The Use of Cluster Munitions by Saudi Arabia in Yemen and the Responsibility of the United Kingdom - Tue, 03/07/2017 - 11:00

In December 2016, after repeated denials, Ahmed Asiri, a spokesman for the Saudi-led coalition fighting in Yemen, said: ‘It has become apparent that there was limited use by the coalition of the UK-manufactured BL755 cluster munition in Yemen’. This admission opened up questions about the United Kingdom’s potential responsibility for the use of cluster munitions by the Kingdom of Saudi Arabia. Britain’s Defence Secretary Michael Fallon informed the Commons that the munitions used by Saudi Arabia had been delivered in the 1980s, well in advance of the entry into force for the United Kingdom of the Convention on Cluster Munitions (‘the Convention’) on 1 November 2010. The treaty was implemented through the Cluster Munitions (Prohibitions) Act 2010 (‘the Act’).

 A judicial review of the granting of export licences to Saudi Arabia is currently taking place in the English High Court, following an application by the Campaign Against the Arms Trade (see here). The application focuses on export licences for weapons in general, and follows allegations of violations of international humanitarian law by Saudi Arabia, including, but not limited, its use of cluster munitions.

In this post, I focus on the specific responsibility of the UK arising under the Convention on Cluster Munitions for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel.

The post addresses three issues: first, whether issuing export licences for aircraft to Saudi Arabia can be construed as a breach of Article 1(c) of the Convention; second, whether the exception on interoperability in Article 21 of the Convention covers the acts by the UK in respect to the use of cluster munitions by Saudi Arabia; and third, whether the UK’s responsibility could also arise also under Article 16 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (‘the 2001 Articles’).

Export Licences for Aircraft and the Prohibition of Assistance under Article 1(c) of the Convention

The first issue is whether the sale of aircraft can be construed as a breach of the Convention. Before developing the legal argument, it is paramount to assess what evidence is available for this claim. The cluster munitions whose use has been confirmed by both the Saudi and UK governments are UK-made BL755, manufactured by Hunting Engineering Ltd since 1972. These munitions are cleared for use with the BAE-made Tornado aircraft. BL755 cluster munitions cannot be deployed without aircraft. In a reasonable analogy, they are like bullets which need pistols to be delivered.

Following a request under the Freedom of Information Act (2000) that I made on 10 January 2017, the Ministry of Defence (‘MoD’) confirmed that:

  • The UK signed an export licence for Tornado aircraft in 1998 (a follow-up question on whether further export licences were granted for other aircraft is currently pending);
  • BAE provides through-life support for all its aircraft (follow-up question on review procedure pending);
  • BAE also provides type conversion training (follow-up on whether this includes usage of munitions deployment, including sensors and radar, and frequency of training);
  • All UK support for BL755 stocks was withdrawn at end of 2008 (follow-up on timing of last refresher training and life-span of training);
  • BAE provides Tornado Release to Service (RTS) documents, which until 2008 contained carriage and release clearances for BL755 (follow-up on whether these RTS were requested back from Saudi Arabia in 2008 and replaced with new ones without BL755 clearances, and whether aircraft can be retrofitted not to deploy cluster bombs, and if so, whether this was done).

The Convention on Cluster Munitions was adopted on 30 May 2008 in Dublin; it was opened for signature on 3 December 2008 in Oslo. The UK signed on that date, and the Convention entered into force, as stated, in November 2010. Under Article 18 of the 1969 Vienna Convention on the Law of Treaties, the UK is ‘obliged to refrain from acts which would defeat the object and purpose of the treaty’ after signature and before entry into force. It is reasonable to state that the object and purpose of a treaty, normally indicated in the preamble, are given legal force in the main articles of the treaty, of which Article 1(c) of the Convention is undoubtedly an example. It therefore seems equally reasonable to consider the actions of the UK from December 2008 in order to assess potential responsibility, but more conservatively, any action from November 2010 will clearly be covered by the obligations arising under the Convention. Follow-up replies by the MoD to the FOI request will clarify the temporal element of the UK’s actions.

Article 1(c) of the Convention states as follows:

1. Each State Party undertakes never under any circumstances to:…

(c) Assist, encourage or induce anyone to engage in any activity prohibited to a State Party under this Convention.

For the purpose of the actions imputed to the UK, the relevant verb is ‘assist’. The question is thus whether the continued training support provided to Saudi Arabia for the use of Tornado and other aircraft constitutes ‘assistance’ for the purpose of Article 1(c) in the deployment of BL755 cluster munitions in Yemen. The prohibition ratione personae covers assistance ‘to anyone’, i.e. both States who are not parties to the Convention and indeed non-State actors. Saudi Arabia would fall under the first category, as it is not a party to the Convention. However, the material scope of the prohibition, i.e., the exact meaning of ‘assist’ for the purpose of the Convention, is not as clear, and it was not discussed extensively during the drafting stages. The Commentary to Article 1(d) of the 1993 Convention on Chemical Weapons, which is almost identically worded, notes that assistance:

‘can be given by material or intellectual support … but also financial resources, technological or scientific know-how or provision of specialised personnel, military instructions etc. to anybody who is resolved to commit such prohibited activities’.

It is arguable that this explanation can be extended to the almost identical language of the Convention and include in its scope the grant by the UK of an export licence that covers life-time support to be provided by BAE, and for what concerns the direct responsibility of BAE, to Sections 2(2) and 4(3)(c) of the Act, the first one incorporating the language of Article 1(c) of the Convention, and the second one extending the obligation to any bodies incorporated under the law of any part of the UK.

Assistance and Considerations of Interoperability with Coalition Partners – Article 21 of the Convention

Issues of assistance, prohibited under the Convention, intersect with issues of interoperability, defined as the ‘ability of forces … to operate jointly in the performance of a task, a mission or an operation’, which is allowed, with limitations, under the Convention at Article 21(3):

Notwithstanding the provisions of Article 1 of this Convention and in accordance with international law, States Parties, their military personnel or nationals, may engage in military cooperation and operations with States not party to this Convention that might engage in activities prohibited to a State Party.

This clause might not have immediate application for the problem under consideration, which does not necessary cover instances of interoperability or cooperation. Were it to be found, for example, that UK forces cooperated in the identification and selection of bombing targets by Saudi Arabia, that eventuality would undoubtedly engage Article 21’s criteria for lawful interoperability [though it should be noted that ‘mere participation’ is not to be considered assistance for the purpose of Article 21 – see Nystuen and Casey-Maslen, The Convention on Cluster Munitions: A Commentary (OUP 2010), 546 and also the UK’s declaration upon ratification of the 1997 Anti-Personnel Mine Ban Convention]. However, classifying the provision of aircraft and technical support as within the category of interoperability and cooperation would be problematic. Additionally, the undefined delimitation between prohibited assistance under Article 1(c) and allowed cooperation under Article 21 remains contested, and open to movement as a consequence of developments in customary humanitarian law. For example, an emergent customary prohibition on the use of cluster munitions would inevitably have repercussions on the application of Article 21, as the cooperation has to take place ‘in accordance with international law’. All the same, nothing in the Commentary to the Convention shows that the issue of provision of aircraft was raised during the drafting discussions of Article 1 or Article 21.

Complicity under Article 16 of the 2001 ILC Articles on State Responsibility

The third issue is whether responsibility would arise for the UK under the general rules of State responsibility as distilled in the 2001 Articles of the International Law Commission (ILC). The Commentary to the Convention suggests that Article 16 of the 2001 Articles might provide some insight on the interpretation of the concept of ‘assistance’ for the purpose of responsibility under Article 1(c).

Article 16 of the ILC Articles states as follows:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.

It is clear from the language of the Article, and specifically its chapeau, that the international obligation must bind the State committing the act (‘the commission of an internationally wrongful act by the latter). Additionally, the assisting State must do so in the knowledge of the circumstances, and be itself bound by the international obligation in question. As Saudi Arabia is not a State party to the Convention, Article 16 is not applicable to the use of cluster munitions in the circumstances being examined here; therefore, Article 1(c) is lex specialis with respect to it. It is clear that Article 16 and its commentary are useful aids to interpretation, for example of the meaning of ‘assistance’, but not to the application of the wider scope of responsibility under the Convention, where responsibility attaches to acts of assistance regardless of whether the assisted State is bound by the prohibition or not.


This post has focused on the specific responsibility of the UK arising under the Convention on Cluster Munitions, both as a matter of international law and of domestic law, under the relevant 2010 Act, for the use by Saudi Arabia of UK-provided aircraft, and support by British personnel. The facts regarding UK support will need to be ascertained more fully, and hopefully the pending Freedom of Information requests will help provide clarity and support the legal argument. If and when responsibility will be established, it will become crucial to be able to work out the consequences, especially as a matter of domestic enforcement of the Act.

International Commissions of Inquiry as a Template for a MH17 Tribunal? A Reply to Larissa van den Herik - Mon, 03/06/2017 - 09:00

My article published in the last EJIL issue was originally inspired by research on early war crimes trials, and the North Sea Incident Commission stood out as a highly unorthodox and unusually early foray into what we would call international criminal law. I am delighted that Larissa van den Herik’s response has recognized the significance of the commission’s mandate to establish individual responsibility and guilt, a fact not acknowledged in the literature before. It demonstrates the variety within the practice inspired by the Hague Conventions of 1899 and 1907, and that a commission of inquiry tackling questions of accountability is not an entirely new thing. We differ on what conclusions and lessons can be drawn from these facts. I do not have the space to provide full answers to the many different criticisms raised in Prof. van den Herik’s piece but I am grateful that I was given the opportunity to briefly address the most important ones on this forum.

Prof. van den Herik wonders whether the Dogger Bank case and modern commissions of inquiry investigating large-scale violations of human rights can usefully be grouped together as being part of the same family. That is open to debate – my entire point here is that the embrace of accountability and indeed international criminal law that is controversially discussed regarding contemporary commissions of inquiry is not completely new and unprecedented, as other scholars have argued. Moreover, the North Sea Incident inspired much of the rulebook for international commissions of inquiry as laid out in the 1907 Hague Convention on the Pacific Settlement of International Disputes, so this case is more than just an outlier. In terms of categorization, I clearly present the North Sea Incident Commission as the very first of the small number of adversarial international commissions of inquiry, a rare sub-type of inquiry used for the investigation of single incidents involving attacks on civilian vessels. These adversarial setups have similarities to a criminal court, most prominently in the Dogger Bank case. In 1922, a commission of inquiry set up in this way ordered Germany to pay for the sinking of the Dutch trawler Tubantia during the First World War. In 1962, a similar commission held that the Danish navy used excessive force in dealing with the British trawler Red Crusader that had intruded into Danish waters while fishing around the Faroe Islands. Practitioners of international criminal law can either choose to embrace them as useful tools to resolve particularly intractable disputes, or reject them because they blur the distinction between fact-finding and international criminal law. What I wanted to highlight is that these precedents exist, and that states have repeatedly decided to set up international commissions of inquiry that strayed from the model described in the Hague Conventions.

Moreover, by making a rather fanciful comparison to Alice in Wonderland Prof. van den Herik suggests that I have proposed some sort of kangaroo court. She seems to have misunderstood my point that putting military officers before an international tribunal in the world of 1904 raised serious issues of national and military honour. To make the proposed commission more palatable to Russia, Britain suggested that the privilege of imposing the punishment should remain with the nation state of anyone found guilty by the tribunal. No great power would have surrendered leading officers to an ad hoc panel without insisting on a similar condition. Times have changed since then, and at no point do I suggest that a commission established today should pay similar homage to concepts of military honour. Yet, it was perfectly sensible for Andre Mandelstam (who would later become an important early proponent of human rights in the interwar period [see here]) to conclude that this feature was vital if there was to be any chance of establishing something akin to international criminal law in the world as it existed then. After all, the separation of a guilty verdict passed by a jury and a sentencing stage conducted by a judge was not unheard of in national criminal law systems.

The main point of Larissa van den Herik’s response to my article is that she does not share my belief that a commission modelled on the North Sea Incident might be a viable route for an investigation into the downing of flight MH17. Surprisingly, her critique comes from two opposite angles: on the one hand, she suggests that my proposal is so tough for Russia to consent to that it would require military pressure that unlike in 1904 is unavailable today. At the same time, she alleges that an investigation along the lines I suggest would be so conducive to Russian manipulation that if it ever happened its agenda and outcome would be entirely at the mercy of Moscow’s machinations. Surely these criticisms cannot both be true at the same time?

As for the danger of Russian dominance, the main features of an adversarial commission of inquiry make it impossible for one state to control the inquiry: neutral judges are always in the majority, and decisions are taken by majority vote, without the possibility of a veto. It is true that the Russian delegate at the North Sea Incident commission threatened to withhold his signature from the final report unless it included a declaration affirming the honour of the Russian officers, showing once more the vital importance of that concept in the world of 1905. The rule in the 1907 Convention on the Pacific Settlement of Disputes stating that the absence of a signature does not invalidate a report as a whole (Art. 33) is a direct response to this incident and ensures that it cannot be repeated. Yet, when Larissa van den Herik argues that this incident supports her argument about the danger of Russia taking overall control of the inquiry since ‘Russia ensured that no punishment followed the outcome of the inquiry’ this is a misreading of the evidence. The absence of a demand for formal punishment was a decision taken by the full commission which concluded that what Admiral Rozhestvensky had done was not a deliberate attack on civilians, but an act of negligence in difficult and confusing circumstances. The report as a whole embraced the British case, and was a resounding rejection of Russia’s arguments.

Yet van den Herik’s critique goes further, and suggests that responding to a Russian veto of a bespoke MH17 tribunal with a second proposal that addresses the concerns raised at the time the veto was made means pandering to Russia. I find it hard to agree, and my reply would be that this depends on whether the reasons stated by Russia were completely fanciful, or whether they had some merit.

The concerns raised at the time were specific and referred to three separate issues. First, Russia’s UN delegate Vitaly Churkin criticized the structure of the tribunal as overelaborate. Any investigation into this complex incident will be lengthy and costly, but the question may be reasonably raised whether it requires a prosecution with its own investigation team, a registry, a pre-trial judge, a Trial chamber and an Appeals chamber (Art. 20 and 21 of the draft MH17 tribunal statute), with the judges appointed for a five-year period by a specially created selection panel under the supervision of the UN Secretary General (Art. 23). For the investigation of a single incident, a simpler structure might be a better way forward.

Second, Russia was concerned that not all parties to the inquiry would have equal access to the evidence used by the judges in their decision-making, specifically evidence provided by national intelligence services. Art. 51 (6) of the draft resolution gave the MH17 Tribunal’s judges the authority to potentially convict an accused on the basis of such evidence, without the need to disclose it to the defendant’s legal team if a state insisted that national security interests were compromised otherwise. One does not have to be in the pay of Moscow to see a problem with this rule, and a proposal modelled on an adversarial commission of inquiry like the North Sea Incident Commission (which did handle naval intelligence) would avoid it.

Third, Russia took offence that the draft resolution that would have set up the tribunal stated that the Council was ‘acting under Chapter VII of the charter’, usually reserved for grave threats to international peace and security. In my view, there is no legal reason to insist on this categorization for an inquiry into the MH17 incident.

I do not think that suggesting a format that addresses these three concerns while potentially being agreeable to all parties involved means pandering to power. Rather, it can help us resolve what van den Herik has rightly described as the ‘key question’: was Russia genuine in opposing these specific features of the planned tribunal while stating its support for a ‘genuine international and independent investigation’, or were these concerns convenient pretexts to mask its opposition to any meaningful inquiry? Indeed, one advantage of my proposal is that even a negative reply would help settling that important point, and tell us whether the Kremlin is prepared to honour the promise of support for an international investigation made at the UN by its recently deceased ambassador Vitaly Churkin.

Finally, van den Herik contends that the chances of a positive reply from Moscow are rather slim. Here, we are moving into the sphere of international politics, and I disagree with her analysis that Russia is entirely immune to the concept of international embarrassment. Moscow is not Pyongyang, and at least has ambitions to be taken serious as a leading power. Contemporaries in 1904 were equally skeptical about the prospects of the North Sea Incident Commission when it was announced – my article cites a lawyer stating that an agreed final report would be the ‘most improbable result’. Political circumstances can change with surprising speed, and if there is any window of opportunity for a legal forum that can establish an undisputed account of what really happened, provide compensation for the relatives of the victims and secure proportionate punishment of the perpetrators then it should be exploited. As a historian of international law I see one of my tasks as identifying solutions that have resolved international crises and controversies in the past, and offer them as options to the policymakers of today. Even if the right political circumstances for their implementation do not exist today, they might do so tomorrow, and given the current deadlock regarding an international investigation of the MH17 tragedy I felt it was my duty to point towards this forgotten and highly unusual precedent.

Announcements: The Future of International Organization Roundtable; CfP Freedom Under Pressure; International Law and Colombian Peace Agreements; CfA Public Law and the New Populism; New Additions to the UN Audiovisual Library of International Law - Sun, 03/05/2017 - 09:00

1. The Future of International Organization Roundtable. On Friday 10 March 2017, the ABILA United Nations Law Committee organises a round table discussion on “The Future of International Organization”, featuring a panel of co-editors of and contributors to the Oxford Handbook of International Organizations (OUP 2017). The event starts at 6pm at the New York City Bar Association and will be followed by a reception to mark the launch of the Handbook. It is co-sponsored by the New York City Bar Association, ASIL, the Fletcher Club of New York and Oxford University Press. For more information and registration please click here.

2. Call for Papers – International Conference ‘Freedom Under Pressure’ – Ghent, 7-8 December 2017. The international conference ‘Freedom Under Pressure’, is organised by the Faculty of Law of Ghent University on the occasion of the latter’s bicentennial. It seeks to gather scholars and practitioners from various legal disciplines to discuss key fundamental rights and freedoms under pressure in three distinct areas: (1) data protection and privacy, (2) freedom of movement in the EU, and; (3) property protection. Speakers and keynote speakers that will take part in the conference include inter alia Prof. Joseph Cannataci (UN Special Rapporteur on the right to privacy), Gilles de Kerchove (EU Counter-Terrorism Coordinator), Judge James Crawford (International Court of Justice) and Ms. Catherine Marchi-Uhel (Ombudsperson for the UN Security Council’s ISIL and Al-Qaida Sanctions Committee). Legal scholars wishing to present a paper in the context of one of the conference (12) panels are warmly invited to submit an abstract of no more than 400 words to freedomunderpressure {at} ugent(.)Be var mailNode = document.getElementById('emob-serrqbzhaqrecerffher@htrag.Or-80'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%66%72%65%65%64%6F%6D%75%6E%64%65%72%70%72%65%73%73%75%72%65%40%75%67%65%6E%74%2E%42%65"); tNode = document.createTextNode("freedomunderpressure {at} ugent(.)Be"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-serrqbzhaqrecerffher@htrag.Or-80"); mailNode.parentNode.replaceChild(linkNode, mailNode); . The deadline for abstracts is 31 March 2017. The deadline for submitting full papers is 15 September 2017. More information on the conference, including the full call for papers with further details of the different panels, can be found here.

3. International Law and Colombian Peace Agreements. The Master in International Law at University of La Sabana and the Doctorate in Juridical Sciences at the Pontifical Javeriana University invite you to participate in – and follow via live-streaming – the Forum International Law and Colombian Peace Agreements. The event will take place next Wednesday, 8 March 2017, from 8.00 to 13.00 (Colombian time), at University of La Sabana, and attendance is free. The invited lecturers are Makane Mbengue (University of Geneva) and Jean d’Aspremont (University of Manchester). Along with them, many Colombian scholars will compose the discussion boards. The complete program and additional information can be found here. For access to live-streaming, please fill the registration form (here). In the question “¿Desea seguir el conversatorio vía streaming?*”, choose “Si”.

4. Call for Abstracts – Public Law and the New Populism. The International Journal of Constitutional Law (I-CON) is pleased to announce a call for abstracts for a workshop on “Public Law and the New Populism” to take place at NYU School of Law on 15 September 2017. The workshop will be co-hosted by the Jean Monnet Center for International and Regional Economic Law & Justice at NYU. The focus of the workshop will be on the relationship between the current populist turn in national and international politics, on the one hand, and legal norms and institutions on the other. The aim is to bring together constitutional, international and public law scholars to investigate some of the distinctively legal dimensions of the populist wave sweeping the world’s democracies. Each paper will be presented and discussed by an assigned commentator and other participants. Following the workshop, there may be an opportunity for a subset of the papers to be submitted to the I-CON journal as a proposed symposium issue. Abstracts of between 250 and 750 words should be submitted on or before 31 March 2017, by email to Daniel Francis at daniel.francis {at} law.nyu(.)edu var mailNode = document.getElementById('emob-qnavry.senapvf@ynj.alh.rqh-22'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%64%61%6E%69%65%6C%2E%66%72%61%6E%63%69%73%40%6C%61%77%2E%6E%79%75%2E%65%64%75"); tNode = document.createTextNode("daniel.francis {at} law.nyu(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-qnavry.senapvf@ynj.alh.rqh-22"); mailNode.parentNode.replaceChild(linkNode, mailNode); , with “Populism Workshop Submission” in the subject line. Final papers will be due by 15 August 2017.

5. 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 additions include a four-part lecture on “International Law Relating to Islands” given by Professor Sean D. Murphy.

The Impact of Austerity Policies on International and European Courts and their Jurisprudence - Fri, 03/03/2017 - 09:05

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Many countries have been hit by deepening economic depression induced by the economic crisis of 2008. While there is no doubt that the crisis had its origins in unregulated financial speculation, by bailing out and recapitalising the broken banking system (see Bieling 2014), national governments were blamed for the financial slump and were asked by some international institutions, to adopt a policy of austerity (see Blyth 2013). This policy involved draconian cuts in government budgets and spending, the privatisation of public-sector organisations and administrations, and reduction of wages and prices to rescue financial and banking institutions that were deemed “too big to fail”. The main effects of these austerity policies have been described, studied and analysed in terms of the decline of welfare states, breaches of social rights, unemployment, and rising social inequalities between the rich and the poor (see Contiades and Fotiadou 2012; Kilpatrick and De Witte 2014 ; Vettori 2011).

The negative effects of austerity on fundamental rights protection have been monitored and denounced by several European institutions, including those responsible for protecting fundamental rights (see here and here). However, scant academic attention has been paid to the way international and regional courts are dealing with some of the policies within the economic crisis as human rights violations (see Salomon 2015). The austerity cases that have been brought before the European Court of Human Rights and the UN Committee on Economic, Social and Cultural Rights have faced the hurdles of admissibility and scope.

The European monitoring of the consequences of the economic crisis

Regarding the European Court of Human Rights [ECtHR], in a number of cases the Court has rejected applications (as it found them inadmissible as manifestly ill-founded) relating to austerity, notably in the field of wages and pensions. Here, the Court relied on the principles of proportionality and subsidiarity, and the limited and temporary nature of austerity measures (see Khoniakina v Georgia, Bakradze v Georgia, Frimu and Other v. Romania, Da Conceição Mateus v. Portugal, Santos Januário v. Portugal and Da Silva Carvahlo Rico v Portugal).

Equally, we could also point out a new sensitivity of the judges of the Court to economic and social rights affected by the economic crisis, austerity policies and public spending cuts. While the European Convention in itself does not enshrine them, with the exception of Article 4 § 2 (prohibition on forced labour), Article 6 § 3 c (the right to free legal assistance), Article 11 (the right of association and the right to strike) and Article 2 of Protocol 1 to the Convention (the right to education), this sensitiveness has led the Strasbourg Court to take economic and social rights into account. This new trend was facilitated by the wide interpretation given to the Convention as a living and flexible instrument, which must be interpreted in light of present day conditions. It was also spurred on by European judges’ perception of their own roles within society; impacts of austerity measures on human rights are very significant and cannot be ignored by the Court. We can also point to growing connections between international and European human rights agencies (which have recently focused on the adverse effects of austerity) and the European Court as further explaining this trend. A critical approach to austerity policies was supported by the European Agency for Fundamental Rights [EAFR] and the CoE Commissioner for Human Rights. Through reports, conferences and interactions with judges, these offices are a source of influence and awareness about the social and economic consequences of austerity on the population and in particular, on vulnerable and poor people.

In 2013, a seminar dedicated to the implementation of the ECHR in times of economic crisis was organized by the Court on behalf of prominent European judges and closed to European human rights agencies (such as former president Spielmann, former vice president Tulkens who became member of the European Agency for Fundamental Rights). Increasing attention in this area might also be explained by the Court’s awareness of the threat austerity policy poses to its own budget and development through the adoption of zero growth by the Council of Europe (see Lambert 2016).

This new awareness of the negative impacts of austerity measures has been reflected in the ECtHR’s jurisprudence relating to access to justice. Although the Strasbourg Court does not require that access to justice be completely free of charge, the Court has recognised that state fees cannot be so high as to unreasonably obstruct people from bringing a case to court, especially in times of economic crisis (Mehmet and Suna Yiğit v. Turkey). According to the Court, the size of a state fee should not be an obstacle to initiating proceedings, and excessive court fees (e.g. the equivalent of the average annual salary or four times the minimum monthly wage) are manifestly in violation of the Convention. In addition, decisions delivered by courts must be executed within a reasonable timeframe. In this regard, the European Court has rendered pilot judgments requiring Greece to remedy the problem of delays by the courts in hearing administrative (Vassilious Athanasiou v Greece), criminal (Michelioudakis v Greece), and civil  (Glykantzi v Greece) cases caused by public cuts.

The position of the Strasbourg Court echoes the opinion expressed by the Commissioner for Human Rights of the CoE and the EAFR which have both pointed out the problems faced across Europe in the area of judicial protection in the context of economic downturn: high state fees, inaccessible legal assistance, inadequate alternative dispute resolution mechanisms, inconsistent judicial awards, drastic cuts to the budgets of the judiciary, and a low level of awareness among the population of rights and rights protection (see Report of European Union Agency for Fundamental Rights, 2010). In this regard, the European Court is aware of two important conclusions drawn at the annual conference of the European Union Agency for Fundamental Rights in December 2012 which addressed the issue of access to justice in times of austerity. Despite the economic crisis or because of it, access to justice and the right to an effective legal remedy must be increased, however not so much quantitatively as qualitatively. It is also crucial to ensure that all people, especially vulnerable groups, are aware of their rights.

The UN Committee on Economic, Social and Cultural Rights

Due to its clear mandate on economic and social rights under the International Covenant on Economic, Social and Cultural Rights, the UN Committee on Economic, Social and Cultural Rights (CESCR) is expected to be more responsive to austerity than the ICJ and the ECtHR. The Committee has indeed recently tackled several times the effects of austerity policies conducted by national states targeted by the troika through its concluding observations (such as those of Greece, Ireland, Portugal, Spain). In the same way as the ECtHR, the Committee has notably considered that austerity policies can be applied only where they are temporary, necessary, not discriminatory and do not disproportionately affect the rights of disadvantaged and marginalized individuals and groups.

Concerning countries that are not monitored by the troika, the CESCR stated for the first time in 2016, that austerity measures and social security reform adopted by the UK constitute a breach of its international human rights obligations (to respect, protect and fulfil economic, social and cultural rights progressively, to the maximum of its available resources). In particular, the Committee denounced the disproportionate adverse impacts of austerity policies on inequalities, poverty, unemployment, homelessness, discrimination and restriction of access to social welfare, education and housing benefits, foodbanks, healthcare, childcare and justice especially for disadvantaged and marginalised individuals and groups.

The I.D.G. v. Spain case, the first ever communication under the Optional Protocol of the CESCR, concerns the effects of austerity policies and goes beyond the ECtHR jurisprudence. The case, which is connected to the CESCR concluding observations on Spain (see above) and the case law of the European Court of Justice, concerned the threat of austerity policies on the right to housing impacting large numbers of people in Spain who lost their homes after defaulting on mortgage payments. For the first time, a national State was obliged by the CESCR to provide effective remedies in foreclosure procedures concerning default on mortgage payments (in order to protect the right to housing) and to ensure that all appropriate legislative or administrative measures are adopted to guarantee personal notification in foreclosure procedures. Spain must also pass legislation to ensure that the mortgage enforcement procedure and the procedural rules contain appropriate requirements and procedures to be followed before going ahead with an eviction. This case follows and enforces the 2012 concluding observations of the CESCR in respect of Spain’s lack of legal safeguards in the case of forced evictions. The case relied also on the ruling, Mohamed Aziz v. Catalunyacaixa delivered on 14 March 2013 by the ECJ, which held that Spanish law provided insufficient and incomplete protection to borrowers, especially when the mortgaged property was the family home. In this regard, Spain has not complied with the recommendation made by the CESCR to adopt a legal framework that establishes appropriate requirements and procedures to be followed prior to an eviction and takes into account the Committee’s general comment No. 7 on the right to adequate housing (art. 11, para. 1, of the Covenant): forced evictions, the recommendations of the Special Rapporteur on adequate housing, and the United Nations basic principles and guidelines on development-based evictions and displacement (A/HRC/4/18, annex I).

In conclusion, austerity measures and their impact on human rights are likely to appear before the ECtHR and the CESCR. The ECtHR has a mixed record, and up until now, the only venue which has been openly responsive to austerity policies is a soft law committee with restricted access for individual petition. In addition, austerity policies decided by the troika have not yet been challenged. In saying that, this could be subject to change considering increasing evidence of judicial sensitiveness to the social and economic effects of austerity measures, and growing connections between human rights institutions and courts.


Updated Rules for Contribution to the Blog - Thu, 03/02/2017 - 15:00

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The Security Council’s Response to the Ebola Crisis: A Step Forward or Backwards in the Realization of the Right to Health? - Thu, 03/02/2017 - 09:00

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

The fight against Ebola has brought into stark focus the global threat emanating from viral diseases. In response to the outbreak of the deadly virus in Africa, in 2014 the UN Security Council adopted Resolution 2177 characterizing the epidemic as a threat to international peace and security and calling in its operative paragraphs on all Member States to provide international assistance and co-operation.

While the resolution has been widely applauded as a landmark for global public health (see e.g. here and here) this post questions whether the peace and security approach taken by the Council risks undermining the normative force of the right to health and the associated obligations of international co-operation. To better appreciate the challenges posed by the Security Council’s response to Ebola, the post will first briefly look at the content of Resolution 2177 before reflecting on what the resolution omits. Against this background the final part discusses what consequences flow from this (sin of) omission.

Governing in situation of crisis: UN SC Resolution 2177 

After convening an emergency meeting on 18 September 2014, the Security Council adopted Resolution 2177 entitled “Peace and security in Africa”. The resolution, sponsored by a record number of 130 countries and adopted unanimously by all Council members, characterized “the unprecedented extent of the Ebola outbreak in Africa” as a “threat to international peace and security”. After having underlined that:

“the outbreak is undermining the stability of the most affected countries concerned and, unless contained, may lead to further instances of civil unrest, social tensions and a deterioration of the political and security climate…”.

While the link between the virus and regional instability – let alone international stability –  is not made entirely clear in the resolution, the reference to international peace and security in a non-military context hardly constitutes a novelty in the Council’s history. Ever since the end of the Cold War the significance given to “non-military sources of instability in the economic, social, humanitarian and ecological fields” (see Presidential Statement S/23500, 31 January 1992), has meant a widening of the Security Council’s traditional area of competence beyond the limited sphere of inter-state military conflict. Viewed from this broad perspective, one may come to think of the Council as the natural body to govern in crises situations. Despite the Council’s determination of the existence of a threat to peace and security in accordance with the language of Article 39 of the UN Charter, however, there is no reference in the text of the resolution that the Council was in fact acting under Chapter VII of the Charter.

What emerges clearly from the Council debate is the urgent sense of communal action to meet – what was described by many participants  –  as an “unprecedented” health crisis (UN Doc S/PV.7268). The operative paragraphs of Resolution 2177 thus detail various measures of assistance and co-operation, calling inter alia on Member States “to provide urgent resources and assistance […] to support the affected countries in intensifying preventive and response activities” and urging States “to mobilize and provide immediately technical expertise and additional medical capacity […] and to provide essential resources, supplies and coordinated assistance to the affected countries and implementing partners”. The need for international co-operation was also underscored by a presidential statement of November 2014 in which the Council notes “the considerable efforts of the international community to scale-up its response to the Ebola outbreak” and “commends those Member States, which, in concert with other actors on the ground, have […] provided […] crucial support in the affected countries”.

No reference to international obligations of assistance and co-operation for the realization of the right to health

What Resolution 2177 at no point mentions, is the existence of international legal obligations of assistance and co-operation that obtain both in crisis situations and in the normal course of events. The human right to health and the associated international obligations are completely omitted from the text of the Security Council resolution. In the record of the Council meeting one searches in vain for any reference to human rights. This is surprising since the right to health is widely understood to have implications for public health, including the protection against infectious diseases. Art. 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) which provides for the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” specifically refers to the duty of State parties to take steps that are necessary for “[t]he prevention, treatment and control of epidemic […] diseases”. The Committee on Economic Social and Cultural Rights emphasized in its General Comment no 14 of 2000 the international dimension of the right by observing that “States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to health”. The international obligations pertaining to the right, according to the Committee, are not limited to a negative duty of non-interference with the right to health in other countries but comprise – subject to the availability of resources – an obligation to “facilitate access to essential health facilities, goods and services in other countries, wherever possible, and [to]provide the necessary aid when required.” The Committee, moreover, underlines that:

given that some diseases are easily transmissible beyond the frontiers of a State the international community has a collective responsibility to address this problem.

In addition to being grounded in the widely ratified ICESCR, the duty of international assistance and co-operation for the realization of public health has arguably an additional basis in Article 56 of the UN Charter according to which Member States are “to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55”. As Article 55 c) explicitly mentions “solutions of international economic, social, health, and related problems”, a commitment to international co-operation in the fight of an endemic viral disease appears to be supported by the Charter text itself.

Weakening the conceptual force of rights frameworks in the context of global challenges?

What are the consequences of the Council’s silence regarding the right to health and the international obligations of assistance and cooperation? One might be tempted to praise the Council for using one of its biggest guns (determining the existence of a threat to peace and security) to marshal an effective response to the Ebola crisis. At the same time, however, the Council’s failure to make any reference to applicable human rights obligations relegates rights to the background, suggesting that they are of minor importance. Yet, particularly in situations which are not considered to reach the threshold of a crisis situation, human rights could provide important guidance on duties of cross-border solidarity. Thus, what is left unsaid in Resolution 2177 matters on a normative level. It is in the nature of international law that norms need to be kept alive and indeed filled with life. If a highly relevant legal obligation is completely omitted from a significant Security Council resolution, the normative value of the corresponding norm is cast into doubt.

In the case of the international obligation of assistance and co-operation in social matters, the omission weighs particularly heavy. The obligatory force of Article 56 has long been contested (See e.g. discussion by M Langford et al in Global Justice, State Duties, CUP 2014, 54-55) Similarly, the obligations associated with the right to health have to contend with normative doubts. While it is true that economic and social rights today do enjoy broad support as an integral part of international human rights, they have arguably not achieved the same acceptance as civil and political rights. What is more, a number of developed States have not accepted the existence of legally binding international obligations in relation to socio-economic rights, arguing instead “that international cooperation and assistance was an important moral obligation but not a legal entitlement” (See UN Doc E/CN.4/2005/52, para. 76).

With this in mind, it might have seemed a pragmatic step for the Security Council to approach the Ebola crisis solely from a security perspective. Yet, it does give one pause for thought that the right to health was at no point mentioned in the Council debate. In a rapidly globalizing world order communal action across borders will increasingly gain in significance. If human rights are to retain their role as dominant conceptual framework by which we assess State action, it is essential that obligations of co-operation and assistance are taken seriously. Or else rights will steadily give way to alternative discourses.

Due Diligence Obligation in Times of Crisis: A Reflection by the Example of International Arms Transfers - Wed, 03/01/2017 - 09:00

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In this blog post, I would like to take up a question that I discussed at the ESIL Human Rights Interest Group in Riga and analyze whether the due diligence obligation under international human rights law (IHRL) plays a role in the regulation of crisis in order to prevent or mitigate state action that has a negative impact on human rights, and what role that might be.

In doing so, I will use the debate emerging in the wake of the ongoing ‘crisis’ in the Middle East on international arms transfers by foreign governments, for instance, to the Syrian rebels or the Kurdish forces in Northern Iraq, to support the fight against IS. International arms transfers in the form of emergency military aid has drawn into the limelight the issue as to whether the recipients of the supplied arms would be able to control them or if these weapons may fall into the hands of non-intended end-users, such as private parties, likely be used to commit human rights violations on the recipient’s territory (which is what in fact happened, see here or here).

The Problématique: Attribution of Conduct

As a general principle, the acts of non-state actors fall out of the scope of the rules of state responsibility, unless they are acting under the direction or control of a state (see Article 8 of the ILC Draft Articles on State Responsibility). Crisis-related scenarios are especially characterized in a way that human rights abuses occur either due to a general situation where the wrongful conduct in question is not identifiable (e.g. in armed conflicts, natural disasters or disease outbreaks) or where acts of non-state actors are not attributable to a state due to lack of control. This might be the case in armed conflicts where third states do not engage in direct attacks but are interfering indirectly by means of state assistance (e.g. military aid in the form of arms transfers).

Concomitantly, the existing rules on attribution under international law do not lead to the attribution of conduct by private parties to a state where the criterion of effective control is not established. Nevertheless, that state might still be held responsible under the law of state responsibility for its own failure to prevent or remedy the conduct that is not attributable to it. As regards arms transfers, the supplier state will not be held responsible for human rights violations committed by non-state actors through the weapons provided, but it will be responsible if it fails to take all necessary measures to prevent conducts contrary to international law.

Within the scholarly debate on the adequacy of the existing rules on attribution, less consideration has been given to the due diligence obligation under IHRL aimed at restraining state conduct in crisis situations. In light of the above, the due diligence obligation establishes a link between primary norms and secondary rules of state responsibility and bridges the gap between the two sets of rules. The breach of a due diligence obligation triggers state responsibility, where otherwise non-attributable acts of non-state actors would lead to a legal vaccum. Without need to rely on the existing rules on attribution, the relevant state is responsible for its own behaviour, rather than for the wrongful result (i.e. not for the human rights violations in Iraq or Syria committed or facilitated by the supplied weapons as such). Furthermore, the due diligence obligation is also interesting because it contains a subjective requirement of fault that is absent in the ILC Articles on State Responsibility (see e.g. here), and also overcomes the obstacle presented by the public-private divide in international law (see Boon, Are Control Tests Fit for the Future? The Slippage Problem in Attribution Doctrines, p. 39).

The Normative Content of the Due Diligence Obligation

The due diligence obligation depends on a particular primary rule of international law that determines the standard of state behaviour. Under IHRL, due diligence is enshrined in various human rights treaties (e.g. implicitly in Article 2 (1) ICESCR). Here, the duty relates to states’ positive obligations to take preventive measures to reduce or eliminate human rights violations committed by non-state actors. States should maintain institutions to protect human rights, for instance, they should possess a preventive apparatus and an investigative machinery that guarantees the obligation of prevention (according to the primary rule). How states use their legal apparatus, however, is a matter of due diligence. Therefore, the obligation arising from the primary norm and the due diligence obligation do not constitute one and the same obligation:

(1) Flexible duties

First, the due diligence obligation preserves for states a significant measure of flexibility in meeting their international human rights obligations. The degree of diligence depends on the particular circumstances of a specific case. The flexible notion of the duty is explained by two different categories of state obligations: obligations of conduct and obligations of result. The latter refers to the outcomes of a behaviour of a state, while obligations of conduct are best efforts obligations. As a consequence, whereas the obligation of due diligence would be breached by a failure to exercise due diligence, namely not using an apparatus diligently in order to prevent a particular harmful outcome (that will then be assessed on a case-by-case basis) – even if the bad result did not occur anyway, an obligation of prevention is not breached unless the undesired act in question in fact does occur.

(2) Contextualized obligations: ‘ad impossibilia nemo tenetur’

Second, due diligence obligations are context-dependent. There is no one single standard of diligence that applies to all primary norms. The degree of due diligence depends on the circumstances and issue at hand that takes into consideration the level of development of the state (see e.g. Prats case, US/Mexico Claims Commission of 1868 or Genocide case by the ICJ of 2007). The duty obliges states to take all reasonable measures to prevent the occurrence of the harmful outcome (see e.g. L.F.H. Neer and Pauline Neer v. United Mexican States of 1926). Apart from that, the content of the due diligence obligation may change in relation to the risks involved in the activity as well as possessing knowledge on behalf of the relevant state. As regards arms transfers, these requirements are included in the EU Council Common Position 2008/944/CFSP and in the Arms Trade Treaty (in force since 2014), requiring states to conduct risk assessments (similar to environmental impact assessments) in the national authorization processes on arms transfers where these arms are still under the control of the transferring state.

(3) Standard of ‘good government’

Third, however, flexibility is not unlimited: There might be due diligence obligations for which the same standard is required of all states regardless of their particular level of development. In 1955, Freeman noted that the standard of due diligence requires “nothing more nor less than the reasonable measures of prevention which a well-administered government could be expected to exercise under similar circumstances” (Freeman, Responsibility of States for Unlawful Acts of their Armed Forces, 1955). Even, some investment tribunals have pointed out the need for states to act “in accordance with the parameters inherent in a democratic State or in a “reasonably well organized modern State”. In IHRL, the minimum core obligations do establish a minimum standard of protection that every state has to meet, regardless of its state of development. Thus, even under exceptional circumstances, states have to pursue their minimum core obligations – a minimum standard of state behaviour – that are not subject only to due diligence. Turning back to arms transfers, this would indicate that the authorization of transfers should be withheld in cases where there is a clear risk that these transfers may not comply with the core obligations of states.

The Due Diligence Obligation in an Extraterritorial Context

Finally, viewed against the backdrop of the crossborder dimension of the arms transfers and human rights violations that might occur outside the transferring state’s own territory, the obligation arising from the primary norm ought to be distinguished from the obligation of due diligence when it comes to assessing their extraterritorial applicability. As regards the due diligence obligation, the state is not responsible for the extraterritorial human rights violation itself, which might be attributable to it or not (as stated above, this depends whether the state in question exercises effective control or not), but rather for its failure to exercise due diligence to prevent the harmful outcome. The latter includes, among others, the correct functioning of a state’s legal apparatus. In my opinion, the due diligence obligation that applies to the use of the state apparatus is a territorial obligation, rather than extraterritorial one. The raison d’être behind it is the re-location of such a duty to an earlier point for binding states to take preventive measures at the source, namely at home, where the state in question (still) has the power to influence (its own) decision-making processes (e.g. the transfer authorization processes to third countries where human rights violations widely occur and the whereabouts of the supplied weapons remain dubious) and that its institutions function diligently, which in practice can only occur at home.


To conclude, the due diligence obligation under IHRL law performs an important function in crisis-related settings that would otherwise lead to an accountability gap due to the existing rules of state responsibility that are not applicable to cases where non-state actors are involved because acts committed by them are not attributable to the state.

Of course, the due diligence obligation is merely one aspect of the problem of attribution that has attracted much attention in recent years. Nevertheless, the due diligence obligation has the potential to make a significant contribution to the discussion on the adequacy of the rules on attribution under international law that is indispensable (including the debate on the threshold of control, which might also be relevant in cases of arms transfers). Yet, the due diligence obligation is nothing exceptional for arms transfers. Rather, one might observe similar developments in situations such as migration crises or health emergencies, but also poverty issues, to which the due diligence obligation might be applicable.

International Law in the Age of Trump - Tue, 02/28/2017 - 14:30

In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts.

Indeed, Trump’s key advisors seem intent on violating international law simply to show that they can. One of Trump’s first moves in office was to issue an executive order directing the Secretary of Defense to develop a new plan for defeating the Islamic State in Iraq and Syria (ISIS). The executive order states that the plan “shall include . . . recommended changes to any United States rules of engagement or policy restrictions that exceed the requirements of international law regarding the use of force against ISIS.” That provision is poorly drafted and not entirely clear. But it appears to be a remarkable, perhaps unprecedented, mandate to violate international law just for the sake of violating it. The United States claimed in December that its operations against ISIS already comply with international law, so the executive order seems to direct the Defense Department to recommend steps that exceed what international law now permits—not because international law interferes with a defined policy objective but because violating international law is itself the objective.

  1. Failing to Support Legal Norms

Given its insistence on putting America first and its corresponding antipathy for the existing international legal order, the Trump administration is also likely to shift the U.S. “long game” on international law. For decades, the United States has regularly taken steps to buttress the international legal norms that it values, even when its interests were not directly at stake. A well-known example dates back to the 1980s, when the United States took or threatened trade restrictions against states that intended to continue commercial whaling after the International Whaling Commission adopted a moratorium. Other examples involve economic or other measures against states that engage in gross human rights violations.

That practice understandably makes some international lawyers uncomfortable. It involves the United States throwing its weight around and at times acting unilaterally to press for the legal norms that it favors. As I’ve explained elsewhere, however, the practice can have real systemic value. It can induce other states to conform to norms that are generally accepted or otherwise in the common good. And even when it does not motivate a change in behavior, it can communicate that the targeted conduct is unacceptable — that the norms at issue are not entirely aspirational, even if they may not (yet) be fully effective. It can also trigger multilateral interactions that, in the long run, lead to stronger, more stable, or more widely supported legal arrangements.

The Trump administration seems disinterested in continuing that practice—in taking steps to uphold important legal norms even when U.S. interests are not specifically in play. The administration is extremely unlikely to stand up for human rights abroad. It is unlikely to take unilateral measures, as in the whaling example, to try to protect global public goods. It seems considerably less concerned than its predecessors with trying to influence Israel’s settlement policies. And the combination of its disposition toward Russia and its comments on U.S. defense alliances suggests that it is not interested in using its power to buttress even the prohibition of armed aggression. (Yes, I know that the United States itself has violated this prohibition. But it has also persistently helped to preserve it. In the near term, we should imagine a world in which the United States violates the prohibition itself and expends less effort to deter or respond to others’ violations. Some might say that this will reduce the U.S. hypocrisy; it will also mean less support for many basic international legal norms.)

  1. Disengaging from the Legal Enterprise

There is yet another way that the Trump administration is likely to weaken international law—and, here, I mean the entire enterprise, rather than just specific norms. The United States might, under Trump, simply disengage from international law. To appreciate why this could be so destructive, it’s useful to remember that international law is more than a set of substantive or procedural commitments. It is, at bottom, an argumentative practice. To participate in that practice, global actors must actually use the “language” of international law. They must employ its texts, methods, processes, and institutions to try to explain or justify their governance decisions and to have their disputes. If they do not, the practice will wither and stop serving its functions — whatever those functions might be.

 In the past, the United States has opted out of some international legal regimes, and it has violated the rules in others. But it has, on the whole, been enormously invested in the project of international law. In other words, it has insisted on speaking the talk even when it hasn’t clearly walked the walk. Take the practice of targeting to kill terrorism suspects away from “hot” battlefields. Some contend that this practice is unlawful. Even if it is, the United States has been intent on using international law to try to defend it. In this respect, the United States has long taken international law seriously; it has acted like international law matters, even when it hasn’t followed mainstream legal positions.

The Trump’s administration’s approach to international law will almost certainly be different. The administration, starting with the President himself, has shown nothing but disdain for any kind of legal culture at all. It prides itself on upending convention, it disregards established processes for making governance decisions, it regularly elbows out dissent, and as a general matter, it does not treat law as a legitimizing or delegitimizing force. Given that this is how the administration deals even with U.S. law, imagine how it will approach the practice of international law. Again, the concern here is not (or not only) that that the United States will more often violate the law. The concern is that the United States will be indifferent, if not openly antagonistic, toward to the whole enterprise of international law. The executive order that I discussed above is one sign of that disposition.

There are other signs, as well. As Paul Lekas noted on Just Security, a leaked draft of an executive order concerning detentions at Guantanamo Bay omitted any mention of Common Article 3. Omitting the provision is different from adopting tenuous or contestable legal arguments on why certain conduct does not violate it. To make such arguments, even unpersuasively, is to engage with the law and accept its normative relevance in the global order. By contrast, to ignore international law is to suggest that it does not matter. Further, the New York Times reported in January that the administration is preparing other executive orders to limit U.S. participation in various international institutions and multilateral treaties. Moreover, the U.S. State Department — the agency with expertise on and a long history of attending to international law — appears to have little influence in this administration and to be in disarray.

All of this reveals an administration that is at best ambivalent and at worst hostile toward the project of international law. While other countries are also, to varying degrees, checked out of this project, the fact that the United States has for so long played an outsized role means that the shockwaves of its disengagement would be significant.

Methods to Incorporate Human Rights Law into Disaster Prevention and Reduction Strategies - Tue, 02/28/2017 - 09:00

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Earthquakes, floods, hurricanes, volcanic eruptions and landslides are all natural phenomena that have occurred throughout the history of humankind. This blog reflects on the ensuing crisis in human life, infrastructure, economic stability and ongoing development projects when such events occur. The limited capacity of a State to prepare, respond and rebuild afterwards is what will often turn these events into ‘disasters’ and crisis situations. Thus, disaster is the consequence of a combination of factors: disaster risk arises when hazards (such as earthquakes, floods, hurricanes, volcanic eruptions and landslides) interact with pre-existing physical, social, economic and environmental vulnerabilities. The ‘elements at risk’ may, therefore, refer to exposure of people, buildings, businesses, and infrastructure. This post shows how and why human rights law is an invaluable asset to States and organisations hoping to reduce the risk of disasters. Critically, it analyses methods available to incorporate human rights law into disaster prevention and reduction strategies.

International Disaster Risk Reduction (DRR) Frameworks

Over the past two decades, as the international disaster management agenda has been developed and refined, firstly in Yokohama (Yokohama Strategy and Plan of Action for a Safer World: guidelines for natural disaster prevention, preparedness and mitigation 1994) and then in Hyogo (Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters), the human rights agenda has also undergone a significant shift. Human rights principles are firmly entrenched in the international legal order through the proliferation of human rights courts and institutions. The international community has agreed oversight of State failure to protect (World Summit Outcome Document 2005), meaning that State achievements and failures are not beyond scrutiny, even- or especially- in times of emergency. On 18 March 2015, at the Third UN World Conference in Sendai, Japan, the international community adopted a non-binding resolution to reduce the risk of disasters entitled the Sendai Framework for Disaster Risk Reduction 2015-2030. The key targets, priorities for action and the guiding principles contained within, speak to a world in which the reduction of risk of disasters would be a critical step forward in the implementation of disaster management. If States and international organisations, such as the UN and International Federation of the Red Cross (IFRC), can reduce the risks posed by natural phenomena and man-made threats, or even prevent the loss of life and critical infrastructure, then all the better for the populations affected.

Human Rights Law and DRR

Human rights law has the potential to support existing efforts, by States, the UN and the IFRC, to prevent and reduce disaster risk. The guiding principles contained in the Sendai Framework state that:

Managing the risk of disasters is aimed at protecting persons and their property, health, livelihoods and productive assets, as well as cultural and environmental assets, while promoting and protecting all human rights, including the right to development.

 This statement has stimulated significant debate as to the utility of a human rights-based approach to disaster risk reduction. Of course, human rights apply in disaster situations and in the aftermath of disasters, but, is there more that can be done through the implementation and dissemination of human rights law for the prevention and reduction of disasters in a more systematic way? There are critical issues in human rights when considering disaster management and reduction: non-discrimination, equality, right to liberty, legal protection, security, access to health services, shelter and housing, clean water, education, and, perhaps, compensation. Every individual has the right to protection and assistance in times of emergencies, the right to development, and equal access to healthcare and education. For the most part, questions about human rights come after ‘disasters’, as people ask, didn’t the victims have a right to life (see ECHR Budayeva and others v Russia, No 15339/02, 29 September 2008; ECHR Öneryildiz v Turkey, No 48939/99, 30 November 2004)? Accusations are made that the State put lives at risk (ECHR Kolyadenko and others v Russia, No 17423/05, 28 February 2012) and failed to prevent flooding that caused damage to homes (ECHR Hadzhiyska v Bulgaria, No 20701/09, 15 May 2012 (inadmissible)). Many of the issues are innately practical, such as: Is the temporary accommodation adequate? Will it be adequate in six months’ time? Where is the emergency health care? Why aren’t aid agencies getting across the border? Why wasn’t an Early Warning System in place? In essence, all of these questions are asking, didn’t the government have an obligation to protect its people?

The language of the Sendai Framework was welcomed by experts calling for a strong human rights based approach to disasters. The references to prevention and reduction were likewise taken seriously by the attendees and drafters of the Sendai Framework, but to be useful, human rights law must be incorporated into disaster prevention and reduction strategies. Proper willingness by States to respect human rights, at all times, is critical to the utility of human rights law as a prevention tool. Significantly, the risk of a hazard becoming a disaster is something that can be planned for. Whether it is the risk of a tsunami, earthquake, nuclear power plant leak, or a flood, the State can prepare for the eventuality, even if, obviously, it cannot be prevented. Human rights law must be included at this stage. If there is potential for a landslide, does the State have a plan to evacuate to protect life? Does the state have a plan to temporarily or permanently rehouse people? Is there a plan to care for the injured or to protect against trafficking and kidnapping of children? What about strategies to prevent rape and other forms of sexual abuse that have been reported in large scale housing during disaster? Used to its full potential, human rights law will protect life, limit damage, and, potentially, embed resilience in communities likely to suffer.

By way of example, when the earthquake in the Indian Ocean in 2004 triggered a tsunami that swept ashore Thailand, the world looked on as people, homes, businesses, stability and development were ruined. After the initial outpouring of donations and the rapid deployment of aid, questions were asked. For international lawyers, human rights lawyers in particular, questions were raised not only about abuses as a consequence of the Tsunami but also whether they could have been prevented. Importantly, environmental law might also have a role here as risks become more likely, more planning should have been undertaken, in line with the precautionary principle.

Methods to Incorporate Human Rights Law into Prevention and Reduction Strategies

I would like to propose three methods to incorporate human rights law into disaster risk reduction strategies, particularly prevention. Firstly, the legal parameters of human rights in disaster situations vary, which is a situation that needs remedying. The predictable ‘state of emergency’, often cited as a reason to derogate from civil and political rights obligations, is avertable with proper planning, adequate allocation of resources and action plans for vulnerable groups (using human rights law instruments). Human rights can, for example, mandate participation and equality. Human rights law contains within it key information about specific capabilities, vulnerabilities and resilience of vulnerable groups. The law itself can therefore be utilised to take risk informed decisions. It can also guide questions of accountability, should abuses occur.

Secondly, the Sendai Framework mandates that States have the primary responsibility for prevention but they share it with other stakeholders. States must therefore work together with the international community, including States and organisations, such as the UN and IFRC, to prevent human rights abuses occurring.

Finally, human rights must be given effect in practical terms. When States decide upon the allocation of resources for disasters, make assessments as to the risks, or create early warning systems, all of which are preventative tools, they can embed human rights in the process and mechanisms for implementation. For example, respect for women, disabled people, children, and the elderly, means that these groups should be consulted at the planning stages. Human rights should be built into education programmes in schools on disasters. Human rights can be used, rather pragmatically, as a language to teach children and communities about their rights and as a means to build capacity of that community to ask for water, food, shelter and that their needs are met. From the bottom-up, therefore, human rights law can enable citizens to be empowered to ensure that their rights are provided for, before a disaster. From the top down, international organisations should utilise human rights law to remind States of their obligations, to embed school programmes on disasters, to equip hospitals, and to make agreements with the UN/IFRC should a disaster strike. What must be remembered is that all of these practical steps need to take place before a disaster occurs to ensure appropriate response strategies are put into place.

As a final word, the implementation of human rights into disaster risk reduction and prevention policies is a logical step on the path to proper protection and assistance for those likely to be affected by disasters. Legislation, codes of practice, and international law, can only go so far at times of intense vulnerability and so, by embedding human rights from the beginning, people and States are forced to plan to ensure that they remain respected at all times.

Unconstitutional and Invalid: South Africa’s Withdrawal from the ICC Barred (For Now) - Mon, 02/27/2017 - 14:30

On 22 February 2017, the South African High Court handed down a significant decision invalidating South Africa’s notice of withdrawal from the International Criminal Court (ICC). The case was brought by the official opposition party, the Democratic Alliance, and joined by a number of civil society actors. The court’s conclusion that prior parliamentary approval was necessary before South Africa could withdraw from the ICC bears similarities to the recent decision of the UK Supreme Court on the UK’s withdrawal from the European Union.

The South African judgment concerned the decision of the Minister of International Relations and Cooperation to send a notice of withdrawal to the UN Secretary-General in October 2016 (see my previous post on this for more details), without prior announcement that the government had decided to withdraw from the ICC, nor any public consultation on the matter. The government’s reasons for leaving the ICC, as surveyed by Dapo, had centred on the claim that the Rome Statute and the South African legislation domesticating the Rome Statute (the ‘Implementation of the Rome Statute of the International Criminal Court Act of 2002’), required the government to arrest sitting African heads of State, contrary to customary international law rules on immunity. This, it was argued, undermined South Africa’s peace-making efforts on the Continent. These issues had come to a head during President Bashir’s visit to South Africa in June 2015, when South Africa had failed to execute outstanding ICC arrest warrants against him. This led to non-cooperation proceedings against South Africa at the ICC (which will take place in April), and South African High Court and Supreme Court of Appeal decisions holding the government’s failure to arrest President Bashir to be unconstitutional. The pushback was not well received by the South African Executive.

Given the 12-month notice period prescribed in Article 127(1) of the Rome Statute of the ICC, South Africa was set to leave the court in October 2017. However, the High Court decision has, at the very least, pushed back the timeline for withdrawal (absent a rapid successful appeal by the government). It also presents an important, and perhaps final, opportunity to engage the government concerning its decision to leave the ICC. Here I give a brief overview of the decision, highlighting certain issues concerning parliamentary involvement in treaty withdrawal, and discuss some possibilities for persuading South Africa to retain its membership in the ICC.

The High Court Decision

The High Court was faced with a question similar to that decided by the UK Supreme Court in the recent Brexit decision – can the Executive withdraw from an international treaty, which had been ratified and domesticated by Parliament, without prior Parliamentary approval? The question is not directly addressed by the South African Constitution, which contains no explicit provision on treaty withdrawal, and had not yet received judicial attention. Like the UK Supreme Court, the South African High Court answered in the negative. It held that since section 231(2) of the South African Constitution requires Parliamentary approval for treaties subject to ratification, this section also by implication requires the consent of Parliament to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid.

The government had argued that the executive’s authority to negotiate and sign international treaties (per sections 231(1) and (3) of the Constitution) necessarily included the power to withdraw from treaties, and that parliament’s role was confined to that explicitly provided for in the Constitution in sections 231(2) and (4), that is, to approve signed treaties subject to ratification and to pass domesticating legislation if it so chose. The court, however, held that because parliamentary approval is required to ratify treaties:

[T]here is a glaring difficulty in accepting that the process of withdrawal should not be subject to the same parliamentary process. The necessary inference, on a proper construction of s 231, is that parliament retains the power to determine whether to remain bound to an international treaty. This is necessary to give expression to the clear separation of powers between the national executive and the legislature embodied in the section. If it is parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement.

The court emphasized that the process for withdrawal was regulated only by domestic law, and “is a domestic issue in which international law does not and cannot prescribe.”

The South African court’s reasoning is wider than that of the UK Supreme Court in the Brexit case. In the latter, it was held that withdrawal from the EU required parliamentary approval due to the significant constitutional change that would result: eliminating EU law as a source of domestic UK law and negating certain rights of UK citizens vested in domestic law by virtue of EU law. Since parliament alone can make domestic law, parliament alone could approve these changes to domestic law. The South African decision, by contrast, held that any treaty subject to ratification required Parliamentary approval for withdrawal – whether or not withdrawal would result in a change to South African domestic law. In this case, withdrawal would require a change of South African domestic law, given the domestication of the Rome Statute, but the court’s reasoning was not confined to domesticated treaties.

In addition, the Court held that the decision to withdraw without prior parliamentary approval was ‘procedurally irrational’. Had the notice of withdrawal taken effect before Parliament had decided to repeal the Rome Statute Implementation Act, which was plausible as things stood, this would have resulted in a legal quagmire. According to the court:

[T]here would be clumsy piece-meal processes, with undesirable and embarrassing outcomes for South Africa. … The question should be: what is so pressing for the national executive about withdrawal from the Rome Statute which cannot wait for our legislative processes (and possibly judicial pronouncements) to take their course? All these, in our view, point to one conclusion: the prematurity and procedural irrationality of the lodging of the notice of withdrawal by the national executive without first consulting parliament. This unexplained haste, in our view, itself constitutes procedural irrationality.

Thus, the executive must wait for parliament both to approve withdrawal from the ICC, and successfully repeal the domesticating legislation, before valid notice of withdrawal can be given under article 127(1) of the Rome Statute. On the same reasoning, the court could have also required the prior amendment or repeal of other domestic legislation (for example, the Geneva Conventions Act) that also domesticates elements of the Rome Statute.

Given these procedural challenges, the court concluded that the notice of withdrawal is unconstitutional and therefore invalid. As such, the government was ordered to revoke the notice of withdrawal that had been sent to the UN Secretary-General. A fresh notice is therefore required, after parliamentary approval is obtained, to re-start the 12-month withdrawal period provided for in the Rome Statute.

Next Steps for South Africa and the ICC

The South African government must now decide whether to appeal against the judgment, or rely on its substantial majority in parliament to push through the ‘Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill’ that has already been tabled. If passed, the Repeal Bill will (evidently) repeal the domesticating legislation, and presumably also constitute parliamentary approval for withdrawal from the Rome Statute. Accordingly, it would clear the way for withdrawal, satisfying the requirements of the High Court decision. An appeal may therefore not be worthwhile.

Nonetheless, there are aspects of the judgment that may convince the executive to appeal regardless of their anticipated success in parliament. The High Court’s reasoning is wide-ranging and will have substantial consequences for treaty practice in South Africa, requiring parliamentary approval to leave any treaty that has been ratified. While such an extensive decision may be celebrated for its immediate consequences, there is a danger of an equal and opposite reaction from the executive. It may result in the executive becoming less willing to join treaties, or encourage the South African government to take further isolationist steps. It may be argued that the overly-broad reasoning of the South African Supreme Court of Appeal in the Bashir case (holding that the Implementation Act negates all immunity in South Africa of foreign Heads of State in relation to charges of international crimes, whether or not subject to an ICC arrest warrant) materially contributed to the executive’s decision to withdraw from the ICC altogether. An appellate court would be justified in narrowing the ratio, requiring parliamentary approval for treaty withdrawals that would, as here, require changes to South African domestic law, but giving the executive more leeway concerning other treaties.

Further, the High Court declined to address substantive challenges that had been made to the withdrawal, which may be resurrected on appeal. The DA argued, for instance, that withdrawal from the ICC by South Africa would be unconstitutional because doing so would constitute a retrogressive step in the protection of human rights, therefore violating the obligation to respect, protect, promote and fulfil constitutional rights in section 7(2) of the Constitution. Had such a challenge been upheld, this would effectively bar South Africa from withdrawing from the ICC at any stage, with or without Parliamentary approval. The court, wisely, declined to address these substantive grounds, unless and until further challenges are brought to legislation authorising withdrawal from the ICC. If such a challenge is upheld in the future, this will be a radical judicial intervention in the treaty-making powers of the executive and legislative branches of the government. Such a decision would again risk causing unintended consequences, possibly even attempts at Constitutional amendment.

As noted, the government could instead choose to forego an appeal in the expectation that the Repeal Bill will be passed. However, passage of the Bill is not a fait-accompli. The Bill is currently open for public consultation (written submissions can be sent until 8 March 2017), and clearly the opposition is invested in keeping South Africa in the ICC. Civil society has also been a powerful force thus far in maintaining South Africa’s commitment to the ICC. It is possible, therefore, that the executive can be convinced that any benefit from withdrawal is not worth the significant reputational costs of becoming the first State to leave the ICC. The recent reversal of the Gambia’s decision to withdraw from the Court may assist in this regard.

The possibility of persuading South Africa to reconsider becomes more likely if the purported gains from withdrawal – that is, resolving South Africa’s stated concern regarding immunity of Heads of State of non-ICC State parties – can be achieved without leaving the ICC. Indeed, the government representatives in the High Court proceedings mentioned the possibility of a diplomatic solution developing, which could mean that leaving the ICC would not be necessary. The postponement of South Africa’s withdrawal resulting from the High Court decision provides a key opportunity for such solutions to develop. The first step was in fact taken at the last meeting of the ICC Assembly of States Parties. At South Africa’s request, the ASP Bureau has established a working group to develop consultation mechanisms to be used when a Member State is subject to an ICC obligation to arrest an individual who the State considers to be protected by international legal immunities, provided for in Article 97 of the Rome Statute. If effectively developed, such mechanisms could prevent future crises like those posed by Bashir’s visit to South Africa. In addition, the impending non-cooperation proceedings against South Africa afford an opening for judicial clarification of the immunity provisions of the Rome Statute, Articles 27 and 98, which have thus far been interpreted in an unsatisfactory and inconsistent manner. If the ICC can more convincingly address the immunities issue through these diplomatic and judicial means, taking into account the concerns of South Africa and other member States, this could convince South Africa to remain in the Court.

‘Let them drown’: rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part II - Mon, 02/27/2017 - 09:00

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

In the first half of this two-part post, I reviewed the argument to the effect that sea-rescues of migrants, allied to the extraterritorial application of the non-refoulement obligation in human rights law, incentivize dangerous smuggler-enabled journeys.  In this second half of the post, I will appraise the merits of this argument.

Why do People make Dangerous Crossings?

People only take dangerous routes because regular routes are closed off to them, through migration law-enabled non-entrée restrictions backed up by robust carrier sanctions in general, and an absence of will, on the part of many states who could potentially provide protection, to realize this potential through organized resettlement, in particular.

Some have argued—as I did in a presentation at the American Society of International Law Annual Meeting in 2016—that a key causal factor in creating the conditions for smuggler-enabled perilous sea crossings is the non-entrée measures of those states whom individuals wish to obtain protection from.

These measures—strict immigration controls, including border checks, visa restrictions and the posting of extraterritorial immigration officials—are  rooted in the general entitlement of states in international law to control their borders, and backed up specific legal regimes whereby states impose hefty fines on carriers such as airlines if the carriers transport individuals into their territories who do not have a right to enter there. (For a discussion of the ethics of this, see e.g. Linda Bosniak’s ‘Wrongs, Rights and Regularization’).

It is the existence of these legally-enabled arrangements that necessitate the dangerous and illegal journeys, involving smugglers, which place people in danger at sea (see also Itamar Mann and Umut Özsu here).  (For the argument that, because of this, in some cases the smuggling of refugees is justified, see this by Jim Hathaway.)  Here, then, we see how one area of international law can be seen as part of the cause of the ‘crisis’.

In this light, sea-rescues allied to the extraterritorial operation of the non-refoulement obligation in human rights law are not so much causing perilous sea crossings as dealing with the consequences of the non-entrée measures adopted by some of those states who would engage in such rescues and, when doing so, be subject to the non-refoulement obligation. In other words, in some cases the rescues and the consequences of the operative protection obligations involve states addressing a situation they are partially to blame for (on the general case for mitigating the ‘constitutive violence’ of border enforcement through human rights ideas, see Itamar Mann’s Humanity at Sea, Chapter 3).  They are not the charitable acts of innocent bystanders.  Indeed, this places into question the validity of using the word ‘rescue’ itself, given that in some cases the term risks obscuring the causal chain between the original acts of the rescuing state and the situation that gives rise to the need for a rescue.

The policy of rescue twinned with an ongoing protection obligation in human rights law fits with this scenario of culpability, and can, therefore, be viewed as a redress mechanism.  On this view, it would not be necessary to understand this policy and the applicable protection obligation in terms of selfless notions of charitable humanitarianism; there is a more direct underpinning based on liability (for a similar discussion by David Miller, see here).

From the vantage point of international law and crisis, then, we might see this as a situation of contest, where the policy of rescues allied to the ongoing protection obligation in human rights law mitigates the causal effect of another area of law when it comes to the crisis of dangerous sea crossings.  Law is at once a cause and (when the rescue policy is implemented, triggering the non-refoulement obligation) a partial remedy.

The Limits to the Remedial Nature of Human Rights Law 

But the remedial nature of human rights law here is extremely limited.  Foregrounding the partial culpability of non-entrée states in the context of such states being subject to extraterritorial non-refoulement obligations brings into sharp relief the inadequacy of human rights law extraterritorially more generally, as extraterritorial applicability is conventionally understood.

The non-refoulement obligation is only triggered extraterritorially if the operation of human rights law more generally is applicable. According to the usual approaches here, for much of treaty law, that operation only occurs in circumstances of direct effective control over areas or people, the paradigmatic examples in the case law being such situations as military occupation or the operation of state-run facilities such as embassies (for an overview, see here).  There is of course considerable debate and disagreement here on the contours of the test, in terms of how broad or narrow it is, but fundamentally this is all within a spectrum that is itself only small when one thinks of the realities of how the actions and omissions of states have an impact on human rights beyond their borders.

To give one illustration: the extraterritorial operation of immigration checks, such as St Pancras train station in London, where French and Belgian immigration officials decide who is able to travel to their countries before the individuals affected can get on the train and leave London (equivalent reciprocal arrangements operate in Paris and Brussels).  Even if the test for the application of the non-refoulement obligation in human rights treaty law can be considered to be met in the case of the individual decisions of those officials, the effect of these decisions on the individual travellers directly affected is, of course, only part of the picture.  More broadly, they have a potentially exemplary disincentivizing effect to a much wider group of people, putting them off from even attempting the route in the first place.  The causal relationship here is not covered by most of human rights treaty law as conventionally understood, since apart from anything else, the people who are affected do not fall within the test—direct, effective control—that triggers the operation of this law.

But where the non-refoulement norm does apply extraterritorially—clearly rescuing people at sea brings such individuals within the state’s effective control —it can be argued, as has been said, that in the context of dangerous, smuggler-enabled journeys, it amounts to states being required to face up to the consequences of their non-entrée actions.  Even here, though, there has to be a rescue in the first place.  Human rights treaty law as conventionally understood extraterritorially presupposes the pre-existence of a control relationship before it becomes operative.  States can seek to avoid this by keeping their vessels well away from areas where migrants are at peril in the first place (on the obligations related to rescue in the law of the sea, see e.g. the forthcoming chapters by Efthymios Papastavridis and Douglas Guilfoyle here, and the EJIL Talk! blog entry by Efthymios Papastavridis here).

Assuming states are engaged in a maritime rescue (including when this is legally required by the law of the sea), and so subject to the non-refoulement obligation, however, the argument that this arrangement involves them taking responsibility for the consequences of their non-entrée actions has to reckon with the counter-argument that it is placing blame in the wrong place: that first and foremost it is the originators of the abuses which people are seeking protection from who are responsible for creating the protection need.  In the case of Syria, for example, it is argued that the Assad government, the anti-government rebels and IS are the ultimate cause of the civil war in and therefore the forced migration from that country, and that, therefore, these actors are the cause of the perilous sea crossings, which would not be happening at all if people hadn’t been driven out in the first place.  To place the blame on the non-entrée measures of other states—and the role of international law in enabling these measures—is to miss this more fundamental causal factor.

So, then, the relationship between international law and the migration crisis is simpler than suggested earlier: it no longer plays a causal role; it is only to be understood in a positive light as a partial solution.

The first thing to say here is that issues of causation are of course complex, and usually not a matter of either/or.  Even if the movement of Syrians that the perilous sea crossings form part of would not be happening but for the civil war in Syria, of course this does not mean that other states are off the hook if their responses are making a bad situation worse.

But in any case this argument ignores the broader structural and historical factors that tie other states to the actions of Assad, the anti-Assad rebels and IS, from food insecurity to climate change, the legacy of the Iraq war, and the partially determinative involvement that some of these states and their proxies have in the region in general and within Syria in particular.  In doing so, it also conceals the role of international law as sometimes an enabler of these matters, either positively or in its failure to prevent.

To give one of many examples that could be invoked here: one only has to think about the legally-enabled international arms trade, as a matter of generality and in the specific case of the US and UK defence industry relationship with Saudi Arabia and the role of Saudi Arabia in supporting extremist Wahhabi and Salafist Sunni Islam, and then bear in mind how all of this is linked in multiple ways to what is happening in Syria.

In his 1983 book Spheres of Justice, Michael Waltzer, in the context of the then contemporary Vietnamese refugee situation, argued that:

Toward some refugees, we [Walzer is a US national] may well have obligations of the same sort that we have towards fellow nationals. This is obviously the case with regard to any group of people whom we have helped turn into refugees (p. 49).

This idea is given sustained treatment in James Souter’s recent argument for a

…special obligation on the part of states to provide asylum to refugees for whose lack of state protection they are responsible, whether through their military interventions, support for oppressive regimes or imposition of damaging economic policies. Asylum should be conceived not only as playing a ‘palliative’ humanitarian role or as expressing condemnation…, but also as potentially providing a means by which states can rectify the harm they caused to individuals by turning them into refugees (326, reference omitted).

(For David Miller’s invocation of this argument, and application of it in the context of rescuing migrants from Libya, see here).  This moral case for a duty to provide asylum implicates Linda Bosniak’s more general, related discussion, through the concepts of ‘supercession,’ of how irregular migration can in certain circumstances be ethically transformed to be justified, and ‘corrective override’, whereby migration should not be considered irregular at all if destination states bear historical responsibility for wrongs which ‘are causally related to the subsequent process of irregular out-migration of individuals to’ [such states] (at 210).  It would also be relevant to the earlier treatment of the causal role played by states not in the original harm that led people to flee, but (through non-entrée measures) in the harm such people risk in making dangerous crossings.

Ultimately, in an acutely interdependent and unequal world it is naïve to regard the phenomenon of forced migration as not in one way or another structurally linked to the actions of developed states and their economic, military and geopolitical activity.  The crisis language enables this to be ignored, because, as Benjamin Authers and Hilary Charlesworth observe, ‘crises are understood culturally to be unique…the consequence of anomalous actions and events, rather than inherent’ (p. 23).

If, however, the policy is to end dangerous and smuggler-enabled sea crossings by forced migrants, then the starting point for critical analysis should be these structural links and the various ways international law nurtures them.  The common failure to take such an approach and instead to foreground relatively marginal issues, reflects the broader trope of international law and crisis identified by Hilary Charlesworth, that international lawyers,

are preoccupied with great crises, rather than the politics of everyday life. In this way international law steers clear of analysis of longer-term trends and structural problems’ (p. 389) [and]…becomes simply a source of justification for the status quo’ (p. 391).

Equally, it reflects the way in which, as Benjamin Authers and Hilary Charlesworth observe,

…crises act as both catalysts and distractions in law’s production and application.  One effect of this is that the lack of crisis language can make some human rights violations appear quotidian…and less urgent to redress than crisis-generated rights.  Economic, social and cultural rights, for example, are only infrequently depicted as the subjects of legal crisis.  This separation centres on a crisis-driven hierarchy of urgency that has pervasive consequences, casting economic, social and cultural rights as potentially deferrable… (p. 21).

These tropes are manifest in the aforementioned limited extraterritorial scope of human rights treaty law as generally understood, which addresses the extraterritorial projection of power only insofar as it is unusual in frequency and exceptional in nature, not commonplace and widespread.

In this context, then, and to conclude, sea-rescues twinned with the extraterritorial application of the non-refoulement obligation are perhaps more helpfully viewed not in terms of their causal role in relation to dangerous sea crossings but, rather, as a marginal, partial gesture of responsibility that fits within a much broader, but legally and politically absent, liability, in which international law plays a key role, and reflecting the way in which, as Authers and Charlesworth observe, ‘the language of crisis…can both prompt action and obscure responsibility’ (p. 21).

Announcements: International Law Literature Forum; ASEAN Post-Doctoral Fellowships; New additions to the UN Audiovisual Library of International Law; ECHR-Conference: Principled Resistence Against ECtHR Judgments – A New Paradigm?; CfP Annual WTO Law... - Sun, 02/26/2017 - 10:00

1. International Law Literature Forum, Graduate Institute Geneva. The International Law Literature Forum at the Graduate Institute of International and Development Studies is a platform to discuss contemporary cutting-edge international law scholarship. It focuses on work in progress and seeks to stimulate an open discussion of new directions in scholarship in the Geneva research community. In the spring of 2017, it features papers by Kristina Daugirdas (University of Michigan, 8 March), Bhupinder S. Chimni (Jawharlal Nehru University, Delhi, 10 April), José Alvarez (New York University, 10 May) and Jochen von Bernstorff (University of Tübingen, 31 May). Information on the different sessions and topics can be found on our website.

2. ASEAN Post-Doctoral Fellowships at the NUS Centre for International Law. CIL invites applications for ASEAN Post-Doctoral Fellowship positions commencing in Academic Year 2017/2018. We welcome applications from those with expertise in international economic law or international trade law, comparative constitutional law, and law and transnational crime. For more details, you see here.

3. 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 Judge Iulia Motoc on “The Influence of the European Court of Human Rights on Human Rights Regimes in Central and Eastern Europe” and Professor Leila Nadya Sadat on “The Legacy of the Nuremberg Trials: Seventy Years Later”.

4. ECHR-Conference: Principled Resistence Against ECtHR Judgments – A New Paradigm? Universität Konstanz is hosting this conference on 1-2 June 2017. In recent years, there have been more and more instances where national courts, in a principled manner, declared their unwillingness or inability to give suit to an ECtHR judgment. So far, those cases have initiated discussions about the Court’s ‘legitimacy’ and about the necessity of having a ‘dialogue between judges’. The conference takes a different approach, labelling such cases examples of ‘principled resistance’. The research question is whether those cases reveal a general pattern: Has the Court overstretched its competence by its evolutive interpretation so that cases of ‘principled resistance’ may be explained as reactions necessary to preserve national identity? Or is the current accumulation of such cases just a coincidence and are the underlying rationales too divergent to reveal a general pattern? The conference aims to give a dogmatic answer to those questions and thereby to help preserving the long-term functioning of the Convention. For more information, see here.

5. 2017 Annual WTO Law Conference Call for Proposals. The deadline to submit proposals for the 2017 Annual WTO Law Conference is fast approaching. Submit your proposal by Wednesday, March 1st. For details, please consult the Call for Papers here. The conference is organized by the Graduate Institute’s Centre for Trade and Economic Integration and Georgetown University’s Institute of International Economic Law. It will be held in Geneva on 9-10 June 2017.

‘Let them drown’: Rescuing migrants at sea and the non-refoulement obligation as a case study of international law’s relationship to ‘crisis’: Part I - Sat, 02/25/2017 - 11:30

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

“Approaching crises with criticism reminds us that crises are produced: they are negotiable narratives that can mask as well as reveal, a recognition that should be central when we respond to crises of human rights within international law. Benjamin Authers and Hilary Charlesworth” (‘The Crisis and the Quotidian’, p. 38)

The situation of the movement of certain migrants to and within Europe since 2015 has been described as a ‘crisis’.  The ‘crisis’ designation has been used because of the numbers involved—commonly depicted as the largest movement of people in Europe since the Second World War—and the consequent challenge of how the role of European states in assisting such people should be determined in a fair and equitable manner, in the face of sharp inequities in how things played out in practice.   A typical response from international lawyers has been to implore states to implement fully their relevant legal obligations, including in international human rights law.  Such a position is reflected, for example, in the open letter, signed by over 900 international lawyers, coming out of the 2015 ESIL conference in Oslo [I should declare I was responsible, with Başak Çali, Cathryn Costello, and Guy Goodwin Gill, in drafting and organizing the signatures for this letter].At the same time, others have drawn the opposite conclusion about the law, suggesting that legal rules were more part of the problem than the solution.  For example, in 2015 Germany partly suspended the operation of the Schengen border-free rules of EU law, on the basis that, absent a co-ordinated and equitable European approach to the situation, the cross-border free movement such rules permitted was objectionable (see here and here).

These responses epitomize the dual way international law can be and is invoked in relation to crisis: as part of the solution and as part of the problem.  In two posts I would like to explore this duality by considering the migration ‘crisis’ and the debates around one particular policy prescription relating to it: the ‘rescue’ of migrants at peril at sea performed by states acting extraterritorially, in the context of the operation of the non-refoulement obligation in human rights law.

Non-Refoulement in Human Rights Law

For some time, human rights law has been invoked to provide complementary protection for individuals from that provided in refugee law.  One important potential area of such protection concerns the obligation not to transfer individuals to circumstances where they face a risk of certain forms of human rights abuse, expressly provided for using the term non-refoulement, as in the 1951 Refugee Convention and the 1984 Torture Convention, and read into other human rights treaties, such as the 1950 European Convention on Human Rights.  The applicability of this obligation extraterritorially is of central significance to the forced migration context, given that many important forced-migration-related practices and policies by states are implemented extraterritorially, whether interception, rescue and ‘push back’ at sea, the operation of extraterritorial detention facilities to house migrants, or the posting of immigration officials at ports of exit by foreign states who wish to restrict entry to their territories.

Indeed, there is an emerging practice to invoke successfully the non-refoulement obligation in human rights law in the context of such extraterritorial forced-migration-related-policy activities, for example in the Hirsi case against Italy before the European Court of Human Rights concerning Italian maritime push-backs of migrants to Libya.

Jacques Hartmann and Irini Papanicolopulu have suggested that:

[t]he application of the principle of non-refoulement on the high seas has been claimed to create a perverse incentive for States not to conduct proactive search and rescue operations on the high seas.

The authors do not indicate who has made such a claim, but their observation invites us to consider the question of what is at stake in discussions about whether states should engage in sea-rescues of migrants, bearing in mind the operation of the non-refoulement obligation.  I propose to do this, in the light of a particular argument that has been made to resist involvement in sea-rescues (for a broader treatment of the general topic, see Itamar Mann’s Humanity at Sea, this article by Thomas Gammeltoft-Hansen and Tanja Alberts, and this forthcoming book chapter by Efthymios Papastavridis) In general, I am not going to address the ins and outs of when the non-refoulement obligation arises—what level of extraterritorial control is required—important though this is, although I will have a general observation to make about that matter.  Rather, I would like to look at some of the underlying policy implications, and to do so bearing in mind the aforementioned dual fashion in which international law can be invoked in relation to crisis.

These remarks part of a broader research project on the extraterritorial application of international human rights law, called ‘human rights beyond borders’, funded by the European Research Council, the academic research funding body of the EU.

Non-Refoulement and Rescue at Sea

The introduction of the non-refoulement obligation to sea rescues involves grafting onto the rescue objective an additional policy objective: an obligation borne by the rescuing state to ensure that the people under its control are not transferred out of this control in circumstances where they face human rights abuse.

Thus the situation is transformed from one of simply the immediate preservation of life, to a longer-term commitment to protect the individuals involved, if they cannot be sent back to where they came from due to the risk of human rights abuse there.  Indeed, such an obligation of protection covers both being sent back to this location directly, and being transferred to another location which is itself not safe, either directly, or in terms of a risk of being sent on from there to the original site of risk (or another such site). The rescue is, therefore, just the start: a gateway to an entirely new and, for the individuals involved, existentially-determinative relationship between them and the rescuing state or states.  Because of the non-refoulement obligation, the state cannot simply rescue such individuals and then transfer them elsewhere, including back to where they came from, if the risk test triggering the obligation is met as far as the location to which they would be transferred is concerned.

Incentivizing Dangerous Crossings and Smuggling Activities

It might be questioned whether this process—rescue leading to an ongoing protection requirement via the non-refoulement obligation—creates an incentive for people to put their lives and the lives of their families in danger through perilous sea crossings.  In other words, that part of the reason people are willing to take this risk is in the hope that if things go wrong, they might be rescued, and the rescue might itself realize more broadly the purpose for the crossing, in terms of obtaining long term protection, because the rescue will immediately trigger a protection relationship.  Thus sea-rescues twinned with the extraterritorial non-refoulement obligation make the migration ‘crisis’ worse, by encouraging more people to put their lives at risk.  The existence of the non-refoulement obligation is crucial here, since were it not to apply, individuals would not gain anything, in terms of their long-term protection aspirations, from the rescue, as far as a legal entitlement is concerned.  The risk calculus for making the dangerous crossings is thus radically different because of the operation of the legal regime.

For an example of the suggestion that a policy of rescues encourages dangerous crossings, in 2014, a junior minister in the UK Foreign and Commonwealth Office (the foreign ministry), Joyce Anelay, was asked in a written question in Parliament what contribution the UK would make to rescues of migrants at sea in the Mediterranean.   Joyce Anelay replied as follows:

We do not support planned search and rescue operations in the Mediterranean. We believe that they create an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more tragic and unnecessary deaths.

An aspect of arguments such as this one is that rescues twinned with non-refoulement do the smugglers job for them, thereby incentivising and enabling the smuggling industry itself.  People get from the rescuing state, in the form of long-term protection, what they had been promised as the eventual outcome of the journey by the smuggler.  Equally, the costs of risk-taking by smugglers are reduced—if things go wrong, states will step in.  (It is notable here that, as Efthymios Papastavridis reports, some Italian courts have used the doctrine of intermediary proprietor to criminalise smugglers who ‘use’ Italian rescue authorities to bring people to Italy.) So again human rights law supposedly exacerbates the ‘crisis’ by supporting the activities of the smugglers who are viewed as the key agents driving it.

The first thing to say about these arguments is that their general logic would apply not only to extraterritorial rescues twinned with the non-refoulement obligation, but also to the operation of the non-refoulement obligation in the territorial context, i.e. when individuals have managed to reach or cross the state’s territorial borders.  Smuggler-enabled perilous journeys to seek protection are of course aimed ultimately at entry into the territory of the state against whom protection will be sought on the basis of invoking the territorial application of the non-refoulement obligation binding on that state.  To charge the existence of such a non-refoulement obligation with incentivizing dangerous journeys and rewarding smugglers is to make a point about this obligation in general, whether in its territorial or its extraterritorial operation.  If, then, human rights law needs to be modified in this way to prevent its supposed causal effect on dangerous, smuggler-enabled journeys, then, actually, the non-refoulement obligation needs to be scrapped in its entirety, both territorially and extraterritorially.

That said, the extension of the non-refoulement obligation to the extraterritorial context, when allied to the policy of engaging in rescues at sea, potentially attenuates the risk people face, and the efforts smugglers have to make. Smuggler-enabled dangerous journeys can be shorter than they would be otherwise if the individuals enter a zone of protection before they reach the territory of the destination state.

Insofar, then, as it is helpful to understand the non-refoulement obligation in terms of incentivizing dangerous journeys and rewarding smugglers, the extension of this obligation to the extraterritorial arena potentially renders this effect more potent.

In her seminal piece on international lawyers and crisis, Hilary Charlesworth reminds us that the discipline of international law ‘does not encourage the weighing up of competing versions of events…What we [international lawyers] glean…as ‘facts’ may be inaccurate or partial and the way we report and emphasize them is an act of political interpretation’ (p.384).  She also observes that the ‘crisis’ approach can also involve concentrating on a single event or series of events and missing the ‘larger picture’ (id.).

Bearing these cautionary observations in mind, in the second part of this post I will appraise the merits of the supposed insight regarding the incentives behind dangerous crossings by placing the supposed insight in a broader context and considering other causal factors.

The Curious Case of the Killing of Kim Jong-nam - Fri, 02/24/2017 - 13:34

The night is dark and full of terrors. But sometimes the terrors are just too damn funny. Consider the circumstances of the untimely demise of Kim Jong-nam, the elder half-brother of North Korean dictator Kim Jong-un, assassinated in Malaysia apparently at the orders of his imperial sibling.

  • He was not just poisoned (so very old-school), but was poisoned by VX, the most potent of all chemical warfare agents, which is 100 times more toxic than sarin; less than a drop on the skin can kill you. Being poisoned at the orders of your family is one thing; your family killing you with a weapon of mass destruction is another. (Remember, though, that time when Kim Jong-un had some officials executed by anti-aircraft guns. All around nice guy.)
  • The immediate executioners were two young women, one Vietnamese and one Indonesian; they claim to have been duped into doing this by North Korean agents and that they thought they were just pulling a prank on someone; Malaysian police reject this version of events.
  • The Vietnamese woman was a failed “Vietnam Idol” contestant in 2016; a panel of judges rejected her after she sang just one line: “I want to stop breathing gloriously so that the loving memory will not fade.” The Indonesian woman wore a t-shirt with an “LOL” sign while carrying out the assassination. ROFL.
  • The most likely method of delivering the VX was not the spray or liquid on the assassins’ hands, but a drop of the toxin on a cloth which was then touched against Kim’s skin.
  • The Malaysian special forces are guarding the morgue in which Kim Jong-nam’s body is being kept, after an attempted break-in, the purpose of which may have been to tamper in some way with the corpse.
  • North Korea refuses to accept that the person who was killed was Kim Jong-nam, while at the same time requesting the surrender of the body.
  • There is apparently such a thing as a North Korean Jurists Committee. And they made a real gem of a statement on the assassination which I commend to every, erm, jurist out there. Among other things, the statement claims that (1) Malaysia violated international law by carrying out an autopsy on a bearer of a DPRK diplomatic passport, who had ‘extraterritorial right according to the Vienna Convention;’ (2) that the autopsy was an ‘undisguised encroachment upon the sovereignty of the DPRK, a wanton human rights abuse and an act contrary to human ethics and morality’; and that (3) ‘DPRK will never allow any attempt to tarnish the image of the dignified power of independence and nuclear weapons state but make a thorough probe into the truth behind the case.’ So the violation of international law and human rights is not the person’s death but the investigation. Note also the oh-so-subtle reference to nuclear weapons. Creepy/scary, but still LMAO.

Both factually and legally Kim’s assassination resembles the 2006 killing by radioactive polonium of Alexander Litvinenko in London, ostensibly by Russian agents. This is in effect Litvinenko redux, except it additionally has that very special DPRK flavour of crazy. The legal issues are more or less the same. One possible violation of international law is the infringement on the sovereignty of the territorial state. Another is the violation of Kim’s right to life – the DPRK is in fact a party to the ICCPR (recall the denunciation issue some time ago), but Malaysia (and China) are not and cannot invoke the DPRK’s responsibility directly in that regard even if they wanted to, although they may rely on customary law. There’s also the issue of the ICCPR’s extraterritorial application to the killing of a person by a state agent; I have argued that such scenarios are covered by human rights treaties, assuming that there is proof of the DPRK’s involvement in the killing, which of course remains to be conclusively established.


The Role of Human Rights Law in Constructing Migration Emergencies - Fri, 02/24/2017 - 09:00

This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Migration emergencies are ubiquitous in today’s world.  News media report daily on the situation of Syrian migrants crossing the Mediterranean in rubber dinghies, of Central American mothers and their children traversing inhospitable deserts to reach the southern U.S. border, or of controversial efforts to keep at bay Afghans and Iraqis aiming for Australian shores in overcrowded ships.  The story line often runs as follows: this dramatic and unforeseen increase in migration is a crisis that risks overwhelming the receiving nations’ ability to process and absorb these migrants.  Media analysts and politicians suggest multiple factors provoking these crises.  Some foreground the life-threatening dangers that migrants face on their journeys.  Many more stoke fears about the national security and cultural threats that mass influxes present to migrant-receiving nations.  But there is very little critical analysis of the underlying assumption that these migrant flows are unexpected and unpredictable.  Even less is said about the role of international law, and human rights law in particular, in constructing these emergencies.

Migration “emergencies” are, contrary to their moniker, foreseeable outcomes of the contemporary international legal framework.  Human rights law relating to migration provides the backbone of this problematic legal structure.  Mass influx movements of migrants are predictable reactions to violent conflict and structural violence as well as to low-wage labor needs in destination states.  In situations of violence, the flow of migrants often increases steadily, offering sufficient lead time for destination states to prepare for these flows, but is instead initially ignored and then transformed into a “crisis” that grabs the public eye.  This was the case with both the influx of Syrian refugees into Europe, with the first refugee camps opening in Turkey in 2011, and the “surge” in Central American migrants, with steady increases beginning in 2011 of both levels of violence in the Northern Triangle and numbers of migrants arriving at the southwestern border of the U.S.  When it comes to low-wage labor migration, the need for labor in destination states is even more easily anticipated.  These cycles of labor migration have been ongoing for decades.

International law relating to migration plays a role in transforming these predictable and foreseeable migration flows into migration emergencies.  Many advocates look to international human rights law as a panacea for migrants.  While human rights law offers some protections to migrants, it provides very few pathways for migrants to obtain lawful status in a destination state, and no options for safe and lawful transit to that state.  Other subfields of international law relevant to migration, such as labor law, trade law, the law of the sea, and transnational criminal law similarly do little to regulate migration flows.  As a result, the architecture of international migration law incentivizes migrants seeking protection or low-wage employment to show up at the border of destination states to try their luck.  It should come as no surprise that these migrants at times show up in large numbers.

The Legal Construction of Crisis

The legal construction of crisis deserves exploration.  Anthropologists, political scientists, and sociologists have previously theorized the construction of crisis. Anthropologists focus on the social and cultural foundations of the concept of crisis, political scientists highlight its use in effectuating policy change, and sociologists examine the role of politics and the media in constructing migration crises.  Drawing from these analyses, international law plays a related but distinct role in the construction of migration emergencies.

Ample scholarship highlights the limitations of international law relating to migration, in particular the narrow categories available for lawful migration.  This literature accurately attributes migration emergencies to a variety of causes, such as environmental change, food insecurity, and state fragility.  But it often depicts international law as insufficiently responsive to migration emergencies rather than as a causal factor in the construction of crisis.  There is also a robust international legal literature examining the role of crises in the development of international law.  These analyses of how crises impact law are insightful and compelling, but do not assess how law constructs those crises.

What is the legal construction of crisis?  International law relating to migration provides a useful case study.  Taking as a starting point that culture, media, and politics each have a hand in transforming systemic problems into short-term “crises,” international law and legal institutions can be revealed to be constitutive of and constituted by these factors.  But international law has a further role to play.  Binding multilateral human rights treaties address only a narrow segment of issues relating to migration.  These treaties are responsive to the interests of a relatively small group of migrants.  There are very few mechanisms for progressive development of human rights law to increase its relevance to contemporary migration; new multilateral treaties face serious political obstacles and soft law is incapable of making structural changes.  International human rights law ossifies the global response to migration, perpetuating an outdated approach and insulating it from political challenges.

The Architecture of International Law Relating to Migration

International migration law might be described as a nascent project to integrate theoretically several subfields of international law that touch on migration: human rights law, humanitarian law, international labor law, trade law, transnational criminal law, and the law of the sea.  International and regional treaties as well as a large body of soft law and consultative processes regulate migration to some extent.  But the legal framework does not create mechanisms for safe transit of migrants from home to destination country, whatever their reason for moving.  International migration law is currently characterized by profound deference to national immigration laws, buttressing rather than overcoming exclusionary domestic and regional migration regimes.

Human rights law provides an exception to this rule: the principle of non-refoulement.  Remarkably successful, this legal norm dominates the field of international migration law.  Where did it come from?  It’s important to remember that the UN Convention Relating to the Status of Refugees was created as a temporary regime in the wake of World War II.  The Convention was designed to protect political dissidents escaping the Soviet bloc, Jews fleeing Nazi Germany, and others fleeing fascist regimes.  Extended beyond Europe and past the original January 1951 time limit by its Protocol in 1967, the Convention is now relied on to protect a broad range of migrants, from those fleeing domestic violence at the hands of an intimate partner to those escaping the clutches of brutally violent gangs.  In the meantime, the principle of non-refoulement has expanded through a variety of binding international and regional human rights instruments, from the United Nations Convention against Torture to the European Convention on Human Rights.

Apart from the narrow scope of protections it offers, human rights law’s principle of non-refoulement ignores profoundly important questions relating to migration.  Only individuals who can establish a fear of persecution due to their race, religion, nationality, political opinion, or membership in a particular social group are eligible for Refugee Convention protections.  The UN Convention against Torture expands this category to include non-refoulement protection to migrants at serious risk of suffering torture at the hands of or with the acquiescence of a government official.  (In contrast, the European Convention on Human Rights provides a broad prohibition on removal to torture and other cruel, inhuman and degrading treatment or punishment, whether perpetrated by government officials or by non-state actors.)  Migrants leave their home country for many complex and compelling reasons, including severe environmental degradation, dire poverty, or serious violence that is neither individually targeted nor involving state action.  International human rights law provides migrants who move for these reasons with no lawful options to protect themselves.  Moreover, the travaux préparatoires of the Refugee Convention reveal that the drafters anticipated and purposefully avoided the issue of mass influx, and refused to offer any lawful path to entry into destination states.

The Legal Construction of Migration Emergencies

This is the architecture that constructs crisis.  The field of international migration law is dominated by the human rights principle of non-refoulement, but provides little additional structure.  This legal framework encourages migrants to take risky journeys to reach the borders of destination countries.  International human rights law then requires these migrants to distill their complex reasons for moving into a claim of non-refoulement in order to obtain permission to remain.  The problem might appear to be simply one of an outdated legal regime that no longer maps onto current realities.  But there’s more to the picture than that.  The rhetoric of international human rights law helps to obscure domestic and regional exclusion regimes aimed at preventing migrants from reaching countries that might offer protection and employment.  In other words, international human rights law draws migrants with the possibility of lawful status for those who can enter the territory and establish refugee status while at the same time diverting attention from laws that provide inadequate options for migration and stringent border controls that render safe transit an impossibility.

In order to adequately address contemporary migration flows, international migration law is in need of substantial reform.  This approach must involve not only human rights law but also other areas of international law relevant to migration such as trade law, law of the sea, and transnational criminal law.  An effort to unify migration law might begin with a temporary regime, meaning a binding treaty with a sunset provision that could shape expectations around and build norms underlying a permanent treaty regime.  As a minimum, such a regime should be able to anticipate migration flows and coordinate responses.  It must provide migrants with safe passage to destination countries.  Both host states and migrants have an interest in creating a functional international legal regime that anticipates and regulates migration flows, preventing exploitation of migrants and putting an end to migration emergencies.

This blog post is based on a law review article entitled “Migration Emergencies,” forthcoming in Volume 68 of the Hastings Law Journal.  With many thanks to EJIL Talk! and the ESIL International Human Rights Interest Group for this opportunity.

Introduction to ESIL Symposium on ‘International Human Rights Law in Times of Crisis’ - Thu, 02/23/2017 - 14:00

The theme of the 2016 ESIL Annual Conference in Riga was ‘How International Law Works in Times of Crisis’. In line with our practice for the last two annual conferences, the ESIL Interest Group on International Human Rights Law applied the conference theme to International Human Rights Law (IHRL) by hosting an afternoon seminar on ‘The Place of International Human Rights Law in Times of Crisis’ with papers by Elif Askin, Gaëtan Cliquennois, Jaya Ramji-NogalesChristy Shucksmith, Charlotte Steinorth and Ralph Wilde.

In this blog symposium, the six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict. While apparently distinct, the blog posts point to challenges in neatly categorising and distinguishing between types of crisis, the ways in which forms of crisis can overlap and bleed into each other and the strategic use of crisis discourse. Indeed, a question raised by Ramji-Nogales is what is meant by ‘crisis’ in the first place. Along with Wilde, she argues that the migration ‘crisis’ should not be understood as a ‘crisis’ as that suggests that the situation was unpredictable and unexpected. Rather, she argues that it was foreseeable and that the language of crisis obscures that fact. While dangerous sea crossings in the Mediterranean have been on-going for some time, the framing of these crossings as a crisis only occurred in Autumn 2015 in Europe.

The posts raise fundamental questions about the positioning and relevance of IHRL in times of crisis. The authors position IHRL on a spectrum from absence or resistance to any role for IHRL in crisis; to a role in mitigating crisis; to becoming part of the problem. The posts further point to heightened interest in IHRL in times of crisis and the chance of development of IHRL as a result. In this introductory post, we explore some of these cross-cutting themes further. 

Invisibility  In his discussion of austerity, Cliquennois demonstrates the continuing challenges of ensuring that IHRL can be part of a discussion of crisis in the economic domain. He focuses on a set of cases in which regional courts have found cases raising  austerity inadmissible or have failed to analyse the economic policies of states in relation to the human rights claims made. Similarly, in her analysis of the absence of the right to health in Security Council resolutions responding to the Ebola crisis, Steinorth also asks whether IHRL is undermined and displaced by alternative legal frames in times of crisis. Both posts highlight the lack of economic and social rights in dominant crisis discourses.

Mitigating Role  By contrast, other authors characterise IHRL as playing a mitigating role in times of crisis. Wilde presents the principle of non-refoulement as playing a mitigating role in responding to the dangerous sea crossings by asylum seekers. Shucksmith illustrates that in the area of disaster risk reduction, states have turned to specific human rights that map on and mitigate particular risks in disaster. Aşkın also argues that the due diligence principle enshrined in IHRL can mitigate the risks of indirect entanglement in international crimes when states seek to transfer arms to non-state actors for the protection of civilians or suppression of violent non-state actors.

Progressive development of IHRL in Times of Crisis  A number of the authors identify crisis as a time in which the relevance and applicability of IHRL to crisis is challenged. In such a context, the challenge can spawn growth and result in the assertion or expansion of IHRL in ways previously not seen. For example, Cliquennois attributes the generation of a new ‘sensitivity’ to social rights by the European Court of Justice and the European Court of Human Rights to the consequences of policies adopted by states to the austerity ‘crisis’. Times of crisis can also highlight the gaps and failure of IHRL to ‘provide adequate rules to fit the realities of crisis’ as argued by Askin. This can either render it redundant or can open opportunities for adaptation and growth. Wilde argues that the extra-territorial extension of the non-refoulement principle by the European Court of Human Rights is an attempt to make human rights relevant in an era where options of safe travel to Europe to seek asylum are seriously curtailed.

IHRL responses as part of the problem? Some authors in the symposium further point to the responses developed through IHRL as becoming part of the problem it seeks to address. Ramji-Nogales argues that a mitigating role for IHRL is insufficient in responding to crisis in the context of migration because, in her view, law is also constitutive of crisis and this role therefore needs to be acknowledged and addressed. She explains that within the migration context, IHRL provides protection to persons fleeing persecution and a risk of torture or other cruel, inhuman or degrading treatment or punishment. However, she suggests that not only is this response too narrow and incomplete but ‘offers very few pathways for migrants to obtain lawful status in a destination state [outside of these categories] and provides no options for safe and lawful transit to that state’. Wilde joins Ramji-Nogales and points out that the extra-territorial extension of non-refoulement cannot compensate for the root causes of why individuals feel compelled to make dangerous sea crossings to seek refuge.

Overall, all authors point to the indispensable role of IHRL in times of crisis and the inherent limitations of IHRL, often offering remedial responses rather than a preventive frame. Shucksmith holds that IHRL should adapt to the types of crises it faces by not only responding or reacting to crisis through mitigation but also looking-forward to crisis prevention and preparation for crisis. She proposes that IHRL can become a vehicle for anticipating crisis before a situation turns into one. These structural questions about IHRL align with Askin’s identification of the principle of due diligence as a governance tool in managing crisis along similar lines to Shucksmith’s analysis of how obligations under IHRL can be built into risk assessments when preparing for natural disasters and to Cliquennois’s analysis of how human rights courts must signal that austerity measures must take into account economic and social rights.

ESIL Blog Symposium on ‘The Place of International Human Rights Law in Times of Crises’ - Thu, 02/23/2017 - 09:00

Over the next week, we will be hosting a symposium on ‘The Place of International Human Rights Law in Times of Crisis’. The posts in this series arise out of a seminar held by the ESIL Interest Group on International Human Rights Law at the 2016 ESIL Annual Conference. In this blog symposium, six authors examine the place of IHRL in four crises: austerity, disaster, the migration ‘crisis’; and weapons transfer in conflict.

Later today, we will have an opening post by Lorna McGregor and Başak Çali. This will be followed by contributions from Jaya Ramji-Nogales and Ralph Wilde. On Monday, we will have a post by Christy Shucksmith followed by contributions from Elfin Askin and Charlotte Steinorth on Tuesday. The final post in the symposium will be by Gaëtan Cliquennois.

We thank all of those who have contributed to this fascinating symposium.

The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya: Causing Ripples in Law of the Sea Dispute Settlement? - Wed, 02/22/2017 - 09:00

On 2 February 2017, the International Court of Justice handed down its Judgment on preliminary objections in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). Somalia had brought the case to request that the Court determine its single maritime boundary with neighbouring Kenya. The ICJ held that it may proceed to the merits phase, thereby rejecting the respondent’s submissions. Among other arguments, Kenya raised an objection rooted in Part XV (“Settlement of disputes”) of the 1982 United Nations Convention on the Law of the Sea (LOSC). It contended that the Convention’s dispute settlement system is an agreement on the method of settlement for its maritime boundary dispute with Somalia and therefore falls within the scope of Kenya’s reservation to its optional clause declaration made pursuant to Art. 36(2) of the ICJ Statute, which excludes “[d]isputes in regard to which the parties to the dispute have agreed or shall agree to have recourse to some other method or methods of settlement”.

The fact that Kenya relied on this argument is noteworthy in and of itself, as it was the first time that the Court faced a LOSC-based jurisdictional challenge. Moreover, we believe that the way in which the Court disposed of this argument has far-reaching implications since it casts a long shadow over dispute resolution in the law of the sea. But before delving into the ICJ’s reasoning and its ramifications, we will highlight some essentials of the LOSC dispute settlement system.  

Part XV of the LOSC

Part XV is famous for establishing a range of compulsory dispute settlement procedures entailing binding decisions. States parties may choose from among several such procedures: the International Tribunal for the Law of the Sea (ITLOS), the ICJ, arbitration and special arbitration. It should be stressed that arbitration, regulated in Annex VII of the LOSC, is the “default option”. This means that (a) if a State party has not voiced a preference it is considered to have selected arbitration and (b) if the parties to the dispute have not accepted the same procedure, the legal dispute may be submitted only to an arbitral tribunal.

This obligatory scheme of adjudication is not all-encompassing. While certain categories of disputes are excluded from the compulsory system, States parties may opt out of others, for instance maritime delimitation. Art. 282 of Part XV offers parties to a dispute yet another way out:

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree. (emphasis added)

It is widely understood that the wording “or otherwise” covers the situation of optional clause declarations made by both parties to a dispute under Art. 36(2) of the ICJ Statute (see e.g. M.H. Nordquist, S. Rosenne & L.B. Sohn, United Nations Convention on the Law of the Sea, 1982: A Commentary (Vol. V, Martinus Nijhoff, 1989, pp. 26-27)).

The ICJ’s Approach to Part XV of the LOSC

The Court had to tackle the following conundrum: do the parties’ optional clause declarations form an agreement to appear before the ICJ and consequently exclude the LOSC dispute settlement system (Art. 282 of the LOSC) despite the Kenyan reservation? The core of the Court’s reasoning derives from the travaux préparatoires of the Convention, i.e. the Third United Nations Conference on the Law of the Sea (UNCLOS) (1973-1982). More than half of the optional clause declarations that existed at the time of the UNCLOS had a Kenyan-type reservation. Notwithstanding their prevalence, the Court found that the travaux préparatoires reveal no intention on the part of the UNCLOS participants to exclude most of the existing optional clause declarations in that period, namely those including Kenyan-type reservations. Thus, the Court held, such reservations cannot bar the application of Art. 282.

Several difficulties arise from this aspect of the ICJ’s reasoning. Generally, it can be questioned whether travaux préparatoires provide a strong footing on which to base the jurisdiction of the Court, which consistently applies a stringent test of “preponderance”. Turning to the specifics, it stands to reason that the silence of the Conference on this issue could have been construed differently. After all, silence can ‘say’ many things. The absence of any debate on Kenyan-type reservations during the UNCLOS might simply stem from a broadly shared belief that such reservations rendered Art. 282 inapplicable and that this needed no further comment. Judge Robinson, the sole dissenter on the matter of Part XV in Somalia v. Kenya and a former Ambassador to the UNCLOS, drives similar points home in convincing detail. It is also worth observing that the Judgment does not contain references to the case law of the ITLOS and Annex VII Arbitral Tribunals, which throughout the past two decades have done much to shed light on the interpretation of Part XV.

There was another legal basis for accepting jurisdiction, which was mentioned by the Court itself but only in subsidiary order. The ICJ took its cue from its predecessor, the Permanent Court of International Justice, which affirmed the Court’s ability to entertain a case should the alternative be a denial of justice resulting from a negative conflict of jurisdiction (Factory at Chorzów (Jurisdiction), Judgment, p. 30). This approach proved prescient in light of a last minute declaration under the LOSC filed by Kenya that excludes maritime delimitation from the Convention’s compulsory system. It was deposited nine days before the ICJ delivered its Judgment and is not mentioned in the ruling. The denial of justice line might serve as an antidote to strategically timed tinkering with declarations under the LOSC and/or the ICJ Statute (cf. e.g. the recent reservation added to the UK’s optional clause declaration in response to proceedings instituted by the Marshall Islands: “any dispute which is substantially the same as a dispute previously submitted to the Court by the same or another Party.”).

The Impact on LOSC Dispute Settlement

There is the real prospect of Somalia v. Kenya making waves in LOSC dispute settlement where both parties have entered optional clause declarations under Art. 36(2) of the ICJ Statute and a Kenyan-type reservation applies between them. This class of reservation is not only widespread but also good form as its inclusion in authoritative model clauses would suggest (see Handbook on accepting the jurisdiction of the International Court of Justice, para. 29 and a Council of Europe Recommendation).

First, the Court’s ratio does not seem to consider States’ choice of forum under the LOSC. What does this mean for a country like Canada, for instance? Canada has inserted a Kenyan-style reservation into its optional clause declaration. It has also selected the ITLOS and arbitration as its preferred fora under the LOSC to the exclusion of the ICJ. Could Canada see maritime disputes being brought against it before the ICJ despite its express intention not to have the World Court settle such disputes? To avoid such an outcome, States are well-advised to list the various categories of sea disputes they wish to exclude in their optional clause declarations (see para. 128 of the 2017 Judgment implying as much).

Second, reluctant respondents appearing before the ITLOS or an Annex VII Arbitral Tribunal now have a powerful card up their sleeve. They could plausibly argue that the dispute should have been submitted to the ICJ. Given ITLOS Judges’ and Annex VII Arbitrators’ steady reliance on the Court’s jurisprudence, it is quite possible they will decline jurisdiction lest they open the door to a procedural fragmentation of sorts.

Beyond the practical ramifications of Somalia v. Kenya, systemic shifts are afoot. In 1945, the founders of the United Nations sought to give pride of place to the World Court for the settlement of legal disputes (see Art. 36(3) of the UN Charter). During the UNCLOS the delegations could not reach the same consensus in favour of the ICJ, nor the ITLOS for that matter. After painstaking and protracted discussions, they arrived at the following compromise in 1982: there would come a compulsory system, but priority would be given to arbitration (unless parties to a dispute agree otherwise). This part of the package deal has shown great vitality, suffice it to mention the instrumental role of Annex VII Arbitral Tribunals in “heating up” the once dormant Permanent Court of Arbitration. Fast-forward to the present day, the ICJ’s Somalia v. Kenya Judgment has in one fell swoop salvaged a case that otherwise might not have been adjudicated while strengthening the Court’s position in the pantheon of international courts and tribunals. But at what cost?

The authors would like to thank Tamar Meshel and Matina Papadaki (both of MPI Luxembourg) for their insightful comments.

Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment - Tue, 02/21/2017 - 09:00

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”.

The case also has wider significance. The ECtHR contemplated an expanded timeframe in which qualifying harm may manifest post-removal. Rather than requiring that the applicant’s death be imminent at the time of removal, the Court extended the enquiry beyond the point of departure from Europe by considering a period of time in the receiving country during which the applicant’s condition may decline. The impact of removal on an applicant must now be assessed by considering how an applicant’s condition “would evolve after transfer to the receiving State” ([188], emphasis added). In expressly moving beyond the language of “imminence”, the ECtHR actually does no more than realign with the “preventive purpose” of Article 3 ([186]). The ECtHR has often paid lip service to this by citing Vilvarajah & Ors v United Kingdom, App. Nos. 13163/87; 13164/87; 13165/87 (30 October 1991), which established that the ECtHR must undertake a rigorous assessment of the foreseeable consequences of removal ([108]). In the refugee context, decision-makers have also indicated that risk assessments are prospective and forward-looking. Yet, there are few examples of assessments that actually look beyond the short-term, and little engagement with the temporal limit of risk assessment (or indeed with whether “time” properly has any role in the assessment of risk).

In moving beyond mere lip service and attempting to engage with the future both theoretically and evidentially, the Paposhvili judgment should be applauded. However, the ECtHR circumscribes the temporal horizon by emphasising situations involving an applicant’s rapid decline ([183]). We might ask why the ECtHR limited its ruling to rapidly declining health only, particularly when the dissent of Judges Tulkens, Bonello and Spielmann in N almost nine years ago simply found Article 3 to apply on the basis of the severity of suffering, irrespective of the time period:

“There is no doubt that in the event of removal to Uganda the applicant will face an early death after a period of acute physical and mental suffering…The expelling State’s responsibility, because substantial grounds are thus shown for believing that the applicant almost certainly faces a risk of prohibited treatment in Uganda, is engaged” ([23]).

While Paposhvili may expand the class of beneficiaries of Article 3 protection, it remains to be seen whether it will protect applicants with slow-moving but terminal conditions. For instance, in Ndangoya v Sweden, App. No. 17868/03 (22 June 2004), the applicant would have developed AIDS within one to two years (and died within three to four years) after discontinuing treatment; in N, the applicant’s prognosis indicated a decline in health leading to death in two years’ time. Much will depend on the interpretation of “rapid” decline and the importance judges may assign to the connection between rapidity and predictive certainty. There is nothing in the ECHR or other human rights and refugee instruments to require an imminence test per se, but it is often imported into risk assessments in many international protection decisions.

My current research work, on the Imminence Project at the Kaldor Centre for International Refugee Law at the University of NSW, analyses whether and how decision-makers impose an imminence “requirement” in the grant (or, more often, the refusal) of refugee status or subsidiary protection/complementary protection status. Understanding this approach will have increasing importance as slower-onset types of harm increasingly prompt flight, such as the impacts of climate change and natural disasters, social disorder and economic collapse, and different forms of armed conflict.

One of the Project’s preliminary concerns is with decision-makers’ reluctance to favourably assess a risk which has a delayed manifestation post-removal. One reason, adverted to by the Grand Chamber in Paposhvili, is that the decision would involve excessive speculation because of the potential over a longer timeframe for risk-reducing measures to intervene. The Grand Chamber pointed out that the Court in N v United Kingdom had rejected the claim there because:

“the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of [AIDS] worldwide” ([178]).

The Paposhvili judgment does two things to assuage such fears and indicate that a prospective risk assessment, including a longer-term one, is justified. First, it confirms that speculation is inherent and acceptable in Article 3 enquiries ([186]; see also Trabelsi v Belgium, App. No. 140/10 (4 September 2014) and Saadi v Italy, App. No. 37201/06 (28 February 2008)). Secondly, it sets out, in a practical sense, the evidence that would satisfy a court as to some of those factors which the ECtHR in N stated as too speculative – such as access to medical treatment and support ([189]–[191]). There is no reason why risk-reducing factors cannot be analysed in the same practical way; this is, after all, an area in which science and expert evidence can add to predictive certainty, although it is important to remember that certainty is not the benchmark in risk assessments.

The judgment also prompts us think about the nature of prospective risk enquiries in refugee and subsidiary protection/complementary protection cases more broadly, and ask whether decisions involving longer-term forms of harm truly reflect a definition of risk as being likelihood + consequence, rather than just likelihood alone. Moreover, can, as the dissent in N seems to suggest, the level of predictive certainty be judged based on the severity of the consequences of removal delinked from the time it will take for those consequences to manifest? Finally, are decision-makers, in effect, covertly raising the standard of proof in cases concerned with delayed risks above the level of “real”?

In short, the Paposhvili judgment gives reason to hope that more robust risk assessments will be made under Article 3, leading to greater protection. However, it remains to be seen how the ECtHR will interpret the Paposhvili test in subsequent cases, particularly in relation to illnesses with longer-term prognoses. In the meantime, the impact of time on decision-makers’ prospective risk assessments should be further exposed and explored, rather than remaining implicit, as is often the case now.

Post-Truth and International Criminal Tribunals - Mon, 02/20/2017 - 07:39

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source:

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

Readers might recall that I have previously written about this topic here on the blog, on the basis of two companion articles. The first, in the AJIL, was based on a series of public opinion surveys in the countries of the former Yugoslavia, and showed that the International Criminal Tribunal for the Former Yugoslavia had no or had only minimal impact in persuading the relevant target populations that the findings in its judgments are true. The second, in the Georgetown JIL, provided a theoretical account of the ICTY’s failure, relying mainly on extensive scholarship in social psychology, and argued that the causes of the ICTY’s ineffectiveness are complex, turning on an interplay between subjective and objective limitations on individuals’ processing of information about war crimes, limitations that are largely independent of the quality of the Tribunal’s own work.

I recently put up on SSRN a third, final piece in this series, which tries to create and test a generalizable hypothesis on the basis of the ICTY’s experience, i.e. it looks at what that experience teaches us about other tribunals. The piece is called Courting Failure: When are International Criminal Courts Likely to Be Believed by Local Audiences?, and is forthcoming in the Oxford Handbook of International Criminal Law; here’s the abstract:

The primary role of international criminal courts and tribunals is to punish those deserving of punishment. But beyond dispensing individualized justice, the question still remains whether such tribunals can also help deeply traumatized and divided societies heal on a more fundamental level. To do that, the factual accounts these tribunals produce – about the guilt of specific individuals for specific crimes, but also about the systemic nature and causes of these crimes – at least at some point need to be accepted by their local audiences. Crimes need to be believed to be remedied.

Some courts, like the International Criminal Tribunal for the Former Yugoslavia, have failed in this broader task. But is every international criminal court or tribunal similarly doomed to fail? Can we at least with some measure of reliability predict when such failure is likely? Drawing on research in social psychology and on a series of opinion polls in the former Yugoslavia, as well as on an analysis of the successes and failures of the Nuremberg, Tokyo, Rwanda, Sierra Leone and Cambodia tribunals, this chapter puts forward such a general predictive theory.

The chapter thus argues that whether an international criminal tribunal and its account of responsibility for committed atrocities will be trusted by local populations depends little on the quality of the tribunal’s work, the fairness of its procedures, or the scope of its outreach programme. It depends mostly on whether the tribunal’s outputs – decisions on whom to prosecute, convict, or acquit – align with what these populations want to hear in their particular context and at that particular time. Psychological mechanisms of identity-protective reasoning can easily lead to the widespread rejection of the relevant tribunal and its factual account. Whether this will in fact happen depends largely on one variable – the reaction of dominant local political, media and intellectual elites. The likelihood and potency of an adverse reaction can, in turn, be predicted by reference to four factors: (1) the degree of continuing group cohesion and polarization; (2) the degree of elite continuity in terms of both personnel and ideology; (3) the degree of authoritarianism in the relevant society; and, most importantly (4) the degree of threat that the work of the tribunal is perceived to pose to the power and influence of these elites.

When I did the research for the piece one episode struck me as particularly illuminating – the reception of the Tokyo Tribunal in Japan. The failure of the Tokyo IMT to make much impact in Japan is, I argue, largely a function of the enormous degree of elite continuity between wartime and post-war Japan. For example, the majority of Class A war criminal suspects were eventually released without ever being tried; one of the most prominent, Nobusuke Kishi, chief industrial official of Japanese-occupied Manchuria and minister in the wartime Tojo government, was Japanese Prime Minister from 1957 to 1960. The current Prime Minister, Shinzo Abe (up there in that hectic photo with a disturbingly cheerful Trump, dealing with the most recent North Korean missile launch), is his grandson. The Liberal-Democratic Party of Japan, led today by Abe and representing a broad spectrum of conservative or right-wing ideology, has since its founding in 1955 been in power in Japan, but for some four years of interruption in the 1990s and 2000s. Indeed, since 1996, 7 of the 10 Japanese prime ministers were sons or grandsons of post-war prime ministers. Elite continuity could hardly be greater. And so, while revisionist discourse is on the radical fringe in modern Germany, it is perfectly mainstream in today’s Japan and appears to be correlated with economic slowdown and malaise (i.e. it provides a useful distraction from otherwise more pressing problems). For example, Prime Minister Abe, more than half of his cabinet, and a third of the Japanese Diet are openly affiliated with Nippon Kaigi, a Shinto right-wing lobbying organization with an explicitly revisionist agenda.

Here comes the really nice bit – for decades now nationalist prime ministers have provoked the ire of neighbouring states by their visits to the Yasukuni Shrine, which honours all Japanese war dead but has become a focal point for reactionaries after the 1978 enshrinement there of the war criminals convicted by the Tokyo IMT. (Notably, the imperial family have avoided all visits to the shrine after 1978). Just outside Yasukuni is a memorial (pictured) to IMT Judge Pal of India, the only judge to vote for acquittal at Tokyo and best known for his gigantic dissenting opinion. Pal has long been proclaimed a hero by Japanese nationalists. Indeed, in a 2007 state visit to India, Prime Minister Abe paid tribute to Judge Pal in a speech before the Indian Parliament, praising his “noble spirit of courage” at the Tokyo trial.


This stele, placed in its context, is of course exactly what ‘post-truth’ looks like. It is post-truth objectified, its physical embodiment. And what can international criminal tribunals do about it? Little or nothing, not in the face of determined local elite opposition. If it is not forcibly imposed from without (which will be exceptionally rare and normally quite partial), real change in these societies and the rejection of ‘alternative facts’ can only come from within. And as we can see from the example of Japan, there is no guarantee that the court-established truth will be accepted, certainly not through the simple passage of time.


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