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Arms Exports to Saudi Arabia in the High Court: what is a “serious violation of international humanitarian law”?

ejiltalk.org - Mon, 04/03/2017 - 08:00

As readers will be aware, the UK High Court is presently considering a high-profile case challenging UK arms exports to Saudi Arabia. Arguments in the judicial review proceedings brought by Campaign Against Arms Trade were heard in February and judgment is awaited.

Although brought under English law, the case potentially implicates various international law questions. This post focuses on the interpretation of the expression “serious violation of international humanitarian law” (“IHL”) which the government appears to be advancing in the case. By narrowing the concept to include only war crimes, its position has significant implications for the international law regulation of the arms trade in general. This post will argue that the proposed definition should be rejected.

For further information on this and other international law issues arising in the case, the claimant has posted much of the open documentation produced by both sides on its website. This post draws heavily on those documents, and on the author’s notes of the open hearings.

The Issue Before the Court

The claimant challenges the government’s decisions to continue granting licences (and not to suspend existing licences) for arms exports to Saudi Arabia. That challenge is based primarily on alleged breaches of IHL by Saudi forces involved in the ongoing armed conflict in Yemen. Criterion 2(c) of the UK statutory guidance applicable to arms exports (the “Consolidated Criteria”) prohibits granting a licence “if there is a clear risk that the items might be used in the commission of a serious violation of international humanitarian law”. The claimants argue that given the evidence of previous breaches, the government should have concluded that such a clear risk existed.

Much of the analysis depends upon English administrative law rules for assessing government decisions. However, the nature of the risk to be considered – a serious violation of IHL – necessitates at least some engagement with international law. Not only does the expression directly refer to IHL, but it is identical to that used at Article 7 of the UN Arms Trade Treaty (“ATT”) of 2013, which also requires states to assess the risk of such violations when considering arms export licences.

The focus of this post is the effect of the qualifier “serious”, in both the Consolidated Criteria and the ATT. Since the Consolidated Criteria are supposed to be sufficient to ensure the UK’s compliance with the ATT, it appears that the government’s interpretation of the expression in the former would of necessity apply equally to the latter. This post will proceed on that basis.

Violations of IHL

IHL obligations arise under both treaty and customary law. Of particular relevance here are those obligations to be observed by states in launching an attack. They include prohibitions on targeting civilians, obligations to take all feasible precautions to minimise civilian losses, and a prohibition on launching an attack where such losses may be expected to be excessive in relation to the anticipated military advantage. Failure by a state or organised armed group to comply with these obligations will amount to a violation of IHL, giving rise to its responsibility under international law.

Certain specified violations of IHL are in addition capable of giving rise to criminal responsibility on the part of their individual perpetrators. These include violations described as “grave breaches” in the relevant IHL treaties, and other violations established as crimes under customary law. The Rome Statute of the International Criminal Court includes a list of war crimes over which that court has jurisdiction, comprising both grave breaches and some (but not all) of the customary crimes. In this post “war crimes” will be used to describe all of these categories of criminal breach.

In keeping with their criminal law nature, war crimes generally require not only that one of the specified IHL rules be breached, but that the individual perpetrator have a particular mental attitude in relation to their conduct. For the obligations of interest here, this requires at least knowledge of the probable consequences of the attack (see Ryan Goodman’s helpful summary of the difference in this respect between war crimes and other IHL breaches here). As Ryan’s summary makes clear, an attack which lacks the required intent or knowledge, but the consequences of which for civilians should have been known to be excessive or could have been reduced with further precautions, can violate IHL (giving rise to State responsibility) without amounting to a war crime (to which individual criminal responsibility attaches).

The Government’s Position

In its Skeleton Argument (p 38), the government claims that:

the term ‘serious violation’ has a particular meaning as a matter of IHL and is synonymous with ‘war crimes’ and ‘grave breaches’ as defined, in particular, in the four Geneva Conventions, Additional Protocol 1 and in Article 8 of the Rome Statute of the International Criminal Court.

This is followed by citation of a guide connected with the European Union’s Council Common Position on military exports, which includes a Criterion 2(c) identical to that in the Consolidated Criteria. The guide states that serious violations of IHL “include” grave breaches, and adds that the Rome Statute “includes other serious violations […] which it defines as war crimes”. It therefore mentions the same violations as the government, although its list is not stated to be exhaustive.

That the violations included in these definitions would amount to serious violations is uncontroversial. The issue is what is omitted. On its face, this formulation excludes all violations of IHL which do not amount to war crimes from constituting serious violations for these purposes.

The government’s wording could also raise a question as to whether war crimes established under customary law but not defined in the relevant treaties are included. This would be particularly relevant in a non-international armed conflict, where the treaty-defined war crimes are less extensive. However, this post will argue against limiting the definition to war crimes at all, whether or not those arising under customary law are included.

Implications of the Proposed Definition

On the government’s definition of a “serious violation”, however high the probability that the arms will be used for violations which are not war crimes, it would seemingly not require denial of a licence under Consolidated Criterion 2(c) or Article 7 of the ATT. Since not all IHL rules give rise to criminal liability, this narrows the range of conduct which can give rise to a violation. But most significantly, the use of mental elements devised for criminal liability appears inherently ill-suited to the assessment required in the arms exports context. Adding a need to predict the mental state of the relevant decision-makers (as the government has done) significantly increases the inherent difficulty associated with assessing the future probability of another state’s armed forces using certain equipment for IHL violations. Even when considering past violations as potential evidence of future risk, unless the state receiving the arms is prepared to share detailed and probably sensitive information about specific incidents, such a requirement will frequently make it difficult to conclude whether such violations were in fact serious. It also raises questions, not clearly answered in the government’s submissions, as to whose mental state must be considered: that of individual military personnel carrying out the attack, or their commanders, or some form of imputed intent of the recipient state as a whole?

It should be noted that, from the documents provided, it is unclear whether the government is in fact taking quite such a narrow approach to applying the test in practice. The first witness statement of Neil Crompton of the Foreign & Commonwealth Office (see paragraphs 30(c), 58 and 59) cites government documents which focus heavily on “deliberate” breaches. They do however seem to suggest that a “consistent pattern of non-deliberate incidents (with the same cause and without remedial actions being taken to address that cause)” would be considered. The statement also refers at one point to looking at the “actus reus” (and so perhaps by implication not the relevant mental state requirements) for war crimes under the Rome Statute. This statement might therefore suggest a somewhat less restrictive approach to the question of what amounts to a serious violation.

Nonetheless, the government’s oral arguments explicitly referred to the expression as importing the same elements as war crimes, including the attitude or intention of the perpetrator. Even if its application of the test involves a more nuanced interpretation than its legal argument suggests, that legal argument requires a clear response. The following sections will consider the grounds for assessing that argument. They will focus on the ATT, as the international instrument, rather than the Consolidated Criteria: however since Criterion 2(c) was introduced to the Consolidated Criteria as part of an update responding to the UK’s entry into the ATT, its use of the same expression should be interpreted consistently. Readers with an interest in further detail on the specific topic addressed here will find helpful discussion in Stuart Casey-Maslen’s chapter on Article 7 of the ATT in “The Arms Trade Treaty: A Commentary”.

“Serious Violation” as an IHL Term of Art?

The government’s suggestion that the expression “serious violation” has a “particular meaning as a matter of IHL” will be considered first.

Some of the documents issued by the International Committee of the Red Cross (“ICRC”) in connection with the ATT could be read as supportive of the government’s view in this regard. An explanatory note commences by remarking that “Serious violations of [IHL] are war crimes. The two terms are today interchangeable.” A separate ICRC leaflet comments that “’serious violation of IHL’ is another term for ‘war crime’”. A suggested list of “serious violations” in the ICRC’s “Practical Guide” on Arms Transfer Decisions only lists war crimes (although it does at least explicitly include customary war crimes as well as treaty ones).

None of these documents however specifically proposes importing the required mental elements of war crimes into the assessment, and two of the three include general descriptions of its meaning which focus on the effects of the breach or the values at stake without mentioning such an element. For instance the explanatory note mentioned above goes on to say that violations “are serious, and are war crimes, if they endanger protected persons (e.g. civilians, prisoners of war, the wounded and sick) or objects (e.g. civilian objects or infrastructure) or if they breach important values.”

Other sources might suggest a broader definition. Additional Protocol I to the Geneva Conventions refers at Article 90 to “facts alleged to be a grave breach […] [as defined in the relevant IHL treaties] or other serious violation [of those treaties]” (emphasis added), demonstrating that the concepts are not in that context synonymous. The ICRC commentary on that treaty (Articles 89 and 90) discusses possible categories of serious violation not amounting to grave breaches, including breaches which occur frequently or are systematically repeated.

In a similar vein, the claimant referred in oral argument to the ICTY Appeals Chamber’s highly influential jurisdiction ruling in Prosecutor v Tadić, which held that to be “serious” a violation of IHL “must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim”. The ruling did not describe the concept of a “serious” violation as co-extensive or synonymous with criminal liability, but rather as one specific condition of such liability. The same reasoning appears to underlie the formulation adopted by Philippe Sands and Andrew Clapham in a 2015 legal opinion which addressed the point.

The Tadić ruling and Additional Protocol I are of course not addressed to the interpretation of the ATT. However if as the government suggests the serious violation expression does indeed carry a particular meaning in IHL, its discussion in the context of a widely ratified IHL treaty and a landmark ruling of an international court presumably deserve some consideration.

By contrast, while certain treaties might appear to tie the concept of “serious violations” to war crimes (see here, at Article 8, here, at Article 15, here at Article 1 and here at Article 1), they only do so for the purpose of defining or labelling war crimes. They do not provide any support for the proposition that only war crimes can be serious violations.

“Serious Violation” as used in the ATT

The broader definition which some of the above sources suggest is supported by consideration of the ATT’s text and its object and purpose.

The ATT’s object as stated in Article 1 is “to […] establish the highest possible common international standards for regulating or improving the regulation of international trade in conventional arms” (as well as tackling the illicit arms trade and the risk of diversion). As its model for regulation focuses on the transferring state’s assessment of the risk of future breaches by the recipient, adopting an interpretation which as noted materially increases the difficulty of accurately carrying out such an assessment appears dubious. The purpose of the treaty, which includes “Reducing human suffering”, also supports interpreting “serious” by reference to the scale and impact of the breach on its victims rather than the mental state of the perpetrator.

The ordinary meaning of the word “serious” (“Weighty, grave; important, significant, of great consequence” under the most relevant definition in the Oxford English Dictionary) provides no support for a more limited view either. In this respect, it can usefully be compared with another provision of the ATT. Article 6, which sets out a separate restriction on exports which would be used for certain purposes, explicitly mentions “grave breaches […] or other war crimes […]”, instead of “serious violations”. Had the intention been to limit the conduct referred to in Article 7 in this way one would expect similarly explicit language to have been used instead of the more general formulation which was employed.

Failures to take all feasible precautions in attack, or to adhere to the principle of proportionality, breach IHL rules of fundamental importance. Where they involve grave consequences for their victims, they should be considered serious violations under the ATT regardless of the attacker’s intent. Accordingly, whatever the High Court may decide as to the process of risk assessment and the probability of violations required to prohibit exports, the narrow definition of a serious violation which appears to be advanced by the government should be clearly rejected.

Announcements: International Disaster Law Course; Nelson Mandela World Human Rights Moot Court Competition; CfC – A Year in Elections; Groningen Summer Schools; UCALL Conference on Accountability and International Business Operations

ejiltalk.org - Sun, 04/02/2017 - 10:30

1. International Disaster Law Course. The 4th Edition of the International Disaster Law Course is now open for applications (Sanremo, Italy, 12-16 June 2017). More information is available here. The Course is organized jointly by the IFRC, the IIHL Sanremo, the IDL Project in cooperation with the Roma Tre IEUDL Jean Monnet Module and the IRC. Confirmed speakers will include Eduardo Valencia-Ospina (former ILC SR on the Protection of Persons in the Event of Disasters) and Walter Kälin, along with academics and representatives of relevant organisations such as OCHA, WHO, IOM, IFRC.

2. 9th Nelson Mandela World Human Rights Moot Court Competition. All universities in the world are invited to participate in the 2017 Nelson Mandela World Human Rights Moot Court Competition, due to be held 18 – 21 July in Room XX in the Palais de Nations, Geneva – the room where the UN Human Rights Council meets. The Moot is organised by the Office of the High Commissioner for Human Rights (OHCHR) and the Centre for Human Rights, University of Pretoria. The first phase of the Competition is a written preliminary round: teams are evaluated on the basis of their heads of argument. The top five teams from each UN region are invited to Geneva to take part in the pre-final and final rounds, which involve oral arguments. Submissions received during the first phase (written) are evaluated by human rights experts. The judges in the final round of the Competition are eminent judges from international courts and tribunals as well as other experts. This year Justice Albie Sachs, from the Constitutional Court of South Africa, will be one of the judges. The Competition also entail a one-day conference that will expose participants to current developments in the UN human rights system. The deadline for submitting heads of arguments is 12 June 2017. See the competition website for the rules of procedure, the hypothetical case, and registration details. For further information, please contact eduardo.kapapelo {at} up.ac(.)za var mailNode = document.getElementById('emob-rqhneqb.xncncryb@hc.np.mn-13'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%65%64%75%61%72%64%6F%2E%6B%61%70%61%70%65%6C%6F%40%75%70%2E%61%63%2E%7A%61"); tNode = document.createTextNode("eduardo.kapapelo {at} up.ac(.)za"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-rqhneqb.xncncryb@hc.np.mn-13"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

3. Rights! Call for Contributions: 2017 – A Year in Elections. Throughout 2017, Rights! is welcoming contributions in all sections of Rights! on elections conducted (or to be conducted) worldwide, but also their preparation and follow up. Attention can be paid to technical, political, legal and human rights aspects of electoral processes. Assessment can focus on, although it is not limited to, electoral integrity, especially its political dimension, fraud and mitigation measures, electoral violence, legal frameworks, electoral procedures and the work of EMBs, use of technology, inclusive participation, voter awareness and the role of civil society. Comparative perspective and electoral cycle approach will be particularly welcome. Contributions can also include analysis of electoral reform processes, democratic and political approaches to elections. Contributions are welcome throughout the year and should be sent to contact {at} rightsblog(.)net var mailNode = document.getElementById('emob-pbagnpg@evtugfoybt.arg-51'); 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-51"); mailNode.parentNode.replaceChild(linkNode, mailNode);  along with a short professional bio. Please follow the blog’s style and references and specific guidelines for the section you are contributing to. Please find more information on the blog.

4. Groningen Summer Schools in law 2017. The Department of International Law, University of Groningen, together with partners, is organising two summer schools International Law for Sustainable Societies, The Sustainable Development Goals and Law and Lifestyle, A human rights approach to chronic diseases. The first summer school, International Law for Sustainable Societies, aims to explore the contribution of international law to the implementation of the Sustainable Development Goals. The provisional programme of the summer school may be accessed here. This summer school takes place in Groningen from Monday 3 July to Friday 7 July 2017. The second summer school, Law and Lifestyle, proceeds from the basic fact that most deaths that occur globally are the result of chronic or ‘non-communicable’ diseases. Taking a human rights approach, key focus areas include securing equitable access to essential medicines, as well as assessing the possibilities to regulate behavioural risk factors such as smoking, excess alcohol consumption, unhealthy eating and a lack of physical exercise. The provisional programme of the summer school may be accessed here. This summer school takes place in Groningen from Monday 10 July to Friday 14 July 2017. Deadline for applications is 1 May 2017.

5. UCALL Conference on Accountability and International Business Operations. A research institution of Utrecht University specialised on issues of corporate liability and accountability (UCALL) is hosting a Conference on Accountability and International Business Operations. This conference inquires how regulatory tools stemming from international law, public law, and private law may or may not be used for transnational corporate accountability purposes. Attention will be devoted to applicable standards of liability, institutional and jurisdictional issues, and practical challenges, with a focus on ways to improve the existing legal status quo. In addition, there will be consideration of the extent to which non-legal regulatory instruments may complement or provide (more viable) alternatives to these legal mechanisms. The conference combines legal-doctrinal approaches with interdisciplinary and policy insights. For further information, see here.

Leonard Cohen on Brexit

ejiltalk.org - Fri, 03/31/2017 - 07:36

I’ve seen you change the water into wine
I’ve seen you change it back to water, too
I sit at your table every night
I try but I just don’t get high with you
I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine

Ah, they’re dancing in the street—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me


I haven’t said a word since you been gone
That any liar couldn’t say as well
I just can’t believe the static coming on
You were my ground, my safe and sound
You were my aerial

Ah, the fields are crying out—it’s Jubilee
We sold ourselves for love but now we’re free
I’m so sorry for that ghost I made you be
Only one of us was real and that was me

I heard the snake was baffled by his sin
He shed his scales to find the snake within
But born again is born without a skin
The poison enters into everything

And I wish there was a treaty we could sign
I do not care who takes this bloody hill
I’m angry and I’m tired all the time
I wish there was a treaty, I wish there was a treaty
Between your love and mine.

New Issue of EJIL (Vol. 28 (2017) No. 1) Published

ejiltalk.org - Fri, 03/31/2017 - 06:00

The latest issue of the European Journal of International Law (Vol. 28 (2017) No. 1) 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.

In Memoriam: Vera Gowlland-Debbas

ejiltalk.org - Thu, 03/30/2017 - 10:00

22 September 1943 – 29 September 2015

Vera Gowlland-Debbas was a dedicated and active member of EJIL’s Scientific Advisory Board from 2007 to 2012. Her loss has been deeply felt. In this Editorial, Marcelo Kohen, Professor of International Law at the Graduate Institute in Geneva and her long-time colleague, pays homage to Vera’s lasting contribution to the field of international law.

On 29 September 2015, Vera Gowlland ultimately lost her battle with a cruel disease that she had fought with courage and dignity. This is a great loss not only for the Graduate Institute of International and Development Studies, where she completed her licence and her doctorate, served in the publications department and taught from 1994 until her retirement in 2009, when she became an honorary professor. It is also a great loss for international law and for the values she defended.

Despite her illness, Vera continued to work in a variety of ways in our discipline, giving counsel on issues related to the International Criminal Court and continuing her contribution to academia. Her last physical presence at an academic event was as the Chair of a panel at a symposium on ‘International Law and Time’, held in Geneva on 12-13 June 2015, at which, without knowing it, she was to say farewell to her colleagues and students. While her voice was wavering, her spirited enthusiasm remained clear to see, and her joy at sharing this academic event at the institution where she had so often taught and organized academic activities herself was apparent.

Vera’s intellectual contribution is a distinguished legacy. She always had a tremendous appetite for problem-solving. Her doctoral thesis, written during the Cold War period and entitled: ‘Collective Responses to Illegal Acts in International Law’, focused on the reaction of the international community to the alleged creation of the racist state of Southern Rhodesia at a time when the active use of Chapter VII of the United Nations Charter had not been seriously considered. This appetite was also reflected in her monumental work on the national implementation of sanctions adopted by the Security Council, which provides important guidance and remains the most comprehensive and significant work in this field. Her course at the Hague Academy of International Law on the Security Council and questions of international responsibility complements her long record of publications and confirms her reputation as an uncontested specialist of the United Nations.

Because of her compassion and her Middle Eastern origins, it was natural that Vera specialized in the field of refugee law. In fact, Vera introduced this subject into the teaching offered by the Graduate Institute and trained those who in turn have become specialists in this field.

All those who had the privilege of sharing in her work and teaching could appreciate her vision of international law, her modesty, her sincere and unfailing friendship, her sensitivity and her finesse. She always had a youthful spirit, and it was often difficult to guess her real age!

Vera Gowlland was the personification of what characterizes the Institute that shaped her and that she taught at: her perfect bilingualism, the interdisciplinarity of her approach and the journey of her life in a multicultural universe. Her two principal mentors, Georges Abi-Saab and Michel Virally, strongly influenced her vision of the role of international law.

Vera Gowlland was a deeply committed and engaged person. She was one the founding members of the European Society of International law. The domains that interested her most included the rights of refugees, self-determination and the law of the United Nations. Pursuing the development of these areas is the best tribute we can give her in these dark moments. Her soft voice, her compassion, and her intellectual contribution will forever remain in our memory.

Vital Statistics

ejiltalk.org - Wed, 03/29/2017 - 14:00

Each year we publish statistics on the state of our submissions: who submitted, who was accepted, and who was published in EJIL during the previous 12 months. We do this in order to observe and understand any changes that may be taking place in submission and publication patterns in our Journal. We do this, too, because we publish the very best manuscripts submitted to EJIL, selected through our double-blind review process. We offer no affirmative action in selection. Rather we look for excellence, articles that will be read, recalled, referred to and cited in years to come.

Of course, the EJIL Editors do commission some articles. We would risk becoming merely a refereeing service if we relied only on unsolicited manuscripts. Again, statistics are important in order to check that we are getting the balance right. For the past three years the percentage of unsolicited manuscripts has remained stable at around 65 per cent or two-thirds of the total, which we consider to be a sound balance.

The percentage of manuscripts submitted by women authors this past year dropped slightly to 32 per cent, although 33 per cent of accepted submissions were by women and the figure for published articles was 35 per cent. These figures do not differ markedly from previous years. Nevertheless, it is encouraging to see that the percentages of accepted and published articles submitted by women reflect or even surpass the percentage of overall submissions by women.

In order to gauge the provenance of our manuscripts we perhaps somewhat arbitrarily divide the world into four regions: the European Union, the Council of Europe countries outside the EU (CoE), the US and Canada, and the rest of the world (RoW). Our statistics indicate the country of submission rather than the authors’ nationality, simply because it is not possible to obtain that information. In any case, the figures convey a fairly reliable picture of our authors and EJIL’s presence in the world.

Of the total number of manuscripts submitted in 2016, 47 per cent came from the EU, 8 per cent from CoE countries, 10 per cent from the US and Canada and 35 per cent from RoW countries. The spread of percentages for accepted and published articles, however, differed. A larger percentage of articles from EU countries were accepted and published: 57 and 54 per cent, respectively, whilst significantly fewer manuscripts from the RoW were accepted and published: 23 and 15 per cent, respectively. The US and Canada saw a larger percentage of manuscripts published, 24 per cent, reflecting the increased number of manuscripts accepted the year before. Finally, 12 per cent of manuscripts were accepted from CoE countries, representing quite an increase, whilst the published articles from that area remained stable at 7 per cent of the total.

We encourage submissions from authors in non-English-speaking countries, and provide an excellent copy-editing service for all articles accepted for publication. This past year saw a similar breakdown in percentages of submissions from English-speaking and non-English-speaking countries, 38 and 62 per cent, respectively. However, we saw a leap in accepted articles by authors in non-English-speaking countries, from 34 per cent in 2015 to 65 per cent in 2016, whilst published articles still leaned quite heavily towards English-speaking countries, with 59 per cent of the total. Next year we will see a rise in published articles from non-English speaking countries.

Editors Note: We have separately published the editorials The Case for a Kinder, Gentler Brexit and 10 Good Reads.

EJIL: In this Issue (Vol. 28 (2017) No. 1)

ejiltalk.org - Wed, 03/29/2017 - 09:00

This issue opens with the third entry under our annual rubric, The EJIL Foreword. In keeping with the rubric’s mission statement, Laurence Boisson de Chazournes takes a broad and sweeping view of the proliferation and consequent pluralism of international courts and tribunals. In doing so, she argues that an ‘overarching managerial approach’ may be observed in various practices of both judicial and state actors, and notes still other methods that could strengthen this approach.

The next three articles in this issue address the processes of international law-making from a variety of perspectives. In the first regular article, Florian Grisel assesses the top-down processes informing transnational governance. Grisel utilizes the example of the drafting of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the involvement of the International Chamber of Commerce experts to illustrate how transnational expert networks can contribute effectively to the process of treaty-making. Taking on the involvement of non-state actors from another perspective, Nahuel Maisley argues that Article 25(a) of the International Covenant on Civil and Political Rights should be interpreted as giving civil society groups a right to participate in international law-making. In their article, Armin von Bogdandy, Matthias Goldmann and Ingo Venzke then address the implications of the proliferation of international institutions, advancing a theory of ‘public international law’ which regards such institutions as exercising ‘international public authority’ and seeks to take account of world public opinion in enhancing their legitimacy and effectiveness.

In a shift of topic, Natalie Davidson revisits the seminal Alien Tort Statute cases of Filártiga and Marcos. In exploring the historical narratives produced in these two cases, Davidson’s article seeks to challenge some of the sanguine assumptions of international human rights lawyers and lay bare the ‘deep foundations of violence’ in the international system and US foreign policy. Relatedly, Alejandro Chehtman examines the moral and legal permissibility of the use of remotely piloted aircraft systems, challenging the intuitive view that the use of drones will contribute to making the use of force proportionate in a wider set of circumstances.

Roaming Charges in this issue pictures a place, within a thriving metropolis, where solitude is more common than connection.

This issue features an EJIL: Debate! centring on an article by legal philosopher Liam Murphy addressing a series of questions where legal philosophy meets ‘Law Beyond the State’. The dialogue begins with a Reply from Samantha Besson, focusing on the role of consent in international law. Nehal Bhuta’s Reply reconstructs the argument from Murphy’s article, and the larger work from which it is drawn, and develops a criticism of his argument about the duty to obey international law. Christoph Möllers argues that Murphy seems to have ‘missed the decisive point’ in the recent development of international law, and expresses doubt that legal philosophy could cast light on the fragmentation debate in international law’. Lastly, Jochen von Bernstorff focuses on Murphy’s discussion of the role of positivism and non-positivism in international law and his application of Dworkinian jurisprudential insights to international legal norms such as the prohibition of the use of force. Liam Murphy offers a Rejoinder to the reactions provoked by his article.

The articles in this issue close with a Critical Review of International Governance piece by Michelle Zang, examining the relationship between the Court of Justice of the European Union and the Dispute Settlement Mechanism of the World Trade Organisation.

We move away from our customary poem in The Last Page in this issue to reprint an excerpt from an interview with the late Adrienne Rich, who for many years was a prominent and politically engaged poet in the USA. She thoughtfully answers the very pertinent question: Does poetry play a role in social change?

New Issue of EJIL (Vol. 28 (2017) No. 1) – Out Next Week

ejiltalk.org - Tue, 03/28/2017 - 14:00

The latest issue of the European Journal of International Law will be published at the end of this week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL and by Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:

Editorial

The Case for a Kinder, Gentler Brexit; 10 Good Reads; Vital Statistics; In Memoriam: Vera Gowlland-Debbas; In this Issue

The EJIL Foreword

Laurence Boisson de Chazournes, Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach

Articles

Florian Grisel, Treaty-Making between Public Authority and Private Interests: The Genealogy of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Nahuel Maisley, The International Right of Rights? Article 25(a) of the ICCPR as a Human Right to Take Part in International Law-Making

Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, From Public International to International Public Law: Translating World Public Opinion into International Public Authority

Natalie Davidson, Shifting the Lenses on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos

Alejandro Chehtman, The ad bellum Challenge of Drones: Recalibrating Permissible Use of Force

Roaming Charges

Places of Solitude

EJIL: Debate!

Liam Murphy, Law Beyond the State: Some Philosophical Questions

Samantha Besson, Law Beyond the State: A Reply to Liam Murphy

Nehal Bhuta, Law Beyond the State: A Reply to Liam Murphy

Christoph Möllers, Law Beyond the State: A Reply to Liam Murphy

Jochen von Bernstorff, Law Beyond the State: A Reply to Liam Murphy

Liam Murphy, Law Beyond the State: A Rejoinder

Critical Review of International Governance

Michelle Zang, Shall We Talk: Judicial Communication between the CJEU and WTO Dispute Settlement

Review Essay

Thomas Kleinlein, Jus Cogens Re-examined: Value Formalism in International Law. Review of Enzo Cannizzaro (ed.). The Present and Future of Jus Cogens; Robert Kolb, Peremptory International Law – Jus Cogens: A General Inventory; Thomas Weatherall. Jus Cogens: International Law and Social Contract

EJIL Editors’ Choice of Books 2016

André Nollkaemper, Jan Klabbers and Jean d’Aspremont

Book Reviews

Anne Orford and Florian Hoffmann (eds), with Martin Clark. The Oxford Handbook of the Theory of International Law (Prabhakar Singh)

Lauge N. Skovegaard Poulsen. Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (David Schneiderman)

Marco Arnone and Leonardo S. Borlini. Corruption: Economic Analysis and International Law (Gerry Ferguson)

The Last Page

Adrienne Rich, Excerpt from an Interview

North Korea and the Law on Anticipatory Self-Defense

ejiltalk.org - Tue, 03/28/2017 - 08:00

Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is “on the table.” Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.

As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an “inherent” right to use force in self-defense “if an armed attack occurs.” There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to “rogue” states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.

I. The Law on Anticipatory Self-Defense

A. A Restrictive Position

 The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly “imminent”—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council’s authorization.

That position finds support in various authoritative texts, including texts that specifically address situations involving the acquisition of nuclear weapons. In 1981, Israel bombed an Iraqi nuclear reactor that seemed ready to produce weapons-grade uranium. The UN Security Council “strongly condemn[ed]” the operation as a “clear violation of the Charter.” In 2004, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change likewise asserted that anticipatory self-defense is lawful “as long as the threatened attack is imminent” (para. 188). The Panel distinguished those cases from situations in which “the threat in question is not imminent but still claimed to be real: for example, the acquisition, with allegedly hostile intent, of nuclear weapons-making capability” (para. 188). It explained that non-imminent threats ought to be addressed without force or through the Security Council.

Indeed, the Security Council has repeatedly taken steps to prevent specific states from acquiring nuclear weapons. The Council has issued numerous resolutions condemning or authorizing sanctions against North Korea for conduct relating to its nuclear program. Likewise, the Council authorized sanctions against Iran, until it agreed to subject its program to stricter international oversight. And after the 1991 Gulf War, the Council imposed intrusive measures on Iraq to prevent it from obtaining nuclear weapons. This practice shapes expectations about the proper locus of decisionmaking authority. It suggests that the decision to sanction a state that might be acquiring nuclear weapons falls, at least in the first instance, to the Security Council, not to states acting unilaterally.

The debate surrounding the 2003 Iraq war arguably also supports that view. Part of the justification for the war was that the use of force was necessary to contain Iraq’s nuclear program. The United States claimed to be acting pursuant to the Security Council’s authorization. But most states disagreed with that claim and vociferously condemned the war. They did not believe that the Council authorized the use of force or that force without the Council’s authorization was justifiable in this instance.

B. A Permissive Position

However, the restrictive position on anticipatory self-defense is being contested. As Michael Reisman and Andrea Armstrong showed in their 2006 article, several states have expressly claimed the right to use force in anticipatory self-defense, without limiting that right to truly imminent attacks. In December 2016, the United States drew on Sir Daniel Bethlehem’s piece in the American Journal of International Law to articulate this legal position:

When considering whether an armed attack is imminent . . ., the United States analyzes a variety of factors. These factors include ‘the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.

Notice that “imminence” here does not have its ordinary meaning. By the United States’ account, it would permit defensive force to prevent attacks that are still fairly conjectural.

In January 2017, the United Kingdom endorsed a very similar legal position. U.K. Attorney-General Jeremy Wright purported to limit the most expansive implications of the U.K. claim. He underscored that “[i]t is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.” But his language just begs the question of when a threat has materialized. In the context of nuclear weapons, the threat could be said to materialize—and to justify defensive action—once a state that has demonstrated a hostile intent comes close to acquiring nuclear weapons. At that point, the risk of a potentially devastating attack increases. And waiting for the threat to become more operational might deprive the defending state of a meaningful opportunity to protect itself, without significant death or destruction. The U.S. and U.K. legal position thus creates space to justify anticipatory actions against states like North Korea.

To be sure, most states have not expressly endorsed that position. But as Jacob Katz Cogan and I have shown, most have also stayed silent in the face of actions that reflect it. Two examples are particularly relevant to the North Korea case. First, in 2007, Israel reportedly attacked a partially constructed nuclear facility in Syria. Although the UN Security Council condemned a very similar operation in 1981, states were almost completely silent about the 2007 action. Second, media reports indicate that Israel and the United States repeatedly attacked Iran’s nuclear program, as the Security Council was pressuring it to accept more international oversight. These attacks varied in their severity, but at least some of them caused physical destruction or death. Again, the response was muted.

My point here is not that the permissive position on anticipatory self-defense is the best articulation of the law. My point is that the law on anticipatory self-defense is potentially in flux. It might already be shifting or might soon shift from the restrictive position toward the more permissive one. Moreover, for the time being, a state that uses force in anticipatory self-defense might be able to calibrate its action such that it falls in a legal grey zone—in which it foregoes the legitimizing effect of having the law on its side but also avoids the verbal or material blowback of a violation. The operation would not be widely accepted as lawful, but neither would it be widely treated as unlawful.

II. The Prospects for U.S. Strikes against North Korea

Given that the United States has itself advanced the permissive position on anticipatory self-defense, North Korea could present something of a test case. The United States might try to exploit the legal grey zone or press for its position on the law. Those moves are unlikely to succeed for at least three reasons. First, using force to curtail North Korea’s nuclear program would be operationally difficult and present a serious risk of an escalation in violence. Antony Blinken, a State Department official in the Obama administration, recently explained:

Much of North Korea’s nuclear complex is concealed underground, inside mountains or in places unknown to United States intelligence. Meanwhile, the country is making rapid progress with mobile missiles powered by solid rocket fuel that can be rolled out of hiding and prepared for launch in minutes.

Moreover, as Max Fisher put it, “[a]lmost any plan would bring a high risk of unintended escalation to all-out war, analysts believe.” Thus, low-level, one-off operations—of the sort that were used against Syria and Iran—appear to be infeasible against North Korea. This matters from a legal perspective because other countries might have a harder time averting their gaze if the anticipatory action is a major military operation or risks triggering a broader war. Indeed, part of the justification for permitting anticipatory force in this context is that the operation mitigates the damage that would occur if the nuclear threat becomes more operational. That justification is less convincing if the anticipatory action itself causes or leads to enormous damage.

Second, the Trump administration has shown little interest in, and has at times been outright hostile toward, international law and international institutions. Those who have a stake in preserving these arrangements and who worry about their deterioration during a Trump administration thus have reason to push back against the United States—to resist an operation that they might otherwise tolerate because they view it as evincing a blatant disregard for the law. The 2003 Iraq war might be instructive. Once the United States indicated that it was prepared to go to war, no matter whether it obtained a contemporaneous Security Council resolution authorizing force, other states (both on and off the Council) were more intent on isolating the United States and demonstrating their own commitment to the Council’s primacy in this area.

Third, the United States might now try to rally other states to support or tolerate a defensive operation. But this would require a serious diplomatic effort. The United States would likely have to persuade its allies that the alternatives to defensive force—including action through the Security Council—are either inadequate or infeasible. At the moment, the United States seems ill-prepared to undertake this effort. The U.S. State Department is, by many accounts, in disarray and sidelined from U.S. foreign policy decisionmaking. Moreover, Secretary Tillerson reportedly has isolated himself from career officials who might otherwise guide him in developing an effective diplomatic strategy.

III. Where Does This Leave Us?

To be sure, the United States might still use force to try to curb North Korea’s nuclear threat. This scenario would try the jus ad bellum’s resilience and the United States’ commitment to it. Though the United States has violated the jus ad bellum before, it has also consistently engaged with and demonstrated its overall support for the regime. I argued last month that there are reasons to believe that the Trump administration will be different.

Alternatively, the United States might forego military action against North Korea. In this event, North Korea’s nuclear program would still present a serious security threat. And again, the United States would be, at least for the moment, poorly positioned to lead a broad-based, multilateral initiative to contain that threat. Unless other countries step into the breach, the situation on the Korean Peninsula is likely to deteriorate even further.

The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?: A Reply

ejiltalk.org - Mon, 03/27/2017 - 08:00

 

This post is written as a reply to the interesting contribution made by Elvina Pothelet on the topic of forced displacement in Syria. In her article, Elvina examined the legal foundation for the claim that the evacuation of Eastern Aleppo amounts to the war crime of forced displacement. I would like to build on this work, but distinguish my arguments in two respects. First, by also approaching the case from the perspective of a charge of crimes against humanity, under Article 7(1)(d) and second, by arguing that contrary to Elvina’s interpretation, the ‘ordering’ requirement found in Article 8 (2)(e)(viii) should in fact be interpreted more liberally, in light of three counter arguments.

Forced Displacement as a Crime Against Humanity – Article 7(1)(d)

As with any assessment of this nature, it is undertaken on the basis of information freely available. With those responsible for displacing, in my view being the Syrian regime officials for their actions in Eastern Aleppo, not those who brokered or signed the evacuation agreement. With this in mind, I shall outline how the elements of Article 7(1)(d) are satisfied.

Contextual Elements

With respect to the contextual elements, the campaign launched by Syrian forces to retake Eastern Aleppo was an organised state policy. A legitimate question however, can be raised as to whether the civilian population was the primary object of the attack, (Kunarac Appeals Judgment para 91) or merely an “incidental victim of the attack’’, (Bemba Confirmation of Charges para 76). Given the means and methods used in Aleppo, (Kunarac Appeals Chamber Judgment para 91)  which are alleged to include “killing people, including women and children, on the spot in their homes and on the street,” there is at least a reasonable basis to believe that the civilian population were the object of the attack. Additionally, even if legitimate opposition targets were based in Aleppo, ‘a population remains civilian in nature even if there are individuals within it who are not civilians, as long as the population is ‘predominantly civilian’ (Bemba Trial Judgment para 153). The overall attack is widespread, having targeted multiple victims with considerable seriousness across a large geographical area. The attack’s systematic nature is also satisfied by reference to the substantial resources employed and its organised nature. This organisation and use of state resources in a specific area similarly evidences a state policy beyond “spontaneous or isolated acts of violence” (Katanga Confirmation of Charges para 396).

Article 7(1)(d) – Deportation or Forcible Transfer of Population

The Krnojelac Trial Judgment (para 474) highlighted the important distinction between deportation and forcible transfer, holding that “[d]eportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries.” (See here also). In the present case, the majority of those evacuated appear to have been moved to places within Syria, with some indeed already returning.

The Perpetrator Deported or Forcibly Transferred by Expulsion or other Coercive Acts

The ICC Elements of Crime note that the term ‘forcibly’ is “not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.” The Simić Trial Chamber (paras 125-126) concurred, noting:

The essential element is that the displacement be involuntary in nature, that ‘the relevant persons had no real choice’. In other words, a civilian is involuntarily displaced if he is ‘not faced with a genuine choice as to whether to leave or to remain in the area’.

A similar approach was taken in Prlić where the Trial Chamber (para 50) held that: “It is the absence of genuine choice that renders removal unlawful.”  Although in the case of the Aleppo evacuation, an agreement was signed to facilitate the evacuation of the civilians, that agreement cannot amount to relevant consent since as stated by the Naletilic Trial Judgment (para 523), “Military commanders or political leaders cannot consent on behalf of the individual.” The link between the conduct and the resulting effect of forcing the victim to leave the area, (Ruto et al Confirmation of Charges para 245) is likewise satisfied by the bombardment of Aleppo leading to chronic food shortages, no water supply, and numerous civilian casualties.

Without Grounds Permitted under International Law

This provision relates to the power of States to enforce ordinary restrictions on the freedom of those who are lawfully present to move within their territory. (See Otto Triffterer’s Commentary Article 7(2)(d)). The Kunarac Appeals Judgment (para 91) however noted “to the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the legality of the acts committed.” Nonetheless, even if one accepts that there are legitimate opposition forces within Aleppo, the response of bombarding an area that ultimately forced the displacement of thousands of civilians, cannot be justified even if an appeal to IHL is made.

Lawfully Present

The Elements of Crimes repeats the language found in Article 7(2)(d), therefore leaving the interpretation of the term lawfully present to the adjudication of the Court. For a potential guide, the Popović Trial Judgment (para 900) noted that: “What is important is that the protection is provided to those who have, for whatever reason, come to ‘live’ in the community—whether long term or temporarily … [it is not to] impose a requirement for ‘residency’.” The destruction to people’s homes and schools highlights how this requirement is therefore easily satisfied.

This section, in similar vein to Elvina’s post has analyzed the elements behind a potential prosecution for the forced displacement of civilians from Eastern Aleppo. In summary, the contextual elements being satisfied, a strong case can be made that members of the civilian population, lawfully present on the territory, were forcibly transferred, by coercive acts, without grounds permitted under international law.

Forced Displacement as a War Crime– Article 8(2)(e)(viii)

I shall now turn to addressing an issue raised within Elvina’s post, that there requires an ‘order to displace’ in order to satisfy the provision of Article 8(2)(e)(viii).

Elvina’s argument states that ‘in order to constitute a violation and, a fortiori, a war crime in a non-international armed conflict (NIAC), displacement must not just be forced, it must be “ordered”.  Although reference is made to convincing arguments in favour of a ‘broader interpretation on the basis of the object and purpose of IHL’ I wish to expand upon and develop some of these arguments, with three points that I argue demonstrate why a strict interpretation of the provision is unnecessary.

First, despite the strict wording of the Rome Statute, the Pre Trial Chamber in Ntanganda (para 64) has in fact concluded that ‘the conduct by which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an order, as referred to in element 1 of the relevant Elements of Crimes […] should that be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted’. It remains to be seen how the Ntaganda Trial Chamber will interpret this provision, or even develop its reasoning.

A second argument can be advanced, that given the harmonsiation of the law of armed conflict between international armed conflicts (IACs) and NIACs, it remains startling that the similar crime under Article 8(2)(vii) makes no reference to the requirement of ordering, yet Article 8(2)(e)(viii) does. Far from ignoring the intent of the drafters however, it is permissible to assess the broader context of the Statute, (VCLT Article 31(2)). In drawing on Article 8(2)(vii), an argument can be advanced that the term ordering should not be viewed as a rigid element of the crime, given that the clear intent of the drafters, with respect to Article 8(2)(vii) was not to include an ordering requirement. This form of ‘effective interpretation’ will naturally face critics, who outline a stricter interpretative method, but it would likewise not be the first time the ICC has ruled that a narrow interpretation of a principle would be ‘absurd’ and be against the backdrop of ‘basic humanitarian considerations and common sense’ (Lubanga Confirmation of Charges para 284)

Thirdly, one can invoke Article 31(3)(b) VCLT which permits the interpretation of treaties to be undertaken “together with the context […] [and] any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. A study of military manuals reveals that even where States have adopted Article 8(2)(e)(viii) directly into their criminal legislation, (see – Canada, Crimes Against Humanity and War Crimes Act, 2000, page 26) their military manuals subsequently prohibit forced displacement in non-international armed conflicts without requiring that it be ordered (Canada’s Law of Armed Conflict Manual 2001  § 1724). Other military manuals from Burundi and South Africa to Spain and the Netherlands place their emphasis solely on the forcible nature, over a direct order. National legislation from Colombia among many others also punish “anyone who, during an armed conflict, without military justification, deports, expels or carries out a forced transfer or displacement of the civilian population from its own territory.” Given that states have interpreted the prohibition as not requiring a specific order, a narrower interpretation would be contrary to what I argue reflects the true customary understanding of the term. An agreement signed between the Government of The Philippines and the National Democratic Front of the Philippines, also emphasizes that “practices that cause or allow the forcible evacuations or forcible reconcentration of civilians” shall be prohibited, irrespective of the lack of an order.

Accordingly, despite what may seem the clear cut wording of the Rome Statute, the Court itself, along with state interpretation, evidences a consistent position that the war crime of forced displacement can be committed without a direct order to do so.

Conclusion

This post has outlined how a prosecution under Article 7(1)(d) for forced displacement might succeed, and in response to Elvina Pothelet’s contribution, where I respectfully advance a differing interpretation of the ordering requirement found in Article 8(2)(e)(viii). The law on both points however, remains contentious and a fascinating issue for debate, one that in time might be answered by the judicial process itself.

For further reading outside of the Aleppo conflict, readers may also find this Amnesty Report on Forced Displacement in Northern Syria interesting.

Announcements: Duke University Law School Vacancy; Inter-American Human Rights Moot Court Competition; UN Audiovisual Library of International Law; Cognitive Sociology, Culture, and International Law

ejiltalk.org - Sun, 03/26/2017 - 11:30

1. Duke University Law School Vacancy. Duke University Law School seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017.  The advertisement with additional details is here.

2. Registration open for the 22nd Inter-American Human Rights Moot Court Competition. We are pleased to invite you to participate in this year’s edition of the Inter-American Human Rights Moot Court Competition. Organized by American University Washington College of Law’s Academy on Human Rights and Humanitarian Law, this trilingual Competition (English, Spanish and Portuguese) serves as an important forum for the analysis of international law and human rights. The event will take place from May 21-16, 2017, at AUWCL’s campus in Washington, DC. Attorneys licensed in their own country can apply to participate as a Judge, evaluating written memorials, which can be done remotely, or participating in the oral rounds in DC. This is a great opportunity to interact and network with over 100 scholars, NGO experts, international organizations personnel and government officers from the all over the world, who volunteer to serve as judges in the Competition. As an additional bonus, all Judges are eligible for a partial scholarship to the Academy’s Program of Advanced Studies on Human Rights and Humanitarian Law. Judges are not subject to any registration fees and can apply until May 1, 2017. Registration can be completed online at our website. For questions, feel free to contact us at iamoot {at} wcl.american(.)edu var mailNode = document.getElementById('emob-vnzbbg@jpy.nzrevpna.rqh-96'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%61%6D%6F%6F%74%40%77%63%6C%2E%61%6D%65%72%69%63%61%6E%2E%65%64%75"); tNode = document.createTextNode("iamoot {at} wcl.american(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vnzbbg@jpy.nzrevpna.rqh-96"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

3. 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 Ambassador Tommy Koh on “Straits Used for International Navigation” and Professor Simon Chesterman on “Asia’s Ambivalence About International Law and Institutions: Past, Present, and Futures”.

4. Cognitive Sociology, Culture, and International Law. iCourts (Faculty of Law, University of Copenhagen) is pleased to announce the Third Workshop on the Sociology of International Law to take place on 28-29 April 2017. For more information please visit the iCourts webpage. For any inquiries, please contact Sungjoon Cho at- scho1 {at} kentlaw.iit(.)edu var mailNode = document.getElementById('emob-fpub1@xragynj.vvg.rqh-98'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%63%68%6F%31%40%6B%65%6E%74%6C%61%77%2E%69%69%74%2E%65%64%75"); tNode = document.createTextNode("scho1 {at} kentlaw.iit(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-fpub1@xragynj.vvg.rqh-98"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

The International Legal Framework Regulating Armed Drones

ejiltalk.org - Sat, 03/25/2017 - 16:00

Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.

The ICLQ and Cambridge University Press have kindly made the article free to access here from now until the end of April. Take a look to see what you think. As indicated by the abstract, the piece is wide-ranging and seeks to cover a lot of ground though much more can be said about each of the individual areas that we address.

In other drones related news, I have recently been appointed as a legal advisor to an Inquiry by the UK Parliament’s All Party Parliamentary Group on Drones (APPG) into the emerging technologies of drones and the ways in which the UK works with allies with regard to use of armed drones. Under its terms of reference, the inquiry will make recommendations to ensure appropriate levels of transparency and accountability with regard to the use of armed drones. The APPG on Drones inquiry aims to build on the 2016 report of Parliament’s Joint Committee on Human Rights on “The Government’s policy on the use of drones for targeted killing”. The APPG inquiry panel invites written submissions on all aspects of its terms of reference. The deadline for written submissions is next Friday 31 March 2017. Submissions may be made here.

The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case

ejiltalk.org - Thu, 03/23/2017 - 09:00

On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita’s dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss’ demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise’s clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.

On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court’s holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer’s demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.

This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals.

At the same time, the Achbita case holds some differences. The question of non-compliance does not relate to an Act of Parliament or to a general principle of law, like that of non-discrimination. The normative background rather comes from the private initiative and the will of the employer to pose certain norms in his business according to which his employers must abide. In that sense, the Achbita judgment poses the legal question whether the private will and the setting of private norms similar to these governing the everyday life of a firm can ultimately restrict religious freedom. The question becomes more demanding once two things are taken into account: first, neither article 10 of the EU Charter of Fundamental Rights, read in conjunction with article 52, nor the European Convention on Human Rights, include the preservation of religious neutrality as a ground for restricting religious freedom. Article 9, paragraph 2 of the Convention contains a number of grounds for restricting religious freedom, including reasons of public order and health, or the respect for the rights of others, but not any reference to the preservation of religious neutrality. In that sense, the possible creation of new restriction grounds raises questions of judicial activism and imperils human rights’ protection.

Secondly, the teleological reasons behind the imposition of such religious neutrality restrictions must be taken also into account. On this, Achbita and the other aforementioned judgments largely differ. In the latter, a policy of religious neutrality is imposed in the name of respect for legality and the rule of law. On the contrary, in Achbita, such a policy is linked with the subjective and ideologically-loaded perceptions of a firm’s owner and his opposition to any change to his firm’s image or to the dynamics at work. In that sense, by siding with such an employer, the Achbita judgment should be read as a wider ECJ attempt to crown the preservation of the status quo as a legitimate ground for the restriction of human rights and liberties. This resembles the approach the European Court of Human Rights has already taken on the matter.

In a number of cases, the Strasbourg court has appeared willing to protect individual religious freedom. Yet, such a protection is provided only to the extent that this freedom does not pose a threat to the existing socio-political status quo. For example, in the  Dahlab case, the court refused to grant to a teacher convert to Islam the right to wear an Islamic headscarf at school, out of fear that the headscarf as an ‘external, powerful symbol’ would proselytise the students and disrupt the existing religious and, by extension, social harmony. Preservation of the social harmony is also a parameter stressed by the Court in its upholding of the French burqa ban in the SAS case. In the Sahin case, the disruption of the political harmony and of the existing political status quo of Turkey as a secular democracy were put, according to the Court, at stake. Along these lines, the Court sided with the State and prohibited Sahin from attending a Turkish university wearing the Islamic headscarf out of fear that this would peril secularism in Turkey. Similarly, through in its Achbita judgment the ECJ appears ready to acknowledge religious freedom, this is only to the extent that it does not hinder a person’s quest to preserve the existing status quo in his enterprise, even if this status quo is one of religious neutrality. Emphasis is placed on the employer’s ‘I’, not on the employee’s ‘thou’.

Such emphasis on the preservation of the existing status quo at all costs, even if this will lead to a restriction or violation of other people’s rights, constitutes undoubtedly a conservative approach. Consequently, the particular judgment should be read also in a socio-political context.

Already under the first democratic regime in ancient Athens, the question whether man should be seen as ‘good in nature’ or as a cynical, self-centred being, has been a matter of debate between Socrates and the sophists. The former adamantly believed in man’s benevolent character, while the latter held that people’s viewpoints can change according to their interests. In modern times, the Socratic viewpoint has been endorsed in the stance liberal democracy has taken towards freedom, tolerance and human rights. Nevertheless, the particular viewpoint has equally been lately menaced through the voices heard around the world – from France, to the U.S. and Australia – against immigration and minority rights. Read in this framework, the recent judgment seems to place another nail in the coffin of liberal democracy’s Socratic stance.

On this account, it will be interesting to see the impact the recent judgment may exert to the overall upholding of liberal values in Europe. With the extreme right lurking for its rise to power, so far, domestic European courts have been divided as to whether to unequivocally side with minorities and be understanding towards their religious needs. Thus for example, in Germany, in 2015, the Federal Constitutional Court ruled that a ban on teachers wearing Islamic veils at schools was not compatible with religious freedom and that veils did not pose a threat to the school’s learning environment.

Nevertheless, despite such a decision, lower instance German courts have not been unanimous in awarding compensation to teachers who were discriminated against due to their wearing of such a veil. For example, last February, Berlin’s Labor Court ruled in favour of a Muslim woman who had been rejected from a teaching job because she was wearing the Islamic headscarf. Interestingly enough, in that particular case, the State proposed to the applicant to wear a wig at school instead of the headscarf, because the wig was ‘ideologically neutral.’ The ‘ideological neutrality’ argument was ultimately not endorsed by the court. On the other hand, in August 2016, the Osnabruck Administrative Court held that a school had valid reasons not to allow teaching duties to a Muslim teacher who wore the Islamic headscarf.

In this framework, the judgment of the European Court of Justice may augment voices calling for further restrictions to minority rights. Ultimately, it may serve as the nightingale of a less liberal era not only in parliaments and governments but also in courts. Whether we will shout ‘we are all Socrates,’ is something that remains to be seen.

Azerbaijan: Is it Time to Invoke Infringement Proceedings for Failing to Implement Judgments of the Strasbourg Court?

ejiltalk.org - Wed, 03/22/2017 - 09:00

A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed ‘to punish the applicant for his activities in the area of human rights’, in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.

In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov’s case could not be viewed in isolation from this backdrop.

Earlier cases, such as Tymoshenko v Ukraine and Lutsenko v Ukraine, had found a violations of Article 18 due to the unlawful detention of political opposition leaders.

Although Article 18 cases are very rare in the Court’s practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan’s actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him ‘for criticizing the Government’. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government’s handling of demonstrations and unrest in the region of Ismayili.

Growing concern over Azerbaijan`s failure to implement `Article 18` judgments

Neither judgment has been fully implemented and both have been causing growing concern over Azerbaijan`s failure to comply, in violation of Article 46(1) of the Convention establishing the binding nature of the Court’s judgments. A year after the adoption of the judgment in the case of Rasul Jafarov, the Government has failed to pay monetary compensation ordered by the Court. This comes as a new worrying development in Azerbaijan’s compliance with individual measures, given Azerbaijan`s earlier record of timely payments.

Furthermore, the applicant’s request to the Supreme Court to reopen a criminal case that led to his conviction on the basis of the Strasbourg Court’s judgment was dismissed as groundless. Rasul Jafarov referred to the Criminal Code provisions allowing for a re-opening of a criminal case on the basis of the Strasbourg judgment as ‘a newly found circumstance’. The Supreme Court, however, was of the opinion that the judgment only applies to pre-trial detention. It failed to address the Strasbourg Court’s arguments under Article 18 stipulating the absence of any legal grounds for the applicant`s prosecution, which led it to be:

… unconvinced that such misconduct could have given rise to a reasonable suspicion that [the applicant] had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises a failure to register grants. (para 125)

The same argument has been used by the Azerbaijani Government in its rejection of the repeated calls of the Committee of Ministers for the release of Ilgar Mammadov. Azerbaijan’s failure to release him has become a real challenge to the Committee in its supervision of the implementation of the judgment, and to the whole Convention system. Azerbaijan’s rejection of the Committee’s position has sparked debates on the importance of states’ collective responsibility in protecting the values and the credibility of the Convention system, and on the steps that should be taken against a member state that persistently fails to comply with its legal obligations. As Thorbjørn Jagland, the Secretary General of the Council of Europe (CoE) noted in April 2016, ‘depriving a person of his or her liberty on the basis of a flawed judgment is an attack on the human rights system we have in Europe.’

In December 2015, the Secretary General decided to initiate a special inquiry into Azerbaijan’s compliance with the Mammadov judgment under Article 52 of the Convention, the first such inquiry in relation to an individual case. In June 2016, the Committee decided to put the case of Ilgar Mammadov on the agenda of its weekly meetings, along with its quarterly Human Rights meetings (where the implementation of the Court`s judgments is discussed) until Mammadov is released. As neither course of action led to any meaningful dialogue with Azerbaijan or produced any tangible results, support for initiating infringement proceedings against Azerbaijan under Article 46(4) of the Convention is gathering momentum at the Committee (although at its most recent Human Rights meeting, this course of action was not taken).

Azerbaijan as a test case for infringement proceedings

Under Article 46(4), if the Committee of Ministers considers that a state refuses to abide by a judgment, it may refer to the Court the question of whether the state has failed to fulfil its obligation under Article 46(1). This mechanism was introduced by Protocol 14 in order to strengthen the measures available to the Committee of Ministers to deal with recalcitrant states, in particular in relation to cases concerning structural problems. However, to date, it has not been used, in part because of the two-thirds majority on the Committee of Ministers required to invoke it and the perception that it is a ‘last resort’ measure. However this is to miss the point that it was, in fact, introduced by member states as an intermediate measure to provide an alternative to the extreme step of suspension of voting rights or even expulsion. More broadly, there remains scepticism about both the utility and feasibility of using the infringement proceedings, lest it cause further resistance by states.

The Committee, however, may ultimately consider that it has no other choice but to initiate infringement proceedings in the case of Ilgar Mammadov. It is hard to imagine a more blatant and persistent refusal to implement a judgment, particularly given that the necessary individual measure, the release of the applicant, is not onerous on the State. As no previous intervention of the CoE had led to any positive outcome, infringement proceedings would send a strong political message to Azerbaijan that the CoE will not tolerate such disrespect of its values and the states’ unconditional legal obligations.

The infringement proceedings would escalate the matter in respect of Azerbaijan’s relationship to other Convention member states. As Christos Giakoumopoulos, the Director of the Human Rights Directorate of the CoE noted at the launch event of the European Implementation Network in December 2016, the Court’s finding of a violation of Article 46(4) of the Convention would transform the matter from an individual human rights issue (as dealt with in the original judgment) into an issue of the international responsibility of a State Party vis-a-vis the other High Contracting Parties to the Convention.

Two Article 18 judgments, several other communicated cases relating to alleged violations of Articles 5 and 18 against Azerbaijan, and well-documented political persecution of the critical voices, including civil society, by the Azerbaijani authorities signals the existence of a systemic issue of the rule of law, one of the core values of the CoE. Against such a backdrop, the state’s refusal to implement legally binding judgments and its acting in bad faith in complying with its international obligations raises serious questions about its willingness to abide by Convention norms. As Judge Helen Keller and Corina Heri recently argued, the very significance of the finding of a violation of Article 18 lies in the challenge it poses to undemocratic and even ‘totalitarian’ measures taken by states.

Such a situation leaves the Committee of Ministers and the CoE at a crossroads: are they prepared to use the tools available to them and take a firm stance to protect the very credibility of the Convention system that Azerbaijan’s behaviour endangers? As the red line indicated by Article 46(4) was crossed a long time ago, it is for the ‘collective responsibility’ to ensure that such fundamental values as the right to liberty are secured in Europe. Should the infringement proceedings yield no tangible results, Azerbaijan could risk suspension or expulsion from the CoE. Article 3 of the Statute of the Council of Europe stipulates that every member state must accept the principles of the rule of law and respect for human rights, and collaborate sincerely and effectively in the realisation of the aim of the CoE. Under Article 8, a serious violation of Article 3 could lead to the state’s suspension and a request for it to withdraw from the Convention system. Such an outcome should be of no interest to the Government of Azerbaijan, which has enjoyed the continuous expert support of the CoE for over two decades; it certainly would be of no benefit to Azerbaijani citizens, for many of whom the Strasbourg Court is often the only effective judicial remedy for their violated rights.

Hegemonic Cooperation or Succession? The United States’ Emerging ‘Abandonment’, and China’s Rising ‘Defense’, of the Global Order

ejiltalk.org - Tue, 03/21/2017 - 00:36

Many international lawyers all over the world will doubtless have experienced a surge of surrealism over the past weeks, witnessing dramatic contrasts emerging between American and Chinese foreign policies seeking to redefine the global order – with the latter veering towards deepening strategic international cooperation around the world, and the former emphatic about the insularity of its ‘America First’ policy (read: ‘walls’ could be literal and figurative). In January 2017, Chinese President Xi Jinping gave a rousing defense of economic globalization at Davos, pointing to the inevitability and irreversibility of the global economy, where for China, “the right thing to do is to seize every opportunity, jointly meet challenges and chart the right course for economic globalization.” A month later, American President Donald Trump delivered his Address to the US Congress stridently pronouncing the country’s shift towards a “direct, robust, and meaningful engagement with the world…American leadership that is based on vital security interests…[where] partners must meet their financial obligations…[and where] America is willing to find new friends, and to forge new partnerships, where shared interests align.”  The historic first meeting this week between US Secretary of State Rex Tillerson and Chinese President Xi Jinping was the first high-level commitment towards greater joint cooperation between the United States and China, possibly suggestive of softening stances between the established hegemon and the rising world power in containing shared threats, such as North Korea’s demonstrable nuclear ambitions.

The United States’ emerging abandonment of the same postwar multilateral architecture it largely created – in favor of much thicker versions of protectionism, bilateralism, and unilateralism – is ironically taking place at a time when China is gaining confidence in rising to defend the global order and the enduring value of international institutions. It is nothing less than a sharp reversal of the “New Great Game” dynamics I observed four years ago, characterizing the United States as the “unipolar hegemon that incorporates international law justification as part of its operational code in international relations”, and China as the “rising power whose operational code in international relations remains facially deeply sovereigntist but latently appears to be shifting towards some instrumental internationalism – quite consistent with the ideological hybridity bred by ‘socialist modernization’ or what Ronald Coase [described as] ‘Chinese capitalism’.” (at p. 370).

The Trump administration does not resonate the United States’ historic use of international law justifications (or standard international legal cover) when furthering American strategic interests in the international system. In the past few weeks, for example, the United States released its 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program which sets four broad priorities – “(1) defending US national sovereignty over trade policy; (2) strictly enforcing US trade laws; (3) using all possible sources of leverage to encourage other countries to open their markets to US exports of goods and services…and (4) negotiate new and better trade deals with countries in key markets around the world.” (Agenda, at p. 2.) The Trump Administration has publicly announced it would ignore certain rulings of the World Trade Organization that it deemed to affect US sovereignty, withdrew from the US-led Trans-Pacific Partnership, and demands swift renegotiation of the North American Free Trade Agreement (NAFTA). Jack Goldsmith at Harvard Law School has called out the “Trump Onslaught on International Law and Institutions”, capsulized by “a belief that international law does not reflect American values but threatens American institutions, and a related belief that “American peace, prestige, and prosperity were not being served by our foreign policy.” The American Civil Liberties Union (ACLU) has repeatedly attacked the Trump Administration’s travel and refugee bans as open violations of treaties ratified by the United States such as the 1951 Refugee Convention and its Protocol. The US State Department has been besieged by an unprecedented exodus of career senior officials – an obviously precarious situation for what Harold Koh used to call “the most outstanding international law firm in the world”. [Harold Koh, “Foreword: America’s Conscience on International Law”, at p. xiii, in Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, CUP 2010.] It is highly doubtful, at this point, if international law justifications and global institutions would have any enduring place in the future within the Trump Administration’s ‘America First’ foreign policy canon.

In contrast, China has been deepening its engagement with the international legal system [See Jacques Lisle, China’s Approach to International Law: A Historical Perspective, 94 ASIL Proceedings (2000), pp. 267-275], as it moves rapidly to consolidate its economic superpower status with technological competitiveness and expand its Silk Road Economic Belt and Maritime Silk Road (“One Road, One Belt”) initiative of debt-financed infrastructure developments encompassing over 60 countries around the world. China has taken the lead in seeking to forge a powerful 16-country trade bloc through the Regional Comprehensive Economic Partnership (RCEP) and floating the idea of a Free Trade Area for the Asia-Pacific (FTAAP). China also won its very first investor-State arbitration this March 2017, successfully defending itself against a claim by South Korean investors (Ansung Housing Co. Ltd. v. People’s Republic of China, ICSID Case No. ARB/14/25, Award, 9 March 2017. Tribunal composed of Prof. Lucy Reed (President), Dr. Michael Pryles, and Prof. Albert Jan van den Berg).

What would be most crucial in the “New Great Game” between the United States and China, is how both would possibly respond to demonstrable internationally wrongful conduct by the other in the future, and what contours would emerge from the tenuous United States-China cooperation recently initiated under the Donald Trump and Xi Jinping governments. Would there be policies of confrontation, accommodation, or strategic engagement between the United States and China, especially when a senior Trump Administration official has declared the “end of the Pivot to the Pacific”, and US Defense Secretary Jim Mattis already belied any military action for Chinese assertions in the South China Sea?

In pondering these questions, it is worth recalling a 2012 essay by the famous American diplomat Henry Kissinger, The Future of U.S.-China Relations: Conflict is a Choice, Not a Necessity, where he presciently observed:

“Some American strategic thinkers argue that Chinese policy pursues two long-term objectives: displacing the United States as the preeminent power in the western Pacific and consolidating Asia into an exclusionary bloc deferring to Chinese economic and foreign policy interests. In this conception, even though China’s absolute military capacities are not formally equal to those of the United States, Beijing possesses the ability to pose unacceptable risks in a conflict with Washington and is developing increasingly sophisticated means to negate traditional U.S. advantages. Its invulnerable second-strike nuclear capability will eventually be paired with an expanding range of antiship ballistic missiles and asymmetric capabilities in new domains such as cyberspace and space. China could secure a dominant naval position through a series of island chains on its periphery, some fear, and once such a screen exists, China’s neighbors, dependent as they are on Chinese trade and uncertain of the United States’ ability to react, might adjust their policies according to Chinese preferences. Eventually, this could lead to the creation of a Sinocentric Asian bloc dominating the western Pacific. The most recent U.S. defense strategy report reflects, at least implicitly, some of these apprehensions.

No Chinese government officials have proclaimed such a strategy as China’s actual policy. Indeed, they stress the opposite. However, enough material exists in China’s quasi-official press and research institutes to lend some support to the theory that relations are heading for confrontation rather than cooperation…

If challenged, the United States will do what it must to preserve its security. But it should not adopt confrontation as a strategy of choice. In China, the United States would encounter an adversary skilled over the centuries in using prolonged conflict as a strategy and whose doctrine emphasizes the psychological exhaustion of the opponent. In an actual conflict, both sides possess the capabilities and the ingenuity to inflict catastrophic damage on each other. By the time any such hypothetical conflagration drew to a close, all participants would be left exhausted and debilitated. They would then be obliged to face anew the very task that confronts them today: the construction of an international order in which both countries are significant components.

The blueprints for containment drawn from Cold War strategies used by both sides against an expansionist Soviet Union do not apply to current conditions. The economy of the Soviet Union was weak (except for military production) and did not affect the global economy. Once China broke off ties and ejected Soviet advisers, few countries except those forcibly absorbed into the Soviet orbit had a major stake in their economic relationship with Moscow. Contemporary China, by contrast, is a dynamic factor in the world economy. It is a principaltrading partner of all its neighbors and most of the Western industrialpowers, including the United States. A prolonged confrontation between China and the United States would alter the world economy with unsettling consequences for all….

What this situation calls for is not an abandonment of American values but a distinction between the realizable and the absolute. The U.S.-Chinese relationship should not be considered as a zero-sum game, nor can the emergence of a prosperous and powerful China be assumed in itself to be an American strategic defeat.

A cooperative approach challenges preconceptions on both sides. The United States has few precedents in its national experience of relating to a country of comparable size, self-confidence, economic achievement, and international scope and yet with such a different culture and political system. Nor does history supply China with precedents for how to relate to a fellow great power with a permanent presence in Asia, a vision of universal ideals not geared toward Chinese conceptions, and alliances with several of China’s neighbors. Prior to the United States, all countries establishing such a position did so as a prelude to an attempt to dominate China.

The simplest approach to strategy is to insist on overwhelming potential adversaries with superior resources and materiel. But in the contemporary world, this is only rarely feasible. China and the United States will inevitably continue as enduring realities for each other. Neither can entrust its security to the other — no great power does, for long — and each will continue to pursue its own interests, sometimes at the relative expense of the other. But both have the responsibility to take into account the other’s nightmares, and both would do well to recognize that their rhetoric, as much as their actual policies, can feed into the other’s suspicions….

The key decision facing both Beijing and Washington is whether to move toward a genuine effort at cooperation or fall into a new version of historic patterns of international rivalry. Both countries have adopted the rhetoric of community. They have even established a high-level forum for it, the Strategic and Economic Dialogue, which meets twice a year. It has been productive on immediate issues, but it is still in the foothills of its ultimate assignment to produce a truly global economic and political order. And if a global order does not emerge in the economic field, barriers to progress on more emotional and less positive-sum issues, such as territory and security, may grow insurmountable…”

The accusations of violations of international law, ironically, have been mutual, and at times, even ambiguous. The Trump Administration has previously threatened a trade war with China for alleged unfair trade practices, while China has objected strenuously to the lawfulness of US freedom of navigation operations in the South China Sea. US Senators recently proposed bipartisan legislation seeking to impose sanctions against China for its militarization of the South China Sea. Recently, notwithstanding the Philippines v. China arbitral award rejecting China’s assertion of any supposed historic rights over Scarborough Shoal and finding that China had caused severe harm to the marine environment with its island-building activities, however, China announced it would start building “environment monitoring stations” over Scarborough Shoal. The announcement contravenes Chinese President Xi Jinping’s supposed promise to Philippine President Duterte that China would never build an artificial island over the disputed Scarborough Shoal. While White House spokesman Sean Spicer had previously stated that the United States would “prevent China from taking over territory in international waters in the South China Sea”, the mercurial Trump Administration – including US Secretary of State Tillerson – has so far been silent on the announced Chinese plans to build an artificial island over Scarborough Shoal. (Note that White House Chief Strategist Steve Bannon previously predicted in March 2016 that the United States “would go to war in the South China Sea in five to ten years.”) Thus far, since the 12 July 2016 arbitral award in Philippines v. China, some scholars have reported that China appears to have already complied with some of the tribunal’s rulings, while continuing not to comply with others. This nascent result – less than a year since the arbitral award was issued – is not at all unexpected, when one takes a wider lens (and longer time-frame) when examining the horizon of State compliance with international judgments.

Kissinger’s observations, in my view, capsulize a neorealist pragmatism that will likely be observed by both the United States and China towards international law, its strategic uses (and disuses), and the utilitarian purposes of global institutions for nationalist interests. As the United States government under the Trump Administration signals a retreat from its traditional discursive approaches to international law justification, China has demonstrated its ability to selectively and strategically engage international law, global institutions, economic partnerships. It remains to be seen if today’s initiative towards hegemonic cooperation between the United States and China – both of which appear to dismiss principles of international law at will or disengage from international cooperation as easily – could ultimately forge conditions for hegemonic rivalry, if not ultimate succession, given the reconfiguring constellations of nationalisms and populisms within today’s  international legal system under fire.  Much remains to be seen on the myth systems and operational codes of both world powers towards international law and the future shape of global order.  The “New Great Game” is still being played.

The ECtHR’s Ilias and Ahmed v. Hungary and Why It Matters

ejiltalk.org - Mon, 03/20/2017 - 09:00

The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary’s border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a “safe third country” under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.

In what constitutes its first verdict on Hungary’s latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn’t have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former’s ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants’ arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.

The Implications

While the Ilias and Ahmed v. Hungary judgment doesn’t break any new ground with respect to the Court’s reading of the law, it is probably one of the Court’s more important recent cases in light of its broader implications, political as well as legal. First of all, the Court’s analysis of the new situation in Hungary following the legislative amendments of 2015 effectively calls into question the legality of Dublin returns to that country along the lines of M.S.S. v. Belgium and Greece (in case anyone was really still wondering if it was alright to send asylum-seekers back to Hungary). Furthermore, by analysing the conditions and asylum system of Serbia and determining the existence of a real risk of violations of Art. 3 in case of forced return there (particularly with respect to the possibility of chain refoulement), the Court actually sent a very clear message to the Serbian authorities themselves, giving local civil society a new resource to draw upon when confronting state officials and their obstinate mantra that Serbia has somehow been “more European than some European countries” in its handling of the refugee situation. In fact, the practice of Serbian authorities is just about identical to Hungarian practice when it comes to the automatic application of the safe third country concept and refusal to examine asylum applications in the merits, albeit deprivation of liberty is far less common.

In a nutshell, Serbia is guilty of almost the same lack of safeguards with respect to the forced returns procedure as is Hungary. This is consistently reported by numerous reports by civil society, UNHCR and is even addressed by the CAT’s last Concluding Observations on Serbia. Therefore, it’s likely only a matter of time before Serbia finds its name added by the ECHR to the hall of shame of Europe’s asylum baddies.

There is also a third important component to the present judgment, which revolves around the fact that the situation of the present applicants is exactly the same as that of thousands of other refugees and asylum-seekers diligently abused by Hungarian authorities since, at the very least, late 2015. It is unfortunate that, mostly as a result of fear or ignorance or simply wanting to leave everything behind and move on with their lives, the vast majority of refugees and asylum-seekers in transit show very little willingness to commit to complex legal proceedings that could take years with potentially small compensation; as a result, asylum lawyers sometimes come across as overzealous, if not downright unscrupulous, in their pursuit of victims of human rights violations for “strategic litigation” (I have known lawyers who would have likely provided full room and board to potential applicants in their own homes, just to make sure they don’t get out of touch before the case can be adjudicated). Nevertheless, in such cases where they do succeed, they provide for a situation where even the most hypocritical state officials have a hard time trying to justify their country’s practice – and that goes for all of their victims, not just successful applicants.

Therefore, the Ilias and Ahmed judgment shows very clearly that a majority of asylum-seekers in Hungary have had their rights violated by that country’s authorities, in a manner which is deliberate, widespread and systematic and targets the migrant population specifically. I use these words deliberately: it probably won’t be long before someone seriously accuses Hungary of the exact same things Australia is currently coming under fire for.

What Comes Next

One should be careful not to attach too much practical significance to decisions by treaty bodies, even the more prestigious ones, such as the European Court. There can be very little doubt that populist, semi-authoritarian regimes which engage in this kind of abuse in order to satisfy their electorate are, in fact, aware that they’re violating international law, which once again highlights the chronic problem of impunity for human rights violations. It would therefore be too optimistic to believe that this verdict could change Hungarian policy in the short run, let alone that of neighbouring countries such as Serbia.

In fact, the European Court itself is deserving of criticism to the extent it failed to indicate interim measures in line with Rule 39 of the Rules of Court and prevent the applicants’ return to Serbia in the first place; whatever the appointed judge’s reasoning may have been, the author of the present post cannot find any explanation for the Court’s apparent reluctance to use its authority other than a desire to keep a low profile and stay under the radar at a time when the entire European establishment is being consumed by anti-immigrant hysteria. With all due respect to the Court, that is not part of its mission.

That being said, there is absolutely no doubt that the Ilias and Ahmed verdict represents a milestone in the protection of the rights of refugees and asylum-seekers taking the Western Balkans route. While it’s unfortunate that the judgment comes at a time when the media’s attention has long since “migrated” to other issues, it serves to validate civil society’s criticism of policies adopted by several countries along the route, and may even intimidate some governments into taking genuine action to improve the situation. Now it’s up to lawyers in Serbia to follow the example set by civil society in Hungary and re-double their efforts at litigating – they can hardly say there’s no potential applicants to work with.

Announcements: CEILA Lecture; CEILA Book Symposium; CfS UCL Journal of Law and Jurisprudence; Conference on ‘Law and Memory in Established Democracies’; Towards Utopia – Rethinking International Law Workshop; Conference on the Right for the State to...

ejiltalk.org - Sun, 03/19/2017 - 13:00

1. CEILA Lecture on The Use (and Misuse) of European Human Rights Law in Investor-State Arbitration. The annual lecture of the  Centre for European and International Legal Affairs (CEILA) at QMUL is being given by Prof José Alvarez (New York University Law School) and is entitled  “The use (and misuse) of European Human Rights Law in Investor-State Arbitration”.  Professor  Max Scherer (QMUL) will be chairing and Professor Zachary Douglas QC (Graduate Institute Geneva) is the discussant. The lecture is on 28 March 2017 (6.30-8pm) and will be followed by a drinks reception (8-9pm). See here for more details and to book a place.

2. CEILA Book Symposium on The Impact of International Organizations on International Law. A QMUL  Centre for European and International Legal Affairs (CEILA) book symposium  on Prof José Alvarez’s new book The Impact of International Organizations on International Law with Professor José Alvarez (NYU), Professor Dan Sarooshi (Oxford), Professor Phoebe Okowa (QMUL), Professor Surya Subedi QC (Leeds), Dr Chanaka Wickremasinghe (FCO) and Dr Eirik Bjorge (Bristol) will be held on 27 March 2017. See here for more details and to book a place.

3. Call for Submission, UCL Journal of Law and Jurisprudence. The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2017 on the theme of ‘Crisis and the Law’. The Editorial Board welcomes submissions that engage with this general theme. It is broadly conceived, covering a range of political, economic, social, environmental and cultural issues, and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be crisis-related. Submissions could be theoretical, doctrinal or aimed at practice. Concretely, the Journal seeks to publish pieces that either articulate the concept of crisis within the law or how the law deals with current crises. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with OSCOLA. The deadline for submissions is 14th April 2017. Manuscripts must be uploaded via the submissions section.

4. Conference on ‘Law and Memory in Established Democracies’. Memory Laws in European and Comparative Perspective (MELA) and Humanities in the European Research Area (HERA) are hosting a conference on ‘Law and Memory in Established Democracies’ at the University of Bologna on 24 March 2017. See here for the programme of the conference.

5. Towards Utopia – Rethinking International Law Workshop. The Walther Schücking Institute for International Law at the University of Kiel is organising a two-day workshop entitled “Towards Utopia – Rethinking International Law”. It is aimed primarily at young international lawyers (PhD students or post-docs) and aims to explore progressive, unconventional thinking, new ways of approaching and using international law, and different visions for the “law of the future”. The workshop will be loosely structured around the utopian work of Professor Philip Allott, who has kindly agreed to join our discussion. Abstracts of around 750 words should be submitted to utopia {at} wsi.uni-kiel(.)de var mailNode = document.getElementById('emob-hgbcvn@jfv.hav-xvry.qr-49'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%75%74%6F%70%69%61%40%77%73%69%2E%75%6E%69%2D%6B%69%65%6C%2E%64%65"); tNode = document.createTextNode("utopia {at} wsi.uni-kiel(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-hgbcvn@jfv.hav-xvry.qr-49"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by 8 May 2017. The full Call for Papers is available here.

6. Certain Issues Concerning the Right for the State to Regulate in International Law Conference. The International law and international organisations, the International economic law and the International administration Masters’ second degree (Panthéon-Sorbonne University) are hosting a conference entitled “Certain Issues Concerning the Right for the State to Regulate in International Law” on 22 March 2017 from 2pm to 6pm.

On Theory-Bashing: Why It Happens and What It (Probably) Says About Us

ejiltalk.org - Fri, 03/17/2017 - 09:00

Introduction

This post is a response (of sorts) to an earlier post made last month by Andrea Bianchi, in which he discusses the widespread aversion and prejudice shared by most international lawyers against the idea of ‘theory’ and the disempowering effects this attitude has had on the contemporary discipline of international legal studies. Whether or not one agrees with the ‘most international lawyers’ part of the claim, the argument Professor Bianchi presents deserves attention and careful consideration. It raises a whole series of important points, not least about the fundamental naivety of the assumption that law as a craft requires no special theoretical awareness on the part of its practitioners. At the same time, however, it also leaves out a number of questions that in a context like this one would, ideally, expect to be given as much, if not more, critical attention.

In this post, I propose to explore some of these questions. The argument offered below is intended to complement and develop Professor Bianchi’s broader point, viz., that theory-bashing is a highly disconcerting tradition that has negative consequences not only for those international lawyers whose main field of work falls in the area of theoretical scholarship, but for the international legal profession as a whole.

Multiple meanings of ‘theory’

To begin with, let us note, firstly, that in modern academic practice the term ‘theory’ is typically used in three fundamentally different senses:

  • As a designation for a certain kind or genre of scholarly writing (as in ‘Rasulov mostly does theory and not very well’);
  • As a synonym for ‘a school of thought’ or ‘a relatively distinct scholarly movement’ (as in ‘the influence of the New Haven theory has certainly been overstated’); and
  • As a shorthand for what one might otherwise call an orientating system of assumptions (as in ‘based on what theory, Rasulov, did you come up with all this nonsense?’).

In discussions that revolve around questions like ‘who needs theory?’, in international law as much as elsewhere, one often tends to lose sight of this multiplicity of meanings. Those who rail against ‘theory’ typically only have in mind theory in its first sense. Those who respond to these criticisms most angrily, for the most part, only focus on theory in the third sense. (In most international law circles, no one really cares today about theory in the second sense, and so I am not going to say anything more about it other than note that calling academic movements ‘theories’ is unforgivably reductionist and misleading.) Predictably enough, this tends to introduce all manner of confusion into the resulting discourse, an outcome that, all things considered, is as regrettable as it is revealing: any trained lawyer worth their law degree should have no difficulty recognising the fundamental non-equivalence of these three concepts.

Theory as a genre of scholarship

The first thing that needs to be noted about this meaning of theory is that the practice of using the word ‘theory’ to describe a certain genre of scholarly writing has a fundamentally non-academic cultural genealogy. Neither culturally nor semantically does it seem to make any sense other than in the context of a broader conceptual relationship that connects it with the corresponding ideas of ‘practice’, ‘practically relevant knowledge’, etc. What is more, it is this latter cluster of concepts that plays the dominant role in this relationship: ‘theory’ is all that which is not part of ‘practice’, never the other way around.

Looking from this angle, it should not really come as much of a surprise that, used in its first sense, the concept of theory in the contemporary international law discourse invariably appears in the form of some kind of residual construction: to know what sort of scholarship counts as ‘theory’, one needs first to subtract from the general body of international legal scholarship all those writings that are otherwise deemed to be ‘practically useful’ or have some degree of ‘practical relevance’.

This tradition of associating the concept of theory with forms of scholarly pursuit that lack immediate ‘practical’ usefulness or relevance is certainly not a new phenomenon. Nor is it a phenomenon that is limited only to international lawyers. Indeed, as a cultural pattern, it seems to carry an ideological baggage whose complexity and richness far exceeds the narrow field of any contemporary academic discipline. In genealogical terms, it can probably be traced to that traditional anti-intellectualism of the early bourgeois classes that Dickens and Nietzsche wrote about: an ethos born of self-celebratory philistinism mixed with all manner of inferiority complexes and barely suppressed ressentiment towards the old aristocratic classes, associated as these latter had become, as Veblen famously noted, with the phenomenon of conspicuously impractical learning. Acquiring any kind of background in ‘theory’, in this worldview, was essentially like studying a dead language. It was to show a yearning for all those things which the early bourgeois mind, with its values of industrial productivity, administrative efficiency, and the worship of market conquest, could not but recognise only as a sign of wastefulness, decadence, and the weakening of the fighting spirit. (Conversely, all learning that could help one advance the values of industrial productivity, etc., was deemed to be ‘useful’ and the knowledge that came from it ‘practically relevant’. Notice what this implies about ‘practice’.)

The fact that this mindset has spread across the wider social fabric should not be surprising: the morals of the hegemonic class always have a strong impact on those of the other segments of society. Its penetration into the modern academic culture, however, certainly casts a rather interesting light on the internal fault-lines traversing the modern academia’s internal cultural landscape as well as the broader historical contradictions surrounding academia’s general place and role in the broader social matrix of late capitalism.

In the case of international law, the most important of these contradictions can be seen most clearly in the implicit conception of the intra-disciplinary division of labour that underpins the anti-theoreticist enterprise described by Professor Bianchi in his post. 

Theory-bashing and the ideology of academia’s vassalage to ‘practice’

According to the anti-theoreticist worldview, there exist, essentially, two main communities of international lawyers: practitioners and academics. The former apply law to solve real-world problems. The latter work in universities. The former hold their hand on the beating pulse of the international system. The latter spend their days teaching and doing research. The former hold the fort for all international lawyers and thus help advance the discipline’s reputation in the external world. The latter hang in the back, enjoying the benefits thus won.

Note the heavy themes of parasitism and vassalage that infuse this discursive structure and the images it projects. The only reason why international law exists as a profession, on this view of things, is because the world needs international lawyers to provide it with legal advice. This service is delivered on behalf of the profession by its practitioner segment. The only reason why the academic segment of the profession exists, then, is because the practitioner segment has need for it: it requires academics to help it replenish its social base (training the next generation of practitioners) and fill in the gaps in its knowledge arsenal (research state practice and clarify doctrinal questions). Any activities engaged in by the academic segment that do not directly benefit the practitioners’ cause are wasteful and go against the collective needs of the international law profession. Those academics who write ‘theoretical’ scholarship fall into this category. Those who don’t, are to be praised and recognised as ‘true’ legal scholars.

There is not much one needs to say about this argument. The idea of academic vassalage is, obviously, ideologically charged. It projects a very particular picture of how power, recognition, and worth ought to be distributed within international law’s social space. It also aggressively flattens out all the numerous differences within it that do not fit within its two proposed binaries: practitioners vs. academics, true vs. theoretical scholars.

It is also deeply mythologised in that it both underestimates and overestimates the role of the human element in the day-to-day realities of international law. It underestimates it by failing to acknowledge how influential ‘in the real world’ some academics can actually become (and that they become so influential precisely because they are seen as scholars, not as practitioners). It also overestimates it by assuming a kind of spontaneous integrity and intuitive wisdom on the part of the practitioner community that had last been seen in nineteenth-century naïve pastorals about ‘noble savages’ and salt-of-the-earth peasant muzhiks, a picture that seems no less ridiculous in its faux sentimentalism than it is fantastic.

The latent politics behind theory-bashing in contemporary international law, thus, is not really that latent at all. What stands behind it is a deeply conservative aspiration – to limit the scope for critical thought and to turn international law as a discipline and as a broader social phenomenon into an offshoot of some imaginationless tekhne: the ‘science’ of governance, the ‘craft’ of proceduralizing negotiations, the ‘technology’ of de-escalating disputes.

Like all reactionary ideologies, he ideology of academic vassalage is fighting a rear-guard action. Judging by recent trends, the movement of history is not really on its side. The days of confident anti-theoreticism are long gone. Not all international lawyers who rail against ‘theory’ nowadays do so out of a firm conviction that scholarship is the handmaiden of practice. Many of them, in fact, recognise the right of ‘theoretical’ scholarship to exist. They are just upset that there is so much of it today and that it has been so impudent in its dismissal of the vassalage model.

Theory as an orientating system of assumptions

When used in its third sense, the term ‘theory’ essentially represents the idea of an implicit framework of background assumptions, an internal conceptual framework behind a given act of international legal discourse. It is ‘[that] which allows what can be thought to seem internally coherent in its own terms.’ (Fredric Jameson, The Political Unconscious 38 (2002)) Like gait in running, theory in this sense of the term can be said to be present behind every act of the international legal discourse. It is inscribed in the very moment of its realisation: ubiquitous, indispensable, and entirely unavoidable. So long as you participate in any kind of international legal debate, so long as you offer opinions or make claims about international law, you inevitably enact and give voice to (at least some kind of) a theory of international law. It does not matter whether it is an intelligent, interesting theory, or sophisticated theory. Just as it does not matter if you are conscious of the fact that you ‘have’ a theory and are ‘acting’ upon it. Like using good/bad grammar, you do not need to be conscious of ‘doing it’, to continue ‘doing it’. It will happen either way, regardless of how you feel about it.

Put another way, every international lawyer, so long as they purport to participate in an international law conversation of some kind, will inevitably act as a practitioner of legal theory in this sense of the term. If this is the first time this idea has crossed your mind, enjoy it. Think of it as your equivalent of that episode in Le Bourgeois gentilhomme where Monsieur Jourdain learns he had been speaking prose all his life without ever being aware of it.

Note the obvious Koskenniemian parallel here: what we are looking at here is very similar to what in From Apology to Utopia Martti Koskenniemi describes in terms of of the ‘native speaker competency’ metaphor. It is essentially the name we give to that intuitive sense of how-we-can-make-this-work that we put in practice every time we set out to mould, sculpt, and fashion our starting givens – facts, potentially applicable rules and precedents, broader considerations of public policy, etc. – into ‘legal opinions’, ‘expert views’, ‘claims’, ‘verdicts’, ‘decisions’, etc. Theory in this sense of the term is not something that one declares as a manifesto or adopts as a formal creed. Rather, it is more like the Freudian unconscious, or, as the French philosopher Louis Althusser would say, a cause that can only be visible through its effects.

Conclusion: on taking ‘theory’ seriously

A different way of explaining the third meaning of theory would be to use the metaphor of technology. If we were to analogise international legal discourse to a process of production, so that the concept of the ‘final product’ would cover constructs like ‘arguments’, ‘verdicts’, ‘insights’, ‘interpretations’, etc., then, basing on what has been said earlier, the concept that would describe collectively all the various ‘means of production’ (intellectual tools, know-how, and protocols) that we would draw on when developing these ‘final products’ would be the exact equivalent of ‘theory’ in its third sense.

What might be gained from turning to such a metaphor? Consider the following argument made by Althusser in his analysis of the logic of scientific enterprises (Louis Althusser, For Marx 184-5 (1969)):

In the development of an already constituted science, the latter works on a raw material (Generality I) … by transforming this Generality I into a Generality III (knowledge) …

But who or what is it that works? What should we understand by the expression: the science works? [E]very transformation (every practice) presupposes the transformation of a raw material into products by setting in motion determinate means of production. What is [it that] corresponds to the means of production, in the theoretical practice of science? If we abstract from men in these means of production for the time being, it is what I call the Generality II, constituted by the corpus of concepts whose more or less contradictory unity constitutes the ‘theory’ of the science at the (historical) moment under consideration … We must rest content with these schematic gestures and not enter into the dialectic of this theoretical labour. They will suffice for an understanding of the fact that theoretical practice produces Generalities III by the work of Generality II on Generality I.

The argument Althusser outlines in this passage, as he himself admits it, is indeed rather schematic. But it helps throw light on one very important insight. The more conscious we are of the fundamental non-equivalence of Generality I (the raw materials from which we construct knowledge products) and Generality III (the respective knowledge products themselves), the more aware we become of the central role played in this transformation by Generality II (the totality of the various intellectual tools, protocols, etc. used in the production of these knowledge products) The more aware we become of the importance of Generality II, the more pressing, accordingly, becomes the need for us to find out the exact composition of the particular species of Generality II that we use in our own discourse. And the scholarly enterprise in the context of which we can best address this need is – yes, that’s right, you already know the answer.

Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?

ejiltalk.org - Thu, 03/16/2017 - 09:00

From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted “alternative facts”, at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine’s position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues “policies of cultural erasure and pervasive discrimination” against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that “the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself”.

Oral proceedings provide valuable insights into Russia’s litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court “to stigmatize a substantial part of the Ukrainian population” in eastern Ukraine as terrorists, and Russia as a “sponsor of terrorism and persecutor”.

Prima facie jurisdiction

The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. In relation to the fulfilment of jurisdictional prerequisites provided for in Article 24 of ICSFT, Ukraine argues that Russia ignored central issues to the dispute and therefore, it could not have reasonably been expected “to continue participating in fruitless negotiation sessions”. In turn, Russia argues that Ukraine did not engage in negotiations bona fide, as the only objective it had allegedly pursued was to take Russia to the Court. Russia further submits that during the negotiations, when the parties were in the course of agreeing on yet another round of negotiations, Ukraine unilaterally walked away from the negotiations.

Regarding the parties’ negotiations on arbitration, Ukraine submits that the parties were unable to agree on the organization of arbitration in the six-month period provided by the Convention. Russia claims that although it produced the full draft of an arbitration agreement, Ukraine never responded with specific comments on the draft (this was later denied by Ukraine). Despite different accounts of the attempted arbitration proceedings, it appears that the parties engaged in the negotiations. Nonetheless, they were unable to agree either on the arbitration setup or on the enforcement of a possible arbitral award. Of particular interest is that Ukraine suggested setting up an arbitral tribunal within the meaning of Article 24 of ICSFT by way of creation of an ad hoc chamber of the ICJ with subsequent enforcement of the future arbitral award through the UNSC under Article 94(2) of the UN Charter. Ukraine appears to have conflated an arbitral tribunal with the ad hoc chamber of the Court that delivers judgments of the Court but not arbitral awards that could be enforced through the UNSC. This begs the question if the arbitration mechanism within the meaning of Article 24 of ICSFT was attempted at all, given Ukraine’s suggestion to institute the ad hoc chamber of the ICJ for the purposes of such proceedings.

With respect to Article 22 of CERD, Ukraine submits that despite extensive diplomatic correspondence and three rounds of negotiations, Russia “never provided straight and specific responses on the issues raised by the Ukrainian side”. Russia maintains that Ukraine did not engage in bona fide negotiations and “abruptly decided to end the consultations” in December 2016. During the oral proceedings, Russia was advancing arguments on Ukraine’s practice of discrimination of Crimean tatars prior to the annexation of Crimea, while providing examples as to how the situation regarding the protection of minority rights has improved after Crimea became part of Russia. Although the parties have placed different emphases on various factual circumstances surrounding the human rights situation in Crimea, there appears to exist a dispute between the parties on the interpretation and application of CERD, as the acts alleged by Ukraine are capable of infringing upon the rights enshrined in CERD (in the words of ICJ Georgia v Russia, Order on Provisional Measures, para 112). It should be sufficient at this stage that Ukraine attempted to initiate discussions with Russia on issues that fall under CERD (ibid., para. 114)

Plausibility of The Most Disputed Claims under ICFST

The most interesting part of the proceedings relates to the parties’ exchange regarding the plausibility of claims under ICFST. Two major points of contention deserve particular attention. The first one relates to the prohibition of state financed terrorism that, as argued by Russia, was not contemplated by the drafters of the Convention. ICFST does not explicitly impose an obligation upon a state to refrain from rendering its support for terrorism, as it only speaks of an obligation in the prevention of the terrorism financing offences, as well as an obligation to cooperate in order to investigate and prosecute those offences. However, an obligation not to engage in the terrorism offences on the part of a state, although not explicitly mentioned, appears to be implied. In that respect, Ukraine was right to seek inspiration from the ICJ Bosnian Genocide case where the ICJ found that an obligation not to commit genocide follows from the expressly stated obligation to prevent the commission of genocide (ICJ Bosnian case, para 166). One can hardly disagree with the ICJ that it would be “paradoxical” if states were only under an obligation to prevent, but “were not forbidden to commit such acts” (ibid). Although the Genocide Convention is different from the ICFST, it would be logical if similar reasoning prevailed in the context of the present case, since an obligation to prevent the terrorism financing offences should imply the prohibition of committing such offences.

Another important aspect of dispute concerns the interpretation of mens rea with respect to the terrorist acts listed in Ukraine’s application that Russia allegedly provided support for. Given that Ukraine alleges that specific incidents of shelling civilians, bombings in Kharkiv and shooting down of MH17 constitute the acts of terrorism within the meaning of Article 2(1) of ICFST that had been financed by Russia, it is unfortunate that Ukraine’s counsel was ambiguous in addressing the mens rea standard for the crime of terrorism and did not spend more time on showing the linkage between the alleged acts of terrorism and knowing financing of such acts. It is clear from the wording of ICFST that an act of terrorism may occur in the context of an armed conflict if “the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. In the context of ICFST, the ‘peacetime’ definition of terrorism was included as a catch-all definition of the primary offence with an added reference to an armed conflict. The mens rea in Article 2(1)(b) is twofold. First of all, it requires (1) the intent to cause death or serious bodily injury to a civilian; and (2) purpose to intimidate a population or pursue certain political objective (dolus specialis). With respect to the first limb of mens rea, the counsel erroneously stated that recklessness would suffice. As to the second limb of mens rea, the counsel merely stated that the attacks listed in Ukraine’s application “would naturally intimidate Ukrainian civilians, and they arose in the context of a group that was seeking political concessions from their Government”. Even at this preliminary stage, the counsel could have made more effort to demonstrate the existence of dolus specialis with respect to the alleged acts of terrorism, as the lack of plausibility in that regard would simply make all Ukraine’s claims under ICFST fall apart. Ukraine might well follow the fate of Yugoslavia v Belgium where, at the stage of provisional measures hearings, the ICJ dismissed the Genocide Convention on a jurisdictional basis, since it was not satisfied that the bombings which formed the subject of the Yugoslav Application “indeed entail the element of intent, towards a group as such” as required by the definition of the crime of genocide (Legality of Use of Force (Yugoslavia v. Belgium), Order on Provisional Measures, paras 40-41).

There are a number of other interesting arguments advanced by Russia, in particular with respect to the absence of the element of discrimination regarding the alleged human rights violations in Crimea, as well as the absence of urgency to order provisional measures as they could interfere with peace processes (Minsk Agreements). All in all, it is a case to be watched, as it has the potential to offer answers on the interpretation of state obligations under CERD, although it is less likely that it will engage with a substantive discussion of Ukraine’s claims under ICFST.

 

The ‘Command Responsibility’ Controversy in Colombia

ejiltalk.org - Wed, 03/15/2017 - 15:15

The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the “command responsibility” definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.

This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders’ war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called “false positive” killings.

Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.

Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a “command responsibility” definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.

Command Responsibility in the Original Peace Accord

The parties first announced an “agreement on the victims of the conflict” in December 2015. The agreement included “command responsibility” as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:

“Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations” (my translation).

Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.

Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander’s knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.

Some contended that the definition could be interpreted to be consistent with international law given the phrase “at their disposal.” This language could be interpreted to emulate the language in the ICTY Appeal Chamber decision in the Čelebići case, requiring that the commander have information “available that would have put them on notice of the crimes (para. 241). The lack of explicit language, however, created unnecessary ambiguity. And even assuming that interpretation, the definition would have still failed to clarify whether it encompassed the duty of commanders to remain informed. As the ICC pre-trial chamber noted in Bemba, “the “should have known” standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime.” (para. 429. Compare with the ICTY Appeals decision in Čelebići, para. 226)

“Effective control.” The definition required that the commander have “effective control over respective conduct,” suggesting that commanders need to have control over the illicit acts of their subordinates —whereas under international law, commanders must simply have control over the military forces that carried out those actions.

Command Responsibility in the Revised Accord (and how the Government Back-Pedalled)

The parties in Colombia concluded a peace accord in September 2016. The agreement, however, was defeated by a slim margin in the October plebiscite. The parties quickly reached a new agreement with a range of modifications. One key modification was the addition of new language to the definitions of command responsibility applicable both for guerrillas and members of the armed forces:

[E]ffective control over the respective conduct means the actual possibility that the superior had to exercise an appropriate control over his subordinates, regarding the execution of the illicit conduct, as it is established in article 28 of the Rome Statute (my translation).

As we noted at the time, this new language seemed to solve the second problem outlined above —that is, the requirement that commanders had “effective control over the respective conduct.” The language not only made explicit reference to article 28 of the Rome Statute, it also included language that was at least similar to the definition of “effective control” in the ICC’s Trial Chamber ruling in the Bemba case (para. 188) and previous tribunal case-law: “’effective control’… requires the material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities.”

Army generals protested the new language, including in a public letter to President Juan Manuel Santos that criticized the reference to the “controversial article 28.” Stunningly, the government quickly announced that it had decided to delete the new language from the definition of command responsibility applicable to army soldiers. The definition for guerrilla commanders remained untouched except for a curious replacement of “article 28 of the Rome Statute” with “international law.”

But even more surprising was the FARC’s reaction. They announced they had “not permitted” the government to remove the language in the article referring to their commanders, in part, because they believed that the “command responsibility” definition would be “of concern” to the Prosecutor of the ICC, which has the situation in Colombia under preliminary analysis and could act as a court of last resort.

The Implementing Legislation (or how the Government Muddied the Waters Even More)

President Santos later promised the issue would be discussed with the military and solved in the implementing legislation. Implementing legislation, in the form of a constitutional change, which was introduced in Congress in December 2016 and, ultimately approved in March 2017, provides as follows with regard to army officers:

Commanders’ responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent and, if it has occurred, promote the relevant investigations.

Authorities should deem that there is effective control and command of the military or police superior over the acts of his subordinates, when they demonstrate the following concurring conditions:

  1. That the criminal action or actions were committed within the area of responsibility assigned to the unit under his command and according to the respective level, and are related to the activities under his responsibility;
  2. That the superior had the legal and material ability to give orders, modify them, and enforce them;
  3. That the superior had the effective capacity to develop and execute operations within the area where the criminal acts where committed, according to his specific level of command;
  4. That the superior had the material and direct ability to take the adequate measures to prevent or oomeepress the criminal acts of his subordinates, as long as he had the actual or updatable knowledge of the commission of these crimes. (translation and emphasis mine)

Days after this language was introduced into Congress, an op-ed by the ICC prosecutor Bensouda was published in the Colombian magazine Semana, noting that the definition “could be ‘interpreted’ as limiting the definition of command responsibility in the Rome Statute.” Indeed, as Human Rights Watch noted, the definition makes no progress in correcting the flaws mentioned above.

Mens rea. The new language makes it harder to argue that the “command responsibility” definition includes the “should have known” alternative under the Rome Statute. By adding that the commander must have “actual or updatable knowledge of the crimes,” the definition seems to require direct knowledge. (“Updatable” appears to refer to the commander’s knowledge of a crime that has already been committed.)

Effective control. While the new definition may look like it clarifies that “effective control over the respective conduct” means effective control over the military forces, in fact, it departs from the standards established by international case-law. In part (d), the proposed definition replicates, in part, the definition of “effective control” under international case-law. However, it imposes additional requirements in (a)-(c), all of which must be proved concurrently. By contrast, under the case-law of international courts, including from the ICC trial Chamber’s decision in the Bemba case (para. 188) and the ICTY trial chambers’ decisions in Perišic (para. 188) and Delić (para. 62), these criteria are merely indicative, and are only some of a broad range of indicators of effective control, with proof of effective control largely case specific.

With the legislative process concluded, the next chance to fix the definition lies in the hands of the Constitutional Court, which will have to review the legislation in the upcoming weeks.

 

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