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

Mon, 04/24/2017 - 08:00

 

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

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

Prima facie Jurisdiction under CERD and ICSFT

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

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

Plausibility of Claims under ICSFT

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

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

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

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

Sun, 04/23/2017 - 10:00

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

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

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

Sat, 04/22/2017 - 09:15

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

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

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

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

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

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

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

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

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

 

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

Fri, 04/21/2017 - 15:00

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

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

The Conditions and Treatment in Detention in the UK

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

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

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

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

The Relationship between Treatment, the Use and Legitimacy of Detention  

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

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

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

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

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

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

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

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

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

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

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

Fri, 04/21/2017 - 08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

Thu, 04/20/2017 - 08:00

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

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

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

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

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

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

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

Taking the EU out of the EU-Turkey Statement

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

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

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

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

Possible Alternative Readings?

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

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

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

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

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

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

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

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

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

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

Being Charged by an Elephant: A story of globalization and inequality

Wed, 04/19/2017 - 08:00

Along with many economists and globalization scholars, my favorite graph these days is the elephant graph. Named for its distinctive elephant-shaped curve (see below), this graph shows the rise in real incomes for people in different income brackets throughout the world over a twenty year period of intense economic globalization (1998 to 2008). Economists often like to tell us that free trade is good because it is a rising tide that lifts all boats. What this graph suggests, however, is that economic globalization has produced clear winners and clear losers. This division seems to be playing an important role in explaining some of the rising nationalist and pro-protectionist sentiments we are witnessing in certain developed states, as shown by the rise of Trump and the vote for Brexit.

So who has won and lost in the age of economic globalization? According to the elephant graph, there have been two big winners. The first are individuals who sit in the lower to middle income tiers (between the 10th to the 65th percentiles) who have seen their real incomes go up by between 50 and 80 percent (marked as point 1 in the graph above). Although the incomes of individuals do not correlate perfectly with particular states, the vast majority of these individuals have come from the middle classes of some of the emerging economies like China and India.

The second are the richest individuals around the world, the global top 1 percent, whose real incomes have also risen sharply during this period (marked as point 3 above). Most, though clearly not all, of these individuals come from developed states and, in particular, from the United States. The global top 1 percent remains heavily dominated by individuals from developed states. Half of the global 1 percent is made up of Americans, with 11 to 12 percent of all Americans being included in the global top 1 percent. Not only have these individuals experienced strong growth in their real incomes in relative terms but, as they started from a much higher baseline, the absolute growth in their real incomes has been even greater.

But the biggest losers, at least in relative terms, are those individuals whose incomes lie at around the 75th to 85th percentile point. Again, these individuals do not map neatly onto specific states, but they include a significant proportion of some of the poor and working class people of developed states like the United States (marked as point 2 above). According to Branko Milanovic who created the chart, seven out of ten people at that point are from “old rich” OECD countries. Although these individuals are still relatively wealthy when compared to global averages, they have seen their real incomes largely stagnate over this 20 year period. Compared to others who have benefited greatly from economic globalization, many of these individuals feel left behind.

This graph provides a way of understanding two different narratives that have emerged in recent elections. A politician like Trump speaks to poor and working class voters (point 2) and says to them: America is being “raped” by China and “killed” by Mexico as a result of terrible trade deals that have ripped out the wealth of America’s middle class and redistributed it to other states around the globe (i.e., blame those at point 1). By contrast, a politician like Bernie Sanders speaks to those same disenchanted voters and says to them: the poor and working classes in America have been done over by a greedy elite while the middle class has been hollowed out by America’s failure to redistribute from the top 1 percent (i.e., blame those at point 3). One tells a story of too much international redistribution, the other a story of too little national redistribution.

As with many stories, both narratives have some truth to them and neither captures the full picture. Although the overall narrative surrounding the elephant graph is clear, the real story is –as always – more complicated. Some studies suggest that the poor and working classes in developed states have not seen their incomes go backwards, even if they have not reaped high rewards (particularly in comparison to some other groups). Factors other than economic globalization also influence the shape of the curve, such as compostitional issues (i.e., which states are included in the analysis), demographic changes (i.e., population sizes in many developing states have grown considerably faster than in most developed states, which affects the shape of the curve), and technology (i.e., many jobs have also been lost to automation rather than to foreign workers).

Even accounting for these nuances, two facts seem to remain. First, there has been a strong growth in real income for the middle classes in many developing states at the same time as there has been weak growth for the poor and working classes in many developed states. Although correlation does not equal causation, this does suggest that there is some truth to the first narrative framed above, particularly as economic globalization makes it easier to offshore manufacturing jobs from the developed to the developing world. Second, in line with the second narrative, domestic policies play a crucial role in redressing, or failing to redress, income inequality within states. Differences in how the various income brackets have fared within different developed states (like the United States and France) speak to the importance of issues such as tax and welfare policies in redressing inequalities that might be exacerbated by globalization. On these points generally, see here and here.

The elephant graph tells a powerful story about the relationship between globalization and both growing equality between states and growing inequality within states during a period of intense economic globalization. It is a story that has potentially significant domestic and international political implications. For instance, if the bottom incomes of rich states continue to stagnate while the middle incomes in various developing states continue to climb, does that mean that trade and investment treaties are likely to have ongoing destabalizing effects in developed states? If a strong democracy is correlated with having a large middle class, what will the hollowing out of the middle class mean for developed states, and the burgeoning of the middle class mean for developing states? And are we at risk of creating, or cementing, a global plutocracy as the richest 1 percent surge ahead?

This story of growing equality between states and growing inequality within states is also likely to underpin many of the developments in international economic law in the coming decades. In Africa, they tell you that if you are ever charged by an elephant, you should run for cover but, if you can’t reach cover in time, you must stand your ground and face the elephant. (As someone who was fortunate to survive being charged by an elephant whilst on foot in Tanzania, I can tell you that the advice to stand your ground is even harder to follow in practice than it sounds in theory … and it sounds very hard in theory.) With the rise of anti‑globalization sentiments in the United States, the United Kingdom and Europe, we may well see many developed states run for cover. Indeed, we have already seen Trump withdraw from the TPP, the TTIP negotiations be shelved and discussions about renegotiating NAFTA be put on the agenda.

However, many states in Asia have done well out of the last few decades of globalization. Indeed, of the people around the median whose real incomes almost doubled during this period, 9 out of 10 of these “winners” were from “resurgent Asia.” Perhaps it should come as no surprise, then, that China has become a champion of further international economic integration and many eyes have turned to focus on the ongoing RCEP negotiations, which is the mega-regional trade and investment agreement currently under negotiation among the ASEAN states and Australia, China, India, Japan, South Korea and New Zealand. Some members of the TPP are also looking to push that deal forward without the United States. It is too early to tell how these negotiations will play out. But, given the generally more positive experiences many of these states have had with economic globalization over the last few decades, states in the Asia Pacific seem to be more likely than others to stand their ground in the face of this charging elephant.

 

United States’ Missile Strikes in Syria: Should International Law Permit Unilateral Force to Protect Human Rights?

Tue, 04/18/2017 - 08:00

A bounty of recent blog posts have poured over the legality of the Trump administration’s missile strikes against a Syrian airbase in response to President Bashar al-Assad’s use of chemical weapons (see, e.g, here, here, here, here and here). Possible justifications have recently come to light, but do not provide a sufficient basis for the administration’s actions under international law (which is the focus of this post). Most commentators conclude that, absent UN Security Council authorisation or a justifiable claim of self-defence, international law provides no clear right for states to use force in response to such grave violations of human rights. Therefore, the strikes most likely contravene Article 2(4) UN Charter. With that analysis, I agree. The question that then arises, and which has received much less attention (although, see here and here), is the normative question: should international law permit such unilateral action (either individually or collectively) outside of the UN Charter framework?

The understandable response is that ‘something’ must be done and at least President Trump has acted where the international community has previously failed to do so. This sentiment is reflected in the opinions of a number of world leaders who appear to be supportive of the strikes against the Assad regime. Yet, notably, where countries have expressed support for the United States’ actions, they have not presented a legal justification for it. Regardless of whether we agree that the missile strikes are the right thing to do in response to a criminal regime gassing its own people (and there are serious doubts as to whether these strikes are an adequate or effective response), how should international law respond to such horrors as a general matter? What is the legal framework on which states can rely to do what they think is right? The most obvious option is a so-called ‘right of humanitarian intervention’, which has long been the subject of debate. This concept would serve as an independent legal basis, absent state consent, UN Security Council authorization or justifications of self-defence, for a state (or group of states) to use military force to protect individuals from egregious breaches of human rights occurring in a third state. Superficially, this might seem to be the answer. I think it is not. In an article just published in International & Comparative Law Quarterly, I argue that international law should not recognise such a right.

My position is in response to the invitation by Sir Daniel Bethlehem in 2013 (on this very blog) to knit together various threads of international legal practice to establish a ‘tapestry argument’ in support of such right. My article examines in depth the core ‘threads’ of Sir Daniel’s tapestry argument – that is, developments since World War II in international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL). Together, these advancements point to a paradigm shift in the foundations of international law that emphasizes the security of persons and peoples instead of only states. As such, Sir Daniel’s argument provides a degree of superficial support for a right of humanitarian intervention. The key question, however, is whether this evolution in the fabric of international law has affected the nature and extent of state sovereignty to such a degree that a right of humanitarian intervention should exist to reflect and support it. However, these developments only advance the argument for humanitarian intervention so far. The evolution of IHRL, IHL and ICL is progressive and ongoing and, while the focus on individuals and their security is increasing, its ability to account for humanitarian concerns is circumscribed.

Vitally, secondary rules that might enforce or reflect these developments are weak. Instead, these rules underscore the enduring importance of state consent, peaceful dispute resolution, and ex post facto accountability. The latter notably occurs via ICL, where enforcement and accountability take place in a courtroom rather than through military means. Therefore, while individuals are seen increasingly as bearers of rights and active subjects or participants in international law, there are restrictions on the extent to which third states or other actors can protect them. The potential for international law to monitor and curb state power is limited. These secondary rules create their own tapestry of international law, one that recognizes higher priorities such as the prohibition on the use of force, the comity of nations and the proper functioning of the international order. A right of humanitarian intervention would endanger this. It simply does not ‘fit’ with existing norms. Rather, the very concept risks tearing a hole in that tapestry. Therefore, when the notion of unilateral enforcement and protection of human rights is pitted against the preservation of state sovereignty, territorial integrity, and international peace and security, the former mechanism must lose. This is the (perhaps unfortunate) response to Professor Koh and the argument that wrongfulness of military intervention might be precluded after the fact. Like Professor Lederman, I am forced to conclude that the laws on state responsibility do not provide for a current defence to a breach of the UN Charter in this way and neither should they be used to support a normative claim.

In addition, as part of assessing the role of humanitarian intervention in the international legal order, the risks and dangers of its abuse, doubts as to its efficacy in responding to humanitarian abuses, and its position in the wider context of collective security raise substantial concerns. Article 2(4) is under great strain in the post-9/11 world and further exceptions would only further endanger international peace and stability. One only needs to consider how President Putin drew on NATO’s action in Kosovo as a precedent for intervention in Ukraine, stating that it was a ‘humanitarian mission’. This shows the dangers of setting precedents of humanitarian intervention and the risk of this ‘right’ being used as a pretext for aggressive and unlawful behaviour. It should not therefore be called upon to fill an enforceability or accountability gap. Responding to a breach of one cardinal international rule with a breach of another would be a retrograde step in the development of international law.

None of this is to say that the international community should do nothing. We might rightly conclude that, in extreme circumstances, breaking the law is justified, where the aims being pursued are legitimate. While this position risks undermining the rule of law and potentially invites further such intervention, an argument can be made that it provides a ‘safety valve’ where the law provides no clear response to an extreme situation. Better that than a legally permissive precedent. This seems unsatisfactory, however. Therefore, we should look to changing the system so that, collectively, the international community may respond to these emergency situations. The issue is not that international law lacks the tools to deal with such atrocities. We only have to look back to Libya to see that the UN can and has authorised force for humanitarian purposes. Even if the long-term results in Libya have been disastrous, the problems stemmed from how the legal authority granted by the Security Council was used by states to intervene (and not used, in the case of post-conflict planning), not from the factor of the legal authorisation itself.

The current issue therefore is a lack of political will to act, not a lack of a legal toolkit. We therefore come to the elephant in the room. Arguably the better answer to the road block to ‘doing something’ is facing up to the conundrum that is the exercise of the veto power of the permanent members of the UN Security Council. As the case of Syria shows, the veto may prove fatal to preventing humanitarian disasters. Yet, rather than pointing to a need for a separate legal right humanitarian intervention, this arguably speaks more strongly in favour of institutional and procedural reform of the UN. This will allow responses to future humanitarian catastrophes to be dealt with lawfully, through the collective security framework of the UN Charter.

This issue is nothing new. It harkens back to the stalemates of the Cold War era where the UN Security Council was rendered powerless by the threat and exercise of the veto. One response is greater reliance on the UN General Assembly’s Uniting for Peace Resolution. Yet, structural and procedural reform of the Security Council would be a more effective option to allow for collective action to prevent or stop humanitarian disasters. While, unfortunately, this may not happen any time soon, a meaningful step forward would be for all members of the UN to finally commit to the Accountability, Coherence and Transparency Group Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes. Supporters of the Code pledge ‘to support timely and decisive action by the Security Council aimed at preventing or ending the commission of genocide, crimes against humanity or war crimes’ and ‘to not vote against a credible draft resolution’ before the Security Council on timely and decisive action to end or prevent such crimes. As at 25 January 2017, 112 states are listed as supporters, including two permanent members of the Security Council (the United Kingdom and France). The United States, Russia and China are conspicuously absent. If President Trump truly wishes ‘to end the slaughter and bloodshed in Syria’ (and elsewhere), then absent pushing to amend the UN Charter and the structure of the Security Council, he could consider making this meaningful commitment to achieving that end, and call upon the remaining states to follow suit.

 

‘Terrorism’ at the World Court: Ukraine v Russia as an Opportunity for Greater Guidance on Relevant Obligations?

Mon, 04/17/2017 - 09:30

Recently, Ukraine instituted proceedings against Russia before the ICJ, alleging violations of both the International Convention for the Suppression of the Financing of Terrorism (the ‘Convention’) and the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), followed up by a provisional measures request. This post is primarily concerned with the allegations formulated under the former instrument, including Russia’s alleged financing and support of illegal armed groups and terrorist activities in Ukraine, notably with respect to the downing of Flight MH17 (which the UNSC condemned in Resolution 2166 and demanded accountability). Given that a brief provisional measures overview has already been given on this blog, along with broader discussion of the case, I will highlight a few particular points of interest.

Shedding Light on the Convention

The Convention forms part of a series of multilateral conventions (the so-called ‘sectoral’ treaties) dealing specifically with terrorism-related offences and imposing obligations upon parties to criminalise relevant conduct domestically, falling short in many instruments of actually defining ‘terrorism’. The Convention is a notable exception, defining terrorism at Article 2(1) as:

‘[a]n act which constitutes an offence within the scope and as defined in one of the treaties listed in the annex; or…[a]ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act’.

The ‘treaties listed’ limb refers to nine of the ‘sectoral’ treaties, including the 1971 Montreal Convention, which has relevance in this case.

Much of the content of these conventions is relatively untried and untested. Some contain compromissory clauses granting jurisdiction to the ICJ in the case of a dispute, including Article 24 of the Convention, on which Ukraine relies. While scholars have lobbied for greater resort to this jurisdictional avenue to bring terrorism cases to the Court, Ukraine’s case marks only the third instance of litigation involving a sectoral anti-terrorism treaty before the international judiciary, alongside the two Lokerbie cases. This is an important moment for the Court, but also for international law.

This collection of anti-terrorism conventions has been described in the most anti-cohesive fashion: a ‘patchwork’ of instruments, a ‘piecemeal’ approach, etc. This is a unique opportunity for the Court to provide helpful interpretive guidance on Article 2(1) and related issues, especially the notion of ‘intent’, a matter of considerable contention between the parties. There is no authoritative judicial pronouncement on this front, despite Ukraine’s efforts in tracking down an Italian Supreme Court of Cassation decision which weakens Russia’s argument by holding that:

‘an action against a military objective must also be regarded as terrorism if the particular circumstances show beyond any doubt that serious harm to the life and integrity of the civilian population are inevitable, creating fear and panic among the local people’ (CR/3, pp 39–40).

While there are many unresolved issues surrounding the legal concept of ‘terrorism’, Ukraine’s case shows that civilians have been targeted for purposes that include ‘intimidat[ing] a population’ and ‘compel[ling] a government or an international organization to do or abstain from doing any act’, with Russia’s support (CR/3, pp 40ff). And that is the essence of ‘terrorism’ under the Convention.

Jurisdiction, Prima Facie or Otherwise

Russia contends that the Court should not take jurisdiction given that the dispute pertains to questions of recourse to force, sovereignty, territorial integrity and self-determination. Where have we seen this movie before? Right: Georgia v Russia shares similarities with this case, not least for the fact that it gave Article 22 of CERD (the compromissory clause) its day in court. As pointed out by Judge Crawford in his recent dissenting opinions in the Marshall Island cases, in the Georgia v Russia case;

‘the doubt was whether that dispute really concerned racial discrimination…or whether Article 22 was being used as a device to bring a wider set of issues before the Court’.

In reviewing the parties’ respective pre- and post- application conduct, it is to be hoped that the Court will avoid relying on its recent jurisdictional formalism, which was criticised by judges writing separately in Marshall Islands (see, eg, Judges Bennouna, Robinson and Crawford). More interestingly, the Article 24 jurisdictional preconditions are not identical to those enshrined in Article 22 of CERD. While the former also requires an attempt to settle the dispute by negotiation, Article 24, upon the expiry of a ‘reasonable time’, then requires an attempt to settle the matter through arbitration, failing which after six months the case can be submitted to the ICJ. Ukraine suggested that constituting an ICJ ad hoc chamber could fulfil the arbitration requirement (CR/3, pp 32–34). This is a novel and interesting argument.

Russia took issue with this position (CR/4, pp 29–30), as did a contributor to this blog. However, it might not be that farfetched, as the Convention does not define the term ‘arbitration’. Of course, Judge Oda opined that an ICJ ad hoc chamber is ‘essentially an arbitral tribunal’. More recently, Judge Tomka emphasised ‘the limits of the Court’s function, resulting from the fact that it has evolved from international arbitration, which is traditionally focused on bilateral disputes’. Indeed, scholars have explored the similarities between the Court and international arbitration. Further, the Gulf of Maine case demonstrated that parties retain considerable control over both the chamber’s composition and the legal questions submitted to it.

Here, Ukraine’s proposal appeared to suggest that it was open to the parties to request the Court – presumably by way of special agreement – to constitute an ad hoc chamber to attempt arbitration prior to formally seizing the Court under Article 24 of the Convention. Ukraine put forth this proposal primarily because the Court’s ‘rules would be available, making it substantially easier to reach final agreement for parties that have had great difficulty reaching agreement’, as was the case between the present parties regarding the organization of an arbitration (CR/3, p 33). In that scenario, the parties would have been free to carefully tailor the scope of questions submitted to the chamber in that special agreement. Had this quasi-arbitral process before the ad hoc chamber failed, Ukraine would not have been barred from instituting proceedings before the Court, as it has now done, pursuant to Article 24 of the Convention at the expiration of the 6-month period. Granted, this might suggest a ‘2-kicks-at-the-can’ approach to ICJ jurisdiction, but it nonetheless raises interesting questions, chief amongst them whether constituting an ad hoc chamber can fulfil an ‘arbitration precondition’ to the seisin of the Court in a compromissory clause.

Moreover, Russia attempted to establish a lack of prima facie jurisdiction by arguing that State responsibility for sponsoring and/or funding terrorism is not captured by the Convention. This position appears somewhat disingenuous or divorced from the broader context. As stressed by Ukraine (CR/3, p 48), the Convention’s drafters reserved the question of ‘State terrorism’, but that is an entirely different question from State responsibility for sponsoring and/or funding terrorism. More importantly, treaty interpretation should not occur in a vacuum; context is everything. Endorsing an overly formalistic construction of the Convention would ignore the tremendous legal developments that have occurred since 9/11, starting with UNSC Resolution 1373 and the counterterrorism edifice erected subsequently. In a monograph, I argue that relevant State and institutional practice places a heightened burden of prevention and due diligence upon States, translating into an enhanced obligation to prevent terrorism. Therefore, some Russian claims conflict with the spirit of both this counterterrorism edifice and the Convention, if it is interpreted in an evolutionary light.

Resolution 1373 basically universalised as mandatory the Convention’s prescriptions for all States, adding that any support – direct or indirect – of terrorism or its financing is prohibited (see James Crawford, State Responsibility, p 160). This international practice also imposes clear obligations of cooperation and mutual assistance in preventing terrorism and its financing. Ukraine alleges various violations by Russia of the Convention, the obligation to cooperate under Article 18 being central (Application, pp 40–42). Therefore, Russia’s knowledge and support, irrespective of its form, of the downing of MH17, bombings in Kharkiv and the shelling of civilians in Ukraine should be regarded as captured by this instrument, provided the underlying acts conform to the Article 2(1) definition.

This case might also have implications for State responsibility for supporting terrorism, should the Court accept Ukraine’s arguments that Russia can be held legally responsible for violating the Convention’s prohibition of financing and sponsorship of terrorism through its own organs or agents (Application, pp 40–42). It is possible that Russia will raise a preliminary objection to challenge the idea that the Convention enshrines obligations requiring States parties not to support/finance terrorism themselves. But even at this stage, the parties have debated the scope and meaning of paragraph 166 of Bosnian Genocide. Ukraine essentially maintains that it would be ‘paradoxical’ for the Convention to obligate States to prevent the financing of terrorism carried out by individuals over which they exert control or influence, but not be themselves accountable for such conduct carried out by their organs or individuals whose actions are attributable to them. Russia entertains a contrary position (CR/2, pp 37ff). In light of the above context, that posture seems to run counter to the spirit of post-9/11 counterterrorism efforts, including a forward-looking and purposive interpretation of the Convention.

Granted, the Convention’s compromissory clause does not incorporate an express reference to State responsibility claims, as compared to Article IX of the Genocide Convention. However, Ukraine is right in stating that:

‘it would be a twisted reading indeed to assume that a State can simply look the other way if its own public organs and officials are engaged in the financing of terrorism’;

this signals that ‘the duty to prevent carries meaning only if the State is prohibited from doing the very thing it is meant to prevent’. This posture clearly aligns with the spirit of Resolution 1373 and subsequent resolutions, which constitute a prism through which the Court should interpret the Convention.

Failure to consider this broader context would be short-sighted, overly formalistic, and a disservice to the underlying cause. While there was a governing treaty on self-defence (UN Charter), in the Wall Advisory Opinion (p 194) the ICJ favoured a State-centric conception of self-defence, thereby failing to consider Resolutions 1368 and 1373 and the fact that non-State actors increasingly mount ‘armed attacks’. This was criticised by judges writing separately (see Judges Higgins, Kooijmans and Buergenthal). Granted, the inter-State dynamic was arguably not relevant in the Wall case, but the Court nonetheless acknowledged that criticism and left the question open subsequently in Armed Activities (para 147).

The Implausibility of Rejecting this Case: Shared Responsibility in Promoting Global Security

A careful review of the facts suggests a plausible claim under the Convention. Ukraine is right in qualifying the definition of ‘terrorism’ broadly, which is also informed by a broad definition of the term ‘funds’ in Article 1(1) (CR/1, pp 40ff). The Court will have to grapple with competing constructions of ‘intent’, but it should not lose sight of the broader context described above. Thus, Ukraine appears justified in emphasising the terms ‘by any means’ ‘provides…funds’, which militate in favour of recognising Russia’s provision of a Buk missile to fighters used in the MH17 incident as an offence under the Convention, for example. Equally sound is Ukraine’s resistance to Russia’s ‘multiple intent requirements…imposed on the Convention’s language’.

Finally, Russia urges the Court not to ‘interfere with, the Minsk II package of measures’ given that the ‘Security Council remains seised of the situation in east Ukraine’. This argument is not entirely convincing. As the ICJ has repeated, the Council’s responsibility in maintaining global security is not exclusive. Article 12 of the UN Charter does not establish a hierarchy between both organs. Rather, they can pursue complementary roles in promoting global security and address different aspects of a broader dispute (see my recent book, pp 143ff).

In Lockerbie, Judge Bedajoui stressed that:

‘the first dispute concern[ed] the extradition of two Libyan nationals and [was] being dealt with, legally, by the Court…whereas the second dispute concern[ed]…State terrorism as well as the international responsibility of the Libyan State and [was] being dealt with, politically, by the Security Council’.

Similar reasoning applies here. The first step towards fulfilling this complementary role for the Court is to seriously consider the pending provisional measures request and taking jurisdiction to provide much-needed clarity on an important anti-terrorism instrument.

Announcements: Conference on Derogation from the ECHR; Seminar on Transitional Justice and Social Justice; International Law Weekend 2017; Annual BIICL-SLS 2017 Conference; International Criminal Court Summer School 2017

Sun, 04/16/2017 - 14:00

1. Conference on The Derogation from the ECHR under Contemporary Situations of Emergency. This conference will examine current practices of derogation from the European Convention on Human Rights by Ukraine, France and Turkey as well as the United Kingdom’s proposal to derogate from the ECHR in foreign military operations. Marko Milanovic (University of Nottingham) will deliver a keynote speech and Raphaël Comte (Rapporteur of the Council of Europe) will provide a report on ‘State of emergency: proportionality issues concerning derogations under Article 15 of the ECHR’. The conference is open to all interested students, academics, diplomats and practitioners. For any questions please contact the organizing committee: Kushtrim Istrefi (kushtrim.istrefi {at} rgsl.edu(.)lv var mailNode = document.getElementById('emob-xhfugevz.vfgersv@etfy.rqh.yi-47'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6B%75%73%68%74%72%69%6D%2E%69%73%74%72%65%66%69%40%72%67%73%6C%2E%65%64%75%2E%6C%76"); tNode = document.createTextNode("kushtrim.istrefi {at} rgsl.edu(.)lv"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-xhfugevz.vfgersv@etfy.rqh.yi-47"); mailNode.parentNode.replaceChild(linkNode, mailNode); ) or Stefan Salomon (stefan.salomon {at} uni-graz(.)at var mailNode = document.getElementById('emob-fgrsna.fnybzba@hav-tenm.ng-37'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%74%65%66%61%6E%2E%73%61%6C%6F%6D%6F%6E%40%75%6E%69%2D%67%72%61%7A%2E%61%74"); tNode = document.createTextNode("stefan.salomon {at} uni-graz(.)at"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-fgrsna.fnybzba@hav-tenm.ng-37"); mailNode.parentNode.replaceChild(linkNode, mailNode); ). More here and here.

2. Netherlands Institute of Human Rights Seminar on Transitional Justice and Social Justice. The Netherlands Institute of Human Rights (SIM) is delighted to invite you to the Seminar on Transitional Justice and Social Justice on June 8th at Utrecht University in the Netherlands. The seminar will explore the conceptual relationship between transitional justice, social justice, and human rights. It aims to build upon current debates in the field and examine why economic, social, and cultural rights violations have or have not been included in transitional justice mechanisms with a view to providing answers both to the kinds of obstacles that prevent making these processes more inclusive, and to the dangers of doing so. The seminar will take place in the Raadzaal room at the Netherlands Institute of Human Rights (SIM), Utrecht University, Achter Sint Pieter 200, 3512 HT Utrecht. Signing up is possible by sending an e-mail to k.j.aksamitowska {at} uu(.)nl var mailNode = document.getElementById('emob-x.w.nxfnzvgbjfxn@hh.ay-55'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6B%2E%6A%2E%61%6B%73%61%6D%69%74%6F%77%73%6B%61%40%75%75%2E%6E%6C"); tNode = document.createTextNode("k.j.aksamitowska {at} uu(.)nl"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-x.w.nxfnzvgbjfxn@hh.ay-55"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For more information, please visit our website.

3. International Law Weekend 2017. International Law Weekend 2017 will take place from 19 – 21 October 2017 in New York City, at the Association of the Bar of New York City and at Fordham Law School. This year’s conference theme, International Law in Challenging Times, is available on the International Law Students Association website. This is an opportunity for international law to reestablish its strong connection with the global community it serves. Panels at ILW 2017 will examine current global challenges, potential solutions, and a broad range of dynamic issues in both public and private international law. Panel proposals are due on 30 April 2017, and should be submitted using the online submission form available here. For complete instructions regarding the conference and the submission process, please review the 2017 Call for Proposals. Any questions regarding the conference should be sent to conferences {at} ilsa(.)org var mailNode = document.getElementById('emob-pbasreraprf@vyfn.bet-69'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%6F%6E%66%65%72%65%6E%63%65%73%40%69%6C%73%61%2E%6F%72%67"); tNode = document.createTextNode("conferences {at} ilsa(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pbasreraprf@vyfn.bet-69"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

4. Annual BIICL-SLS 2017 Conference. Registration is open for the 26th Annual BIICL-SLS 2017 Conference on Theory and International Law, with the theme “Inside the Mind of International Decision-Makers”. It will be on the afternoon of 3 May and the programme is available here. Some of the questions we will explore are: Do decision-makers behave rationally and predictably? What factors influence their decision-making? What are the roles of cognitive skills, intuition, and background, including education and political persuasion? What are the implications for choosing a method of dispute settlement for a particular case or designing a dispute settlement mechanism for future disputes?

5. The International Criminal Court Summer School 2017. The Irish Centre for Human Rights at the National University of Ireland Galway is pleased to announce that the annual International Criminal Court Summer School will take place from 19 to 23 June. The summer school allows participants the opportunity to attend a series of intensive lectures over five days. The lectures are given by leading academics on the subject as well as by legal professionals working at the International Criminal Court Participants are provided with a detailed working knowledge of the establishment of the Court, its structures and operations, and the applicable law. Lectures also speak to related issues in international criminal law, including: genocide, war crimes, crimes against humanity, the crime of aggression, jurisdiction, fair trial rights, and the rules of procedure and evidence. This year’s ICC Summer School will include a topical special session on Corporate Crimes and the International Criminal Court. The closing date for registrations is 1 June 2017. To register and for more information please visit our website.

“Complicity in International Law”: Author’s Response

Fri, 04/14/2017 - 12:00

This post is the final part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

I am grateful to Oxford University Press and the editors of EJIL:Talk! for putting together this discussion and to Elies, Elizabeth, and Helmut for their contributions. I appreciate their engagement with my work. In this piece, I consider the central points in each of their pieces.

State Assistance in Practice

Elizabeth’s three examples – the provision of arms, the use of military bases, and the grant of financial and other assistance to the justice and human rights sectors – provide a helpful grounding for considering how often questions of complicity are arising in practice. Her contribution zeroes in on the difficulties relating to the nexus element and the fault element. Taking them in turn, there are slightly different difficulties here.

As to the nexus element, even if we agree on the normative standard there is the challenge of applying that standard across the myriad ways that states provide assistance to other states. We can quite easily imagine situations where the assistance is insufficiently connected to the principal wrong, just as we can easily imagine situations where the standard is met. Beyond those poles, things are very difficult. That might seem unsatisfactory, but here it is worth emphasising the relative newness of the rule – it is still embedding itself into customary practice. As it does so, we are likely to see the incremental development and clarification of a regime-specific test.

As to the fault element, by contrast, the initial problem lies on the normative level itself – the potential discrepancy between the textual standard of knowledge and the commentary’s reference to intent. This I address in Chapter 7 (pp. 159-162), and do not wish to revisit now. Instead, what I wish to pick up is Elizabeth’s point about transparency – regarding the provision of military bases: ‘an outsider is hard put to assess the knowledge of the British government of the extent of activities by the US in the absence of public information about all of the bilateral arrangements.’ In the book, I argue in favour of a standard of knowledge, including wilful blindness, partially on the basis of its promise as a workable standard. I remain convinced of that. Certainly, though, more attention should be paid to the importance of transparency in making that more promising legal standard a reality in practice. Looking forward, what is required is jurisdiction-specific attention to the political and legal avenues for obtaining information and accountability.

State and Individual Complicity

One question shared by Helmut and Elies concerns the treatment of individual and state complicity in the same framework. Each of their contributions foreshadows one potential response. Elies raises the possibility that the emergence of scholarship focusing on a shared perspective on international responsibility is sufficient justification for the book’s cross-disciplinary approach. Helmut notes that where state officials are complicit in an international crime, state responsibility is likely to ensue. Certainly, as I started the project, these two points informed my decision to consider individual and state complicity together.

Moreover, the fact that at times the law of state responsibility takes a significantly different approach from criminal complicity provided me with a helpful point of departure for further examination of the difference – the absence of state responsibility for instigation or incitement is one example. However, I take the point that the temptation provided by the comparative framework at times was too great to resist. This is Helmut’s worry about the use of the comparative framework for interpretive purposes. I emphasise at a number of points both that complicity rules are not (and ought not to be) monolithic, and that the contours of specific rules ought to be shaped by the needs and values of the particular regime. Moreover, the exploration in Chapter 2 of accessorial liability in English tort law takes this emphasis further. But I agree that care needs to be taken in transferring any analysis of complicity in individual criminal responsibility into the much more widely applicable rule in the law of state responsibility.

On reflection, I might have under-used the insights that could be drawn from domestic private law when thinking about complicity in the law of state responsibility. As Elies notes, I spent quite some time in Chapter 2 considering the tort of inducing breach of contract; this analysis sets up a frame for my criticism of the double obligation requirement in Chapter 7. However, for the most part, I did not take the domestic private law comparator any further, despite a rich strand of recent work on the subject. Although, again, I am conscious of the worry about inappropriate uses of a comparative framework of this kind, I wonder if deeper consideration of the debates concerning accessorial liability in private law could have shed light on the analysis of the rule in Article 16.

Fair Labelling and Complicity

Both Elies and Helmut draw attention to the book’s use of the principle of fair labelling as partial justification for its normative stance on the structure of complicity rules – with Helmut suggesting that, in preference to sovereignty, it may be grounded in the international rule of law, and Elies wondering what different dimensions it assumes in respect of state responsibility. This is an important point – outside of the punitive context of criminal law, the principle of fair labelling requires further thought. Nonetheless, it seems to me that its applicability is connected to the recognition of states as sovereign and independent international legal persons.

Perhaps, as Elies suggests, additional bite lies in the political and diplomatic consequences that different relationships to wrongdoing entail. As I note in the book, the ICJ’s decision in the Bosnian Genocide Case was reported by Reuters with the headline ‘Serbs Relieved, Bosnia Dismayed by Genocide Ruling’ and the BBC with the headline ‘Court Clears Serbia of Genocide.’ Cassese’s piece, for the Guardian, was entitled ‘A Judicial Massacre.’ These headlines followed despite the fact that the Court found Serbia responsible for failing to prevent genocide under the Genocide Convention. Although admittedly this was a case where the political sensitivities were as high as they could ever be, these reactions tell us that it is not only responsibility in general terms that matters.

Towards Moral Sophistication?

Let me turn to what Helmut calls the underlying normative project of the book. As I read it, there are two related concerns here. The first relates to the narrative of progress itself – both in how we read (and criticize) historical approaches and how we appraise the present. On this front, I agree that straightforward progress narratives may mislead, as they do in other areas of international law.

The second relates to the potentially expansive programme for complicity in the law of state responsibility engendered by the book’s normative defence of complicity rules. Here, Helmut points to my argument that Article 16 ought to encompass broad forms of complicity. I assume the concern here does not relate to kinds of material aid captured by the rule – as he has argued elsewhere, what matters is not the form of (material) complicity but the nexus between the aid and the wrongful act. Instead, I assume that the concern relates to my argument that the rule ought to capture instigation in addition to material aid, an argument that Elizabeth also doubts in passing.

In this respect, I do not dispute that the orthodox understanding excludes instigation, but I can see no reason that it should. Here, the comparative perspective of the book at least tips us off that this is an unconventional exclusion in how legal systems and regimes deal with complicity. Moreover, as I have argued elsewhere, there is a strong claim that, as a matter of positive law, a general prohibition on instigation can be founded on a general principle of law, as envisaged under Article 38(1)(c) of the Statute of the ICJ. It is hard to imagine a legal system allowing an actor who instigates another actor to do something that would be wrongful for both of them to escape responsibility.

But this dispute as to the forms of complicity captured by the rule is not at the centre of Helmut’s worry about the book’s expansive programme – the centre concerns the justification for the inclusion of the double obligation requirement in Article 16(b) of the Articles on State Responsibility. In the book, I doubt the inclusion of the double obligation for two reasons. First, it seems to underweight the value of the treaty commitment undertaken between the parties themselves. Second, it seems not to accord sufficient protection to the international community’s interests in the stability and integrity of treaty relations.

Nonetheless, I take the point that that there is an unexamined assumption here about the value of stability as the expense of change in the international legal system, allied to the risk of protecting established and potentially inequitable legal relations. This latter point is a theme in domestic scholarship concerning the tort of inducing breach of contract. One solution proposed in domestic literature would widen the justification defence for the third party; this seems inapposite to the international legal system given its current institutional arrangements. Clearly, this is a question on which more thought is required.

Conclusion

There remain a number of unanswered questions concerning complicity in international law – no doubt recently published work on the topic – in the law of state responsibility and international criminal law – will take us further. I look forward to continued engagement with the difficulties provoked by the range of ways that individuals and states participate in the wrongs of others.

Excusing Illegal Use of Force: From Illegal but Legitimate to Legal Because it is Legitimate?

Fri, 04/14/2017 - 08:00

The US missile strikes on Syria have, inter alia, revived the debates on humanitarian intervention, the argument of ‘illegal but legitimate’ and more generally on the exceptions to the prohibition of the use of force. For some examples see here, here and here. Some contributors have pointed out that the US did not even try to bring this action within the ambit of the Charter rules on the use of force, and that the absence of Charter-based arguments may even be a good thing as it preserves the strength of Article 2(4). Others have cautioned that the strength of the rules on the use of force might nevertheless be undermined, as singular ‘exceptional’ cases result in a pattern.

This post argues that, analogous to the concept of defences in municipal legal systems, international law on the use of force should adopt a systematic distinction between justifications and excuses. As responses to the US missile attack in Syria demonstrate, the two concepts are conflated. The result is that legality is often assessed on the basis of excuses. If the trend of conflation continues, the controversial doctrine of ‘illegal but legitimate’ will move toward an even more controversial doctrine of ‘legal because it is legitimate’.

Justifications are legally-warranted exceptions to the general prohibition. As such, they are a way out of illegality. Excuses, on the other hand, are not a way out of illegality, but act as mitigating circumstances that preclude responsibility for an otherwise illegal conduct. Under some circumstances, breaching the law may indeed be the choice of a lesser evil. As noted by Vaughan Lowe in his 1999 EJIL article, a legal system may wish to provide a defence for emergency drivers who breach the speed limit on the way to hospital. There are two ways of achieving this goal. One way is to give them an explicit authorization to breach the speed limit. The other one, however, does not authorize speeding, but rather ensures that emergency drivers are not prosecuted upon such a breach of traffic rules. The first (justification) relaxes the norm itself and may well result in wider disobeying of the speed limit than the second, which merely provides for a carefully weighed excuse of culpability where the norm was doubtlessly breached. In other words, it is better if the general norm is strong and ‘catches’ more violators whose excuses are then considered on a case-by-case basis. I elaborate on these issues in more details in this 2015 concept paper. In the present context, might the ‘emergency driver logic’ apply to the US strike in Syria? Even if it did, it would not make this action legal. Possibly, the US could only escape responsibility for this internationally wrongful act. 

The Charter justifications and extra-Charter excuses

The Charter regulation on the use of force adopts a clear logic of justifications. Article 2(4) spells out the prima facie prohibition, while Articles 39+42 and Article 51 give legal authorization for a departure from this general rule. When properly used pursuant to Articles 39+42 or Article 51, force in international law is not illegal. Because it is justified.

The humanitarian intervention and R2P doctrines can, in principle, fit into the Charter justifications, but not as independent legal concepts. They can operate via Articles 39+42. The humanitarian intervention and R2P doctrines can underlie political decisions for Security Council’s authorization of force. But what if compelling moral reasons for an intervention exist and the Security Council does not act? This is the ‘illegal but legitimate’ type of reasoning, which was advanced most prominently in the situation of Kosovo. It has not always been popular in international legal scholarship, but it reflects the very logic of excuses.

The legitimacy criteria for humanitarian intervention and other instances of extra-Charter use of force, which have been developed by several scholars and governments, can thus only be considered as criteria for assessing the plausibility of an excuse for an otherwise illegal use of force. But they do not serve as justifications. In the present context, even the statement of the US Permanent Representative to the UN, Nikki Haley, builds on the logic of excuse rather than justification, as does the statement of President Donald Trump.

Was the US missile attack excusable? In the decentralized international legal system, it is ultimately – for the most part – other states who judge this. Some of them have indeed been quite willing to accept the excuse [see here for a summary of some reactions]. However, the supporting states did not expressly say the attack was legal. They commonly expressed their understanding and support, which is quite different. From this point of view, I agree with Monica Hakimi that the strength of Article 2(4) is preserved. It could be a separate problem, however, if states accepted each other’s excuses too easily, as may well have been the case here. The end result could then indeed be what Anthea Roberts has cautioned against.

The main challenge is whether the separation of justifications and excuses can work in a decentralized legal system. But this is a problem of international law in general, not only in this specific context. In my view, the conceptual difference is still worth preserving in the international legal system. Keeping the Charter-mandated justifications and extra-Charter excuses separate would at least keep us paddling in the already-dangerous but probably-inevitable waters of ‘illegal but legitimate’. Any extra-Charter uses of force would thus remain doubtlessly illegal. As such, they could not be taken as evidence of state practice to claim a new customary exception to the prohibition of the use of force. Conflating justifications and excuses would mean that states might in the future completely drop the Charter language and invoke excuses to get out of illegality. This would then create a legal and policy framework for wider disobedience of the rules on the use of force and undermine the Charter rules. If Kosovo laid the foundation stone for ‘illegal but legitimate’, we need to be careful that Syria does not become the foundation stone for ‘legal because it is legitimate’.

Testing Jackson’s Discussion of State Responsibility in the Context of Government Assistance. Book Discussion

Thu, 04/13/2017 - 14:00

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Criticisms of western governments for aiding and assisting other states to act in breach of international law are now common. While such criticisms may sometimes be as much to do with the policy of the thing, there is also increasing focus on the law. The ongoing judicial review in the English courts regarding the provision of arms and military equipment to Saudi Arabia in the context of the conflict in the Yemen (The Queen on the application of Campaign against the Arms Trade v. The Secretary of State for International Trade) illustrates the possibility of litigation on the issue in domestic courts. Miles Jackson’s book on ‘complicity’ gives an introduction and a foundation for thinking about this highly topical subject, in the context both of international criminal law and of state responsibility, and adds to the growing literature. This brief note considers, in the context of state responsibility, whether the book is also of use to the practitioner – whether government adviser, non-governmental organisation, or advocate – who has to apply the law before or after the event.

Jackson’s discussion of state responsibility can be tested in the context of three examples of government assistance; the choice of examples here is unashamedly UK-centric, but instances can be found in many other countries. The first is the provision to other governments of arms and other materiél in a conflict to which the assisting government is not a party and where the assisted government is alleged to be in breach of international humanitarian law in the conduct of the conflict. The second example stems from allowing other governments the use of airfields and military bases on the assisting government’s territory. Here there may be allegations of breaches of ius ad bellum by an assisted state which uses a loaned base to launch an armed conflict, or of human rights abuses such as unlawful rendition of individuals from the base. The third example is the provision of financial and practical aid to improve another state’s justice or human rights sectors. In such a case the relevant sectors of the assisted government are unlikely to have a good record: is it lawful to assist them to improve, or will the aid make the assisting state complicit?

Jackson takes us swiftly through the necessary preliminary conclusions that the rule set out in Article 16 of the state responsibility articles forms international customary law (p 151), and that all kinds of aid and assistance fall within the rule (p 153). There has to be a nexus between the aid and the commission of the international wrong (p158).

The Nexus Element

The formulation of the nexus element can be difficult, but Jackson concludes that there must be a substantial contribution – or material facilitation – for the illegal acts, not merely an incidental contribution. What does this mean in practice? For example, the UK has been criticised for providing substantial funding to Bahrain; the aid is said to be for the purpose of supporting the implementation of recommendations from a universal periodic review by the UN Human Rights Council. This comes at a time when Bahrain is allegedly suppressing dissent and committing human rights abuses. Is there a nexus between the aid and the alleged wrong sufficient to bring this within Article 16?

Jackson tells us that the standard of material facilitation of a wrongful act catches conduct with a sufficient link to the wrongdoing while excluding ‘incidental relationships’. Further guidance in such a case is given in a Chatham House research paper (https://www.chathamhouse.org/publication/aiding-and-assisting-challenges-armed-conflict-and-counterterrorism ) which takes the view that assisting a state in a generalised way will not necessarily breach Article 16. ‘Otherwise, it would be virtually impossible for one state lawfully to assist another state in capacity-building unless the recipient state had completely clean hands in every particular.’

The Fault Element

One of the more difficult aspects of Article 16 lies in interpreting the nature of the fault element. Having pointed to the well-known mismatch between the International Law Commission’s text of the Article (where knowledge is indicated) and the commentary (which brings in intent or purpose), Jackson concludes that the standard of knowledge is to be preferred – the text trumps the commentary. But the standard of knowledge means ‘awareness with something approaching practical certainty as to the circumstances of the principal wrongful act’ (p161). Wilful blindness is a justified extension. Jackson notes that in most situations, where the assisting state has actual knowledge that the aid will be used to commit a wrongful act, it may be inferred that the state intends its aid to facilitate that act.(p.160)

Again, how is this to be applied in practice? Many states loan bases or parts of their territory to other states for their military use. In a UK Foreign Affairs Committee report of 2010 the Committee, noting in particular ‘the use of Diego Garcia for US rendition flights without the knowledge or consent of the British Government’ considered that there must be doubts about the effectiveness of the UK’s exercise of responsibility for that territory. The Committee noted the considerable constraints on the ability of the UK Government to oversee the arrangements which govern US use of British territory and recommended a comprehensive review to improve scrutiny and oversight. An outsider is hard put to assess the knowledge of the British government of the extent of activities by the US in the absence of public information about all of the bilateral arrangements; it may be that all is as it should be. But governments which intentionally exclude themselves from knowledge of what is being done with their assistance risk being ‘wilfully blind’ and thus bearing international responsibility if other governments use their territory to commit breaches of international law.

Another example comes from the UK support for the Saudi-led intervention in Yemen. There has been criticism of this support, including from parliamentary committees,  in the light of allegations of frequent breaches of international humanitarian law by the coalition in Yemen. Much of the criticism relates to continuing arms sales by the UK, where the governing law is the Arms Trade Treaty, but the UK also provides other support such as training and military liaison. The government state that they are ‘unable to form a complete understanding of the Coalition’s regard for IHL in its operations in Yemen as they do not have access to all the information required to do so; the UK does not have any embedded personnel taking part in operations, nor do we have any personnel involved in the Saudi targeting decision-making process.’ In the light of the allegations of IHL violations, is it sufficient to rely on the assisted state’s own investigative processes? Is the necessary mental element for state responsibility present if the assisting government is aware of the allegations, but believes that further investigation in the absence of concrete information is not possible and encourages the assisted state to undertake investigations where there is alleged non-compliance?

Jackson (and the Chatham House report) are of the view that international law does not yet recognise a general obligation to exercise due diligence as a condition for the provision of aid to another state. (p162). But failing to enquire into the circumstances of an assisted act may amount to wilful blindness, thereby incurring state responsibility.

Other Elements

There remain controversies about some of the other elements of state responsibility, including the question whether a state can be culpable for omissions in this context (Jackson includes examples that he considers should give rise to culpability) and whether the double obligation requirement should remain (Jackson argues that, rather than requiring both the assisted and the assisting state to have international obligations with which both are in breach,  a rule that recognises the ‘broader community interest in compliance with international law’ would be desirable). This writer is doubtful about both of these points. But the merit of the book is such that the reader is generally left with a clear view of the content of the law: it is in the application of the law that there is the most difficulty.                                                                                                                                                                                                                                                                                                 That Jackson’s book is proving of service to the practitioner can be seen, for example, in the references to it in the CAAT litigation referred to above. The only matter for regret, as with most monographs, is that this work is indeed a slim volume.  But it is a compliment to it that it leaves the reader wanting more. Alas that we may perhaps have the need to consider the topic more frequently if the threats of international law breaches by the new US administration are carried out. It is heartening to see that the UK government seems to have given the right response in insisting that its existing guidance on non-cooperation with torture remains valid.

Strasbourg Judgment on the Beslan Hostage Crisis

Thu, 04/13/2017 - 11:53

The European Court today issued a landmark right to life judgment in Tagayeva and Others v. Russia, dealing with the hostage crisis in the school in Beslan in 2004, in which hundreds of hostages lost their lives. The exceptionally detailed (and for the most part unanimous) judgment does the Court great credit, as does the nuance it shows in much of its factual assessment. (Kudos are also due to Kirill Koroteyev and the EHRAC/Memorial team representing some of the applicants). Together with the Finogenov v. Russia judgment, on the Dubrovka theatre hostage crisis, this will be a leading case on the right to life in extraordinary situations. Unlike in Finogenov, the Court here finds a violation of the preventative aspect of Article 2 – indentifying the risk engaging the positive obligation is perhaps the most innovative part of the judgment. The Court also finds violations with regard to the effectiveness of the investigation and the planning of the operation. All in all its approach is somewhat less deferential towards the state than in Finogenov. UPDATE: Ed Bates has some early comments here.

A Path towards the Moral Sophistication of International Law? Some Remarks on Miles Jackson’s “Complicity in International Law”

Thu, 04/13/2017 - 08:00

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

It is a great pleasure to contribute to this mini-symposium on Miles Jackson’s monograph on the notion of complicity in international law. The book is a further testament to the growing importance of questions of ‘shared responsibility’ in international law, ie the harmful cooperation of several actors.

In his elegantly written book, Miles Jackson makes several important contributions. In particular, he has brought a comparative approach to questions of complicity in international law. Whereas most existing books on complicity focus either on state responsibility or international criminal law, Jackson aims to transcend this boundary and develop an overarching framework for complicity in international law. While Jackson is of course mindful of the structural differences between the two areas, his comparative approach nonetheless calls for some further discussion.

A second most original aspect of the book is its move beyond an inter-state focus in its treatment of state complicity. Jackson analyses if and to what extent international law imposes state responsibility for complicity with non-state actors. In this latter regard, he convincingly argues against an approach based on attribution. The ILC Articles on State Responsibility (ASR) conceptualise attribution as a relationship of agency. In contrast, he rightly stresses the derivative character of complicity. Responsibility for complicity should thus not lead to an attribution of conduct of the main actor, but is about responsibility for the support that is rendered for the commission of a wrongful act. Convincingly, Jackson hence turns his attention to the substantive obligations of  non-state actors. If such actors (think of terrorists) are capable of violating rules of international law themselves, it is indeed a logical step to conceptualise support rendered by states to such non-state actors also in terms of complicity.

Comparing complicity in international criminal law and the law of state responsibility

There are good reasons to compare complicity in these two domains. Both the ASR and the Rome Statute include saving clauses according to which their provisions are without prejudice to questions of the respective other field. At the same time, a good argument can be made that at least in those situations in which a state official is held responsible under the rules of ICL for aiding and abetting the commission of an international crime, some form of state responsibility will most likely also arise.

Nonetheless, I have my doubts about two specific consequences of the path taken by Jackson. The first one relates to what he calls a ‘principle of fair labelling’. This principle militates, he writes, in favour of a clear distinction between different degrees of culpability in criminal law (at 22). At different points in his study, Jackson transfers the rationale of this principle to the inter-state level, anchoring it in the principle of sovereignty (at 22, 142). I am not convinced that state sovereignty provides the rationale for this need for differentiation between different degrees of responsibility.

For one, it reminds me of certain personalized understandings of the state holding ‘fundamental rights’ – something that was once a widely held view in international law but which has been largely overcome. Sovereignty as a legal concept is, as held by the Permanent Court of International Justice in its very first decision, the sum of a state’s rights and obligations under international law. As such, the principle of sovereignty cannot therefore, in my view, provide for an argument why a certain differentiation in the attribution of international responsibility is called for. What is more, if we carry this argument further to the largely parallel rules on the responsibility of international organizations, the question needs to be asked what the rationale of such a requirement of ‘fair labelling’ would be. Clearly sovereignty cannot be the answer here. A more convincing basis for such a principle of fair labelling might be found in the concept of the international rule of law.

Another reason why I am sceptical about some of the aspects of Jackson’s comparative approach is how he uses it for interpretive purposes. This comes to the fore when he discusses the respective subjective element of complicity in the law of state responsibility. Without going into the details of this discussion here, one of the arguments Jackson makes for a knowledge-based approach is that aiding and abetting under international criminal law is characterised by a mens rea requirement that is based on knowledge (at 50, 79). He contrasts this state of the law with the intent requirement which can be identified in the commentaries of the ILC to Article 16 ASR (at 159).

This argument requires scrutiny for a  number of reasons. First, the international criminal tribunals use the knowledge standard in the context of a mens rea standard which clearly requires intent (at 76 and, for instance, Article 25 of the Rome Statute). They therefore conceptualise the subjective standard to be a knowledge-based intent, akin to what some criminal lawyers would call dolus eventualis. Second, and more importantly, it is questionable whether any normative guidance for the law of state responsibility can be obtained here. After all, international criminal law imposes responsibility only for a limited set of core crimes. In contrast, Article 16 ASR is applicable throughout the whole range of international legal obligations – irrespective of whether a bilateral treaty of friendship and navigation is at stake or a multilateral human rights agreement. As I have argued elsewhere, the subjective element of Article 16 ASR can be attuned to the different primary rules which are at stake. What is more, different primary rules such as due diligence obligations, the principle of non-refoulement or the obligation to ensure the application of IHL under Common Article 1 of the 1949 Geneva Conventions allow to hold states responsible for support which would not meet the requirements of Article 16 ASR.

Towards moral sophistication?

The second part of my remarks relate to the underlying normative project of Jackson’s book. The author is outspoken that any legal system should provide for rules on complicity. At the outset, this claim is presented in a nuanced way. Jackson writes that ‘legal systems should hold accomplices responsible for their own contribution to the principal’s wrong, rather than for the wrong of their principal’ (at 31). At later points in his study (at 132), he identifies the degree of sophistication a legal system has acquired with the existence of rules on complicity, following an argument which Vaughan Lowe has made in a seminal article published in the early 2000s. What is more, Article 16 ASR is described by Jackson as a ‘radical leap in the morality of international law’ (at 135).

Jackson is mindful that this programme should not be carried too far. Thus, he writes early on in his monograph that it may ‘not be required to prohibit every form of participation in every legal wrong” (at 17). At the same time, his normative programme pushes him to adopt a rather broad interpretation of the forms of aid and assistance which are prohibited under Article 16 ASR. Coupled with his approach to look towards ICL for guidance, this leads to a rather expansive programme. This becomes apparent, for instance, when Jackson discusses the requirement under Article 16 (b) ASR according to which the aiding or assisting state is also bound by the obligation that the main actor has violated. He writes that ‘a broader complicity rule would protect the international community’s interests in the stability of international relations and the integrity of treaty commitments’ (at 167).

While this is of course a legitimate normative position, I would like to sound a note of caution about the slightly dismissive stance this represents towards the ‘earlier’ international law which did not include rules on complicity and would thus fall short in terms of standards of moral sophistication. It can be questioned whether ‘the stability of international relations and the integrity of treaty commitments’ depends primarily on the existence of a wide concept of complicity. Seen from Jackson’s perspective, constraining more actors in their behaviour by the rules of international law will lead to more stability in international relations. I have my doubts whether more responsibility for more actors will always lead to desired outcomes.

In his Allgemeine Staatslehre, published at the beginning of the 20th century, Georg Jellinek argued that too much stability stifles change in the international realm. At the time, that may have appeared to be a self-interested argument formulated for rising powers who viewed the existing international legal order as the outcome of a particular power constellation. While the argument is thus not unproblematic, it resonates today. The liberal international order of the 1990s is under pressure – a pressure which is exercised at the same time by rising powers and by populist movements in (declining?) established powers. This raises the question of the future trajectory of international law and the role that the law of international responsibility should play in this regard.

Several scenarios are conceivable – a reassertion of the liberal post-cold war order or a retreat towards a more formal and state-oriented international legal order are just two of those scenarios. Jackson’s narrative positions the concept of complicity in a story of progress – how international law has overcome its previous moral limitations. This strikes me as potentially counterproductive. The progress narrative invites the thought that if more recent geological layers of the international legal order erode, their emanations in the law of state responsibility might also be carried away by strong surface winds. In the long-term perspective, a less ambitious concept of complicity might thus be more able to weather the storm that we seem to be facing.

New Insights and Structural Clarity: Miles Jackson’s “Complicity in International Law”

Wed, 04/12/2017 - 13:00

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Recently, a number of studies have been published on complicity in international criminal law. In 2014, Neha Jain published a study on Perpetrators and Accessories in International Criminal Law. More recently, Marina Aksenova published a book on Complicity in International Criminal Law. As the titles of both books suggest, the main focus is on international criminal law (ICL). Aksenova, by way of contrast to individual complicity, does dedicate a chapter to State complicity.

Miles Jackson’s work, published in 2015, entitled Complicity in International Law takes a broader and a narrower approach than the books of Jain and Aksenova. While the latter conduct in-depth comparative criminal law analysis, Jackson’s focus is narrower; it is firmly on the international concept of complicity, as the title of the book appropriately suggests. His approach is broader in that, alongside individual complicity, he discusses State complicity. In comparative law terms, this could be qualified an ‘internal’ comparative analysis; discussing a legal concept of a different nature (criminal/individual v. civil/state) but within the same legal system: international law. This terminology is however misleading bearing in mind international law’s pluralist nature. The cross-disciplinary analysis of complicity, across ICL and IL, is more ‘external’ than any ICL-domestic criminal law comparison. And this is exactly the intriguing feature of the book: the juxtaposition of individual and state complicity. Do these concepts have enough in common to be usefully discussed within one and the same analytical framework? It is interesting to note that Helmut Aust in his fine and thorough study on Complicity and State Responsibility does not, by way of analogy, touch upon individual complicity in international law. Having said that, the fact that an emerging strand of scholarship approaches questions on international legal responsibility from a ‘shared perspective’ may be sufficient justification for this cross-disciplinary approach.

Leaving aside the question of the suitability (or not) of a juxtaposed analysis of individual and State complicity, I welcome it since it comes with new insights. Jackson sheds new light on a concept that, in the area of ICL, has been subject to much debate since the Perišić decision by the ICTY [for the debate see here]. Moreover, the analysis certainly contributes to a further sophistication of the concept of State complicity (p. 132).

In the following, I will limit myself to reflecting on the first point: new insights. There are at least two. First of all, the analysis of the ‘wrongness’ of complicity (section 2.3). By discussing English tort law, Jackson highlights the different policy reasons that lie behind the idea of complicity. Societal interests, special protection from third parties, and the wrongdoing of the third party justify an exception to the rule that a breach of contract only concerns the parties to the contract. Complicity may provide for a remedy against a third complicit party who induces a party to breach the contract. This very interesting venture into English tort law, which with regard to the pacta tertiis rule make it relevant for state responsibility under Art. 16 of the ARSIWA (p. 165-167) makes clear that complicity rules are not “monolithic” (p. 17). Indeed, complicity may protect very different interests and serve a variety of policy goals. This is an important conclusion bearing in mind the ongoing debate on the scope of complicity in ICL, in particular with regard to the fault requirement of aiding and abetting international crimes. The ICC in Art. 25(3)(s) of the Statute, requires the person who assists, aids or abets the commission of a crime to act with the purpose of facilitating the base crime (purpose-based approach). The test applied by the ad hoc Tribunals is broader: knowledge of the principal’s intent and of the essential elements of the principal’s crime suffices for criminal responsibility (knowledge-based approach).

In the case of Canadian oil company Talisman, sued before an American federal court for complicity in human rights abuses by Sudan, it was held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone”. The plaintiffs and amici curiae argued the opposite: knowledge was the appropriate fault element under customary international law. Currently, there is no uniform rule on the fault requirement of complicity in ICL. Domestic criminal law is divided. It depends on the policy objectives behind complicity whether a purpose or a knowledge test is applied. In the US, where both tests are employed, crime prevention has lead courts and legislators to adopt the broader knowledge-based approach. This is a compelling argument for regarding Art. 25(3) of the ICC Statute as setting too high a standard. Nicola Lacey, in a recent and brilliant study explains the role of policy in shaping the concept of criminal responsibility. To me this is an important but under-researched area in ICL and I welcome Jackson’s study, for highlighting the diversity of policy goals behind complicity. His cross-disciplinary approach and analysis of individual and State complicity allows this to enter the debate.

Another important insight Jackson’s study offer, concerns the structure of complicity. Jackson argues – and this is the normative claim at the heart of his book – that the accomplice should not be held responsible for the principal wrong but for his own contribution to that wrong. In other words, the principal’s wrong should not be imputed to the accomplice. ‘Imputational complicity’, which is the dominant model in most common law jurisdictions and in international law, may have certain advantages (no need to detail the particular role, more direct connection to harm, increasing the condemnatory element) yet there are principled objections against it. The principle of autonomy and agency, translating to respect for sovereignty and personal culpability, requires separate recognition of an accomplice’s contribution to wrongdoing. He argues, and I fully agree, with regard to both attribution of responsibility and sanctioning, there should be a clear differentiation between the accomplice’s wrongdoing (contribution to crime A) and the principal’s wrongdoing (crime A). Another principle that requires such differentiation is the principle of fair labelling. As Jackson writes: “in terms of the law’s declarative function, it is crucial to accurately label wrongdoing” (p. 20).

Jackson examines complicity in international law against the normative claim of differentiation/non-imputation. He scrutinizes the theory in three areas, each components of the prohibition of complicity in international law: i) conduct (contribution) ii) nexus (relationship between contribution-crime), and iii) fault (knowledge or purpose with regard to the principal’s crime). Complicity in ICL, he concludes, insufficiently differentiates between principal and accomplice wrongdoing and as a result does not fully respect principles of culpability and fair labelling. The lack of differentiation is particularly problematic in the context of the crime of genocide. A conviction for aiding and abetting genocide results in a conviction for genocide proper, a crime that comes with a particular stigma. Moreover, from a structural point of view, the special intent-requirement of genocide (the intent to destroy…a group) does not lend itself for imputation through the fault element of aiding and abetting-liability (knowledge). It is wrong, as is current practice, to punish the accomplice who knowingly sells the génocidaire a machete but lacking genocidal intent himself, for genocide. As I have argued elsewhere, such ‘imputation’ is only appropriate when the aider/abettor or participant in a joint genocidal enterprise is punished for participation in genocide.

Fair labelling is at the centre of the normative stance of this study. It is, therefore, somewhat surprising that the author does not further examine the meaning of the principle. Fair labelling is a somewhat enigmatic concept; its scope and justification have never been analysed in detail as Chalmers and Leverick submit in one of the few in-depth studies into the principle (to which Jackson refers without further discussing it). What might have been interesting is to explore whether fair labelling plays a different role in ICL than in public international law. This study seems to assume it does not but I imagine the more direct political and diplomatic consequences of condemnation of a State makes that fairness in labelling has another dimension in international law than in criminal law. Branding acts of wrongdoing as ‘criminal’ was exactly what defeated art. 19 of the Draft Articles on State Responsibility.

Miles Jackson has written an excellent study on complicity in international law. His theoretical framework introduces a richer account of participation in wrongdoing and the cross-disciplinary approach highlights the different interests that lie behind the prohibition of complicity. Equally admirable is the clear, eloquent and succinct way in which he wrote it all up. His work is a very welcome contribution to the literature on complicity and I cannot wait to read more of his work.

“Complicity in International Law”: An Overview. Book Discussion

Wed, 04/12/2017 - 08:00

This post is part of our book discussion on Miles Jackson’s “Complicity in International Law“.

Introduction

No one is ever accused of being complicit in something good. Across areas of law, complicity – the idea of participation in another’s wrong – has received increased attention in the last decade. To take one domestic jurisdiction, England and Wales, accessorial liability in private law and criminal law has been subject to detailed re-evaluation. In international criminal law, the acquittal of Momcilo Perisic by the ICTY Appeals Chamber brought deep recrimination and comment. And in the law of state responsibility, the complicity rule in Article 16 of the Articles on State Responsibility is increasingly invoked in the context of the arms trade, counter-terrorism, and development aid.

This increased attention forms the background to the book. My overarching aim is to understand and analyse how international law regulates individual and state complicity. This overarching aim is supplemented by, where appropriate, critique as to the scope of the relevant rules and a normative claim as to how complicity rules ought to be structured. To this end, the book is structured as follows. Part A builds an analytical framework for understanding complicity rules and defends the normative claim mentioned above. Part B addresses complicity in international criminal law, including complicit omissions and command responsibility. Part C does two things. First, it considers state participation in the wrongdoing of other states and tracks the move from what I call specific complicity rules to the general rule on aid or assistance in Article 16 of the Articles on State Responsibility. Second, it addresses state participation in the actions of non-state actors. In doing so, it appraises the claim that complicity has permeated the secondary rules on the attribution of conduct in international law and proposes a non-state analogue to the rule in Article 16. Part D concludes.

Building an Analytical Framework and Defending a Normative Claim

Before turning to the scope and structure of complicity, it is worth asking why we have complicity rules at all. In the criminal context, the inculpation of those who help or instigate seems to flow naturally from the wrongfulness of the principal act. Likewise, in civil law and the law of state responsibility, where the principal act would be wrongful if committed by the accomplice, it is easy to recognise the force of the International Law Commission’s aphorism: one ‘cannot do by another what [one] cannot do [oneself].’ Outside of these situations – think inducing breach of contract and its comparative analogues in private law – different legal systems and areas of law take different approaches. The varying needs and purposes of the regime inform both the existence and scope of the complicity rule.

Across areas of law, it is helpful to analyse complicity rules in an inter-dependent tripartite framework. This framework – which I construct in Chapter 2 of the book – concerns (a) the forms of complicity prohibited; (b) the nexus or connection required between the accomplice’s act and the principal wrong; and (c) the fault required of the accomplice. In addition, in Chapter 2 I also defend a normative claim as to how complicity rules ought to be structured. Ideally, there should be differentiation in the attribution of responsibility between the accomplice(s) and the principal. This claim is easier to see in the context of criminal law, where the principles of culpability and fair labelling do much of the critical work. For states, an analogous idea of sovereign autonomy (and fair labelling) informs the claim. In the subsequent parts of the book, I use the framework and normative claim to assess international law’s approach to complicity.

Complicity in International Criminal Law

In Chapter 4, I show that that in international criminal law, the following features mark archetypal doctrines of complicity. First, there is breadth in the forms of complicity prohibited – international criminal tribunals have emphasised that any acts of assistance, encouragement, or moral support may be sufficient. Second, this assistance is required to have a substantial effect on the commission of the crime, though the restrictive bite of this requirement does not seem great in practice. Third, the fault element is unstable. On one hand, the Kunarac Trial Chamber’s assertion that the accomplice must ‘take the conscious decision to act in the knowledge that he thereby supports the commission of the crime’ is defensible as a matter of law and principle. On the other, Stewart has convincingly shown that this standard of knowledge has bled into recklessness in practice.

That final point might lead naturally to a discussion of Perisic and specific direction – this is something I address in Chapter 4 (pp. 80-85). For present purposes, it seems unnecessary to revisit it now except to say that some of the underlying anxieties could be better addressed through (i) renewed focus on the other elements of the complicity rule; (ii) the increased use of conditions and monitoring in the provision of assistance; and (iii) an assessment of the possibility of any defences to knowing participation. Instead, it is worth emphasising that the normative claim as to the structure of complicity takes hold here. I argue that in international criminal law, accomplices ought to be liable for their acts of complicity – there ought to be differentiation among participants in the attribution of responsibility.

Concluding the book’s discussion of international criminal law, Chapter 5 considers complicit omissions. As to aiding and abetting by omission, it analyses the key case of Mrksic, and, drawing on the common law, proposes a framework for thinking about the key criterion of a duty to act. As to the doctrine of command responsibility, it argues that one part of the doctrine – knowing failure to prevent the commission of a crime – may be understood as a complicit omission and justified in those terms. Other parts of the doctrine – particular the failure by a commander to punish subordinate crimes – require alternative justification.

State Complicity – Assistance to Other States

The book then shifts, in Chapters 6 and 7, to consider state complicity in the wrongdoing of other states. In the first place, there is a narrative here that matches the historical evolution of complicity rules in other areas of law – that is, the shift from specific rules to a general rule. In respect of the former, in Chapter 7.2 I analyse one example of what I call specific state complicity rules: international law has long prohibited the provision by one state of its territory to another that facilitates an act of aggression against a third state. This rule is specific at the level of the forms of complicity – the provision of territory – and in terms of the principal wrong – aggression. In respect of the latter, it was (partially) these instances of specific complicity that underscored the ILC’s inclusion within the Articles on State Responsibility of what ended up as Article 16 – the general prohibition on aid or assistance in the commission of a wrongful act by another state.

In recent international practice and scholarship, much of the action has concerned the contours of the rule in Article 16. In terms of the tripartite framework of the thesis, Chapter 7.3 shows that it is marked by the following elements. First, the modes of complicity only extend to material aid; instigation or incitement is excluded. Second, the aid must materially facilitate (or significantly contribute) to the principal wrong. Third, the fault element is likewise (relatively) unstable; I argue that the textual standard of knowledge of the circumstances of the wrongful act is (and ought to be) sufficient. And finally, as to the structure of the rule, it is clear that the assisting state is held responsible for its own acts; the acts of the principal state are not imputed to it.

These elements, sketched in bare terms above and addressed in detail in Chapter 7, have been the subject of considerable attention and development, including in Chatham House’s recent report on Aiding and Assisting in Armed Conflict and Counterterrorism. Instead, let me highlight three other claims. First, like others, I argue that Article 16 ought to be understood as a primary rule of international law in terms of the conceptual scheme the ILC laid down for itself. The key to understanding Article 16 is its generality as opposed to putative secondary nature. Second, I am not sure that the inclusion by the ILC of what is known as the double obligation requirement is defensible. The double obligation requirement – the demand that conduct of the principal state would be wrongful for the assisting state – may be insufficiently attentive to the interests of the international community in the integrity of treaty relations. And third, I argue that the exclusion of instigation from the ambit of complicity in the law of state responsibility is not supported by principle and, as a matter of positive law, may be incorrect.

State Complicity – Attribution, Participation, and Non-state Actors

Moving beyond inter-state complicity, the book then turns in Chapters 8 and 9 to consider state assistance to non-state actors. In some cases, particularly where the non-state actor is on the territory of the state, assistance of this kind may be swept up by wider due diligence obligations to prevent certain harms from occurring. But with respect to complicity specifically, there is a conceptual problem – without a principal wrong on the international plane committed by the non-state actor, there is no wrong for the putatively complicit state to be complicit in.

Chapter 8 discusses one way out of this problem – one that is evident in the decisions of certain human rights courts. The orthodox rules for the attribution of conduct to a state are marked by the search for a relationship of agency between the state and the non-state actor – either complete dependence or direction or control is required. In a series of cases, the Inter-American Court of Human Rights has lowered the standard for attribution to the state to encompass a complicit relationship between the state and the non-state actor. Likewise, the European Court of Human Rights, at least with respect to territorial cases, seems to have taken steps in a similar direction in El-Masri and Al-Nashiri. Although these approaches are somewhat understandable given the facts of the cases, in Chapter 8 I argue against such an attempt to address state participation of this kind by altering the general rules of attribution in international law.

In Chapter 9, I analyse the specific prohibition on state complicity in genocide, and, on the general level, propose what might be thought of as a non-state analogue to the rule in Article 16. This non-state analogue is, like the rule in Article 16, a general complicity rule. Working off the text of Article 16, I put forward a rule that reads:

A State which aids or assists a non-state actor in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

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

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

As the range of obligations binding non-state actors increases, so too does the potential to understand and prohibit states’ support for breaches thereof in terms of complicity. Given the different international legal nature of the principal actor, it is possible that the contours of the rule ought to differ from the rule in Article 16; the text above simply provides a starting point. But as to its bare existence, the essential logic of the rule in Article 16 justifies the recognition of its non-state analogue.

Conclusion

In conclusion, I will add two points. First, to treat individual and state complicity within the same framework is not to demand identical approaches. Nonetheless, such treatment does provide at least a starting point for comparative reflection on the structure and scope of the rules. Second, I am convinced by the significance for the international legal system of the relatively quick entrenchment of the general rule reflected in Article 16. The rule’s power lies, as Lowe put it, in its ‘bureaucratization of the monitoring of compliance with international law’ by states in their everyday relations.

Book Discussion on Miles Jackson’s “Complicity in International Law”

Tue, 04/11/2017 - 13:30

The blog is happy to announce that over the next few days, we will host a discussion on Miles Jackson’s book, Complicity in International Law.

Miles is a Departmental Lecturer at the University of Oxford. He will kick off the discussion tomorrow morning with an introductory post outlining the main arguments of his book. Comments by Elies van Sliedregt (Professor of International and Comparative Criminal Law at the University of Leeds), Helmut Philipp Aust (Professor of Law at the Freie Universität Berlin), and Elizabeth Wilmshurst (Distinguished Fellow, International Law, at Chatham House) will follow. Miles will bring the discussion to a close on Friday with a response to the comments.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

New Addition to our Team of Editors

Tue, 04/11/2017 - 07:40

It is such a pleasure to announce that Anthea Roberts has accepted the invitation to join the team of EJIL:Talk! Contributing Editors. Anthea is an Associate Professor at the School of Regulation and Global Governance (RegNet) at the Australian National University.

Before returning to Australia, Anthea was an Associate Professor at the London School of Economics, a Visiting Professor at Harvard Law School and a Professor at Columbia Law School. In addition to her ANU appointment, she is also a Visiting Professor on the Masters of International Dispute Settlement at the Graduate Institute and the University of Geneva. Anthea is a leading voice across many areas of public international law, having published on the sources of international law, investment treaty law and arbitration, use of force, jurisdiction, among other topics, in the leading international law journals. She has twice been awarded the annual Francis Deák Prize for the best article published in the American Journal of International Law by a younger scholar .

In addition to being on the editorial board of the European Journal of International Law, she is also on the editorial board of the American Journal of International Law, the Journal of World Trade and Investment, and ICSID Review. She is also a Contributing Editor for the International Economic and Policy Law Blog and a Reporter for the Restatement (Fourth) of the Foreign Relations Law of the United States. Before beginning her academic career, Anthea worked in private legal practice, served as an Associate to the Chief Justice of the Australian High Court and clerked at the International Court of Justice.

Anthea has already written a number of posts for EJIL:Talk! (see here and here), including that of yesterday. We very much welcome her contributions to the blog!

Illegal But Legitimate?

Mon, 04/10/2017 - 14:00

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

The film is faithful to what had actually happened at the sedition trial. As one observer put it, the three speeches at the trial were ‘models of moderation, mutual respect, and felicity of expression.’ Here is a part of Gandhi’s:

It is a painful duty with me but I have to discharge that duty knowing the responsibility that rests upon my shoulders, and I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the [violent] occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same. I have felt it this morning that I would have failed in my duty, if I did not say what I said here just now.

I wanted to avoid violence. Non-violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am, therefore, here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any [extenuating] act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is, as I am going to say in my statement, either to resign your post, or inflict on me the severest penalty if you believe that the system and law you are assisting to administer are good for the people. I do not except that kind of conversion. But by the time I have finished with my statement you will have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.

Gandhi thus accepted responsibility for breaking the law, while exposing that law as unjust. He did not try to carve out exceptions from the law that would apply to his situation – he admitted he broke it. While he told the Judge that the injustice a conviction would inflict should make him consider resigning his post, Gandhi did not argue that the law was non-law because it was unjust (although he maybe would have done a naturalist lex injusta non est lex if the law in question was, say, Nazi law or some other lex extrema). Crucially, he also accepted responsibility for the immoral acts of others that were a predictable consequence of his own conduct. He ran the risk of evil, and accepted that risk because he felt that the consequence of doing nothing would be even more evil. And the Judge convicted him for breaking the law, while essentially accepting that in applying the law an injustice was being done, at least partially.

So we come back to humanitarian intervention. If I was the US President in 1994, and I had the ability to use force to prevent the genocide in Rwanda which took 800,000 lives, and the UN Security Council would not give me the mandate to do so because of an intransigent permanent member, would I have broken Article 2(4) of the UN Charter to stop that great evil? Yes, and happily so. Indeed, we know from contemporary accounts of Rwanda (e.g. Romeo Dallaire’s) that even a very limited military intervention would almost certainly have stopped the genocide – this is what makes the international community’s failure to do anything so positively atrocious.

Syria, on the other hand, is much more difficult. An intervention capable of ending the Syrian catastrophe would need to be massive, definitely involving large-scale troop deployments on the ground. It carries with it a host of unpredictable risks, including most importantly that of a direct conflict with Russia and the non-trivial possibility of a nuclear escalation. There is no reliable way of estimating the full human and material costs of intervention, but we know for a fact that many people would die as its direct consequence, civilians and combatants alike. And there is no way to be even remotely certain that the intervention would actually work. The past record of intervention in the region does not inspire confidence, to say the least, be it Afghanistan with the ever-resurgent Taliban, the complete shit-show that was Libya (to use President Obama’s own description), or the Iraq disaster, which is directly causally related to much of the current suffering in Syria. It is no wonder therefore that Obama ultimately chose to do nothing, or next to nothing, or that most people in the West can continue to sleep at night even while we’re all collectively doing nothing, or next to nothing. We are, after all, strongly intuitively inclined to believe that inaction is less evil than action that produces the same consequence (e.g. failing to feed a starving child on the street is less evil (yet still evil!) than stealing the child’s food, thereby causing them to starve). And so, while doing nothing was the greater evil for Gandhi, as it was in Rwanda, doing a (military) something may well be the greater evil in Syria as things stand today. The balance of evil is at the very least non-obvious.

What also differentiates humanitarian intervention from Gandhi’s example of civil disobedience is that the underlying norm – the prohibition on the use of force in Article 2(4) of the Charter – is a good norm, not an evil one. It is not only good, but fundamental. If we are to break it because compliance would in these specific circumstances be a greater evil, the moral balance must take into account the significant negative impact that undermining the norm generally would have, as any deliberate act of  non-compliance inherently does. And this norm can inevitably only be broken by states powerful enough to do so, which only further exacerbates the corrosion of Article 2(4), so that we regress to a world in which the strong do what they will, and the weak suffer what they must. It is of course easy to wish for a better world in which the P-5 would not use their veto in the Security Council to block collective decisions on military intervention, but we do not live in that world, nor are the states visiting unilateral interventions upon others – for good motives or bad – willing to relinquish that veto when their own selfish interests are affected.

I hence fully agree with Anthea that breaking the law on the basis that it conflicts with higher-order considerations of justice undermines the authority of the law. I also believe that this should not be done lightly – indeed, the circumstances would need to be truly exceptional. But I still think that ‘illegal but legitimate’ is a coherent position – far more so than the attempts of those who seek to justify humanitarian intervention within the confines of already existing law, by instrumentally poking smaller or bigger holes through that law. Not only are these arguments lacking in formal validity (remember how the number of states openly endorsing a rule permitting humanitarian intervention is in the single digits, while at least 130 have openly rejected it, and the US in particular has until now expressly refused to espouse it), they also open up significant potential for further norm-erosion and abuse. Consider, for example, the position of my friend Jens Ohlin, agreeing with Harold Koh in the result but not in argument, basing his own view on what I can only say is a strained reading of the word ‘inherent’ in Article 51 of the Charter, and concluding that ‘we should interpret the law to make sense.’

Whose sense, exactly, must the law make? Doesn’t it already make sense? Doesn’t it already make sense that a single state should not legally have the right to determine unilaterally whether force should be used against some other state? Yes, the Charter collective security system is not always working as designed – but that doesn’t mean it makes no sense. After all, don’t most domestic legal systems not always work as designed? Would we expressly allow, in any domestic legal system, a Batman, caped crusader-type vigilante to enforce the law because the state’s enforcement machinery is not working in any given instance?

Finally, what I find genuinely astonishing about the humanitarian intervention-type justifications of last week’s US strike in Syria is how these arguments are made even when the facts on the ground manifestly disfavour them. First, what did the strike actually accomplish? We have no way of knowing now what the long-term consequences, good or bad, of the strike will be. But we do know in the short-term that the Syrian airbase which was targeted is apparently still operational and that planes from that very base dropped conventional bombs on the same rebel-held city which was previously attacked chemically. The Assad regime knows very well how to carry its terrorizing message across. Second, the Trump administration appears to have no discernible follow-up strategy to deal with the humanitarian disaster in Syria – from what was both said and done, the purpose of the strike was to deter Assad from using chemical weapons again, not to actually stop the Syrian catastrophe. Third, that leads us to the morally utterly intolerable position that we can intervene at our discretion when children are killed by chemical weapons, but that we can choose not to intervene, and will not intervene, when many more children are killed by bullets or explosives. If this is humanitarian intervention, I at least want nothing to do with it.

And last, but by no means the least, there are the intentions and character of the head of the interventionist government, the single individual making this decision to act, now affectionately known to some as Abu Ivanka al-Amriki. Does anyone actually believe that, with his established record of malevolence tempered only by incompetence, Trump genuinely wants to alleviate the humanitarian plight of the Syrians? That his is a genuinely humanitarian purpose? Have we already forgotten in that regard that his administration recently tried (twice!) to enact a categorical ban on the admission of refugees from Syria? Isn’t his motive for intervention an obviously selfish and pedestrian one, i.e. that he for internal political reasons does not wish to project the same image of inaction that he publicly and repeatedly castigated Obama for (sad!) and will thus now demonstrate his manly decisiveness with some bigly boom-booms and warships on TV?

In sum, whether you believe that the law can be broken for higher causes, or that the law should or already does accommodate humanitarian intervention, this is not where you fight the good fight. This is not Rwanda in 1994. This is not even Serbia and Kosovo in 1999, where – although it was my city being bombed, while I was in it – I can still accept an arguable interventionist case could perhaps have been made. This is as far from a humanitarian intervention on the legal spectrum as Trump is from Gandhi on the human spectrum. This is a clearly, unambiguously illegal use of force. And it may yet become a complete shit-show.

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