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Announcements: Annual Conference on WTO Law; CfP Law in transition; Venice Academy of Human Rights; BIICL Event Private Security and Human Rights; Silent Leges Inter Arma? Conference; Workshop on Refugee Rights; New additions to the UN Audiovisual...

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

1. Annual Conference on WTO Law. Registration is now open for the Annual Conference on WTO Law, a two-day conference jointly organised by Georgetown Law and the Graduate Institute, Geneva. It has its origins in the partnership created in the year 2000 between University Professor John H. Jackson of Georgetown, and Professor Sir Francis Jacobs, KCMG, QC, a Trustee of BIICL, and has a longstanding affiliation with the Journal of International Economic Law (JIEL), published by the Oxford University Press. The Annual Conference on WTO Law pursues cutting-edge issues of interest to academics and practitioners alike. The 2017 Conference will be held in Geneva on 9-10 June 2017. The programme can be found here.

2. Call for Papers: Law in Transition – Interacting Legal Orders and Changing Actors. The conference ‘Law in transition – Interacting legal orders and changing actors’ arranged by the INTRAlaw (INternational and TRAnsnational tendencies in LAW) Research Centre will take place on 28 and 29 September 2017 in Aarhus. Proposals should be submitted by  1 June 2017.  The underlying idea of the conference is the fact that sovereign states are no longer the only actors in charge of establishing, implementing and enforcing legal norms. To an increasing extent, legal norms are established as a result of activities in international and supranational organizations, transnational corporations and through collaboration between public law and private law entities at national, supranational and international levels. The aim of the conference is to shed light on the impact of these new tendencies on legal regulatory mechanisms, on the role of the traditional legal actors, and on the subsequent challenges for legal research.

3. Venice Academy of Human Rights. The Venice Academy of Human Rights will take place from 3-12 July 2017 on the topic “Economic, Social, and Cultural Rights as an Answer to Rising Inequalities”.  The faculty includes a distinguished opening lecture by Branko Milanović, a general course by Olivier De Schutter as well as lectures and discussion sessions with Wilfried Altzinger, Andreas Føllesdal, Dzidek Kędzia, Miloon Kothari, Manfred Nowak, Kate Pickett and Heisoo Shin. The Venice Academy of Human Rights 2016, in co-operation with PluriCourts – Centre of Excellence for the Study of the Legitimate Roles of the Judiciary in the Global Order, discusses the prospects for economic and social justice against the background of rising inequalities. The course is aimed at academics, practitioners, PhD/JSD and master students. A selected number of participants will have the opportunity to present their own ‘work-in-progress’ to faculty members and peers. Please see the call for applications and the detailed programme for more information.

4. BIICL Event ‘Private Security and Human Rights’. On 24 May 2017, BIICL is hosting an event titled ‘Private security and human rights’. This event will look at implementation of the UN Guiding Principles on Business and Human Rights by private security providers. It will provide an overview of the regulatory framework and international developments, consider the role of certification bodies and discuss common challenges along with emerging practices to address them. The private security sector operates in widely varied and often complex environments with frequent human rights risks. These issues extend to companies in other sectors which require private security services. In addition, private security’s core operations often involve the protection of human rights such as the right to life, security of the person and property, even if not expressed in human rights terms. Please see the event flyer. Further information is available online.

5. ‘Silent Leges Inter Arma? Conference, Bruges, 20-22 September 2017. The Belgian Group of the International Society for Military Law and the Law of War is pleased to announce its ‘Silent leges inter arma?’ conference. This international conference, organised with the support of the Law Schools of the University of Exeter and the University of Melbourne, will be hosted at the Grand Hotel Casselbergh in the centre of the historical city of Bruges (Belgium) from 20 – 22 September 2017. This conference will bring together practitioners and academics active in the field of security and defence with parliamentarians and their collaborators, to discuss a variety of topical, including the initiative for a new multilateral treaty for mutual legal assistance and extradition for domestic prosecution of crimes of genocide, crimes against humanity and war crimes, the UN Charter and the legal bases to resort to the use of force in light of contemporary security challenges, parliamentary oversight and democratic control over armed forces, legal considerations pertaining to the use of armed forces in domestic situations in support of counter-terrorism efforts, targeting in complex situations, the legal challenges in hybrid warfare, and a commentary on the ICRC commentaries on the Geneva Conventions. For more information please see here.

6. Workshop on Refugee Rights. Brunel University London and the Jean Monnet Chair in EU Law at City, University of London, in collaboration with the Institute of Advanced Legal Studies, are organising a brainstorming workshop on refugee rights (convenors: Professor Alexandra Xanthaki and Professor Panos Koutrakos). This workshop is interdisciplinary (bringing together academic lawyers, political studies specialists, media experts, NGOs), intra-disciplinary (the speakers include international, EU, and human rights lawyers), and practice-oriented (presentations will focus, amongst others, on experience on the ground). Presentations will be short and focused on specific arguments and perspectives. The workshop will take place at the Institute of Advanced Legal Studies on Friday 19 May 2017. Attendance is free but places are limited. You may find the programme of the workshop and sign up here.

7. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs is pleased to announce the completion of the International Law Handbook, which contains a collection of instruments used by the Codification Division as study materials for its training courses under the Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law. This publication was prepared to celebrate the fiftieth anniversary of the establishment of the Programme in 2015 and to promote the teaching and dissemination of international law around the world. The International Law Handbook is intended to be used as a general work of reference and comprises of four books, which can be accessed under the Research Library pillar of the UN Audiovisual Library of International Law website free of charge. Additionally, a new lecture has been added to the UN Audiovisual Library of International Law website by ICC Prosecutor Fatou Bensouda on “The Office of the Prosecutor of the International Criminal Court: Successes, Challenges and the Promise of International Criminal Justice”.

8. Call for Applications: Assistant on a MOOC in International Investment Law – University of Louvain (UCL). Starting date: June / July 2017. The University of Louvain has recently launched a MicroMaster in international law. Four courses are offered in this MicroMaster: public international law, international human rights law, international humanitarian law and international investment law. The University of Louvain is currently recruiting an assistant to help on the MOOC in international investment law. The selected candidate will work on the preparation of the MOOC; the candidate will also be expected to be active on the forum of the MOOC once it is on-line. The selected candidate will be fluent in English and preferably have already some knowledge of international investment law. For further information and to apply, please contact Professor Yannick Radi (yannick.radi {at} uclouvain(.)be var mailNode = document.getElementById('emob-lnaavpx.enqv@hpybhinva.or-85'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%79%61%6E%6E%69%63%6B%2E%72%61%64%69%40%75%63%6C%6F%75%76%61%69%6E%2E%62%65"); tNode = document.createTextNode("yannick.radi {at} uclouvain(.)be"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-lnaavpx.enqv@hpybhinva.or-85"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

9. Disaster Risk Reduction and International Law Symposium 2017. The current global landscape governing disaster risk reduction (DRR) is in a significant period of evolution. In response to this, the University of Reading (School of Law and the Walker Institute) together with the ASIL Disaster Law Interest Group is organising a significant symposium between 29 June and 1 July 2017. The symposium, which will be framed around the principles and objectives underpinning the Sendai Framework is a unique opportunity to discuss, debate, inform and progress the development of law, policy and practice governing DRR and disasters at the national, regional and international levels. The symposium is designed to bring together a multinational spectrum of participants drawn from across governmental, intergovernmental, private, NGO/civil society, academic and media sectors. Participants will comprise a mixture of those contributing papers and non-contributors informing wider discussions and debate. For further information and registration please see here.

10. International Law Weekend: Extended Deadline for Panel Proposals. The deadline for panel proposals for International Law Weekend 2017 has been extended until May 15.  International Law Weekend 2017 will take place from October 19 – 21 in New York City. This conference is jointly sponsored and organized by the International Law Students’ Association and the American Branch of the International Law Association. More information about the conference, its theme, and procedures about panel submissions is available here.

 “Vulnerability” versus “Plausibility”: Righting or Wronging the Regime of Provisional Measures? Reflections on ICJ, Ukraine v. Russian Federation, Order of 19 April 2017

EJIL:Talk! - Fri, 05/05/2017 - 10:00

The ICJ order of 19 April 2017 in the case Application of the international convention for the suppression of the financing of terrorism and the international convention on the elimination of all forms of racial discrimination (Ukraine v. Russian Federation) seeks to safeguard the interests of ethnic minorities in Crimea, and to protect the victims of armed conflict in the eastern regions of Ukraine.

As Iryna Marchuk reported on this blog, the ICJ indicated provisional measures only on the basis of the CERD but not on the basis of ICSFT. The Court notably obliged the Russian Federation to refrain from constraining the representative body of the Crimean Tartars and to ensure the availability of education in Ukrainian language in Crimea (para. 102). The Court also “reminds” both parties of the Minsk Agreement on the Donetsk and Luhansk regions, and “expects” them to work towards its full implementation (para. 104).

Has the Court hereby, once again (and maybe contre gré), acted as a protector of human rights and minorities more than as the quintessential inter-state dispute settlement body? And does this tell us anything about the relative importance of individual rights over inter-state obligations in the web of international law? The two buzz words “plausibility of (state) rights” versus “human vulnerability”, juxtaposed by Judge Cançado Trindade in his separate opinion (esp. in paras 36 et seq) even insinuates a possible conflict between two paradigms. This blog explores the dualism of the states’ international legal status and individual international law-based rights, and the opportunities and risks of the “humanisation” of international law, manifest in these proceedings.

The plausibility of rights – but whose rights?

The prerequisites for a provisional measure of the ICJ are, first, its prima facie jurisdiction, second, the plausibility of the rights whose protection is sought, and third, the risk of irreparable prejudice and urgency. (And because Art. 41 of the ICJ-Statute grants the power to indicate provisional measures to the Court only “if it considers that circumstances so require”, the Court must in addition examine whether the issuance of such an order is “appropriate” – which it did en passant in the order of 19 April 2017, para. 99). One question in the proceedings Ukraine v. Russian Federation was whose rights must be made plausible by the plaintiff and which degree of showing this requires.

In our contemporary international legal system, the rights flowing from international treaties or custom are not inevitably and exclusively state rights. They may also be granted to individual human beings, by virtue of a concrete legal regime. But is this not identical as saying that individuals are protected by international law, and that they are the ultimate beneficiaries of the international legal order? Most observers and the majority of states today probably agree that the contemporary international legal order rests on two foundational principles, the principle of state sovereignty/non-intervention on the one side, and the principle of humanity or human dignity on the other side. The controversies are (“only”) about the relative thickness or importance of these two pillars, how to resolve conflicts between both (e.g. in constellations of humanitarian intervention or for overcoming the immunity of state officials in judicial prosecutions for gross human rights violations). Besides, there are philosophical debates about the ultimate rationale of state sovereignty; whether this is the existence of the state as an indispensable factor of order, stability and thus of intra-state peace, or whether the state should be seen as purely instrumental for the well-being of humans. The answers given on those debates co-determine the relative weight accorded to the two principles, sovereignty and humanity, in situations where they point in opposite directions or stand in conflict. It seems that the current climate in international relations tends (again) to accord a greater importance to state sovereignty than during the two decades from the collapse of the socialist block in 1990 until the 2011 military intervention in Libya, conducted (abusively in the eyes of many observers) under the heading of “responsibility to protect”.

The basic question which surfaced in Ukraine v. Russian Federation, and which found its technical expression in the controversy between the Court’s majority and Judge Cançado Trindade over the plausibility-test is related to that fundamental duality of the international legal system. The duality finds one expression in the seemingly very technical question whose rights are protected by a given treaty: the contracting states’ rights or individual human beings’ rights, or both?

Individual treaty-based rights irreversibly harmed: The LaGrand case

Surely, the proceedings between Ukraine and Russia are not the first time this question surfaced. The most prominent case is the LaGrand case (Germany v. USA), decided on the merits in 2001. Here, a core legal question was whether the Vienna Convention on Consular Relations accorded only state rights or whether the provision at stake, Article 36 paragraph 1 lit. b), also generated a right of individuals who are nationals of the sending state. The Court famously interpreted that provision, based on its plain wording, but probably against the state parties’ original intents. It decided “that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person” (ICJ, LaGrand, para. 77).

That case is also a sad illustration of the rationale and relevance of provisional measures. The purpose of provisional measures is to prevent the nullification of the legal positions at issue in the case by prohibiting the defendant from creating a fait accompli before the Court has decided on the merits of the claim. In the LaGrand case, the United States had disregarded the ICJ order of provisional measures to stay the execution of the brothers LaGrand and had moved on to execute them. A more drastic instance of producing an irreversible harm can hardly be imagined.

Focus in individual rights in ICJ-proceedings due to jurisdictional constraints

Even in the current climate of statism, the ICJ has often been forced to focus on possible individual rights embodied in an inter-state treaty simply as a side-effect of the otherwise lacking jurisdiction. It is somewhat ironic that the proceeding Ukraine v. Russian Federation could go forward only on the basis of the jurisdictional clauses in two specific treaties, one of which is a human rights treaty.

The question is whether the “individualisation” of the dispute, resulting from the application of the CERD to it, is a wrong turn, artificially forced onto the proceedings for reasons of jurisdiction alone, or whether it is actually the proper direction the Court (and international law more generally) should take? Are the real issues here the annexation of Crimea and the de facto occupation of Eastern Ukraine − in other words, the loss of territory of a sovereign state? Or are the real issues the discrimination against ethnic Ukrainians and Tartars in Crimea, and the suffering of the populations in the war in Eastern Ukraine?

Of course, it is to some extent both. The question remains which legal consequences flow from the duality. Here we are not asking about the trade-off needed in constellations of outright conflict between the two poles (as manifest in humanitarian intervention/responsibility to protect), but rather what happens when two regimes, e.g. the “statist” system of provisional measures in an inter-state proceeding and the “humanist” anti-discrimination law point roughly in the same direction. The different rationales and different basic concepts might lead to frictions.

The practical relevance of the “humanisation” in the case at hand

Only hard core statists deny that human rights treaties such as the CERD generate real individual rights and not only inter-state rights and obligations to the benefit of protected persons. The more interesting treaty for the purpose of this blog is the ICSFT. Is it a pure suppression convention in the sense that it generates only state obligations to adopt national measures including criminal laws to suppress the financing of terrorism? Or does it contain a direct state obligation to desist from financing terrorism? And − relevant to my question – does it generate rights of victims of terrorism, e.g. the passengers of the downed Malaysian Aircraft and their heirs, opposable against a state sponsor of terrorism? Such rights might be rights of effective protection against terrorist acts which would be violated by financing the latter.

This question might at first sight appear as purely academic. But the proceedings Ukraine v. Russian Federation show that the answer may in fact have a practical legal consequence. Its tangibility and salience becomes apparent in the controversy between the majority and Judge Cançado Trindade, albeit in a muddled way. The Brazilian member of the Court (on the ICJ since 2008) has, as a scholar and as a judge (already on the Inter-American Court of Human Rights) pursued a radical agenda of placing the individual human being in the centre of international law, and has to that end inter alia invented the in dubio pro hominem-guideline for the interpretation of international legal texts.

Cançado Trindade now in Ukraine v. Russian Federation suggested replacing the Court’s plausibility test with a test of “vulnerability”. According to Cançado Trindade, the international legal order has been more and more “humanised” and does acknowledge that individual is the ultimate normative point of reference. I personally share this normative belief. But I do not think that this requires us to abandon the plausibility test. Nor does it necessarily mean that the ICSFT generates individual rights. What “humanisation” does mean is that we have to examine a given international regime closely to identify whether it embodies individual rights. Importantly, these rights may also be rights “beyond” human rights, i.e. “ordinary” or “simple” individual international rights, such as the right to be informed about the possibility to get in touch with one’s consular office (at stake in LaGrand), or the rights under the Geneva Refugee Convention and Protocol to obtain identity papers (Article 27 Refugee Convention), travel documents (Article 28), or asset transfers (Article 30), or a labourer’s right under a labour convention, or an investor’s right to fair and equitable treatment under a BIT.

Cançado Trindade is right, I think, in criticising the majority’s overly narrow notion of plausibility which led it to the refusal of a provisional measure relating to the ICSFT. The ICSFT obliges states, inter alia, to cooperate in preventing terrorist offences (Art. 18 in conjunction with Art. 2 of the ICSFT). One of the offences is the provision or collection of funds “with the intention that they should be sent or in the knowledge that they are to be used” for terrorist activities (Art. 2 paragraph 1, chapeau of ICSFT).

By asking Ukraine to make plausible even the elements of “intention” or “knowledge” (of individuals), the Court in para. 75 of its order of 19 April 2017 almost asks the impossible. And it does mix up elements of the international crime which would be committed by an individual, and elements of state responsibility of Russia.

If “plausibility” were substituted with “vulnerability”, as Judge Cançado Trindade suggested, this would potentially lead to a more generous indication of a provisional order. Had the vulnerability of the humans in Eastern Ukraine and Crimea been the yardstick, then probably measures based on the ICFT would not have been denied by the Court.

However, to be legally consistent and on ground of the law as it stands, the Court’s strictness at this point could not be mitigated by simply skipping the test of plausibility. But indeed, the “vulnerability” of the victims of international terrorism, as “plausibly” committed in the regions of Eastern Ukraine, can and should be taken into account when examining whether violations of provisions of the ICSFT are plausible and whether there is a danger of irreparable harm to them (not only to Ukraine as a state).

Improper “righting” of international legal regimes?

To conclude, I would like to reflect on the merits and drawbacks of reading into some provisions of specific international treaties individual rights, besides state rights. This type of interpretation has been denounced as an improper “righting” or a “rightsification” of international regimes. The term “righting” was coined in the debate about the co-applicability of human rights law and international humanitarian law, notably in the law of occupation. It has been argued that the application of human rights in armed conflict or occupation does not protect victims better, may even lead to a less protective proportionality analysis, generates legal insecurity due to the vagueness of human rights, and does not do justice to the structural inequality of populations affected (see Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation, CUP 2017, chapter 5). These arguments are relevant for the situation of Eastern Ukraine which is considered by many as a veiled and indirect occupation by Russia.

The criticism shining up in the talk against “righting” forms part of a broader critique of rights. Just as rights in the post-Kantian sense are the legal paradigm of modernity, the critique of and farewell to rights is a hallmark of postmodernity. Notably human rights have recently been declared superfluous or even counterproductive, and their “twilight” (Eric Posner, The Twilight of Human Rights Law, OUP 2014) or even “end” (Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century, Hart 2000) has been announced, both from the law-and-economics perspective and from the critical legal scholars’ point of view. In the face of such rights-scepticism coming from both ends of the academic spectrum, it makes sense to briefly recall the added value of individual rights for human beings (and for other vulnerable beings such as animals), next to and on top of the traditional legal position of states in international law.

I submit that the various strands of critique of the rights discourse usefully point to drawbacks and dangers of rights, but that they are in part exaggerated, confused, or flawed. For example, the reproach that the “rights talk” risks to lose sight of the importance of shouldering responsibilities is one-sided. Empirically, in our contemporary societies, no general shift from responsibilities to rights is occurring. Conceptually, rights also engender responsibilities, and are no opposite of those.

Importantly, rights critics do not distinguish between the supposed problem of inflationary recourse to rights in general and specifically the proliferation of human rights. Human rights are a subgroup of especially important rights of high quality that enjoy stronger legal and moral protection. And indeed, their inflation is a problem. It can be countered by acknowledging ordinary individual, more global administrative law-type of rights directed against states and international organisations, flowing from international law.

Thirdly, critics do not properly distinguish between individual public rights direct against the state and rights directed against private persons, in the form of rights flowing from private law (contracts, torts, and so on). Within personal relationships, the invocation of rights may weaken human bonds, undermine trust, and prevent personal closeness. But these concerns are irrelevant for rights directed against political, public institutions, notably states. Finally, the criticism of rights has been mainly formulated with a view to national societies and within the framework of a mature, highly differentiated domestic legal system, and has its merit there. But the exaggeration of individual rights seems much less an issue on the level of international law where rights (of human beings) are anyway still the exception and sparse. Notably the democratic objection that an excessive focus on actionable (constitutionally guaranteed) rights weakens the democratic political process is almost totally beside the point for the international legal system, because law-making here is not democratic anyway. The same observation is true for the crits’ critique of depolitization and technocracy. Legal rights, especially human rights, can be and should best be conceived as being not above or beyond politics, but as being political themselves. Moreover, on the international level, genuinely political processes (in the sense of deliberation about the common good of a society, using the mode of arguing and persuasion) − as opposed to diplomacy (in the sense of pursuing national interests in the mode of bargaining and package deals) − are anyway rare. But the relative lack of politization is not mainly owed to any exaggerated focus on rights but to other factors. It does not surprise me that the various types of critique of rights obviously fail to convince ordinary political and social actors. In fact, in the practice of states, governments, activists, and individual victims themselves, the attraction and the pull of rights is unbroken. Apparently, rights resonate in the layperson’s sphere. I claim that, generally speaking, the prestige of rights is justified, mainly for three reasons. First, rights trigger an obligation to justify their curtailment. Second, they have more weight in a balancing exercise against countervailing interests. Third, rights have an overshooting tendency and the obligations flowing from rights are indeterminate.

Related to the added value of the rights’ dynamism over time as illustrated by the case-law on human rights is another added value, and that is the juris-generative quality of rights. Having rights is a generalized legal capacity, whereas being the beneficiary of the obligations of others breaks down into a series of selective points of protection only. Also, the idea of having “rights” has a moral overtone which might inspire a dynamic interpretation and evolution of the law. For all the reasons, having legal rights, for example under Geneva Convention IV, offers a stronger protection than the concrete and selective obligations to accord persons a specific treatment under international law. The legal position created through legal rights is − as a matter of principle – stronger than protecting human and other vulnerable living beings by rebound. And I think that this is a good thing.

Trivia: International Organizations Headquartered in Non-Member States

EJIL:Talk! - Fri, 05/05/2017 - 06:30

Michael Waibel’s post of yesterday highlighted one of the significant issues that will need to be sorted out in the Brexit negotiations between the UK and the EU. Another issue, though of less significance, that will need to be resolved is the (re)location of a couple of EU agencies that currently have their headquarters in London: the European Medicines Agency (EMA) and the European Banking Authority (EBA). It has been reported that the EU, understandably, wishes to move these agencies out of London once Britain leaves the EU and apparently a number of cities are competing to have these agencies relocated to them (see here and here). However, it has also been reported that Britain would like to keep these agencies located in the UK even after Brexit.

“David Davis, Brexit secretary, does not accept that the two agencies and roughly 1,000 staff will have to move from London’s Canary Wharf, even though the EU is about to run a competition to relocate them. A UK Brexit department spokesman said: ‘No decisions have been taken about the location of the European Banking Authority or the European Medicines Agency — these will be subject to the exit negotiations.’

The government has left open the possibility of keeping part of some EU agencies, at least in the short term, but the idea of the UK hosting key institutions after Brexit is unacceptable in Brussels.”

While the idea that EU institutions may remain based or even headquartered in the UK after the UK remains in the EU might, at first sight, seem unrealistic, it should be remembered that Geneva was the “European headquarters” for many decades when Switzerland was not a member of the United Nations. Switzerland only joined the UN in 2002, over 50 years after the UN was formed and had based its major European office there.

From time to time I have posed trivia questions on the blog, but usually related to international tribunals. This time I have a question that relates to international organizations.

My question is this: Which international organizations have their headquarters or main offices located in a non-member state?

Answers in the comments box below please. Many thanks to my colleague Miles Jackson for bringing this story to my attention and for providing me with one answer to the question above!

The Brexit Bill and the Law of Treaties

EJIL:Talk! - Thu, 05/04/2017 - 08:00

As has been widely reported in the media (e.g. The Guardian, the BBC), the House of Lords reached two main legal conclusions in its March 2017 report on Brexit and the EU budget:

  1. Article 50 TEU allows the UK to leave the EU without being liable for outstanding financial obligations under the EU budget and related financial instruments, unless a withdrawal agreement is concluded which resolves this issue.(para. 135).
  2. The jurisdiction of the CJEU over the UK would also come to an end when the EU Treaties ceased to have effect. Outstanding payments could not, therefore, be enforced against the UK in the CJEU. (para. 133).

The UK government appears to have adopted a similar position on the Brexit bill as the House of Lords. The German newspaper Frankfurter Allgemeine Zeitung published an account of a ‘disastrous Brexit dinner’ at the end of April 2017 between UK Prime Minister Theresa May and Commission President Jean-Claude Juncker in which PM May reportedly argued that the UK does not owe anything to the EU upon its departure. The fact that this dinner conversation was leaked led to strong criticism, particularly in the UK as the campaign for the general election in June is currently underway (see for example here and here).

On 3 May 2017, the UK’s Brexit Secretary David Davis in a TV interview emphasized that he had not seen any official figure of the EU’s demands, and left open room for compromise:

[The UK] have said we will meet our international obligations,  but there will be our international obligations including assets and liabilities and there will be the ones that are correct in law, not just the ones the Commission want.

However, he indicated that the UK would not pay €100 billion upon leaving the EU.

The Commission’s draft negotiating directives for Article 50 negotiations with the UK, published later on the same day, emphasize the need for a ‘single financial settlement’ of the UK’s financial obligations as a member ‘in full’ – referring to it as a ‘settling of accounts’, rather than ‘punishment’. In February, the EU Commission claimed that the UK owes the EU around €60 billion as a result of its EU membership since 1973 (which the EU Commission reportedly revised to around €100 billion in early May).

The House of Lords rightly noted the considerable uncertainty about the UK’s financial obligations arising out of its departure from the EU. Like other aspects of their past and future relationship, the UK’s financial obligations are primarily a matter for negotiation between the EU27 and the UK. The EU27 and the UK will bargain about the UK’s financial obligations in the shadow of the UK’s legal obligations. And if the EU 27 and the UK were to fail to reach agreement on this point, the legal position is even more important.

This blog post shows that both the conclusions of the House of Lords, and the UK government’s apparent position, are likely erroneous. It argues first that the UK is liable, in principle, for a share of the EU’s budget commitments which all current EU member states (incl. the UK) have assumed, as well as for pensions of EU officials. Second, the European Court of Justice  may well have jurisdiction over the UK’s financial obligations arising out of its membership in the EU. It first considers the UK’s liability in principle, before turning the jurisdiction of the European Court of Justice.

The UK’s Liability in Principle

The House of Lords relies on Article 50 TEU for its conclusion that the UK is not liable for financial obligations arising out of the UK’s EU membership. Article 50 provides:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Article 50 TEU is an example of a withdrawal clause. Such clauses are found in many treaties. Withdrawal clauses allow states to evolve from a party to a non-party without breaching the treaty. They allow a unilateral, voluntary departure from the treaty. Upon withdrawal, the treaty is no longer binding on the withdrawing party. It brings treaty relationships to an end.

The House of Lords’ report takes the view that Article 50 contracts out of customary international law on withdrawal (the report refers specifically to Article 70 of the Vienna Convention on the Law of Treaties, ‘VCLT’). Articles 70 (1), which is customary international law, provides:

Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

  • releases the parties from any obligation further to perform the treaty;
  • does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

A preliminary question – which the House of Lords’ report correctly answered in the affirmative is – is whether international law, and specifically the VCLT, applies to the EU treaties. While EU law is a new legal order of international law, this order still exists against the background of general international law, particularly regarding basic questions of treaty law. International law serves as a fall-back for particular issues that the EU treaties do not regulate, or regulate only incompletely. This is the position with respect to Article 50 TEU, as the paragraphs below show.

Crucially, the House of Lords’ report concludes that Article 50 TEU is lex specialis, or an exception, expressly mentioned in the first part of Article 70 (1) VCLT. In other words, because the TEU contains a specific provision on withdrawal, Article 70 is irrelevant to the UK’s financial obligations arising out of its EU membership.

In reality, however, Article 50 TEU only partly contracts out of relevant customary international law. For the most part, Article 50 TEU lays down a specific procedure (the timeline and notification requirements) for a member state to withdraw from the complex edifice of the EU treaties. It also confirms the default rule in Article 70 VCLT that the EU treaties cease to apply from the critical date (Article 70(1)(a) speaks of “releases the parties from any obligation further to perform the treaty”).

That said, the contracting out is only partial because the VCLT has three provisions that deal, in part, with withdrawal, rather than just one. In addition to Article 70 VCLT, there are Articles 56(2) and 65-68 VCLT. Article 56 (1) is about the possibility of withdrawal in the absence of a withdrawal provision. Given the presence of Article 50 TEU, it is not relevant for present purposes. Article 56 (2) establishes a default notice period of 12 months. Article 65-68 provides for default procedural steps for, among others, withdrawal from a treaty (the same default steps also apply to invalidity, termination or suspension).

Contrary to the House of Lords’ report, Article 50 is no exception to Article 70 (1) (b) VCLT. All that Article 50 does is depart from the default procedural rules set out in Article 56 (2) and Articles 65-68. For instance, Article 56(2) TEU lengthens the notice period to 2 years (rather than the default period of one year). It also confirms the release from obligations under treaties going forward under Article 70 (1)(a).

The House of Lords’ report errs in taking the more specific procedural steps for withdrawal in Article 50 TEU as evidence that Article 50 contracted out of all other rules of international law on treaty withdrawal. Article 70(1) is the decisive provision for the UK’s financial obligations arising out of its EU membership because it expressly states that withdrawal does not affect these rights and obligations (“does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”).

Importantly, the general rule is that silence of the treaty parties does not mean contracting out of customary international law. In other words, there is a presumption that there is no contracting out – but like other aspects of the law of treaties, this is ultimately a matter for interpretation. The UK may be able to rebut the presumption – for instance by adducing travaux préparatoires that show that member states intended to contract out of the VCLT’s provisions on withdrawal in their entirety. But this is likely to be a long shot – particularly given that the travaux expressly say that they are ‘partly inspired by the Vienna Convention on the Law of Treaties’.

In sum, Article 50 is lex specialis only with respect to the procedure for withdrawal. It preserves the customary international law rule in Article 70 VCLT (1) (b) that the rights and obligations of the treaty parties prior to withdrawal are untouched. And importantly, this includes the UK’s financial obligations arising out of its EU membership.

Whither the CJEU’s Jurisdiction?

The House of Lord’s second conclusion mentioned above would mean that the main compulsory dispute settlement mechanism is unavailable in the event that the EU and the UK fail to agree on the UK’s financial obligations on its departure from the EU.

It is uncontroversial that once the UK leaves the EU, the European Court of Justice will no longer have jurisdiction over the UK in respect of the EU treaties (unless the EU27 and the UK otherwise agree). Conversely, prior to the critical date, the EU treaties continue to apply to the UK and the UK remains subject to the European Court’s jurisdiction. Under Article 50 TEU, the critical date is either March 29 2019, unless the UK and the EU27 unanimously extend this period, or the date of entry into force of the withdrawal agreement.

However, there is an important temporal caveat. Neither Article 259 TFEU (infringement proceedings) nor Article 267 TFEU (preliminary rulings) contain any temporal limitation to the CJEU’s jurisdiction. Article 259 TFEU merely refers to a situation in which “another Member State has failed to fulfil an obligation under the Treaties”, and Article 267 TFEU refers to “the interpretation of Treaties”.

First, one, several or all EU member states other than the UK could request that the Commission examine whether the UK has failed to fulfil its obligations under the treaties. To the extent that the UK’s financial obligation at issue arose prior to the critical date, any dispute concerning such an obligation is likely to fall within the CJEU’s temporal jurisdiction because it concerns an allegation that the UK ‘has failed to fulfil an obligation under the treaties’ and this dispute arose before the critical date. As a result, the dispute over the UK’s financial obligations could reach the CJEU in the form of infringement proceedings against the UK.

Second, the CJEU’s temporal jurisdiction might also extend to give a preliminary ruling on the UK’s financial obligations arising out of its departure. The CJEU’s interpretation of EU law is likely binding on the UK with respect to obligations that arose prior to the UK’s withdrawal from the EU. However, a national court would need to refer such a dispute to the CJEU in the first place. Given that this is a dispute between the EU27 and the EU, it is not straightforward how this dispute would appear before a national court of an EU member state (given that the individuals and companies that are the ultimate beneficiaries will look to the EU, rather than the UK for payment, for example retired Commission officials).

Of course, it would be possible for the EU27 and the UK to agree on another method of dispute settlement, such as inter-state arbitration. However, to the extent that the CJEU is likely to have temporal jurisdiction over the UK’s financial obligations arising from its membership in the EU, the EU has few incentives to opt for inter-state arbitration instead. Finally, the EU has allegedly also considered the International Court of Justice as a possible forum for such a dispute – but this is unlikely to be the EU’s preferred option.

The ICJ would only have compulsory jurisdiction to the extent that the UK’s optional clause declaration and the optional clause declarations of other EU member states overlap (the minimum common denominator). A case against the UK would face several hurdles in the ICJ, though these may be surmountable. First, as is well known, only states could be claimants (rather than the EU in its own rights). Second, there is no existing example of multiple states bringing a case against a state in the ICJ. Third, six EU member states have not made an optional clause declaration in the first place, and two further EU member states are members of the Commonwealth (Malta and Cyprus). As a result, the carve out in the UK’s optional clause declaration for disputes with other Commonwealth member states would apply.

Achieving Justice Through Restorative Means in Colombia: New Developments in Implementing the Peace Deal

EJIL:Talk! - Wed, 05/03/2017 - 08:00

On 4 April 2017, the Colombian Congress passed amendments to the Constitution creating the ‘Integral System of Truth, Justice, Reparation and Non-repetition’ (‘El Sistema law). This law is part of the fast-track package used to implement the peace deal signed between the government of President Juan Manuel Santos and the Revolutionary Armed Forces of Colombia (FARC) guerrillas on 24 November 2016. The new El Sistema law brings the implementation of the deal one step closer to reality as it creates a unique transitional justice mechanism oriented towards truth and reparations to victims. Yet the law’s limited reach and lack of popular support for the deal may stall further progress.

The Legitimacy Question

The document signed in November 2016 is the second version of the peace deal, after Colombian voters rejected by a narrow margin the first draft in the referendum of 2 October 2016. This result was largely unexpected. There are many factors that explain the failure of the first peace deal in the national plebiscite. The first is the strong cult of personality and influence of the former President Álvaro Uribe, who actively campaigned against signing a peace treaty with guerillas by appealing to concerns of different groups of population. Bad weather conditions on the polling day, coupled with the lack of infrastructure in many parts of the country, also effectively prevented many people from travelling to polling stations. Finally, little information and time was allotted to voters to study the deal prior to the referendum.

The ‘no’ result created serious challenges for the government, which wished to press ahead with the deal. Over the course of several weeks following its initial rejection, the government of President Santos introduced amendments tackling some of the concerns of the ‘no’ campaign. For example, the new deal provides for a more limited role of international judges within the newly created Special Jurisdiction for Peace (SJP) and guarantees special treatment for the army. These changes were limited, however, as the negotiators balanced conflicting interests of different stakeholders – ‘yes’ and ‘no’ campaigns, FARC, and the civil society.

In order to secure approval of the second deal, the President chose not to risk holding a second referendum but rather invoked his special powers in passing ‘fast-track’ legislation through Congress. The fast-track solution means that the main laws implementing the peace deal were adopted as a ‘package deal’ in a ‘yes’ or ‘no’ vote in Congress. These laws entered into force upon their adoption and prior to their review by the Constitutional Court. This is in contrast with the regular procedure, whereby the Constitutional Court scrutinizes the project of the law before it enters into force. While the Constitutional Court retains its critical review powers with respect to fast-track laws, the fact they are already in force make it more difficult politically to strike them down.

The government’s decision to proceed along the fast-track route, rather than holding a second plebiscite or giving up on the deal altogether, delivered a strong blow to the legitimacy of the eventual outcome, dividing the country into two camps – those who voted ‘yes’ and those who opposed the deal. The decision created room for identity politics, with the population currently split between those who are ‘against the peace’ and those who believe their votes ‘have been stolen’. The standoff between two ideological camps makes it essential for the success of the deal to move forward with its implementation in an expedited fashion. With presidential and parliamentary elections looming in 2018, the hope is that the deal will gain its legitimacy through its effective implementation, thereby eliminating the possibility for a future government to challenge the hard won peace arrangement.

The El Sistema Law

The El Sistema law is the second law in the fast-track package, the first one being the amnesty law for minor offences committed during armed conflict, which was approved by Colombia’s Congress on 6 December 2016, despite strong opposition of the right-wing Democratic Center party. The amnesty law was essential in securing demobilization of FARC by guaranteeing amnesties for political crimes (such as rebellion or sedition), while the El Sistema law addresses the most contentions part of the peace deal, tackling questions of justice and reparations (section 5 of the deal and item 5 of the negotiations agenda).

Item 5 of the peace deal agenda presented particular challenges, as FARC initially insisted on the idea of collective, rather than individual, responsibility for crimes committed during the protracted civil war. It was possible to reach an agreement relying on the idea of ‘justice for all’ rather than ‘justice for FARC’, meaning that all parties to the conflict, including the army, which holds prominent position in Colombian governing circles, agreed to submit themselves to the jurisdiction of a future tribunal. As a result, the peace deal envisages the creation of a holistic justice system aimed at unifying Colombia’s scattered transitional justice landscape. The emphasis is not so much on retribution but rather on establishing the truth about the past, creating mechanisms for reparations for victims and guarantees of non-repetition. The El Sistema law brings this system to life by approving the creation of its various components: the Truth Commission, the Unit for the Search of Missing Persons, the Special Jurisdiction for Peace (SJP), and other measures aimed at reparation and non-repetition.

The El Sistema law makes it clear that the system incorporates both restorative and retributive aspects as it seeks to achieve justice not only through penalties but also through repairing damage caused to victims affected by the conflict (Article 13). This is both innovative and controversial. In practice, such ‘dual’ focus of the system entails at least three consequences.

First, the SJP – the judicial system that will have primary jurisdiction over all cases arising out of the conflict – will have to adopt a policy of prioritization in its work. It is logistically impossible to prosecute all those responsible within the limited timeframe allotted to the SJP, which the law sets at ten years with a five-year extension period (Article 15). The Office of the Prosecutor, presently tasked with collecting all the relevant material to pass on to the SJP, is working on grouping potential cases with reference to their gravity and symbolic value. The first level of prioritization will happen on the basis of the types of crimes. There are currently seven themes singled out for further prosecution at the SJP: sexual violence, false positives (killings of civilians by the army with the purpose of falsely presenting them as guerilla fighters), enforced disappearances, mass murders, displacements, recruitment of children, and environmental crimes.

Secondly, the SJP will have the power to choose between ordinary and alternative penalties when sanctioning those coming before it. With respect to FARC, the alternative penalty is currently understood as sentencing persons to reside within a designated demobilization zones, or Zonas Veredales Transitorias de Normalización, (the effective restriction of liberty) for a period of five to eight years, coupled with reparations to victims and other restorative measures. Moreover, those given alternative penalties will be able to participate in political life along with serving the sentence imposed by the SJP (Article 20). It was unclear until the El Sistema law was passed whether this right could be exercised simultaneously with the sanction or whether the convicted person must wait five to eight years prior to joining political life (a position advocated by some NGOs). Confession is the condition for receiving lighter treatment in the form of alternative penalties, and the decision as to the nature of punishment will depend on the time when such confession is made. Those who confess early in the process are likely to benefit from alternative penalties, while those who confess later during trial face five to eight years of jail time; those who do not acknowledge their responsibility at all risk fifteen to twenty years of imprisonment (paragraphs 60, 61, 62 of item 5.1.2 of the peace deal). The leniency of sentences provided by the deal was one of the key arguments of the ‘no’ campaign.

It is important to note that state agents and the army cannot benefit from amnesty because auto-amnesty is prohibited under the law. The deal specifies however that all warring parties receive differentiated but comparable treatment (paragraph 44 of item 5.1.2 of the peace deal). What this means in practice is that the deal and the implementing law provide for the possibility of commuting sentences of those who cannot be subject to amnesty, which is a comparable solution. Similar treatment is more challenging when it comes to alternative penalties because state agents and the army cannot serve their sentences in the zones specifically designated for demobilized guerillas. As things stand, they will serve their punishments in prisons. This aspect creates discontent in some of the ‘no’ voters arguing for tougher treatment of FARC.

Finally, the El Sistema law expressly provides opportunities for reparations. It is well known that FARC acquired significant wealth during conflict, for example through illegal mining. The law creates explicit incentives for FARC to declare their assets to the government (to be later used for reparations) by including them in a special inventory covered by the SJP jurisdiction. Offences relating to assets discovered at a later stage and not on the inventory will be subject to ordinary criminal jurisdiction.

Challenges Ahead

The legitimacy deficit of the deal caused by the lack of popular support is one of the biggest obstacles on the way to its successful execution. Unresolved concerns of the ‘no’ campaign keep reappearing during the process of adoption of implementing legislation. One result of these lingering disagreements resulted in the creation of two separate regimes under the El Sistema law – one for the army and largely regulated by Colombian law, and the other for FARC under the auspices of international law. This is a significant change compared to the more unified approach in the peace deal. The law introduces a separate chapter dedicated exclusively to the army and designating it as lex specialis.

The chapter on the army also contains a controversial provision on command responsibility, which uses a narrower definition than that contained in the Rome Statute of the International Criminal Court (ICC). According to Article 24, responsibility of the members of armed forces is triggered only with respect to the conduct of subordinates over which the commander had effective control and knowledge based on the information available to them before, during or after the event (detailed discussion of the provision is found here). This construction based, to some extent, on Colombian penal law makes it difficult, if not impossible, to convict a commander based in Bogota for crimes committed in the regions. While there is a clear discrepancy between Article 28 of the Rome Statute and Article 24 of the El Sistema law, the real question is whether domestic policy makers have the flexibility in implementing international criminal law standards. The Constitutional Court of Colombia is likely to rule on this issue in the course of its review. If the current formulation of command responsibility remains intact, it may lead to possible responsibility gaps triggering future involvement of the ICC. Colombia remains under the preliminary examination of the ICC, whose Chief Prosecutor has already signaled her concern over the issue of command responsibility.

Implementation of the peace deal will test the readiness of Colombian society to embrace change and let go of purely retributive expectations of justice. While many still believe that FARC must face harsh punishment for the crimes committed during the war, it is instructive that those parts of the country most affected by the conflict overwhelmingly voted ‘yes’ in the referendum. The new victim-focused model based on truth and reparations reinvents the idea of justice and challenges traditional ways of thinking about punishing mass atrocities. It remains to be seen how this model will be implemented in Colombia.

Ukraine v Russia (Provisional Measures): State ‘Terrorism’ and IHL  

EJIL:Talk! - Tue, 05/02/2017 - 08:00

On 16 January 2017, Ukraine filed an Application against Russia before the International Court of Justice (‘ICJ’ or ‘the Court’), founding the Court’s jurisdiction (in part) on the compromissory clause (Article 24) of the Terrorism Financing Convention (‘ICSFT’). On the very same day, Ukraine filed a Request for the indication of measures of protection. On 19 April 2017, in respect of the claim based on the ICSFT, the Request was rejected, although the Court did order provisional measures in support of the claim based on CERD.

The Application and the Court’s Order on provisional measures (‘Order’) have been the subject of several blog posts, including here,  here and here, and I will not revisit their content.  Instead, I’d like to further consider some of the issues raised by the Court’s refusal to award provisional measures in respect of the ICSFT.  As noted in the terrific post by Vincent-Joel on ‘Terrorism and the World Court’, this dispute presents an important opportunity for the Court not only to clarify the nature of certain counter-terrorism obligations, but equally to interpret the ICSFT in a ‘forward-looking and purposive’ manner which reflects the post-9/11 counter-terrorism climate.  It also bears noting that this case is an opportunity for the Court to address the increasingly common – and increasingly dangerous – State practice of materially supporting non-State armed groups (‘NSAGs’), even if, for jurisdictional reasons, it must do so through the prism of terrorism financing.

There are two substantive issues which were at stake in making the case for provisional measures that I want to address:  First, Ukraine had to establish the Court’s prima facie jurisdiction under the ICSFT, in part based on whether ‘the acts complained of […] are prima facie capable of falling within the provisions of [the ICSFT]’.  Second, given that most of the NSAG conduct underlying the Application took place within the context of an armed conflict (‘AC’), the characterization of that conduct as ‘terrorist’ and falling within the scope of the ICSFT, or as merely in breach of (or at least governed by) International Humanitarian Law (‘IHL’), is put in issue.  This issue is a factual question bearing on whether the NSAG conduct meets the elements of terrorism as defined in Article 2(1) ICSFT.  It is also, however, a legal question calling for an appreciation of the relationship between IHL and the terrorism suppression regime.

The first issue turned out to be something of a non-event in the Court’s Order, as the Court essentially accepted the point. However, the Court used language which makes it clear that the scope of the ICSFT remains open for the merits phase of the proceedings (paras 30-31, Order).  Given that part of Ukraine’s case is in respect of a Russian failure to prevent private actors from financing terrorism (covered by Article 18 of the ICSFT), it is undoubtedly true that ‘at least some of the allegations made by Ukraine […] appear to be capable of falling within the scope of the ICSFT ratione materiae’ (para 30, Order).  But part of Ukraine’s case bears on the financing of terrorism by the Russian state.  As the ICSFT does not expressly prohibit States from financing terrorist conduct, resolution of this issue calls for the Court to determine whether the ICSFT is purely a criminal law enforcement treaty which contemplates State regulation of private / non-State conduct, or whether it can be interpreted to prohibit States from engaging in the defined offences.  With that in mind, both parties addressed the relevance of the Bosnia Genocide Case precedent (in which the Court held that the obligation to prevent genocide under the Genocide Convention necessarily implies a prohibition on the commission of genocide by State parties).  Ukraine’s initial arguments were rather cursory on this point.  Russia’s pleadings on the issue, on the other hand, ran from para. 6 – para. 55 in the oral proceedings transcript (CR.2).

In an attempt to distinguish the Genocide Convention from the ICSFT, Russia relied on the difference between the compromissory clause in the Genocide Convention (which mentions ‘responsibility of a State’) and that in the ICSFT (which does not); that Article IV of the Genocide Convention expressly contemplates commission of the defined offences by constitutionally responsible rulers and public officials, while the ICSFT does not; and that (as a result of these differences in addition to others) the ICSFT has a distinctly criminal law enforcement flavor to it.  Ukraine’s Rebuttal rightly notes that absolutely nothing hung on the language in the compromissory clause or Article IV of the Genocide Convention as far as the implied prohibition of genocide was concerned in the Court’s Bosnia Genocide Case decision on the merits (paras. 38-39, CR.3). Indeed, as I have argued elsewhere, the argument as to implied obligations in the Bosnia Genocide Case decision is even more compelling in the terrorism suppression context than it was in reference to the Genocide Convention.

But Ukraine’s Rebuttal in respect of the criminal law enforcement flavour of the Convention would benefit from further development.  In particular, there is evidence in the travaux préparatoires that the reference to ‘any person’ committing an offence within the scope of the terrorism suppression conventions (including the ICSFT) was understood to cover state actors.  It is equally noteworthy that an exclusion clause, which might have excluded State conduct in the context of an AC from the scope of the ICSFT, was proposed but not incorporated in the final draft – very strong evidence that the Convention is at least silent on the State terrorism financing issue.  While there is obviously much controversy regarding ‘State terrorism’ as a phenomenon, and no difficulty at all in acknowledging ‘State genocide’, it is hard to see how the Court will convincingly avoid applying its Bosnia Genocide Case interpretive approach to the ICSFT, even if the Order leaves the question open in a somewhat pointed way.

In respect of the second issue, it bears repeating that the NSAG attacks which underlie Ukraine’s Application took place principally in the context of an AC in Eastern Ukraine.  If Ukraine’s allegations regarding the downing of a civilian airliner, the bombing of peaceful protestors, and attacks against civilian residential areas, all carried out by NSAGs, are true – those incidents amount to a breach of Common Article 3 of the Geneva Conventions (‘GCs’) [as ‘violence to life and person’ against ‘persons taking no active part in the hostilities’ in the context of a non-international AC].   Whether IHL should apply exclusively to these acts (as lex specialis), or whether the terrorism suppression regime overlaps with IHL and should be available to plug any law enforcement gaps (or ICJ jurisdictional gaps) in respect of IHL breaches to which the terrorism regime also applies, is something of a contested issue.  Russia avoided the legal issue by addressing the regime interaction question from a factual perspective.  Russia characterized the underlying NSAG conduct as a series of attacks against military objectives, even if indiscriminate and affecting civilians, and therefore as a matter exclusively for IHL and its proportionality calculus (paras 15-33, CR.2).  This conclusion draws on the requirement that attacks against civilians be intentional in order that they amount to ‘terrorism’ under Article 2(1)(b) ICSFT.  Indiscriminate attacks on the other hand, accepting for argument’s sake Russia’s logic, are not intentional attacks against civilians (thereby failing to satisfy one of the elements of Article 2(1)(b) ICSFT), and are instead intentional attacks against military objectives which have the accidental or unfortunate consequence of civilian casualties.  There are of course very serious problems with this logic, most notably that the ICTY has repeatedly held that indiscriminate attacks can be indicative of the fact that the attack was directed against the civilian population (Prosecutor v Milošević, IT-98-29/1, Appeals Chamber, Judgment, 12 November 2009, paras 66-67; Prosecutor v. Galić, IT-98-29, Trial Chamber Judgment, 5 December 2003, para 60).  Russia also insisted on the point (not obviously relevant in the form presented) that Ukraine is equally guilty of indiscriminate attacks in the AC.  To the extent that there was a legal point being made, it seemed to be based on an assumption that Ukraine would not accept the characterization of its war activities as ‘terrorist’, thereby implicitly deploying a ‘good for goose / good for gander’ type argument.

Ukraine, on the other hand, factually characterized the NSAG conduct as a series of intentional attacks against civilians, thereby falling within the scope of both IHL and Art. 2(1)(b) ICSFT.  And indeed given the scale of civilian casualties, some of the attacks could very well be characterized as attacks against civilians under the ICTY’s approach, even if they might also be characterized as indiscriminate.  As a result of its factual claims, Ukraine takes a nuanced approach to the regime interaction question from a legal perspective, arguing that IHL and the terrorism suppression regime can overlap in respect of attacks against civilians (paras. 26-28, CR.1; paras. 10-14, CR.3).  Ukraine naturally relies on the very express language in the definition of terrorism of Article 2(1)(b) of the ICSFT (which includes intentional attacks against ‘persons not taking an active part in hostilities in a situation of AC’), but (as discussed further below) this does not entirely resolve the regime interaction issue.

The Court did not address the regime interaction question at this stage.  Instead, the Court held, in one sentence, that insufficient evidence had been adduced in respect of the Article 2(1)(b) ‘terrorist purpose’ element of the NSAG conduct underlying Ukraine’s Application, in addition to there being insufficient evidence of intentional or knowing financing of such conduct (as required by Art. 2(1) ICSFT).  Given Ukraine’s approach to its pleadings on this point, this is perhaps not a surprising outcome.  In Ukraine’s first round of pleadings, there were several conclusory statements made as to the purpose of the NSAG attacks underlying the Application and Request for provisional measures, but no argument or evidence offered in support thereof.  In its Rebuttal, Ukraine argued that terrorist purpose should be inferred from the ‘nature or context’ of the specific attacks – and that was indeed the understanding of States negotiating the ICSFT.  But Ukraine’s evidence in support of the argument was somewhat weak.  On the merits, it might be expected that Ukraine will address itself to the ‘terrorist purpose’ and ’intentional or knowing financing of terrorism’ questions – in particular from an evidentiary perspective – more fully.  But, if it is to be successful on the merits, and assuming for the moment that it can prove both ‘terrorist purpose’ and intentionality with respect to civilian casualties, it will also need to address the ‘IHL as lex specialis’ question as a matter of law. This is because Article 21 of the ICSFT states that ‘[n]othing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular […] international humanitarian law’.

Article 21 ISCFT gives effect to States’ clear intentions vis à vis the terrorism suppression conventions that it not upset the balances achieved by IHL. In negotiating the series of terrorism suppression conventions, States were particularly concerned that conduct which is lawful (or at least not unlawful) as a matter of IHL not be rendered unlawful under the guise of terrorism suppression.  This concern of course only applies to conduct that is otherwise regulated by IHL, such that there is substantive overlap between the terrorism suppression convention and IHL.  Financing acts of war is not something IHL expressly regulates.  Having said which, the ICRC takes the view that the obligation to ‘respect and ensure respect’ for the GCs in Common Article 1 imposes a negative obligation on States to refrain from encouraging, aiding or assisting in violations of the Conventions by Parties to a conflict (including non-State actors).  If the Terrorism Financing Convention does indeed prohibit State support for terrorist acts (à la Bosnia Genocide Case), then there is an overlap between those negative obligations under the Terrorism Financing Convention and Common Article 1 of the GCs as interpreted by the ICRC – insofar as the conduct defined as terrorist under the Terrorism Financing Convention also amounts to a breach of the GCs.  And indeed, as far as Article 2(1)(b) ICSFT is concerned, every act which amounts to terrorist conduct will also be unlawful under Common Article 3 of the GCs when committed in the context of an AC.  This is because terrorism is defined under Article 2(1)(b) ICSFT as deliberate attacks against persons not participating in hostilities, which is absolutely prohibited under IHL without any proportionality balancing to account for military necessity.  As a result, the prohibition of supporting terrorism under the ICSFT and the prohibition of supporting IHL breaches under Common Article 1 of the GCs are co-extensive.

So far as far as Article 2(1)(b) is concerned, the Court’s eventual application of the Terrorism Financing Convention to the financing of IHL breaches in the context of an AC would not only not undermine IHL, it would be its jurisdictional champion – upholding prohibitions under IHL.  In respect of terrorism offences defined under Article 2(1)(a) ICSFT (like the downing of MH17 in reliance on the  Montreal Convention), the matter is more complicated – and perhaps for another post…. As most of Ukraine’s Application relies on 2(1)(b) ICSFT, however, the point as to the Terrorism Financing Convention being an appropriate vehicle for upholding the Common Article 1 GC prohibition on aiding or assisting IHL breaches stands.  And given the current international law context, in which proxy wars and arming NSAGs (often recklessly) abound, the Court might best serve the interests of international peace and security by being open to Ukraine’s legal case on regime interaction as a matter of principle, whether or not the facts ultimately support a finding of Russian responsibility.

The Precedent Set by the US Reprisal Against the Use of Chemical Weapons in Syria

EJIL:Talk! - Mon, 05/01/2017 - 08:00

In his recent post on the United States’ missile strike against a Syrian airbase, on 6 April 2017, Marko Milanovic focused primarily on the unlawfulness of that action (here). While I agree with that view, in this post, I wish to focus on the nature of the precedent which the US reprisal has set. Moreover, I argue that this instance of use of a forcible countermeasure by a permanent member of the UN Security Council (UNSC) should serve to refocus attention on a dysfunctional UNSC.

Three remarks at the outset: (a) This post concerns only “forcible countermeasures” or “reprisals”; (b) I characterise the US missile strikes as a reprisal against Syria’s use of chemical weapons. Although other characterisations have been proffered (for instance, humanitarian intervention or providing assistance in a counter-insurgency), the US administration has framed its actions primarily in terms of a forcible response to the use of chemical weapons (see below); and (c) I rely on the assumption, tendered by the US but disputed by Russia, that Syria was responsible for the chemical attack.

The Legal Framework

A useful starting point for this discussion are the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission (ILC) in 2001, which have been said to present “a combination of codification and progressive development” (Harris, Cases and Materials on International Law, p. 422). Article 49(1) of the Draft Articles states that “An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…” Thus, while the Draft Articles envisage the lawfulness of countermeasures in certain circumstances, it is important to clarify briefly: (1) which countermeasures are envisaged; and (2) which party may undertake them.

As regards which countermeasures are envisaged, Article 50 (1)(a) of the Draft Articles states that “(1) Countermeasures shall not affect…(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations.” Thus, Article 50 prohibits forcible countermeasures or reprisals, and this prohibition is consistent “with prevailing doctrine as well as a number of authoritative pronouncements of international judicial and other bodies” (Harris, Cases and Materials on International Law, p. 457).

As regards which party may undertake the countermeasures envisaged by the Draft Articles, only a state injured by the violation may resort to counter measures against the wrongdoer (Crawford, Brownlie’s Principles of Public International Law, p. 588). Crawford notes that, during the ILC discussions, the question of whether serious breaches of peremptory norms “do not entail a right to take countermeasures in the collective interest” did arise. However, as a result of “strong reactions from many states, concerned in particular with the potential for arbitrariness in imposition of third-party countermeasures”, the possibility for such action was dropped. The result is that there is “no clearly recognized entitlement of [non-injured states] to take countermeasures in the collective interest” (Crawford, p. 588). In any event, however, such an entitlement would only have related to non-forcible countermeasures, and not the type of forcible countermeasures with which this post is concerned.

Therefore, the prevailing view is that there is a general prohibition of forcible countermeasures or reprisals in the lex lata. As Milanovic noted, “[i]nternational law does not permit forcible reprisals that would breach Article 2(4).” This position is shared by most international lawyers (see Gardam, Necessity, Proportionality and the Use of Force by States, p. 140). One reason for this is that “…many reprisals may lead to a chain of violent conduct and counter-reprisals. This dangerous potential becomes evident when reprisals are used as a form of revenge” (see Mitchell, “Does one illegality merit another? The law of belligerent reprisals in international law” 155 Military Law Review (2001) p. 172).

Admittedly, in Nicaragua, the Court appeared to have left the door open for some lower-level, smaller-scale forcible countermeasures on the part of the injured State (Nicaragua, ICJ Reports 1986, p. 127, para. 249). In his separate opinion in Oil Platforms, Judge Simma observed that, in Nicaragua:

“the Court drew a distinction between measures taken in legitimate self-defence on the basis of Article 51 of the Charter and lower-level, smaller-scale proportionate counter-measures which do not need to be based on that provision…” (Oil Platforms, ICJ Reports 2003 – Separate Opinion of Judge Simma, p. 332).

However, this possibility is not considered further in this post, because I do not consider that the US reprisal of 6 April 2017 (discussed below) could be characterised as lower-level and smaller-scale, in accordance with the understanding of that case.

The US reprisal

The US strikes against Syria were undertaken in reprisal for the “worst chemical attack in years in Syria”, on 4 April 2017, as a result of which “[d]ozens of people, including children, died – some writhing, choking, gasping or foaming at the mouth” (see here). In a statement of 6 April 2017, President Trump stated:

My fellow Americans: On Tuesday, Syrian dictator Bashar al-Assad launched a horrible chemical weapons attack on innocent civilians. Using a deadly nerve agent, Assad choked out the lives of helpless men, women, and children. It was a slow and brutal death for so many. Even beautiful babies were cruelly murdered in this very barbaric attack. No child of God should ever suffer such horror.

Tonight, I ordered a targeted military strike on the airfield in Syria from where the chemical attack was launched. It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons. There can be no dispute that Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention, and ignored the urging of the U.N. Security Council.

The following day, the US Secretary of State, Tillerson further explained that:

“this particular strike that was carried out on the airbase from which the chemical weapons attack was launched was very deliberately considered by the President. It is a response that we believe is both proportional and appropriate” (see here).

From an evaluation of the available facts, on 6 April 2017, the US used force against Syria in reprisal for Syria’s use of chemical weapons, contrary to Article 1 of the Chemical Weapons Convention, 1993 (“CWC”). Article 1 of the CWC requires States Parties “never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone; (b) To use chemical weapons…” The CWC entered into force in Syria on 14 October 2013 (see here). Moreover, in view of its almost universal acceptance, this prohibition is considered to reflect customary international law.

It is submitted that the US reprisal of 6 April 2017 was in contravention of the general prohibition of forcible countermeasures or reprisals discussed above. Even though it was undertaken in response to another internationally wrongful act (Syria’s breach of the prohibition of the use of chemical weapons), both of these actions were unlawful in the lex lata. In this respect, even though there has been discussion of whether the law on the use of force should be changed (see here and here), that is a separate issue.

However, it is not sufficient to state that the US reprisal was unlawful and stop there. I think, particularly with an eye to precedent, it is necessary to carefully consider the discrete nature of the precedent set by the US reprisal, particularly, in view of its potential longer term impact on Article 2(4) of the UN Charter.

Firstly, the reprisal was undertaken in a context where the UNSC (and the possibility for collective action) was stultified by veto. That the permanent members of the UNSC could not find common ground and take collective action in the face of something as egregious as the use of chemical weapons is troubling, and an issue I will return to in the conclusion. Secondly, the reprisal was undertaken in response to the use of chemical weapons, in flagrant breach of the international prohibition on the use of such weapons. Thirdly, the reprisal was proportionate and characterised by restraint, both in terms of its official description and the facts on the ground. President Trump spoke of “a targeted military strike” and Secretary Tillerson referred to a “proportional and appropriate” response. Although it is difficult to measure proportionality in such cases (see Gardam, p. 155), the military strikes where limited with respect to geography and destructive scope, limited with respect to temporal scope, and specifically targeted the infrastructure (airfield) from where the chemical attack was allegedly launched. Fourthly, the effects of the US reprisal was, in the terms of Gabčíkovo-Nagymaros Project, reversible (Gabčíkovo-Nagymaros Project, ICJ Reports 1997, p. 7 at pp.56-57). It was undertaken in the dead of night and, from the available information, did not involve loss of life – but destruction of infrastructure.

Finally, this reprisal had to be seen in a context where there existed the very real risk that Syria would use chemical weapons against its own population again with impunity, as it had already done in the past. The US considered itself directly “injured” by such action in view, in the words of President Trump, of the “vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” In this connection, it is notable that, during the Second World War, President Roosevelt threatened reprisals against the Axis Powers if they used poison gas, and some have argued that this threat compelled the Axis Powers to refrain from using poison gas in the battlefield although, as is well known, the tragic history of use of Zyklon B in the gas chambers is well-documented (see Mitchell, p.171). If (and only time will tell) the US reprisal has the effect of forestalling repeated use of chemical weapons in Syria then, on balance, it is not a bad result for international law.

This does not in any way detract from the international wrongfulness of US action. It is also true that this action may have served to undermine the prohibition on the use of force in Article 2(4) of the UN Charter. It is arguable, however, that the alternative of watching idly in the face of repeated uses of chemical weapons would also have eaten away at the core of international law. The choice lied somewhere on the spectrum between Captain Vere’s strict adherence to the law “however pitilessly that law may operate” (Melville, Billy Budd) and Thoreau’s invocation that “we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right” (Thoreau, Civil Disobedience).

In this respect, I agree with Franck that “[l]aw is strengthened when it avoids absurdly rigid absolutes” (Franck, Recourse to Force: State Action Against Threats and Armed Attacks, p. 172). In the domestic sphere, Franck referred to the cases of Regina v. Dudley and Stephens (14 QBD 273 (1884)) and United States v. Holmes (26 Fed. Cas. 360, 1 Wall Jr. 1 (1842)) as instances where “law in some limited circumstances may condone or excuse with what is required by law in every circumstances” (Franck, p.173). I agree with his general argument that, in some limited circumstances, unlawful behaviour may be mitigated in view of certain extenuating or mitigating factors. This is different from suggesting, as has sometimes been the case with respect to humanitarian intervention, that certain behaviour should be considered legal because it is legitimate or, indeed, conflating the two concepts (see here).

My view is that, in the lex lata, the US reprisal of 6 April 2017 was unlawful. However, in view of the extenuating circumstances discussed above and, in particular, Syria’s egregious use of chemical weapons, there could be grounds for mitigation. After all, as Franck noted:

“[w]hen law permits or even requires behaviour that is widely held to be unfair, immoral or unjust, it is not only persons but also the law that suffers. So, too, if the law prohibits that which is widely believed to be just and moral” (see Franck, p. 178).

In conclusion, this case should serve to refocus attention on the (dys)functioning of the UNSC and its inability to act in face of egregious threats to international peace and security when the interests of one of the permanent members (or its allies) are invested. This has perpetuated a structural deficiency in the international legal framework which has a direct impact on other elements of the UN Charter, including Article 2(4). There is no easy solution. While comprehensive reform of the UNSC may be out of reach for the present, international lawyers should continue to make sure the matter remains on the international agenda and to lobby for “pragmatic modifications in the Security Council’s working methods” (Weiss, “The Illusion of UN Security Council Reform” 26 The Washington Quarterly, (2003), p.154).

Announcements: CfA International Law in a Dark Time; Athens PIL Summer School 2017; CfP The Military Law and the Law of War Review; CfP Melbourne Journal of International Law; CfP Brill Open Law; Summer Session of Salzburg Law School

EJIL:Talk! - Sun, 04/30/2017 - 13:00

1. Call for Audience – International Law in a Dark Time. The Erik Castrén Institute of International Law and Human Rights and Peking University Institute of International Law Collaboration Project (ECI-PUIIL Project) will organize a seminar for doctoral students and junior researchers on “International Law in a Dark Time,” on 22 – 23 May 2017, in Helsinki. The seminar will be directed by professors Anne Orford (University of Melbourne) and Martti Koskenniemi (University of Helsinki). Up to 30 participants may register to be in the audience. Please register here. The deadline for registrations is 15 May 2017. See here for the seminar program.

2. Athens PIL Summer School 2017: ‘Migratory Flows in the Eastern Mediterranean: The Present and the Future’. The Athens Public International Law Center – Athens PIL is organizing a Summer School dedicated to ‘Migratory flows in the Eastern Mediterranean: The present and the future’. The Summer School will be hosted at the National & Kapodistrian University of Athens on 19 – 23 June 2017. The lectures will be delivered in English, by leading academic experts and practitioners in refugee and migration law and the course will include on-site visits to hotspots and first-reception camps around Athens. We particularly welcome mature postgraduate students and early-stage researchers but also practicing lawyers, policy-makers, NGO workers, international agency staff and other professionals working with refugees and migrants. The number of participants is limited to 25 participants from EU and non-EU countries. The deadline for submission is 15 May 2017. The Call for Applications is available here. For further information and registration please see here.

3. Call for Papers: The Military Law and the Law of War Review.  The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. The Review is published under the auspices of the International Society for Military Law and the Law of War. It features original and challenging articles, case notes, commentaries of the latest legal developments, as well as book reviews. As a distinct trait, it accepts contributions in six languages: English, French, German, Spanish, Italian and Dutch. For its 2016 – 2017 issue (vol. 55/1), the Review’s editorial board welcomes submissions that come within the broader scope of the Review (including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict)). In particular, the editorial board invites scholars and practitioners to submit articles pertaining to the international law of military operations. The deadline for submissions is 15 June 2017. Submissions should be sent by e-mail to brussels {at} ismllw(.)org var mailNode = document.getElementById('emob-oehffryf@vfzyyj.bet-96'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%62%72%75%73%73%65%6C%73%40%69%73%6D%6C%6C%77%2E%6F%72%67"); tNode = document.createTextNode("brussels {at} ismllw(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-oehffryf@vfzyyj.bet-96"); mailNode.parentNode.replaceChild(linkNode, mailNode); and will be subject to double-blind peer review. Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered. Inquiries can be sent to the abovementioned e-mail address.

4. Call for Papers: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 18(2). The deadline for submissions is 1 July 2017. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au var mailNode = document.getElementById('emob-ynj-zwvy@havzryo.rqh.nh-51'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6C%61%77%2D%6D%6A%69%6C%40%75%6E%69%6D%65%6C%62%2E%65%64%75%2E%61%75"); tNode = document.createTextNode("law-mjil {at} unimelb.edu(.)au"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-ynj-zwvy@havzryo.rqh.nh-51"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For more information please see here.

5. Call for Papers: Brill Open Law. The Editors of Brill Open Law are now inviting submissions on any area of public international law related to the overarching theme of “Tensions and Attractions in International Law: Patterns in Normative and Institutional Diversification“. Brill Open Law (BOL) is a principal outlet for scholarly articles in international law studies. BOL is a peer-reviewed full open access journal and provides a unique platform for academic debates and critical analysis. The journal offers a meeting space for scholars across international law, including human rights and humanitarian law, private international law and public international law. This is a fully Open Access journal, which means that all articles are freely available online, ensuring maximum, worldwide dissemination of content, in exchange for an Article Publication Charge (APC). However, until December 2017 any submission is free of any charge. All papers must be submitted through the Editorial Manager system. See here for more information on the journal and author’s instructions.

6. Nineteenth Summer Session of Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law. The Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) welcomes applications for its Nineteenth Summer Session, from 30 July – 9 August 2017. Under the title ‘Between Codification and Progressive Development: International Criminal Law after Rome and Kampala’, SLS 2017 will focus on the doctrinal concept of international criminal law as a branch of international law, its legal basis and contemporary relevance. We will assess the development of crimes and categories of crimes under international law within and outside the Rome Statute system and will have a particular look at the crime of aggression. SLS is an intensive course in international criminal law for advanced students, young academics and practitioners, founded by Prof. Otto Triffterer at the University of Salzburg in 1999.  For the academic programme, faculty, and further information see here or contact Salzburg_Law_School@sbg.ac.at.

New EJIL:Live! Interview with Liam Murphy on his Article “Law beyond the State: Some Philosophical Questions”

EJIL:Talk! - Sat, 04/29/2017 - 09:30

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Professor Liam Murphy of New York University, whose article, “Law beyond the State: Some Philosophical Questions”, appears as the central piece in an EJIL: Debate! in Volume 28, Issue 1.

A legal philosopher, Professor Murphy takes up the challenge of exploring the realm of international law, an area largely ignored by Anglo-American legal philosophers since H.L.A Hart. Professor Murphy seeks to offer new perspectives on the famous chapter 10 of Hart’s The Concept of Law, and to critique the understanding of the international legal system set out therein. This then serves as the framework for his discussion of two core issues: the relevant grounds of law in international law – what factors are relevant in determining the content of law in force – and what makes international law a legal order. Professor Murphy also reflects on the Replies to his article, published in the same issue of the Journal, and how these prompted him to give further thought to the issues addressed in his article.

Would a Multilateral Investment Court be Biased? Shifting to a treaty party framework of analysis

EJIL:Talk! - Fri, 04/28/2017 - 15:37

I have recently been pondering a common complaint voiced against the EU and Canada’s proposal for a multilateral investment court, which is that it would be biased against investors because all of the judges would be selected by states (see, for example, the ABA’s Report here and Judge Schwebel’s speech here). In my view, this criticism is misguided because it confuses the role of states as disputing parties and as treaty parties. States have dual roles in the investment treaty system: they are treaty parties with a legitimate interest in the interpretation and application of their treaties and they are disputing parties with a desire to avoid liability in particular cases. When it comes to questions of institutional design, I think that we need to adopt a treaty party framework of analysis, not a disputing party one.

In a particular dispute, an investor can appoint one arbitrator and a state can appoint another. Once a case is filed, it is hardly surprising that both disputing parties would seek to appoint arbitrators who are broadly sympathetic to their positions. This tends to generate polarization within the field with arbitrators often being thought of (whether accurately or not) as having either a “pro-investor” or a “pro-state” bias. This division helps to explain why, when judged from the perspective of the dispute resolution framework, investors and members of the arbitral community have raised concerns that having tribunals selected by states only would lead to biased results. This is so even though neither the claimant investor nor the respondent state would appoint the particular tribunal members tasked with hearing the case.

When it comes to institutional design, however, we need to shift our focus from the disputing party framework to the treaty party framework. Although states have certain interests as disputing parties in particular cases, things look different when they are treaty parties in the negotiating room. The treaty parties are the ones that strike the original deal that affords certain protections to investors and provides certain safeguards to states. In doing so, they balance their interests as capital exporters and capital importers because either they have both interests individually and thus need to internalize them (which is true of the EU and Canada) or they have both interests collectively and thus need to negotiate a compromise between them (which is true of treaties between a clear capital importer and exporter, subject to the operation of power asymmetries).

When it comes to designing the right system for dispute resolution, what the treaty parties want is adjudicators who are going to be faithful to the bargain that they have struck. This isn’t a question of being biased in favor of investors or states – indeed, the notion of being biased in favor of the treaty parties makes little sense. Instead, it is a question of adhering to the bargain that the treaty parties collectively agreed upon which includes striking a balance between investor protections and state prerogatives. If states were only ever motivated to avoid liability, they wouldn’t have agreed to investment treaties that afford investors protections in the first place. Being pro the treaty parties isn’t about being pro-investor or pro-state – it is about being pro honoring the deal that was made.

I suspect that this is part of what the EU and Canada are trying to achieve with the investment court. By having judges appointed by the treaty parties rather than the disputing parties, and by requiring that these adjudicators are first and foremost experts in public international law, the EU and Canada are trying to redesign the system to ensure that the judges understand that their role is to faithfully interpret and apply the deal that was struck by the treaty parties, whether or not that means finding for a claimant investor or a respondent state in a particular case. The same is true of other judicial bodies, like the European Court of Human Rights and the Iran-US Claims Tribunal, where judges are appointed by the treaty parties but find in favor of both individual claimants and respondent states in particular cases, without allegations of systemic pro-state bias.

Adopting this sort of institutional framework also encourages states to appoint balanced adjudicators, rather than ones that lean too heavily in favor of investors or states. Joint capital importers and exporters, like the EU and Canada, will need to select adjudicators that they would be happy to live with on either side of the equation, i.e., that they would be content to have hear a case brought by either their investors suing foreign states or foreign investors suing them as host states. States that are primarily capital importers will face a different balancing act: they will want adjudicators who are able to hold them accountable to their obligations (thereby facilitating their ability to make credible commitments) without holding them accountable to standards that are above and beyond that to which they agreed.

Moving from a model where the disputing parties select the arbitrators ex post to one where the treaty parties select the adjudicators ex ante helps to encourage states to make these selections with their treaty party hats, rather than respondent hats, more firmly on. It also encourages states to take a longer term perspective. A state may have an interest in one case now because it is brought by its investors and another case later because it is brought against the state itself and it will need to internalize those interests. A state’s balance between being a capital importer and a capital exporter may also shift over time, as has clearly occurred with the United States and China, though going in opposite directions. All of these factors should nudge states towards (1) adopting treaties that strike a balance between the interests of capital importers and exporters and (2) selecting balanced adjudicators who will honor the deal struck.

Shifting our frame of reference from a dispute resolution framework to a treaty party framework isn’t easy, particularly when we are talking about dispute resolution mechanisms as this issue naturally makes one think about disputes. Much of our understanding of the field comes from the existence and resolution of specific investor-state disputes, which makes it natural to default to the dispute resolution framework. This is all the more so when one is talking to investment treaty practitioners who live and breathe these disputes and who often have far more interaction with states operating primarily in their respondent-mode rather than their treaty party-mode. When it comes to institutional design, however, this disputing party framework is unhelpful because it misses the more nuanced and balanced interests exhibited by the treaty parties, particularly when they are firmly wearing their treaty party hats.

The investment treaty system has entered a precarious period. If the system is going to endure, there needs to be reasonable concurrence between those who create the law (the treaty parties) and those who interpret and apply the law (investment tribunals). If there is systematic divergence between the two, the treaty parties will lose faith in the system and will defect in increasing numbers. The proposal by the EU and Canada is intended to prevent or forestall that occurrence. By requiring that the adjudicators be specialists in public international law who are appointed by the treaty parties rather than the disputing parties, states are seeking to narrow the distance between what they intend and what tribunals rule. Indeed, as one treaty negotiator explained to me: “I can’t forever keep dropping another footnote to deal with the latest case that decides something that the treaty parties never intended.”

Lots of questions about the EU and Canada’s proposal remain open, including whether other states will get on board with it and whether these sorts of reforms will be enough to overcome populist pushback against trade and investment treaties. There might be more cost effective or lighter touch alternatives that achieve a similar effect, which might be more attractive to non-European states or states that do not expect themselves or their investors to be heavy users of the system. And creating a court may also lead to other problems. For instance, it is often harder for states to reach interpretive agreements in a multilateral forum than a bilateral one, so an investment court might result in a greater shifting of interpretive power from the treaty parties to the adjudicators. All of these considerations are important and the implications of a multilateral court and other reform proposals need to be carefully thought through.

In assessing questions of institutional design, however, it is important to begin defaulting to a treaty party framework rather than a disputing party one. Taking this step helps to eschew simple claims about pro-state bias while focusing our attention on how to design a system that: (1) encourages states to internalize their interests as capital importers and exporters, which should push them toward making balanced, rather than biased, tribunal appointments; and (2) encourages adjudicators to faithfully apply the treaty parties’ deal, whether that means finding for claimant investors or respondent states in a given case. Ultimately, such an approach is also in the interests of investors because unless states remain confident (or regain confidence) in the system, they are likely to abandon investment treaties or withdraw their consent for investor-state dispute resolution. Although investors are likely to be tempted to pursue what suits them best in a particular dispute, in the end, investors – like states – would do well to play the long game.

Tackling Non-Implementation in the Strasbourg System: The Art of the Possible?

EJIL:Talk! - Fri, 04/28/2017 - 08:00

Slow, partial or sometimes even non-implementation of judgments of the European Court of Human Rights is the Achilles heel of the European Convention system. The latest annual report of the Council of Europe’s Committee of Ministers attests to some positive trends — a record number of cases closed in a single year and a decrease in the number of pending cases revealing systemic or structural problems — yet still 9,944 judgments remain unimplemented. While this is the first time since 2010 that the figure has dipped below 10,000, it remains a substantial caseload for the Committee of Ministers, the body formally tasked with monitoring implementation.

How, then, to tackle the problem? A thought-provoking contribution to this debate has been made by Kanstantsin Dzehtsiarou and Fiona de Londras in their article, ‘Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights’.

Infringement proceedings under Article 46(4) of the Convention were introduced by Protocol No. 14 to the Convention in order to provide a means of increasing pressure on obstructive states short of the extreme sanction of suspension or expulsion. This — as yet unused — mechanism empowers the Committee of Ministers to refer a state back before the Court if it refuses to implement a judgment.

Dzehtsiarou and de Londras argue that invoking Article 46(4) would be ‘futile and counterproductive’ because, among other reasons, it risks overburdening the Court (specifically its Grand Chamber, which would consider any referrals) and further delaying implementation while proceedings are pending. Moreover, they venture, infringement proceedings would do nothing to address the root causes of non-execution and could provoke a backlash by impugned states, potentially damaging both the effectiveness and legitimacy of the Convention system.

Root causes

The causes of non-execution are identified as falling into two categories: ‘principled’ and ‘dilatory’ non-execution. ‘Principled’ non-execution, the authors suggest, occurs (rarely) when states resist execution because of ‘deep-seated politico-philosophical disagreements with the Court’s interpretation of a particular provision, or with the concept of international supervision per se’. The UK’s protracted resistance to implementing judgments requiring reform of the blanket ban on the right of convicted prisoners to vote is presented as a paradigmatic example of principled non-execution.

‘Dilatory’ non-execution, on the other hand, covers a much broader category of cases in which there is no dispute as to principle but rather ‘problematic attitudinal and/or organisational resistance’ to implementation and failure to organise the organs of the state in an ‘effective, accountable, and rights-respecting way’. Azerbaijan is identified as a quintessentially dilatory state. This category is, I submit, overly broad to have explanatory force since it includes a spectrum of cases from wilful and persistent failure (or refusal) to implement through to slow or partial implementation which may be attributable to a state’s lack of capacity or resources and/or the sheer complexity of the measures required. The term dilatory implies a more casual approach to implementation than warranted by the outright obstructiveness and manipulation of the Strasbourg system evinced by the Azerbaijani authorities in case after case.

I wish in particular, however, to take issue with the notion of ‘principled’ non-execution identified by Dzehtsiarou and de Londras — and to suggest that the questionable nature of both categories means that their caution about the potential use of infringement proceedings is overstated.

‘Principled’ non-execution – wrong in principle

The authors acknowledge that the mere fact that non-execution emanates from principle (as they see it) ‘does not rid it of its deeply problematic nature’. I would go further and argue, first, that the concept of principled non-execution is unhelpful as an explanatory category and, secondly, that it risks dignifying behaviour which is severely and insouciantly corrosive of respect for the Convention system.

On the first point, Dzehtsiarou and de Londras appear to overlook the emerging consensus in empirically-informed academic debate which argues that states are not unitary actors when it comes to the implementation of international human rights norms. To be sure, executives are the principal interlocutors of supranational human rights bodies. Yet research informed by the disciplines of international law, international relations and political science (for example, here and here) reveals that states are, in reality, collections of actors which, through their relative strengths and interactions, both collaborative and competitive, determine whether, and to what extent, implementation occurs. If we wish to understand the causes of slow, partial or non-implementation, this insight is crucial — and points to the conclusion that states, as such, are incapable of reaching a stable, ‘principled’ view of whether a judgment is unreasonable to the extent that it should not be implemented.

To take prisoner voting as an example, while a backbench parliamentary vote defied the Strasbourg judgments, and successive UK governments have failed (without definitively refusing) to implement them, the majority report of the cross-party parliamentary committee formed to scrutinise draft legislative proposals advocated implementation — and proposed a specific remedy. The Joint Committee on Human Rights has also repeatedly called for implementation (as far back as 2006 (paras 1.40–1.42) and as recently as 2015 (paras 3.15-3.26)). Organisations including Her Majesty’s Inspectorate of Prisons, the Prison Governors’ Association, the crime reduction charity Nacro and a range of other civil society and faith groups have called for at least some convicted prisoners to be enfranchised in keeping with the judgments.

In such instances, in which the domestic forces ranged against implementation have thus far prevailed over pro-implementation actors — but are not monolithic — can the protracted failure to implement be labelled as ‘principled’, as opposed to simply the outcome of political bargaining at a particular point in time? Let us not forget the many judgments in the Court’s history that provoked controversy at the time, even though the principles they enshrined later gained wide acceptance (such as those challenging the criminalisation of homosexual acts and inhuman and degrading interrogation techniques in Northern Ireland).

Moreover, how — within a system of 47 states at uneven levels of democratic development — are we to distinguish behaviour which is truly ‘principled’ from that which is opportunistic? Are only certain states capable of acting on principle, and if so, which ones? The authors appear to acknowledge the difficulties implied by these questions when they observe that the law which permits Russia’s Constitutional Court to declare rulings from international human rights bodies impossible to implement in Russia due to their incompatibility with the Constitution is intended to ‘provide the appearance of a principled non-execution’ (my emphasis).

Parochialism

On the second point, the dictionary definition of the term ‘principled’ is ‘acting in accordance with morality and showing recognition of right and wrong’. Thus, it is incapable of having a pejorative meaning. To be clear, Dzehtsiarou and de Londras do not advocate non-execution on the basis of principled disagreement. Yet the mere use of this term inescapably lends such behaviour legitimacy, even if it is acknowledged to have negative consequences for other states and for the Convention system (as the UK’s stance on prisoner voting undoubtedly has).

Unsurprisingly, when the notion of principled non-execution surfaced in the context of inter-governmental discussion about reform of the Convention system, it was comprehensively rejected since it would ‘involve problems of incompatibility with the principle of the rule of law’ (see here, para 42). This reminds us of the damage done by parochially developed notions of ‘principled’ resistance when transposed to the international level. Defiance of the Court’s adjudicatory authority ignores the collective value of Convention standards, enriched by the Court’s case law, which binds states to a body of law reflecting common European standards. There is a consequent obligation on states to constrain their own power in the interests of strengthening the system overall, since the legitimacy of domestic political institutions, severally and collectively, depends upon that outcome.

Infringement proceedings – misplaced caution?

To return to the issue of infringement proceedings, the practical difficulty and potential consequences of using the mechanism do, indeed, require careful consideration. Yet the hesitancy of Dzehtsiarou and de Londras is at odds with calls for the mechanism to be used — and made easier to use — by non-government organisations (see here, here and here), judges of the Court (see here, p. 148) and the Parliamentary Assembly of the Council of Europe (see here, para 49; and here, para 1.1).

The Committee of Ministers has for the first time raised the possibility of invoking Article 46(4) in respect of Azerbaijan’s protracted refusal to release opposition leader Ilgar Mammadov who has served four years of a seven year sentence following his politically-motivated prosecution for criticising corrupt officials. The Director of the Human Rights Directorate of the Council of Europe has lent his weight to the idea, while the Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, stated at the recent launch of the European Implementation Network that using the infringement procedure would ‘send a very strong signal that Azerbaijan is beyond the pale’, adding that he was ‘pleased that the temperature at the Committee of Ministers is rising’ on the Mammadov case. It is indeed hard to imagine a more egregious — as opposed to merely dilatory — instance of refusal to comply for which Article 46(4) was designed.

Certainly, the mechanism is no panacea for the problem of non-implementation, since it is intended for use only in ‘exceptional circumstances’ (para. 100). Other solutions must be found, such as greater transparency and accessibility to civil society at the Committee of Ministers and the creation of an independent expert advisory group to support its work (as argued here).

Yet the efficacy of the infringement procedure can scarcely be assessed unless and until it is used. Moreover, the risk of provoking accusations of illegitimacy is surely mitigated by the fact that the 47 Council of Europe member states themselves introduced this weapon into the Committee of Minsters’ armoury (see here, para. 98), recognising the collective duty on states to ‘preserve the Court’s authority — and thus the Convention system’s credibility and effectiveness’ in cases where a state, expressly or through its conduct, refuses to comply with a judgment of the Court.

Excusing Humanitarian Intervention – A Reply to Jure Vidmar

EJIL:Talk! - Thu, 04/27/2017 - 08:00

The US strikes in Syria, for which the US offered no legal justification, have once again ignited the debate on the qualification of such acts as illegal but legitimate – a label that had been used, in its day, to describe NATO’s use of force in Kosovo. Legally speaking, what does this sentence mean? Jure Vidmar, in his post on this blog, attempted to explain it by means of the distinction between justification and excuse. As Vidmar explains, excuses usually (but by no means always) cover situations in which conduct, while illegal, is nevertheless the morally right thing to do in the circumstances. He sees this type of reasoning behind the reactions of other States to the US action – expressing support for the action as the right thing to do, but unwilling to go as far as to say that the conduct was permitted or lawful.

The argument is certainly plausible (although note that no State has used the language of excuse in these circumstances which is, in my view, somewhat problematic for the argument). However, it raises a number of important issues which may, ultimately, undermine the very purpose of excusing an actor engaged in humanitarian intervention. I want to consider three of these here: (i) the current recognition of excuses in international law; (ii) the availability of excuses in respect of the breach of peremptory rules; and, (iii) the potential effects of excusing states for humanitarian intervention. I will address each of these in turn.

Excuses in International Law

Excuses are defences that arise from properties or characteristics of actors which, while having no effect on the illegality of the act, shield that actor from responsibility for its (illegal) actions. By contrast, justifications are defences that arise from properties or characteristics of acts and have the effect of rendering those acts lawful, despite apparently breaching a rule of the legal order.

Does international law recognise this type of defence? It is difficult to say. To begin with, ‘excuse’ is a legal concept (not a rule) so it is not, as such, susceptible of recognition by means of state practice and opinio juris. At any rate, states have rarely expressed their views in the abstract about this notion: only Burkina Faso, France, India, Japan, Mexico, Morocco, Russia, Slovakia, Switzerland and the UK, expressed support for excuses during the International Law Commission’s (ILC) work on responsibility. Moreover, there is sufficient variation in domestic legal orders to prevent the conclusion that excuses constitute a general principle of law: while they are generally recognised in Civil law jurisdictions, Common law jurisdictions only rarely do so.

Perhaps a better way to test this is to query whether specific defences have been classified as excuses by states and whether tribunals have applied them as such. Of the defences in the ILC’s Articles on Responsibility of States (ARS), it is the plea of necessity which tends to be seen as an excuse. This is, however, predominantly a doctrinal view. Indeed, only a few states have favoured a classification of necessity as an excuse. On the whole states have treated this defence as a justification. For example, this is how both Argentina and Zimbabwe pleaded it in investment arbitration. Tribunals too have applied the defence as a justification. The practice of states and tribunals in this regard is compatible with the current formulation of the plea in ARS Article 25. Article 25 formulates the defence as a lesser-evil it is afforded for the protection of ‘essential interests’ at the expense of non-essential interests, when the former are threatened by a grave and imminent peril. Lesser-evil is a consequentialist theory of justification pursuant to which whatever causes the lesser of two evils is lawful. Or, to put it in the opposite terms, whatever produces a net benefit is lawful: since the act in necessity produces a net benefit by preserving a superior interest, then it is lawful. The plea of necessity can be formulated as an excuse. Indeed, defences are not inherently justifications or excuses and indeed they can be formulated in either terms. An excuse of necessity could, for example, focus on the constraints on the state’s freedom of choice in the situation of necessity, namely the situation in which one of its essential interests is threatened by a grave and imminent peril. But this is not how it is now formulated, argued by states or applied by tribunals.

While it may be desirable to recognise excuses in international law (and I am of the opinion that it would be desirable to do so), I don’t think an argument can be made at present that excuses are already recognised in international law.

Excuses and Peremptory Rules

Assuming that an excuse exists in positive law which covers the situation of humanitarian intervention, can it be invoked as against the prohibition of force? Defences in the law of responsibility are subject to the limitation codified in ARS Article 26: they may not be invoked against peremptory rules. Since the prohibition of aggression is one such peremptory rule, a State will not be able to rely on a defence in respect of actions contrary to the prohibition. Admittedly ARS Article 26 uses the expression ‘circumstances precluding wrongfulness’ (the equivalent of ‘justification’). But I think that the limitation in ARS Article 26 must extend to excuses as well. Let me explain why.

If it were accepted that excuses can be invoked against the breach of peremptory rules, the consequence of this would be that a violation of one such rule would carry no responsibility for its author (so, it would not be bound by obligations of cessation and reparation). But recall that peremptory rules have consequences also for other states (Article 41 ARS). What happens with these consequences when the author of the breach is excused? These states do not benefit from the excuse (excuses, after all, are personal). So are these other States still bound by the obligations in Article 41? It would be odd to reach the conclusion that the State who has violated a peremptory rule does not bear any consequences, but that other States nevertheless do. If the US were excused for its airstrikes, then the US would not be responsible (in the sense of owing cessation and reparation) towards Syria but, nevertheless, other States would be bound by the obligation to bring to the US measures to an end and not to provide aid or assistance to the US. To avoid this paradoxical situation, it has to be accepted that excuses (like justifications) cannot be invoked in relation to peremptory rules.

What Effect would an Excuse have in these Circumstances?

Assuming that excuses are applicable in respect of peremptory rules (or, even, that the prohibition of force is not a peremptory rule), then what would be the effect of excusing a State engaging in humanitarian intervention? An excuse precludes the responsibility of a state for an act in violation of international law. So, in this case, the US would be relieved of its obligations of cessation and reparation (the ‘content’ of responsibility, in the terminology of the ARS). Crucially, however, there are certain consequences of wrongful acts that excuses cannot exclude.

Wrongful acts have other consequences beyond those in the law of responsibility. Examples of this are the invalidity of treaties as a result of a breach of the prohibition on the use of force and the possibility to terminate or suspend a treaty as a result of material breach. Now these consequences are not included in the notion of responsibility and, as a result, they may not be precluded by the excuse. Of particular interest here is the right of self-defence. This right arises in response to a violation of the prohibition of force by way of an armed attack. So self-defence is, too, a consequence of wrongfulness. Roberto Ago argued during the first reading of the ARS that self-defence was a consequence of wrongfulness encompassed by the notion of responsibility, but on second reading the ILC did not go along with that understanding. This being the case, an excuse could not preclude this right from arising. In other words, a State may be able to resort to self-defence against an excused actor when the latter’s wrongful act constitutes a violation of the prohibition of force amounting to an armed attack. Thus, to say that the US is excused for its airstrikes in Syria (should these amount to an armed attack) would leave it open to the use of self-defensive force by Syria. And this is, most certainly, an undesirable conclusion.

I accept that this argument depends on a conception of excuse which is concerned only with the exclusion of responsibility. But then, this is the only conception of excuse that states have so far considered (as this was the notion of excuse that the ILC considered in its work during the ARS).

***

Humanitarian intervention raises profoundly difficult questions for the international legal order, ranging from the scope and limits of unilateralism (who can act in humanitarian intervention and who is the judge that action is necessary?), to the scope and normative pull of the prohibition of force (does the acceptance of humanitarian intervention weaken or reassert the strength of the prohibition?), to the processes of law creation and change in the international legal order (are these one-off incidents or is there a pattern, and how many are necessary for a change in the law?). Testament to these difficulties are the many posts on these recent strikes both here and in other blogs (see, for example, here, here, and here).

Analysing humanitarian intervention through the prism of excuses may potentially address some of these uncertainties, most importantly the question of the impact of this conduct (if a pattern emerges) on the normative pull of the prohibition of force. But regrettably, it does so at the cost of adding additional uncertainties as this post shows.

I’d like to conclude with a historical note of caution. When in 1914 Germany invaded Belgium and Luxembourg, it pleaded necessity as an excuse. German Chancellor von Bethmann-Holleweg said: ‘Necessity knows no law. Our troops have occupied Luxembourg, and perhaps have already entered Belgian territory. Gentlemen, that is a breach of international law … We have been obliged to refuse to pay attention to the justifiable protests of Belgium and Luxembourg. The wrong – I speak openly – the wrong we are thereby committing we will try to make good as soon as our military aims have been attained. He who is menaced, as we are, and is fighting for his all can only consider how he is to hack his way through.’ (The translation is from L Zuckerman, The Rape of Belgium: The Untold Story of World War I (NYU Press, 2004), 11.)

Seeing where that led, I am not sure that – given that it is certainly not law at present – it is desirable for international law to develop to excuse uses of force beyond those expressly permitted (and therefore lawful) by the Charter.

Irregular Migrants and the Prohibition of Slavery, Servitude, Forced Labour & Human Trafficking under Article 4 of the ECHR

EJIL:Talk! - Wed, 04/26/2017 - 08:00

On 30 March 2017, the ECtHR delivered the Chowdury and Others v. Greece judgment (currently available only in French), where the Court found a violation of Article 4(2) of the ECHR (the right not to be subjected to forced labour). This judgment is an important addition to the gradually growing body of case law under Article 4 of the ECHR. Against the background of the overall prolific output of the Strasbourg Court, it might come as a surprise that the case law under Article 4 is very limited. In addition to the line of cases where the state demands services, which could amount to forced labour (see, for example Chitos v. Greece), there have only been seven cases in which the Court had to address circumstances where abuses inflicted by non-state actors (i.e. employers) qualify as slavery, servitude, forced labour or human trafficking under Article 4. Chowdury and Others v. Greece is the eighth one. It is, however, the first case where the Court found that exploitation of irregular migrant labour amounts to forced labour. The previous cases (Siliadin v. France and C.N. and V. v. France), where the Court determined that the factual circumstances amounted to forced labour, involved children who provided domestic services.  Chowdury is also the first case where the Court found that the victims were subjected to forced labour, but not to servitude.

Chowdury and Others v. Greece has already received wide media coverage (see the Guardian, New York Times) and has been assessed as constituting an important advancement. After briefly describing the factual circumstances and the findings, in this post I would like to take a more critical approach to that part of the judgment where the Court addresses the definitions of servitude, forced labour and human trafficking in human rights law. Despite the positive outcome, the judgment Chowdury is in some respects lacking in rigor in terms of delineating the definitional boundaries of the above mentioned concepts.

Factual Circumstances

The applicants were 42 Bangladeshi nationals in Greece with undocumented status. They were recruited to work on a strawberry farm in Manolada and were promised wages of 22 Euro for seven hours labour and 3 Euro for each overtime hour. They worked in plastic greenhouses picking strawberries every day from 7 a.m. till 7 p.m. under the supervision of armed guards. They lived in makeshift tents of cardboard boxes and nylon without running water and toilets. The workers were never paid their wages for which they went on strike a couple of times. They continued to work since they were afraid that if they were to leave, they would never be paid. After the employers recruited other migrants, the Bangladeshi nationals again demanded their wages. At this point, one of the armed guards opened fire and seriously injured many of them.

After this incident, the employers and the guards were convicted for grievous bodily harm and unlawful use of firearms (sentences that were subsequently commuted to a minimum financial penalty), but acquitted of the charge of trafficking in human beings. When applying to the ECtHR, the 42 Bangladeshi migrants argued that they were subjected to forced labour and human trafficking and that Greece has failed to fulfill its positive obligation under Article 4 to protect them against these abuses, to conduct an effective investigation, and to punish the perpetrators.

The Findings of the ECtHR

The Court found that the migrant workers’ circumstances fell within the scope of Article 4(2) of the ECHR and thus qualified as human trafficking and forced labour, but not as servitude (for these distinctions see below).  It then went on to examine Greece’s positive obligations under Article 4. The Court examined three types of positive obligations.

First, the obligation to put in place an appropriate legal and regulatory framework was under review. No violation was found in this respect since Greece had criminalized human trafficking at national level and had incorporated the relevant EU law in this area (EU Directive 2011/36) (para. 107-8).

The second type of positive obligation under review in the judgment was the obligation to adopt protective operational measures. The Court emphasized that the authorities were well aware of the situation of the migrant workers in the Manolada region and the abuses to which they were exposed, including the refusals by the employers to pay their wages (para.110-15).  Despite this awareness, the authorities’ response was limited (para. 113). Importantly, the assessment of the positive obligation to protect by the Court was done in light of the positive obligations imposed by the Council of Europe Convention on Action against Trafficking in Human Beings (para.104). More generally, the Chowdury judgment is clear to the effect that regardless of the legal qualification of the circumstances as human trafficking or forced labour, the positive obligations generated by Article 4 of the ECHR must in principle be interpreted in light of the Council of Europe Trafficking Convention (for the interaction between the human rights law and the human trafficking legal frameworks see V. Stoyanova, Human Trafficking and Slavery Reconsidered, (CUP, 2017)).

Finally, the Court evaluated the effectiveness of the investigation conducted at national level. In regard to one group of applicants, the Court found a procedural violation of Article 4(2) since the national authorities did not examine their complaint concerning human trafficking and forced labour (para. 119 – 122). In regard to a second group of applicants, the Court also found a procedural violation of Article 4(2) since although there was investigation, prosecution and trial, it all ended in acquittals (para. 123-7).  The reason for the acquittals was that the national court interpreted the crime of human trafficking in a very narrow sense. The bar for qualifying abuses as human trafficking was set so high by the national court that it required that the migrants be absolutely powerless to defend themselves and be deprived of freedom of movement. The ECtHR observed that restrictions upon freedom of movement cannot be a necessary element for qualifying a situation as forced labour and as human trafficking (para. 123).

Definitional Challenges Raised by Article 4 of the ECHR

What is the contribution of Chowdury and Others v. Greece in terms of resolving the definitional challenges raised by Article 4 of the ECHR? It is worthwhile to remind ourselves that Article 4 contains three concepts, i.e. slavery, servitude and forced labour. With Rantsev v. Cyprus and Russia, the Court has added ‘human trafficking’, as defined in the Palermo Protocol and the CoE Trafficking Convention, to the conceptual apparatus of Article 4 (for a critique of this addition see here). In sum, Article 4 captures four concepts for qualifying abuses and the Court needs to find some sensible way of distinguishing them, and of denoting some distinctiveness to each one of them.

The Definitional Quagmire under Article 4

In Chowdury and Others v. Greece, the Court concluded that the migrant workers were subjected to both human trafficking and forced labour, in this way confirming that in some respects these forms of abuses can occur at the same time or one might happen after the other. More specifically, the judgment says:

[…] exploitation of labour is one of the forms of exploitation in the definition of trafficking in human beings, which highlights the intrinsic relationship between forced and compulsory labour and trafficking in human beings. (para. 83; translation by the author).

Yet, this intrinsic relationship is not one of overlap (V. Stoyanova, Human Trafficking and Slavery Reconsidered, (CUP, 2017) p.292). At no point does the Court explain this intrinsic relationship; rather the judgment seems to suggest that these two forms of abuses overlap. It is also worthwhile to remind the reader that in Rantsev v. Cyprus and Russia the Court conflates human trafficking and slavery by defining the former through the definition of slavery in international law (see para. 281 of Rantsev), which has caused further confusion. Just as confusing, in some paragraphs in the reasoning in Chowdury the Court talks only about human trafficking (see, for example, para. 86, 87, 89) without mentioning forced labour. Even more puzzlingly, in other paragraphs the Court refers not only to human trafficking, but also to the concept of exploitation (para.88 and 93). ‘Exploitation’ is not only left undefined, but as the international law definition of human trafficking suggests (a definition that the Court has endorsed), it is a broader concept than forced labour. No explanation has been offered as to the required threshold for defining exploitation and how it might relate to forced labour and servitude in the context of Article 4, which has left the minimum threshold of severity under Article 4 uncertain. Equally confusing, is para.99 in Chowdury, where the Court refers not to forced labour per se, but only to forced labour as a form of exploitation within the definition of human trafficking. In sum, the ECtHR seems to be still struggling with the conceptual apparatus under Article 4. The source of this confusion is ultimately the insertion of human trafficking within the limits of Article 4, in this way overlooking and not developing with sufficient rigor the concepts that are explicit in the text of the provision (i.e. slavery, servitude and forced labour).

The ‘Disproportionate Burden’ Test

Leaving aside the above described definitional carelessness, a very important contribution of Chowdury and Others v. Greece lies in the affirmation of the ‘disproportionate burden’ test for the purpose of defining abuses as forced labour (para.90-1) and its actual application to the circumstances. This test was initially introduced in Van der Mussele v. Belgium, a case where services were demanded by the state (a lawyer was required to provide pro bono legal representation) and in this sense it was not a case of abuses at inter-personal level. In Van der Mussele, the Court said that relative weight was to be attached to the prior consent to do the work; ultimately, all the circumstances of the case will have to be considered for assessing whether the labour qualified as forced labour and this included an assessment as to whether the applicant was subjected to an ‘excessive and disproportionate burden’.

In Chowdury and Others v. Greece the Court applied this approach. First, it observed that if the migrants had stopped working, they knew that they would never collect their wages. Even if it could be assumed that at the time of hiring, they consented to work, the situation changed as a result of the behavior of their employers (para.97). It is critical that the undocumented status of the migrants, the risk of being arrested and detained to be deported, are highlighted in the judgment (para.95) as important factors denoting their vulnerability, which the employer took advantage of. As a consequence, the Court observed that they had not offered their labour voluntary (para. 96).  Then, the Court assessed the severe exploitative conditions to which the migrants were subjected, which denoted excessiveness. It is unfortunate that the Court did not explicitly clarify in the text of the judgment when it applied the test to the facts, that the burden was disproportionate given the severe forms of exploitation that the migrants were subjected to.

Restriction of Freedom of Movement not a Requirement for Defining Forced Labour

Another important contribution of Chowdury and Others v. Greece is the clarification of the distinction between forced labour and servitude. The Court followed the gradation model built within Article 4 by observing that, in contrast to servitude, the qualification of abuses as forced labour does not require such a high threshold as demonstrating that the victim lived in a state of exclusion from the outside world and was deprived of freedom of movement (para.99).

In sum, against the background of the relative scarcity of judicial engagement at international law level with the right not to be subjected to slavery, servitude, forced labour and human trafficking, Chowdury and Others v. Greece is an important addition, which will help Article 4 of the ECHR to gain further traction by instigating more applications. The Court, however, still needs to introduce more conceptual clarity in its Article 4 judgments. This could happen by not rushing to use the concept of human trafficking, but instead by grappling with the modern meaning of the concepts explicit in the text of Article 4.

[The author intervened in the case by submitting a third-party-intervention on behalf of her law faculty. The intervention contained views as to how the definition of forced labour can be addressed in the context of Article 4 of the ECHR and how it could be distinguished from the separate but related concept of servitude. The intervention also examined the interaction between the positive obligations under Article 4 of the ECHR and the CoE Convention on Action against Trafficking in Human Beings.]

Stability vs. Flexibility: Can the European Union find the Balance?

EJIL:Talk! - Tue, 04/25/2017 - 08:10

To what extent can a State forego its contractual commitments, in particular those arising from a stabilization clause for human rights and environmental protection? (“under a stabilization clause, the host State commits itself either not to enact changes of the domestic law in the future, or at least, not to apply such changes to the investor”, Ohler, Concessions, Max Planck Encyclopedia, 2009.) Our assumption is that stabilization clauses and states’ rights to regulate should be integrated and not be taken as opposite obligations, considered as incompatible. In other words, if framed correctly, stabilization clauses can balance the two conflicting needs at stake: the sanctity of contract and a state’s right to regulate to protect its public interest (Leben, L’évolution de la Notion de Contrat d’État, Revue de l’arbitrage, 2003; Carbone, Luzzatto, Il Contratto internazionale, 1996; Giardina, State Contracts, national versus international law, The Italian Yearbook of international law, 1980; Fatours, International Law and International Contract, 1980; Mann, State Contracts in International Arbitration, 1967).

This post examines whether the (fairly) new European exclusive competence on foreign direct investment changes the way stabilization clauses should be framed in EU State contracts to avoid potential conflicts. There are two different kinds of possible conflicts that could arise: first involving either provisions among themselves, or second, the two different legal regimes at stake (the international and the European).

With respect to conflicts between European law and a State-contract provisions: a rigid stabilization clause compels a member State to pay compensation, if requested to align its national law to new European rules, which negatively impact foreign investment. Vice versa when, in order to respect the stabilization clause, the same State fails to comply with the new European provision, it may face infringement proceedings. In both scenarios a stabilization clause, framed in a rigid way, will force a member State to decide whether to respect a State-contract provision (such as the stabilization clause), or a European one. As a question of principle, the State involved should let European law prevail as a source of law higher than the one included in a State contract (whether international, transnational or national).

For example, one can look at the potential conflict between stabilization clauses and the recently enacted European public procurement directives (EU Directive n. 2014/24/EU; EU Directive 2014/25/EU; EU Directive 2014/23/UE). These directives allow the inclusion in public contracts of a sort of equilibrium clause (EU Directive 23/2014, premise n. 87 and art. 43); they also expressly provide the external factual conditions which allow the re-balancing of contractual obligations (EU Directive 24/2014, premise n. 11). Lastly, they envisage the reason which legitimize contract termination (see art. 72, directive 24/2014). Except when expressly provided for by the normative provision, the State party should not be precluded to enact new legislation in respect of fundamental rights.

The provisions included in the public-procurement directives render all rigid stabilization clauses (such as those framed as freezing clauses), inconsistent with European law. Accordingly, if they are included in a State-contract they should be deemed inapplicable as a matter of European law prevailing over a member State’s law on questions of principle (primauté). Any national law would have to be consistent with those that introduce a European provision in the domestic legal order (i.e. Italy in 2015 enacted a new Code of public procurement contracts fully consistent with EU directives).

The second kind of conflict might arise between the latest fair and equitable treatment clauses (FET) in European agreements (CETA art. 8.10) and stabilization clauses. The FET clause included in new European agreements (such as CETA) is well defined, reducing the risk of the foreign State breaching the agreements for enacting legislation aimed at protecting its public order. Therefore, if a contract signed by a member State includes a rigid stabilization clause, the risk of inconsistency between this latter and the FET clause is substantial.

This might lead to conflicts between systems: the international and the European. In practical terms, a foreign investor could initiate arbitral proceedings for breach of a BIT’s fair and equitable clause, arguing that the measure enacted by the member State impairs its investment (protected by the BIT). In parallel, the same measure could entail a breach of contract, as it violates the stabilization clause included therein. In case the two above mentioned disputes arise in front of two different fora, the very same measure could be considered in line with the FET clause and in breach of the stabilization clause, or vice versa. This inconsistency will ultimately affect recognition and enforcement phases of any decision over the dispute. Should a host State, for example, pay for compensation in case the measure appears consistent with the FET clause in the arbitral proceeding, but is simultaneously found to violate the stabilization clause in the domestic proceeding? In the given scenario, if the State pays, it abides by the domestic decision but acts inconsistently with the international decision.

Clearly, stabilization clauses in future public procurement contracts should be framed consistently with the relevant European provisions and in line with the fair and equitable clause provided in the European agreements.

If a dispute arises on the alleged violation of a contractual provision, before finding any breach of the source at stake, I suggest that the competent forum should adopt the proportionality approach used by the European Court of Justice, which could find a balance between economic and non-economic values (ECJ, decision of 11 May 2000, in C-38/98, Régie nationale des usines Renault SA v. Mexicar SpA and Orazio Formento). Similarly, the U.S. Supreme Court in Mitsubishi, “distinguished between international arbitral awards that thwart the fundamental purposes of a norm that is mandatory under domestic law and those that do not, suggesting that the latter, but not the former could be tolerated in the interest of arbitration” (Mitsubishi Motors Corporations v. Soler Chrysler-Plymouth, Inc, 473, U.S. 614, 1985).  In the end, the broadening of European competence in external relation increases the point of contacts among sources of law and different legal systems. The European Union should therefore make every effort to avoid concrete and potential inconsistencies between them (W. Jenks, The Conflict of Law-Making Treaties, 1953).

 

Ukraine’s Dashed High Hopes: Predictable and Sober Decision of the ICJ on Indication of Provisional Measures in Ukraine v Russia

EJIL:Talk! - Mon, 04/24/2017 - 08:00

 

There has been a lot of speculation on the possible outcome of Ukraine’s request for indication of provisional measures in the highly politicized case of Ukraine v Russia, in particular following the parties’ heated exchange of arguments during oral proceedings that took place on 6-9 March 2017 before the ICJ (see my blog here and another blog here). Last week, the Court delivered a highly anticipated decision in which it indicated provisional measures with respect to Ukraine’s claims under CERD by requesting Russia “to refrain from maintaining or imposing limitations on the ability of Crimean tatar community to conserve its representative institutions, including the Mejlis” (by 13 to 3) and “ensure the availability of education in the Ukrainian language” by a unanimous vote (p. 106). In addition to those specific measures aimed at preserving specific rights, the Court chose to indicate an additional measure of general nature with the view of ensuring the non-aggravation of the dispute between the Parties (paras 103, 106).

In rather mild language, the Court also spoke of its ‘expectation’ for the Parties, “through individual and joint efforts, to work for the full implementation of [the Minsk agreements] in order to achieve a peaceful settlement of the conflict in the eastern regions of Ukraine” (para. 104). This seems to be a compromise middle-ground solution when the Majority, although having dismissed the plausibility of claims under ICSFT and therefore chosen not to indicate provisional measures with respect to Ukraine’s claims under the Convention, highlighted the seriousness of the ongoing fighting in eastern Ukraine and encouraged the Parties to revive the Minsk agreements that have been violated countless times. Also, in the opening paragraph of the decision read out by President Abraham, the judges emphasized the gravity of the conflict in eastern Ukraine characterized by extensive fighting that has claimed many civilian lives, including those who were killed when the ill fated MH17 passenger plane was shot down over the territory of Ukraine (para. 16). However, at the same time, they made it clear that the scope of their judicial inquiry was solely limited to the claims under the two Conventions (ibid). In deciding whether to indicate provisional measures, there are three basis prerequisites that have to be met: (1) the existence of prima facie jurisdiction; (2) a link between the rights protected and the provisional measures sought (the test of plausibility of the existence of the asserted rights); (3) risk of irreparable prejudice and urgency.

Prima facie Jurisdiction under CERD and ICSFT

Given that Ukraine invoked Article 22 of CERD and Article 24 of ICSFT as two compromissory clauses in order to establish the jurisdiction of the Court, the ICJ initially examined whether those clauses prima facie conferred jurisdiction upon it to rule on the merits of the case (para. 18). As for the existence of the dispute under ICSFT, the Court found that “at least some of the allegations made by Ukraine appear to be capable of falling within the scope of the ICSFT ratione materiae” (para. 30). However, it is not entirely clear what specific allegations appear to be capable of falling within the scope of the Convention, as the judges merely referred to the preceding paragraph which summarises Ukraine’s allegations on the violations of Articles 8, 9, 10, 11, 12 and 18 of ICSFT (para. 29). While the Court took note of Ukraine’s argument of the prohibition of direct state responsibility for terrorism, which the latter had inferred from a state’s obligation to prevent the terrorism financing offences by analogy to the ICJ Bosnia Genocide case, it did not make any pronouncements at this stage as to whether a state’s obligation to prevent implies an obligation not to commit the crime under ICSFT (para. 31). With respect to the procedural preconditions under ICSFT, the Court found that it appeared that the issues “could not then be resolved by negotiations” (para. 52). The Court found that the evidence at its disposal appeared to demonstrate the failure of both parties to agree upon an organization of arbitration, within six months from the date of the arbitration request, and therefore was sufficient to establish, prima facie, that the procedural preconditions for the seisin of the Court have been met (paras 53-54). At this stage, the Court did not comment on whether Ukraine’s insistence of setting up an arbitral tribunal by way of creation an ad hoc chamber of the ICJ, which I commented on in my previous blog, could satisfy the procedural preconditions under ICSFT. However, the issue is likely to re-emerge at a later stage of proceedings.

As for the existence of the dispute within the meaning of CERD, the Court concluded that the acts referred to by Ukraine, which included the banning of the Mejlis and the alleged restrictions of cultural and educational rights of Crimean tatars and ethnic Ukrainians, appear to be capable of falling within the scope of the Convention (para. 38). This is notwithstanding the fact that Ukraine alleged a broad spectrum of discriminatory practices in Crimea, which included far more serious allegations under CERD, such as disappearance and murder, arbitrary searches and detention, media restrictions and harassment (Ukraine’s application, paras 103-110, 121-123 and my blog here). Given the Court’s conclusion that the issues pertinent to CERD appeared not to have been resolved by negotiations, it was satisfied that the procedural preconditions for the seisin of the Court, prima facie, have been met (para. 61). However, as in Georgia v Russia, the Court did not make any pronouncements on whether the procedural preconditions of ‘negotiations’ and recourse to the ‘procedures expressly provided for in CERD’ are alternative or cumulative (para. 60) This matter is yet unresolved and will come up at a later stage of proceedings, although I believe that the plain textual reading of Article 22 strongly suggests that these two preconditions are used in alternative.

Plausibility of Claims under ICSFT

The finding of the Court that provoked the sighs and lively reaction from the audience was its conclusion that Ukraine’s claims under ICSFT were not plausible for the purposes of the second limb of the test for indicating provisional measures (para. 76). The Court made it clear that a state’s obligations under Article 18 to cooperate in the prevention of terrorism financing offences arise only if it is plausible that the acts constitute offences under Article 2 of ICSFT (para. 74). As earlier discussed in my blog post, this predictable outcome is due to the fact that Ukraine’s counsel spent little time on discussing the necessary mens rea requirement, having taking it for granted that the alleged acts “would naturally intimidate Ukrainian civilians”, and poorly linking the alleged acts of terrorism to intentional or knowing financing of such acts. State responsibility for terrorism financing, which arises out of the breach of ICSFT by States Parties, is objective in nature and does not require establishing the subjective element. However, if the primary rule of conduct requires the proof of intent, it has to be demonstrated that individual agents possess the required intent. In the ICJ Bosnia Genocide case, the ICJ was aided by the developed jurisprudence of the ICTY that dealt with the attribution of individual criminal responsibility for genocide committed in Srebrenica. In that respect, one can say that the ICJ had a significant advantage, unlike in the present case, given its access to ample evidence of the ICTY.

The discussion on the plausibility of claims features heavily in separate opinions appended to the decision. Having noted uncertainty regarding the interpretation of the plausibility standard for the purposes of indication of provisional measures, Judge Pocar found that the plausibility test required for indication of provisional measures had been positively met in the present case (paras 4, 6). The same conclusion was reached by Judge Owada who argued that the standard of plausibility should be fairly low at the provisional measures stage (para. 20). Judge Bhandari opines that the question of intent has to be addressed at the merits stage, whereas at this stage it must only be shown that individuals allegedly financing terrorism had at least knowledge that the funds might be used for carrying out acts in Article 2 ICSFT, which could be inferred from the pattern of behavior (para. 22). Judge Cancado Trindade went as far as to dismiss the ‘plausibility of rights’ test and claimed that, in present circumstances, the decisive test should be that of human vulnerability (para 85). The disagreement among judges shows that the Court would definitely benefit from more clarity on the interpretation of the plausibility test at the stage of provisional measures.

For Ukraine, despite the court’s finding on prima facie jurisdiction under ICSFT, the prospects of the Court addressing its claims under the Convention on the merits are very bleak, in particular, given the Majority’s finding on the absence of the plausibility of claims under ICSFT at this preliminary stage. At the next stage of proceedings, Russia would most probably rehearse the same arguments as during oral proceedings on indication of provisional measures and submit objections to the Court’s jurisdictions on the basis of the two Conventions. As soon as the decision came out, Russian media declared the decision to be “a grand failure” for Ukraine, whereas Ukrainian media paints a more optimistic picture of its prospects before the ICJ. My best take on this is that Ukraine’s claims under CERD will be heard on the merits, however, it is a big disappointment for Ukraine at this stage that the Court did not find sufficient evidence to recognize the plausibility of its more serious allegations under CERD and indicate specific provisional measures with respect to those alleged breaches of the Convention. However, Ukraine should not be disheartened, as its strategy of pursuing parallel proceedings before the ICC and the ECtHR might bear some fruitful results in the future.

Announcements: Business and Human Rights Conference; Contemporary Challenges to International Criminal Justice Summer Academy

EJIL:Talk! - Sun, 04/23/2017 - 10:00

Conference on “Business and Human Rights: International Law Challenges, European Responses”, University of Milan. The Conference on “Business and Human Rights: International Law Challenges, European Responses” (organised by the University of Milan on 29 – 30 May 2017) focuses on several different legal instruments and legal areas, including: the international legal framework on Business and Human Rights (B&HR); domestic legislation and related practice and case law implementing it in Europe; the European Union legal framework on Corporate Social Responsibility, corporate behavior, and private international law; and, the EU trade and investment policy and the international agreements thereby negotiated or concluded. On the basis of the examination of these legal instruments, the Conference aims at identifying the solutions offered in Europe to the B&HR international law issues and at providing an overall assessment of their effectiveness. The programme is available here. Signing up is possible by sending an e-mail to EUlawbusinesshumanrights {at} unimi(.)it var mailNode = document.getElementById('emob-RHynjohfvarffuhznaevtugf@havzv.vg-51'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%45%55%6C%61%77%62%75%73%69%6E%65%73%73%68%75%6D%61%6E%72%69%67%68%74%73%40%75%6E%69%6D%69%2E%69%74"); tNode = document.createTextNode("EUlawbusinesshumanrights {at} unimi(.)it"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-RHynjohfvarffuhznaevtugf@havzv.vg-51"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

Contemporary Challenges to International Criminal Justice Summer Academy Northumbria University, Newcastle. The inaugural Summer Academy on Contemporary Challenges to International Criminal Justice (Law & Criminology) will take place in Northumbria University (Newcastle, UK) from 12 – 16 June 2017. This novel summer academy provides an opportunity for participants to acquire in-depth knowledge on the most pressing issues facing the international criminal justice system from leading scholars and practitioners. To view the list of speakers and the list of topics please visit our website.

Trade Adjustment IS A Matter of Domestic Policy and International Law: Embedding ESC Rights in Trade Law

EJIL:Talk! - Sat, 04/22/2017 - 09:15

While many international lawyers around the world scrambled to debate the US use of force in Syria, quiet and unprecedented shifts took place the same week in international economic law. On 10 April 2017, the International Monetary Fund, World Bank, and the World Trade Organization launched their Joint Report, “Making Trade an Engine of Growth for All: The Case for Trade and for Policies to Facilitate Adjustment”. (Markus Wagner thoroughly discusses the Joint Report and his concerns about its salience here.)

The Joint Report demonstrates how these three multilateral institutions perceive themselves, at a time of critical rethinking of the international economic order and resurgent economic nationalisms in the United States, Britain, among others. IMF Managing Director Christine Lagarde, World Bank President Jim Yong Kim, and World Trade Organization Director-General Roberto Azevedo met in Berlin for the launch of the joint report, speaking in defense of the positive impacts of trade and noting that “we must recognize the concerns of people about trade and the impact that it can have in their lives…we need to ensure the benefits of trade are shared more widely. We should also recognize at the same time that 80 percent of the jobs that are lost today in the advanced economies are not due to imports. They are lost because of new technologies, innovation, and higher productivity.” While the Joint Report resounds a strong defense of trade’s value for achieving economic growth (and certainly resonates similar reasoning articulated by Harvard Economist and President Emeritus Lawrence Summers on the significance of trade deals and the ultimate insignificance of trade agreements on deeper macroeconomic concerns of shrinking middle classes), the Joint Report falls short of the mark in attempting to fully address global concerns about the displacing impacts of trade on workers, local communities, individuals and groups.

It is clear from the report that the IMF, WB, and WTO perceive that criticisms against trade arise when States’ poor domestic policies on trade adjustment, labor mobility, and social protection, combined with the rising challenges from automation, are unable to mitigate negative impacts of trade on workers and local communities (paras. 36-42). The joint report goes on to affirm that these negative impacts “highlight the need for appropriate adjustment policies, rather than for closing markets” (para. 42). What stands significantly from this joint report is its typology of policy alternatives that the IMF, WB, and WTO suggest States consider in devising their trade adjustment programs:

  • Labor Market Policies such as active labor market programs (activation strategies or early and frequent engagement with displaced workers; skills training programs; job search assistance; wage subsidies, supplements or insurance; reemployment bonuses) (paras. 53-54); passive labor market and social protection policies (unemployment benefits; employment protection and minimum wage legislation; social insurance and income support programs)
  • Complementary Policies (paras. 58-60) that help support the economy’s competitiveness as workers are displaced. The IMF, WB, and WTO briefly outline the importance of housing policies “to facilitate geographical mobility…mobility from regions negatively affected by trade may be constrained by differences in housing price dynamics across regions”; credit policies that “can facilitate the overall adjustment process…[where] for workers a well-functioning mortgage market and easy access to credit to help finance education, self-employment, or start-ups could ease adjustment”; place-based policies which “help revive economic activity in harder-hit regions…[such as] employment tax credits for firms and block grants for infrastructure investment, business assistance, training…subsidies for discretionary grant schemes to promote inward investment”; education policies “to arm individuals with the proper skills…highlight[ing] the importance of strengthening early, primary, and secondary schooling with a view to ensuring that future workers adapt well to a rapidly changing environment.”
  • Trade-specific programs designed to “retrain those who lose their jobs due to cyclical or firm-specific reasons”. The IMF, WB, and WTO note that “the effectiveness of these trade-specific programs has been mixed, and their coverage and size tends to be very small…these programs tend to suffer from the lack of workers’ awareness of their existence.”

The Joint Report usefully synthesized their menu of suggested measures in the following diagram:

What was a significantly missed opportunity from the IMF, WB, and WTO Joint Report is any discussion whatsoever of States’ obligations to ensure that they respect, protect, provide, or facilitate economic, social, and cultural rights (ESC rights) – all of which could, and should, as a matter of international law, be seen to form the core of State values that would drive any regulatory baseline of trade adjustment policies and measures.   Beyond listing a typology of possible adjustment measures based on country experiences and selected empirical studies, the Joint Report left out any reference to States’ treaty commitments under the ICESCR and related labor, environmental, cultural, social protection, and educational treaties. Instead, the rest of the Joint Report generally referred to the positive benefits of trade-related policies in “playing a role in easing adjustment” (para. 66), where “various avenues of cooperation can help to make trade stronger and more sustainable”, (para. 67).  The Joint Report noting in passing that “labor provisions have been included in certain RTAs…whether done through a trade agreement or other means, international cooperation on labor standards can take appropriate account of local conditions, without necessarily requiring that standards be identical across countries in different circumstances”, and that “a shared commitment to environmental standards can, in addition to environmental benefits themselves, help to reassure domestic firms and workers that they are not disadvantaged by strong environmental standards at home” (para. 67).

The Joint Report did not comment on the status of implementation of the WTO Decision on Trade and Environment, the WTO’s consensus on core labour standards through the International Labour Organization, the urgent implementation concerns raised by developing countries in meeting commitments under the Doha 4th Ministerial Conference, or even discuss the threshold question of the WTO’s role in trade adjustment. (As Chad Bown argued ten years ago, the WTO has yet to decide whether WTO provisions “currently create an environment that is pro-adjustment, anti-adjustment, or adjustment-neutral”).  Separate from the litany of empirical evidence summarized in the Joint Report to affirm the conventional wisdom that trade openness generally is growth-creating, however, the Joint Report lends the impression that it is ultimately just up to States to craft domestic policies as best they can to cushion the impact of ‘collateral damage’ from trade – job losses, firms going out of business, obsolescence in goods and services – resulting from lack of market competitiveness. There is no “one-size-fits-all” basket of policies, and all that the Joint Report proposes is its synthesis of trade adjustment measures culled from numerous economic and empirical studies.  In this sense, the Joint Report still appears fairly unresponsive to global currents on from populations dissatisfied with the distributional consequences of the world trade system (a matter that it scarcely devoted more than ten pages to in past reports).

But is trade adjustment truly just a matter of the State’s reserved domain of sovereignty? What the Joint Report fails to consider is that trade adjustment is not merely a matter of discretionary government policy, but should also be conceptualized as a matter of crucial implementation of international human rights law. For example, in formulating labor-market policies through active and passive labor market programs, much reflection should be taken by States of their duties and obligations in ensuring the right to work and the enjoyment of just and favourable conditions of work (International Covenant on Economic, Social, and Cultural Rights, or ICESCR Articles 6, 7, and 8). Housing policies as part of complementary trade adjustment policies also have to be seen from the prism of the State’s baseline obligations and progressive realization of the right to an adequate standard of living, including housing (ICESCR Article 11), while education policies have to be informed by State commitments on the right to compulsory primary education (ICESCR Article 14) and rights to secondary, higher, and fundamental education (ICESCR Article 13). Instead, while acknowledging the importance of “trade and trade related policies not just in promoting growth and prosperity but helping to share that prosperity more widely” (para. 81) and the “role of supporting domestic policies and prompt attention to those individuals and communities at risk of being left behind” (para. 79), the Joint Report was ultimately silent on how trade adjustment policies are to be designed in a manner that deliberately builds in State commitments to ICESCR rights protection and progressive realization.  As the Committee on Economic, Social, and Cultural Rights illustrated in I.D.G. v. Spain (Communication No. 2/2014, 13 October 2015), a State’s mortgage foreclosure enforcement procedures (itself traditionally the domain of domestic law) have to be brought in line with the ICESCR.  States’ trade adjustment, social protection, and fiscal consolidation measures are all areas where domestic policy-making should be brought in line with international law under the ICESCR and related treaties.

As I have discussed in more detail in previous work (see among others Public Policy in International Economic Law: The ICESCR in Trade, Finance, and Investment, OUP 2015), States’ distributional choices in international trade agreements are no less immune from their continuing commitments under the ICESCR (and related international labor, environmental, and lex specialis treaties) to preserve, and keep progressively realizing, their obligations to respect, protect, provide or facilitate, the ESC rights owed to their respective populations. At this juncture of the challenged international economic system – and as highlighted no less than by the IMF, WB, and WTO’s joint report – States can no longer afford to rest on the myth that trade decisions made by economic agencies are insulated from the social protection, health, education, and labor commitments that States have long since made under the ICESCR and related treaties. In this sense, the IMF, WB, and WTO Joint Report conveys at least some institutional openness on the part of these three global institutions to engage States, trade law experts, policymakers and scholars on rethinking the structure, design, and wisdom of trade adjustment policies. It is a crystal opportunity to embed the implementation of ESC rights into these policies, and not leave them as an afterthought in the international economic system.

 

Reflections on the European Committee on the Prevention of Torture’s Report on the UK

EJIL:Talk! - Fri, 04/21/2017 - 15:00

The European Committee on the Prevention of Torture (CPT), the Council of Europe monitoring body responsible for visiting places of detention in member states, recently published its report on its visit to the UK in 2016. The report was published at the request of the UK and a response is expected shortly.

The report is important in three respects. First, the report is striking in the number of concerns it raises about ill-treatment in places of detention in the UK, including inter-prisoner violence, a lack of safety in prisons, use of restraint and separation in psychiatric hospitals, solitary confinement of children and indefinite lengths of immigration detention. Second, the nature of the concerns raised in the report prompts questions on whether measures to eradicate ill-treatment are sufficient or whether in some instances the use and legitimacy of detention itself needs to be considered. Third, the report is part of a wider context of national reviews and reform and recent and forthcoming recommendations by the UN on the use, legitimacy and treatment in detention in the UK. This level of attention to detention in the UK raises interesting questions for scholars and practitioners on implementation and compliance with international human rights law and the conditions necessary to bring about change.

The Conditions and Treatment in Detention in the UK

The report should not be read as a comprehensive account of the issues in detention in the UK, particularly as the CPT is limited in the number of detention settings it visits, it only covers institutions in England and Wales, and it does not cover or go into detail on all issues (see for example the use of restraint against children which the Committee on the Rights of the Child in its report on the UK deals with in greater depth). At the same time, at 102 pages (which in and of itself is significant as CPT reports are typically 50 – 60 pages long), the report plays an important role that cannot be matched by other international bodies beyond its international equivalent, the UN Sub-Committee on the Prevention of Torture, in providing a detailed account of the conditions and treatment across different detention sites (police, prisons, psychiatric institutions and immigration detention). The report identifies a wide array of issues that need to be addressed, including some of the most serious and enduring issues on treatment in detention and makes clear that significant work is required in all detention settings.

For example, the report is hard-hitting in its assessment of the state of prisons in the UK, characterising them as ‘unsafe places for prisoners and staff alike … including severe overcrowding, poor living conditions and a lack of purposeful regimes … these long-standing problems were being exacerbated by a significant escalation in levels of violence’. The report underscores the need for ‘immediate attention be given to initiating concrete measures … to bringing prisons back under effective control of the staff, reversing the recent trends of escalating violence, self harm and self-inflicted deaths’ (para 48).

The report similarly strikes a powerful chord on the imprisonment of children. It identifies a range of ill-treatment concerns including finding that in one centre, ‘a large minority were placed on a so-called ‘separation’ list by management … These juveniles were locked up alone in their cells for 23 and a half hours per day, with only a television for company’ (para 48). The CPT finds that this is ‘effectively being held in conditions of solitary confinement’ (para 91), the use of which the Committee on the Rights of the Child has already recommended that the UK prohibit.

The report also concerns about mental health in prisons as well as treatment and safeguards in psychiatric institutions. In particular, the CPT highlights concerns about consent to treatment safeguards when detained on grounds of mental health, the need to ‘reinforce and expand’ the ‘powers of the Mental Health Tribunal … to deal with appeals concerning such issues as consent to treatment, transfers to more secure hospitals, the use of means of restraint and the application of specific treatment measures’ (para 108) and concerns over the use of restraint and separation in such institutions. These issues have not yet been addressed by an international body although bodies such as the Equality and Human Rights Commission have raised it in its submission to the Committee against Torture which will shortly examine the UK. The findings therefore play a critical role in identifying the issues concerning ill-treatment and in setting an agenda for change at the national level.

The Relationship between Treatment, the Use and Legitimacy of Detention  

In a report by a monitoring body such as the CPT, the recommendations are inevitably focused on addressing shortcomings in the conditions and treatment in detention. At the same time, at different points in the report, there are suggestions that solely focusing on improving conditions and treatment in detention may be insufficient and that the use of detention itself should also be considered.

This is most direct in the CPT’s recommendations on reduction of the levels of imprisonment. Here it makes an explicit link between ‘chronic overcrowding’ and a ‘steadily increasing prison population’ (para 49). In line with earlier recommendations by the UN Committee against Torture, which called on the UK to ‘reduce prison numbers by resorting to non-custodial measures as an alternative’, it finds that the introduction of new prisons ‘may help to temporarily alleviate certain problems’ but calls upon the UK to ‘take concrete measures and determined action to significantly reduce the current and future prison population, as a matter of priority’ (para 51).

It also arises in relation to the CPT’s comments on the reduction in the number of children in detention which it points out is important as detention should be ‘exceptional’ and reductions of ‘the number of women in prison … through a focus on alternatives to detention’ (para 30). However, its references are less developed than bodies such as the UN Committee on the Rights of the Child that has recently found that ‘[t]he number of children in custody remains high, with disproportionate representation of ethnic minority children, children in care and children with psychosocial disabilities, and detention is not always applied as a measure of last resort’.

By contrast, alternatives to detention are not raised in relation to the two forms of administrative detention (detention on grounds of mental health and immigration detention) addressed in the report, although the CPT points to increases in detention on grounds of mental health (para 107) and the indefinite length of immigration detention which positions the UK as the only state in Europe without a cap on the length of detention. This is despite movements in international human rights law (see for example, Human Rights Committee General Comment 35) towards the exceptionality of both forms of detention and the importance of the availability and consideration of alternatives within assessments of legitimacy.

The increased focus on alternatives to detention both in the criminal sphere and in administrative detention raises questions about the adequacy of existing regional and international frameworks for assessing and monitoring the relationship between treatment, detention and alternatives, which in and of themselves can raise human rights issues and therefore may also require monitoring mechanisms.

Securing Implementation in an Active Space of National, Regional and International Recommendations

Finally, the report makes frequent reference to a number of reviews and reports at the national level on different aspects of detention such as the Harris review into deaths in custody of 18 – 24 year olds; the Coates review on putting ‘education at the heart of the prison system’ (para 54); the Taylor review of the youth justice system (para 83); and the Shaw report on immigration detention (Para 179). This is in addition to recent recommendations on aspects of detention by the Committee on the Elimination of Racial Discrimination, Committee on the Rights of the Child, Human Rights Committee and forthcoming reviews of detention practices by the Human Rights Council through the Universal Periodic Review of the UK and the Committee against Torture.

On its face, the number of reports and recommendations into detention in the UK should enhance the prospects for change. Equally, the sheer quantity of recommendations and reports risks inaction or delay or the prioritisation of certain reviews and the issues they address to the exclusion of others. This is a particular risk within the current political context in which the report has been published, just before a snap election. The coinciding of national, regional and international reviews also creates the risk of a vacuum or reduced momentum for change at a later point.

It is therefore critical that a focal point is created to pull together and connect recommendations being made. This has been recommended in the Harris review and by the Joint Committee on Human Rights in relation to deaths in detention but given the range of issues across places of detention, a more comprehensive mechanism may be required. National, regional and international bodies can also facilitate assist in this regard and monitor progress by engaging with previous initiatives. In this respect, the CPT refers to national reviews throughout its report. It also demonstrates the iterative and powerful role such engagement can play in influencing and reshaping existing reform discourse. For example, on national prison reform efforts, the CPT acknowledges the introduction of £13 million of emergency funding into prisons in order enable measures such as increased staff numbers. However, it finds that while ‘a welcome first step in tackling the consequences’ these efforts ‘are insufficient to address the root causes of the prisons’ crisis’ (para 35) and points to ‘overcrowding, poor living conditions and lack of regime’ (para 36) and the need to ‘significantly reduce the current prison population’ as key pillars to effectively addressing the problem. It thus shines a light on the adequacy of existing efforts, including the Prisons and Courts Bill, to address ill-treatment in detention in the UK as well as potentially triggering new initiatives where none currently exist such as in the area of mental health in psychiatric institutions.

From the perspective of compliance with international human rights law and the implementation of recommendations of international bodies, the CPT report and the context in which it is placed provide a unique real time case study into the conditions necessary to bring about change.

Moving Trade into the 21st Century: Towards a More Inclusive Trade Agenda?

EJIL:Talk! - Fri, 04/21/2017 - 08:00

International organizations sometimes publish general reports – in addition to the usual annual versions – about their work and the future of their remit. Such reports invariably have a theme and are done when these organizations or the work they carry out has come under challenge. In 2005, on the occasion of the WTO’s so-called Sutherland report, Armin von Bogdandy and I found that:

“[a] perception of institutional crisis is pervading international organizations. One evermore fashionable response by the administration of an affected organization is to entrust a group of eminent persons to consider its future. Perhaps not surprisingly the resulting report calls for a politically feasible strengthening of that organization for which it provides good grounds.”

Early April saw the release of a – much less frequent – joint report by the World Bank, the International Monetary Fund, and the World Trade Organization, entitled Making Trade an Engine of Growth for All. The motive for the report is best interpreted as responding to a problem that is fundamental enough to warrant such an unusual step: the increasing calls for and a turn to more inward-looking economic policies. The Trump administration’s protectionist rhetoric and actions (see here, here and here) are the prime example for this development, with Brexit – despite assertions to the contrary: think Global Britain – serving as another.

The circumstances surrounding the release of the report also lead to the conclusion that it is designated to respond to the growing trend of inward-looking economic policies: it took place a) just prior to the 2017 Spring Meetings of the IMF and the World Bank Group, and b) in Berlin which the Financial Times’ Shawn Donnan called the “new capital of global free market liberalism”. The policy differences between the proponents and opponents of multilateralism are now clearly at display: Chancellor Merkel and the leaders of the IMF, the World Bank, the ILO, and the WTO have called for increasing trade policy cooperation and coordination, with the stated goal to not only curb protectionism, but also in order to reduce inequality and combat climate change. US Commerce Secretary Wilbur Ross on the other hand denied that US policies were protectionist (calling warnings of protectionism – ostensibly geared towards the US and other countries – “rubbish”).

The Trump administration policies and Brexit are the most visible manifestations of perceived political solutions to the discontent with the current globalized and interdependent economic system. The report itself recognizes that the public attitude towards trade is not as favorable as they used to be (paras 21-23). While it does not explicitly say so, it is worth noting that the three institutions have recognized that economic inequality is one of the main drivers of this discontent and that their past policies were – or at the very least were seen to be – partially responsible for this discontent.

The report touches on a number of issues, ranging from the long-term trends and benefits of trade, the interplay between trade and (domestic) adjustment (policies), to the need for a stronger rules-based trade regime. It is this last part that this post will focus on by analyzing the sometimes subtle, but important changes in direction that the report advocates as well its shortcomings.

The overall narrative of the report is such that the policies of trade liberalization championed by the three institutions since the end of WW II have resulted in a period of expansion of world trade at an “unprecedented historical pace” (para. 5). The institutions’ policies, indeed their very raison d’être, such as open markets, increased trade integration and competition, efforts to curb protectionist policies, “good governance” and fiscal discipline have come under intense scrutiny. But the report also contains remarkable language – at least for the institutions involved: it recognizes that globalization provides positive effects only where the appropriate domestic policies, including “social protection policies” (page 33), are in place so as to lead to a more equal distribution of gains.

The section entitled “Building Stronger Rules-Based Trade” (page 37 et seq.) reiterates the centrality of a strong WTO as opposed to a more fragmented trading system characterized by preferential/regional trade agreements or bilateral arrangements. By doing so, it picks up ideas put forth by Robert Hudec & John Jackson that the “power-based” GATT has been replaced by a “rules-based” WTO system. It rightly points out that a “core set of rules, a strong enforcement mechanism, and a common forum for cooperating on policy and sharing information” assists in “[reducing] overall levels of trade distortions, including conventional trade measures, subsidies, and other forms of state support” (para. 72). This echoes long-standing WTO principles: reducing tariff and non-tariff barriers (para. 69), promoting competition, “reassuring the public that international trade is evenhanded” and that “rules-based trade integration is critical to share trade benefits more widely” (para. 64). Such statements are a direct response to efforts of the Trump administration to pursue a more protectionist trade and fiscal agenda.

But beyond the orthodox ideas discussed above, the report broaches – although it may not break – new ground. It mentions new forms of services (mainly in conjunction with digitization) without however stating what reforms – beyond a need for rules to be clarified or enhanced – would be needed (para. 70). An area that is marked as a “frontier area” for trade reform is investment. The report explicitly argues for linking trade and investment more closely and for a more coherent policy approach in light of global supply chains (para. 71). The report would have benefited from further clarification of this point: should efforts be made to bring investment genuinely (beyond the TRIMS Agreement) under the purview of the WTO? The report does not provide any details about the extent to which, or how, this could happen. It does not mention a range of PTAs that have incorporated both trade and investment chapters over the last years and whether these developments were the impetus for the renewed effort of integrating trade and investment policies. In addition, there has been considerable debate about the current state of investment law in general, and investor state dispute settlement in particular (see here, here, here and here). It is also worth noting that there is considerable pushback by developing countries at the moment against recent efforts within the WTO to develop rules on investment facilitation.

Finally, the report puts forward pathways for the WTO to retain its relevancy as a negotiating forum. It proposes conducting negotiations on narrower issues similar to the Trade Facilitation Agreement or the Information Technology Agreement (para. 74). Beyond that, it recommends thinking further about a more plurilateral approach to negotiations (aka variable geometry) within the WTO, without however suggesting areas in which this may be fruitful (para. 75).

While there are a number of positive elements in the report, it contains shortcomings and omissions. The first is its economics-centered focus. While impressive, the bibliography contains only a very small number of sources that are from non-economists. Eg, the only identifiable legal academic’s work cited is one that deals with political economy rather than law. This wouldn’t be an issue – and could quite easily be shrugged off as a quibble by a member of an academic community yearning for greater recognition – if the report made suggestions of, or at least hint at, how trade and investment policies could be intertwined (never mind rules implemented); how health, the environment, and equality could be reconciled with trade or investment liberalization (para. 67 of the report is – to use the words of the Appellate Body in EC – Hormones – “not a model of clarity in drafting and communication”); what the extent of regulatory autonomy of governments should be without losing sight of a minimum degree of universality of rules; how consumer or citizen welfare can become more of a direct focus for the WTO rather than producers or exporters; or whether the structural design of the current system of international economic governance could be enhanced/reformed to contribute to achieving these goals. It is rather unfortunate – and a missed opportunity – that the report relegates the important discussion on poverty and developing countries to an annex. The five paragraphs devoted to Annex A reiterate the potential positive role of trade to assist in reducing poverty (paras 82-95, see eg para. 84: “Although causality is hard to establish, this fact pattern suggest (sic) that openness promotes poverty reduction by accelerating growth.” Emphasis in original.) and the need for sound domestic institutional arrangements (para. 86). What is missing is an acknowledgement of the obstacles developing countries are facing when trying to compete with developed country producers in eg the agricultural sector.

Both political science and legal literature are replete with discussions of these issues. Given the interdisciplinary nature of international economic relations it would be more useful in the future to include a broader set of disciplines in the formulation of such important reports. Overall, Making Trade an Engine of Growth for All is a cautious step in the right direction, away from well-trodden orthodoxy. In that sense, it serves the purpose of preserving the importance of the three institutions involved in its drafting. The report recognizes that the trade (and investment) liberalization paradigm can function for a wider swath of the global population only if cushioned by domestic policies (and even that is contested, see here). This is evidenced by statements such as “[t]rade and trade-related policies have a role to play not just in promoting growth and prosperity, but helping to share that prosperity more widely” (para. 81). But it stops short of recognizing that the institutions of global economic governance themselves have opportunities to do more to achieve greater equality.

Taking the ‘Union’ out of ‘EU’: The EU-Turkey Statement on the Syrian Refugee Crisis as an Agreement Between States under International Law

EJIL:Talk! - Thu, 04/20/2017 - 08:00

Almost one year after its conclusion, the Court of Justice of the European Union (CJEU) has eventually made clear the real nature of the ‘so-called’ EU-Turkey Statement. The ‘Statement’ is a document that was primarily aimed at preventing irregular migrants reaching the EU from Turkey, and established a resettlement mechanism based on the transfer of one vulnerable Syrian from Turkey to the EU “for every irregular Syrian being returned to Turkey from Greek islands”. The case was brought by three asylum seekers who arrived in Greece by boat and risked being returned to Turkey pursuant to this Statement if their request for asylum was rejected. They asked the Court to annul what they identified as an “agreement concluded between the European Council and the Republic of Turkey” (see CJEU, Orders of 28 February 2017, Cases NF v European Council, T‑192/16; NG v European Council, T-193/16; NM v European Council, T-257/16).

According to the CJEU, the ‘EU-Turkey’ Statement is a non-EU agreement. In fact, it is a European agreement between EU Member States and Turkey, which was made at the margin of the European Council’s meeting held in March 2016. As such, according to Article 263 of the Treaty on the Functioning of the European Union (TFEU), the CJEU lacks jurisdiction to review its legitimacy, especially in relation to the provisions set out for the conclusion of international treaties by the EU (similarly, CJEU, 30 June 1993, Parliament v Council and Commission, C-181/91 and C-248/91.).

This expected (?) conclusion (see S. Peers here) raises more questions than it answers. After a brief analysis of the CJEU’s order at least two points deserve attention. Firstly, were all aspects of the Statement duly considered in order to exclude the possibility that this is an agreement of the EU with a third country? Secondly, in light of customary international law of treaties, is a different reading of  the EU’s involvement possible? In fact, it seems that in the Orders being discussed here, the CJEU has clearly departed from the application of the customary international law of treaties. Hence, from an international law perspective, the nature and the effects of the ‘EU-Turkey’ agreement are still open to debate.

An Agreement of ‘an International Organization’ or an Agreement of its Member States?

Since the beginning of the cooperation with Turkey in the field of migration, the EU has played a role as an independent actor. As a subject of international law, in all negotiations the EU has expressed its own autonomous willingness as well as its Member States’ readiness to reach an agreement to solve the Syrian refugees ‘crisis’ and to reduce irregular migration to Europe. Not only did the EU use its international role to speed up this cooperation, it also included this new relation with Turkey in the broad context of Ankara’s path towards EU membership. Significantly, in all meetings between the EU Heads of State or Government and Turkish authorities, the discussion was focused on the “relations between the EU and the Republic of Turkey”. While special attention was afforded to the protection of the external borders “of the Union”, an active involvement of the President of the European Council was envisaged (i.e. an institution of the EU – Article 15 of the TEU – and not an organ at Member States’ disposal). Moreover, readmission of migrants not in need of international protection to Turkey was supposed to be based on the Agreement between the EU and that country signed in 2013 (OJ 2014 L 134, p. 3).

In this context, the ‘EU-Turkey’ Statement (or more correctly, the EU Member States-Turkey agreement?) was revealed to the world on the European Council’s website as Press Release No. 144/16 with the express recognition that the EU and the Republic of Turkey had decided to end irregular migration headed to the Union. Until the CJEU’s order, no doubts had emerged on the Statement as an international agreement despite its peculiar form (see here). Turkey’s counterpart seemed clear as well. Indeed, the applicants identified the Statement as an act attributable to the European Council that, in its capacity as an EU institution, bound the Union to specific international commitments in the field of migration.

As shown by the Orders, the nature of the ‘EU-Turkey’ Statement was controversial within the CJEU itself. The Court asked the European Council, the Council and the Commission whether the meeting of 18 March 2016 had led to “a written agreement” and how the obligations described in the Statement were negotiated and eventually reached. Interestingly, the European Council denied that, on that occasion, the EU concluded an agreement or a treaty as provided by Article 218 TFEU or in the sense of Article 2(1)(a) of the Vienna Convention on the Law of Treaties of 23 May 1969. It deemed the Statement to be the “fruit of an international dialogue” between Turkey and EU Member States during an “international meeting”. For the Commission, in turn, the Statement planned the adoption of “future” measures showing only a political commitment rather than generating any legally binding effect (also the EP Legal service adopted the same approach in 2016). However, for the Commission, this engagement seemed to directly involve the EU insofar as the President of the European Council and the President of the Commission took part in this political’ negotiation.                                                                                                                                                     

Taking the EU out of the EU-Turkey Statement

To reach its conclusion that the EU-Turkey Statement was not an international agreement of the EU, the CJEU relied on the need to understand whether “an EU institution sought to conclude the international agreement at issue”. However, in the attempt to identify the authors of the agreement, the Court gave an overriding weight to these purported authors’ views rather than to the Statement’s content.

From an international law perspective, in adopting such an approach the CJEU has disregarded the customary international law on the interpretation of treaties (see Article 31 of the Vienna Convention), thus failing to interpret the Statement “in accordance with the ordinary meaning to be given to [its] terms”. While the Court has already relied on these rules on other occasions (for example, CJEU, 21 December 2016, Council v Frente Polisario, C-104/16 P, at 86), the reasoning seems aimed at taking the EU out of the ‘EU-Turkey’ agreement, thus preventing the agreement being reviewed by the Court itself.

It is evident from the 18 March 2016’s Press Release No. 144/16 that the Statement is the result of a meeting between the ‘Members of the European Council’ and Turkey. After that meeting, it was ‘the EU’ that agreed a list of mutual obligations with that third country. While these expressions imply a proactive role of the Union, the European Council contrasted this evidence with a need for simplification in order that ‘the general public’ would understand the press release. However, there is nothing complex in the use of the term ‘Heads of State or Government of the EU countries’. Despite this, the CJEU was nonetheless ready to accept the inappropriateness of the language used by the EU press service to change the nature of the Statement from an agreement of the EU to an ‘indefinite’ commitment between States. At the same time, relying on some preparatory documents (e.g. the note of the ‘Working Programme of the Protocol service’ of the Directorate-General ‘Administration’ of the Council), the Court also took the European Council out of the picture. In its view, the Statement had not been decided ‘during the meeting of that institution’ but at the end of the parallel ‘international summit’ organised to discuss immigration issues with Turkey. As such, the reasoning is completed by the attempt to make a distinction between the EU Member States as a ‘group of States’ and the organisation to which they belong.

As a result, the European Council did not adopt ‘a decision to conclude an agreement with the Turkish Government in the name of the European Union’. Being irrelevant for the purpose of identifying its jurisdiction, the CJEU did not specify whether the commitments that emerged during the 2016 meeting were legally binding or not . To this end, it only stated that, “even supposing that an international agreement could have been informally concluded”, the Statement is an agreement between States.

Possible Alternative Readings?

In contrast to EU institutions’ views and following the CJEU’s supposition, several elements related to the ‘context, the object and the scope’ of the Statement support the view that, during the meeting of the 18 March 2016, an international agreement was concluded and this bound (also) the Union.

While it is well known that an international agreement may also take the form of verbal notes or a press release (see ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 1 July 1994), the Statement did not reach a general compromise on how to manage migration movements between Turkey and the EU. Neither did it postpone the negotiation of a detailed agreement in a subsequent occasion. Thus, the EU institutions’ belief that the Statement was simply a political commitment does not correspond to the nature of the obligations finally agreed. The reason lies in the Statement’s content and to the ordinary meaning of the language used therein. The Statement was indeed intended to produce legal effects for the parties thanks to the identification of a few operational points.

This is evident for the EU. In fact, these legal effects were not directed (only) at Member States as sovereign entities but also to the Union, which has been called upon expressly to implement the agreement. In other words, Member States aimed to bind the EU as the international organisation directly involved in the management of the “migratory crisis” through the European Council. It is no coincidence that, as reported by the EU Commission, in its meeting held on 15 December 2016, the European Council “reiterated its commitment” to the “EU-Turkey” Statement in order to grant its “full and non-discriminatory implementation” and “endorsed the Joint Action Plan” elaborated to this end. It is also significant, for example, that Greek authorities refer to the Statement as a different legal basis for carrying out individual returns to Turkey (in parallel with its own bilateral readmission protocol with Turkey and to the 2013 EU-Turkey readmission agreement).

Having regard to the customary international law of treaties and to the (rare) possibility that the Orders will be challenged, at least two alternative readings may be outlined.

A first possibility is connected to the effects that an international treaty produces on third parties. Firstly, even if we accept the CJEU’s analysis of the authors of the Statement, the agreed obligations involved the EU. To begin with, the Statement builds on the joint action plan that Turkey and the EU had already agreed in October 2015. All costs for implementing the agreement are covered by EU funding, i.e. one of the tools through which the Union acts as an independent and autonomous actor. In addition to the regulatory framework already in place to financing return operations, the EU is also involved on the ground through its Agencies that act in the Union’s name. Finally, the EU Commission is regularly reporting on the implementation of the Statement, showing that it produced legal biding obligations for the EU and that the Union is participating on the ground along with Member States.

As is known, under customary international law of treaties a treaty cannot ordinarily produce effects on third parties. If we accept that the Statement is an agreement between States and certainly not a trilateral international agreement (i.e. Member States-Turkey-EU) the EU was not obliged to respect the measures agreed therein. Instead, having regard to its implementation, EU institutions acted as if it was. They did in the belief that the obligations contained in the Statement bound the Union. Consequently, by adopting what may now be identified as unilateral actions, they have created at least a legitimate expectation in Turkey that the EU was legally committed to fulfil the 2016 agreement. Put this way, any (additional) public declaration aimed to accept expressly obligations contained in the Statement, in line with the prevailing international law principles on unilateral acts, might have been deemed unnecessary. As a result, the Statement may have produced legal effects on the Union. If it cannot be reviewed per se,  measures adopted to respect the obligations contained therein are acts of the EU and might nonetheless be challenged by asylum seekers.

A second possible reading is connected to the competences in the field of migration. In the attempt to involve the Union, its Members States used the European Council to reach the agreement with Turkey. Thus, instead of acting outside the European Council, the Heads of State and Government acted in their capacity as Members of an international organisation in the framework of one of its organs and adopted obligations for the same organisation outside the procedures established by the EU Treaties.

In fact, Member States “acted collectively” in the framework of the European Council because they did exercise competences that are shared with the EU. In this kind of negotiations, their involvement “as States” is necessary because readmissions and returns are dependent on their decisions, while the EU is (still) unable to implement this part of the agreement.

The CJEU disregarded this complex system of competences between the EU and its Member States. In fact, it sets a clear division in “the capacity to act” while a similar clear separation of powers in dealing with the migration “crisis” does not really exist. This aspect is evident in the Statement’s ambiguous language. If the Union was not directly involved via the European Council, there was no need for Turkey to meet all Member States. A meeting and an agreement with those Member States willing to set up specific obligations in this field would have sufficed. Hence, instead of acting outside the EU institutional framework, Member States may have used the European Council ultra vires.

Both readings show that alternative perspectives were available to the CJEU. Its formalist approach instead seems to validate a new practice followed by Member States in deciding outside the EU Treaties but for the EU itself. As a result, from now on the EU risks to be increasingly unable to exercise fully its competences because it is obliged to operate within the ‘framework’ set up in parallel by the “Heads of State and Government” of its Member States. Is the EU still a Union?

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