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The Role of Human Rights Law in Constructing Migration Emergencies

ejiltalk.org - Fri, 02/24/2017 - 09:00

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

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

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

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

The Legal Construction of Crisis

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

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

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

The Architecture of International Law Relating to Migration

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

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

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

The Legal Construction of Migration Emergencies

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

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

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

Introduction to ESIL Symposium on ‘International Human Rights Law in Times of Crisis’

ejiltalk.org - Thu, 02/23/2017 - 14:00

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

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

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

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

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

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

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

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

ESIL Blog Symposium on ‘The Place of International Human Rights Law in Times of Crises’

ejiltalk.org - Thu, 02/23/2017 - 09:00

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

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

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

The ICJ’s Preliminary Objections Judgment in Somalia v. Kenya: Causing Ripples in Law of the Sea Dispute Settlement?

ejiltalk.org - Wed, 02/22/2017 - 09:00

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

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

Part XV of the LOSC

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

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

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

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

The ICJ’s Approach to Part XV of the LOSC

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

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

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

The Impact on LOSC Dispute Settlement

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

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

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

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

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

Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

ejiltalk.org - Tue, 02/21/2017 - 09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post-Truth and International Criminal Tribunals

ejiltalk.org - Mon, 02/20/2017 - 07:39

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

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

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

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

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

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

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

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

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

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

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

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

Source: https://upload.wikimedia.org/wikipedia/commons/9/9c/Yasukuni_Radha_Binod_Pal_Commending_Stele.jpg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Insisting” on Transition of Power

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

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

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

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

A Justifiable Threat to Use Force?

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

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

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

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

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

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

 

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

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

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

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

Revisiting an Old Debate: Reisman vs. Schachter

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

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

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

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

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

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

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

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

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

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

Enter The Gambia

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

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

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

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

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

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

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

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

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

Africa v. the ICC

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

Withdrawal

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

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

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

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

What is Collective Withdrawal?

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

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

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

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

Law, Politics and Withdrawal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Uncertain Relationship Between International and Russian Law

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

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

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

RCC’s Reading of the VCLT and Jus Cogens

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

RCC’s Decision Highlights

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

Flawed Judicial Reasoning?

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

Was the RCC an Appropriate Venue?

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

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

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

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

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

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

The Dispute and Counterclaim

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

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

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

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

Jurisdiction

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

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

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

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

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

Merits

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

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

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

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

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

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

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

Nonetheless, the tribunal concluded:

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

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

Conclusion

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

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

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

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

The Pluriformity of Commissions of Inquiry

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

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

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

Justice through a Commission of Inquiry?

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Engaging with Theory – Why Bother?

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

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

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

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

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

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

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

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

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

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

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

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

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

Editorial: The Case for a Kinder, Gentler Brexit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JHHW

 

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