution in the Law of International Watercourses and the Law of the Sea. The Max Planck Institute Luxembourg for Procedural Law, in cooperation with the Vrije Universiteit Brussel (Free University of Brussels) and the Luxembourg National Research Fund, will be hosting an international conference titled A Bridge Over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea in Luxembourg on 25 – 26 September 2017.  The first day will be dedicated to the resolution of international fresh water disputes, while the second day will focus on dispute settlement in the law of the sea. In conjunction with the conference panels, poster sessions will be held that are intended to offer PhD students and early career researchers the opportunity to display their work to the conference audience. Up to ten posters will be selected. Accepted posters will be shown in a central location at the conference venue and there will be an opportunity to present the posters during coffee breaks. The call for posters can be found here. The deadline to apply is 20 June 2017. Limited funding will be provided to accepted poster presenters.

5. The Future of International Courts. The University of East Anglia will be hosting a one-day, SLS-funded workshop on the ‘Future of International Courts’ (Norwich, UK, 3rd July 2017). The objective of this workshop is to discuss the international adjudicative process, its current challenges and its possible evolution. The workshop programme can be found here. For further information and registration, please email Avidan Kent ( avidan.kent {at} uea.ac(.)uk var mailNode = document.getElementById('emob-nivqna.xrag@hrn.np.hx-94'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%61%76%69%64%61%6E%2E%6B%65%6E%74%40%75%65%61%2E%61%63%2E%75%6B"); tNode = document.createTextNode("avidan.kent {at} uea.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-nivqna.xrag@hrn.np.hx-94"); mailNode.parentNode.replaceChild(linkNode, mailNode);  ).

6. Gender and the Law of the Sea Conference. The School of Law, University of Milano-Bicocca will host a conference on “Exploring the human element of the oceans: the gender implications of the law of the sea”, on 25-26 May 2017. The conference stems from an empirical consideration: international law of the sea, including maritime law, has been traditionally silent about the role played by women at sea, and this is very much the case still today. The purpose of the conference is therefore to open up this field of research to the academic and professional communities, by mapping the existing international legal framework and discussing whether existing norms provide adequate protection for both women and men at sea and sufficient tools to strengthen their capacity to engage in a productive manner in this area. Programme available here, registration can be made here.

7. International Law for the Sustainable Development Goals – Workshop Series 2017-2018. In 2017-2018 the Department of International Law, University of Groningen, will organise a Workshop Series and an International Conference to explore the role and relevance of international law to the implementation of the Sustainable Development Goals. International lawyers, including academics and practitioners, alongside policy-makers, civil society, industry and experts from other disciplines will discuss how international law can shape, bolster and constrain the realisation of the 2030 Agenda for Sustainable Development in the coming years. Details of the Workshop Series’ concept note and programme are available here. The programme of the 1st Workshop on “Prospects and Challenges?” is available here. For more information and ideas on how to get involved please get in touch with Mando Rachovitsa or Marlies Hesselman.

Some Thoughts on the Jadhav Case: Jurisdiction, Merits, and the Effect of a Presidential Communication

EJIL:Talk! - Fri, 05/12/2017 - 14:00

On 8 May, India instituted proceedings at the International Court of Justice against Pakistan relating to the latter’s imprisonment and award of death penalty to Kulbhushan Jadhav, an Indian national. Pakistan claims it arrested Mr Jadhav on 3 March 2016, in Balochistan (a Pakistani province), where he was engaged in espionage and sabotage activities. A military court sentenced him to death on 10 April 2017. India alleges that Mr Jadhav was abducted from Iran, where he was engaged in business following retirement from the Indian Navy. India further claims that following his arrest and throughout his trial, sentencing and now imprisonment pending execution of sentence, it has not been allowed consular access to Mr Jadhav.

India’s application asks the Court to declare that the sentence imposed by Pakistan is ‘in brazen defiance’ of Article 36 of the Vienna Convention on Consular Relations (VCCR), and of the ‘elementary human rights of the accused’ (para. 60). It asks the Court to direct Pakistan to annul the decision; or, if, Pakistan is unable to do so, to declare the decision illegal, and direct Pakistan to release Mr Jadhav immediately (Id.). India has also requested that the Court indicate provisional measures preventing Pakistan from executing him pending resolution of the dispute.

Oral hearings on provisional measures are listed to begin on 15 May. Meanwhile, President Abraham has issued an urgent communication to Pakistan, pursuant to his powers under Article 74(4) of the 1978 Rules of the Court. This provides:

Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.

In this post, we offer a brief account of several issues. We first note a few points in relation to India’s claims as to the Court’s jurisdiction and the merits of the claim proper. We then discuss the scope and effects of the President’s Article 74(4) communication. Our attention was caught by the fact that this communication was reported in the Indian media as a ‘stay’ on Mr Jadhav’s execution, with India’s Foreign Minister even tweeting that she had told Mr Jadhav’s mother ‘about the order of President, ICJ […]’. This squarely raises the question: can the Article 74(4) communication be read as a mandatory ‘order’ in the same way as provisional measures ordered under Article 41 of the Court’s Statute? And, if not, could a state in any way be found legally accountable in for its breach?

India’s Jurisdictional and Merits Claims

India’s application is founded on Article 36(1) of the ICJ Statute, read with Article 1 of the Optional Protocol to the VCCR. As the LaGrand case has previously confirmed, this is an appropriate jurisdictional basis to test breaches of VCCR Article 36 provisions on consular access.

Pakistan may claim that the VCCR is irrelevant to the present case, because the relations between the parties are governed by a 2008 bilateral agreement on consular access (Application, Annex 10). There is more to be said about this agreement, but its text does not, prima facie, indicate an intention to contract out of the VCCR. In any event, the application of the VCCR in light of this agreement is itself an issue that the Court can adjudicate on the present basis of jurisdiction.

Moreover, India’s claim that VCCR Art 36 has been violated appears sound: at least on the facts as alleged. Pakistan’s stance that India’s requests for consular access ‘shall be considered in light of’ its assistance in the investigation of Mr Jadhav (Application, Annex 3), does not find support in the VCCR; Article 36 does not permit states to impose such conditions on consular access.

There is, however, some doubt as to the ultimate relief that the Court can provide. The jurisdictional basis invoked limits the Court to findings vis-à-vis the VCCR. However, India further claims that Pakistan has violated Mr Jadhav’s right to a fair trial under the International Covenant for Civil and Political Rights—the Court does not appear to have jurisdiction vis-à-vis this separate treaty. It is on the cumulative breach of both treaties that India bases its request that the Court declare the death sentence illegal and void. Can the Court grant this relief, if it cannot adjudicate whether Mr Jadhav was given a fair trial?

Assistance on this point may be found in LaGrand and Avena, cases brought under the VCCR and involving the imposition of the death penalty by the United States upon foreign nationals. In LaGrand, the Court found that ‘in cases where the individuals concerned have been […] sentenced to severe penalties’:

[I]t would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States. (para. 125)

In Avena, it emphasized that the review and reconsideration must be effective, examine conviction and sentence, and guarantee that the possible prejudice caused by violation of the VCCR will be fully taken into account. A clemency procedure would not suffice (paras. 138, 143). It is probable that a similar approach will be taken in the present case.

The Article 74(4) Communication

As regards President Abraham’s communication to Pakistan, the perception that it amounts to an ‘order’ is interesting, if inaccurate, and made us think more carefully about the scope and effects of such communications. We note the following.

First, and foremost, an Article 74(4) communication should not be confused with provisional measures ordered under Article 41 of the Statute. The Article 74(4) procedure is separate, taken by the President alone prior to any sitting of the Court, and—as Cameron has previously noted—is widely seen not to be binding. Pakistan could arguably go ahead and execute the sentence without anything more than moral censure; though that would obviously be without prejudice to the ultimate question regarding breach of VCCR Article 36.

That said, ICSID tribunals have found provisional ‘holding requests’—conceptually similar, some might think, to communications under Article 74(4)—to be as binding as provisional measures ordered under Article 47 of the ICSID Convention. But such requests are made by the tribunal as a whole and are not the subject of express mention in the ICSID Rules—they may thus be regarded as articulations of Article 47 proper, even if issued proprio motu by the Tribunal.

All the same, to defy an Article 74(4) request in a truly irreversible way would certainly be to breach the general principle of non-escalation and good faith in dispute settlement identified by the PCIJ in the Electricity Company case of 1939. There, the Court referred to:

[T]he principle universally accepted by international tribunals […] to the effect that the parties to a case must abstain from any of the measures capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate and extend the dispute.

This principle underpins the Article 41 provisional measures issued by the Court, but is a freestanding rule of international law.

But, it is not clear that the Court can adjudicate a breach of this principle under the limited mandate of the VCCR Optional Protocol. Given that an Article 74(4) request is non-binding in and of itself, the Court would need to look to a source external to incidental jurisdiction to determine a breach of international law. Of course, the Court might fall back upon its inherent power to regulate its own jurisdiction, but the parameters of that jurisdiction have always been a little unclear.

There may be some temptation to read Article 74(4) as producing some degree of binding effect, such that non-compliance would attract legal as well as moral censure. Perhaps, one might think, this would represent a natural step forward from the LaGrand finding that provisional measures were binding—a point that had been disputed for some 80 years.

However, there are good reasons not to succumb to that temptation, principally that Article 74(4) vests discretion in the President, and not the Court. Were such communications taken to be binding, we would expect to see a repeat of the trend that has followed vis-à-vis provisional measures after LaGrand. There has been a noticeable tightening of the restrictions on the award of such measures, with the Court now required to satisfy itself that: is has prima facie jurisdiction, there is linkage between the rights to be protected and those judged on the merits, the claim on merits is plausible, and irreparable prejudice will result from a failure to indicate measures. To require the President, acting alone, to similarly satisfy himself on these points, would be to add a rather cumbersome prelude to what is above all a ‘rapid reaction’ device.

A Historical Nugget

Interestingly, a President of the World Court, sitting alone, has ordered binding interim relief in the past. In their first (1922) iteration, the Rules of the PCIJ provided in Article 57 that:

When the Court is not sitting, any measures for the preservation in the meantime of the respective rights of the parties shall be indicated by the President. Any refusal by the parties to conform to the suggestions of the Court or of the President, with regard to such measures, will be placed on the record.

Unlike Article 74(4) of the current Rules, Article 57 did not give the President a separate procedural power—rather, it placed the full authority of Article 41 of the Statute in the President’s hands. The provision was drafted in the days before affordable commercial air travel, wherein a large number of the Court’s members could be expected to take days, even weeks, to return to The Hague if the PCIJ was not in session. The President was expected to ‘man’ the fort. Thus, President Max Huber ordered interim relief in the Sino-Belgium Treaty case (the first ever decision under Article 41), after the Belgian application landed on the Court’s doorstep in the winter of 1926–1927.

Nevertheless, that Article 57 power does not provide precedent for the present case. Aside from the fact that it was merely an articulation of Article 41 of the Statute, its raison has vanished. In truly urgent cases, the members of the Court can be expected to return promptly to the Peace Palace. Indeed, advances in air travel—along with concerns as to the political burden that the giving of interim relief under such conditions imposed on the President—led to Article 57 being drastically revised in 1931, and this power was removed.

To Conclude

Coming back to the present, we fully expect the Court will speedily decide on provisional measures. Based on past precedents such as LaGrand and Aevena, the order may well be in India’s favour. We close by expressing the hope that, in the interim, the effects of a Presidential communication will not be tested by way of their disregard.

Non-UN Financial Sanctions against Central Banks and Heads of State: in breach of international immunity law?

EJIL:Talk! - Fri, 05/12/2017 - 08:00

Conventional Wisdom Challenged?

Recent years have seen a wide range of non-UN financial sanctions being adopted against States and their instrumentalities, including central banks, as well as against high-level State officials. Prominent examples include the EU and US sanctions against the central banks of Syria and Iran, and the asset freezes against the serving Presidents of Zimbabwe and Syria. In spite of the EU’s firm assertion that its ‘restrictive measures’ “are fully compliant with obligations under international law”, one might be inclined, intuitively, to regard such sanctions as a prima facie breach of international immunity rules (whether or not they qualify as (third-party?) countermeasures is a different story altogether – one which the present post will not touch upon). Thus, given the lack of a general exemption in respect of activities de jure imperii, Castellarin argues that the EU’s financial sanctions against central banks are contrary to State immunity law – a position which is also subscribed to by Thouvenin and Dupont. Others have arrived at the same conclusion in respect of asset freezes targeting Heads of State (see e.g. Pillitu). When discussing the matter with fellow scholars, it seems that the applicability of, and incompatibility with, immunity rules is often taken for granted.

Yet, is this conventional wisdom (if that is what it is) justified? It is quite remarkable to see how, on the one hand, the EU goes to some lengths to insert tailor-made exemptions to asset freezes in order to enable payments to or from diplomatic or consular posts (or exceptions to travel bans to allow officials to participate in international conferences) – even if the practice seems far from consistent –, while at the same time seeing no problems in the imposition of financial sanctions on Syria’s central bank and Head of State. Equally remarkable is the fact that, in spite of, for instance, an abundant case-law by the EU Courts pertaining to EU sanctions, immunity issues have, to the present author’s knowledge, never been raised in legal proceedings challenging the imposition of financial sanctions… Furthermore, while numerous (non-western) countries have repeatedly expressed concern over, if not outright opposition to, the use of unilateral coercive measures, such concerns have ostensibly never been framed by reference to relevant immunity rules.

Upon closer scrutiny, the present author is not convinced that the imposition of non-UN financial sanctions necessarily ‘triggers’ the application of immunity rules.

Asset Freezes against the State and its Instrumentalities, Including Central Banks

Let’s first take a look at asset freezes directed against the State and its instrumentalities. Clearly, such asset freezes ‘affect the property’ of the State in the sense of Article 6(b) of the 2004 UN Convention. Nor does their essentially ‘temporary’ character prevent them from qualifying as ‘measures of constraint’: as the 1991 ILC Commentary illustrates, ‘interlocutory and all other prejudgment conservatory measures, intended sometimes merely to freeze assets in the hands of the defendant’ can equally contravene the rules pertaining to State immunity from execution.

On the other hand, when looking at the 2004 Convention and the 1991 ILC Commentary, it is clear that State immunity is consistently framed by reference to ‘a proceeding’ before ‘the courts’ of another State. Thus, the 1991 ILC Commentary asserts that the rules on immunity from execution cover measures of constraint ‘only to the extent that they are linked to a judicial proceeding’. Pursuant to Articles 18-19 of the 2004 UN Convention, such measures can be either ‘pre-judgment’ or ‘post-judgment’. Even if the measures themselves may well be taken though a State’s executive organs, they must still somehow relate to the enforcement of the ‘judicial power’ of another State (see e.g. Fox, at 344). The insistence on a nexus to ‘court proceedings’ features equally in relevant national legislation and in legal doctrine. It was also affirmed in passing by the ICJ in the Jurisdictional Immunities case (para. 93). More recently, the idea that State immunity rules are triggered only if there is a ‘proceeding’ before a ‘court’ was forcefully defended by Australia in the (now terminated) procedure before the ICJ with Timor-Leste (see Australia’s memorial, at para. 5.104).

Admittedly, some indications hint at a broad interpretation of the concept of ‘proceedings before a court’. Thus, Article 2(1)(a) of the UN Convention defines a ‘court’ as ‘any organ of a State, however named, entitled to exercise judicial functions’. The 1991 ILC Commentary in turn sets forth a broad definition of ‘judicial functions’, and acknowledges that the definition ‘may, under different constitutional and legal systems, cover the exercise of the power to order or adopt enforcement measures (sometimes called “quasi-judicial functions” by specific administrative organs of the State’.

Still, non-UN financial sanctions are hard to fit into this framework. Clearly, the adoption of such sanctions is unrelated to the ‘adjudication of litigation or dispute settlement’ or to the ‘determination of questions of law and of fact’. Nor is it a function ‘normally exercised by, or under, the judicial authorities of a State’ in the sense of the 1991 ILC Commentary. Rather, it is primarily a matter for the executive branch, and possibly the legislative branch, and falls squarely within the foreign policy of the acting State. The mere fact that the person or entity targeted by the sanctions might decide to challenge their legality by initiating a court procedure at the national or regional level – e.g., by lodging an action for annulment before the General Court of the EU – does not alter the fact that the sanctions themselves do not normally result from any ‘court proceeding’ and does not retroactively transform them into ‘prejudgment’ measures of constraint. In the words of Ronzitti, asset freezes are ‘measures autonomously dictated by the legislative or the executive branch’, as opposed to acts of constraint that are ‘the continuation of a judgment’. The tentative conclusion would therefore be that financial sanctions against a State and its instrumentalities do not trigger the regime on State immunity, and can accordingly not give rise to a breach of State immunity rules.

If State immunity rules are not affected, how about ‘inviolability’? International law indeed draws a  distinction between immunity and inviolability – although the distinction between the two is often blurred. Several treaty instruments provide for some form of inviolability of specific types of property owned by (or, at times, used by) third States. Obvious examples include the property of the diplomatic mission (Article 22 VCDR) or the property of ‘special missions’ (Article 25 of the Special Missions Convention). The other side of the medal is that no similar conventional regime exists covering all State property, raising the question whether such protection can nonetheless be found in customary international law. In the aforementioned ICJ procedure between Australia and Timor-Leste, the two States gave contradictory answers to the question. Watts and Jennings in their 1992 edition of Oppenheim’s International Law nonetheless appear to answer in the negative: ‘there does not seem to be any general requirement in international law that all such property be granted, just because it is State owned, any special inviolability or other exemption from governmental action by the State in which it is situated’ (para. 111). The recent sanctions practice of the EU, the US and other States appears to support the latter position (interestingly, a number of authors who take the view that financial sanctions breach immunity rules at least acknowledge that evolutions in customary international law could alter this (see e.g. Castellarin)).

Asset Freezes against High-Level State Officials

Much of the reservations expressed above can be reiterated mutatis mutandis in respect of asset freezes against high-level State officials. In a nutshell, there is a priori no reason why the required nexus to court proceedings would apply only with regard to State immunity, but not with regard to ‘individual’ immunities. This view is supported by the fact that the immunities of foreign officials are essentially derived from those pertaining to State immunity (and seek to prevent the circumvention of the latter rules). It is interesting, for instance, how the ILA’s 2001 Vancouver resolution on the immunities of Heads of State and Heads of Government distinguishes between ‘inviolability’, ‘immunity from jurisdiction before the courts of a foreign State’, whether ‘in criminal matters’ or in ‘civil and administrative matters’. In the end, given the lack of a nexus to ‘court proceedings’, it could again be argued that asset freezes against high-level State officials do not trigger (nor breach) international immunity rules.

Conventional ‘inviolability’ rules do not seem to pose a major obstacle to asset freezes against high-level State officials either, as they apply only to specific categories of State officials, primarily diplomatic personnel (Art. 30 VCDR) and members of ‘special missions’  (Art. 30 of the Special Missions Convention). Even if the inviolability of private property enshrined in these treaty provisions also extends to the bank accounts of the persons concerned (as may be inferred from the 1958 ILC Commentary on Draft Article 28), their scope of application is obviously limited. Thus, members of special missions (and their property) are protected only for the duration of the special mission.

Furthermore, the customary inviolability of high-level State officials is generally construed along the lines of the 1969 Special Missions Convention. In particular, it appears that customary international law only accords inviolability to senior State officials (and their private property) whilst they are abroad during official visits (and, at least in the case of Heads of State, also during private visits) (see e.g. Watts and Foakes). Yet, inviolability of (residence and) property during a (senior) State official’s visit to a third country is ultimately of little relevance in the present context, as non-UN financial sanctions are normally adopted while the targeted official is in his home State.

Could an argument nonetheless be made, at least in respect of high-level officials enjoying immunity ratione personae, that the imposition of asset freezes hinders them in the ‘effective performance’ of their functions, in the sense of the ICJ’s Arrest Warrant judgment? The argument seems more compelling in respect of a travel ban, than in respect of an asset freeze. Even if an asset freeze is undoubtedly adopted with a view to influencing the official concerned, it is difficult to see how such measure prevents a senior official from representing the State, including by traveling abroad to take part in international meetings. A Head of State or Head of Government will not normally be dependent on his private resources to cover the expenses flowing from the performance of his task, including costs related to official visits abroad, as these costs will normally be borne by the State (the EU Guidelines on sanctions moreover suggest an exemption with regard to costs related to official visits). It is hardly surprising then that the US financial sanctions imposed on Robert Mugabe did not prevent him from giving (inflammatory) speeches before the UN General Assembly in New York in September 2015 and September 2016.

Concluding Thoughts

This post has – somewhat provocatively – sought to question the ostensible conventional wisdom that financial sanctions against central banks and Heads of State flout international immunity law. While there is little express case-law and doctrine to rely on – Thouvenin speaks of a ‘blind spot’ (“un angle mort”) in this connection –, it was tentatively argued that immunity rules do not apply because these sanctions lack the required connection to a court proceeding at the national level. On the other hand, inviolability rules protect only specific categories of (State or private) property and only on a temporary/conditional basis (e.g., during an official visit abroad). Of course this creates something of a paradox. To paraphrase Timor-Leste, it places certain persons and property ‘in the absurdly paradoxical position of being inviolable and immune from judicial measures, but at the mercy of administrative or executive actions’. Yet, international law is no stranger to paradoxes. It may well be that immunity law was never intended to curtail the foreign policy powers of States’ executive or legislative branches. In the end, precedents pointing at a broader scope of application of immunity and/or inviolability rules appear to be lacking (EJIL Talk! readers are warmly invited to signal contrary evidence if available!). Meanwhile, State practice appears to further embed the view that there is no general inviolability attached to State property abroad that would prohibit asset freezes.

For the sake of clarity, it must be stressed that, even if targeted sanctions do not breach immunity and/or inviolability rules, that is not to say that they are necessarily lawful. Other legal obstacles indeed exist, whether derived from customary international law (e.g., the law of jurisdiction or the non-intervention principle) or from bilateral or multilateral treaty law (e.g., BIT provisions), which may well engage the international responsibility of the State imposing these sanctions…

 

Modifying the ICSID Convention under the Law of Treaties

EJIL:Talk! - Thu, 05/11/2017 - 08:00

Prospects for the institutional reform of investor-State dispute settlement (‘ISDS’) include superimposing an appellate mechanism onto the existing arbitration framework and, in the alternative, replacing that framework with a self-standing international court. While the latter option constitutes a more radical departure from the status quo, the former raises legal questions concerning the modification and potential breach of existing ISDS treaties. In particular, the ISDS model found in recent EU treaty texts (EU-Canada CETA, EU-Vietnam FTA, and draft Transatlantic Trade and Investment Partnership) raises the question of whether ICSID Members may establish an appellate mechanism inter se. This question’s importance extends beyond the EU model, as it concerns the broader feasibility of any appellate mechanism with multilateral aspirations. The authors consider that such modification is permitted by Article 41(1)(b) of the Vienna Convention on the Law of Treaties (‘VCLT’), under which Contracting States may agree to treaty modification inter se if:

the modification in question is not prohibited by the treaty and:

(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

Whereas the chapeau concerns an express textual prohibition, the respective conditions in sub-clauses (i) and (ii) encompass prohibitions which may be implied in the relationship between the modified provision and other aspects of the treaty. The three conditions must be satisfied cumulatively.

Recently, some have asserted not only that the chapeau of VCLT Article 41(1)(b) encompasses implied prohibitions, but also that ICSID Convention Article 53 prohibits modification inter se for the purpose of establishing an appellate mechanism (see Calamita, sec. II(2)). However, both the drafting history and commentaries regarding VCLT Article 41(1)(b) confirm that its chapeau concerns only express prohibitions on treaty modification. Indeed, were the chapeau of Article 41(1)(b) intended to cover implied prohibitions, sub-clauses (i) and (ii) would be redundant, having emerged stillborn from the ILC’s prolonged deliberations. As to ICSID Convention Article 53, as discussed below, it is far from clear that modification of this provision is even impliedly prohibited.

Express Prohibition in the Treaty: the Chapeau of VCLT Article 41(1)(b)

It is telling that a 1964 ILC draft of what would be the chapeau of Article 41(1)(b) included the phrase “expressly or impliedly prohibited” (p. 271, para 73), qualifiers which were eventually dropped in favour of the provision’s final text. In this context, Verdross stated at the ILC that “a prohibition could hardly be implied” (ibid., p. 272, para 81). The sole example of prohibited modification given in the 1966 Draft Articles Commentary is Article 20 of the 1908 Berlin Act for the Protection of Literary and Artistic Works, which clearly prohibits modification with certain characteristics (p. 235, para 2).

The Draft Articles listed the three conditions of Article 41(1)(b) separately, with the terms of the present-day chapeau appearing third. At the Vienna Conference, however, an amendment proposed jointly by Bulgaria, Romania, and Syria suggested shifting the third condition to the chapeau position, resulting in the final text of Article 41(1)(b). Viewing the proposal as logical and having the “further merit of underlining the primacy of the text of the treaty”, Mr. Bolintineanu for Romania submitted that “if the treaty prohibited such an inter se agreement, there was no occasion to examine the application of the other two requirements set forth in [the other two] sub-paragraphs” (p. 205, para 34). Mr. Strezov for Bulgaria also submitted that express allowance of modification (under Article 41(1)(a)) and prohibition under the chapeau of Article 41(1)(b) together “state the two outside limits”, while the two remaining sub-clauses “would define the conditions which the agreement must fulfil” (p. 206, para 37). Commentaries have since affirmed that the chapeau concerns clear textual prohibitions. Villiger concludes that such prohibition must be stated expressly, as implied prohibition may be derived from Article 41(1)(b)(ii) (p. 534, paras 6-7; see similarly Rigaux/Simon in Corten/Klein, p. 1001, para 30; Odendahl in Dörr/Schmalenbach, p. 724, paras 13-14).

The express terms of ICSID Convention Article 53, which provides that ICSID awards “shall not be subject to any appeal or to any other remedy except those provided for in this Convention”, appear to contain a rule from which disputing parties cannot depart, rather than one which Contracting States may not modify (see generally Parra, ‘The Limits of Party Autonomy in Arbitration Proceedings under the ICSID Convention’, ICC Bulletin 10(1)). This finds support in the broader context of Chapter IV, Section 6 of the Convention, which takes pains in provisions such as Article 54 to clearly direct specific enforcement obligations to Contracting States. The same conclusion arises through comparison to ICSID Convention Article 27(1) (“No Contracting State shall give diplomatic protection […]”) — a prohibition clearly and specifically directed toward Contracting States rather than disputing parties.

The foregoing confirms that the chapeau of VCLT Article 41(1)(b) is exclusively concerned with express prohibition in the treaty text, and that ICSID Convention Article 53 states no such prohibition. As initially canvassed in a report submitted by the Geneva Center for International Dispute Settlement to UNCITRAL (‘CIDS Report’) and explored further below, neither of VCLT Article 41(1)(b)’s sub-clauses suggest that the ICSID Convention impliedly prohibits a modification establishing an appellate mechanism inter se.

Implied Prohibition in the Treaty: Sub-Clauses (i) and (ii) of VCLT Article 41(1)(b)

In order to construe an implied prohibition of modification, the reader must interpret the treaty. However, as the objective of this interpretative task is not to determine the meaning of a treaty provision but rather to determine whether its modification is prohibited, this task must be guided by considerations beyond the general rule of interpretation (i.e., VCLT Articles 31-33). The conditions in Articles 41(1)(b)(i) and (ii) guide this interpretative task.

Sub-Clause (i)

Apart from express prohibition in the ICSID Convention, modification thereof is also prohibited if it may be inferred that such modification would affect the enjoyment by other ICSID Members of their rights under treaty or performance of their obligations. This condition in VCLT Article 41(1)(b)(i) should be applied to the ICSID Convention in light of its status as a ‘reciprocal’ treaty. Unlike ‘absolute’ treaties such as human rights conventions—wherein effectiveness relies upon Members’ adherence to every provision—inter se modification of reciprocal treaties is presumed to not affect the rights and obligations of other Members (see Koskenniemi’s 2006 ILC Report, p. 159, paras 309-313; Rigaux/Simon, p. 1003, paras 35-37; Odendahl, p. 725, para 18). Because the establishment of an appellate mechanism by some ICSID Members would not impede other Members and nationals thereof from utilising the existing ICSID annulment regime, such modification inter se would not prejudice those third States under VCLT Article 41(1)(b)(i) (CIDS Report, para 241; see further Villiger, p. 534, para 8).

Pursuant to VCLT Article 34, a treaty establishing an appellate mechanism cannot itself impose burdens on third States. Thus the EU treaties discussed above (which purport to give rise to certain awards “under the ICSID Convention”) are incapable of creating enforcement obligations for ICSID Members — a situation which would hold true even if the EU were itself an ICSID Member.

Nevertheless, it is important to note that the conclusion or exercise of these EU treaties (or future agreements including similar language) does not itself amount to a breach of obligations under the ICSID Convention. Given that the apparent third-State obligation concerns only enforcement of appellate mechanism awards, only the act of compelling third-State enforcement as if these were awards “under the ICSID Convention” could amount to such a breach. Of course, the fact that these treaties cannot directly create such an obligation means that they are not capable of giving rise to a breach vis-à-vis third-State ICSID Members. The inclusion of this apparently ineffectual language in the EU treaties is thus legally significant only if it were so central to the conclusion of these treaties that its nullity renders the entirety of the treaties void ab initio — an inference unsupported by their terms and context.

Sub-Clause (ii)

Turning to VCLT Article 41(1)(b)(ii) — and recalling our above conclusion that the terms of ICSID Convention Article 53 do not prohibit treaty modification — we note that there is little basis to conclude that derogation from Article 53 is incompatible with the effective execution of the Convention’s object and purpose (see Bottini in Kalicki/Joubin-Bret, p. 459). Those who would look to ICSID Convention Articles 26 and 64 to draw the opposite conclusion conflate restrictions on specific capacities as disputing parties (as found in those provisions) and restrictions on treaty modification as Contracting States.

The truest reflection of the ICSID Convention’s object and purpose for treaty modification purposes is Article 1(2)’s statement that the Convention serves to facilitate dispute settlement between investors and States in an international forum. In this light, a treaty among some ICSID Members removing investment disputes to national courts could be viewed as regressive and incompatible with this object and purpose. The same could not be said of a treaty establishing an appellate mechanism, which maintains and arguably furthers the ICSID Convention’s aim of establishing a neutral international dispute settlement mechanism. Looking beyond the EU treaties — and perhaps the appellate mechanism as well — this neutrality objective would occupy the heart of any multilateral, multi-stakeholder ISDS reform, such as under the auspices of UNCITRAL (see A/CN.9/890 (paras 2, 20)).

Indeed, while we have concluded that this particular ICSID Convention modification inter se is permitted under the law of treaties, it is worth considering whether the legal intricacies of superimposing an appellate mechanism are preferable to replacing the existing arbitration framework with a self-standing international court (and applying the more straightforward denunciation provision in ICSID Convention Article 71). Given that either reform prospect might increase perceptions of ISDS neutrality — and noting that any envisaged international court model may include an appellate tier to increase perceptions of legal correctness and consistency — the difficulties of enforcing appellate mechanism awards “under the ICSID Convention” (as noted above regarding the EU treaties) are thrown into sharp relief.

The US and the Paris Agreement: In or Out and at What Cost?

EJIL:Talk! - Wed, 05/10/2017 - 07:30

Ever since President Donald Trump won the US elections, climate pundits have been playing the ‘will they, won’t they’ game in relation to US withdrawal from the hard-won and widely accepted 2015 Paris Agreement. The political need of the hour, it appears, is to keep the US in, and while that is certainly a desirable goal, it is time to ask, ‘at what cost’?

The US decision on whether it will withdraw from the Paris Agreement is imminent, but in advance of this decision President Trump has begun the process of dismantling Obama-era domestic regulations designed to address US greenhouse gas emissions. In the circumstances, even if the US decides to remain in the Paris Agreement, it would need to either lower the ambition of its nationally determined contribution (NDC), or be ready to fall short of it. This is at the heart of the current controversy animating the climate world – can a state downgrade its NDC under the terms of the Paris Agreement? American legal advisors in an understandable bid to keep the US in the Paris Agreement, are arguing that it can. I would like to argue that a different interpretation, one more in keeping with the object, purpose and spirit of the Paris Agreement, is possible, and even desirable.

At the outset it is worth noting that treaties are to be interpreted in good faith, in accordance with their ordinary meaning, in context, and taking into account their object and purpose (Article 31 (1), Vienna Convention on the Law of Treaties). The object and purpose of the Paris Agreement is to limit temperature increase to ‘well below 2°C’ (Article 2), and NDCs are the vehicle chosen to achieve that end (Article 3). The Paris Agreement provides considerable discretion to states in relation to choosing their NDCs, but once Parties have chosen their NDCs it sets expectations and imposes limits on state behaviour. I will consider the legality of a state downgrading its NDC in the context first of the overall normative expectations placed on Parties in relation to their NDCs, and then through an analysis of the relevant provisions of the Paris Agreement.

The Paris Agreement sets a firm expectation that Parties’ mitigation NDCs will progress from each five-year cycle of contributions to the next, and that these NDCs will reflect their ‘highest possible ambition’ (Article 4.3, see also Article 3, and preambular recital 4 for elements of ‘progression’). This expectation of ‘progression’ and ‘highest possible ambition’ sets a ‘direction of travel’ for the entire regime. This direction of travel is a critical foundational pillar of the Paris Agreement. Unlike the ill-fated Kyoto Protocol, which took the approach of starting with deep commitments by limited participants, the Paris Agreement chose, of political necessity, to start with broad participation, which predictably came at the cost of shallow self-determined commitments. The NDCs submitted by Parties in the context of the Paris Agreement cover an impressive 99% of global emissions, but the aggregate effect of these NDCs are at considerable variance with emissions pathways consistent with the agreement’s long-term temperature goal of ‘well below 2°C’, and even further from the aspirational 1.5°C. The Paris Agreement addresses this initial shorfall by setting strong expectations of progression and a clear direction of travel (forward and towards greater ambition) so that over time the regime is both broad in terms of participation and deep in terms of the necessary greenhouse gas commitments. The integrity, rationale and spirit of the Paris Agreement depends on forward movement. Permitting a state to downgrade its NDC falls foul of this intent. The specific provisions at play – Article 4, paragraphs 2 and 11 – need to be read in light of the normative expectation of progression, as well as the object and purpose of the Paris Agreement to limit temperature increase to ‘well below 2°C’.

Article 4.2, in pertinent part, reads:

‘Each Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.’

It has been argued that the word ‘maintain’ implies that a Party must have an NDC in place, not that it should maintain the level of ambition of the NDC that it has. While this is a plausible interpretation, I would argue that the term ‘maintain’ implies both that a Party must have an NDC in place – so it cannot withdraw its NDC without replacing it with another – and that it must preserve the level of ambition that it has in its NDC. To be clear, I am not suggesting that a party is subject to an obligation of result in relation its NDCs. It is not. I am suggesting, merely, that once a party chooses its NDC, tailored to its national circumstances and constraints, it has an obligation of conduct to maintain the level of ambition in that NDC for that cycle. This interpretation is in keeping with the overall thrust of the Paris Agreement which expects Parties to enhance their mitigation ambition through successive cycles. The alternative interpretation that allows Parties to withdraw their NDC, replace it with a less ambitious one, while being in compliance with Article 4.2, would do disservice to the overall purpose of the Paris Agreement, as well as its spirit of progression.

Turning to Article 4.11. In pertinent part it reads:

‘A Party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition in accordance with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.’

In keeping with the progressive spirit of the Paris Agreement, this provision is designed to ensure that those Parties that choose to adjust their NDCs in an upward direction before the next cycle of NDCs commences, can do so. It does not either prohibit or permit downgrading of NDCs. It has been argued that this provision by implication permits downgrading because it neither mandates (‘shall’) upgrading of NDCs nor prohibits downgrading. First of all, Article 4.11. simply provides that should Parties choose to upgrade their NDCs, they can do so in accordance with rules that are to be developed. As such it does not lend itself to prescriptive language (‘shall’), and permissive language (‘may’) is more appropriate. Second, merely because this provision does not prohibit downgrading does not necessarily imply that it permits downgrading. The Geneva Negotiating Text, that formed the basis for the negotiation of the Paris Agreement, contained numerous options on these issues clustered under two provisions. The first dealt with situations where Parties choose voluntarily, possibly, mid-cycle, to upgrade their NDCs (para 180). The second dealt with situations where Parties may need to or choose to downgrade their NDCs. Under the latter the range of justifications for Parties to downgrade their NDCs stretched from force majeure, extreme natural events, lack of adequate international support to a change in subsequent international rules (para 181). Some of these options were regarded as justifications only for developing countries to downgrade their NDCs. Parties could not agree on any of these options, or indeed on whether Parties should be allowed to downgrade at all or not. Thus no provision on downgrading of NDCs was including in the Paris Agreement. It is telling that a shift (even a pendulum-scale one) in domestic politics was never proposed as sufficient justification for downgrading. Be that as it may, the fact that no provision on downgrading was included, could be read in two ways. Either it could be read as signalling an openness to downgrading, as some suggest. Or it could be read as an acknowledgment that downgrading is not in keeping with the spirit of the Paris Agreement, and thus does not feature in it. In any case, general treaty law permits suspension of the treaty in respect of a party where a fundamental change in circumstances makes it is impossible for that party to comply with its obligations (Article 62, Vienna Convention on the Law of Treaties). Arguably, anything short of the compelling reasons captured in the term, ‘fundamental change in circumstances,’ would not be countenanced under general treaty law, or permissible under the Paris Agreement.

This seemingly arcane legal discussion has serious ramifications. While it is of critical importance that the US, the second largest greenhouse gas emitter, remains in the Paris Agreement, if the cost at which it does so is a tacit acceptance from other Parties that ‘downgrading’ of the US NDC is legal and permissible under the Paris Agreement, it would be a serious price to pay. Not only will the legalisation of such downgrading upset the carefully balanced architecture of the Paris Agreement, it could also have a cascading effect on other Parties’ NDCs. There is no scope for US exceptionalism here. It will be impossible, and indeed inequitable, to press countries like India, struggling with enduring energy access, development and poverty challenges, to stay the course, while the US is legally allowed to downgrade its NDC. There is only one direction of travel the Paris Agreement, and indeed the planet, countenances – forward – and it is ‘applicable to all’.

Chechnya’s Anti-Gay Purge: Crimes Against Humanity

EJIL:Talk! - Tue, 05/09/2017 - 08:00

Despite widespread condemnation from the U.N., Council of Europe, E.U., United States, and other countries, a brutal campaign against gay men in Chechnya continues. The abuses take the form of abduction-style detention, enforced disappearances, torture, and killings. Considering the systematic features and the brutality of the abuses, Chechnya’s anti-gay campaign amounts to crimes against humanity, and it demands proper condemnation and response from the international community.

Crimes against humanity, as an international crime, has been defined in various statues and law commissions’ proposals since 1945. They each have their own distinctive feature tailored to the specific historical context during which they were drafted. For example, the Nuremberg Charter and the International Criminal Tribunal for the former Yugoslavia (ICTY) Statute’s definition require the element “in armed conflicts”, while the International Criminal Tribunal for Rwanda (ICTR) Statute requires a discriminatory intent. This note uses the definition in Article 7 of the Rome Statue of the International Criminal Court (ICC): “any of the acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” followed by specific acts listed in sub-paragraphs. This definition has been almost entirely adopted by the International Law Commission in its latest version of draft articles on crimes against humanity (note: the proposed draft articles are still in work progress).

Murder, Imprisonment, Torture, Enforced Disappearance, and Other Inhumane Acts

The argument that the Chechnya’s campaign against gay men constitutes crimes against humanity as the criminal acts listed in Article 7.1 (a), (e), (f), and (i) is quite straightforward. There has been credible reporting on abuses committed against gay men in Chechnya, including abduction, imprisonment, enforced disappearances, torture, and killings. All the described abuses have been approved by Chechen local government, with Moscow turning a blind eye to them. In many cases, violations were directly committed by Chechen security forces.

Sub-paragraph (k) of Article 7.1 provides a catch-all category, namely “[o]ther inhumane acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Besides what has been mentioned above, the ill treatment carried out against gay men also includes starvation, electroshocks, and violent beatings. Even if these acts do not rise to the level of torture (I will certainly argue they do), they nonetheless fall within the “other inhumane acts” category under Article 7.

Extermination

As defined in Article 7, paragraph 2, extermination “includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.” While the statutes of ICTY, ICTR, and ICC differs on the exact wording, the jurisprudence of these tribunals have shared a common theme on interpreting “extermination” – intentional calculation and repetition of discriminatory and destructive acts or policy designed to bring about physical destruction, which can be met through deprivation of fundamental rights or imposition of excessive burden.

In Chechnya, over a hundred gay men or men suspected of being gay have been arrested since early April. They are being detained in secret locations and subjected to torture. In cases where victims were released “barely alive”, they were forcibly “outed” to their family and community. Chechnya’s campaign encourages relatives to “restore their family honor” through “honor killings” of these gay men. The abuses are blessed by the Russian Federation’s policy, including an anti-LGBT propaganda law passed in 2013. The law intends to revive “traditional family values”, and it effectively encourages stigmatization and discrimination against LGBT people and categorizes homosexual relationship as “second-class”. Such methods of persecution serve a purpose beyond the physical extermination. More importantly, for perpetrators, the killings and ill treatment, coupled with the abusive laws, serve a symbolic function that inhumanly deters gay men from presenting themselves or living as gay in society. Looking at the totality of the circumstances, conditions of life have been created through discriminatory and destructive polices in Chechen society, specifically imposed upon gay men because of their homosexuality. This leaves gay men no social or cultural space to survive, causing a “slow death” and ultimately physical destruction of this group in Chechnya.

“Widespread or Systematic Attack”

The jurisprudence of ICTY, ICTR, and ICC have agreed that the two elements “widespread” and “systematic” are disjunctive requirements for the purpose of the definition of crimes against humanity. It is sufficient to establish the crime has been committed when either requirement is met. The ongoing anti-gay campaign in Chechnya qualifies as a “widespread or systematic attack” under the definition of the crime on both fronts – “widespread” and “systematic.”

According to ICTY in its Kunarac decision, “widespread” refers to the large-scale nature of the attack. Isolated incidents of violent acts are deemed insufficient to meet this requirement. However, particular numerical threshold on the numbers of attacks or victims is not required. Instead, it should be assessed on a case-by-case basis, including the social context, the variety of geographical locations, and so on. Documented and confirmed by multiple rights groups and journalists, over a hundred gay men or men suspected of being gay have been abducted and detained, subject to abuses. These victims are from all around the Chechen Republic region, and Chechen authorities managed to hunt down over 100 gay men within one month. Considering hat most gay men in Chechnya tend to hide their homosexual identity, it is difficult to see such outcome as a narrow-scale or random action. With its policy encouraging family members to carry out “honor killings” of gay men, this campaign is affecting a much larger number of individuals.

The ICTY, ICTR, and ICC have maintained a common understanding of “systematic” – “organized nature of the acts of violence” and “the improbability of their random occurrence.” (See Kunarac decision, Mrksic decision, and Harun decision.) The tribunals have found that evidence of a pattern or methodical plan can be used to establish the “systematic” element. Chechnya’s anti-gay purge has displayed a repetition of similar criminal conduct, namely abduction, detention in secret locations, violent beatings, torture, and killings. Victims were selected because of, and only because of, their homosexuality. According to the interviews with some victims conducted by the New York Times and BBC, the security forces interrogate and torture detained gay men to obtain more information on the identities of other gay men they know. This shows a calculated methodical plan on “hunting down” more gay men by Chechen security forces. The repetition and similarity of these acts against a population with one specific identity, namely their homosexuality, also excludes the probability of random occurrence.

“A State or Organizational Policy”

The “policy” element is stated in paragraph 2 of Article 7, requiring the acts to be linked to a State or organization. According to the ICC, this means that a State or organization actively promotes or encourages such an attack against civilians. And “organizational” can be any type of organization or group that has the capacity to carry out such an attack. In its jurisprudence, the ICC has addressed that the “policy” element does not require the plans to be formally adopted, and a specific intent or rationale is not required. Instead, it can be inferred from the circumstances, by looking at the patterns of violent acts, evidence of organized planning, and perpetrators’ utterance.

In early April, only repetitive and organized abuses targeting gay men by unknown groups were documented. Later, credible sources and interviews with victims showed that Chechen security forces have been actively involved. The Chechen government has long discriminated against and stigmatised homosexuality. Since its anti-gay campaign was launched, the government took a step further by encouraging relatives to carry out “honor killings” of gay men. The Chechen government spokesperson, while entirely denying the existence of gay men in Chechnya, cynically said: “if such people exist in Chechnya, law enforcement would not have to worry about them, as their own relatives would have sent them where they could never return.”

While LGBT rights opposition is seen worldwide, violent anti-gay movements in many countries today are led by religious extremism or fundamentalism groups, such as the KKK groups in the United States, neo-Nazi groups in some European countries, groups and individuals that pledged allegiance to Islamic extremism, and so on. In comparison, Chechnya’s purge has its distinct character because of significant state involvement in the design and execution of the campaign. Such a systematic and state-sponsored manner is more analogous to the Nazi regime’s attempts to eliminate gay men, where they arrested, segregated, and tortured gay men, trying to eradicate their homosexuality, with the physical extermination of these men as an alternative. Recall the repetitive and similar patterns of abuses discussed above. Also recall that victims were tortured by security forces for identities of more gay men the government can track down. The aggregation of the circumstances of this campaign has presented intentional and organizational features, with direct or indirect links to government authorities.

As such, in no way can Chechnya’s anti-gay campaign be a random widespread violent crime against the civilian population. While the fact-finding access is limited as at the time of writing, assuming the facts that have been documented, the campaign constitutes crimes against humanity under international law. Recognizing this purge as crimes against humanity is critical on several fronts: first, it defends the integrity of international law by properly and timely recognizing and acknowledging international crime. Secondly, it clarifies the nature of this campaign and further galvanises international attention and acproper response. Furthermore, it may provide legal basis for the possibility of accountability in the future.

Russia withdrew its signature from the Rome Statute in 2016. The prevention and punishment of crimes against humanity, however, undoubtedly reflects customary international law. Actually, the gravity of crimes against humanity is so clear that very few would question its status as a jus cogens norm (peremptory norm). Jus cogens norms like the prohibition of genocide and  the prohibition of torture have been codified in conventions, whilst the option of universal jurisdiction is reflected in related articles. Although crimes against humanity has not yet been codified in a distinct convention, ICJ Judges Higgins, Buergenthal and Kooijmans famously wrote in their separate opinions for the Arrest Warrant case: “a comparable international indignation at such act is not to be doubted.” This position has been further affirmed by the ILC in Article 9 of its proposed draft articles on crimes against humanity. Accordingly, a proper recognition of this purge as crimes against humanity provides possible accountability options under universal jurisdiction in other states.

Nigeria and Morocco Move Towards a “New Generation” of Bilateral Investment Treaties

EJIL:Talk! - Mon, 05/08/2017 - 08:00

Introduction

On 3 December 2016, the Governments of Morocco and Nigeria signed a bilateral investment treaty (BIT) that deserves close scrutiny. The treaty is an important attempt by two developing countries to move toward a new generation of BITs fully aligned with the evolution of international law. Indeed, it contains several largely innovative provisions susceptible to address the criticism raised in the last few years against investment treaties.

From popularity to hostility

Investment treaties, and especially BITs, were popular in the 1990s and 2000s. Their number grew quite spectacularly as did the participation of developing countries. In the last few years, however, BITs have been increasingly perceived by States as inconvenient for several reasons, including unbalanced content, restrictions on regulatory powers, and inadequacies of investment arbitration.

Dissatisfaction with traditional BITs has generated four main types of reaction: (a) reluctance to ratify BITs. Since 2012, only 25 BITs have entered into force (see here); (b) conclusion of facilitation agreements, which radically downgrade the substantive protection of foreign investment and do not provide for arbitration (see, eg, Treaty between Brazil and Mozambique); (c) termination of BITs and adoption of investment legislation (see South Africa Protection of Investment Act, 2015); and (d) upgrading of BITs with a view to striking a better balance between the private and public interests at stake. The BIT concluded – but not in force yet – between Morocco and Nigeria is a fine example of the last typology.

Institutional provisions

The treaty establishes a Joint Committee composed of representatives of both Parties with the following responsibilities: (a) to monitor the implementation and execution of the treaty (including facilitate the exchange of information and when appropriate set corporate governance standards); (b) to debate and share opportunities for the expansion of mutual investment; (c) to promote the participation of the private sector and civil society; and (d) to seek to resolve any issues or disputes concerning Parties’ investment in an amicable manner.

Sustainable development

The enhancement of sustainable development is the overarching objective of the treaty as it transpires from the four references to it contained in the preamble. The definition of investment in Art. 1(3) requires that investments contribute to sustainable development, although sustainable development is not expressly included amongst the characteristics of investment. Interestingly, under Art. 24(1), investors “should strive to make the maximum feasible contributions to the sustainable development of the host State and local community”. It is also worth noting that the definition of investment excludes inter alia portfolio investments.

Standards of protection

The treaty ensures a level of substantive protection comparable to that traditionally contained in BITs. Starting with contingent standards, the national treatment standard applies in like circumstances, which are indicated in the non comprehensive list of Article 6(3). The MFN standard is applicable “to make an investment and conduct business”.

Inspired by North American practice, under Article 7 investors are entitled to the minimum standard of treatment (MST) guaranteed under customary international law. The same provision further clarifies that fair and equitable treatment (FET) includes “the obligation not to deny justice in criminal, civil or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of a Party”, while full protection and security refers to “the level of police protection required under customary international law”.

The remaining substantive provisions, including that on expropriation, transfer of funds and subrogation, largely reflect consolidated BITs practice too.  

Obligations for foreign investors

The overwhelming majority of BITs impose obligations only upon States (see Spyridon v. Romania). Conversely, the treaty between Morocco and Nigeria introduces a series of obligations upon investors. Investors shall comply with environmental assessment screening and assessment processes in accordance with the most rigorous between the laws of the host and home states, as well as a social impact assessment based on standards agreed within the Joint Committee (Art. 14(1) and (2)).

Under the treaty, investors must, after establishment, apply – alongside the host State – the precautionary principle (Art. 14(3)). They also have to maintain an environmental management system and in case of resource exploitation and high-risk industrial enterprises also a current certification to ISO 14001 or an equivalent environmental management standard (Art. 18(1)). Moreover, investors must uphold the human rights and act in accordance with core labour standards (ILO 1998 Declaration on Fundamental Principles and Rights of Work) as well as the international environmental, labour and human rights obligations of the host state and/or home state (Art. 18).

Investments shall meet or exceed national and internationally accepted standards of corporate governance for the sector involved, in particular for transparency and accounting practices (Art. 19). Furthermore, investors and their investments are expected to operate through high levels of socially responsible practices and should apply the ILO Tripartite Declaration on Multinational Investments and Social Policy, as well as specific or sectorial standards of responsible practice (Art. 24).

Equally important, the BIT requires that investors and their investments shall never engage or be complicit in corruption practices. Non compliance with this obligation would amount to a breach of the domestic law of the host State and be prosecuted accordingly (Art. 17(2) to (5)).

Regulatory powers

Each State has an “undeniable right and privilege to exercise its sovereign legislative power” (see Parkerings Companiet AS v. Lthuania). Such power, however, must be exercised in accordance with international obligations, including investment treaties. Yet, investment treaties are often perceived by the host State as unduly restricting its regulatory powers and its capacity to protect collective interests.

The BIT between Morocco and Nigeria addresses this concern by recognizing – perhaps in a rather inelegant drafting – the parties’ right to exercise discretion:

“with respect to regulatory, compliance, investigatory, and prosecutorial matters and to make decisions regarding the allocation of resources to enforcement with respect to other environmental matters determined to have higher priorities” (Art. 13(2)).

Moreover, nothing in the treaty prevents them from adopting, maintaining, or enforcing, in a non-discriminatory manner, any measure otherwise consistent with this Agreement that they consider appropriate to ensure that investment activity in their territory is undertaken in a manner sensitive to environmental and social concerns (Art. 13(4)). More generally, regulatory powers – which are based on balancing the rights and obligations of investors and those of the State – must be exercised in accordance with customary international law and the principles of international law (Art. 23(2)). Under Art. 23(3), finally, non-discriminatory measures taken to comply with international obligations under other treaties do not constitute a breach of the BIT.

Procedural provisions

As most BITs, the treaty provides for mandatory settlement of both investor-State (Art. 27) and State-State disputes (Art. 28). With regard to the first category, Art. 27 provides investors – and investors only – access to arbitration (ICSID, UNCITRAL or any other tribunal).

State-State disputes are to be settled before a three-member arbitral tribunal (Art. 28). Before resorting to arbitration, however, the Parties “shall strive with good faith and mutual cooperation to reach a fair and quick settlement of the dispute”. No timeframe for the peaceful settlement of the dispute is established.

The treaty contains also an innovative – yet rather problematic – provision titled “disputes prevention”, according to which, before initiating arbitral procedure, “any dispute between the Parties shall be assessed through consultations and negotiations by the Joint Committee” upon a written request by the State of the concerned investor (Art. 26(1) and (2)). Representatives of the investor and the host State (or other competent authorities) participate, whenever possible, in the “bilateral meeting” (Art. 26(2)). The procedure ends at the request of “any Party” and with the adoption by the Joint Committee of a report summarizing the position of “the Parties”. If the dispute is not settled within 6 months, the investor may resort to international arbitration after exhausting domestic remedies Art. 26(5).

Art. 29 provides for the possibility of consolidating, upon a request by “any disputing party” of two or more claims submitted separately to arbitration under Art. 27 and 28 that “have a question of law or fact in common and arise out of the same events or circumstances”. The Joint Committee decides the procedure for consolidation and indicates the appointing authority.

Arbitral proceedings shall be transparent, and, in particular, the notice of arbitration, the pleadings, memorials, briefs submitted to the tribunal, written submissions, minutes of transcripts of hearings, orders, awards and decisions of the tribunal shall be available to the public (Art. 10(5)).

Finally, the treaty introduces a novel provision on the liability of investors, who:

“shall be subject to civil actions for liability in the judicial process of their home state for the acts or decisions made in relation to the investment where such acts or decisions lead to significant damage, personal injuries or loss of life in the host state” (Art. 20).

Final provisions

The treaty contains a provision on termination by mutual consent as well as on unilateral termination (Art. 34), but no sunset clause.

Preliminary assessment of the treaty

The substantive provisions of the treaty replicate in good substance those commonly found in BITs. The specifications on “like circumstances” for the purpose of the national treatment may be expected to facilitate the interpretation and application of the standard. The reference to the making of an investment and the conduct of business in the MFN provision presumably excludes the application of the standard to procedural provisions, although an express clarification in this sense could have been appropriate (see, eg, Art. 4 of the BIT between Switzerland and Colombia). The provision on MST conveys the cautious approach of the Parties through the careful demarcation of FET and the confinement of protection and security to police protection.

The significance of the treaty lies with three main largely innovative elements.

First, the treaty counter-balances the protection granted to investors with a series of obligations on the conduct of investment. While not entirely novel (see ECOWAS Supplementary Act on Investments), these obligations – especially those related to environmental and social impact assessment, human rights, corruption, and corporate governance and responsibly – greatly increase the legitimacy of the treaty and pave the way to a new approach in the regulation of foreign investment.

Second, the treaty effectively addresses another of the main sources of criticism toward investment treaties by carefully safeguarding the policy space of the host State. The express obligation incumbent upon the host State to exercise its regulatory powers in accordance with customary international law and the general principles of international law, although strictly speaking not indispensable, is to be welcomed. The same can be said about the provision on compliance with other international treaties. The difference in the sources of international obligations referred to in the two provisions, however, is not apparent. With regard to environmental measures, it is worth noting that their adoption depends on the good-faith judgment of the host State without any necessity test being applicable.

Third, with regard to dispute settlement, the treaty confirms that time is not ripe yet for permitting States to file a request for international arbitration against investors. Perhaps more surprisingly, the treaty remains silent on both counter-claims (see, e.g., Art. 14(11) Indian Model BIT, here) and non-disputing Party submissions (see e.g. Art. 28(2) of the BIT between the United States and Rwanda, here).

The involvement of the Joint Committee in the peaceful settlement of disputes is definitely intriguing. Yet, Art. 26 is rather ambiguous in many respects. Leaving aside its unfortunate title, it deals with investor-State disputes and inexplicably refers to “disputes between the Parties” and “a solution between the Parties”. Moreover, Art. 26 does not indicate what is the position of the investor in the whole exercise beyond the possible participation in “bilateral meeting” of the Joint Committee. Equally important, it does not define the nature and legal significance of the “assessment” of the dispute, or the meaning of “consultations and negotiations”.

Art. 26 blurs the roles and positions of States and investors. It undermines the essence of the settlement of investor-State disputes, namely their insulation from political considerations, hazards and pressure. The very fact that the procedure under Art. 26 is activated by the national State is questionable and may raise several problems, also with regard to the jurisdiction of arbitral tribunals under Art. 27. Finally, abandoning direct negotiations between the investor and the host State as pre-condition for international arbitration seems rather counterproductive.

The inappropriate conflagration between the roles and interests of investors and States characterises also the possible consolidation under Art. 29 of investor-State and State-State disputes. Such a possibility is bound to be fraught with procedural and conceptual difficulties.

The provision on the investor liability before the tribunals of the home State, finally, may have a considerable impact on domestic litigation against investors – especially multinational companies – and help overcome jurisdictional hurdles and most prominently the forum non conveniens doctrine. This can be considered as an important development from the standpoint of the responsible conduct of investments, the redress of wrongful doings, and the role of the home State.

Concluding remarks

BITs are not necessarily treacherous legal products. As any other treaties, they are simply an instrument at the disposal of the contracting parties to legally protect their respective interests. What really matters is their content, which obviously depends on the agendas, choices and concessions of the parties.

Morocco and Nigeria have shown confidence that such an instrument can offer investors solid protection without compromising on the host State’s rights or on social values. Their BIT contains several innovative provisions that recalibrate the legal protection of the interests of all stakeholders and can be expected to enhance the chances for economically, socially and environmentally sustainable investments.

With regard to procedural matters, the provision on liability of investors before the tribunals of the home State is an important development. The provisions on the involvement of the Joint Committee in the peaceful settlement of disputes and on consolidation, on the contrary, present significant problems that the Parties may consider addressing through an exchange of letters, a protocol, or any other suitable means.

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