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Announcements: ICJ Law Clerk Vacancies; CfP Groningen Journal of International Law; iCourts & PluriCourts Summer School; CfP Asian Society of International Law; CfP AsianSIL Interest Group; Geoffrey Nice Foundation Master Class; CfS Harvard...

ejiltalk.org - Sun, 02/19/2017 - 09:00

1. ICJ Law Clerk to Judges of the Court (Associate Legal Officer) Vacancies (Multiple Positions). The International Court of Justice wishes to appoint a number of Law Clerks (P2), each of whom will provide research and other legal assistance to one of the judges of the Court.  The deadline for applications is 10 March 2017. For further information see here and here.

2. Groningen Journal of International Law Call for Papers. The Groningen Journal of International Law (GroJIL) is now receiving submissions on general topics related to international law for its Volume 5, Issue I to be published in summer 2017. The GroJIL is a not-for-profit, open access electronic journal. It is led and edited by students at the University of Groningen, the Netherlands. It seeks to advocate an outlook where legal change, rather than legal description, is at the forefront. Consequently, we particularly welcome submissions that use innovative methods and/or suggest new solutions to overcome the contemporary issues facing international law. The word limit for accepted articles is 15,000 words. If you want your article to be considered for publication in the summer 2017 issue please submit it before the deadline of 28 April 2017 at 23:59 CET by sending an email to groningenjil {at} gmail(.)com var mailNode = document.getElementById('emob-tebavatrawvy@tznvy.pbz-47'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%67%72%6F%6E%69%6E%67%65%6E%6A%69%6C%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("groningenjil {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-tebavatrawvy@tznvy.pbz-47"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For more information on the issue and GroJIL’s publishing profile, please see here.

3. iCourts and PluriCourts Summer School. The Centre of Excellence for International Courts (iCourts) and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) are hosting a high-level summer school for PhD students working on international courts in their social and political context. We particularly welcome students who are writing up a PhD thesis that involves a strong focus on methodology. The summer school will be hosted from 26 June – 30 June 2017 at iCourts, Karen Blixens Plads 16, DK-2300 Copenhagen S. The course is offered free of charge but the participants pay for expenses relating to travel and accommodation. The deadline for submission is 1 April 2017. Please use this registration form.

4. Biennial Conference of the Asian Society of International Law Call for Papers. The 6th Biennial Conference of the Asian Society of International Law will take place in Seoul, Korea, from Friday 25 to Saturday 26 August 2017. The conference will be hosted by the Korean Chapter of the Asian Society of International Law, together with the Ministry of Foreign Affairs of the Republic of Korea. The theme of the conference is “Asia and International Law in Times of Uncertainty”. The conference will comprise an opening session, two plenary sessions featuring invited speakers, 25 parallel sessions (see the programme of the conference) and a closing session. The biennial conference will be preceded by a half-day workshop for junior scholars on Thursday, 24 August. The conference programme can be seen here. See the call for papers and here for more details.

5. AsianSIL Interest Group on International Law in Domestic Courts, Call for Papers. The Asian Society of International Law’s Interest Group on International Law in Domestic Courts has issued a call for papers for a workshop to be held on 24 August 2017 at Yonsei University in Seoul. The workshop will be held on the occasion of the Sixth Biennial Conference of the Asian Society of International Law. A half-day workshop addresses the ways Asian courts invoke, interpret and apply international law. Interested researchers and practitioners should send a 500-word abstract and a short bio to the convenors of the Interest Group. The deadline is 23 April 2017. More information is available here.

6. Geoffrey Nice Foundation Master Class. Geoffrey Nice Foundation is organizing its fourth Master Class on Law, History, Politics and Society in the Context of Mass Atrocities, entitled: Law and Politics of Terrorism – In Search of Adequate Political, Military and Legal Responses to the Threat of Terrorism in the post-Cold War Era. The Master Class will deal with existing definitions of terrorism and will contrast them with other forms of political violence and warfare. It is devised for MA, PhD and Post-PhD students in the fields of Law, History, Sociology, Politics, International Relations, Journalism, European Studies or related subjects and will take place from 03 to 14 July 2017 at the Inter-University Centre (IUC) in Dubrovnik, Croatia. Please apply to: geoffreynicefoundation {at} gmail(.)com var mailNode = document.getElementById('emob-trbsserlavprsbhaqngvba@tznvy.pbz-56'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%67%65%6F%66%66%72%65%79%6E%69%63%65%66%6F%75%6E%64%61%74%69%6F%6E%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("geoffreynicefoundation {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-trbsserlavprsbhaqngvba@tznvy.pbz-56"); mailNode.parentNode.replaceChild(linkNode, mailNode); . Application deadline is 18 March 2017.

7. Harvard International Law J​ournal Call for Submissions. The ​Harvard International Law J​ournal is now accepting article submissions for Volume 59, Issue 1. ​The ​ ​Journal seeks to publish innovative, original scholarship that makes a significant contribution to the field of international law. It welcomes submissions from legal scholars, practitioners, and doctoral degree candidates on topics of private or public international law and related fields, including interdisciplinary work. (For information about student submissions, visit our ​website​.) Articles of up to 30,000 words may be accepted, but submissions of between 15,000 and 25,000 words, including footnotes, are preferred. All articles should be typed in English with text double-spaced. Manuscripts ​must ​be submitted online via ​ExpressO​. In addition to the article, submissions should include a short abstract, a CV with a list of recent publications, and current contact information. Articles will be reviewed on a rolling basis in February and March. Please contact ​iljsubmissions {at} mail.law.harvard(.)edu var mailNode = document.getElementById('emob-vywfhozvffvbaf@znvy.ynj.uneineq.rqh-94'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%6C%6A%73%75%62%6D%69%73%73%69%6F%6E%73%40%6D%61%69%6C%2E%6C%61%77%2E%68%61%72%76%61%72%64%2E%65%64%75"); tNode = document.createTextNode("iljsubmissions {at} mail.law.harvard(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vywfhozvffvbaf@znvy.ynj.uneineq.rqh-94"); mailNode.parentNode.replaceChild(linkNode, mailNode); ​ with questions or to request an expedited review. For more information see here.

8. Rights! Call for Papers: Human Rights, the Environment, and Climate Change. We are looking for academics, activists and practitioners working in the fields of human rights, environmental protection and climate justice, who are interested in contributing a post on Rights!. We welcome a variety of approaches, including legal, political, institutional and social analysis. We especially welcome contributions that offer a practical perspective on the links between human rights, the environment and climate change. The following is a non-exhaustive list of possible topics: the effects of climate change on the enjoyment of human rights; climate change-induced migration; the role of the UN Human Rights Council and other international institutions in the field of human rights and climate change; environmental vulnerability and poverty; human rights obligations and environmental law; environmental activism; indigenous rights and natural resources; the right to a healthy environment; and, CSR, business and the environment. 1500 words maximum. The deadline for submissions is 28 February 2017. Queries and submissions should be sent, with a short bio, to contact {at} rightsblog(.)net var mailNode = document.getElementById('emob-pbagnpg@evtugfoybt.arg-48'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%6F%6E%74%61%63%74%40%72%69%67%68%74%73%62%6C%6F%67%2E%6E%65%74"); tNode = document.createTextNode("contact {at} rightsblog(.)net"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pbagnpg@evtugfoybt.arg-48"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For more information see here.

Post-Election Crisis in The Gambia, the Security Council and the Threat of the Use of Force

ejiltalk.org - Fri, 02/17/2017 - 09:00

The Gambian post-election crisis is a gem amongst cases relevant to the law on ius ad bellum – not only because it is a crisis that has been resolved with almost no bloodshed, but also because it offers valuable insights into the interaction between Security Council authorization, the doctrine of intervention by invitation, and the prohibition on the threat to use of force (see for some analysis here, here, here, or here).

Professor Hallo de Wolf has concluded that “the legality of the ECOWAS’ military intervention is dubious”. His analysis primarily focuses on the question of legality of the ECOWAS’ intervention after the inauguration of The Gambia’s new president, Adama Barrow. However, his conclusion may be challenged if one is to read Security Council resolution 2337 (2017) as a non-prohibitive non-authorization, which indirectly opens and strengthens the alternative avenue of the doctrine of intervention by invitation . Elsewhere, I have evaluated this interpretation against State practice and the Council’s resolutions in the Syrian and Yemeni incidents and concluded that the consent of the new president, Barrow, may suffice to justify the military intervention in The Gambia.

If one is ready to follow this line of thought, a question arises as to the effect of the consent; what conduct is justified by the invitation? The post-election crisis in The Gambia, for which the course of events may be recalled here or here, entails temporal complications in this respect. The crisis can be divided in three phases: (1) pre- inauguration (Jammeh’s clinging to power up until the inauguration, and end of the ECOWAS’ ultimatum, 19 January 2017); (2) the time between passage of the ultimatum and official inauguration; (3) post- inauguration. The present post shall primarily focus on the phase leading up to the military intervention.

It is generally acknowledged that the consent of the government of a State can legalise the use of force by another State on its territory, since such force does not constitute inter-State force falling within the scope of the prohibition in Article 2(4).

Furthermore, it is widely accepted that this invitation must be issued in advance, or at the time of, the intervention (Corten, The Law Against War, 267) and that consent will not have retroactive effect. Accordingly, intervention after inauguration (3 above) would come within the ambit of President Barrow’s request for military assistance. This was the view taken by the United Kingdom and Russia. The non-retroactiveness of the consent renders the legal basis for conduct undertaken between passage of the ECOWAS ultimatum and inauguration (2 above) unclear. The inability to rely upon the invitation as a legal basis may explain ECOWAS’ decision to halt military operations and instead act within the spirit of resolution 2337 (2017), resorting first to diplomacy and awaiting a clear authorization from President Barrow.

“Insisting” on Transition of Power

The entire “political” pressure by the ECOWAS including its call for a transition of power (pre-inauguration 1 above), heralded by the Security Council (Res 2337 (2017) para 4), however may be exposed to the criticism of being an illegal threat of force in violation of Article 2(4) UN Charter and the customary international law prohibition.

It is worth to shortly recall the facts. The African Union (AU), the UNOWAS, and the ECOWAS all issued similar statements, leaving no doubt that from January 19, 2016, Barrow would be recognized as the legitimate leader of The Gambia. On December 12, 2016, the AU was even more direct and increased the pressure, announcing to undertake “all necessary measures” to ensure respect for the will of the Gambian people. On December 17, 2016, the ECOWAS followed with a similar announcement. Shortly thereafter, it declared that it would send troops to The Gambia should Jammeh continue clinging to power: “If he is not going, we have stand-by forces already alerted and these stand-by forces have to be able to intervene to restore the people’s wish”. These strong words were followed by strong actions. Within days, ECOWAS’ members had massed a total of 7,000 troops, outnumbering the entire Gambian military, at the border surrounding The Gambia by land, sea, and air.

An Ex Post Facto Authorization in Resolution 2337 (2017)?

A legal basis for the ECOWAS’ and AU’s behavior prior to the ultimatum is not easily identified. No express Security Council authorization existed, allowing the ECOWAS, the AU, or the member States to threaten The Gambia, and accordingly rendering the question moot whether this behavior is prohibited under Article 2(4) UN Charter. It is also difficult to argue that resolution 2337 (2017) constitutes a retroactive authorization. It is true that the Security Council “welcomes the decisions” (para 4) of the ECOWAS and AU, in which they for the first time announce to “use all necessary means” to enforce the election results. Without need to revisit the debate on ex post facto authorizations by the Security Council, the language may remind of that used in the resolutions regarding ECOMOG’s intervention in Liberia in 1990 and ECOWAS’ intervention in Sierra Leone in 1997, which prompted much scholarly discussion. However, as the ICJ held in its Namibia Advisory Opinion (para 114), the language of the resolution is not the only factor for determining a resolution’s legal consequences. Rather “the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council” should be taken into account. Hence, it is important to bear in mind that the Security Council did not enact resolution 2337 (2017) under Chapter VII or VIII of the UN Charter. Bolivia did not “feel that at this stage the situation poses a threat to international peace and security”, indicating that the resolution cannot be read as a direct authorization in any case. Uruguay also stated that any “such authorization must be express, affirmative and prior” (emphasis added).

A Justifiable Threat to Use Force?

Accordingly, all comes down to the question whether the ECOWAS’ behavior falls under the prohibition of the threat of force, as laid down in Article 2(4) UN Charter. Pursuant to the ICJ’s jurisprudence, this presupposes two prerequisites: first, the State’s behavior must constitute a threat. Second, the envisaged use of force must be illegal.

The first prerequisite, a threat of force, does not cause fundamental problems. A threat need not to be explicit; the ICJ in the Corfu Chanel Case has also considered “a demonstration of force for the purpose of exercising political pressure” sufficient (p 35). All surrounding circumstances of the behavior may be taken into account (Case Concerning Military and Paramilitary Activities in and against Nicaragua, para 227). However, as the Independent International Fact Finding Commission on the Conflict of Georgia has stressed, it is required that “the use of force is sufficiently alluded to and that it is made clear that it may be put to use” (233). The threat must be credible (Nuclear Weapons Advisory Opinion, para 48). ECOWAS’, the AU’s and the relevant State official’s behavior did not leave any doubts about their willingness to resort to force to ensure respect for the Gambian people’s will, once the ultimatum would pass. Going beyond any routine missions, they positioned troops at the border, ready to roll in at any point after the ultimatum had passed.

More difficulties arise with respect to the second precondition, which the ICJ described in the Nuclear Weapons Advisory Opinion as following and which is worth recalling in its entirety:

Whether a signalled intention to use force if certain events occur is or is not a ‘threat’ within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be unlawful for a State to threaten force to secure territory from another State, or to cause it to follow or not to follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal—for whatever reason—the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State—whether or not it defended the policy of deterrence—suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. (para 47)

As noted above, a justification for the envisaged use of force by ECOWAS and Senegal may be reasonably argued when relying on an invitation eventually issued by the eventually incoming president Barrow. Yet, it is important to bear in mind that this justification is based on future, uncertain conditions. It is true that given the political circumstances, it was likely that Barrow would be instituted as president, and that he would issue an invitation to assume power. ECOWAS and AU might reasonably have anticipated all of this. But still, it was only likely. At the time of imposing the threat, it was impossible to know whether the eventual use of force would be justified or not. Accordingly, The Gambia Crisis illustrates what Sir Michael Wood has described as “practical difficulties with the approach of the ICJ” (para 10). Put more, the Crisis raises questions on the relationship between the prohibition of the threat or use of force and the doctrine of intervention by invitation. And the debate on the issue of consent a priori, discussed by Professor Hallo de Wolf, adds an extra complicating twist.

It is interesting to note that the AU and the ECOWAS chose different avenues to threaten, with the AU taking a more careful approach. The AU seemed to threaten under the condition that it could do so legally, having in mind the ICJ’s formula that the envisaged use of force must be in accordance with international law: “Stresses the determination of the AU to take all necessary measures, in line with the relevant AU Instruments, with a view to ensuring full respect and compliance with the will and desire expressed by the people of The Gambia on 1 December 2016.” Meanwhile, the ECOWAS seemed not to have included a backdoor, but instead determined to use force in any event. It decided: “The Authority shall take all necessary measures to strictly enforce the results of the 1st December 2016 elections.“ In any event, neither the Security Council, nor the international community (see, e.g., USA) seemed to find this behavior objectionable – unfortunately without further explanation. While this is politically comprehensible, it is legally questionable. Without detailed States’ explanations for their conclusion, the precedential value of The Gambia conflict remains speculative. Yet, the Gambian crisis illustrates the need to devote further thought to the prohibition on the threat of force.

 

The Use of Force to (Re-)Establish Democracies: Lessons from The Gambia

ejiltalk.org - Thu, 02/16/2017 - 09:00

It has been almost a month since predominantly Senegalese troops entered The Gambia as part of an ECOWAS intervention after long-term president Yahya Jammeh had refused to accept the results of the December 2016 elections. ECOWAS troops remain in the country until this day in order to support newly-elected president, Adama Barrow, in establishing and maintaining public order.

The case has been widely discussed as it raises a number of questions concerning the use of force in general, the right to intervention by invitation and authorizations by regional organizations (see here, here, or here). In particular, it shows that, if the circumstances admit it, the international community is more than willing to accept the use of force to establish or re-establish democracies. The following post will focus on this debate and briefly describe how it evolved until this very day.

Revisiting an Old Debate: Reisman vs. Schachter

The debate on the possibility to use force can be traced back to W Michael Reisman’s editorial comment “Coercion and Self-Determination: Construing Charter Article 2(4)” in the 1984 American Journal of International Law. Reisman argued that, since the UN Charter’s prohibition on the use of force “was never an independent ethical imperative of pacifism” but closely tied to the functioning of the collective security system (which he described as having fallen into desuetude), one had to look for a different framework on the use of force: His seemingly simple Gretchenfrage was whether force enhanced self-determination of the affected people(s) or not, thereby radically re-interpreting Article 2(4).

On this basis, Reisman essentially argued both in favour of outright pro-democratic regime change (a right to establish democracies) and a right to re-establish democracies after non-democratic overthrows. In so doing, Reisman laid bare one of the contradictions of the UN Charter’s prohibition on the use of force: In case of a coup d’état, an illegitimate group (e.g. a military junta) could gain control of the government and subsequently hold on to its power on the basis of foreign support without violating article 2(4) and against the will of the affected people. At the same time, a foreign intervention to re-establish the (perhaps democratic) status quo ante would require an authorization by the Security Council (which was not to be expected back in 1984), or have to be based on the right to self-defence to be lawful. As Reisman put it, this was a “rape of common sense.”

Oscar Schachter, writing in the same AJIL issue, wholeheartedly rejected Reisman’s argument in favour of Regime Change as an “Orwellian” interpretation of Article 2(4):

This is surely not the time for international lawyers to weaken the principal normative restraint against the use of force. The world will not be made safe for democracy through new wars or invasions of the weak by the strong.

At the same time, however, Schachter did “strongly agree” with the critique on external support for oppressive regimes and refused to challenge Reisman’s argument on the possibility of using force to re-establish democracies.

The “Emerging Right to Democracy” and Restoring Democracies by Force

Much has happened since then. The end of the Cold War has brought an end to the deadlock in the Security Council and led Thomas M Franck to pronounce his thesis on an “emerging right to democracy.” Back in 1991, in a case similar to the scenario described by Reisman, the Security Council refused to recognize the military junta ousting the democratically-elected president of Haiti Bertrand Aristide and ultimately even decided to authorize a military operation to bring him back to power.

Some three years later, the second historic precedent for a right to re-establish democracy was created when ECOWAS troops already present in Sierra-Leone forcibly reinstated the country’s first democratically-elected Ahmed Tejan Kabbah after the May 25 Coup d’état (for further reading, see the excellent article by Nowrot and Schabacker). While there was no authorization for this action, the Security Council condemned the overthrow, demanded that the military junta should step down in favour of Kabbah’s government, and subsequently welcomed “the fact that the rule of the military junta has been brought to an end”. While the lawfulness of the use of force by regional organizations absent a Security Council authorization is commonly rejected, some understand this presidential statement as an ex post justification. Then-Secretary General Kofi Annan, referring to Sierra-Leone, also made it clear that:

[i]ncreasingly across the world, it has become an established norm that military coups by self-appointed juntas against democratically-elected governments are simply not acceptable.

The last example to be mentioned at this point is the 2011 crisis in Cote d’Ivoire, where the Security Council urged “all the Ivorian parties and other stakeholders — including the security forces — to respect the will of the people and the election of Alassane Ouattara as President of Côte d’Ivoire” – yet another clear indication of the Security Council’s readiness to take sides in favour of a democratically-elected head of state.

Enter The Gambia

Security Council Resolution 2337 on The Gambia bears a striking resemblance to this formulation, as it:

[u]rges all Gambian parties and stakeholders to respect the will of the people and the outcome of the election which recognized Adama Barrow as President-elect of The Gambia and representative of the freely expressed voice of the Gambian people as proclaimed by the Independent Electoral Commission.

The Gambia stands somewhat between pro-democratic regime change and re-establishing democracies. There was no democracy to be re-established in the first place, since Barrow had never assumed his office effectively. What happened can thus be described as a combination of what happened in Haiti, Sierra Leone, and Cote d’Ivoire.

On the one hand, the presidency of Adama Barrow was inter alia secured and consolidated by foreign forces outside the country. On the other, the legal basis for ECOWAS’ intervention was not an ex ante or ex post authorization by the Security Council but, the request for military assistance by Adama Barrow who had been sworn-in just hours before outside of the territory of The Gambia. A passage including the famous “all necessary means” formula had been dropped upon the request of Egypt, Russia, and Bolivia. Nevertheless, the United Kingdom and Russia made it clear that Barrow, may request military assistance if diplomatic means of dispute settlements fail. (On a side note, one should also mind the stark contrast to the international community’s condemnation of the 1989 US invasion in Panama, which was also based on the invitation of an elected, but not yet sworn-in president (Guillermo Endara)).The Security Council thus merely expressed “its full support to the ECOWAS in its commitment to ensure, by political means first, the respect of the will of the people of The Gambia.”

The Right to Re-Establish Democracies has one More Textbook Case

Needless to say, the significance of the international community’s reaction in The Gambia and the other above-mentioned cases should not be exaggerated. As these were rather isolated events, it is difficult to distil clear and uniform practice on the “right to democracy”-thesis in general and the use of force to establish or restore democracies in particular. What happened in The Gambia is not part of a larger international trend. Nevertheless, it shows that – if the circumstances warrant it, the international community, first and foremost the Security Council, is willing to act as an advocate for forcible democracy promotion.

The African Union’s Collective Withdrawal from the ICC: Does Bad Law make for Good Politics?

ejiltalk.org - Wed, 02/15/2017 - 09:00

A number of news outlets reported last week that the African Union (AU) had adopted a strategy for collective withdrawal from the International Criminal Court (ICC) (see here, here and here). This follows withdrawals by three African states late last year, which in turn generated much debate at last November’s Assembly of States Parties and yet more calls for a re-assessment of the relationship between Africa and the Court. Although the prospect of collective withdrawal has been in the works for some time, what emerged from last week’s AU summit appears to be a politically benign and legally confused form of collective resistance. Despite the alarmist headlines, the withdrawal strategy may symbolize the high-water mark of AU opposition to the ICC.

Africa v. the ICC

The conflict between the ICC and the AU has been in the news for many years. It is hard to keep track of all the denunciations, threats and accusations that various African state representatives have leveled at the Hague-based court and yet, even by these standards, the year 2016 seemed to mark a nadir in the ICC-Africa relationship. In January, the AU requested the open-ended committee of Ministers of Foreign Affairs to develop ‘a comprehensive strategy’ for ‘collective withdrawal’, which would serve as guidance to African states wishing to re-assess their relationship to the ICC. After an inconclusive mid-year summit in Kigali in July 2016, where a few African states expressed doubts about withdrawal, the international justice community experienced something of a rude awakening when three states withdrew from the Rome Statute in quick succession. Burundi went first, followed by South Africa and the Gambia. While the precise trigger for their sudden departures in October 2016 remains a mystery, the taboo of treaty withdrawal had been shattered and a re-assessment of the ICC-Africa relationship acquired renewed urgency.

Withdrawal

Against this backdrop, the AU held its bi-annual summit in Addis Ababa from 22 to 31 January 2017. Like in previous years, international criminal justice received much attention, leading to another AU decision on the ICC (the final text is available here, despite the ‘draft’ heading). Unlike in previous years, the AU decision included the following paragraph: “Adopts the ICC withdrawal strategy along with its Annexes, and calls on member states to consider implementing its recommendations” (para. 8).

Not surprisingly, this provision produced a media frenzy, with several news agencies reporting (incorrectly) that the AU was bidding a final farewell to the ICC. A closer look at the actual text of the withdrawal strategy (the final text is available here, despite the ‘draft’ heading) tells a more nuanced story. In fact, it is clear from this document that it is the AU that has withdrawn, so to speak, from some of the more sweeping normative claims in favor of a ‘mass African exodus’ from the ICC. Instead of a collective action plan, the AU strategy repeatedly affirms that withdrawal is a ‘sovereign exercise’ that ‘has to be executed’ in accordance with the ‘constitutional provisions of individual African states’ (paras 8-10). In the most legally significant passage, the document cites the Vienna Convention on the Law of Treaties before concluding that “[t]he proposed AU withdrawal from the Rome Statute can be implemented on a state by state basis by using Article 127 of the Statute”.

This is followed by a detailed analysis of Article 127, its requirements and implications for African states, as well as a less known provision of the Rome Statute, Article 121 (6), which allows immediate withdrawal in case of an amendment to the ICC’s founding treaty. In a move that is sure to quell fears about possible AU obstructionism, the strategy document clarifies that withdrawing African states must abide by ‘the conditions for withdrawal’, in particular ‘ongoing obligations’ to cooperate with the ICC ‘in connection with ongoing criminal investigations and proceedings’ (para 17-18). This is welcome news given the ICC’s preliminary examination in Burundi, where the government’s unwillingness to cooperate with the Hague-based court remains a serious concern.

On the most contentious issue, that of collective withdrawal, the AU strategy is circumspect. Relying on Laurence Helfer’s work on treaty termination, the document notes some advantages of undertaking collective action as a means of exerting leverage over international institutions before conceding that “even where states have banded together to propose different legal alternatives to the dominant regimes, they have done so unilaterally…” (para. 20). On the key legal question, the AU strategy states merely that “[f]urther research on the idea of collective withdrawal, a concept that has not yet been recognized by international law, is required in order to seek out additional guidance regarding the potential emergence of a new norm of customary international law.” (para. 21). The document then lays out what it calls the actual (withdrawal) strategy, consisting of political proposals (essentially lobbying a variety of international criminal justice actors) and legal proposals (amendments of the Rome Statute, Security Council reform, recruitment of African staff to the ICC, capacity building and ratification of the Malabo Protocol).

What is Collective Withdrawal?

While the AU strategy is nominally about collective withdrawal, the legal analysis of this concept seems oddly off topic. The AU seems to be pondering whether there is an (emerging) customary international rule that allows or prohibits collective withdrawal, yet it is hard to understand from the strategy what this actually means. If every African state that is also an ICC state party individually follows the AU’s call for withdrawal, pursuant to Article 127 of the Rome Statute, then what customary norm would allow or prevent African states to withdraw all at once? The Rome Statute expressly permits withdrawal, so customary international law and the Vienna Convention’s subsidiary rules on treaty termination are not of relevance if Article 127 of the Rome Statute is respected. As for the timing (coordinated or not) of withdrawal, this is a (purely political) question of collective action, on which customary international law has no bearing.

The legal question that the AU withdrawal strategy unavoidably prompts is whether the AU has the legal authority to obligate its member states to collectively leave the ICC. In other words, may the AU obligate member states to do something that is usually within their domaine réservé, such as acceding to or withdrawing from treaties? This question has obvious parallels with the AU’s repeated calls to ignore the ICC’s requests for arrest and surrender of Omar Al-Bashir, which has had significant legal and political consequences for a number of AU member states, including Chad, Malawi, the Democratic Republic of Congo, South Africa and Uganda. Importantly, however, there are also significant differences between the two issues, since in the Al-Bashir case the AU is calling on its member states to respect a pre-existing (so says the AU) customary international law norm on Head of state immunity. By contrast, in the case of collective withdrawal, the AU would be requiring states to take what appears to be an eminently political decision – treaty membership and, by extension, membership of an international organization.

Can an international organization oblige states to adhere to or, conversely, withdraw from a treaty/international organization? From a strictly legal perspective, this question is not without precedent, even if the political stakes and optics of leaving the ICC make this example exceptionally controversial. As is well known, the UN Security Council can require member states to take a wide range of measures relating to peace and security. The Security Council has adopted several Chapter VII resolutions requiring North Korea to return (‘retract withdrawal’) to the Treaty on Non-Proliferation of Nuclear Weapons (see e.g. UNSC Res 1718 (2006), para 3). The European Union also has wide-ranging powers over its member states, although – to the best of my knowledge – there is no precedent relating to compulsory treaty accession or withdrawal. The 2001 EU Common Position on the ICC stopped short of imposing a ratification obligation, and the EU’s Cotonou Agreement, which famously requires parties to “seek to take steps towards ratifying and implementing the Rome Statute and related instruments” (art. 11), applies to non-EU states.

So does this suggest that the AU may have legal authority to bind its member states to a decision requiring withdrawal from the Rome Statute? Put differently, may 2/3 of the AU Assembly, pursuant to Article 7 (1) of the AU Constitutive Act, decide that all African ICC states parties must withdraw? This post is not the place to resolve such a complex legal question, suffice it to say that the situation is unclear because the scope of AU authority and the status of its decisions are contested (for instance, the AU Constitutive Act does not contain a provision like Article 25 of the UN Charter, see here for some background, p. 11-15). In any case, if it exists, the AU’s power to mandate collective withdrawal would be anchored in, and require a detailed examination of, the law of international organizations, in particular the AU Constitutive Act, rather than customary international law as suggested by the AU strategy.

Law, Politics and Withdrawal

The AU withdrawal strategy is a strategic mix of law and politics, which will surprise no one studying the ICC vs. Africa debate, and especially the case against Omar Al-Bashir where the AU has made strategic use of legal arguments to reframe the political rhetoric surrounding ICC intervention on the continent. This probably explains why the AU chose to avoid the most contentious legal issue, focusing instead on mobilizing political action. In is withdrawal strategy, the AU even appears to concede that withdrawal is a bargaining chip that African states can deploy if other ‘outcomes’ are not achieved (para. 9, see also para. 19).

Whether this collective bargaining strategy will yield any political benefit is still unknown. Nigeria, Senegal, and Cape Verde entered formal reservations to the AU’s decision and Liberia entered a reservation to the paragraph that adopts the ICC withdrawal strategy. Four other states requested more time to study the strategy. This is hardly a show of disunity (it implies 47 other states either agree or do not openly disapprove), but it does suggest that organizing a mass African exodus from the ICC will not be without its challenges. With the Gambia announcing its intention to reverse its withdrawal from the ICC and Namibia declaring that it, in turn, would withdraw because it “supported the principled position of other African leaders for a collective withdrawal”, the most that can be said about this fast moving situation is that it will continue to absorb the international community’s attention.

Celebrating Professor Sir Elihu Lauterpacht CBE QC LLD, 13 July1928–8 February 2017: When Death Becomes Really Personal

ejiltalk.org - Tue, 02/14/2017 - 08:45

I had just returned from work on 9 February when I received a text message from my good friend and colleague Jean d’Aspremont. He asked if I had heard the “sad news about Eli Lauterpacht”. Jean did not need to be explicit. I knew that Eli had been ill for some time. I knew that Jean was telling me that Eli had died. I disregarded my plans for dinner and poured myself a serious whisky to start to toast Eli, and to recall my fond memories of him–the man, the mentor, the teacher. Because Eli was a man who deserves to be toasted. A man to be celebrated for so many reasons. A man well worth remembering, professionally and personally, but above all else with affection.

But let us start with the basic professional biography: the only child of Rachel and Hersch Lauterpacht, he was born in London in 1928. Educated at various private schools in the UK and USA, he became a student at Trinity College, Cambridge, in 1945, initially reading history before switching to law, completing the undergraduate law tripos in 1949, and then the postgraduate LLB and his bar exams in 1950, when he was also awarded the Whewell Scholarship. He was called to the bar in Gray’s Inn in 1950, where he became a bencher in 1983. He was awarded a CBE in1989, and knighted in 1998. Despite the demands of his busy practice, he retained a serious foot in academia. He initially taught part-time at both the LSE and Cambridge, but in 1953 he returned to Cambridge to lecture in law. He was appointed as Reader in 1981, established the Research Centre in International Law in 1983, which he directed until 1995, and became a Honorary Professor in 1994. These are brief bones of a busy life lived long and well. The Cambridge Eminent Scholars Archive contains a more detailed biography, transcripts of interviews with Eli, as well as photographs and the video of a lecture, International Law: Reflections and Recollections, which he delivered in 2012 at the Research Centre, which by then had been renamed the Lauterpacht Research Centre in honour of both Eli and his father.

The father and son were very different lawyers: while both were manifestly talented, Eli maintained a much closer focus on practice and advocacy in the application of international law in contrast to his father’s more academic and conceptual concerns. This is not to deny that Eli has left a lasting academic legacy: from a classic early work on munitions de guerre (32 British Yearbook 218 (1955-56)), through perceptive lectures in 1976 at the Hague Academy on international organisations whose title, “The Development of the Law of International Organisations By International Courts”, echoed that of one of his father’s most influential monographs, to analyses of international arbitration later in his career. But these only scratch the surface of his contribution to scholarship. In, I think, the early 1990s, he founded the Grotius Press which specialised in the publication of prestigious works in international law: the press and its catalogue were subsequently acquired by Cambridge University Press. For decades, since 1961, he was the editor of International Law Reports, subsequently sharing this task with Christopher Greenwood; they were later joined by Karen Lee as co-editor. Eli also edited his father’s collected papers, bringing together his published articles as well as some unpublished work into a five volume collection.   This was rather a protracted process: the first four volumes appeared between 1970 and 1978. Then there was an interregnum, as the final and fifth volume was eventually published only in 2004. All the time he was my doctoral supervisor, and for many years thereafter, he kept on telling me that he had to finish editing the final volume on disputes, war, and neutrality, and he did so in the end, despite the exigencies of his extensive practice. Another prolonged project, which was very dear to his heart, was the biography of his father, again plotted and talked about for years, and finally published in 2010. Eli adored his father, and this is apparent in the biography: it is a work of filial piety. While honestly recounting his father’s life and achievements factually, I think that Eli lacked the detachment necessary to give a rounded assessment of his contribution to the discipline. But who should criticise the remembrances of a loving son? It was Eli being Eli, the man who was so devoted to his family: his wife Catherine, his parents, his children and, in more recent years, his grandchildren.

I first met Eli when I went to Cambridge to study for my master’s degree. My undergraduate degree was from Edinburgh, where I had specialised in international law and legal philosophy. My professor of jurisprudence, Neil MacCormick, had eased me out of further studies in Edinburgh, saying that I should go elsewhere to be exposed to different opinions. I suspect that having taught me for three years, Neil wanted to see the back of me. My professor of international law, Iain MacGibbon, directed me to Cambridge. Iain had been one of Hersch Lauterpacht’s doctoral students in the 1950s, a time when doctoral students in law were few and far between, and I went with Iain’s injunction “to say ‘hello’ to Eli from me”. I finally did so at the Christmas party Eli and Catherine held at their house that first year I spent in Cambridge. And Eli being Eli, we all drank champagne. Lots of champagne. Eli loved living well: in later years he would encourage me to help him break his diet, which I knew would get me into trouble with Catherine if she ever found out, but I could never refuse Eli. It often involved chocolate in one form or another.

Eli was an engaging teacher; his advocacy skills were well in evidence and he could enthral a class. His legal practice bled into his teaching: every so often he would tell what me and my pals called “Eli’s war stories”—reflective accounts of cases in which he had appeared as counsel. These brought life and immediacy to doctrinal analysis, but also raised questions about the nature of international litigation that I decided I wanted to pursue.

I was a very lucky young man. After my masters degree, Eli became one of my PhD supervisors, and Philip Allott the other. That was an unusual arrangement at that time when there was usually only one supervisor, but my research was bridging between the practice of the International Court and theories of legal reasoning and so, I suspect, it was thought that I needed a practitioner and a theorist to keep me in hand. I could not have hoped for better supervisors.

Eli never gave me anything but good advice throughout my PhD studies—one of the first things he said to me was that I had to read every case the Permanent and International Court had decided, recalling that when he was younger, he had pulled out a card table and done so himself. That must have been early in his career, as all my supervisions with Eli were held at his home, in his study which was an annex to his house. A spacious and comfortable study, filled floor to ceiling with books and papers, which I coveted then, and still do. At times, however, I think that the course of my research perplexed Eli to some extent. At one point, he asked me if I wanted to be a lawyer or a logician, which mystified me, because I thought he had asked me if I wanted to be a lawyer or a magician. At times my hearing is not so good.

I also remember that during one meeting, just after I had started working with him on my PhD, that a device started ringing in a room outside his study. “Iain”, he said, “Iain, come and see this”. It was an early fax machine—“Look, I am being sent a document from New York”. He said that with wonder in his eyes and, to be honest, I was pretty impressed myself. It was a while ago, long long before the internet and email.

Eli was a committed teacher: he did not see teaching as a distraction from, or impediment to, other work. He relished it as complementary and worthwhile in its own right. Once, miming withdrawing a sabre from its sheath, he told me always to remember that teaching keeps your mind sharp. He enjoyed the company of youth. In 2011, 20 Essex Street Chambers and the British Institute of International and Comparative Law combined forces to hold a seminar celebrating Eli’s 60 years in international law (here and video). I left that seminar late that night, saying good night to Eli who was still holding court, surrounded by a gaggle of young lawyers. They were all laughing and hanging on his every word. It was a characteristic scene. A picture of Eli’s generosity and openness to lawyers at the start of their careers, effortlessly carried off with the assurance and enjoyment of the affable and gregarious man that he was.

I have been privileged because my PhD supervisors, Eli and Philip, and I, have maintained an amicable relationship through so many years. And now one of them is gone. A light, a guiding shining light, has gone out in my life.

Editor’s Note: Readers can also find obituaries of Sir Eli Lauterpacht in the Independent  and in the Guardian, written by Sir Daniel Bethlehem KCMG QC and Professor Philippe Sands QC respectively.

Flexing Muscles (Yet Again): The Russian Constitutional Court’s Defiance of the Authority of the ECtHR in the Yukos Case

ejiltalk.org - Mon, 02/13/2017 - 09:00

The saga in the case of the defunct Yukos oil company is far from over after the Russian Constitutional Court (RCC) in its decision of 19 January 2017 ruled that Russia was not bound to enforce the ECtHR decision on the award of pecuniary compensation to the company’s ex-shareholders, as it would violate the Constitution of the Russian Federation (CRF). The protracted argument between the Yukos oil company’s ex-shareholders and Russia has spanned over a decade before the ECtHR. In its judgment of 20 September 2011, the ECtHR found that Russia acted in breach of Art. 6 of the ECHR by failing to accord sufficient time to Yukos for preparation of its case before national courts. Further to this, the ECtHR found two breaches of Article 1 of Protocol I, in particular with respect to the assessment of penalties by the Russian tax authorities in 2010-2011 and their failure to “strike a fair balance” in the enforcement proceedings against Yukos. The issue of just satisfaction was settled in the 2014 ECtHR judgment that awarded 1,9 billion EUR in pecuniary damages to be paid by Russia to the Yukos ex-shareholders. It is an unprecedented amount of compensation that has ever been awarded in the context of human rights litigation, which makes Russia’s annual budget of 7,9 mil EUR allocated for enforcement of the ECtHR decisions look like a drop in the ocean. Following Russia’s unsuccessful appeal attempts in the ECtHR, the Russian Ministry of Justice brought the case before the RCC arguing against enforcement of the ECtHR judgment.

Uncertain Relationship Between International and Russian Law

The constitutional provisions on the relationship between international and Russian law are far from clear. As a general rule, the primacy of international treaties and agreements could be inferred from Art. 15(4) of the CRF:

If an international treaty or agreement of the Russian Federation provides for other rules than those envisaged by law, the rules of the international agreement shall apply.

The latest decisions of the RCC raise an important question on the relationship between international treaty law and Russian law, given its findings on the primacy of the Constitution if there exists a conflict between the rules of international and national law. However, the reading of Art. 15(4) suggests that international law enjoys primacy over Russian law, including its federal law and the CRF. At least, this was a common understanding as to how the provision should be construed before the RCC rendered its 2015 decision on enforcement of the ECtHR decisions, and another decision in Anchugov and Gladkov, in which it found “impossible” to enforce the decision of the ECtHR on the basis of its non-compliance with the CRF (see blog here and here). The 2015 decision, in which the RCC in abstracto ruled on the primacy of the CRF, was largely a response to the 2014 ECtHR judgment that obliged Russian authorities to make payments to the Yukos ex-shareholders and, in doing so, stirred strong resistance among representatives of the Russian political elite (see blog). In December 2015, the Law on the RCC was amended, granting the RCC powers to rule on enforcement of the decisions of international human rights bodies.

RCC’s Reading of the VCLT and Jus Cogens

In order to substantiate its position on the primacy of the CRF over the ECHR in part where there exists a conflict between two legal instruments, the Majority in Yukos invoked the VCLT. In its peculiar reading of Art. 26 and Art. 53 of the VCLT, the RCC argues that the principle of state sovereignty and non-interference in internal matters of a state constitutes jus cogens and therefore allows for derogation from the pacta sunt servanda principle. This is a distorted reading of jus cogens, as it does not grant unfettered sovereignty to states but in fact restrains state behavior, in particular in the field of human rights. Further to this, the RCC refers to Art. 46 of the VCLT, arguing that the meaning assigned by the ECtHR to the Convention is different from the one envisioned by its object and purpose, thereby violating the CRF. The reasoning, however, does not tally well with 46(2) of the VCLT that requires the violation of internal law, which could invalidate state consent to be bound by a treaty, to “be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith”.

RCC’s Decision Highlights

The subsequent parts of the RCC’s judgment dealt with interpretation of Art. 113 of the Russian Tax Code that provides for a statutory time-bar to hold a person accountable for tax offences. The RCC upheld its earlier decision of 14 July 2005 that the statutory time-bar was not applicable to “dishonest taxpayers”. The RCC also referred to the historical context of 90s marred by economic instability that led to the reform of the Russian tax system in early 2000, which aimed to guarantee the compliance of the biggest taxpayers with its obligations. The RCC found that, despite the ECtHR award of pecuniary damages to Yukos, such damages had been the result of the company’s illegal activities. More specifically, it held that Yukos took advantage of “sophisticated unlawful schemes” to avoid paying taxes and left behind an unsettled debt that had the “destructive effect” on Russia’s economy. In light of this, the RCC concluded that enforcement of the ECtHR decision would contravene the constitutional principles of equality and fairness in the area of taxation. Finally, in a rather conciliatory tone, the RCC held that it did not exclude the possibility of Russia demonstrating a good will and agreeing to pay some ex-shareholders who incurred financial loss as a result of the actions of the company’s management.

Flawed Judicial Reasoning?

The decision is problematic in many aspects and one can easily be lost in the jungle of intricate legal questions on the relationship between Russian tax legislation, the Constitution and the ECHR. The most problematic is the RCC’s interpretation of Russia’s international treaty obligations. Technically, any international agreement or treaty that Russia has ratified could be challenged on the basis of its failure to comply with the CRF, given far reaching repercussions of the RCC’s 2017 and 2016 decisions. This would lead to the lack of predictability at the international level as to whether Russia, as a party to any treaty, will honor its obligations under international law. The interpretation of the principle of sovereignty as belonging to jus cogens that justifies Russia’s non-compliance with its international treaty obligations is a misreading of fundamental principles, upon which international law is erected. Also, Art. 113 of the Tax Code on the statute of limitations in tax proceedings has been elevated to the constitutional law status and construed by means of invoking overly broad and abstract principles of equality and fairness in the matters of taxation. As it stands, the decision of the RCC is an example of poor judicial reasoning.

Was the RCC an Appropriate Venue?

A rare glimpse of hope is the dissenting opinion of Judge Yaroslavtsev. He questions the appropriateness of bringing the matter before the RCC. He points to the available referral mechanism provided for in Art. 43 of the ECHR, which entitles any party to the case, in exceptional circumstances, to refer the case to the Grand Chamber. He criticized the Ministry for seeking “simplified” ways to resolve the impasse. In his opinion, the RCC cannot exercise its jurisdiction, as it would contravene the principle of nemo judex in propria causa (no one should be a judge in his own case). This is due to the fact that the ECtHR judgment in Yukos was to a great extent based on the 2005 RCC’s decision on retroactive application of tax legislation. Therefore, he directed the Ministry – instead of seeking “easy ways”– to continue the dialogue with the CoE Committee of Ministers in order to find the solution.

What’s Next? Selective Enforcement, Amendment of the Constitution, or Exit from the CoE?

The RCC decision was followed by a relatively mild reaction of the CoE that expressed its concern over Russia’s refusal to implement the judgment as threatening “the very integrity and legitimacy of the system of the ECHR” and urging the Russian government “to change the federal law to accommodate for the RCC’s powers to prevent the implementation of the judgments of the ECtHR”. In fact, the law has already been changed in 2015 granting such powers to the RCC, so it is the CRF that has to be amended accordingly in the part on the RCC’s powers as well as the primacy of international law. However, this is not an “elegant” solution to the problem, as such constitutional amendments would render the authority of the ECtHR subsidiary to the interpretation of the RCC that would cherry pick decisions to be enforced. The exit of Russia from the CoE would also be unfortunate, as the decisions of the ECtHR have had a catalyzing effect on the development of the legislative and judicial practices in Russia. The Majority ruling in Yukos leaves a serious rupture beyond repair in relations between Russia and the ECtHR.

Urbaser v Argentina: The Origins of a Host State Human Rights Counterclaim in ICSID Arbitration?

ejiltalk.org - Fri, 02/10/2017 - 09:00

Investment tribunals rarely examine host state arguments based on international human rights law in great depth. The ICSID award Urbaser v Argentina is the first to provide a detailed discussion of a host state’s human rights counterclaim. Hence, this decision presents an opportunity to more fully understand the role of human rights in investment arbitration. As the text of the award is very rich, this post focuses on whether the tribunal has created a precedent for a host state human rights counterclaim in ICSID arbitration.

The Dispute and Counterclaim

The dispute in Urbaser v Argentina arose as a result of Argentina’s financial crisis in 2001-2002. The claimant was a shareholder in a concessionaire that supplied water and sewerage services in Buenos Aires. Argentina’s emergency measures caused the concession financial loss and it eventually became insolvent. The claimant commenced ICSID arbitral proceedings against Argentina for violations of the Spain-Argentina BIT.

Argentina filed a counterclaim based on Article 46 ICSID Convention (and Rule 40(1) ICSID Arbitration Rules) which provides:

Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre.

The respondent’s counterclaim alleged that the concessionaire’s failure to provide the necessary level of investment in the concession led to violations of the human right to water.

Jurisdiction

The tribunal in Urbaser v Argentina is the first to accept jurisdiction over a human rights counterclaim. In doing so, it has simplified the jurisdictional requirements for ICSID counterclaims.

The tribunal found that the disputing parties had consented to the use of counterclaims. The terms of Article X of the Spain-Argentina BIT permitted either party to the dispute to commence claims [1143], thus including the possibility of a counterclaim [1144]. The terms in which the claimant accepted the offer to arbitrate did not exclude counterclaims [1146 – 1148]. Further, the tribunal indicated that a claimant cannot unilaterally delimit the competence of a tribunal through the terms of their consent [1147].

The tribunal held that a sufficient connection between the originating claim and the counterclaim was established by the ‘manifest’ factual links between the claims and because the claims were ‘based on the same investment, or the alleged lack of sufficient investment, in relation to the same Concession’ [1151]. This position is contrary to awards that have required a legal connection between the claims (Saluka v Czech Republic). By permitting factual links, the tribunal potentially permits a wider range of counterclaims to be raised by host states.

The counterclaim was also within the ‘jurisdiction of the Centre’. This condition implicitly requires reference to Article 25 ICSID Convention, which only permits an investment tribunal to hear a ‘legal dispute arising directly out of an investment’. The tribunal rejected the position that a human rights claim was inherently beyond its jurisdiction, as it was not convinced that a human rights counterclaim and an investment dispute were mutually exclusive. [1154].

Therefore, provided the terms of the arbitration agreement are wide enough, a counterclaim that is based on human rights is not automatically excluded from the scope of Article 46 ICSID Convention. Further, the tribunal only required that the respondent present a prima facie case [1153] to establish jurisdiction. This does not place a significant onus on a host state. Whilst this aspect of the tribunal’s reasoning is promising for a host state human rights counterclaim, the tribunal’s discussion of the merits presents significant challenges.

Merits

In a positive move from a human rights perspective, the tribunal countered the claimant’s argument that the BIT conferred no obligations on the investor [1182]. The tribunal examined the arbitration clause [1187], the applicable law clause [1188] and Article VII(1) of the Spain-Argentina BIT (a ‘more favourable law’ clause) [1192], all of which permitted reference to sources of law external to the BIT, including treaties and general international law. Consequently, the tribunal found that BIT was not a ‘closed system’ [1191]. Rather, the BIT enabled the respondent to make reference to certain legal sources external to the BIT when identifying obligations that would bind the claimant.

Further, the tribunal rejected the claimant’s view that, as a non-state actor, it was not bound by human rights obligations [1194]. The tribunal considered that, as corporations are the recipients of rights under BITs, they are subjects of international law and can also bear obligations in international law [1195]. The tribunal referred to the Universal Declaration on Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) to establish that there were human rights obligations associated with a right to water [1196] – [1197]. In addition to these rights, the tribunal used Article 30 UDHR and Article 5(1) ICESCR to establish that private parties owe human rights obligations. The tribunal also relied on the International Labor Office’s Tripartite Declaration of Principles concerning Multilateral Enterprises and Social Policy to support this position [1198]. Using the terminology found in these provisions, the tribunal concluded that, in addition to human rights giving effect to the right to water, there was also ‘an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights’ [1199].

The terms of this obligation suggest that Article 30 UDHR and Article 5(1) ICESCR prevent the claimant from relying on its rights under the BIT to destroy human rights. However, I would argue that this obligation cannot be sourced from these provisions. Both Article 30 UDHR and Article 5(1) ICESCR are aimed at preventing the deliberate misinterpretation of one human rights obligation to justify the violation of other rights (see Saul, Kinley and Mowbray, The International Covenant on Economic Social and Cultural Rights: Commentary, Cases, and Materials (OUP 2014), 263). Hence, Article 5(1) ICESCR uses the terms:

‘Nothing in the present Covenant may be interpreted as implying… any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein’ (emphasis added).

Consequently, if the tribunal in Urbaser intended to extend the operation of article 5(1) ICESCR to rights sourced from other treaties, such as BITs, this interpretation is contrary to its express terms. Alternatively, if Article 5(1) ICESCR was intended to be applied as it is drafted, a claimant would need to rely on its own human rights to intentionally destroy the human rights of others to meet this test. A claimant could potentially invoke the right to property (relying on the UDHR) but would need to interpret this right so as to deny a human right of the host state population. This scenario would be unlikely to arise in many investment disputes.

In addition to these problems, the intention behind Article 5(1) ICESCR was to prevent newly formed fascist groups from relying on human rights as a justification for their activities (see Saul, Kinley and Mowbray, The International Covenant on Economic Social and Cultural Rights: Commentary, Cases, and Materials (OUP 2014), 263). Article 17 European Convention on Human Rights, which serves a similar function to Article 5(1) ICESCR, has only been applied in cases that fundamentally undermine its goals, such as incitement to hate. Again, it is difficult to envisage a wide range of circumstances where a comparative policy consideration might be applied in an investment context.

The tribunal held that their interpretation of Article 5(1) ICESCR could not be applied to the human right to water. First, the tribunal found that the respondent’s argument conflated the concessionaire’s provision of water and sewerage services with the obligation to fulfil the human right to water [1206]. The tribunal noted that, based on the respondent’s argument, the origin of the human rights obligation would be the concession contract [1206]. Secondly, as the human right to water provided a duty to perform, the only obligation was placed on the state [1208]. As it was for the state to regulate the supply of water to fulfil this right, the claimant’s obligation would also be sourced from the concession contract or domestic law [1209] – [1210]. These findings were problematic because the tribunal did not have jurisdiction over matters relating to Argentina’s domestic law (Decision on Jurisdiction). Given that the respondent had not identified an independent obligation in international law that was binding on the claimant, the counterclaim could not succeed.

Nonetheless, the tribunal concluded:

The situation would be different in case an obligation to abstain, like a prohibition to commit acts violating human rights would be at stake. Such an obligation can be of immediate application, not only upon States, but equally to individuals and other private parties. This is not a matter for concern in the instant case [1210].

This statement appears to reflect the tribunal’s prior view based on Article 30 UDHR and Article 5(1) ICESCR. Given the difficulties of relying on these provisions outlined above, it is not clear that the ‘obligation to abstain’ can be of ‘immediate application’. Further, the tribunal did not construct its concluding statement in the same terms as its previous formulation of the obligation. It interprets the ‘obligation to abstain’ to include a prohibition on committing acts that violate human rights. Whilst this encompasses cases of deliberately misinterpreting human rights to violate the rights of others, what the tribunal suggests arguably extends beyond these cases to those human rights framed as prohibitions. These are most commonly associated with jus cogens obligations such as the prohibition on slavery, the prohibition on genocide and the prohibition on racial discrimination. Although these prohibitions could apply to investment projects (for example, the dispute in Piero Foresti v South Africa stemmed from the operation of Black Economic Empowerment legislation) this type of claim is rare and would also not automatically bind individuals or corporate entities. As such, the tribunal’s statement does not clarify which human rights bind foreign investors.

Conclusion

The award in Urbaser v Argentina does create a precedent for a host state human rights counterclaim. The approach taken by the tribunal makes it easier for counterclaims to fall within a tribunal’s jurisdiction. However, the substantive law that can form the foundation of the counterclaim, consisting of an ‘obligation to abstain’ is not clearly established based on the texts referred to by the tribunal. Further, the tribunal’s final reference to this principle is somewhat ambiguous. Therefore, the next stage in introducing human rights into ICSID arbitration will be to determine, with more precision, which rights are capable of forming the basis of host state human rights counterclaim.

International Commissions of Inquiry as a Template for a MH17 Tribunal ? A Reply to Jan Lemnitzer

ejiltalk.org - Thu, 02/09/2017 - 09:00

In his essay on ‘International Commissions of Inquiry and the North Sea incident: a model for a MH17 tribunal?’ Jan Lemnitzer makes the argument that the origins of commissions of inquiry (COIs) dealing with international criminal law are deep-rooted, dating back well before the Hague Conventions of 1899 and 1907. Presenting the Doggerbank inquiry as a de facto criminal trial, he disputes that contemporary commissions of inquiry should be seen as distinct from the Hague tradition as some scholars, including myself, have argued. In addition, Lemnitzer believes that a MH17 tribunal premised on the historical precedent of the Doggerbank inquiry offers the most promising avenue for justice especially also given the similarity of the position of Russia in both situations. I have truly appreciated Lemnitzer’s indepth account of the Doggerbank inquiry, including his analysis of the politics leading up to the inquiry as well as his points on the reception and subsequent framing of the inquiry’s outcome. Yet, as I will set out in this reply, I do not agree with some of Lemnitzer’s overarching arguments regarding Doggerbank as a precedent, the genealogy of commissions of inquiry and their present-day possibilities as such arguments fail to distinguish between different models of inquiry on the one hand and between inquiry and criminal investigation on the other.

The Pluriformity of Commissions of Inquiry

As Jan Lemnitzer indicates in the opening sentence of his article, commissions of inquiry (COIs) “have recently begun to feature more prominently in academic and political debate”, and I would add, they bourgeon in actual practice. Commissions of inquiry are created by the Human Rights Council (HRC), the UN Secretary-General, regional organizations (e.g., The Independent Fact-Finding Mission on Georgia, and the Independent Fact Finding Committee on Gaza), States (e.g., the Chilcot Inquiry) and there are even commissions of inquiry shrouded with some formality but operating outside formal structures (e.g., The Independent International Commission on Kosovo). To the extent that they deal with situations of international concern or with international legal questions, these commissions have caught the interest of international legal scholars. But what are commissions of inquiry  and to what extent are all these commissions part of the same concept? Some further conceptual exploration seems needed as the diversity in the practice of COIs is vast. In addition to being established within different institutional frameworks, commissions also vary as regards their composition (lawyers versus diplomats / politicians versus technical experts), scope and focus of mandate (focus on a situation over a prolonged period of time versus focus on one incident), framing of mandate and language used (mandate to frame facts as violations of law versus framing facts through non-legal, e.g., technical, diplomatic, historical approaches), methods of fact-finding (e.g., through witnesses or based on documents), and on the type of facts that are being found or construed as well as on the follow up that is being proposed, if any. This pluriformity raises the question to what extent there is one concept of inquiry; do the commonalities outweigh the differences?

Inquiry is commonly understood as being about establishing or construing facts by a third party in a non-binding manner. Leaving the philosophical debate apart about what a fact is and whether this can be established at all, further typologies of commissions of inquiry can be made based on the variables highlighted above. According to one typology, a distinction can be drawn between accountability versus non-accountability-oriented inquiries which is a distinction that resonates with claims about the Age of Accountability. To be meaningful, such a distinction requires further specification of the notion “accountability”, as it does not necessarily differentiate between commissions that might ultimately be quite different in nature: a commission that contributes to broader narratives of accountability can still be very distinct from a commission actually using international criminal law-standards or a commission functioning as a de facto trial. Contemporary commissions of inquiry as established by the Human Rights Council do not tend to operate as de facto trials and the propriety of having COIs name names has been questioned (see here). UN Secretary-General Guterres recently also distinguished between COIs and criminal investigative mechanisms when observing that the General Assembly’s newly established Independent Mechanism to assist in the prosecution of international crimes committed in Syria has a quasi-prosecutorial function that goes beyond the scope of the mandate of the Syrian COI. Alternative to the accountability-typology, and in my view preferably, the institutional environment and method of establishment could also serve as benchmark for differentiation. The archetype of inquiry as it was codified in the Hague Regulations was transactional in nature, in the sense that a commission of inquiry would be established pursuant to the agreement of the States whom the inquiry concerned, each State proposing its own commissioners as in arbitration. The Human Rights Council (HRC) inquiries are situated at the other end of the spectrum, being more of an authoritative nature, in that they can be established without the consent of the State(s) concerned and the commissioners are all independent experts appointed by the HRC. Given the consent-based nature of our international legal system, this difference seems vital and it raises the question to what extent an inquiry genealogy exists through which contemporary HRC inquiries can be traced back to the Hague archetype.

As Jan Lemnitzer describes, and on this point I fully agree with him, the early inquiry practice did deviate from the Hague archetype in a significant way. Indeed, in contrast to Hague provisions limiting inquiry to statement of facts, the mandate of the Doggerbank inquiry included an express instruction to take on questions of blame and responsibility. Based on these instructions, one could qualify the Doggerbank inquiry as having an accountability mandate. Yet, Russia did manage to dull the accountability-potential. Given the requirement of consent, Russia put its mark on the framing of the mandate as well the outcome. This shows how the involvement of States in the establishment of a commission of inquiry informs its functioning and framing.

Justice through a Commission of Inquiry?

Regardless of characterization, a question of more acute interest for practice is whether indeed the Doggerbank Inquiry offers a viable model for a MH17 Commission of Inquiry, or even a Tribunal. This suggestion builds on parallels between Doggerbank and MH17, in particular similarities in the position of Russia. A crucial difference of course was that in the Doggerbank case, the UK had a very strong negotiating position as the Royal Navy blockaded the Russian squadron during the negotiations immediately after the attack. MH17 victim States do not seem to be in a similarly strong negotiating position. Lemnitzer’s suggestion is further premised on the idea that Russia remains committed to a genuine international investigation of the MH17 incident, and that Russia “would find it difficult and perhaps embarrassing to reject a forum to address all of its earlier concerns and based on a precedent created by Russia itself” (p. 944). Apart from the fact that embarrassment does not seem to be a factor that informs Russian politics, a key question arises as to how genuine Russia really is. Persistent claims that Russian hackers targeted the Dutch Safety Board just prior to the release of its report in October 2015 are in any event indicative of the politics involved. Lemnitzer argues that “it is difficult to see how a [tribunal] that would […] openly antagonize Russia could serve international justice” (p. 927) and he thus submits that “what is needed is a form of international investigation that addresses all concerns raised by Russia” (p. 928). According to this logic, a MH17 tribunal or commission of inquiry may only be viable to the extent that Russia maintains a sense of control over the outcome, which seems contradictory to the very purpose of the exercise, if the purpose is indeed to deliver justice.

Another question concerns the exact purpose of the proposed MH 17 tribunal or (adversarial) commission of inquiry. The fact that the terms commission of inquiry and tribunal are used seemingly interchangeably may add to the confusion as these are generally different exercises. The idea of Doggerbank was “for the form of punishment to be decided by the Russian side, but the question of guilt to be decided by the international inquiry alone” (p. 932). In the words of Balfour, as quoted by Lemnitzer, “the persons found guilty by that tribunal will be tried and adequately punished” (p. 931-932). Guilt first, trial after. Such a reversed form of justice is reminiscent of the approach of the Queen of Hearts in Alice in Wonderland, but perhaps not necessarily something to be replicated. In contrast, contemporary commissions of  inquiry are very explicit in that they do not make final judgement as regards criminal guilt. They may be precursors to international criminal prosecutions and make recommendations in this regard, but they do not act as de facto criminal trials in themselves, and their fact-finding does not equal criminal investigation. Hence, as already indicated, the question is whether Doggerbank and contemporary commissions can usefully be grouped together as being part of the same family. Alternatively, the Doggerbank precedent can also be used to envisage an entity with traits of a criminal tribunal that, as proposed by Lemnitzer, can address intricate evidentiary questions of admissibility of mobile phone clips, social media posts and radar data, complex legal questions of command responsibility and even criminal responsibility in relation to Ukraine’ decision to continue allowing air traffic over the conflict area, which is something that may well go beyond the current confines of international criminal law. But how is such a tribunal fundamentally different from the MH17 Tribunal that Russia vetoed in the Security Council? Even if not large-scale in terms of the number of prosecutions, any criminal tribunal that must be newly established and designed to deal with such intricate legal questions, will be time-consuming and costly and thus by implication not meet several of Russia’s concerns.

Finally, the question arises how an international MH17 commission of inquiry or tribunal would relate to ongoing activities, including the ICAO-inquiry undertaken by the Dutch Safety Board, the JIT-investigations, the application at the European Court of Human Rights (see e.g., Ioppa versus Ukraine), and of more recent date the application by Ukraine at the ICJ. As indicated, the politics surrounding the ICAO-inquiry and the JIT-investigations do not show much common ground between Russia and other States involved and it is therefore unlikely that, if a MH17 inquiry or tribunal was envisaged, Russian concerns and interests could be met without compromizing the institution as such. And to the extent that the Doggerbank Inquiry is regarded as a precedent, it must also be recalled that in that setting Russia ensured that no punishment followed the outcome of the inquiry. This makes one wonder: how can such a construction ever offer a “promising road to justice”?

 

The South China Sea moves to the Indian Ocean: Conflicting Claims Over the Tromelin Islet and its Maritime Entitlements

ejiltalk.org - Wed, 02/08/2017 - 08:30

The small, isolated, inhospitable (and inhabited) island of Tromelin, located in the Indian Ocean north of Mauritius and the French Reunion island, and east of Madagascar (see map), has been the subject of passionate debate in recent weeks in France, both in the media (here and here) and within the Parliament (transcript of the debate before the French National Assembly).

Tromelin is a flat and small feature, about 1,700 metres long and 700 metres wide, with an area of about 80 hectares (200 acres). Its flora is limited, while the site is known to host significant numbers of seabirds. There is no harbour nor anchorages on the island, but a 1,200-metre airstrip, and there appears to be no continuous human presence.

Tromelin was discovered by a French navigator in 1722, and France today claims sovereignty over it by virtue of historical title (discovery of terra nullius) dating back to that date. The islet was the scene of a sad – and little known – episode of history as the place where approximately 60 Malagasy men and women were abandoned for 15 years in the 18th century after a French ship transporting slaves eschewed on the island. Most of the slaves died within a few months. The survivors were finally rescued in 1776, when Bernard Boudin de Tromelin, captain of the French warship La Dauphine, visited the island and discovered seven women and an eight-month-old child. Captain Tromelin also raised a French flag on the island – and his name was given to it.

French possession of Tromelin was interrupted by Britain which took control of the island in 1810. Then in 1954, the British gave their consent to France’s effective control over Tromelin. But sovereignty over Tromelin is still disputed, and the island has been claimed by the newly independent Mauritius since 1976, and reportedly also by Madagascar and the Seychelles (see V. Prescott, ‘Indian Ocean Boundaries’ at 3462-63). The controversy in France over Tromelin has led to the postponing of the ratification by the Parliament of a framework agreement entered into by France and Mauritius in June 2010, providing for joint economic, scientific and environmental management (cogestion) of the island and of surrounding maritime areas.

Concerns expressed in France revolve around the issue of a possible loss or abandonment by France of its sovereignty over the feature, and most of all of its rights over the exclusive economic zone (EEZ) of Tromelin, that France established in 1976 (see Decree no. 78-146 of 3 February 1978, establishing, pursuant to the Act of 16 July 1976, an economic zone off the coasts of the islands of Tromelin, Glorieuses, Juan de Nova, Europa and Bassas da India, Law of the Sea Bulletin, No. 71 [2010] at 16). Critics also point to the risk of creating a precedent that could be used to fuel arguments of those countries (Mauritius, the Comoros and Madagascar) which repeatedly dispute French claims of sovereignty over the other French-occupied Scattered Islands (Îles Éparses) of the Indian Ocean (Juan de Nova, Glorioso and Europa islands, the Bassas da India atoll, and the feature known as Banc du Geyser), and related maritime zones. For example, Section 111 of the Constitution of Mauritius provides that Tromelin is part of Mauritian territory. Mauritius also deposited with the UN Department for Ocean Affairs and the Law of the Sea, pursuant to Articles 16 and 47 of UNCLOS, charts and lists of geographical coordinates of basepoints and baselines for the maritime zones of Mauritius, which include basepoints around Tromelin (see Maritime Zone Notification M.Z.N.63.2008.LOS of 27 June 2008).

The issue of sovereignty over Tromelin is a very complex one, that should be further examined through interpretation of relevant international agreements, including the Treaty of Paris of 30 May 1814 between France and the United Kingdom – which transferred sovereignty over the French colony of Mauritius (then known as Isle of France) and its dependencies to the British –, and assessment of the subsequent practice of the States concerned. For the record, the provision concerning Mauritius (then Isle of France) in the Treaty of Paris was its Article VIII, worded as follows:

His Britannic majesty stipulating for himself and his allies, engages to restore to his most Christian majesty [French King Louis XVIII], within the term which shall be hereafter fixed, the colonies, fisheries, factories, and establishments of every kind, which were possessed by France on the 1st of January 1792, in the seas and on the continents of America, Africa, and Asia, with the exception however of the islands of Tobago and St. Lucie, and of the Isle of France and its dependencies, especially Rodrigues and Les Sechelles, which several colonies and possessions his most Christian majesty cedes in full right and sovereignty to his Britannic majesty, and also the portion of St. Domingo ceded to France by the treaty of Basle, and which his most Christian majesty restores in full right and sovereignty to his Catholic majesty » (full text of the Treaty in E. Hertslet, The Map of Europe by Treaty, at 1 – emphasis added).

Assessing the merits of claims regarding Tromelin would by far exceed the limits of this note. The exercise will likely include an in-depth examination of relevant archival materials, namely those found in the Bibliothèque Nationale de France (the National Library of France) and the Archives Nationales d’Outre-Mer (the National Overseas Archives), as well as in the British archives including those of the United Kingdom Hydrographic Office. At first sight, the validity of the claims of France regarding Tromelin is not obvious and needs to be critically assessed under the international law relating to the acquisition of territory.

Mauritius is of the view that the assignment by the Treaty of Paris of the Isle of France (Mauritius) to the British Crown included Tromelin, so that upon reaching independence in 1968, Mauritius should have entered into possession of Tromelin. France of course holds a contrary view. A French Parliament report advocating the ratification of the 2010 framework agreement between France and Mauritius referred to the multiplicity of France’s “acts of sovereignty and administration over this islet (îlot) even before the independence of Mauritius [in 1968] […] without UK protest”. Basically, France’s historical title to the island is to be assessed against other claims formulated by Mauritius, and reportedly also by Madagascar and the Seychelles.

Irrespective of the sovereignty over Tromelin, it is far from certain, at first sight, that this island (or islet) of Tromelin be entitled to full maritime zones and in particular an exclusive economic zone (EEZ). This is dependent in particular on interpretation of the terms of Article 121 para. 3 of UNCLOS, according to which “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. The precise meaning of Article 121 para. 3 has long proven controversial (see e.g. Erik Franckx, ‘The Regime of Islands and Rocks’, in D.J. Attard, M. Fitzmaurice, N.A. Martínez Gutiérrez (eds.), The IMLI Manual on International Maritime Law, Vol. I, Law of the Sea, at 99-124.).

Interpretation of this article has been one of the main points addressed by the Arbitral tribunal in its Award of 12 July 2016 in the South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China) case before the PCA. The tribunal in that case engaged in a thorough interpretation exercise and made a number of findings as to the accurate meaning of all components of paragraph 3 (« rocks », « cannot » « sustain », « human habitation », « or », and « economic life of their own »), which will probably offer some valuable guidance regarding future similar cases. What should be assessed properly is whether Tromelin, due to its physical and geographical characteristics (as evidenced by precise and recent scientific works and reports), is entitled – as any island – to full maritime zones under Article 121 para. 2 of UNCLOS, or if it meets the definition of a rock within the meaning of Article 121 para. 3, in which case it would not generate an exclusive economic zone or a continental shelf.

As regards prospects for a settlement of the issue of Tromelin (and possibly other Îles Éparses), several observations may be made. First, while it has been reported that Mauritius would be prepared to submit the dispute to the ICJ, the jurisdictional basis for such referral remains unclear. One has to bear in mind that France, upon ratifying UNCLOS in 1996, has declared that it does not accept any of the dispute settlement procedures provided for in Part XV, section 2, of UNCLOS with respect inter alia to “[d]isputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles”. Second, the settlement of the sovereignty issue may possibly be disjoined from the issue of maritime entitlements, as the Arbitral tribunal did in the South China Sea Arbitration case when it pronounced on maritime entitlements of various features of the South China sea without addressing the sovereignty issue over those features. As various commentators have stressed, the tribunal could hardly have done otherwise, since UNCLOS is not concerned with sovereignty over land territory and islands, and assumes for the purposes of delimitation that the issue of sovereignty is resolved. This was also the position of the Arbitral Tribunal in the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) case, where Mauritius opposed the establishment by the UK of a marine protected area around the Chagos archipelago, administered by the UK but claimed by Mauritius. In its Award of 18 March 2015, the Tribunal held in substance that Mauritius’ claim that the UK did not qualify as a “coastal state” within the meaning of UNCLOS as regards the Chagos Islands concerned in fact the question of sovereignty over the Chagos, which was not a matter concerning the interpretation or application of UNCLOS, and therefore that it did not have jurisdiction.

This separation between sovereignty over Tromelin and the determination of maritime zones generated by the latter appears, even if implicitly, as the path chosen by the negotiators of the 2010 framework agreement between France and Mauritius. While disagreeing on the issue of sovereignty, the two sides agreed on Tromelin’s entitlement to an EEZ. The French side, while reaffirming its sovereignty over Tromelin – and that it would not give its consent to any third-party dispute settlement mechanism on that issue –, stated that the objective of the agreement is “basically political and aims at overpassing the sovereignty dispute […] through adoption of a partnership approach in three specific sectors: environment, archeology and fisheries” (see Report of the French Senate). It should also be noted that France and Mauritius had also adopted a pragmatic approach in 1980 when they reached agreement on the delimitation of part of their maritime boundary – setting Tromelin aside (see Convention between the Government of the French Republic and the Government of Mauritius on the delimitation of the French and Mauritian economic zones between the islands of Reunion and Mauritius, 2 April 1980, reprinted in US Department of State, Office of the Geographer, Maritime Boundary: France (Reunion)-Mauritius, Limits in the Seas No. 95  [1982] with map). The above-mentioned report of the French Senate stressed the common view of France and Mauritius on the need to assert control over maritime zones surrounding Tromelin – pending the resolution of the sovereignty dispute –, as a means to establish other marine protected areas, to implement joint policies regarding sustainable fisheries, or to combat illicit dumping, among other issues.

It should also be noted that, given its geographical situation, the determination of the status of Tromelin as regards Article 121 para. 3 of UNCLOS would necessarily impact the localisation of maritime boundaries with certain third States, namely neighbouring islands, especially Madagascar. Clive Schofield recently observed that “the potential maritime claims to be made from the disputed islands of the South China Sea, often illustrated by reference to maps giving these features full-effect in the generation of strict equidistance lines, is misleading” (C. Schofield, ‘What’s at stake in the South China Sea? Geographical and geopolitical considerations’, in R. Beckman, I. Townsend-Gault, C. Schofield, T. Davenport and L. Bernard (eds.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources at 24).

The author of the present note is of the view that the same observation may be made as regards a number of disputed features of the Indian Ocean – including Tromelin.

Engaging with Theory – Why Bother?

ejiltalk.org - Tue, 02/07/2017 - 09:00

I may be biased, as theory is currently my main area of practice (here and here), but I am deeply convinced that (international) lawyers should engage more with theory.

One of the peculiar features of the official discourse of international law is to look down at theory. I once heard a colleague say that the Faculty should hire more ‘hard’ lawyers and less ‘soft’ lawyers. I reacted with bewilderment at such a novel qualification, asking what he meant. He said that hard law was the real law that is practised in courtrooms and for which there is a high demand in the market. All those people dealing with soft law, such as ‘theory, human rights and the like’, should only have a secondary role in a serious legal curriculum. Rather than being just a peculiar interpretation of soft law, my colleague’s statement hardly hid a conspicuous cultural bias against theory and intellectual activities.

By the same token, yet another colleague of mine once lay claim to be in need of more assistants compared to his other colleagues on the basis that she taught ‘hard black letter law courses’ and not some ‘wishy-washy’ theory ones. Admittedly, the opposite can also be true. I can perfectly well envisage a sectarian group of international law theorists looking down with contempt at all those practitioners who have not read Foucault, Marx and Koskenniemi (please do not attach any particular significance to this random choice of names!). Yet, there is no doubt that in the traditional discourse of international law the still predominant attitude is to vilify theoretical and philosophical investigations and to consider as relevant only the doctrinal conceptualisation of existing concepts and categories.

The fact that international practice seems to be considered by many as the ultimate form of disciplinary recognition is reflective of a profession that for a long time has denigrated intellectual inquiries that go beyond the mere systematisation and rationalisation of legal materials. The scope for critical inquiry and the development of alternative theoretical approaches to international law is a relatively recent phenomenon, and its overall impact on the discipline’s canons and self-perception still to be fully appreciated.

The traditional circumspection of the lawyerly world vis-à-vis theory might be explained against the deeply rooted conviction that law – and international law alike – is a practical craft and professional vocation that demands no particular theoretical background. In many law schools – fortunately with some exceptions – courses involving philosophy, sociology and the general theory of law are not particularly popular. Many law schools do not even include these subjects in their curriculum, as they are widely looked down on as either having no obvious practical utility or as being irrelevant to the profession. Similarly, many members of the profession would concur that whatever time is spent asking questions of a theoretical nature is time wasted. This posture of anti-intellectualism is clearly traceable to most law schools and to many professional circles. It must be conceded, however, that a certain way of producing the academic discourse has almost certainly contributed to the bias against theory. A certain habit to conceive of fancy intellectual frames removed from the underlying social realities, which I call ‘armchair theorising’, is deleterious to theory. The unreasonable attempt to project one’s preconceived theoretical frameworks into the practice of social agents, or to impose an ideal of absolute and rational coherence in an otherwise highly heterogeneous practice, are also widespread reflexes in academia and, possibly, a reason for making theory not particularly credible.

Yet, this is no excuse for failing to perceive the theoretical frameworks at work in practice. To hold that practice is the only thing that matters and that is worthy of lawyerly engagement remains oblivious to the simple fact that any practice presupposes a theory, a way of thinking, and a mindset, which are formed, developed and used to the detriment of other theories, ways of thinking and mindsets. Practitioners, even when not conscious of it, always presuppose a ‘theory’ or ‘method’. Ignoring the psychological frames that govern the way in which we think and do law carries with it non-negligible normative consequences. It is theories and methods that help provide the players of the game in international law with the necessary level of credibility and persuasiveness. Most of the time theory also provides the framework for justifying practice and the choices that lawyers make.

Another reason for the widespread aversion to theory in (international) law could be traced to the distinct cultural trend that privileges the view of the law as something technical requiring highly specialized skills. This ‘managerial’ vision has contributed to vilifying the role and function of critical theory in international legal scholarship. In a strange reversal of perspective, the scholar is required to bring technical expertise and to put this to good use in practice. Intellectual work and theory are often looked down at with contempt. Contemporary professional culture encourages specialisation, where knowledge is conceived as an incremental process of acquisition of additional skills in a given domain. To be an expert means to possess an in depth knowledge of a (frequently) tiny field. To look at the ‘big picture’ is often derided as demonstrating a lack of focus. To zoom out from one’s field of specialisation or to ask questions of a theoretical character is perceived as highly questionable and as an undue distraction in a professional itinerary.

How to redress the disconnect between the theoretical discourse on international law and the social practice of international law is indeed the main challenge for international law scholars. It is up to them to bring theory back to the forefront of debate and to have it perform its vital function as critical conscience of the discipline and of the international legal system. It would be a pity if general questions about the morality of coercive intervention or remedial secession were questions reserved for specialists on the use of force and territorial disputes, rather than also being regarded as philosophical or theoretical questions. Such issues, bearing on justice and the fundamental values of the international community, should be the bread and butter of international legal scholarship. Young scholars should be encouraged not to avoid them but rather to tackle them head-on.

Certain questions cannot be answered by technical skills. Why is international law not providing adequate solutions to such compelling international issues as terrorism and global security? How is it that it cannot prevent the weekly massacres of hundreds or even thousands of refugees fleeing from extreme poverty or endemic conflict in the Global South and trying to make it into some wealthier country of the North? Why does it let such bloodshed occur without intervention in Syria? Who is or should be accountable for the many evils of the world, ranging from environmental degradation and the outbursts of contagious diseases to the countless human rights violations that occur everyday in the world? Why is international law conspicuously absent from the regulation of international finance, thus exposing the world to recurrent calamitous financial crises?

One has to ask this type of questions to understand what international law is for, how it is made and by whom, and what goals it purports to pursue. These are questions that go well beyond the purview of expertise. They need be answered against a wider background, in which the rules of the different regimes are part of the context but do not necessarily provide the answer. A look at the big picture is warranted if one wants to make sense of what is going on in international law nowadays.

The challenge and value of engaging with theory is also to open up the range of options one has to address an issue, solve a problem, and question the wisdom of one’s choices. More simply, one should look at theory just for the sake of wondering what the world would look like if only one were ready to see things in a different light or from a different perspective. To increase the number of possibilities inevitably entails emphasising the moment of choice. If law is choice, the consequences of doing something or interpreting the law in one way rather than another ought to be known and carefully assessed. This should carry with it an enhanced sense of responsibility, as asking theoretical questions about the sense and the consequences of what one does and about the reasons for doing it should produce reflexive knowledge and induce caution in choosing what course of action to take.

The disempowerment of law as merely objective expertise and the reconnection of international law with normative and political questions should eventually lead to a new empowerment of international legal scholarship, characterised by more awareness of the social fabric in which international law is embedded as well as of the political and moral consequences of choices made and justified under international law. This is what theory is about and, arguably, the very reason why one should bother to engage with it.

Editorial: The Case for a Kinder, Gentler Brexit

ejiltalk.org - Mon, 02/06/2017 - 09:00

Of course, we know better than to be shooting at each other; but the post-23 June  relationship between the United Kingdom and the European Union is woefully bellicose, and increasingly so. In tone and mood, diplomatic niceties are barely maintained and in content positions seem to be hardening. I am mostly concerned with attitudes and positions of and within the Union and its 27 remaining Member States. Handling Brexit cannot be dissociated from the handling of the broader challenges facing the Union. I will readily accept that the UK leadership bears considerable responsibility for the bellicosity and the escalating lawfare. But the inequality of arms so strikingly favours the Union that its attitude and policies can afford a certain magnanimous disregard of ongoing British provocations.

It is easy to understand European Union frustration with the UK. I want to list three – the first being an understandable human reaction. It is clear that when Cameron called for a renegotiation followed by a referendum he had no clue what it was he wanted and needed to renegotiate. The Union waited patiently for months to receive his list – the insignificance of which, when it did come, was breathtaking. For ‘this’ one was willing to risk breaking up the Union and perhaps the UK? I recall Jean-Claude Juncker’s State of the Union of 2015 in which going the extra mile in preventing a Brexit was one of his top priorities. Any fair-minded observer would agree that the Union delivered on this commitment. Some of us even thought that the eventual compromise on free movement went beyond the boundaries of extant EU law. The actual Brexit vote was thus greeted with understandable disappointment, to which a measure of bitterness and even anger were easy to detect in the myriad statements that followed. And then it also became abundantly clear, breathtakingly clear, that the UK went into the referendum without any strategic – political and legal – plan in the event of, well, Brexit. One did not know what the Brits wanted ahead of the referendum and one still is not clear what they want in its wake. It has been ongoing and at times incoherent improvisation – adding further to the already existing frustration. We tend to reify governments and administrations just as we reify courts. But when all is said and done, there are always humans with emotions and ambitions and desires and the usual frailties of the human condition.

Still, setting aside this kind of emotional state as the basis for, or even influencing, a Brexit strategy, it is well overdue. If the interest of the kids is really in one’s mind, it behooves any divorcing couple to get as quickly as possible beyond the anger stage. In approaching Brexit the single consideration should be the overall interest of the Union and the underlying values of the European construct.

I take it as axiomatic that it is in the interest of the Union – economic, strategic (not least security) and even social – to have as amicable, open and cooperative a relationship with a post-Brexit UK. One cannot very justly express alarm and disapproval at the protectionist winds blowing from the White House and then not accept that, even if outside the Union, it is in our interest to keep as open a marketplace with such an important contiguous economy as the UK. Nor can one fail to realize that with the end of the Pax Americana, how damaging it would be for Europe, when finally beginning to take its security responsibilities seriously, not to be able to count on a robust participation of the UK. And beyond the money power matrices, the UK has to remain a firm ally in the defence of liberal democracy under attack. Not to mince words, a hostile Union will only further push the UK into an uneasy embrace with Trump.

What, then, from the Union’s side – at the policy rather than the emotional level – seems to explain the bellicosity? There are two interconnected arguments which are repeated again and again in explaining and justifying the rhetoric of a ‘hard’ Brexit or ‘Divorce before any negotiations’ et cetera et cetera ad nauseam and ad tedium.

The first is that one cannot compromise the conceptual and practical coherence of the Single Market, of which free movement of workers is an indispensable and non-negotiable principle. (I consider as sad collateral damage the fact that the Brexit debate has returned the principle of free movement to its economic foundation – workers, factors of production in a common market – and away from its new citizenship grounding). And since the UK insists that it can no longer accept free movement, it cannot both have its cake and eat it. You cannot be in the Single Market without accepting its cardinal principles. There is an important additional nuance to this argument, namely that by taking a tough line with the UK one is squelching any heretics who would like to see the dilution of free movement within the Union.

The second – interconnected – reason for the tough rhetoric and the endless promises of a ’hard’ Brexit is the ‘discourage the others’ argument. If the UK gets too cushy a deal – i.e. is not made to pay and to be seen to be paying a heavy price for Brexit – it might tempt other Member States to seek the same, thereby bringing about a weakening or even disintegration of the Union. The notion of some form of Associate Membership is thus rejected categorically.

I think the first argument is based on a misunderstanding and the second argument raises a profound issue that goes well beyond any Brexit strategy. It touches on what is sometimes thought of as the ‘soul of the Union’ – its very ontology – a clarification of which should at least provoke second thoughts as to the wisdom of the extant approach to Brexit.

It is clear that if the UK leaves the Union and rejects free movement it cannot be a full participant in the Single Market. But, it is worth making, again and again, the obvious distinction between being part of the Single Market and having access to the Single Market.

For decades, even before it was called the Single Market, it has been European policy that granting access to the Single Market to partners all over the world was an important objective, beneficial both to the Union and to such trading partners. The recent conclusion of CETA (Canada-EU Comprehensive Economic and Trade Agreement) is just the last, if very visible, manifestation of such a policy. The Union has countless agreements of this nature – the common denominator of which is the granting of access to the Single Market not only without requiring free movement of workers, but excluding such. In the case of developing countries the access has been at times on a non-reciprocal preferential basis, though with many partners (again using CETA as an example) it is on a fully reciprocal basis. It is true that for the most part the agreements relate to goods rather than services but the access is extensive nonetheless.

Why should the Union not announce, unilaterally, and as soon as possible, that it would be its desire that the UK have at a minimum an agreement granting it access to the Single Market on terms no less favourable than any of its existing reciprocal agreements with third parties? I can see several distinct advantages of such a declaration. First it would change the existing damaging, bellicose atmosphere and mood, which are not auspicious for an amicable divorce. Second, it would not compromise any European interest from a commercial perspective. And third, it would allow that aspect of the negotiations to be handed over to the technocrats – the devil is in the details! – while allowing the more sensitive issues such as financial services, passporting and the like to be dealt with at the political level.

In the same vein, just about all Member States of the Union have bilateral investment treaties with third parties, which typically give extensive access to company directors, etc. Is it thinkable that the UK should not have similar privileges? Why should the same ‘most favoured’ principle not be extended as regards these privileges accorded to third parties?

Negotiating from a position of power, such gestures of good will by the Union would not compromise its interests; rather they would facilitate the negotiations by setting at least minimal targets to be achieved in the negotiations and send an important signal that the period of anger is over and functional pragmatism is back.

What then of the ‘discourage the others’ argument? Here my views are decidedly iconoclastic but, I want to believe, at least merit a hearing.

The actual departure of the UK was not in my view the deepest harm inflicted by Brexit (thought of as a holistic set of events). The catastrophic damage to the Union was to grievously arrest the slow transformation of the European Construct from a community of convenience (concrete achievements leading to de facto solidarity) to a community of fate. By community of fate (and thankfully Isaiah Berlin re-Koshered Herders’ concept so abused by National Socialism)  I mean the notion that whilst one can and should have deep divisions and conflicts within the Union as regards its policies, scope of action, methods of governance and the like, such divisions and conflicts have to be resolved within the framework of the Union, its Member States and their peoples being attached to each other indissolubly. The Exit option, a nod towards the residual sovereignty of the Member States (an indispensable nod, given that the very notion of high integration among sovereign states is the double helix of the European construct that differentiates it from Federal States) was always to remain the arm you never use. Brexit discourse, spilling over from the UK debate to the whole of Europe, regressed the Union back to a contingent, ongoing project, the viability of which may be challenged at any moment, depending on a material balance of costs and benefits. Unwittingly, in an almost panicky knee-jerk reaction, European discourse became one of ‘we have to come up with projects that will prove to the peoples of Europe that it is in their interest to maintain the Union’. To remain. Even if successful in finding such projects, this is a self-defeating approach, because of its contingent, cost-benefit logic, on which the future of the Union is now to rest. As we saw in the British debate on Brexit and we see in current Euro-speak, this logic inevitably leads to the politics of fear. As the Brexit debate in Britain progressed it became increasingly one of who could scare their adversary more effectively. The ‘discourage the others’ argument in the current post-Brexit approach belongs to the same genus. Does one really want the future of European integration to rest on fear-driven support, scaring our peoples by setting up the UK as a reminder of the bad fate the awaits the heretics?

I cannot but think of millennial Christian doctrine – now abandoned – which held that the Jews should be kept as a miserable entity as a reminder of the fate of those who reject the Saviour. It was a betrayal of Christian ideals.

So, think now the unthinkable – an approach which would afford the UK as comfortable a status as possible, even a form of Associate Membership. It would still be a second class membership; whatever access the UK would have to, say, the Single Market, would be to a marketplace the rules of which would be determined by others. This is a self-inflicted damage that the UK will have to live with.

Brexit is a watershed. So, I would argue, instead of trying to stick the finger in the dyke let us live the watershed. If a UK status is appealing to this or that Member State, let it be. Those states would not in any event be helpful in a Union which needs some brave and decisive fixes to its structure and processes, not least the structure and processes of governance. For those who remain, most if not all, it will be a moment of willed re-commitment rather than scared, coerced, resentful and contingent inertia.

JHHW

 

Announcements: UN Audiovisual Library of International Law; Refugee Crisis and International Criminal Law; CfA Transregional Academy; Course for Junior Prosecutors on International Criminal Justice; International Cultural Heritage Law Summer School

ejiltalk.org - Sun, 02/05/2017 - 11:30

1. New additions to the UN Audiovisual Library of International Law.  The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Judge Kenneth Keith on “The Advisory Jurisdiction of the International Court of Justice” and Professor Donald Rothwell on “The Law of the Sea and the Polar Regions”.

2. City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity? City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities on Monday 13 February 2017 at 18:00. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

3. Call for Applications: Transregional Academy. The Forum Transregionale Studien and the Max Weber Stiftung – Deutsche Geisteswissenschaftliche Institute im Ausland invite doctoral and postdoctoral researchers to apply for a transregional academy on the topic of redistribution and law. A call for applications has been issued for the forum, entitled “Redistribution and the Law in an Antagonistic World”, to be held on 21-30 August 2017 in Berlin. The application deadline is 12 March 2017. Further information can be found here and the call for applications can be found here.

4. Second Specialization Course for Junior Prosecutors on International Criminal Justice and International Cooperation in Criminal Justice Matters. The Second Specialization Course for Junior Prosecutors on International Criminal Justice and International Cooperation in Criminal Justice Matters Siracusa International Institute for Criminal Justice and Human Rights is pleased to open applications for the Second Specialization Course for Junior Prosecutors on International Criminal Justice and International Cooperation in Criminal Justice Matters. The Specialization Course will be held in Siracusa, Italy from 3-14 July 2017. The Specialization Course has been developed by the Siracusa International Institute (the new public name for the International Institute of Higher Studies in Criminal Sciences – ISISC Onlus) and the International Association of Prosecutors (IAP), in collaboration with and supported by the International Association of Penal Law (AIDP) and National Attorneys General Training and Research Institute (NAGTRI). For further information about the Specialization Course, please visit the new Siracusa Institute website where you will find the online registration form. The deadline for applications is 31 March 2017. Should you have any questions or need further information, please contact the Siracusa Institute at scjp {at} siracusainstitute(.)org var mailNode = document.getElementById('emob-fpwc@fvenphfnvafgvghgr.bet-53'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%63%6A%70%40%73%69%72%61%63%75%73%61%69%6E%73%74%69%74%75%74%65%2E%6F%72%67"); tNode = document.createTextNode("scjp {at} siracusainstitute(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-fpwc@fvenphfnvafgvghgr.bet-53"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

5. International Cultural Heritage Law Summer School. University of Geneva invites applications for the summer school International Cultural Heritage Law (12 June – 23 June 2017). The summer school aims to develop the students’ awareness and general understanding of the main substantive themes of international cultural heritage law, namely: the trade in cultural objects; the restitution of stolen or looted artworks; the protection of cultural property in the event of armed conflict; the protection of the built heritage from natural and human-induced disasters; the safeguarding of the intangible cultural heritage and of the diversity of cultural expressions. More information on the course, program, fees, and deadlines are available here.

The Polisario case: Do EU fundamental rights matter for EU trade polices?

ejiltalk.org - Fri, 02/03/2017 - 09:00

On 10 December 2015, the General Court of the European Union (GC) rendered a judgment in the Council v. Front Polisario case that was revolutionary in many regards: not only did a national liberalization movement successfully challenge an EU trade agreement, the Court also considered the EU Charter of Fundamental Rights (CFR) applicable to non-EU citizens on a non EU-territory and in the context of trade policies (see previously, Geraldo Vidigal in EJILTalk).

A month ago and a year later, the European Court of Justice (ECJ) quashed the decision of the GC and denied legal standing for the Front Polisario. However, the door for a role of EU fundamental rights as a benchmark for EU trade policies is not yet closed. To the contrary, the ECJ’s conclusions brought to the fore an ugly truth that shows that the extraterritorial effects of EU trade policies are in urgent need of closer scrutiny.

The context and background of the case

The Front Polisario is a national liberalization movement representing the Sahrawi people in the resistance against Moroccan occupation. The Western Sahara, as a former Spanish colony, is recognized by the UN as a Non-Self-Governing Territory in accordance with Article 73 of the UN Charter. The right to self-determination for Non-Self-Governing Territories and the Western Sahara in particular, as well as, the need for an immediate transfer of powers to the Sahrawi people, has been stressed several times by the UN (here, here, here and here). However, Morocco continues to occupy large parts of the Western Sahara until today, while Polisario is controlling the remainder. The UN recognized Polisario as the legitimate representative of the Sahrawi people and in the peace negotiations with Morocco.

In February 2012, Front Polisario makes a rather unexpected move and seeks the annulment of the EU Council decision approving a Liberalisation Agreement that amends the Association Agreement between the EU and Morocco before the GC. The Liberalisation Agreement aims at progressive liberalisation of trade in agricultural and fishery products. (Later Polisario also files claims before UK Courts, which are now pending before the ECJ for preliminary ruling.)

In substance, Polisario claims the Liberalization Agreement will continue, as did the Association Agreement, to encourage economic domination by Morocco, which undermines the efforts towards the envisioned referendum on the realization of the right to self-determination (para. 143, 144). By doing so, the EU is (amongst others) infringing EU fundamental rights, the principles of coherence and the EU’s general objectives, principles and values and international law, including the right to self-determination.

The application clause in Article 94 of Association Agreement literally only speaks of the territory of Morocco. However, the agreement was de facto applied to the Western Sahara: The Commission’s Food and Veterinary Office several times physically present to control for the compliance with EU sanitary rule; numerous approved exporters on the EU list were in fact located in Western Sahara; and at the first hearing, the Commission and the Council ultimately admitted a de facto application (para. 87) and later an “application without recognition” (as the Advocate General summarized it, para 67).

The GC solved this discrepancy by qualifying these facts as subsequent practice according to Article 31 of the Vienna Convention of the Law of the Treaties (VCLT), which leads to an interpretation of the Association Agreement as applying to Western Sahara and Polisario an admissible claimant.

A duty to conduct Human Rights Impact Assessment and the extraterritorial application of the EU Charter of Fundamental Rights

The revolutionary aspects of the merits are first the confirmation of a duty of care in the context of foreign policies and more precisely of trade and second that the EU Charter of Fundamental rights should be part the necessary assessment. The GC begins by reiterating the settled case law, stating that the EU institutions enjoy a wide discretion in the field of external economic relations according (para. 164, 223). The Court reaffirms that judicial review is limited as to whether there has been has been a manifest error of assessment and adds that such review includes ‘to verify whether [the EU institution] has examined carefully and impartially all the relevant facts of the individual case, facts which support the conclusions reached’ (para 225 with reference to further case law).

Such assessment concerning the most salient issues of this case – which are the alleged human rights infringements in Western Sahara – was completely missing. The Court thus criticises the EU institutions for not having conducted a Human Rights Impact Assessment prior to adopting the Council decision. It needs to be noted, that this reasoning is in line with a previous decision by the EU Ombudsman in the FTA Vietnam case and the interpretation of extraterritorial human rights obligations by the UN Special Rapporteur on the right to food, Olivier De Schutter.

The Court also identified the circumstances that trigger an obligation to conduct an Impact Assessment in this case (for more on this, see Geraldo Vidigal). First, the fact that the Commission enjoys wide discretion which the Court found to be especially wide in this case ‘because the rules and principles of international applicable to the area [in question] are complex and imprecise’ (para. 223, 224). Second, the many incidents that point to a strategy of illegitimate annexation by Morocco of the Western Sahara and the likelihood of human rights violations occurring in that context next to the violation of the right to self-determination (para 235 – 246). Third, the Court found it important that the EU is by means of the trade agreement contributing to the human rights violations by ‘encouraging and profiting’ from the exploitation of the Western Sahara (para 231). The third argument can be explained as a response to the Council’s defence that human rights violations committed by a trade partner are always irrelevant for the EU (para. 230).

Yet, what is more extraordinary was what the GC defined as the substantive content of such an assessment: The full catalogue of the EU fundamental rights (para.228) – without any discussion.

The Advocate General Wathelet (AG) in his opinion delivered on 13 September 2016 agrees with the duty to conduct an impact assessment but limits the scope drastically (although in the alternative since he denies legal standing). First, citing the ATAA case and others, the AG reminds that human rights compliance and the strict observance of international law is a requirement for all external action and refutes the Council’s objection that human rights in a third country are only a political matter (para. 256). However, according to the AG, such an assessment should only cover jus cogens and erga omnes norms (para. 259, 276). Siding with the Commission and the Council, he criticises the GC for misinterpreting Article 51 of the Charter, which he understands as prescribing an in principle territorial application of the Charter.

Applying by analogy and without further explanation the case law of the European Court of Human Rights (ECHR), the AG concludes that extraterritorial application is only relevant when an activity is governed by EU law or carried out under the effective control of the EU and/or a Member State (paras. 270 – 272).

It is indeed surprising for everyone concerned with the extraterritorial application of human rights that the GC did not discuss the prevailing ‘effective control’ paradigm of international human rights law and/or approaches that are challenging the former, such as the Maastricht Principles.

On the other hand, it is noteworthy that the GC did not apply the Charter directly qua Article 51 of the Charter but rather in the context of Article 2 TEU, Article 3(5) TEU, Article 21 TEU and Article 205 TFEU (para. 159). The Court was thus giving a content to the vague reference of human rights as a principle, objective and value of EU external action. Interestingly, it is the same content that the Commission assigned to Article 21 TEU in its self-imposed guidelines on human rights impact assessment for trade related measures. In these guidelines, the Commission explicitly committed itself take into account the most relevant international human rights instruments including EU fundamental rights. Further, in the context of a HRIA of a trade measure, a test for ‘effective control’ seems misplaced.

In any case, understanding the principles and objective of Article 21 TEU as only requiring compliance of jus cogens and erga omnes norms is too restrictive. Such a reading would empty the several references to human rights in the constitutional framework of EU foreign policies. Jus cogens and erga omnes norms are without any doubt covered by international law and the references to peace and security.

A further question that remains is whether the case-law on the duty of care which has previously only been applied in the context of internal policies can be transposed to external policies and treaty making. The AG Wathelet – although relying on different case law that he finds more suitable – was maybe making matters to easy when stating that ‘the principles applicable in administrative procedures are applicable mutatis mutandis to legislative procedures’ (para. 223, 229). However, also here Article 21 TEU might help to reaffirm a duty to put human rights on the agenda precisely in the context of foreign policies.

No plaintiff, no judge or too illegal to be true

The ECJ, in its decision on the appeal denies standing of the Front Polisario, but leaves the door open for a role of EU fundamental rights in trade policies.

For the ECJ the determination of whether Polisario fulfils the direct and individual concern criteria of Article 263 (4) TFEU hinges on the scope of application of the Liberalization Agreement and the Association Agreement.

According to the ECJ’s application of the principle of the relative effect of treaties (pacta tertiis nec nocent nec prosunt) of Article 34 of VCLT, the Association Agreement cannot have been applied to a territory distinct from Morocco without the formers consent (for a commentary on this, see also Markus W. Gehring in EU Law Analysis). Such an interpretation would be contrary to the right to self-determination, which is an erga omnes rule of international law (para. 92). For the intention of breaching one of the most fundamental rules of international law, a higher threshold is apparently warranted. Subsequent practice or tacit agreement is not enough.

The ECJ did not really have another choice. In other words, the admissibility test of the ECJ gives a name to the involvement of the EU in the economic annexation of Western Sahara by Morocco and at the same time saved the EU from officially being complicit in – if the presented facts are true –an over a decade long infringement of the right to self-determination.

However, it is even more concerning that this is exactly what was de facto done.

This case uncovers the unawareness amongst the EU institutions as to their human rights and fundamental rights obligations. A methodology for implementing human and fundamental rights compliance in trade policies and a clear framework for their judicial review would therefore be helpful. With the EU Charter, the GC presented a valuable proposal for a normative framework that should not be dismissed too easily. The ECJ left the door open for a fundamental rights assessment, although it not repeat what the GC and the AG said, that is that such a duty is require in every case in which the institutions enjoy a particular wide discretion (para. 47). However, for now, the uncertainty of the role for EU fundamental rights in EU trade policy should lead EU policy makers to be better safe than sorry and get inspired by what EU conditional law has to offer.

Bringing this ambiguity to the fore and ending the de facto application of the Association Agreement (for the EU’s reaction after the first hearing, see here) is a success, also without a victory in court, for the Polisario liberalization movement and extraterritorial human rights protection.

In memoriam: Professor Sir Nigel Rodley

ejiltalk.org - Thu, 02/02/2017 - 09:00

There are international lawyers who make outstanding contributions to their fields. And there are international lawyers who actually create the fields we study and insert life into them.

Professor Sir Nigel Rodley was both.

Nigel’s scholarly interests long focused on the place of human rights in international law and the development of human rights law within international law.

His early work on international law was at the intersection of the law on the use of force and human rights. His 1973 American Journal of International Law article, co-authored with Tom Franck, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force remains the authoritative piece on the legality of unilateral humanitarian intervention under international law. His 1979 piece ‘Enhancing Global Human Rights’ in Foreign Affairs, co-authored with Louis Henkin, Richard Falk and Jorge Dominguez, asked how global human rights could be enhanced against the background of UN human rights treaties coming into force.

Nigel’s contribution to human rights in international law continued throughout his career. By the end of the 1980s, Nigel focused on the role of the International Court of Justice in advancing human rights in international law. His 1992 edited book To Loose the Bands of Wickedness: International Intervention In Defence of Human Rights – the astute and witty title as always a hallmark of Nigel’s writing – was one of the first to spot the then unexpected sea change in the involvement of the Security Council in humanitarian interventions. In 2007, revisiting humanitarian intervention in the aftermath of Kosovo in an article we co-authored, Nigel perceptively outlined the methodological challenges of international law in legalizing humanitarian intervention.

It goes without saying that general international law and how human rights figure in it would have benefited from more contributions from Nigel. His calling, however, was elsewhere.

The year that he published ‘After Bangladesh’ was the year that Nigel started to work at Amnesty International’s Legal Affairs and International Organizations section as their legal advisor. He left, seventeen years later, and moved to the Law School at the University of Essex and its Human Rights Centre. Nigel’s years at Amnesty International and Essex were also the years when international human rights law as a branch of international law effectively came into being in body and flesh.

Nigel was one of its makers.

Nigel was a maker of international human rights law in the most literal sense. He helped draft the 1984 Convention against Torture. He then became a leading interpreter of the international human rights law he helped create, first in his role as the UN Special Rapporteur on Torture between 1993 and 2001 and as a member of the UN Human Rights Committee between 2001 and 2016.

Nigel was also a maker of international human rights law as an academic field of inquiry. In his academic work that developed from and was nourished by his role as an international human rights law interpreter, Nigel focused on the evolving substantive content of international human rights law and how international human rights law sits in the universe of public international law. His monograph Treatment of Prisoners in International Law, published for the first time in 1987, was groundbreaking work on the substantive content of prohibition of torture and other forms of inhuman and degrading treatment. It placed both prisoners and international human rights law on the international law agenda. By establishing the treatment of prisoners as a domain of academic international legal inquiry, Nigel further opened the way for vulnerable groups to be the subject of study in international law.

Through his work on the prohibition of torture, inhuman and degrading treatment, prisoners’ rights, and humanitarian intervention, Nigel inspired thousands in his lifetime as an academic, teacher, mentor and public intellectual. His interventions as Special Rapporteur on Torture and as a member of the Human Rights Committee improved the lives of countless victims of human rights violations, and, at times, were central to bringing them to safety and putting an end to their torture or inhuman treatment. As his PhD student in the late 1990s, I remember him tirelessly fighting for the release of detainees from incommunicado detention in difficult places where they were under serious risk of torture. I also remember him succeeding.

In his interactions with colleagues and students, Nigel had the uncompromising mission of demanding the best of what anyone could be. He enjoyed good arguments and, with those, good disagreements. He enjoyed good humour. He detested garrulous talk. He was at once interested in making a difference on the ground and in the normative coherence and healthy political support for international human rights law. All these qualities, so rarely found in one single person, made Nigel a role model for human rights lawyers, advocates and researchers everywhere. At the 2016 ESIL Research Forum in Istanbul Nigel was in excellent form, approachable, full of wit and insight in his interactions with early career researchers. It is how we will remember him.

Global human rights advocates from all walks and professions, his countless students, his many friends mourn the death of Professor Sir Nigel Rodley. The pain of his loss is inexplicable for those he loved and who loved him. It is untimely at this critical juncture in the fight for the continued recognition of the prohibition of torture and other forms of inhuman and degrading treatment.

As international lawyers we mourn for Nigel, too. We have lost one of our greatest. International human rights law has lost one of its founding fathers.

Rattling Sabers to Save Democracy in The Gambia

ejiltalk.org - Wed, 02/01/2017 - 09:00

On 19 January 2017, ECOWAS’ deployed a military contingent from five West African countries to enforce results of the recent democratic elections held in The Gambia. This post raises a few interesting/critical questions regarding its legality and the prohibition on the use of force.

Background

Mr. Adama Barrow won those elections in a run down against (now former) President Yahya Jammeh. After initially acknowledging defeat, Mr. Jammeh, whose regime has been accused of committing gross human rights violations, reversed his position alleging election irregularities. On 18 January 2017, after Jammeh declared a state of emergency, the Gambian National Assembly voted to extend his term for 90 days. Barrow was sworn into office during a ceremony celebrated in the Gambian embassy in Dakar, Senegal on 19 January 2017, and immediately requested the UN, in particular the Security Council, the African Union and ECOWAS for assistance in installing his democratically elected government.

The Peace and Security Council of the African Union adopted a communiqué  noting concern for Jammeh’s rejection of the election’s outcome, and decided to coordinate its activities with ECOWAS and the UN to facilitate a speedy and orderly transfer of power to Barrow. More importantly, it stressed the AU’s determination “[…] to take all necessary measures, in line with the relevant AU Instruments[,]” to ensure full compliance with the outcome of the elections.

Not long thereafter, ECOWAS adopted its own communiqué on 17 December 2016 agreeing to:

  • uphold the result of the Gambian elections;
  • request the endorsement of the AU and the UN on the matter; and
  • “take all necessary measures to strictly enforce the results of the 1st December 2016 elections”.

The AU’s Peace and Security Council declared on 13 January the inviolability of the election results and ceased to recognize Jammeh as the legitimate president of The Gambia as of 19 January 2017. ECOWAS later sent a mediation team headed by the President of Liberia to try to settle the crisis albeit without much success. After Barrow’s swearing in, ECOWAS set Jammeh a deadline to step down on the 20th of January as it allowed a military contingent to gather on the border between Senegal and The Gambia. Later that day, it apparently authorized the troops to cross the border, making ECOWAS’ military presence in The Gambia a fact. At the same time, the UN Security Council adopted resolution 2337 (2017) condemning Jammeh’s rejection of the election outcome and his attempts to prevent the transfer of power. It also endorsed ECOWAS’ and AU’s decisions to recognize Barrow as the legitimate president of The Gambia and secure a peaceful transition. Crucially, it welcomed ECOWAS’ decision of 17 December 2016, without explicitly authorizing ECOWAS to use force expressing “its full support to the ECOWAS in its commitment to ensure, by political means first, the respect of the will of the people of The Gambia as expressed in the results of 1st December elections.”

Following this, ECOWAS ordered its troops to stop further advances, extended the deadline to Jammeh, and sent the Presidents of Mauritania and Guinea to further mediate and secure the transfer of power. After some tense hours, on the 21st of January, Jammeh announced his decision to step down observing that it was “not necessary that a single drop of blood be shed.” Following his departure to Guinea, ECOWAS troops entered the Gambian capital, Banjul, to prepare Barrow’s arrival and facilitate his instalment. Thus ended with a legally interesting twist of events the short lived electoral odyssey that dashed Mr. Jammehs’ hope to rule his country for ‘a billion years’.

Use of force and (pro-democratic) Intervention

As is well known, the UN Charter prohibits the use of force with the exception of self-defence and Security Council authorizations to enforcement action. Regional organizations may also use force when authorized by the Council under Article 53 of the Charter. In addition, States themselves may consent to the use of force in their own territory, although there are still lingering questions with respect to who is rightly authorized to give consent, and whether such consent can be given in a situation of a civil war. The ICJ recognizes the possibility of governments to request intervention in their support, but rejects that (armed) opposition groups would be able to do so too (Nicaragua, para. 246).

The main African regional arrangements allow intervention under certain circumstances in the territory of their member states (the AU in: Article 4(j) of the AU Constitutive Act of 2000 and Article 7(1)(e) and (f) of the Durban Protocol (allowing the AU Peace and Security Council to recommend intervention in i.a. situations of war crimes, genocide and crimes against humanity); the ECOWAS in: Article 25(d) and (e) of the 1999 Lomé Protocol, allowing intervention in situations of serious human rights violations or “in the event of an overthrow or attempted overthrow of a democratically elected government”).

In the last 20 years ECOWAS frequently intervened using force in various Africa countries, sometimes controversially given the explicit lack of authorization by the UN Security Council (Gray, p. 418-423). Of particular relevance to the Gambian crisis is ECOWAS’ practice to intervene on behalf of democratically elected governments in Sierra Leone, Ivory Coast and the Central African Republic. The lack of authorization to intervene in some of these situations is regarded as problematic given the text of Article 53 UN Charter, and given the checkered practice (sometimes intervention with Security Council approval after the fact, sometimes with consent of sitting presidents), it’s difficult to conclude that a right to militarily intervene on behalf of democratically elected governments without explicit authorization has been established under (regional) customary international law.

The issue of (unilateral or collective) pro-democratic intervention is related to the issue of consent and the proper/legal authorization to use force. In the past, scholars such as Reisman have argued that the phrasing of Article 2(4) of the UN Charter prohibiting the use of force would allow states to militarily intervene in situations when democracy is at risk by despotic regimes as long as the territorial integrity and political independence of states is guaranteed and in light of the lack of political will of the Security Council’s permanent members to act. Arguably, collective pro-democratic intervention authorized by the Security Council either to restore democracy (Haiti, 1994), or facilitate the installment of a democratically elected president (Ivory Coast, 2011) is regarded as legally acceptable. These two interventions have in common that the situation was determined by the Security Council to constitute a threat to peace and security. Less acceptable have been unilateral interventions partially justified to facilitate an elected president assume power (f.e. Panama, 1989).

The recent Gambian situation raises a number of questions and poses several legal challenges to ECOWAS’ action.

Authorization to use force under Article 53 UN Charter?

Contrary to initial reports, the UN Security Council most assuredly did not authorize the crossing of the border by the ECOWAS contingent on 19 January 2017. According to a news report, the resolution’s initial drafts included a paragraph supporting “ECOWAS in its commitment to take all necessary measures” to ensure the transfer of power to Barrow. Apparently, Russia wasn’t comfortable with this language and pressed for its removal. The resolution’s final text supports ECOWAS’ efforts to help Barrow get into power by political means first. An authorization to use force is arguably also not implicit in the language of resolution 2337, which does not in its preambular paragraphs even make a determination that the situation amounts to a threat/breach of the peace and security in the region, showing that at this point in time the Security Council was not prepared to give such an authorization. Statements from the representatives of Bolivia, Uruguay, and Egypt to the Security Council emphasizing that the situation did not amount to a threat to peace and security and that the resolution doesn’t give express authorization to use force confirm this. A news report, however, suggests that such authorization was formally not necessary given Barrow’s request to ECOWAS to intervene.

Whose Consent?

This bring us to the issue of consent. Here some doubts can be raised with respect to the legality of Barrow’s consent and ECOWAS’ potential responsibility for a breach of the prohibition on the use of force, which as a norm of customary international law would be applicable to the organization as it’s not party to the UN Charter (although the prohibition of Article 2(4) UN Charter would be applicable to individual ECOWAS member states). As is well known, Article 20 of the Articles on State Responsibility (ARSIWA) and of the ILC’s Draft Articles on Responsibility of International Organisations (DARIO) precludes the wrongfulness of an action if consent is given for such an action. In spite of the fact that Barrow had been sworn in as president, it’s doubtful whether he had the authority to give such consent since he was not in a position to exercise effective control over the Government of The Gambia. Against this position, one may argue that since Barrow received wide recognition by ECOWAS, the AU, and the UN as the legitimate Gambian head of state, he was entitled to invite ECOWAS to intervene. Another problem related to the consent may be traced to the form of such consent. Is Barrow’s swearing in speech requesting an intervention sufficiently formal to assume that consent was legally issued, or is an official document, letter, or presidential resolution required? In other words, does a verbal invitation constitute consent? Given the situation at that moment (a solemn, if improvised, ceremony, covered by world media and in attendance of ambassadors of ECOWAS and UN Security Council member states) Barrow’s request to intervene can be given the benefit of the doubt. It’s questionable, however, the extent to which Barrow’s speech contains any indication as to what are the limits within which ECOWAS is consented to intervene, making this aspect of his consent somewhat problematic (Armed Activities – DRC v. Uganda, para. 52).

Consent a priori?

One could argue that Barrow’s consent isn’t even necessary given that The Gambia by becoming party to the AU’s Constitutive Act and the ECOWAS Lomé Protocol has given previous consent to be intervened. Although this is an interesting position, it could be countered that the consent has to be contextual and that the provisions in the AU and ECOWAS instruments don’t give sufficient room for specific situations that are not provided in them. Thus, the ECOWAS Protocol states that intervention is possible in the event of an overthrow or attempted overthrow of a democratically elected government. Arguably that was not the case. Finally, according to article 26 of ARSIWA and DARIO acts contrary to a peremptory norm of general international law (jus cogens) may not be justified by circumstances that would otherwise preclude their wrongfulness, such as consent. Assuming that the prohibition on the use of force, as a norm of customary international law, is also a norm of jus cogens, consenting to an otherwise illegal use of force (because it has not been properly authorized by the UN Security Council or because the consent is somehow vitiated) would be contrary to this norm.

All in all, the situation seems to lead to the conclusion that the legality of ECOWAS’ military intervention is dubious. The verbatim records of the UN Security Council meeting leading to the adoption of resolution 2337, and a joint declaration issued on 21 January 2017 by ECOWAS, the AU, and the UN don’t reflect on the deployment of the ECOWAS military contingent in The Gambia. Although the African practice with regard to jus ad bellum merits attention, the danger is that this latest example of regional intervention will come to reside next to others in the unfortunate category of illegal, yet legitimate interventions, thereby undermining the credibility of the Security Council’s position to engage in regional conflicts through regional organisations under Article 53 of the Charter. The seemingly laconic response to this situation – it would appear nobody cares for the legality or illegality of ECOWAS’s use of force as long as the bad guy was displaced – may further cement the impression that the rule of law (hailed as the prevailing aspect of Barrow’s installation into power and Jammeh’s acceptance of the election results through some political and military arm twisting) is only for those who can rattle the sabers in the right manner and that the prohibition on the use of force is relative.

Economic Nationalism in a New Age for International Economic Law: Recalling Warnings of Ludwig von Mises and the Austrian School

ejiltalk.org - Mon, 01/30/2017 - 22:02

International economic law developments barely one month into 2017 have been nothing short of tectonic this side of the Atlantic. From US President Trump’s first executive action to withdraw the United States from the unratified Trans-Pacific Partnership; his subsequent announcement (later called mainly an option) to impose a 20% border tax on Mexican imports into the United States to finance a wall between the two countries; a declared initiative to renegotiate the North American Free Trade Agreement (NAFTA) that was signed under the administration of Republican President George Bush; unprecedented changes to the United States National Security Council removing the nation’s top military, intelligence, and security advisers to only permit regular attendance for White House chief strategist Steve Bannon and more limited attendance of the chairman of the Joint Chiefs of Staff and the Director of National Intelligence; threats of punitive tariffs against China and accusations of illegal currency manipulation; to last Friday’s latest executive order announcing a travel ban against individuals from seven predominantly Muslim states (approximately 218 million persons) and the 4-month suspension of any refugee entry, as a possible first step to a broader ban – it is becoming all too clear that barely ten days into the new presidency, the United States will not be above reversing, abandoning, disregarding, or defecting from any of the established rules and institutions of international economic law, through extraordinary actions and reversals that have scarcely any or no inter-agency vetting and consultation, and significantly, with the new president declining to divest himself from all business interests or to introduce transparency and consultation measures even as these political-security-economic policy reversals continue to be formulated with relative opacity. The Dow Jones industrial averages and NASDAQ composite index both dropped with the sudden rush to sell off US equities, and American private companies have taken to hiring crisis management and communication firms for the new age of undisclosed and sudden economic policy reversals, reviewing operations and mergers against possible charges of being “Anti-American”.

There is little surprise in the resurgence of economic nationalism around the world – most markedly in the United States and Brexit-era United Kingdom – following the 2008 global financial crisis. Previous eras of economic nationalism took place in the 19th century, the aftermath of the 1929 Great Depression, as well as the 1998 Asian financial crisis and its contagion effects on related economies. [See Sam Pryke, Nationalism in a Global World, Palgrave Macmillan, 2009, pp. 67-77.] The questions raised by Conservative British politician Sir Arthur Salter in the early 1930s remain just as apt for scholars, experts, politicians, decision-makers, and communities to ponder and debate in any era of economic nationalism:

The world is now at one of the great cross-roads of history. The system, usually termed capitalist but I think better termed competitive, under which the western world has made its astonishing progress of the last century and a half, has developed deep-seated defects which will threaten its existence unless they can be cured. We need to reform, and in large measure to transform, this system. We need so to improve the framework of law, of institutions, of custom and of public direction and control, that the otherwise free activities and competitive enterprises of man, instead of destroying each other, will inure to the general good. In the organization of industry, of credit, and of money, we need to supplement the automatic processes of adjustment by deliberate planning. This is the specific task of our age. If we fail, the only alternatives are chaos or the substitution of a different system incoherent with political and personal liberty, perhaps after an intervening period of collapse and anarchy.

Now in every aspect of this great task one fundamental issue constantly occurs. Upon what basis are we to plan, at what goal should we aim? Are we to move more and more toward a system of closed units, with political and economic boundaries co-terminous, each aiming at a self-sufficiency with no more than a minimum of external relations? Or are we to aim again at building up world trade within the framework of a world order? It is an issue which presents itself urgently to the world as a whole and to each nation. No complete realization of either ideal is of course practicable…

We must understand the real alternatives clearly. The choice is not, of course, between a complete suppression of international trade on the one hand and its complete freedom on the other. In any event some foreign trade will and must take place. No country, or even continent, is completely self-sufficient or will be content to forego everything which it cannot itself produce. Nor, even so far as self-sufficiency is aimed at and achieved, will it always be coterminous with that of political sovereignty. (Sir Arthur W. Salter, The Future of Economic Nationalism, 11 Foreign Affairs 1, Oct. 1932, pp. 8-20 at pp. 8-9.)

Disentangling from the postmodern international economic system altogether – as the United States now appears positioned to do by acting at will to disregard existing institutions and moving to abandon treaties that have long been executed and implemented – is indeed a radical step with a myriad of unforeseen consequences in the years ahead. A United States world power that withdraws to a foreign policy regime of “America First” ultimately rests on a philosophy of internally strengthening domestic markets, the means of production, and the competitiveness of labor within defined borders – a similar move espoused by the then newly industrializing countries (NICs) Japan and South Korea, and later China and several Southeast Asian new tigers, in the 1970s to the 1990s (Mark Selden, Economic nationalism and regionalism in contemporary East Asia, in Globalization and Economic Nationalism in Asia, Oxford University Press, 2012). The difficulty in this premise – as discovered by the same NICs themselves – is that economic nationalism itself is an unsustainable policy that will also inevitably lead to economic failure and international conflicts, as the famous Austrian economist and historian Ludwig von Mises cautioned and anticipated in 1943:

“Economic nationalism results in war if some nations believe they are powerful enough to brush away, by military action, the measures of foreign countries which they consider as detrimental to their own interests…

We have to realize that even protectionism cannot make government interference with business work and achieve the ends sought. All that it can bring about is to delay for a shorter or longer time the appearance of the undesired consequences of interventionism. Its failure must finally become manifest. The schemes to raise by decree or by trade union pressure the income of the wage earners above the height fixed by the unhampered market must necessarily sooner or later result in mass unemployment prolonged year after year; protection can only postpone this effect, but does not brush it away. But it is exactly this temporary adjournment which the supporters of interventionism aim at. It disguises the futility and ineptitude of their cherished policies. If the detrimental effects of their measures were to appear immediately, the public would more quickly understand their vanity. But as they are delayed, the champions of government control and trade unionism have in the meantime the opportunity to boast that the employers were wrong in predicting that the artificially raised wage rates and the burdens imposed upon business by discriminatory taxation and by labor legislation would make their plants unprofitable and hamper production.

Economic nationalism is the necessary complement of the endeavors to interfere with domestic business conditions….The tariff barriers against imports are especially nonsensical when erected by creditor nations. If the debtor nations in accordance with the terms stipulated pay interest and repay the principal of the debts and if they do not hinder the foreign investors taking out the business profits earned, their balance of trade must show an excess over imports, i.e., become favorable. Concomitantly the balance of trade of the creditor nations becomes unfavorable. The terms “favorable” and “unfavorable” are, of course, misleading. It is not unfavorable to be a rich nation and to receive large payments of interest, dividends, and profits from abroad. Great Britain was in the past century the world’s richest nation, not although, but because it had a very “unfavorable” balance of trade.

The United States, in the years of its glorious geographic and economic expansion, had offered very propitious investment opportunities for foreign capital. The capitalists of Western Europe provided a part of the capital needed for the construction of American railroads and for the building up of American mining and American processing industries. Then later the Americans began to repatriate the stocks and bonds owned by foreigners; these operations made the nation’s balance of trade active. With the First World War things changed. America became a creditor nation, the greatest capital exporting nation. Its favorable balance of trade—in the years 1916 to 1940 the excess of exports over imports was about 30 billion dollars—had now another significance; it was the outcome of the loans granted abroad and of investments in foreign countries.

But at the same time American tariff policy made the payment of interest and the transfer of dividends more burdensome to the debtor nations. The same policy was applied by the other creditor nations, for instance Great Britain, France, the Netherlands, Belgium, and Switzerland. The debtor nations were, it is true, not very enthusiastic about the payments they had to make; debtors mostly are not very anxious to keep to the terms of the contract. But the conduct of the creditor nations, which sensibly prejudiced their interests, provided them with an opportune pretext for refusal to pay. They took recourse to currency devaluation, foreign exchange control, moratoriums and some of them even to open repudiation and bankruptcy…

The truth is that modern nationalism is a corollary of the domestic policy of government control of business. It has been demonstrated that government control of business would manifestly fail already in the short run if the country is not isolated from the rest of the world. A government aiming at full regimentation of business must aim at autarky too. Every kind of international economic relations impairs its power to interfere with domestic business and limits the exercise of its sovereignty. The state cannot pretend to be an omnipotent god if it has to bother about its citizens’ ability to compete with foreign business. The outcome of government interference with business is totalitarianism, and totalitarianism requires economic self-sufficiency…Protectionism and autarky mean discrimination against foreign labor and capital. They not only lower the productivity of human effort and thereby the standard of living for all nations; they create moreover international conflict.

There are nations which for lack of adequate resources cannot feed and clothe their population out of domestic resources. These nations cannot aim at autarky, but by embarking upon a policy of conquest. With them bellicosity and lust of aggression are the outcome of their adherence to the principles of government control of business. This was the case with Germany, Italy, and Japan. They said that they wanted to get a fair share of the earth’s resources, thus they aimed at a new distribution of the areas producing raw materials. But these other countries were not empty; their inhabitants were not prepared to consider themselves as an appurtenance of their mines and plantations. They did not long for German or Italian rule. Thus there originated conflicts….

Every nation has to choose. The United States too. The alternative is: unity among the peace-loving nations or return to the chaos out of which new conflict will originate. But unity is incompatible with protection. Every day experiences anew that the good neighbor policy among the American republics comes into collision with economic nationalism. How should Latin America and the European democracies enter into a close political collaboration with the United States if their citizens suffer from American foreign trade policies?

If economic nationalism is not abandoned the most radical disarmament will not prevent the defeated aggressors from entering anew the scene of diplomatic intrigues, from building up new blocks and spheres of interest, from playing off one nation against the others, from rearming and finally from plotting new attacks. Economic nationalism is the main obstacle to lasting peace.”

The main difficulty with economic nationalism – at least as currently espoused this side of the Atlantic – lies with identifying its real beneficiaries. While many sectors can applaud the United States’ withdrawal from the Trans-Pacific Partnership or its planned renegotiation of NAFTA, there is also no determined operational policy in place for consultation with all affected local communities and private sector stakeholders to ensure the fairest representation of interests in the new era of economic nationalism. The premise of economic nationalism is that the State somehow fully capsulizes, considers, and protects all interests in the calibration of normative choices taken by political leadership. History has shown that well that the State is not as reliable an agent either for dislocated, disadvantaged, unrepresented, and disregarded local communities directly impacted by international and domestic economic rules – who are often rule-takers rather than rule-shapers. In an era where the current architecture of the international economic order will soon be redrawn by many States and globally influential players with evanescent and non-transparent policies, and who all use different bases for leverage in the negotiating table – including a newly economically nationalist United States – economic nationalism ultimately acts as a deceptive panacea for neglected local communities who, in the end, have naught to do but again repose faith in the ability of politicians to represent them.

Remembering Professor Gillian White (1936—2016)

ejiltalk.org - Mon, 01/30/2017 - 14:00

The Manchester International Law Centre is saddened to announce the death of Professor Gillian White, former Professor of International Law at the University of Manchester, in Tamworth, New South Wales, on 2 August 2016.

Gillian Mary Fraser, née White, was born on 13 January 13 1936 in Woodford, Essex. She obtained a first class Bachelor of Laws degree from King’s College, London in 1957, attending classes as an evening student while she worked as an Assistant Examiner in the Estate Duty Office. She then proceeded to study for her Doctor of Philosophy, awarded by the University of London in 1960, the year in which she was also admitted to Gray’s Inn. In 1961, she moved to Cambridge, where she acted as research assistant to Sir Elihu Lauterpacht QC, and as Research Fellow in Law and Director of Legal Studies at New Hall, now Murray Edwards College, and subsequently to the then Victoria University of Manchester, where she spent the remainder of her career. Appointed as a lecturer by Manchester in 1967, she was promoted to senior lecturer in 1971, and to reader in 1973, before succeeding Ben Wortley as Professor of International Law in 1975. This was a significant appointment as Professor White was the first woman appointed as a professor in law in mainland Britain, and the first as a professor of international law in the United Kingdom. She subsequently acted as Dean and Head of Department at Manchester for a number of years, before retiring in 1991.

On her appointment, Professor White continued a line of distinguished international lawyers at Manchester. James Brierly was professor in the early 1920s, and Ben Wortley arrived as a lecturer in 1933. Before Professor White arrived, Professor Wortley’s junior colleagues had been Derek Bowett (1951–1960) and then Don Greig (1961–1963). In her time, Professor White was assisted by, amongst others, Vaughan Lowe (1979–1986) and Catherine Redgwell (1987–1990).

One of Professor White’s enduring legacies is the inauguration in the 1970s of a monograph series, the Melland Schill Studies in International Law, published by Manchester University Press, which has hosted the publication of ground-breaking works such as Robin Churchill and Vaughan Lowe’s Law of the Sea (1983; the fourth edition is currently in preparation), Tony Carty’s The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in International Affairs (1986), Leslie Green’s Contemporary Law of Armed Conflict (1993; the fourth edition of which has recently been commissioned), General Tony Rogers’ Law on the Battlefield (1995; third edition, 2012), Nigel White’s Law of International Organisations (1996; third edition, 2016), and Hilary Charlesworth and Christine Chinkin’s The Boundaries of International Law: A Feminist Analysis (2000). This monograph series was recently revived in the spirit originally envisaged by Professor White. New titles have been commissioned, and the editors plan to republish some works currently out of print: Sir Robert Jennings, Acquisition of territory in international law will be reissued in June 2017 with a new introduction by Professor Marcelo Kohen, and Carty, as well as Charlesworth and Chinkin, will be republished with substantial new introductions by the authors in due course.

Professor White’s research focused on two specific and then under-researched areas: the use of experts by international tribunals and, more importantly, international economic law. The latter became her domain, and her work in this area was an achievement which Dame Rosalyn Higgins has described as being in that era “daunting” and “pioneering”. Indeed, on the basis of Professor White’s publications, it would have been more apt had she been appointed as professor of international economic law but, in the mid-1970s, international economic law was perceived as a peripheral area of international legal scholarship. Her contribution to the development of this field was enormous. She was one of the first of very few academics in the UK to carve out the province of international economic law.

Commenting on the adoption by the United Nations General Assembly of the Charter of Economic Rights and Duties of States in 1974, Professor White regretted the lack of a broader academic discourse on how legal rules could shape economic relations between States, and affirmed the role of international lawyers in the transformation of “policy and rhetoric into international legal rules which can effectively govern a new international economic order” (White, ‘A New International Economic Order?’, (1975–76) 16 Virginia Journal of International Law 345.). A convinced multilateralist, Professor White was at the forefront of the development of international economic law as we know it today. For instance, in the area of trade, she advanced a strong defence of a rule-based world trading system. Even before the creation of the World Trade Organization in 1986, Professor White had consistently argued for a radical shift from the diplomacy-oriented trading regime that had stifled the development of hard law in the General Agreement on Tariffs and Trade era towards a rule-based trading system. She argued at the outset of the existence of the World Trade Organization that its Members should give serious attention to the interpretations developed by its Panels and Appellate Body, seeing the rules of interpretation codified in the 1969 Vienna Convention on the Law of Treaties as the most “suitable tool” for the interpretation of trade agreements. This set the pace for the international legal scholarship that followed.

Professor White was a popular and impressive lecturer. Professor Margaret Brazier of the University of Manchester, who was taught by her as an undergraduate, remembers that she:

first taught me English Legal System. She made a fairly dull topic come to life and we all noticed that from time to time International Law entered into her lectures and then her face lit up. So in the second year when we studied Public International Law, which was then compulsory in Manchester, Gillian taught her first love. She made the “cod wars” with Iceland live for the class. Many of my female fellow students (of whom there were then only eleven) had Gillian as their personal tutor and testified to her kindness and common sense.

Gillian White married an Australian farmer, Colin Fraser, in her early forties. They met on holiday in Norway, and Mr Fraser abandoned his planned tour of Europe in order to woo her. They were married in April 1978 and lived in England before moving to Australia after she retired. He readily gave up his life in Australia to be with Gillian until her retirement. She then thought it was her turn to change her life so that he could return to his. They were together for thirty-six years, until Colin’s death in 2015.

Gillian White was a devout Anglican, and her care, concern, and kindness for others dominate reminiscences of her private life. There are countless examples of this – for example, she regularly made the long and indirect journey from Manchester to Cambridge to visit an ailing and elderly Joyce Gutteridge during her final and protracted illness. Miss Gutteridge was a formidable figure in her own right, appointed as the first woman legal adviser to the Foreign Office in 1950, she was the most senior female member of the Diplomatic Service at the time of her retirement in 1966. Professor White was also instrumental in supporting a palliative care facility in Tamworth, the town to where she and her husband had retired. It is fitting that it was there that she ended her days.

Gillian White was a ground-breaker: a pioneering woman academic who inspired many colleagues over decades. To celebrate her legacy, the Manchester International Law Centre, with the generous support of the School of Law, has established a new annual public lecture in her name. The inaugural lecture will be delivered by Professor Mary Footer (University of Nottingham) on 7 March 2017 [register here]. The Annual Gillian White Lecture will be administered by the Centre’s newly created Women in International Law Network, which has the aim of providing a professional community for women international lawyers at all stages of their careers.

New Issue of EJIL (Vol. 27 (2016) No. 4) Published

ejiltalk.org - Mon, 01/30/2017 - 09:30

The latest issue of the European Journal of International Law (Vol. 27, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Simon Chesterman’s Asia’s Ambivalence about International Law and Institutions: Past, Present and Futures. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Announcements: The View from the EU Bench Event; University of Helsinki Vacancies; CfP Representing Extraterritorial Accountability; New additions to the UN Audiovisual Library of International Law; BIICL Short Courses

ejiltalk.org - Sun, 01/29/2017 - 09:00

1. City, Univesity of London: The View from the EU Bench – A Conversation with Judge Lars Bay Larsen (European Court of Justice). The City Law School, under the aegis of the Jean Monnet Chair in EU Law, is delighted to invite you to the following event: The View from the EU Bench: Judge Lars Bay Larsen (European Court of Justice) in conversation with Professor Panos Koutrakos. Judge Bay Larsen will hold a conversation about his role as a Judge of the European Court of Justice, a position which he has held since 2006, with Professor Panos Koutrakos, Professor of European Union Law and Jean Monnet Chair in EU Law at City Law School.  Professor Sir Alan Dashwood, City, University of London will Chair. The event takes place on Tuesday 21 February 2017 at 18:00 at City University London, College Building, St John Street, EC1V 4PB – Room A130. The event will be followed by a wine reception. Attendance is free. You may sign up here. The event will be accredited for 1 hour CPD. For information, you may contact Mr Ben Cope (Ben.Cope {at} city.ac(.)uk var mailNode = document.getElementById('emob-Ora.Pbcr@pvgl.np.hx-53'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%42%65%6E%2E%43%6F%70%65%40%63%69%74%79%2E%61%63%2E%75%6B"); tNode = document.createTextNode("Ben.Cope {at} city.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-Ora.Pbcr@pvgl.np.hx-53"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

2. University of Helsinki Professor Vacancies. The Faculty of Law of the University of Helsinki is looking for two professors (or associate professors) in fields relevant to international law. One appointment is in Law and Globalisation, the other in Transnational European Law. Both positions can be filled either as regular professorships or as tenure track positions, depending on qualifications and experience.

3. Representing Extraterritorial Accountability – Call for Proposals. This conference will be held on 28-29 May 2017 at Haifa University, Israel and is a collaboration between the University of Haifa Master of Fine Arts program and the Faculty of Law. The conference aims to problematize representations of exterritorial accountability in law, media, and visual culture. It will offer a forum for discussion among lawyers, artists, and scholars whose work concerns events that occur beyond territorial jurisdiction and raises urgent moral, political, and legal questions. We propose to consider state action beyond its borders, whether such action produces violence or generates opportunities for rescue. Focusing on contemporary extraterritorial policies sheds light on multiple problems of global impact – refugee and climate crises, contemporary warfare and cross-border policing, surveillance, and cybercrime. We will dedicate our discussion to six themes, with one panel dedicated to each: (1) Interdiction, Detention, Interrogation; (2) Targeting and Assassination; (3) Pollution and Resource Extraction; (4) Humanitarian Intervention and Rescue; (5) Tax Havens and Offshore Finance; and (6) Surveillance and Espionage. We invite proposals from any discipline focusing on any of these general themes. Proposals must consist of an image you wish to respond to or present as a springboard for conversation, a short (400 word) abstract providing an outline of your talk, and a short resumé or biographical note. The proposal deadline is 28 February 2017. Submissions should be sent to Dr. Maayan Amir / Dr. Itamar Mann: exterritorialityconference@gmail.com.

4. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Jorge E. Viñuales on “The International Law of Climate Change after the Paris Agreement” and “Environmental Protection in Customary International Law”.

5. BIICL Short Course – Public International Law in Practice. This British Institute of International and Comparative Law short course, on 3 and 4 April 2017, is lead by Professor Robert McCorquodale, Institute Director. Public International Law in Practice and is a dynamic course of applied public international law run by the British Institute of International and Comparative Law. This two-day programme is focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Led by many of the Institute’s leading researchers and practitioners, the course is designed to give a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international resolution of disputes, from human rights to international investment law. See here fore more details and booking information.

6. BIICL Short Course – Rule of Law: From Principles to Practice. This British Institute of International and Comparative Law short course, on 5 April 2017, is lead by Justine Stefanelli, Maurice Wohl Associate Senior Research Fellow in European Law. The rule of law has universal relevance for all involved in the law, justice system and legal policy. This innovative course introduces participants to using the rule of law as a practical tool for legal work in a wide range of areas both within the UK and internationally. When you attend this course, you will explore the different elements of the rule of law in concrete terms, thinking about how rule of law principles apply in a wide variety of areas, and discovering how to draw on the rule of law as an invaluable principle and framework. It will be conducted as interactive discussions, with case studies and practical examples, as applied learning. The Bingham Centre’s leading rule of law experts deliver the sessions that are aimed not only at those in legal practice, but also NGO staff and academics who work on law reform and legal policy. The sessions use rule of law standards, such as the Venice Commission’s Rule of Law Checklist, as a touchstone and resource that translates the rule of law into a detailed set of questions and issues. See here for more details and booking information.

Turkish Military Intervention in Mosul: A Legal and Political Perspective

ejiltalk.org - Fri, 01/27/2017 - 09:30

In October 2016, Turkey deployed hundreds of its armed troops to the Iraqi town of Bashiqa, 12 kilometers northeast of Mosul held by Islamic State. Meanwhile, Iraqi officials have called for Turkey to withdraw its forces from Iraq’s territory. Relevantly, one of the most important questions is whether Turkish military intervention in Northern Iraq has a legal basis.

First of all, it should be noted that, although there have been serious violations of human rights (mainly sectarian and ethnic divisions within the area) during the internal armed conflicts in Iraq, legally any reason cannot be accepted as a justification for military interventions and violations of the sovereignty and territorial integrity of a State. From this point of view, Turkish intervention in Iraq is a violation of the principle of respect for territorial integrity and political independence of the States which includes the inviolability of the territory of the State. As stated by the International Court of Justice (ICJ) (for example in Accordance with International Law of the Unilateral Declaration of Independence of Kosovo, Advisory Opinion, 2010, para. 80), the principle of territorial integrity, which is underpinned by the prohibition of the use of force in customary international law  and Art. 2(4) of the United Nations Charter is an important part of the international legal order and its scope is confined to the sphere of relations between States. By the way, although the recent Turkish military intervention in Mosul is not its first-time violation in Iraq –it has consistently attacked PKK (Partiya Karkerên Kurdistanê) militants in Iraq since 2003– it should be noted that the justification given by Turkey for the violation of the principle of territorial integrity that it has just conducted in Northern Iraq, is self-defense against Islamic State and the PKK.

Claims Based on the Frontier Treaty 1926 Between Turkey and Iraq

Historically, Mosul was part of the Ottoman Empire until the end of World War I, but as a result of the occupation of Mosul by Britain in 1918 after oil was found in the region, the issue- settlement of the Frontier between Turkey and Iraq- was redirected to The League of Nations Council. The League found that Iraq should retain Mosul, and as a result the new Republic of Turkey reluctantly assented to the decision by signing the “Frontier Treaty” with Iraq in 1926. Finally, Turkey was convinced to peace by supporting the independence of Iraq. Moreover, Turkey agreed to act according to the Treaty mainly because Iraq agreed to give a 10% royalty on Mosul’s oil deposits to Turkey for 25 years (art. 14). The 1926 Frontier Treaty which is known also as the Ankara Treaty was signed in Ankara on June 5, 1926 by the United Kingdom and Turkey to determine political borders between Turkey and Iraq and to regulate neighborhood relations. The Treaty contains a preamble and 18 articles and entered into force on February 20, 1926.

According to the common view among the majority of Turkish scholars and as stated by former Turkish President Abdullah Gul, by signing the 1926 Treaty Turkey left Mosul to Iraq only on the condition of “non-disruption of the national unity and the territorial integrity of Iraq in any case” (see “Abdullah Gül: Irak Bölünürse, Hakkımız Doğar”). In this regard, they claim that since currently the national unity and the territorial integrity of Iraq has been disrupted as a result of Islamic State’s terrorist actions and occupation of a main part of Iraq’s Northern territory, Mosul by this armed group, Turkey has intervened in Mosul to fight against Islamic State because Islamic State’s terrorist acts in the frontier zone also threaten Turkish national security and its sovereignty. Furthermore, they believe that the Turkish attitude is grounded in the statement, “by all means in their power”, of Article 6 of the 1926 Treaty which reads: “The High Contracting Parties undertake reciprocally to oppose by all means in their power any preparations made by one or more armed individuals with the object of committing acts of pillage or brigandage in the neighbouring frontier zone and to prevent them from crossing the frontier”. In other words, by a broad interpretation of this provision they argue that the provision of Article 6 allows Turkish military to intervene in Iraq in order to ensure the sovereignty and territorial integrity of Iraq in Mosul which is majorly inhabited by ethnic Turkmens who associate themselves with Turkic ethnic origins and mostly adhere to a Turkish heritage and identity. Turkey also relates its intervention to the protection of its kinsmen in the region.  From this point of view, occupation of, and committing terrorist attacks in, the frontier zone of Turkey-Iraq could be interpreted as acts of “pillage or brigandage in the neighboring frontier zone of Turkey-Iraq” as stated in Article 6 of the 1926 Treaty.

However, it should be noted that these justifications do not have a legal basis. First, application of the 1926 Treaty on the condition of non-disruption of the national unity and the territorial integrity of Iraq is not a part of the 1926 Treaty as an international frontier treaty. Secondly, a broad interpretation of Article 6 in order to confer the right to military intervention in Iraq’s territory is inconsistent with the Treaty’s objects and purpose. Actually, such interpretation is not in compliance with the ordinary meaning to be given to the terms used in Article 6 of the Treaty. According to the 1969 Vienna Convention on the Law of Treaties, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (art. 31(1)). As Shaw argues, “…any true interpretation of a treaty in international law will have to take into account all aspects of the agreement, from the words employed to the intention of the parties and the aims of the particular document. It is not possible to exclude completely any one of these components” (International Law, 7th Edition, 2014, p. 676). From this point of view, it would not be accurate to state that the provision of Article 6 of the 1926 Treaty allows military intervention of States parties in each other’s internal affairs, because the boundary treaties between States are signed based on mutual respect for the sovereignty and respective rights and interests of the parties. It means that the boundary treaties cannot be interpreted broadly in favor of one side of the Treaty. In simple terms, a broad interpretation of the provisions foreseen in the boundary treaties between two or more States could cause them to go beyond the international norms.

Nevertheless, Turkish violations of Iraqi sovereignty and its territorial integrity by military intervention in Mosul could be discussed in the context of some of the political justifications. As argued by Turkish officials, Turkey is seeking to protect its economic and political interests in Mosul (Northern Iraq) while fighting against PKK and the Islamic State. Politically, Mosul is very significant for Turkey, not only for Islamic State being in the Iraqi territories but also for the presence of the PKK in this region that genuinely threatens Turkish national security in the Turkey-Iraqi border region. It has been evidenced that the PKK has established a de facto and military administration in Sinjar, west of Mosul after entering to Sinjar to fight against Islamic State as the Sinjar resistance (see Chulov/Hawramy, “Peshmerga Forces Enter Sinjar in Fight Against ISIS”). Practically, Turkey’s main concern is the filling of any possible power gap emerging in Northern Iraq by the PKK. In other words, although Sinjar is rescued from the Islamic State occupation, the Iraqi central government still has no power to manage this region.

From a legal point of view, as the ICJ pointed out in the Corfu Channel Case, “the alleged right of intervention [is] the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot find a place in international law”(Corfu Channel Case, Judgment of April 9th, 1949: ICJ Reports (1949), p. 35). Accordingly, respect by independent States for each other’s territorial integrity and sovereignty forms the basis of international relations. However, it could be said that from a political point of view, military intervention in Mosul by Turkey as a country that has been confronted with terrorist actions of separatist militants of the PKK for more than 40 years, is justifiable. Quite differently, in this case, international law prohibits such an intervention under any circumstances. What is more, the Iraqi government is not able to take any action towards the PKK which has occupied Iraqi territory in Sinjar in violation of Iraq’s sovereignty. In a short sense, strengthening of the PKK in Iraq means that Turkish national security will inevitably be even more threatened. From this perspective, it may be said at first sight that Turkish military intervention in Iraq based on the right of self-defense is justifiable by the inability and unwillingness of the host State, Iraq, to suppress the threats of non-state armed groups. However, as the ICJ stated, “There is no rule in the customary international law permitting another State to exercise the right of self-defense on the basis of its own assessment of the situation”(see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment I.C.J. Reports 1986, para. 195, p. 104).  This means that the ICJ also has not accepted the theory of unwilling or unable. In other terms, it is only a theory that has no basis in customary international law.

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