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Non-State Actors and Non-Refoulement: The Supreme Court’s Decision in Zain Taj Dean

Fri, 07/28/2017 - 08:00

Lord Advocate v. Zain Taj Dean [2017] UKSC 44 concerned an extradition request, made by the Republic of China in Taiwan (‘ROC’). Dean, a British national, had lived in Taiwan for many years. In 2011, he was convicted for manslaughter, drunk-driving and leaving the scene of an accident by an ROC court. While on bail, pending an appeal, he fled to Scotland. His convictions and four-year sentence were upheld, in absentia, in 2012. The request was made pursuant to an ad hoc ROC/UK MOU, and in accordance with section 194 of the Extradition Act 2003. The Edinburgh District Court ruled that Dean could be extradited but the Scottish Appeal Court disagreed. The Supreme Court had to decide whether Dean’s extradition, to serve out the remainder of his sentence in Taipei prison, would violate Article 3 of the ECHR.

As the greatest risk of harm emanated from other prisoners – rather than from public officials or the prison conditions themselves – the Supreme Court decided that the correct test was whether the requesting ‘State’ had offered to put in place reasonable protective measures to obviate this risk. To this end, it drew a distinction between State agents and non-State actors for this purpose despite the fact that the prison would be under the public authorities’ direct authority and control at all times. This post argues that this approach amounts to a misapplication of the Strasbourg jurisprudence, invoked by the Supreme Court, with potentially serious consequences for the interpretation of the non-refoulement principle in detention cases.  

The Article 3 Challenge

In the Appeal Court, counsel had agreed that the applicable test was “whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3” (Saadi v Italy (2009) 49 EHRR 30, para 128). According to the Lord Advocate’s expert, Taipei prison failed to meet a number of CPT Standards. It was grossly overcrowded and significantly understaffed. It had unsanitary conditions and serious problems with bullying. Dean claimed that media reports in Taiwan had generated considerable public hostility which put him in danger of violent attack by other prisoners.

Due to growing concerns about the compatibility of Dean’s detention with Article 3, the ROC authorities gave a series of undertakings regarding his treatment. Specifically, they promised that he would be detained in an Article 3 compliant two-man cell; he would be separated from other prisoners; and that any alleged breach of the assurances, made by British consular officials, would be remedied. The key question was whether these special arrangements were sufficient to remove the risk of ill-treatment.

The Appeal Court’s Judgment

In its judgment [2016] HCJAC 83, the Appeal Court decided, by a majority, that Dean’s extradition would violate Article 3. It held that there was a real risk of ill-treatment which the diplomatic assurances did not remove. Lady Paton was disturbed by the likelihood that Dean would have to remain in his cell due to his vulnerability to attack. This danger would be heightened, in the majority’s view, by the privileged conditions in which Dean would be kept. Lady Paton pointed out that, according to the CPT Standards, separation for a prisoner’s own protection may amount to ill-treatment (para 53).

The ECtHR has accepted that gaps in the protection of human rights may be bridged by using diplomatic assurances where the requesting State is not a Contracting State. In Othman v UK (2012) 55 EHRR 1, it indicated that – in essence – as long as relations of mutual trust and confidence exist between the two governments; the undertakings are comprehensive, specific and cogent; they are given on behalf of the central government; and the requesting State has a good record of honouring similar assurances then a court can accept them as a practical guarantee against ill-treatment (para 189).

In Dean, the majority decided that the Othman criteria were not satisfied. In addition, to concerns about the non-existence of prisoners’ rights in the ROC’s legal system; they were anxious about the lack of international monitoring of prison conditions in Taiwan; the absence of diplomatic ties; and the general deficiencies in the system of diplomatic protection [see here]. The Lord Advocate appealed to the Supreme Court.

The Supreme Court’s Judgment

The Supreme Court decided that the wrong test had applied to the facts. In its view, the correct test required a court to satisfy itself: (1) that the ROC’s undertakings would provide Dean with a reasonable level of protection against violent attack by other prisoners in Taipei prison; and (2) whether the protective measures themselves would infringe Article 3.

Lord Hodge relied upon Bagdanavicius v. Secretary of State for the Home Department [2005] 2 AC 668, which followed the approach adopted by the ECtHR in D v. UK (1997) 24 EHRR 423 and HLR v. France (1997) 26 EHRR 29. In Bagdanavicius, the House of Lords distinguished between cases where the risk of ill-treatment “emanates from the intentionally inflicted acts of the public authorities in the receiving country” (D v. UK, para 49) and those where the risk of harm arises from non-State actors. In that case, Lord Brown observed that the latter situation cannot trigger an Article 3 violation per se because ill-treatment cannot be committed by private individuals, no matter how severely the victim may have been treated (or how grave the risk of harm). However, he acknowledged that violence, or its threat, may be transformed into an Article 3 violation, if the receiving State fails to afford reasonable protection against it (para 24).

The Supreme Court concluded that the Othman criteria had been satisfied. Lord Hodge noted that the specific assurances, which had been given by senior officials in the ROC government, addressed the particular conditions of Dean’s detention – including concerns about his safety vis-à-vis other prisoners – and they had given British consular officials a credible monitoring role (para 38). Lord Hodge paid particular attention to the claim that the proposed protective regime would breach Article 3. He accepted that solitary confinement may qualify as ill-treatment, where it involved the ordering of complete sensory or prolonged social isolation (Ahmad v UK (2012) 56 EHRR 1, paras 207-210, cited para 41). However, he noted that any isolation would be at Dean’s election. Consequently, he distinguished between instances of total isolation and the “relative isolation” that was foreseeable in this case. In his view, such a protective measure would not infringe Article 3. The Supreme Court concluded that the ROC authorities had ensured that Dean would be afforded reasonable protection against the threat of harm from other prisoners; and the proposed special regime did not contravene Article 3.

Analysis

The Strasbourg jurisprudence, relied upon by the Supreme Court, holds that ill-treatment involves “the intentionally inflicted acts of the public authorities”. The observation that private individuals cannot commit ill-treatment is correct as it is closely associated with the conduct of public officials (Article 1, UN Convention Against Torture (1984) 1465 UNTS 85. However, the divide between State agents and non-State actors, especially in extradition cases involving detention, is much more contentious. It is well known that poor prison conditions can amount to ill-treatment. The public authorities are responsible for those conditions (and they will have full knowledge of them) but it would be going too far to say that State officials have intentionally inflicted ill-treatment on a prisoner by detaining him or her in such conditions. Clearly, this requirement is highly doubtful in prison cases.

Further, the cases invoked by the Supreme Court in support of its State agents/non-State actors divide are qualitatively different from prison cases. Bagdanavicius, an expulsion case, involved a claim that the receiving State would not protect the Applicants against the threat of violence arising from family members; in HLR v. France, another expulsion case, the Applicant claimed he would be at risk of harm from drugs traffickers in the receiving State; and D v. UK concerned responsibility for the transmission of AIDS. In sharp contrast, public authorities exercise continuous, direct authority and control over prisoners and are responsible for jail conditions. Accordingly, although the risk of violent behaviour from prisoners cannot be directly attributable to the State, the high level of control exercised in such situations sets them apart from cases where the receiving State is obligated to provide reasonable protection against the risk of harm arising from non-State actors throughout its jurisdiction. This difference should be enough to cast doubt on the reliability of the State agent/non-State actor divide in prison cases. In any event, it should ensure that the courts undertake a stringent review of whether protective measures are compatible with Article 3 in such cases – a test based on reasonableness is inadequate for this a task.

Cases involving the application of the non-refoulement principle are hard because they often require judges to make fine-grained assessments about the foreseeability of harm. Accordingly, judges may disagree about whether an individual should be extradited or not. Perhaps the debate about whether Dean’s de facto solitary confinement would qualify as ill-treatment provides a good illustration of this point. However, to take the view that Dean is such a finely-balanced case would be to overlook a number of background factors which should have influenced the Supreme Court’s decision.

The fact that the extradition arrangements were, necessarily, made by way of an MOU should have increased concerns about the enforceability of the ROC’s commitments. The usual argument [see here] that MOU have significant political effects, is much less convincing given the UK’s non-recognition of the ROC. Moreover, the general charge that diplomatic assurances amount to unenforceable promises has been well-documented [see here]. In any event, the undertakings given in Dean can be compared unfavourably with other cases. In Othman, an MOU was used to conclude extradition arrangements between the UK and Jordan. Nevertheless, the two governments had strong diplomatic ties; the assurances provided for recourse to judicial remedies; and an independent human rights NGO was appointed to monitor compliance with them.

Once the complexities of the ROC’s ambiguous international standing are taken into account and the Othman criteria reassessed it is suggested that the Supreme Court made a mistake in allowing the appeal. More broadly, its distinction between State agents and non-State actors threatens to undermine the safeguards that the non-refoulement principle offers to individuals in extradition cases where detention is involved.

Conclusion

If Dean ends up before the Strasbourg Court, the outcome on the question of whether the danger posed qualifies as ill-treatment would be far from certain. In Ahmad, the Court warned that it is not for Contracting States to impose Convention standards upon third States (para 177). Moreover, it observed that “it has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3” especially where the receiving State has, “a long history of respect of democracy, human rights, and the rule of law” (para 179). It is unclear whether the ROC would be treated as though it fitted within this bracket of receiving States, notwithstanding its established democratic credentials and avowed commitment to the rule of law (see [2015] HCJAC 52, paras 17-19). Nevertheless, such a petition would provide the ECtHR with an opportunity to correct the Supreme Court’s misapplication of its jurisprudence and to reaffirm the general applicability of the Saadi test in extradition cases involving detention.

The Treaty on the Prohibition of Nuclear Weapons

Wed, 07/26/2017 - 07:30

On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.

The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance.

The essential obligations of the TPNW for any state that becomes a party thereto, are listed in Article 1, which provides as follows:

  1. Each State Party undertakes never under any circumstances to:

            (a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;

            (b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;

            (c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;

            (d) Use or threaten to use nuclear weapons or other nuclear explosive devices;

            (e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;

            (f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;

            (g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.

The TPNW is the ultimate product of two main trends in international relations that, to the surprise of many observers, came together successfully within just the past few years. The first trend is the longstanding frustration of most of the states parties to the NPT with the noncompliance of nuclear-weapon-possessing states with the NPT’s disarmament provisions, located in Article VI.

The second, and more recent trend, is what has been dubbed the humanitarian initiative; an effort that took shape in 2012, and that brought together more than 150 states and myriad civil society groups to focus on the unacceptable harm to human life, health, and environment that would be caused by any use of nuclear weapons.

These two trends coalesced in August, 2016 at a special United Nations working group on nuclear disarmament, held in Geneva. This working group recommended the negotiation of a treaty comprehensively banning nuclear weapons. That Autumn, the First Committee of the General Assembly adopted a resolution approving the mandate for such a conference, leading to the December 16, 2016 General Assembly resolution.

Noticeably absent throughout the negotiations on the TPNW – including in General Assembly debates, the formal treaty negotiation sessions, and the voting on the final treaty text – have been all nine states known to possess nuclear weapons (the United States, the United Kingdom, France, China, Russia, Israel, India, Pakistan, and North Korea). These states, and a number of others, boycotted the negotiating process entirely. As Niki Haley, the U.S. Ambassador to the United Nations, explained: “In this day and time we can’t honestly say that we can protect our people by allowing the bad actors to have [nuclear weapons] and those of us that are good, trying to keep peace and safety, not to have them.” Similarly, the British Ambassador to the United Nations, Matthew Rycroft has stated: “The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.”

Notwithstanding the non-participation of the nuclear-weapons-possessing states, the states negotiating the TPNW have expressed the view that the possession and potential use of nuclear weapons is an existential threat to humanity, and one that cannot be ignored simply because the few states that possess nuclear weapons are not yet ready to take meaningful steps to disarm themselves. They also see the TPNW as an important normative statement, by a supermajority of the states in the world, that the development, possession and use of nuclear weapons is immoral and must be prohibited, just as other weapons of mass destruction including chemical and biological weapons have been the subject of comprehensive prohibition treaties. And some states have expressed hope that this normative statement might contribute to the development of parallel customary international law.

Critics of the treaty, however, contend that without the participation and buy-in of the nuclear weapons states, the TPNW is little more than an idealistic statement of disapproval by states that do not themselves possess nuclear weapons. They argue that the TPNW will not be effective in convincing states that possess nuclear weapons to disarm, and that it may in fact do harm to the existing legal framework governing nuclear weapons proliferation, by undermining the centrality of the NPT as the nearly-universally-subscribed-to cornerstone of the regime.

The hope of states supporting the TPNW is that the treaty will constitute a normative nucleus around which efforts may be made by both states parties and international civil society to persuade nuclear-weapons-possessing states to join the treaty. The issue of verification of a former nuclear armed state’s implementation of the treaty’s disarmament provisions, once it becomes a party to the treaty, was one of the issues subject to heavy negotiation. The resulting provisions of Article 4 of the TPNW allow for former nuclear-weapons-possessing states to join the treaty as parties either after they have fully disarmed, or while still in possession of nuclear weapons, subject to a “legally binding, time-bound” plan for their destruction by a deadline to be determined by a meeting of the states parties.

From a legal perspective, there are many issues of analysis and interpretation that will keep scholars – well, me anyway – busy writing about the TPNW for years to come. These include the tension that will exist between the obligations of the TPNW, and the nuclear weapons commitments of NATO members. This, by the way, explains the Netherlands’ rather uncharacteristic vote against a nuclear disarmament treaty. NATO defense policy includes a longstanding commitment to nuclear weapons sharing agreements. At present, five NATO countries have such agreements with the United States, pursuant to which U.S. nuclear weapons are stationed on the territory of the host state, and are to be used by the host state’s military in the event of an armed conflict. The Netherlands is one of those states, along with Belgium, Germany, Italy, and Turkey. It is estimated that a total of 180 U.S. B-61 thermonuclear weapons are currently stationed on the territory of these five NATO host countries, the largest number of which are stationed at Aviano air base in Italy, and Incirlik air base in Turkey

But recall that Article 1(g) of the TPNW provides that no state party shall “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This paragraph was very intentionally added to the TPNW in order to close a controversial loophole in Article II of the NPT, that NATO has long argued allows for such nuclear sharing agreements. So what happens if any member of NATO joins the TPNW? Can this provision of the TPNW be reconciled with the nuclear weapons sharing commitments of NATO members? Most NATO countries, clearly including the Netherlands, appear to think that it cannot be.

Other issues that require careful interpretation and analysis include the relationship between the TPNW and the NPT on matters such as safeguards of nuclear materials and facilities, and the role of the International Atomic Energy Agency. This is a subject that was contentious during the drafting of the treaty, and one on which I have already provided some preliminary commentary over at my blog.

From a political perspective, even without the buy-in of the nuclear armed states – and indeed precisely because of it – the TPNW will undoubtedly have an impact on nuclear weapons diplomacy going forward, particularly in the context of diplomacy surrounding the NPT. The next NPT Review Conference is scheduled for 2020, and the Preparatory Committee meetings for that conference have already begun. It will be important to see how the states parties to the TPNW seek to bring the treaty’s existence and implications into those already highly fraught negotiations about the health and relevance of the NPT. Many states parties to the TPNW see the new treaty as an implementation of Article VI of the NPT on nuclear disarmament, and will seek to have it acknowledged as such in the Review Conference’s final document. This will be heavily opposed by the nuclear armed states and those under their “umbrella” of nuclear protection. But negotiations on a consensus Review Conference final document are always unpredictable, and if some acknowledgment of the TPNW can be worked into it, that will represent a major political and potentially legal coup for the TPNW parties.

While much remains to be addressed both legally and politically concerning the TPNW, my own view is that the adoption of the TPNW is an event to be welcomed. It is a very useful legal supplement to the increasingly marginalized NPT, and represents a welcome shakeup of stagnant NPT politics. It very forcefully puts the issue of disarmament front and center in international nuclear weapons diplomacy. The nuclear-weapons-possessing-states can of course avoid signing the treaty. But it is now much more difficult for them to avoid seriously addressing the expressed will of the international community that nuclear weapons should be understood to be just as immoral as any other banned weaponry, and that as such their development, possession, and use should be prohibited in international law.

 

The Data-Driven Future of International Law

Tue, 07/25/2017 - 08:00

Data is not only fueling the economy, but has also become an increasingly important driver of empirical legal research. Three reasons are chiefly responsible for this. First, the internet, better search engines and bigger databases today put more international law data from treaties to disputes or arbitrators at a scholar’s disposal than ever before. Second, researchers are beginning to treat the primary material of law – legal texts – as data. By conceiving text as data and transforming it into numerical representation using natural language processing techniques, scholars can analyze more written material than they could ever read. Third, neighboring disciplines, including legal informatics, computer science or the digital humanities, provide international lawyers with new tools for digesting large amounts of legal data including through machine learning and artificial intelligence.

In a Special Issue for the Journal of International Economic Law we are beginning to explore this new data-driven frontier in empirical legal scholarship. We have been fortunate to assemble strong contributions that engage with major international economic law debates through a data-driven lens using state-of-the-art empirical techniques. In this blog post, we want set out the main issues that, we believe, are raised by this new frontier of empirical scholarship.

What is different in data-driven research?

Three aspects distinguish data-driven empirical scholarship from traditional approaches. First, data is not anymore only a means to empirically test a theory, but increasingly the starting point for empirical research. Big data science allows for the inductive analysis of large amounts of data to detect patterns and trends, which we did not know to exist or expected beforehand, by letting “data speak for itself”. Results generated through this “data-first” attitude can then be used to test established theories or build new ones.

Second, the availability of more information and more efficient means for its analysis allows researchers to investigate entire data populations rather than subsamples thereof. Even though datasets will not always be complete, as some investment awards will remain secret and some treaties unpublished, access to more comprehensive data will improve accuracy of results and reveal patterns only visible in the aggregate.

Third, in analyzing this new wealth of data, researchers are increasingly relying on computing rather than reading or counting. From traditional content analysis that employs an “army” of research assistants to read and hand-code documents, there is a shift towards using computers and artificial intelligence to make sense of texts. While machines are better than humans at spotting patterns across large amounts of texts (which is why we use them in plagiarism detection software for instance), they are worse than humans at resolving interpretive ambiguities. Human coders are thus not going to be completely replaced any time soon, but computers and artificial intelligence are beginning to play a larger role in legal document analysis.

The promises of data-driven research

Data-driven empirical research promises to uncover latent patterns in international law data, debunk past myths and forecast the future, while contributing to new theory-building as the contributions to the JIEL Special Issue show.

Behn et al., for instance, map the network of investment arbitration practitioners quantifying a phenomenon known as double-hatting where a lawyer acts both as arbitrator and counsel in concurrent, un-related proceedings, which is otherwise only discussed in the abstract. Similarly putting hard figures on abstract debates is Charlotin who compiled a dataset of 75’000 citations of international courts and tribunals for this Issue to put numbers on international law’s fragmentation by investigating the degree of cross-citations between international economic law tribunals and other international adjudicatory institutions.

Debunking a different type of myth is Allee et al. who challenge the view that preferential trade agreements (PTAs) and the World Trade Organizations are competing projects on trade regulation. Using textual similarity metrics they show that references to WTO agreements and incorporation of WTO language in PTAs have increased rather than decreased over time. Indeed, the countries most forcefully pursuing PTAs are also the ones that link their treaties most explicitly to the WTO. Daku and Pelc use similar techniques to compare party submissions in WTO disputes and Appellate Body reports to track parties’ influence over dispute settlement outcomes and find that WTO members with less legal capacity also have less of an impact on the precedents that shape WTO jurisprudence.

On the more conceptual side, Derlén and Lindholm show how citation analysis can be used to track the importance of precedent over time using the European Court of Justice’s decisions that shaped the European Single Market as case studies. Broude et al. empirically operationalize the idea of regulatory space in investment agreements and compare the Trans-Pacific Partnership to overlapping treaties on that ground. Finally, Morin et al. argue that the universe of trade agreements can be understood as a complex adaptive system and support that claim by empirically tracing innovation and adoption of environmental provisions in trade agreements.

The challenges and limitations of data-driven research

New data and new tools thus provide exciting new opportunities for empirical analysis that would have been impossible at this scale or depth using more traditional methods. At the same time, it also comes with challenges and limitations.

Challenges span across the entire life-cycle of data-driven research. It is often difficult to obtain machine-readable data at the outset and those who have it may not be willing to share it. Once data is obtained, most legal researchers lack the methodological training to fully exploit it. And even when research is ready for dissemination, outlets may be hesitant to publish work that is descriptive rather than normative. For data-driven research to thrive, empirical legal scholars thus need to collaborate more closely in building and disseminating joint datasets, work together with other disciplines, in particular computer science, to benefit from their complementary skillsets and prepare legal research outlets for more data-intensive scholarship including by broadening the pool of reviewers and putting in place mandatory data publication conventions.

Even when these challenges are overcome, some limitations remain. Data-driven research is particularly prone to be mistaken for theory-less research where data not only speaks but also thinks for itself. That is why researchers engaged in data-driven work need to be careful to separate pattern from noise and to complement elaborate quantitative tools with equally elaborate qualitative evidence backed up by sound theory.

Furthermore, data-driven research such as text-as-data analysis or network analysis is also exceptionally exposed to generating wrong conclusions from skewed data. Think of a research project that only looks at English-language treaties, because of their greater availability. How generalizable are its results? Or consider a network of cross-appointments of arbitrators, where links are missing because cases remain secret. Data-driven research is thus particularly sensitive to the quality of underlying data.

The time is ripe

 In spite of these challenges and limitations, we still believe that the time is ripe for a greater role of data-driven research in empirical legal scholarship. Important normative questions from international law’s fragmentation to the double hatting of arbitration practitioners and legal innovation in trade agreements can finally be tackled through empirical research. And data-driven research not only provides new opportunities for legal scholars, but also for practitioners who can benefit from big data research when it is disseminated through dedicated websites and applications.

We thus hope that this Special Issue will help introduce this emerging field and its growing cohort of computer-savvy scholars to a wider range of legal researchers and practitioners.

Why the ICC won’t get it right – The Legal Nature of UN Security Council Referrals and Al-Bashir Immunities

Mon, 07/24/2017 - 08:00

As readers of this blog probably know, the issue of personal immunities of Sudanese President Al-Bashir is highly controversial (see here, here, here, here, here, here, here and here). In particular, previous rulings by the ICC’s Pre-Trial Chambers have been criticized for their incorrect, inadequate and/or inconsistent reasoning for concluding that personal immunities do not apply in case of Sudanese President Omar Al Bashir.

On 6 July 2017, the Pre-Trial Chamber II issued yet another set of arguments for the same conclusion (here), while Judge Marc Perrin de Brichambaut issued a minority opinion disagreeing with the majority’s reasoning (here). In essence, the PTC II, by majority, held that

because the rights and obligations as provided for in the Statute, including article 27(2), are applicable to Sudan (by imposition of the Security Council acting under Chapter VII of the UN Charter), the immunities of Omar Al-Bashir as Head of State do not bar States Parties to the Rome Statute from executing the Court’s request of his arrest and surrender (para 107)

Disagreeing with the majority decision, Judge Brichambaut found that “the current state of the law does not allow a definite answer to be reached in relation to the question of whether this resolution removes the immunities of Omar Al Bashir” (para 83). However, Judge Brichambaut finds that

The combined effect of a literal and contextual interpretation of article IV of the Genocide Convention, in conjunction with an assessment of the object and purpose of this treaty, lead to the conclusion that Omar Al-Bashir does not enjoy personal immunity, having been “charged” with genocide within the meaning of article VI of the Genocide Convention. (para 100)

In this blog post, I am not addressing the decision or the minority opinion specifically (as I am sure others will do so shortly). Rather, I wish to present a theory of the legal nature of SC referrals, without which, the ICC will not get the issues surrounding Bashir’s immunities right. Doing so, I claim that, as a matter of lex lata and following from the legal nature of SC referrals, personal immunities of a sitting Head of State of a state not party to the ICC, such as those enjoyed by Sudanese President Bashir, apply and are opposable to the ICC itself as well as to national authorities enforcing the decisions of the ICC, unless the SC expressly removes such immunities.

The Legal Nature of UN Security Council Referrals

The jurisdiction of the ICC in case of a referral (involving states not party to the Rome Statute) is best conceptualized as a conferral of jurisdictional powers from the SC to the ICC.

This is because the foundational jurisdiction of the ICC generally stems from its states parties. The same applies to the ICC as an international organization (IO): it may only exercise powers conferred to it by states.

In case of a SC referral, the state concerned has not directly conferred its criminal jurisdiction to the ICC. Here, the ICC gains jurisdiction by virtue of a referral by the SC acting under Chapter VII of the UN Charter. This is necessary because states parties to the ICC cannot, as a matter of international law, confer powers (here criminal jurisdiction over a third state) that they do not possess.  Conceptually then, the referral is an indirect conferral of powers: The SC acting under Chapter VII of the UN Charter exercises powers conferred to it by UN member states collectively. In the exercise of these powers, the SC further confers (jurisdictional) powers to a separate IO, the ICC. The precedents of the ad hoc tribunals confirm that the SC may confer powers that it is unable to exercise itself (see Nico Krisch in UN Charter: A Commentary, OUP 2012, para 54). From the perspective of the state concerned, the decision to refer a situation to the ICC is therefore an indirect conferral of criminal jurisdiction from the state with primary jurisdiction.

As regards the obligations of the state not party to the ICC, the binding nature of acts of IOs equally derive from a conferral of powers (usually by their member states). It follows that for the ICC to lawfully issue binding decisions on a third state, these must also find its basis in a conferral of powers. The SC resolution containing the decision to refer a situation to the ICC must therefore be read as such a conferral of powers. This was confirmed by the ICTY Appeals Chamber in the Blaskic Subpoena case:

the obligation [on States] to lend cooperation and judicial assistance to the International Tribunal… is laid down in Article 29 and restated in paragraph 4 of Security Council resolution 827 (1993). Its binding force derives from the provisions of Chapter VII and Article 25 of the United Nations Charter and from the Security Council resolution adopted pursuant to those provisions. (para 26)

These obligations, by virtue of Article 103 UN Charter, prevail over a state’s other treaty obligations (see Dan Sarooshi, The United Nations and the Development of Collective Security, Clarendon Press 1999, 109).

However, for a conferral of powers from the SC to another, separate IO (as opposed to the establishment of subsidiary organs, as was the case with the ICTY/R) to be lawful a specific competence must be found in either express or implied terms in the UN Charter. This also raises difficult legal issues regarding the parameters and limits to such process, which cannot be addressed here (I develop this in my PhD thesis). Suffice it to say that from the perspective of the ICC, ie the IO receiving such powers, it is clear that it is not obliged to exercise them. Also, the ICC itself can only act on the basis of its constituent treaty, ie the Rome Statute, otherwise acting ultra vires.

One important consequence of the nature of SC referrals for present purposes is the fact that since it is a conferral of powers, we have to look at the SC referral itself to determine its scope and whether it removed personal immunities. In particular, it means that the SC referral has not turned Sudan into a state party (in any event, it is rather doubtful that the SC even possessed such a power).

Bashir’s Immunities

What does this mean for Bashir’s immunity? The answer is found in the source of the power for the ICC, ie the referral.  The referral requires Sudan to “cooperate fully” with the ICC. Dapo Akande reads this as implicitly removing Bashir’s immunity. And here is where the legal nature of the SC referral points to a different conclusion: Recall that when the SC confers jurisdictional powers to the ICC, the SC itself is exercising powers conferred to it by its member states (see Art 24 UN Charter). To then further confer powers to an external IO the scope of these powers must be expressly stated and circumscribed in the respective resolution. In the case at hand, the SC merely obliged Sudan to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution.” (emphasis added). The question is whether this includes the application of Article 27(2) of the Rome Statute which removes personal immunities. The wording “pursuant to this resolution” is relevant because it omits any reference to the Rome Statute. This is telling since Article 86 of the Rome Statute dealing with the obligation of state parties to “fully cooperate” with the ICC adds the qualifier “in accordance with the provisions of the Statute”. Thus, if the ICC wished to deviate from the customary rule of personal immunities for Heads of States, it would have made an express reference to the provisions of the Statute (Article 27). The same was true with respect to the ad hoc tribunals. Here, the SC expressly laid out the scope of the tribunals’ jurisdiction by adopting their respective Statutes. It is difficult to see how customary law immunities would have been removed without express provisions in the respective Statutes to such an effect (it is debatable whether the Statutes of the ICTY/R in fact removed not only immunity ratione materiae but also immunity ratione personae). The requirement to expressly remove personal immunities is also confirmed mutatis mutandis by the ILC, which stated that “when applied to a serving Head of State […] a waiver of immunity should be explicitly stated” (see ILC, Third Report on immunity of State officials from foreign criminal jurisdiction, by Roman Anatolevich Kolodkin, Special Rapporteur, A/CN.4/646, para 55, to which also Judge Brichambaut refers). Also, a presumption exists that the SC does not intend to deviate from international law and equally does not intend to force members to violate international law when carrying out SC resolutions.

Furthermore, this conclusion is also warranted by a teleological interpretation. The issue of immunity of State officials from criminal jurisdiction concerns not only State officials’ smooth functioning but also the very core function of the SC, namely the peaceful relations between states and stable international relations (see Article 1 UN Charter). In fact, the ICJ described the inviolability of diplomatic envoys, which is to be seen as analogous to the present issue, as the most fundamental prerequisite for the conduct of relations between States in the Case concerning United States Diplomatic and Consular Staff in Tehran (para 91). Also, it must be stressed that personal immunities do not shield individuals from criminal responsibility but merely provide for a procedural bar that is removed once the official leaves office.

Conclusion

There is no question that those responsible for international crimes should be brought to justice. However, the involvement of the SC means that when referring a situation to the ICC the SC is acting in the interest of international peace and security. And personal immunities serve that interest. To read into the referral the removal of personal immunities without considering the consequences for international peace and security seems to ignore the SC’s primary responsibility. Just consider the political consequences of such legal proceedings: Let’s say Bashir is indeed arrested and transferred to The Hague to stand trial. And then what? Let’s not forget that Bashir is still the incumbent President of Sudan, controls the Army and enjoys considerable popular support. Such arrest would very likely cause dangerous political instability in a country with a history of brutal conflict.

This doctrinal argument might also be preferable for purely practical reasons. Without the express commitment of the SC to such prosecution, practical limitations of going after a Head of State are significant and possibly insurmountable, as evidenced by the failed trials against Kenyatta and Ruto in Kenya.

Granted, this is a very unsatisfactory result but at least it is laying bare an inconvenient truth about international criminal justice: The ICC is an over-ambitious project that cannot meet the expectations it has created. In other words, what we witness here is that “[t]he idea of universal justice … has met with the reality of power politics.” (Hans Köchler, Chinese JIL)

Announcements: Chatham House Meeting on Investment Treaties; GoJIL Special Call on the One Belt – One Road Initiative 

Sun, 07/23/2017 - 09:00

1. Chatham House Meeting on Investment Treaties. The International Law Programme at Chatham House will be hosting a meeting on ‘Investment Treaties: A Debate over Sovereignty, Trade, Development and Human Rights’ on 11 October 2017. For further details and to enquire about registering see here.

2. GoJIL Special Call on the One Belt – One Road Initiative. The One Belt – One Road Initiative (OBOR), also known as China’s New Silk Road, includes a large variety of infrastructure programs in numerous Eurasian and African States, proposed by the People’s Republic of China. It aims to enhance connectivity and cooperation across the Eurasian continent mainly through the construction of railways, highways, ports, airports, pipelines, etc., with China in a central role. This project could massively increase Chinese influence over Eurasia, as well as provide a chance for developing countries to benefit from its economic impact. To shed light on the diverse aspects of the One Belt – One Road Initiative, we call for authors to submit papers on this topic. Submissions from an international law background as well as other disciplines such as international relations, economics, geography, etc. are welcome. Papers should not exceed 15,000 words including footnotes. Selected contributions will be published in Issue 2 of Vol. 8. Our article guidelines and further information can be found on our website. All articles must be submitted by 15 January 2018. In case of any questions feel free to contact the editors via email at info {at} gojil(.)eu var mailNode = document.getElementById('emob-vasb@tbwvy.rh-69'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%6E%66%6F%40%67%6F%6A%69%6C%2E%65%75"); tNode = document.createTextNode("info {at} gojil(.)eu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vasb@tbwvy.rh-69"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

The Charlie Gard Case: Behind the Hyperbole

Fri, 07/21/2017 - 08:00

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are:

  1. Whether the declaration that life-sustaining treatment is not in Charlie’s best interests constitutes euthanasia;
  2. The true nature of the declarations made and the role of the best interests test; and,
  3. Whether the appointment of an independent representative for Charlie was unjustified (and a practice unknown to other jurisdictions).

Before moving on to consider those issues, it is important to first clarify a source of confusion which is apparent throughout the various writing on Charlie’s case; namely, why it is that the various courts have decided what is in Charlie’s best interests, as opposed to his parents making the decision.

Why is the decision that of the courts?

The jurisdiction of the domestic courts in cases such as Charlie’s was aptly described by the Court of Appeal in Wyatt (concerning treatment of a child) in the following manner:

[3]        As a small child, Charlotte self-evidently lacks the capacity to make decisions about her medical treatment. In these circumstances, such decisions are, in the first instance, taken by those having parental responsibility for her (her parents) in consultation with, and on the advice of, the doctors treating her. In the event of an important disagreement between doctors and a child’s parents, however, either side can invoke the inherent jurisdiction of the Family Division of the High Court relating to children, and a judge of the Division will decide what course of treatment is in the best interests of the child.

While Charlie’s parents and the doctors and nurses at Great Ormond Street Hospital (‘GOSH’) where Charlie is presently being treated agree on many aspects of his care, they fundamentally disagree as to whether certain treatment is or is not in his best interests. For a more thorough discussion of the areas of agreement/disagreement see the Position Statement of GOSH provided during the latest High Court proceedings (available here). The question of what is/is not in Charlie’s best interests is, then, at the centre of the dispute (both before the courts and in the media). How his best interests are determined will be considered further below.

Withdrawing life-sustaining treatment and euthanasia

Mr Cornides contends that, despite not making reference to ‘euthanasia’ in either the domestic judgments or the ECtHR judgment, the decision to withdraw Charlie’s ventilation and artificial nutrition and hydration constitutes euthanasia. It bears noting that both the UK domestic courts and the ECtHR have repeatedly and expressly rejected claims that withdrawing life-sustaining treatment in cases where such treatment is ‘futile’ constitutes euthanasia. Thus, in Lambert v France (referred to by the ECtHR in the Gard judgment), the Grand Chamber observed that there is a distinction (accepted by the applicants in Mr Lambert’s case) between intentionally taking life and ‘therapeutic abstention’ in the case of unreasonable obstinacy ([119]-[124]). The Grand Chamber in Lambert proceeded to hold that in circumstances where the domestic legislation criminalises the intentional taking of life and permits life-sustaining treatment to be withdrawn or withheld only in certain specific circumstances (as is the case in England and Wales), the State’s negative obligation under Article 2 not to arbitrarily deprive individuals of their lives does not arise (at [124]). Similarly, Lord Bingham observed in the seminal decision of Bland (which will be discussed in greater detail below) that the decision to withdraw life-sustaining treatment in respect of a patient in a persistent vegetative state  ‘is not … euthanasia, if by that it meant the taking of positive action to cause death’ (at [808D).

The statement of Lord Bingham just cited raises a very important point: what is meant by ‘euthanasia’? Mr Cornides does not clarify what he means by ‘euthanasia’. As most texts on euthanasia note, the phrase (first appearing in contemporary writings in the 17th century) derives from the Greek eu meaning good and thanatos meaning death. It refers to a third party deliberately ending another person’s life (some definitions include reference to an intention to relieve suffering as a requirement for the act to constitute euthanasia). Whether or not removing life-sustaining treatment constitutes euthanasia (or, more accurately, ‘passive euthanasia’) has long been the centre of significant debate by ethicists, philosophers, doctors and lawyers. But the legal position is clear (at least insofar as England and Wales is concerned). A doctor who withdraws life-sustaining treatment either at the request of a capacitous patient or based on an assessment of best interests, and does so without intending to cause death, will not be taken to have killed (and, thus, not be considered to have euthanised) the patient. In such cases, the courts have held that the conduct of the doctors constitutes an omission (as opposed to an act) and the cause of the patient’s death is taken to be their underlying illness, not the withdrawal of treatment. Of course, much can be said about the merits/demerits of those (seemingly artificial) delineations but the legal position is clear: a doctor who withdraws life-sustaining treatment based either on a lawful request or a best interests assessment will not, without proof of intention, be taken to have killed the patient (for more on this, see the seminal decision of Bland further expanded upon in the Court of Appeal decision in Re A (Conjoined Twins)).

Mr Cornides also seems to suggest that not administering the purely experimental treatment also constitutes euthanasia. The above applies to this argument as well. Additionally, however, the following observation of the Court of Appeal in Re A regarding the Bland decision has direct application:

An omission to act would none the less be culpable if there was a duty to act… There was no duty to treat if treatment was not in the best interests of the patient … Since there was no prospect of the treatment improving his condition the treatment was futile and there was no interest for Tony Bland in continuing the process of artificially feeding him upon which the prolongation of his life depended.

The evidence that was available to the trial judge in Charlie’s case (and which was accepted by the courts of appeal thereafter) was to the effect that the experimental treatment would be effectively futile and may, indeed, subject Charlie to pain and suffering. While the proceedings have since been reopened to explore this issue, the determination that the treatment was not in Charlie’s best interests cannot, for the reasons given above and in light of the preceding observation of the Court of Appeal, be taken to constitute ‘homicide by omission’ or euthanasia.

What are the courts declaring? Treatment and the best interests test

Underpinning much of the criticism of the domestic and ECtHR decisions in Charlie’s case is a misunderstanding of the nature of the declaratory relief granted. Since at least the time of the House of Lords decision in Bland, courts exercising the declaratory jurisdiction regarding medical treatment of incapacitous patients have been at pains to emphasise that the question they need to ask is whether the proposed treatment (usually maintaining life-sustaining treatment) is in the patient’s best interests. The question is, thus, not whether letting the patient die (either by removing life-sustaining treatment or not administering such treatment) is in their best interests.

In Charlie’s case, the courts had to address two questions: first, whether maintaining life-sustaining treatment (ventilation, and artificial nutrition and hydration) was in his best interests; and, secondly, whether the experimental treatment proposed by his parents was in his best interests. In both instances the central question was whether the treatment was in his best interests.

In English law, the ‘best interests’ test – which underpins decisions about children and those who lack capacity – is a common law construct developed long before the Human Rights Act 1998 was enacted. The best interests assessment:

…include[s] every kind of consideration capable of impacting on the decision. These include, non-exhaustively, medical, emotional, sensory (pleasure, pain and suffering) and instinctive (the human instinct to survive) considerations (per the trial judgment in Gard at [39(v)]).

As numerous courts (both domestic and international) have recognised, the best interests test is intended to give effect to, inter alia, the principles of sanctity of life, autonomy, self-determination and dignity which underpin the ECHR, particularly the rights to life and private life enshrined in (respectively) Articles 2 and 8 (see, for instance, James [2013] UKSC 67; Briggs [2016] EWCOP 53; Lambert).

As those same courts have also recognised, the nature of the best interests assessment is not the same in all medical treatment cases. Thus, in cases where the patient is minimally conscious (as was the case in Briggs), the best interests assessment involves a weighing up of the ‘strong’ (but displaceable) presumption in favour of the sanctity of life (i.e. Article 2) on the one hand against, inter alia, the right to self-determination protected by Article 8 on the other. In contrast, in cases where the patient is in a persistent vegetative state (as was the case for Mr Lambert and Tony Bland), ‘the decision whether to continue life-prolonging treatment does not involve a weighing operation of competing factors’ (per Lord Goff in Bland at 869A, emphasis added). As Lord Goff further clarified (at 869C):

Here the condition of the patient, who is totally unconscious and in whose condition there is no prospect of any improvement, is such that life-prolonging treatment is properly regarded as being, in medical terms, useless ….[F]or my part I cannot see that medical treatment is appropriate or requisite simply to prolong a patient’s life, when such treatment has no therapeutic purpose of any kind, as where it is futile because the patient is unconscious and there is no prospect of any improvement in his condition.

Thus, while in both cases (that is, where patients are in a persistent vegetative state or are minimally conscious) a best interests assessment will turn on an assessment of the factors in favour of treatment versus those against it, the reality is that in the case of patients in a persistent vegetative state or similar state, life-sustaining treatment will, generally, be considered futile such that there is no real balancing exercise. Based on the evidence before the trial judge, this was the case for Charlie. Indeed, ‘his parents agree that his present quality of life is not worth living’ (per the Supreme Court decision of 8/6/17). Despite Mr Cornides’s claim that ‘it never comes out quite clearly who made [the] determination [of Charlie’s best interests] and on which basis’, both the High Court judgment and the ECtHR judgment clearly set out the test being applied and the factors relevant to same (see, in respect of the ECtHR judgment paras [3]-[45]). Having ‘balanced’ the factors in favour of the experimental treatment (a ‘theoretical possibility’ of ‘some benefit’ without any indication that it would redress Charlie’s neurological deficits) and those against it (potentially subjecting Charlie to pain and suffering), the trial judge determined that the experimental treatment would be ‘futile’ in the sense of having no ‘effective benefit’ and would, thus, not be in his best interests. It is apt here to recall Lord Goff’s observation in Bland extracted above.

The appointment of an independent representative

Mr Cornides’s states that it is ‘absurd, and indeed defamatory, to insinuate that the parents in this case are pursuing anything else but what they believe to be in their child’s best interest.’ The appointment of a guardian is a practice which is common in proceedings such as Charlie’s (and, indeed, in proceedings involving children in other common law jurisdictions such as Australia) and which, as Lady Hale observed, was necessary in Charlie’s case because:

…where there is a significant dispute about a child’s best interests the child himself must have an independent voice in that dispute. It cannot be left to the parents alone. This has happened in this case because Charlie has been represented by a guardian.

In an adversarial jurisdiction such as England and Wales courts are (generally) bound by the evidence tendered by the parties. In a case such as Charlie’s where the outcome has such profound consequences, the need to ensure that all the relevant evidence is put before the court and properly tested cannot be overstated. Indeed, the domestic courts have observed that the guardian ‘is on any view pivotal to the whole scheme’ as they are ‘both the voice of the child and the eyes and ears of the court’. Appointing a guardian for Charlie is entirely consistent with the obligation under Article 8 of the ECHR to ensure that the child’s interests are given paramountcy. In those circumstances it is difficult to understand how an issue can be taken with this practice. As Mr Cornides acknowledged, there is nothing to suggest that Charlie’s guardian has not carried out her duties (which include, fundamentally, to ‘fairly and competently … conduct proceedings on behalf of the child’) to the best of her ability. The sole basis of Mr Cornides’s challenge, then, appears to be that the guardian disagrees with Charlie’s parents as to what is in his best interests.

Indeed, Charlie’s parents submitted before the domestic courts of appeal and the ECtHR that the test ought not to be one of best interests. Rather, they argued that the proper ‘test’ in cases such as Charlie’s (that is, where both parents agree as to the treatment that should be undertaken) ought to be whether there is a likelihood that such treatment would cause ‘significant harm’ as opposed to whether the treatment is in the child’s best interests. In rejecting that claim, both the Supreme Court and the ECtHR noted the broad international consensus that the child’s best interests is the paramount factor. The courts also observed that even if the ‘significant harm’ test were to apply, it would be met in Charlie’s case given the likelihood that he would be ‘exposed to continued pain, suffering and distress’ (ECtHR at [119]).

Concluding observations

Charlie’s case is tragically sad. But the issues it raises are not unique. Central to the law as it pertains to medical treatment of incapacitous patients in England and Wales is the need to ensure that any such treatment is in the patient’s best interests. While it may seem unjust that Charlie’s parents are not ‘allowed’ to make decisions about his treatment, it is a consequence of a broader system aimed at ensuring that it is the patient’s interests, and no one else’s, which dictate whether treatment is given. Finally, as noted at the outset, Mr Cornides’s post, particularly as it pertains to euthanasia, has implications beyond Charlie’s case and the need for clarity in debates surrounding assisted dying practices is of particular importance in the UK, where a new challenge to the Suicide Act 1961 based on Article 8 of the ECHR is this week before the High Court.

The Legality of the UK / Saudi Arabia Arms Trade: A Case Study

Thu, 07/20/2017 - 08:00

On 10 July 2017 the UK High Court delivered its open judgment in a high-profile challenge to the UK arms exports to Saudi Arabia, brought by the Campaign Against Arms Trade. A separate closed judgment was delivered based on the confidential evidence. As readers will be aware, the case involves various domestic and international law considerations.

The primary question was whether the Secretary of State for International Trade (the Government) was legally obliged to suspend extant and cease granting new export licences to the Kingdom of Saudi Arabia. Such an obligation would stem from the requirement to deny such licences where there is “a clear risk that the arms might be used in the commission of a serious violation of International Humanitarian Law”.

This condition is contained in Criterion 2 of the Common Rules Governing the Control of Exports of Military Technology and Equipment (European Council Common Position 2008/944/CFSP, December 2008). The Government adopted much of the Common Position as Guidance under s.9 of the Export Control Act 2002 and it accordingly represents the policy that will be applied when considering the grant of export licences. The Consolidated Criteria are thus intended to ensure the UK’s compliance with the UN Arms Trade Treaty (ATT), and the text of Criterion 2 links to its Article 7.

This blog post sets out initial thoughts on the open judgment, specifically focusing on its approach to ‘serious violation’ and ‘clear risk’, before examining the deference granted to the executive and its implications for the fulfilment of the ATT’s overarching purpose. Ultimately unsuccessful, the claim underscores the narrow ambit of judicial review and the unwillingness of UK courts to become embroiled in the merits of certain government action.

‘Serious Violation’

The arguments of the parties covered the interpretation of ‘serious violation’ in Criterion 2 and, implicitly, the ATT. The Government had advanced a definition of ‘serious violation’ importing the same elements as war crimes, including the intent of the perpetrator, and submitted that “the term serious violation has a particular meaning as a matter of IHL and is synonymous with war crimes and grave breaches”. This position has previously been comprehensively analysed in this forum by Ed Robinson.

Drawing from paragraph 2.11 of the User’s Guide (Common Position, Article 13), the Court implicitly diverts from the Government’s position, concluding that “the term serious violation is a general term in International Humanitarian Law which includes grave breaches and war crimes’… [para 16 of the open judgment].

By emphasising ‘includes, the Court arguably implies that the list of ‘serious violations’ is broader than the Government’s submission. This distinction is also evident in the Court’s approach to the mens rea, acknowledging that “Article 8 of the ICC Statute requires a mental element for a grave breach i.e. a wilful or deliberate or intentional act.” It goes on to state that “the generic term serious breach would include reckless as well as deliberate or intentional acts [18].

Despite any interpretative steps that could be inferred, the Court however refrains from directly applying the relevant rules of international law. Providing an overview of the evidence submitted by NGOs and other organisations, and notably:

paus[ing] to observe that these materials represent a substantial body of evidence suggesting that the Coalition has committed serious breaches of International Law in the course of its engagement in the Yemen conflict” [86],

the Court does not rule on whether ‘serious violations’ have taken place. It is cognisant of its limited role when it comments that “it was not the function of this Court to find in these proceedings that Saudi Arabia had breached international law” [56].

‘Clear Risk’

The gravamen of the Claimant’s claim was a public law challenge of the Government’s alleged ‘irrationality’ – that the open evidence “raised a presumption of a clear risk under Criterion 2c which could not rationally rebutted” [54]. This materialised through three grounds:

  1. Failure to ask correct questions or make sufficient inquiries’
  2. Failure to apply the ‘suspension mechanism’’ and
  3. Irrational conclusion that Criterion 2c was not satisfied. [50]

In reply, the Government argued that the decision-making processes had been conducted at the highest levels of government, and on the basis of careful assessments of relevant information, much of which is derived from confidential diplomatic and military sources [58]. Importantly, the Government characterised the question it was required to ask as prospective and predictive; “[k]nowing what [it] knows, is there a clear risk that materials [it supplies] to foreign states might be used in breach of International Humanitarian Law?” [57].

In determining whether the Government had acted irrationally, the Court outlined an approach which aimed at evaluating the scope and reliability of the relevant materials that the Government availed itself of, and understanding the processes, procedures, and actual operational practice of interpretation and evaluation [60].

The evidence detailed “a rigorous and robust, multi-layered process of analysis carried out by numerous expert Government and military personnel” [120]. It also highlighted a high degree of UK access to and knowledge of Saudi Arabian military operations, arising from extensive co-operation and communication between the two governments at the uppermost diplomatic and military echelons.

On the evidence, the Court rejected all three of the Claimant’s grounds. Importantly, it accepted the Government’s assertion that Criterion 2c “is focused on a prospective assessment based on an overall judgment of all the information and materials which [the Defendant] considers appropriate and has available to it.” [181]. It noted that although “past and present conduct is one indicator as to future behaviour and attitude towards international law”, it is not determinative, citing paragraph 2.13 of the Consolidated Criteria’s User’s Guide. This served to reduce the Claimant’s evidence of alleged violations to a factor among many warranting consideration.

The Court further relied on the vast qualitative differential between the evidence of the parties. It accepted that the Defendant possessed significant levels of sophisticated knowledge, and considered that this knowledge was given “anxious scrutiny[in] the essential rationality and rigour of the [Defendant’s] process [209]. In contrast, it noted that the Claimant’s “open source material is only part of the picture” [86] and detailed the relative weaknesses of their evidence [201.ii)]. This aided the Court’s conclusion that “no sustainable public law criticism of the scope of the inquiries made on [the Government’s] behalf or the quality of the information available...” [192].

We suggest, however, that the Court’s confidence in the Government’s risk assessment procedures raises a serious question about the efficacy of the ‘clear risk’ threshold. ‘Clear risk’ is not defined by the Consolidated Criteria, nor by the ATT (which uses ‘overriding risk’). The judgment is littered with admissions of Governmental ignorance and deficiencies in information required to determine whether an IHL breach has occurred. Two examples of this are:

  • Up until 1st August 2016, the MoD was tracking 208 incidents of potential concernOf these probable Coalition strikes, the MOD has been unable to identify a legitimate military target for the majority of strikes” [110]. Further, by July 2016, the MoD had realised it was not possible for it to determine definitively whether there had been individual allegations of breaches of IHL with respect to each of the incidents logged in its Tracker [185]; and
  • The October 2015 Foreign Office update to the Government:

    expressed concern at the worrying levels of civilian casualties in some reports and noted that high levels of civilian casualties can raise concerns particularly around the proportionality criteria. The update notes that intent is a key element in assessing International Humanitarian Law compliance, and acknowledges that there is often insufficient information to determine intent” [153].

Gaps in Governmental knowledge such as these led Edward Bell, the Head of the ECO, to advise the Secretary of State:

my gut tells me we should suspend [arms trade with the Saudis]. This would be prudent and cautious given the acknowledged gaps in Saudi operations” [203].

It is not readily apparent as to how, given the inability to properly determine whether there had been breaches, the Government could continue to inform itself appropriately as to the ‘clear risk’ of their occurrence. The Court, however, appears to downplay the significance of the above by acknowledging that “there would be inherent difficulties for a non-party to a conflict to reach a reliable view on breaches of [IHL] by another sovereign state” [181,ii)]. It points to the Government’s knowledge and experience of Saudi Arabia as making up for those knowledge gaps in its continued prospective assessment [201, iv)].

Deference to Executive

It is clear that the wide margin of judicial deference ultimately proved crucial to the decision. The judgment concludes that:

In an area where the Court is not possessed of the institutional expertise to make the judgments in question, it should be especially cautious before interfering with a finely balanced decision reached after careful and anxious consideration by those who do have the relevant expertise to make the necessary judgments” [209].

This deference is both required by UK domestic law and provided for by the Common Position. Domestic judicial review is limited in scope, and the UK judiciary has frequently given substantial deference to the Government, particularly in the context of cases brought on matters of defence. It is well known that “the Courts will be very slow to review the exercise of prerogative powers” and will avoid being drawn “into an area which, in the past, they have entered, if at all, with reluctance and the utmost circumspection” (per Lord Bingham in R v Jones). Further, the ‘User’s Guide’ identified that ultimately “individual judgment is still an essential part of the process, and Member States are fully entitled to their own interpretations” [11].

In the present case, the Court drew parallels to national security assessments, and noted that “as matters of judgement and policy [they] are recognised primarily as matters for the executive” [34]. It further justified a wide latitude of deference by stating that “the particular context of this case necessitates that considerable respect should be accorded to the decision-maker by the court” [35].

Concluding Remarks

While appearing to be a legally appropriate decision, a full understanding is hampered by an unknown quantity of the evidence and ratio unrevealed in the closed judgment. It was ultimately a case for judicial review in a sphere of government that the courts have traditionally granted the executive much leeway. The Campaign Against Arms Trade has stated that it intends to appeal the judgment, but given the robustness the Court attributed to the Government’s risk assessment procedures, and the overarching judicial deference in this area, an appeal will likely have difficulty.

This result may be unpalatable to some, particularly if viewed as a test of the efficacy of the ATT in achieving its stated purpose to contribut[e] to international and regional peace, security and stability and reduce human suffering. It serves as an example of the tension between universality and effectiveness that permeates the negotiation and implementation of many weapons treaties. In many instances, the exact steps that states need to take to be compliant with the ATT are unclear or open to domestic interpretation. For example, the treaty includes repeated use of phrases such as ‘pursuant to their national laws’, ‘where necessary’, and ‘may include’. Issues with the undefined ‘overriding risk’ were discussed above. This lack of clarity reflects the political trade-offs that were part of the negotiation process, and the present case has shown that these interpretive margins allow for ‘finely balanced decisions’ to fall on the side of continued arms trade.

An Appraisal of the Council of Europe’s Draft European Rules on the Conditions of Administrative Detention of Migrants

Wed, 07/19/2017 - 08:00

In the last decade, a growing momentum has developed to end immigration detention. This momentum has two dimensions. First, that certain migrants, such as children, should never be detained as they are in a situation of particular vulnerability. Second, that even if a migrant is not deemed to be in a situation of ‘particular vulnerability’, alternatives to detention should be preferred and detention only used as a last resort when lawful, for a legitimate purpose, necessary and proportionate. The exceptionality of immigration detention is rooted in the recognition of the harmful physical and psychological effects of the administrative detention of persons who are not accused of a crime. The adverse impact of detention is magnified when accompanied by uncertainty about when the detention might end as well as the risk of ill-treatment, discrimination and poor detention conditions.

In addition to the work of NGOs such as the International Detention Coalition, international organisations have called on states to develop alternatives to immigration detention with some producing action plans to end immigration detention. These include the UN High Commissioner for Refugees’ Global Strategy – Beyond Detention 2014 – 2019 and the Council of Europe’s Commissioner for Human Rights’ Five-Step Plan to Abolish Migrant Detention and Parliamentary Assembly’s Campaign to End the Immigration Detention of Children. At the same time, in response to the so-called ‘refugee crisis’, the detention of migrants within Europe is increasing, leading the Parliamentary Assembly to observe that, ‘[w]hilst it is universally accepted that detention must be used only as a last resort, it is increasingly used as a first response and also as a deterrent. This results in mass and needless detention’.

Within this context, the Council of Europe’s European Committee on Legal Cooperation is currently consulting on European Rules on the Conditions for the Administrative Detention of Migrants. This post looks at whether such Rules are needed and examines how well they align with the developments to end immigration detention and the risks faced by persons detained.

Why is a Codification Needed?

This is not the first time that the Council of Europe has developed standards on treatment in detention; in 2006, the Council adopted the European Prison Rules (EPR). While the EPR were intended to apply to prisons, the question might arise whether they could be extended to immigration detention. Many of the rules within the EPR apply equally regardless of the type of detention. This is because they focus on the inherent dignity of all human beings. Therefore, the prohibition of torture and other cruel, inhuman and degrading treatment or punishment, the rules on the use of force and restraints, the right to healthcare and equivalence of care with the community, to food and water, clothing and bedding apply no differently to someone held in a prison, police cell, immigration detention centre or psychiatric ward.

Equally, the EPR were not developed with other detention settings in mind, meaning that some parts of the EPR do not apply to immigration detention (for example, Parts VII and VIII and sections 17.1 and 33.3 as noted by the 2013 feasibility study into an instrument on immigration detention) and do not contain rules on aspects particular to immigration detention, such as preparation for removal. Further, while individual standards such as the prohibition of torture apply to every person equally, standards on the conditions of detention are likely to be most effective if they also address the overall detention setting, its purpose, design and how it is run. In this respect, an administrative detention centre for migrants is different to a prison and needs to be treated as such.

Do the Current Rules Address the Particularities of Immigration Detention?

The draft Rules recognise that ‘migrants in administrative detention shall be accommodated in facilities that are specifically designed for the reason for their detention and offer material conditions and a regime that is appropriate to their legal situation’ (B.8). However, they contain very little detail on what that means for the design and running of a detention centre and how migrants are treated. Rather, the parts of the Rules on the conditions and treatment in detention largely replicate the text of the EPR without contextualisation.

The effect of importing individual rules from the EPR into a document on immigration detention is most clearly illustrated by the section on ‘maintaining good order’. Other than reference to human dignity and one rule requiring that ‘[d]isciplinary procedures shall be mechanisms of last resort’ and ‘the authorities of administrative detention facilities shall use mechanisms of restoration and mediation to resolve disputes with and among migrants’ (LI.10), the Rules makes no mention of how the immigration centre should be designed and run to reflect the non-punitive nature of the detention and the position of vulnerability in which migrants are placed. Rather, the section on maintaining good order focuses on the use of force, searches, restraint and solitary confinement (which in themselves do not align with other international standards and norms such as the recently adopted Nelson Mandela Rules). This approach has led a coalition of NGOs to call upon the Committee to consider a ‘fundamentally different way of conceptualising what detention conditions are appropriate in the administrative immigration context … Norms based on existing human rights standards for migrants and on general principles of care and protection – not punishment or mitigation of threat – should be the driving rationale’. The Coalition argues that the codification exercise should be ‘re-frame[d] … from one in which standards are put in place to merely avoid serious harms or abuses; to one that provides guidance to States on how to properly ensure the safety, dignity and humanity of all migrants within places of immigration detention … it is nonetheless difficult to imagine why a regime that is fundamentally concerned with administrative migration procedures should ever contemplate the use of force or solitary confinement, for example’.

The Definition of Detention

Beyond the draft Rules on treatment in detention, the instrument takes a restrictive view on what constitutes detention by confining the application of the Rules to a ‘closed detention centre’ which is defined as a ‘place where migrants held within it are deprived of their liberty and specifically designed for that purpose’. This definition leaves significant gaps in application where a person may be deprived of his or her liberty, for example, in transit zones, in an airport or on a ship. The draft Rules also provide that a migrant may be held in a prison (draft Rule B.11) or police custody (B.12) in ‘exceptional’ circumstances which does not align with other international standards and norms on immigration detention, such as the UNHCR’s Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, which prohibit detention of migrants in both contexts.

Detention as a Last Resort, Alternatives and Length of Detention

The title of the draft Rules suggests an exclusive focus on conditions of detention. However, they also address the decision to detain. This is important given the move towards ending immigration detention in favour of alternatives. The draft Rules cite Article 5(1) of the European Convention on Human Rights as the authority for the grounds to detain. However, they arguably go further than the European Court of Human Rights jurisprudence particularly on 5(1)(f). Draft Rule B.1 provides that ‘[d]etention should be for the shortest time possible and imposed only as a measure of last resort and after full consideration of all sufficient but less coercive alternatives [see also Rule D.3], in particular as concerned [sic] migrants in vulnerable situations’. Draft Rule B.2 recognises that the decision to detain should be on an individual basis, thus prohibiting the routine or blanket detention and Draft Rule D.1 requires that the ‘detention itself shall be lawful, proportionate and not arbitrary’.

At the same time, if detention is to be a last resort, the Draft Rules provide no direction on what the exceptional circumstances might look like that legitimate detention. This is in contrast to UNHCR’s Guidelines which not only require detention to be individualised, necessary and proportionate in consideration of alternatives, but also to pursue a legitimate purpose which they confine to the protection of public order, public health or national security.

Similarly, the draft Rules do not define what is meant by ‘sufficient but less coercive alternatives’; nor do they indicate how they are to be regulated to ensure that they do not become alternative forms of detention or violate human rights themselves; or explicitly require states to have alternatives in place. Research has already been undertaken into the types of alternatives that are appropriate in the immigration context (see, for example, the IDC’s report on ‘There are Alternatives’). In developing the Rules, this type of research might be engaged with to ensure that the presumption against immigration detention is fully operationalised.

Migrants ‘in Vulnerable Situations’

 The draft European Rules refer to ‘migrants in vulnerable situations’ (Rule B.1) who they define as ‘any individual in a specific situation of vulnerability, in particular any person belonging to a group or community that is at a higher risk of being subjected to discriminatory practices, violence or hardship than other groups – at a given time in a given situation’. The Rules require that ‘[t]he individual circumstances of the migrant, especially his or her vulnerability, shall be taken into consideration’ (D.3) and that ‘[m]igrants should be screened to assess whether or not they are vulnerable … Appropriate protective action should be taken whenever a person is assessed as vulnerable’ (B.6).

The draft Rules provide a broad and open definition of who is covered by this definition of vulnerability. However, at different points in the draft they refer to certain groups although they do not refer to all of the groups included in the UNHCR Guidelines which identify ‘the special circumstances and needs of particular asylum seekers’ including ‘victims of trauma and torture’, children, ‘pregnant women and nursing mothers’, ‘victims or potential victims of trafficking’, ‘asylum seekers with disabilities’, ‘older asylum seekers’ and LGTBI asylum seekers. The draft European Rules do not make specific mention of older persons; nursing mothers, members of groups who may be at particular risk in detention such as members of the LGTBIQ communities as highlighted in OM v Hungary; or how stateless persons should be treated despite the risk of stateless persons being subject to indefinite immigration detention as highlighted in UNHCR’s Guidelines (para 9).

Where they do identify particular groups, they are not consistent in the consequences of such identification, particularly in relation to whether they should be detained at all. For example, the draft Rules require the identification and provision of ‘appropriate medical advice, counselling and … the necessary physical and medical health care’ to ‘migrants who have been subject to physical or mental or sexual abuse, torture or ill-treatment, whether prior to detention or whilst detained’ and victims of sexual and gender based violence (draft Rule H16) ‘with appropriate medical advice, counselling and with the necessary physical and mental health-care’. However, they do not assert that such groups should not be detained in the first place. By contrast, Rule B7 sets out that, ‘[s]hould … victims of trafficking be identified in a closed detention centre, they should be released and offered a recovery and reflection period of at least 30 days, during which they shall be entitled to assistance, including appropriate accommodation, psychological and material assistance, access to emergency medical treatment, counselling and information, in particular as regards their legal rights and the services available to them’.

Conclusion

The development of European standards on the legality and legitimacy of detention of migrants and the conditions and treatment of those held in detention provide an important opportunity to set out the international standards and norms in this area and contribute to the exceptionality of detention in a context in which it is rising rather than reducing. In the next articulation of the draft Rules, the focus should be on ensuring that the rules align with the current position of international law as well as developing rules which capture the purpose of detention and how it should be designed and run.

Brexit and fisheries access – Some Reflections on the UK’s denunciation of the 1964 London Fisheries Convention

Tue, 07/18/2017 - 07:45

Background

On 2 July 2017 the government of the United Kingdom announced its intention to withdraw from the 1964 London Fisheries Convention (LFC). Plans to reshape the UK’s fisheries policy, including a 2017 Fisheries Bill, had already featured in the Queen’s speech on 21 June 2017. The Common Fisheries Policy (CFP) of the European Union has been unpopular with the UK’s fishing industry – and has been widely perceived as one where the UK may have more to gain than to lose by leaving the EU. The UK’s announcement has triggered mixed reactions. Michel Barnier, the EU’s Brexit negotiator, tweeted that it made no difference for the negotiations. Not all EU Member States are, however, fond of the prospect that the UK might use reciprocal fisheries access as leverage in the Brexit negotiations or –in the worst case scenario– close its waters to foreign fishing. Denmark has reportedly built a case against the UK based on “historic fishing rights” dating back to the 1400s, which it claims it could bring before the International Court of Justice (ICJ) if negotiations fail. This post takes a closer look at the implications of the UK’s denunciation of the LFC for Brexit and the question of historic fishing rights.

The LFC, its status, and the UK’s denunciation

The LFC is often cited as one of the first so-called “fisheries access agreements” – a type of treaty by which coastal States grant other States access to a surplus in fisheries within their territorial sea, exclusive economic zone (EEZ) and/or continental shelf (for the EEZ, see also Article 62(2) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS)). The LFC is of historical interest because its States Parties accepted claims to an exclusive fisheries zone (EFZ) of up to 12 nautical miles (nm) instead of a territorial sea of only 3 nm – in exchange for a preservation of “historic fishing rights” in the other States Parties. (Notably, some later fisheries access agreements repeated the procedure of accepting jurisdiction in exchange for fishing rights with regard to the unilateral establishment of the first EEZs.) These treaty-based “historic fishing rights” refer to rights which are not themselves historic (as they were just created by a new treaty), but to rights which depend on some form of past fishing activity as defined by the treaty. The LFC, for example, confers fisheries access rights to States whose fishing vessels have habitually fished in that belt between 1st January, 1953 and 31st December 1962“ (Article 3). Thus, the LFC disregards fishing activity prior to 1953 and fishing activity in areas other than the belt between 6 and 12 nm. Since 1964, any fishing rights exercised by the parties to the LFC were based on that treaty, although historic fishing rights might be argued to exist in parallel under general international law.

The 12 current parties to the LFC are Belgium, Denmark, France, Germany, Ireland, Italy, the Netherlands, Poland, Portugal, Spain, Sweden, and the United Kingdom – all of which are EU Member States. It expressly allows for the establishment of a special régime in matters of fisheries […] as between States Members and Associated States of the European Economic Community“ (Article 10(a)). Such a special régime has been set up within the CFP, currently in Article 5 and Annex I of the basic CFP framework regulation (Regulation (EU) No 1380/2013). Under the CFP, all EU Member States enjoy equal access to fisheries in the joint EU EEZs, subject to the “relative stability” key for quota allocations. However, Member States may exclude their territorial sea from the application of the equal access principle, with the exception that other EU Member States’ “fishing vessels that traditionally fish in those waters from ports on the adjacent coast” may still fish in the area between 6 and 12 nm. These provisions expire by 31 December 2022.

Elimination of the UK’s Historic Fishing Rights

I argue that the CFP has superseded the LFC as lex specialis based on Article 10(a) LFC, and as such, these historic fishing rights derive directly from EU law. Legally, they are entirely separate from the “historic fishing rights” laid down in the LFC. As the UK will no longer be subject to EU law after Brexit (see Article 50(3) of the Treaty on European Union (TEU)), these historic fishing rights will thus cease to exist for the UK.

In a legal opinion commissioned by the Scottish Fishermen’s Federation in 2016, Robin Churchill takes the position that the LFC is in fact no longer in force (paras. 7-13). His arguments are based on Articles 30(3) and 59 of the 1969 Vienna Convention on the Law of Treaties (VCLT) and, broadly speaking, relate to the incompatibility of UNCLOS as a subsequent treaty to the LFC which deals with the same subject matter (see also Article 311(2) UNCLOS). These are interesting legal questions which deserve attention (and I am not sure I fully agree with the outcome), but I will refrain from discussing them here. In any case, the question of whether the LFC is a sleeping or a dead “dinosaur” is now moot with regard to the UK, which notified its denunciation of the LFC in accordance with Article 15 on 3 July 2017. As the Foreign and Commonwealth Office is also the depositary of the LFC, I could not help but notice that it diligently registered the UK’s denunciation notice in the status file the same day. Notably, the denunciation is conditional. It will take effect after the two years period prescribed by Article 15 LFC. If, however, the UK’s withdrawal from the EU pursuant to Article 50 TEU will be completed at a later date, the denunciation will take effect at that later date. For now, Brexit is set to take effect on 29 March 2019 if no agreement is reached until then. The two year period under Article 15 LFC will end in July 2019. Thus, the conditional text of the denunciation notice seems to take into account the possibility of a delayed Brexit. As the historic rights under the LFC are treaty-based, they do not exist independently from the LFC. As such, they will perish when the UK’s denunciation takes effect – as will any fishing rights under the CFP.

Can EU Member States Still Assert Historic Fishing Rights?

So what regime will apply if Brexit and the denunciation of the LFC take effect before the UK and the UK have negotiated a new agreement on reciprocal fisheries access (or if the UK chooses not to do so at all)? And what does this mean for those EU Member States whose vessels have traditionally fished in UK waters? The answer is fairly straightforward. Fisheries access to the UK’s waters will continue to be governed primarily by UNCLOS and –perhaps– historic fishing rights of third States under general international law. I will analyze both these potential sources of EU Member States’ fisheries access rights in turn.

First, coastal States have an obligation under UNCLOS to set an allowable catch and to grant other States EEZ fisheries access if (and only if) they [do] not have the capacity to harvest the entire allowable catch“ themselves (Article 62(2)). As Article 62 is located in Part V, there is no corresponding obligation with regard to the territorial sea. As is also acknowledged in a briefing paper submitted to the House of Commons on 4 July 2017, coastal States are also obliged to take into account, inter alia, the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks“ when they grant EEZ access (Article 62(3)). The wording of that provision confers substantial discretion upon the coastal State.

There is also little in UNCLOS to stop coastal States from setting an allowable catch that exactly matches its fishing capacities. For that reason, one can at best speak of “relative rights” in the context of Article 62(3). If the UK chooses to grant access to other States than the traditionally involved EU Member States in the future, EU Member States could only argue that the UK has acted in bad faith in exercising its discretion. The coastal State’s discretionary decision is, however, excluded from the scope of compulsory dispute settlement under Part XV of UNCLOS (see Article 297(3)(a)) and only subject to conciliation under Annex V (see Article 297(3)(b)(ii)). It may be concluded that EU Member States will have no right to fisheries access to the UK’s territorial sea and EEZ under UNCLOS once the UK has “freed” itself from the CFP and LFC.

Second, EU Member States could try and claim historic fishing rights which have accrued under general international law. In its award on the merits of 12 July 2016, the arbitral tribunal in the South China Sea Arbitration (SCSA) described such historic fishing rights as “any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances” (para. 225). Equally, in its judgment of 1951 in the Fisheries Case (United Kingdom v. Norway), the ICJ had stated that a historic right “must […] be recognized although it constitutes a derogation from the rules in force [and] would otherwise be in conflict with international law” (pps. 130-131). As such, historic rights require “the continuous exercise of the claimed right by the State asserting the claim and acquiescence on the part of other affected States” (SCS Arbitration, para. 265).

As Churchill points out, however, EU Member States had access to the UK’s fisheries based on treaty relationships and vice versa (para. 15). As such access is based on consent rather than acquiescence, it arguably does not give rise to historic rights. This also means that, in order to establish historic fishing rights based on acquiescence, we would have to go back to the time before the entry into force of the LFC. Back then, however, coastal States were only entitled to a territorial sea of 3 nm. Even if a State such as, for example, Denmark could produce sufficient evidence supporting a claim to such traditional fishing rights, these rights would necessarily have been extremely limited in their geographical and substantive scope. Worse even, they might have been extinguished by the LFC given that it did not provide access within 6 nm of the coast.

Finally, most commercial fishing in the EU is nowadays industrial rather than artisanal and few individual fishermen and vessels (as opposed to States) can claim a longstanding tradition of fishing in UK waters. Therefore, any finding on historic fishing rights might potentially also conflict with the SCSA tribunal’s view that “traditional fishing rights extend to artisanal fishing that is carried out largely in keeping with the longstanding practice of the community, […] but not to industrial fishing that departs radically from traditional practices” (para. 798). The nature of the link between traditional fishing rights and artisanal fishing is discussed in more depth by Endalew Lijalem Enyew over at JCLOS Blog.

If one assumes, for the sake of argument, that historic fishing rights existed prior to the entry into force of UNCLOS, the matter becomes more complicated. First, the EEZ is widely considered to have “extinguished” any such rights in the EEZ (Harrison/Morgera, Article 62, in: Proelss, United Nations Convention on the Law of the Sea: A Commentary, 2016, para. 12; SCSA, paras. 243, 804(b)). Second, Churchill contends that this must a fortiori also be the case for the territorial sea as coastal States enjoy sovereignty rather than sovereign rights in this zone (para. 16). However, the arbitral tribunal in the Eritrea/Yemen Arbitration (Phase II, award of 17 December 1999) held that traditional fishing rights do in fact continue to exist in the territorial sea even after the conclusion of UNCLOS (para. 109). This was confirmed by the SCSA tribunal which stated that UNCLOS “continued the existing legal regime largely without change” and which saw “nothing that would suggest that the adoption of [UNCLOS] was intended to alter acquired rights in the territorial sea and conclude[d] that within that zone—in contrast to the exclusive economic zone—established traditional fishing rights remain protected by international law” (para. 804(c)). This outcome is supported by Article 2(3) UNCLOS pursuant to which coastal States exercise their sovereignty in the territorial sea subject to “other rules of international law” (SCSA, para. 808). In my view, this provision would also have accommodated historic fishing rights arising out of the LFC if the UK had not denounced that treaty. In conclusion, in the unlikely event that any historic fishing rights of EU Member States exist in UK waters, they would be restricted to small portions of the UK’s territorial sea. In that case, however, they would be practically irrelevant.

Conclusions and Outlook

This post has argued that with Brexit and the UK’s simultaneous denunciation of the LFC, any fishing rights of EU Member States contained in these instruments will be extinguished. Even without the UK‘s denunciation it would have been unrealistic and wholly impractical to return to applying the LFC to a small territorial sea belt with a breadth of 6 nm. In addition, the EU, which possesses the exclusive competence for the external dimension of the CFP, is not a party to that treaty. It can also be doubted that EU Member States can make a valid case concerning historic fishing rights based on general international law in the UK’s territorial sea and even less so in its EEZ. From a legal point of view, these States may arguably only demand that the UK take their historic fishing activity in its EEZ into account when deciding on fisheries access for third States. There is no legal case to be made if the UK chooses to grant no access to third States at all. That said, fisheries access in European waters is not a one-way street. Both commercial fishing in the EU and the UK would be disrupted in so far as it is currently conducted in each other’s waters. As the EU is the most important market for fish products from the UK, calls to make market access for fish products from UK conditional on reciprocal fishing access carry considerable weight. Beyond these political considerations, there are also obligations to co-operate in the management of both shared and straddling fish stocks (see, respectively, Article 63 UNCLOS and the 1995 United Nations Fish Stocks Agreement). To ignore the nature of these stocks and the importance of these obligations would likely lead to mismanagement and overfishing. Based on all these considerations, a negotiated solution between the UK and the EU that involves some form of reciprocal fisheries access seems to be more likely than not. In order to avoid chaos after Brexit, an agreement on reciprocal fisheries access between the UK and the EU should be negotiated at least provisionally. Where vessels from the UK have been fishing in the waters of third States with which the EU has concluded fisheries access agreements, the UK may also have to consider concluding its own access agreements in the future.

Arbitration Agreement is no Waiver of State Immunity from Jurisdiction for the Purposes of Recognition and Enforcement – Comment on Tatneft v Ukraine in the Russian

Mon, 07/17/2017 - 08:00

In April 2017, the Russia-based PJSC Tatneft initiated against Ukraine the process of recognition and enforcement in Russia of an arbitral award issued in the PCA investment arbitration OAO Tatneft v Ukraine under the UNCITRAL Rules and the Russia-Ukraine BIT. This June, the Commercial Court for the City of Moscow (the court of first instance, hereinafter – “the Court” or “the Russian Court”) dismissed Tatneft’s recognition and enforcement application, inter alia, sustaining Ukraine’s plea of immunity from jurisdiction [see А40-67511/2017 (in Russian)]. This post comments on the part of the Court’s judgment concerning Ukraine’s immunity from jurisdiction.

The Positions of the Parties and the Judgment

Insofar as it is possible to ascertain the crux of the parties’ submissions from the text of the judgment, Ukraine raised two objections to jurisdiction. The first objection was based on Ukraine’s immunity from jurisdiction in the recognition and enforcement proceedings, and the second on the Russian courts’ lack of effective jurisdiction to try the claim due to the absence of Ukraine’s commercial assets in the territory of Russia. This note will concern itself only with the first of the two objections.

In response to Ukraine’s immunity objection, Tatneft argued that Ukraine had waived its immunity from jurisdiction, either:

  1. under Article 5(1) of the Russian State Immunity Act 2015 by assuming the international obligation to accept the award as final and binding and to execute it in conformity with its legislation in Article 9(3) of the Russia-Ukraine BIT; or
  2. under Article 6(2) of the Russian State Immunity Act 2015 by concluding with Tatneft the arbitration agreement as such within the framework of Article 9(2) of the Russia-Ukraine BIT.

It is not clear whether Tatneft has also suggested to locate Ukraine’s waiver in Article 34(2) of the UNCITRAL Rules obliging the parties to accept the award as final and binding and to comply with it [bearing in mind practice of the French courts to a similar effect – see Creighton Limited v Minister of Finance and Minister of Internal Affairs and Agriculture of the Government of the State of Qatar (2000) XXV Yearbook Commercial Arbitration 460].

The relevant provisions of the Russian State Immunity Act 2015 read as follows:

Article 5. Consent of a foreign State to the exercise of jurisdiction by the court of the Russian Federation

  1. A foreign State does not enjoy immunity from jurisdiction in the Russian Federation if it has explicitly consented to the exercise of jurisdiction by the court of the Russian Federation with respect to the dispute at hand in:

1) a treaty;

2) a written agreement, which is not a treaty;

3) a declaration before the court of the Russian Federation, written notification of a court of the Russian Federation, or a written notification handed over to the Russian Federation via the diplomatic channels, within the framework of the process with respect to the dispute at hand.

Article 6. Waiver of immunity from jurisdiction

[…]

  1. A foreign State is deemed to have waived its immunity from jurisdiction regarding the disputes concerning the arbitration agreement, if such a foreign State has entered into an arbitration agreement for the resolution of disputes, which have arisen or which may arise with respect to performance of obligations.

[…]

The Court sustained both of Ukraine’s objections. Insofar as the judgment is concerned with immunity from jurisdiction (as opposed to the lack of effective jurisdiction), the Court held, without much explanation, that Article 9(3) of the Russia-Ukraine BIT was not explicit enough to amount to Ukraine’s waiver of immunity from jurisdiction for the purposes of subsequent recognition and enforcement of the investment arbitration award. The Court added that neither did the arbitration agreement between Tatneft and Ukraine constitute such a waiver.

Unfortunately, the Court did not engage into discussion of the issue whether its rejection of Tatneft’s petition for recognition and enforcement based on Ukraine’s immunity from jurisdiction could violate Tatneft’s right of access to court under Article 6 of the European Convention on Human Rights [Oleynikov v Russia App no 36703/04 (ECHR, 14 March 2013) [54] – [73]] as well as the right to peaceful enjoyment of its possessions under Article 1 Protocol 1 to the same Convention [by implication, Sedelmayer v Germany App nos. 31090/06 30216/06 (ECHR, 10 November 2009)]. Neither did the Court analyse whether such a rejection could violate Russia’s obligation under Article V of the New York Convention for the Recognition and Enforcement of Foreign Arbitral Awards to recognise and enforce arbitral awards subject only to a limited set of exceptions, immunity not being mentioned. Nor was it elaborated whether the rejection of Tatneft’s application could contradict Russia’s obligation under Article 18 of the VCLT not to deprive the UN Convention on Jurisdictional Immunities of States and Their Property signed by Russia without subsequent ratification of its object and purpose. Below I will  examine the points discussed by the Court.

The Analysis

The judgment is explicit in treating recognition and enforcement proceedings as those concerned with immunity from jurisdiction rather than immunity from execution, despite the view taken by the ILC while preparing the Draft Articles on the Jurisdictional Immunities of States and Their Property [Summary record of the 2220th meeting” Yearbook of the ILC (1991, vol I) 88].

As far as the judgment concludes that Article 9(3) of the Russia-Ukraine BIT does not amount to a waiver of immunity from jurisdiction, the judgment is in contrast with the approach accepted by the Supreme Court of Germany in Werner Schneider v Kingdom of Thailand [R Kläger, ‘Werner Schneider (liquidator of Walter Bau AG) v Kingdom of Thailand: Sovereign Immunity in Recognition and Enforcement Proceedings under German Law’ (2014) 29 (1) ICSID Review 142-148]. In this case, the Supreme Court of Germany held that Article 10(2) of the Germany-Thailand BIT providing almost identically with Article 9(3) of the Russia-Ukraine BIT that “[t]he award shall be enforced in accordance with domestic law” amounted to Thailand’s waiver of its immunity from execution, while the State’s waiver of immunity from execution necessarily implied also its waiver of immunity from jurisdiction for the purposes of recognition and enforcement in the German courts, waiver of immunity from execution otherwise being futile.

The Supreme Court of Germany might have read too much into Article 10(2) of the Germany-Thailand BIT, whose reference to “enforce[ment] in accordance with domestic law” could better be understood as a reference inter alia to the principles of State immunity forming part of the relevant State’s legal system. State immunity (whatever is the position taken by the relevant State regarding its absolute or restrictive nature) thereby has itself confirmed rather than waived in Article 10(2) of the Germany-Thailand BIT.

In addition, interpretation of Article 10(2) of the Germany-Thailand BIT as a waiver of immunity from execution will only make sense, if it covers those assets which enjoy immunity disposable by a waiver, ie the assets which do not fall within the default customary exceptions (if any) to the general rule of immunity from execution [see, possibly reflecting customary international law, Article 19(c) of the UN Convention on Jurisdictional Immunities of States and Their Property]. By exclusion, these will be inter alia assets used by the State for sovereign and diplomatic purposes. However, it is rather difficult to imagine that a State might have waived its immunity from execution in a BIT in a manner so blanket that all its foreign assets otherwise enjoying immunity from execution (including those used for sovereign purposes or even enjoying diplomatic immunities) thereby became amenable to seizures.

Moreover, Article 10(2) of the Germany-Thailand BIT is worded remarkably similarly to Articles 54(1) and (3) of the ICSID Convention (surely, with the exception that, unlike the ICSID Convention, the discussed BIT does not equate the rendered awards to judgments of the States-parties to the BIT). According to Article 54(1), “[e]ach Contracting State shall recognize an award rendered pursuant to [ICSID] Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State.” According to Article 54(3), “[e]xecution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.” Still, Article 55 of the ICSID Convention confirms that “[n]othing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.” Then, following the logic of the Supreme Court of Germany in Werner Schneider, if Article 10(2) of the Germany-Thailand BIT, like Articles 54(1) and (3) of the ICSID Convention, does not dispense with immunity from execution of the States-parties to the BIT, neither should it dispense with their immunity from jurisdiction.

Yet, the judgment of the Russian Court does make any attempt to criticise or indeed refer to the judgment of the Supreme Court of Germany in Werner Schneider. This being said, the result of the Court’s attempt to interpret Article 9(3) of the Russia-Ukraine BIT may still be correct.

The Russian Court also interpreted Article 6(2) of the Russian State Immunity Act 2015 as unrelated to the recognition and enforcement proceedings thereby finding that under Russian law an arbitration agreement as such does not constitute a waiver of immunity from jurisdiction for the purposes of subsequent recognition and enforcement of the arbitration award. This is a departure from the trend established by a number of jurisdictions to treat arbitration agreements as the described waivers [B Juratowitch, “Waiver of State Immunity and Enforcement of Arbitral Awards” (2016) 6(2) Asian J Int’l Law 220-230]. However, recalling the judgment of the Hong Kong courts in Democratic Republic of Congo v FG Hemisphere [2011] HKCFA 41, whatever its merit may be, the trend is not an unbroken one. In fact, it is not surprising that the Russian Court in its judgment has followed the position taken by the Hong Kong court (which, in turn, followed the position of Mainland China), be it accidentally or on purpose (the judgment of the Russian Court does not refer explicitly to FG Hemisphere). Russia and China have often endorsed their common understanding of the principle of sovereign equality of nations [See, eg UN Docs A/52/153-S/1997/384 and A/70/982S/2016/600] – a cornerstone of the principle of State immunity [Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) [2012] ICJ Rep 99, 123]. Historically, State practice of Russia has been going hand in hand with that of China [L Mälksoo. Russain Approaches to International Law (OUP 2015) 26]. In the field of State immunity, Russia and China are the two of the handful of States, which maintain that immunity can be denied on the basis of reciprocity (yet, unlike China, Russia has adopted the doctrine of restrictive immunity).

In any event, as a matter of legal principle, for the Russian Court to imply that merely by entering into an arbitration agreement Ukraine waived its immunity from jurisdiction in the courts of all States where the recognition and enforcement proceedings could take place would have contradicted the requirements of both Russian law and customary international law for a waiver to be explicit [Article 5(1) of the Russian State Immunity Act 2015 and, possibly reflecting customary international law, Article 7(1) of the UN Convention on Jurisdictional Immunities of States and Their Property].

Conclusion

The judgment of the Court, if stands on appeal, will present another departure from a trend to consider an arbitration agreement as a waiver of State immunity from jurisdiction for the purposes of subsequent recognition and enforcement of the rendered award, which may put into question the formation of the new custom on the issue.

Forcible “euthanasia”: the ECtHR´s Charlie Gard Decision

Fri, 07/14/2017 - 08:55

When – first in the Netherlands, and later in other countries such as Belgium and Luxembourg – laws were adopted to legalize euthanasia, the selling argument was that this was a decisive step forward in order to ensure everyone’s self-determination. The ECtHR’s recent decision in the case of Gard and Others v. the United Kingdom reveals quite a different reality.

The decision is lengthy and contains a lot of medical terminology, but the underlying facts are simple: a child suffers from a medical condition that the treating doctors qualify as terminal, and for which no recognized treatment exists. Not only for argument’s sake, but also because we really have no reason to believe otherwise, let us assume that that assessment is correct and has been made by experts lege artis. Yet the child’s parents place their desperate last hope in an experimental treatment, which has so far never been tested on human beings (and, to believe what is noted in the ECtHR Decision, not even on animals). That treatment would have to be carried out, either in the UK or the US, by a leading researcher and expert on this kind of therapy, who has declared his willingness to administer it even though he qualifies the chances of success as “theoretical” and, on another occasion, as “unlikely”.

Given the unlikelihood of success, the treating doctors do not lend their support to the new therapy being applied to the child, but instead have filed an application to the competent Court, requesting authorization for life-sustaining treatment (artificial ventilation) to be withdrawn, so that the child might die. The Court granted that authorization. The desperate parents, who (quite bizarrely) were not considered to be the child’s natural representatives in this case, appealed this decision and fought their way up to the UK Supreme Court, but lost in all instances. They then filed an application with the ECtHR, but again remained unsuccessful. The outcome of all these decisions is that all involved law courts, as well as the guardian who had been appointed by the UK Court to supplant the parents in representing the child, are in agreement that it is “in the best interest” of their child not to undergo any further treatment, but to be euthanized.

It appears that in all these decisions a remarkable amount of words is spent on proving a point that nobody has seriously disputed: that “the best interest of the child” should be the paramount consideration. But the parents have never argued that their own interests should prevail over those of the child: this is simply a non-issue. The notion of a “conflict of interest” (see § 67 of the ECtHR’s decision) is apparently misconstrued. It is absurd, and indeed defamatory, to insinuate that the parents in this case are pursuing anything else but what they believe to be in their child’s best interest. They may hold a different view on what this interest comprises, but there is no reason to question their good faith.

Also, there is no dispute on who possesses the better medical expertise. Nobody doubts that the doctors know better than the parents which therapies are, or are not, likely to help. Besides, there appears to be an understanding shared by everyone involved, including the parents, that the chances for the experimental (“nucleoside”) therapy to save the child’s life are, at best, very faint. But the dispute in this case is not about which therapy should be applied – it is about whether any therapy should be applied at all. Even more than that, it is about whether the life-sustaining treatment, which is itself not a therapy but simple care-giving, should be ended.

In short, this is in fact a euthanasia case.

Euthanasia is not a therapy. It is a lifestyle choice. As such, it is contingent on certain moral and philosophical convictions that some people may have, but which others don’t share. Is it a choice that a law court, or a court-appointed guardian, are allowed to impose on someone?

Supporters of liberal euthanasia laws have always pitched euthanasia as a supreme form of self-determination. But this pre-supposes that euthanasia will take place only if the person to be euthanized has expressed a clear and determinate wish to die. It must be a will that is unambiguously expressed by the person itself, not by anyone else. But what has happened in the Charlie Gard case? Very obviously, the child itself has not expressed any will – it is unable to do so, given that it is less than one year old. His parents, if this is of any relevance, have expressed their opposition.

The ECtHR’s landmark case on euthanasia until now was Lambert and Others v. France, which is quoted extensively in the Charlie Gard Decision. The Lambert case was about a man who had fallen into a coma following a motorcycle accident, and whose close relatives were quarrelling whether the life-sustaining treatment should be continued or not. Like in the Gard case, the ECtHR decided that it shouldn’t. But the difference is that in the Lambert case there were claims according which Vincent Lambert, prior to his accident, had allegedly stated that in the (then hypothetical) case of him becoming permanently dependent on intensive care he would prefer to die rather than being kept alive. The Lambert Decision remains highly controversial until today, given that the alleged statements of Vincent Lambert, which some critics doubted he had ever made, provided only a very weak argument for assuming that he actually wanted to be killed. But at least there were allegations, however spurious, that such an statement had been made, which offered some kind of justification, if only a weak one, for claiming that euthanasia was what he wanted.

In the Gard case, by contrast, there is absolutely no claim at all that Charlie, who at the time of writing this is not yet one year old, has ever expressed such a desire. His parents, whom conventional wisdom would suppose to be best placed to speak for him, are clearly opposed to him being euthanized. What is happening here is that the doctors at the hospital, the guardian who has been appointed by the law court, and finally the judges in the UK and at the ECtHR make their decisions on the basis of pure presumptions, substituting their own moral and philosophical opinions for those allegedly held by Charlie: it is in his best interest to be left to die rather than undergo a therapy that in all likelihood will remain unsuccessful. (An interesting question here: how can it be inferred that an 11-months-old child has opinions that differ from those held by the persons whose natural right is to educate him? Is he already so emancipated from them? Is it implied that their education is in fact a dangerous manipulation which would cause him to have different opinions than he “naturally” would have?)

But although the ECtHR Decision makes abundant, if not outright repetitive, references to what it alleges to be “the child’s best interest”, it never comes out quite clearly who made determination and on which basis. No doubt, the experimental therapy that Charlie’s parents want for their child will very likely remain ineffective – there is no reason to doubt this. Yet conventional wisdom would hold that a therapy with a very low likelihood of success is ceteris paribus still better than certain death. The ECtHR Decision gives no hint as to why that should be different in Charlie’s case.

One is thus left to guess. Perhaps the doctors or the guardian believe that the therapy would cause immense pain and suffering to Charlie, and consider that this certain suffering outweighs his uncertain chances of being healed? Or perhaps what they really fear is not that that the therapy would be unsuccessful, but that it would be successful – with the result that Charlie, due to the damage he has already suffered, would be condemned to live a (potentially long) life as a handicapped person in a wheelchair? It never comes out quite clearly. But what does come out clearly even for someone who does not have the same medical expertise as the doctors who believe that Charlie should be euthanized is this value judgment: freedom from suffering is valued higher than life.

This is a very debatable world view, and certainly one that is not shared by everyone. On the basis of which authority can the UK judiciary, or the ECtHR, impose it on Charlie Gard and his parents?

What is striking about this case is that not even an argument is provided. Instead, the ECtHR reduces the “child’s best interest” to a merely formal requirement: the UK court has appointed an expert to be Charlie’s guardian, and he has decided that Charlie, if he could be asked, would want to die. So everything is in best order from a legal point of view, and no further questions must be asked.

This is not only callous, but it is outright absurd. At the hands of the ECtHR, the seemingly benevolent principle of “the child’s best interest” is turned into a weapon against the child and its parents. It is used to prevent a final desperate effort to save the child’s life from being made. It is used to dispossess the parents of their natural rights as parents: those who must be expected to love the child more than anyone else are replaced by a bureaucrat who, even in the best of cases, cannot be expected to have any particular feelings for the child. Indeed, he is praised precisely for this (cf., inter alia, § 65): he has no personal attachment to the child, so he can decide more “objectively”.

With all this I am not saying that in situations such as the one at hand parents are always right, and that States should never intervene to defend a child’s best interest against its own parents. I remember a case in Austria, more than twenty years ago, in which a 9-year-old girl was suffering from kidney cancer, and was treated with chemotherapy. Yet the parents had lost all confidence in classical medicine; they demanded that therapy to be stopped and instead wanted their daughter to be treated by a spurious “miracle healer” without any medical credentials. The public authorities thus suspended their parental rights and appointed a guardian, who decided that the girl should continue to be treated lege artis with chemotherapy. The whole incident then developed into a week-long saga, with the parents kidnapping the daughter from the hospital and bringing her to Spain, from where the family finally was extradited. No doubt the Austrian authorities’ intervention in that case was legitimate, and indeed life-saving. But the situation was different, indeed the very opposite, of the Charlie Gard case: in the Austrian case the dispute was not on whether the girl should receive therapy, but on which therapy it should receive – and there was no doubt that this was a question the doctors were better placed to answer than the parents; in the Charlie Gard case the question was whether Charlie should be given a therapy or be killed.

I also know of another case, one that took place in my own wider family: a young girl was diagnosed with an aggressive form of leukaemia, which at that time (in the early 1970s) was considered incurable. Yet her father had heard of a new therapy that had been developed somewhere abroad (whether in France or the UK I don’t recall), and managed to get his daughter accepted in the test program. And lo and behold, she was healed: she is still alive today, leading a completely normal life. Every new therapy is, at some stage, new and “experimental”. With every new therapy, someone will be the first to whom it is applied, or who is healed by it. This is what they call progress.

Creating International Frameworks for Data Protection: The ICRC/Brussels Privacy Hub Handbook on Data Protection in Humanitarian Action

Thu, 07/13/2017 - 08:00

Introduction

The collection and processing of personally-identifiable data is central to the work of both international organisations working in the humanitarian sector (IHOs) and non-governmental organisations (NGOs) in protecting and delivering essential aid to hundreds of millions of vulnerable individuals. With the increased adoption of new technologies in recent years, and the increased complexity of data flows and the growth in the number of stakeholders involved in the processing, there has been an increasing need for data protection guidelines that IHOs and NGOs can apply in their work. This was highlighted first in the 2013 report by Privacy International entitled: “Aiding Surveillance”, and was also recognised by the International Conference of Privacy and Data Protection Commissioners in its Resolution on Privacy and International Humanitarian Action adopted in Amsterdam in 2015 (Amsterdam Resolution).

This need has led to publication of the new Handbook on Data Protection in Humanitarian Action prepared jointly by the Data Protection Office of the International Committee of the Red Cross (ICRC) and the Brussels Privacy Hub, a research institute of the Vrije Universiteit Brussel (VUB) in Brussels. It has been drafted in consultation with stakeholders from the global data protection and international humanitarian communities, including IHOs and humanitarian practitioners, data protection authorities, academics, NGOs, and experts on relevant topics. The drafting committee for the Handbook also included the Swiss Data Protection Authority; the Office of the European Data Protection Supervisor (EDPS); the French-speaking Association of Data Protection Authorities (AFAPDP); the UN High Commissioner for Refugees (UNHCR); the International Organisation for Migration (IOM); and the International Federation of Red Cross and Red Crescent Societies (IFRC).

Content of the Handbook

The Handbook addresses questions of common concern in the application of data protection in international humanitarian action, and is addressed to staff of IHOs and NGOs who are involved in the processing of personal data, particularly those in charge of advising on and applying data protection standards. It is hoped that it may also prove useful to other parties, such as data protection authorities, private companies, and others involved in international humanitarian action.

Compliance with personal data protection standards requires consideration of the specific scope and purpose of humanitarian activities to provide for the urgent and basic needs of vulnerable individuals. Both data protection and humanitarian action have the dignity of the individual at their core. The Handbook thus regards data protection and international humanitarian action as compatible, complementary to, and supporting each other.

The Handbook recognizes that the right to the protection of personal data is not an absolute right, and should be considered in relation to the overall objective of protecting human life and dignity, and be balanced with other fundamental rights and freedoms, in accordance with the principle of proportionality. For example, it may be necessary to balance, on the one hand, data protection rights with, on the other hand, the objective of ensuring access to and security of victims of armed conflict and other situations of violence. This requires high levels of confidentiality and in certain circumstances limitations on data access rights, as well as historical and humanitarian accountability of stakeholders in humanitarian emergencies, which implies in some cases long-term retention of data. It also recognises, however, that due to the extreme and volatile environment in which humanitarian action often takes place, diligent application of data protection principles is key, and that non-compliance with data protection can have more severe consequences than in non-emergency settings.

The first part of the Handbook deals with basic principles of data protection and their application in the context of humanitarian action. This includes issues such as vulnerability of data subjects and implications for the identification of suitable legal bases for data processing, as well as the difficulties involved identifying clear-cut categories of sensitive data; emergencies and implications on the data protection rights of individuals; data controllers’ responsibilities such as data security, impact assessments, and accountability; and international data sharing.

The second part deals with the use of specific new technologies in the context of international humanitarian action. This includes data analytics and ‘Big Data’; drones and remote sensing; biometrics; cash transfer programming; cloud services; and mobile messaging apps. The Handbook also addresses the use of data protection impact assessments. Specific examples are included to assist readers in applying protection for data processing.

Creating international frameworks for data protection

Data protection is an area of human rights law which is of great and growing concern at an international level, but which lacks a firm, clear-cut legal basis in international law, beyond some important instruments such as the Council of Europe Convention 108.

As the UN General Assembly re-affirmed in its latest resolution on the right to privacy in the digital age issued on 19 December 2016, the right to privacy is protected in international human rights instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. However, as has been discussed previously in EJIL: Talk!, the current legal situation fails to present a clear international framework for data protection, which is closely related to privacy but not synonymous with it, as a separate right.

Just as was the case with the Data Protection Policy of the UN High Commissioner for Refugees (UNHCR) and the ICRC Rules on Personal Data Protection, both published in 2015, the Handbook was inspired by a wide variety of data protection instruments, without being based solely on any single one. These instruments include the 1990 United Nations General Assembly Guidelines for the Regulation of Computerized Personal Data Files adopted by GA Resolution 45/95;the OECD Guidelines (in their 2013 version); the 1981 Council of Europe Convention (Convention 108); and the 2009 Madrid Resolution. Other important instruments have also been taken into account, such as the 1995 EU Directive 95/46; the EU General Data Protection Regulation 2016/679 (GDPR); and the Amsterdam Resolution.

The Handbook’s starting point is the need recognised in the Amsterdam Resolution to provide data protection guidance in the humanitarian sector. It seeks to further the objective of the Amsterdam Resolution to meet the demand for co-operation in the development of guidance expressed by international humanitarian actors, taking into consideration the specificities of their actions and the need for these to be facilitated.

Privileges and immunities of International Organisations

As highlighted in the Amsterdam Resolution, the international community has entrusted specific tasks of a humanitarian nature to certain international organisations. The privileges and immunities they generally enjoy, notably immunity from jurisdiction in countries where they work, ensure they can perform their mandate in full independence. Accordingly, they are responsible for the processing of data according to their own rules, in line with international standards, and subject to the control of and enforcement by their own compliance systems across their work. This is in line with General Assembly Guidelines 1990 referred to above, which apply also to international organisations and require them to designate the authority statutorily competent to supervise the observance of the guidelines.

This consideration is key, since in humanitarian emergencies, the privileges and immunities of an IHO may be the first line of protection for the personal data of vulnerable individuals, particularly in the context of armed conflicts and other situations of violence. This was highlighted also in the Amsterdam Resolution, which states at page 3 that “Humanitarian organizations not benefiting from Privileges and Immunities may come under pressure to provide data collected for humanitarian purposes to authorities wishing to use such data for other purposes (for example control of migration flows and the fight against terrorism). The risk of misuse of data may have a serious impact on data protection rights of displaced persons and can be a detriment to their safety, as well as to humanitarian action more generally”. The Handbook also considers the important implications for the analysis of flows of personal data within, from, and to international organisations.

Conclusions

The Handbook is a response to the growing calls for increased guidance in the application of data protection principles in the area of humanitarian action. Data protection is particularly important in ensuring the application of the humanitarian principle of “do no harm” to new technologies adopted in a humanitarian context. Drafted with input from both communities and taking into account legal frameworks from around the world, the Handbook represents an important step in demonstrating how data protection and humanitarian action can complement each other and mutually strengthen their objective to further the dignity of vulnerable individuals.

Rising Legal Costs Claimed by States in Investor-State Arbitrations: The Test of ‘Reasonableness’ in Philip Morris v. Australia

Wed, 07/12/2017 - 08:00

The Final Award Regarding Costs in Philip Morris v. Australia recently became public this July 2017 (although dated as of 8 March 2017), in (somewhat surprisingly) redacted form, signed by arbitrators Professor Karl Heinz-Bockstiegel (President), Professor Gabrielle Kaufmann-Kohler (Co-Arbitrator) and Professor Donald Mc Rae (Co-Arbitrator). Reasons were not given for the redaction of virtually all monetary amounts from the Final Award Regarding Costs, and the actual numerical figure of costs awarded to Australia was likewise redacted.  The Financial Times reported, however, that legal costs and fees that Australia claimed against Philip Morris will likely run to AUD $50 Million, or approximately USD $37 Million. For sure, according to the redacted Final Award, the figure that Australia claimed as legal costs and fees incurred defending against Philip Morris is much higher than the maximum legal fees and costs that have been claimed by the United States (USD $3 Million) and Canada (USD $4.5 Million) (Final Award Regarding Costs, para. 74.).

Assuming that the reported USD$37 Million/AUD$50 Million claim of Australia for legal costs and fees is correct, these would amount to almost 1% of Philip Morris’ USD $4.2 Billion claim against Australia, quite in contrast to around 1/10 of 1% of legal fees that Russia was ordered to pay (around USD$60 Million in legal fees) in the famous US$50 Billion Yukos arbitration.  Clearly, the alleged Australian US$37 Million claim for legal fees and costs against Philip Morris would be a staggering outlier against a trend observed in the last five years of ICSID arbitrations, where: “a study of ICSID arbitrations concluded between FY2011 and FY2015 reveals that costs incurred, on average, by claimants were US$5,619,261.74, and US$4,954,461.27 by respondents.”  This post examines the Philip Morris v. Australia tribunal’s reasoning on legal costs and fees to identify variables and considerations deemed relevant by the tribunal in reaching its conclusion awarding full costs to Australia (with the caveat that the exact figures of the costs are redacted from the Final Award).  After all, rising legal costs and fees should be a concern for largely self-regulated international lawyers, whose duties of professionalism include “avoiding unnecessary expense or delay” (The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals, Principle 2.3).  

The obvious disproportion of legal costs aside between the Philip Morris v. Australia and Yukos v. Russia cases (and of course factoring in the substantive legal differences between these arbitrations), it is worth looking at the arbitral reasoning behind the acceptance of rising costs claimed in investor-State arbitrations by a State (such as the supposed “higher than the US or Canada maxima” claimed by Australia against Philip Morris), and not just those traditionally sought by investors (where the average costs of litigating investor-State arbitration cases has been reported at around USD$5 million).  The Philip Morris v. Australia tribunal employed a test of ‘reasonableness’ in granting Australia’s claim for legal fees and costs:

“…Taking into account the complexity of issues of domestic and international law relevant in this procedure, particularly for a government team usually not engaged in such disputes, the Tribunal does not consider that any of these costs claimed by the Respondent were unreasonable and should not have been incurred. In making this assessment, the Tribunal also takes into consideration the significant stakes involved in this dispute in respect of Australia’s economic, legal and political framework, and in particular the relevance of the outcome in respect of Australia’s policies in matters of public health.” (Final Award Regarding Costs, para. 100)

To recall, the nearly seven years of proceedings in Philip Morris v. Australia resulted in the dismissal of the claim in the Tribunal’s December 2015 Award on Jurisdiction and Admissibility, which famously found that Philip Morris committed  “abuse of rights” by instituting the arbitration against Australia since “the corporate restructuring by which the Claimant acquired the Australian subsidiaries occurred at a time when there was a reasonable prospect that the dispute would materialise and as it was carried out for the principal, if not sole, purpose of gaining Treaty protection.” (Award on Jurisdiction and Admissibility, para. 588).  Philip Morris did not claim costs, so there was no issue of cost allocation between the parties.

Australia sought reimbursement for the fees and expenses of its expert witnesses and fact witnesses, travel costs, and for the legal expenses incurred for services rendered by “(i) the legal fees for services rendered by Australia’s counsel team, (ii) the legal fees for services rendered by the Australian Government Solicitor (“AGS”), and (iii) the costs of certain legal services provided by the Office of International Law (“OIL”).” (Final Award Regarding Costs, para. 79).  The AGS “does not receive any government funding… [it is] a statutory corporation “operating on a commercial and competitive basis to provide a full range of legal and related services.” Since 1 July 2015 AGS ceased to be a statutory corporation and was consolidated into the Attorney-General’s Department, but “continues to operate on a commercial and competitive basis in the marketplace.” (Final Award Regarding Costs, para. 81), and the AGS lawyers charge in a “fee-for-service” time-billed basis (para. 83.) – a fairly unique arrangement for a statutory corporation that emulates billing arrangements in private law firms.

To determine the ‘reasonableness’ of Australia’s claimed costs, the Philip Morris v. Australia tribunal took into account “jurisprudence in comparable cases, particularly in cases in which governments claimed their costs, as well as, more importantly, the specifics of the case at hand” (Final Award Regarding Costs, para. 96).  The Tribunal explicitly presumed in this case that “the present case has been one in which the volume of work and time involved in the presentation of the Parties’ cases considerably exceeded what is usual in NAFTA and other investment arbitrations.” (Final Award Regarding Costs, para. 98).  The Tribunal noted the preparation of “voluminous Memorials” and “a substantial body of evidence, including several expert opinions on public health”, along with “detailed briefs on key procedural questions” (Final Award Regarding Costs, para. 99).  The Tribunal further stressed that “the present dispute proceeds under the Treaty between Australia and Hong Kong, under which Australia had never been a respondent and for which it had no pre-existing in-house expertise through a pre-constituted legal team familiar with the dispute settlement method and the issues involved. The Tribunal, therefore, considers it justified that the Respondent hired outside counsel to help its own legal team in this procedure. The fees and costs claimed for these outside counsel do not go beyond what is usual in other investment cases and are thus deemed reasonable by this Tribunal.” (Final Award Regarding Costs, para. 100).  Otherwise put, the Tribunal deemed the legal costs and fees claimed by Australia to be reasonable because of the supposedly extraordinary nature and complexity of the case, the fact that Australia became a respondent for the first time in investor-State arbitration and found itself constrained to engage outside counsel.

While one certainly appreciates the Tribunal’s considerations for reasonableness, the inherent subjectivity of these factors obviously punts the issue of self-regulating costs for international lawyers back to States themselves.  Some States, such as Ireland, have transparent procurement rules for retaining external/foreign legal counsels and managing costs. Some States, such as the United States and Canada (as noted by the Philip Morris tribunal), purposely cultivate in-house professional teams  and departments well-equipped to represent their respective States in anticipated international proceedings. However, this is hardly the norm for the rest of the world.  Selection of foreign counsel by public bidding or other forms of procurement can hardly be a uniform practice in all States – some of whom might prefer selection and engagement of foreign counsels to be done outside the procurement process, due to the sensitivity and confidentiality of information involved in inter-State or investor-State arbitrations. Where this is the case – and if States perceive now that investor-State tribunals are likely to award full cost recovery anyway for State respondents as was done here in Philip Morris v. Australia – there may be fewer structural incentives for government decision-makers to manage their legal costs prudently, transparently, and with appropriate fiscal auditing in the course of investor-State arbitrations. In this sense, States may – inadvertently or otherwise – thus be part and parcel of fueling the “arbitration boom” derisively attributed to private sector firms and financiers.

Finally, and well beyond the particulars of the Philip Morris v. Australia case, it is always important to invite scrutiny into States’ uses of public funds in investor-State disputes, especially when one recalls States’ continuing obligations to fulfill economic, social, and cultural rights owed to their populations. While it may rightly be pointed out that States who are respondents to investor claims are duty-bound to defend against the sovereign claim, government decisions on how (or to what costs) the State defends against claims are just as much public policy decisions that involve the use of public funds as many other domestic measures.  These public policy decisions are no less immune from ICESCR compliance requirements owed to State’s domestic constituencies.   In Australia’s case, the system may well have been indeed structurally amenable to incurring that level of legal costs for one investor-State arbitration, but it may not be the same system of incentives or accountability structures for such uses of public funds in other States.

One can thus wonder whether States are as ready to practice ‘austerity’ in managing legal costs when facing international disputes, as they are ready to practice ‘austerity’ when there is an economic crisis draining urgent public funding elsewhere.  There are public policy and fiscal spending priorities to consider when State decision-makers engage foreign counsel to represent them in investor-State arbitrations, and one wonders whether ICESCR/human rights lawyers have considered the issue given the impacts of these cases on public funds. After all, the government decision-makers who make the initial decision to litigate (rather than settle) might not be as mindful of the commitment of public funds, when the conclusion and enforcement of investor-State arbitrations might very well take place after their political terms have expired.  They may be less mindful of any political backlash on fiscal spending for disputes at the outset as they are with the political need to defend the State from the claim, and thus ‘pass the buck’ (pun intended) by the time legal fees and costs fall due at the costs recovery phase of the arbitration.

For these reasons, domestic populations should also be mindful of the legal costs that their States may incur in sovereign representation, especially when these are not disclosed for public auditing. As the Organization for Economic Cooperation and Development reported in 2013 (OECD 2013 Report):

“(i) costs are high and some reform efforts are underway to try to reduce them; and

(ii) rules for allocating these costs among the parties are very flexible and are a source of uncertainty for both claimants and respondents.

….legal and arbitration costs for the parties in recent ISDS cases have averaged over USD 8 million with costs exceeding USD 30 million in some cases….

The largest cost component is the fees and expenses incurred by each party for its legal counsel and experts. They are estimated to average about 82% of the total costs of a case. Arbitrator fees average about 16% of costs. Institutional costs payable to organisations that administer the arbitration and provide secretariat services – such as ICSID, the Permanent Court of Arbitration (PCA), or the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) – are low in relative terms, generally amounting to about 2% of costs.” (OECD 2013 Report, p. 19).

At the very least, given the uncertain subjective test of ‘reasonableness’ for legal costs that were articulated by the Philip Morris v. Australia tribunal,  it does not appear that States’ risk appetites for incurring these costs would be easily constrained by current norms of international investment law.  It is up to vigilant State constituencies to ensure their States’ fiscally prudent use of the services of international counsels.

The NotPetya Cyber Operation as a Case Study of International Law

Tue, 07/11/2017 - 09:00

The recent “NotPetya” cyber-operation illustrates the complexity of applying international law to factually ambiguous cyber scenarios. Manifestations of NotPetya began to surface on 27 June when a major Ukrainian bank reported a sustained operation against its network. The Ukrainian Minister of Infrastructure soon announced ‘an ongoing and massive attack everywhere’.  By the following day, NotPetya’s impact was global, affecting, inter alia, government agencies, shipping companies, power providers, and healthcare providers. However, there are no reports of NotPetya causing deaths or injuries.

Cybersecurity experts have concluded that despite being initially characterized as a ransomware attack similar to WannaCry and Petya, NotPetya was directed at specific systems with a purpose of ‘causing economic losses, sowing chaos, or perhaps testing attack capabilities or showing own power’. Additionally, most agree that Ukraine was the target of the operation, which bled over into other States. The key question, however, is the identity of the attacker. NATO Cooperative Cyber Defence Centre of Excellence experts have opined that ‘NotPetya was probably launched by a state actor or a non-state actor with support or approval from a state.’

Although the facts are less than definitively established, the EJIL: Talk! editors have asked us to analyse the incident on the assumption that it is factually and legally attributable to a State.  We begin with a peacetime international law survey and conclude with an international humanitarian law (IHL) analysis.  Our approach tracks that recently laid out in an article designed to operationalize Tallinn Manual 2.0.

Peacetime Law

Assuming away the existence of an international armed conflict solely for the sake of discussion, the question is whether any State behind NotPetya has committed an international wrongful act, which the ILC’s Articles on State Responsibility (ASR) define as an action or omission attributable to a State that breaches an international law obligation owed another State.  The most likely bases for attribution of NotPetya, set forth in Articles 4 and 8 respectively, are that organs of a State, such as the armed forces or intelligence agencies, or non-State actors under a State’s ‘instruction or direction or control’, conducted the operation.

As we have been asked to assume attribution, the crux of the matter is the requirement that an obligation have been breached.  Three are relevant here: respect for sovereignty, the principle of non-intervention, and the prohibition on the use of force.

Sovereignty: Breaches of the obligation to respect a State’s sovereignty primarily occur in two ways: violations of territorial integrity and interference with inherently governmental functions.  Territorial integrity is violated when remote cyber means are used to cause physical damage to public or private cyber infrastructure (or injury to persons) in another State.  Increasingly, operations significantly affecting the functionality of cyber infrastructure (for instance, as in requiring repair or replacement of hardware or recreation of data essential for the operation of bespoke system) are also characterized, correctly in our opinion, as violating sovereignty. The available facts are limited as to the length and reversibility of the various losses of functionality caused by NotPetya, making a determination on the question premature.

The law is unsettled as to lesser effects, such as permanently denying access to data or causing cyber infrastructure to operate in an unintended manner.  We are of the view that these effects do breach the obligation to respect sovereignty.  Since NotPetya seriously degraded or blocked the capability of cyber infrastructure in a manner exceeding that of temporary denial of service, the operation violated the sovereignty of those States where that infrastructure was located.

Cyber operations also violate sovereignty when they interfere with or usurp another State’s inherently governmental functions, irrespective of whether or where damage or injury results.  Most of the NotPetya effects did not qualify on this basis.  For instance, the impact on the Ukrainian banking system did not because banks are typically private and thus the function is not inherently governmental. However, the effects on government ministries may have qualified depending on whether the services interfered with fall within the exclusive competency of States.

Non-intervention: Breach of the principle of non-intervention requires coercive activities by or attributable to a State with respect to the domaine réservé of another State.  The domaine réservé comprises those activities left to States by international law, the classic examples, cited by the ICJ in its Nicaragua judgment, being the ‘choice of political, economic, social, and cultural system, and the formulation of foreign policy’.  Given its impact on government ministries, NotPetya may have affected the domaine réservé of one or more States; additional information would be useful in this regard.  Although ransomware is a paradigmatic means of cyber coercion, the paucity of evidence as to the motivations underlying NotPetya make it difficult to label the operation coercive. That said, unlawful uses of force, discussed below, are considered to be per se coercive interventions.

Use of Force:  Peacetime uses of force by a State against another State that either have not been authorized or mandated by the UN Security Council or do not qualify as self or collective defence are internationally wrongful acts. Cyber operations causing more than minor injury or physical damage are incontrovertibly uses of force.  There is no evidence that NotPetya caused such consequences.  Operations resulting in permanent or extended loss of cyber functionality also rise, in our view, to the level of a use of force, but, as noted, the available facts on this issue vis-à-vis NotPetya are sketchy.  There is a growing sense that non-destructive cyber operations, such as those causing wide-spread economic destabilization, amount to uses of force.  While NotPetya’s pervasiveness with respect to Ukraine might have reached this level, the lack of clear State practice and opinio juris on the matter precludes definitive conclusions along these lines.

International Humanitarian Law

Applicability: IHL applies during armed conflicts. An international armed conflict (IAC) exists when hostilities between two States occur or when one State partially occupies territory of another, even when there is no resistance to the occupation.  It also occurs when a State is in ‘overall control’ of a non-State group that engages in hostilities against another State.  Of particular resonance in the NotPetya case is the fact that Ukraine and Russia are parties to an IAC in light of both the ongoing hostilities in eastern Ukraine that periodically involve Russian forces and the belligerent occupation of Crimea. Although the recent failure of the UN Group of Governmental Experts dealing with cyber norms was based in part on an unwillingness of some States to expressly acknowledge IHL’s applicability to cyber operations, our view, one shared by the ICRC, is that IHL governs any cyber operations having a nexus to an armed conflict. IHL plainly applies to cyber operations with a nexus to the IAC between Russia and Ukraine.

If a State launched NotPetya, Russia is the most likely suspect.  Indeed, the Ukrainian state security service has suggested Russian involvement in NotPetya. However, solely for the sake of discussion, assume another State was behind the operation.  The existence of an IAC on the basis of NotPetya and therefore IHL’s applicability, would depend on whether the operation constituted ‘hostilities’, a term Tallinn Manual 2.0 defines as ‘the collective application of means and methods of warfare’.  In our view, cyber operations rising to the level of an ‘attack’, as that term is understood in IHL, always qualify as hostilities.  Whether other operations do is unsettled in law.

Cyber operations that result in physical damage, injury, or death obviously constitute an attack. A cyber-operation directed against cyber infrastructure that causes no damage to the system itself is also an attack if it indirectly causes damage or injury, as in the case of manipulating air traffic control signals such that planes crash.  The majority of the Tallinn Manual 2.0 International Group of Experts also concluded that the loss of functionality equates to damage.  While other experts would draw the line still lower, there appears to be widespread consensus that, at least, cyber operations that injure or damage, including through functionality loss, qualify as attacks.  There being no definitive reports that NotPetya caused this level of damage, if a State other than Russia was behind the operation, then no IAC between the offending state and Ukraine was initiated by NotPetya.

Targeting Law

In addition to aiding in the determination of when hostilities have broken out, IHL conduct of hostilities rules are typically expressed in terms of ‘attacks’. Therefore, assuming Russia initiated NotPetya, most IHL rules governing targeting did not apply.  However, it must be remembered that a cyber operation that fails to cause the requisite effects is nevertheless an attack if it foreseeably would have done so, but was not yet activated (as in the case of time-delayed malware), was successfully intercepted, or fortuitously did not cause the foreseeable qualifying consequences. In the NotPetya operation, for instance, targets included the power grid, the Kiev airport, Ukrainian healthcare networks, and monitoring systems at Chernobyl.  If it was foreseeable that the operation risked injury or damage (a case-specific determination), NotPetya qualified as an attack to which the rules surveyed below apply.  Although the facts are too limited to make a definitive assesment, for the sake of illustrative analysis we will proceed as if the operation rose to the level of an attack.

By the principle of distinction, cyber attacks may not target civilians or civilian objects, the latter negatively defined as objects that are not military objectives.  Military objectives are objects ‘which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.

Although certain types of cyber infrastructure affected by NotPetya sometimes qualify as dual-use targets based on the fact that they are in part used for military purposes (notably power grids and airfields), there is no evidence to suggest that their targeting in this case offered any military advantage. Other entities that were attacked, like banks, media organizations, and civilian healthcare networks, would only in rare cases qualify as military objectives.  This being so, and assuming for the sake of analysis that the operation had qualified as an attack, NotPetya violated the prohibition on attacking civilian objects and, indeed, amounted to a war crime.

It is also prohibited to conduct cyber attacks in an indiscriminate manner, that is, one that pays no heed to the distinction between lawful targets and protected objects. Even had it not been employed against specific civilian targets, the NotPetya malware was used indiscriminately, as evidenced by the widespread effects on civilian infrastructure and the fact that said damage did not result from attack on a lawful military objective.

It should be noted that even if the NotPetya operation did not qualify as an attack, IHL requires that parties to the conflict exercise ‘constant care’ to ‘spare’ the civilian population in the conduct of their military operations, including cyber operations.  To the extent NotPetya has a nexus to the conflict, it breached this obligation.  Moreover, the effects on Ukrainian healthcare networks (the requirement does not attach to those in neutral countries) implicate the requirement to ‘respect and protect’ medical units of a party to the conflict.  A cyber operation that degrades a healthcare network and thus interferes with the delivery of patient care runs afoul of this protection.

During an IAC, cyber operations affecting neutral States are further subject to the law of neutrality.  When effects of a belligerent cyber operation bleed-over into neutral territory, are foreseeable ,and rise above the de minimis threshold, the operation in question is arguably a violation of the neutral State’s rights.  Given the widespread and significant effects on non-Ukrainian cyber infrastructure, it the NotPetya operation likely violated the law of neutrality.

Finally, weapons employed during an armed conflict must be lawful per se, irrespective of how they are used.  Tallinn Manual 2.0 defines cyber weapons as ‘cyber means of warfare that are used, designed, or intended to be used to cause injury to, or death of, persons or damage to, or destruction of, objects, that is, that result in the consequences required for qualification of a cyber operation as an attack’.  Cyber weapons that cannot be directed at specific military objectives or that are susceptible to striking military objectives and civilian objects without distinction are prohibited as indiscriminate.  In our view, and assuming it is foreseeably and likely risks causing consequences at the attack level, the NotPetya malware appears to cross the line, as evidenced by its effects on cyber infrastructure beyond Ukraine, as well as presumably untargeted infrastructure within Ukraine.

 

Composition of the Bench in ICJ Advisory Proceedings: Implications for the Chagos Islands case.

Mon, 07/10/2017 - 12:30

In our previous post we discussed the prospects of the International Court of Justice giving an Advisory Opinion, as requested by the UN General Assembly, on the matter of the separation of the Chagos Archipelago from the territory of Mauritius that was granted independence from the UK in 1968. We focused on whether the ICJ would be likely to refuse to render an Advisory Opinion because the request might be seen as seeking to circumvent the principle of consent. We explained how the ICJ has reinterpreted the principle of consent as it applies to advisory opinions and how the Court has stressed that as an organ of the UN it would not ordinarily refuse a request for an advisory opinion which the requesting organ deems of assistance for the proper exercise of its functions. In deciding whether to give the opinion, the Court will have to consider whether the proceedings relate to a purely bilateral dispute between two states.

Against this background, it is worth considering what the bench will look like if those proceedings touch on a legal question actually pending between two states. At least two questions arise here. First, may judges who have been involved in the related legal disputes between Mauritius and the UK sit in the advisory opinion? Second, may a state that is involved in a dispute that is related to the question put to the Court appoint a Judge ad hoc to the Bench? The first question arises because two of the current Judges of the Court took part, between 2010 and 2015, in an international arbitration under Annex VII of the UN Convention of the Law of the Sea brought by Mauritius against the UK regarding the Chagos Archipelago (Chagos Marine Protected Area Arbitration). Judge Greenwood was appointed to the Tribunal by the UK (and was indeed challenged by Mauritius, see the Reasoned Decision on Challenge (2011)), while Judge Crawford was, before his election to the ICJ, Counsel for Mauritius in that case.

Have members of the Court previously taken part in the case?

According to Article 17(2) of the ICJ Statute:

‘no member may participate in the decision of any case in which [s]he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity’ (emphasis added).

Any doubt on this point is settled by the decision of the Court in accordance with 17(3) of the Statute and Art. 34 of the ICJ Rules. This is a common sense provision and there can be no argument as to the wisdom of the principle which underlies it. However, application of this apparently simple rule is not so easy when one considers what is meant by ‘any case’ in which the Judge may not have taken part previously. In the Chagos Archipelago advisory proceedings, are Judges Crawford and Greenwood to be considered as having taken part as counsel for one of the parties and as a member of an international court, respectively, in the case?

‘Any case’ in Article 17(2) seems to refer to the same case currently pending before the Court. Judging ‘sameness’ by means of the triple identity test normally used for lis pendens and res judicata (identity of parties and identity of subject matter and/or cause of action) would mean that part of the provision is rendered almost meaningless. If that test were applied, a member of the Court could only be deemed to have taken part previously in a case currently pending before the ICJ ‘as a member of a national or international court’, if the case decided by the national or international court happened to have reached the ICJ by way of appeal, which is of course extremely unlikely (though previously possible in the limited cases of ICJ review of judgments by administrative tribunals dealing with employment cases, and in the case of appeals from the ICAO Council).

This means that there will have to be some laxer test of ‘sameness’ that needs to be employed. This is confirmed by practice since the days of the PCIJ. In Lotus, for example, the Registrar sought confirmation from Turkey that the Judge ad hoc appointed by Turkey had not taken part in the case concerning the collision of the vessels or the criminal proceedings against the appropriately named Lieutenant Demons of the Lotus (the Judge ad hoc being at the time the President of the Civil Court of Istanbul). In the Case concerning the Arbitral Award of 31 July 1989 a Judge who had taken part in the arbitral proceedings that were the subject of the case recused himself. Notably, however, so did also a Judge who had chaired a commission of inquiry on matters potentially relevant to Phosphate Lands in Nauru. Other Judges have recused themselves on broader grounds, as they are allowed to do under Article 24(1) of the Statute, which provides for some degree of self-regulation by the members of the Court.

Article 24(1) provides that ‘if, for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, he shall so inform the President’; while 24(2) empowers the President to give notice to a member of the Court that ‘the President considers that for some special reason [that member of the Court] should not sit in a particular case’. In case of disagreement between the relevant member of the Court and the President, this will be settled by the decision of the Court in accordance with 24(3). It is the practice of the Court not to strictly differentiate between this provision and that of Article 17: both or either are referred to on occasion, and it is generally accepted that Article 24 does not exclusively refer to issues not covered by Article 17. Interestingly, Article 34 of the Rules of the Court refers to both provisions in one breath.

There is no direct ‘challenge’ that a state may raise regarding the participation of a Judge, though the right of a state to raise the issue is recognised by the Rules of the Court: Article 34(2) of the Rules allows ‘a party’ to confidentially bring relevant matters (‘facts which it considers to be of possible relevance to the application of the provisions of the Statute mentioned in the previous paragraph, but which it believes may not be known to the Court’) to the attention of the President of the Court. Judges have been ‘challenged’ in advisory proceedings before, despite Article 34(2) of the Rules referring to ‘a party’ (of which of course there are none in Advisory proceedings). Judge Elaraby was ‘challenged’ by Israel in the context of the Wall Advisory Opinion, while ‘challenges’ to three Judges were raised also in the context of the Namibia Advisory Opinion by South Africa. In each of these cases the Court decided that the Judges in question had not ‘taken part in the case’, in particular in the context of expressing opinions as representatives of their states in other UN organs.

What emerges from this practice has been usefully summarized by the current Registrar of the Court, Philippe Couvreur, in his commentary to Article 17 of the ICJ Statute (in Zimmermann et al, The Statute of the International Court of Justice: A Commentary (2013) MN 21):

‘[U]ncertainties […] have always arisen in connection with the difficulty of assessing a specific situation in the light of the relatively imprecise language of para. 2 (‘taken part … in any other capacity’). [T]he evidence would seem to suggest that, in order for this paragraph to apply, there must have been ‘participation’ by the individual concerned in ‘the case’ as such, in the sense of a legal dispute, and not merely in the discussion of related issues such as the background circumstances of the dispute or of the applicable rules, and personal and direct participation, involving the expression, in some form or another, of an opinion on the issues posed in the case in question.’ (emphasis added)

So the ‘case’ referred to in Article 17(2) does not have to be the ‘same’ case in terms of a strict triple identity test. Participation in a relevant case, in the sense of direct participation in a legal dispute before a court or a commission of inquiry (and perhaps other methods of dispute settlement—viz ‘in any other capacity’), seems to suffice for Article 17(2) to come into play. Clearly, the cause of action need not be the same. Also, since Article 17(2) refers to national courts, it would seem to be the case that the parties to previous ‘case’ need not be the same as the parties to the inter-state ‘case’ at the ICJ. However, it would appear that the relevant legal dispute must be the same, in the sense that the ‘case’ before the court must raise sufficiently similar issues of law and fact.

Judges Greenwood and Crawford would seem to have participated in ‘a case’ where at least a part of the legal dispute overlaps with the legal questions raised by the advisory opinion requested. Notably, the first claim in the Chagos MPA arbitration was whether the UK was a coastal state with respect to the Chagos Islands, and thus indirectly, but necessarily, raised the issue of whether the UK had sovereignty over the archipelagos. Similarly, the question addressed to the Court by the General Assembly is essentially whether the UK lawfully administers the Chagos Islands and what legal consequences flow from such administration. The question is not identical in terms of subject matter, but it is very close to being so. But there is clearly no identity of parties (as there are no parties in an advisory proceeding), or of cause of action (in fact there is no action). It remains to be seen how the two Judges, and the Court, will deal with this issue.

Appointment of Judges ad hoc

There is one more question relating to the composition of the bench that remains to be addressed: it is the question of Judges ad hoc. The issue would not arise with respect to the UK should Judge Greenwood remain on the bench, but it will arise with respect to Mauritius, who may wish to appoint a Judge ad hoc.

According to Article 68 of the Statute:

‘[i]n the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable’.

The Court has indeed recognised the provisions of Article 31(2) ff of the Statute, which refer to the appointment of Judges ad hoc, to be so applicable in advisory proceedings. Article 102 of the Rules provides in its paragraph 3:

‘When an advisory opinion is requested upon a legal question actually pending between two or more States, Article 31 of the Statute shall apply, as also the provisions of these Rules concerning the application of that Article’ (emphasis added).

Note the subtle wording of the relevant rule, that does not refer to a ‘dispute’ actually pending between states (and cf Eastern Carelia), but rather to a ‘legal question’, though the Court itself has referred on occasion to a ‘dispute’ with which the Advisory Opinion ‘is connected’.

The practice of the Court has not been very consistent with recognising that a particular advisory opinion is requested ‘upon a legal question actually pending between two or more states’, and thus allowing the appointment of Judges ad hoc in advisory proceedings. Notably it refused to do so with respect to South Africa in Namibia, and with respect to Mauritania in Western Sahara, though in that latter case it did allow the appointment of a Judge ad hoc by Morocco, while a Spanish Judge was already on the Bench. Thus far, Western Sahara is the only advisory proceeding where the ICJ has permitted the appointment of a Judge ad hoc. However, the PCIJ did permit such an appointment in several advisory proceedings, though also refusing to do so in other proceedings (see this piece by Eduardo Jiménez de Aréchaga).

If one, for now, sets aside the Court’s inconsistent jurisprudence, it would seem to be the case that the advisory proceedings regarding the Chagos Archipelago touch upon a legal question, even a dispute, actually pending between the UK and Mauritius. This would mean that the Court should allow the appointment of Judge(s) ad hoc, if of course the relevant states so request. However, whether the relevant states would wish to make the request is itself an interesting question. In some ICJ advisory proceedings where there was arguably a legal question pending between two or more participants in the proceedings, such as the Wall Advisory Opinion, the relevant participants did not seek the appointment of a Judge ad hoc. The question faced by Mauritius is one of litigation tactics/strategy. For Mauritius, the state that does not have a judge of its nationality on the bench, to argue that it wishes to appoint a Judge ad hoc is to admit that there is a legal question pending between it and the UK. However, that then comes close to admitting the proceedings relate to a bilateral dispute between it and the UK, the very argument it would be seeking to reject when it argues that the Court should exercise its discretion to hear the advisory proceedings. For the UK, the question of a Judge ad hoc only rises should Judge Greenwood not be involved in deciding on the advisory opinion.

New Issue of EJIL (Vol. 28 (2017) No. 2) – Published

Mon, 07/10/2017 - 10:30

The latest issue of the European Journal of International Law (Vol. 28 (2017) No. 2) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Niels Petersen’s The International Court of Justice and the Judicial Politics of Identifying Customary International Law. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Announcements: New additions to the UN Audiovisual Library of International Law; BIICL Public International Law in Practice Course; CfP International Investment Treaties and National Governance Asia Focus

Sun, 07/09/2017 - 10:00

New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Antony Anghie on “History and International Law” and “Third World Approaches to International Law” as well as by Professor Fabio Morosini on “The Promotion of Health and Environmental Policies in the Jurisprudence of the WTO”.

BIICL Public International Law in Practice Course. Public International Law in Practice is a dynamic course of applied public international law run by the British Institute of International and Comparative Law from 18-19 September 2017, at Charles Clore House, 17 Russell Square, London WC1B 5JP. The two-day programme is focused on current developments in public international law and their application in national and international litigation, in governmental and international policy-making and in international legal and diplomatic practice. Led by many of the Institute’s leading researchers and practitioners, the course is designed to give a concise introduction to key issues across a broad range of areas of public international law – from the nature of international law to international law in armed conflict, from human rights to international investment law. Find out more and book online here.

Call for Papers: International Investment Treaties and National Governance Asia Focus. The Centre for International Law at the National University of Singapore is pleased to announce a call for papers for a workshop, entitled “International Investment Treaties and National Governance”, which shall take place on 16 -17 November 2017 in Singapore at the Centre for International Law at the National University of Singapore. This workshop is concerned with examining the effects of international investment treaties on national governance. The workshop focuses on Asian countries, including (but not necessarily limited to) Indonesia, Malaysia, Myanmar, Philippines, Singapore, South Korea, Sri Lanka and Vietnam. Please submit a 1-page abstract (no more than 500 words) of the paper you plan to present to cilayel {at} nus.edu(.)sg var mailNode = document.getElementById('emob-pvynlry@ahf.rqh.ft-13'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%69%6C%61%79%65%6C%40%6E%75%73%2E%65%64%75%2E%73%67"); tNode = document.createTextNode("cilayel {at} nus.edu(.)sg"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pvynlry@ahf.rqh.ft-13"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by no later than 31 July 2017. Travel and accommodation will be provided for selected presenters traveling to Singapore. For colleagues wishing to attend the workshop without presenting a paper, registration is open too. The call for papers is available here. For further inquiries, please contact Dr. Ayelet Berman (cilayel {at} nus.edu(.)sg var mailNode = document.getElementById('emob-pvynlry@ahf.rqh.ft-13'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%69%6C%61%79%65%6C%40%6E%75%73%2E%65%64%75%2E%73%67"); tNode = document.createTextNode("cilayel {at} nus.edu(.)sg"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pvynlry@ahf.rqh.ft-13"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).

The Dissent in Bayev and Others v. Russia: A Window into an Illiberal World View

Fri, 07/07/2017 - 08:00

A previous post discussed the majority opinion in Bayev and Others v. Russia, where the ECtHR found that Russia’s anti-gay propaganda law violated the European Convention on Human Rights. I want to focus on the dissent. While the majority is important for its legal impact, the dissent is important for the window it provides into a non-Western world view. The previous post discusses the facts of the case, so I will dive right in.

One may dismiss a lone dissenter, especially one who decided in favor of the country he is from, but Judge Dedov shouldn’t be dismissed so quickly. Dedov didn’t dissent out of a bias in favor of his country, but from a fundamentally different world view than that of the Western judges. His world view isn’t isolated to Russia. I have been doing human rights work for the last few years in Armenia, and his views on LGBT people are shared by the majority in Armenia, if not by Eastern Europe generally. This view is part of the cultural divide between the “decadent West” and the “traditional East”. His dissent is significant because it may be the most thorough and rigorous articulation of the illiberal narrative.

The Majority and the Dissent

Legally speaking, the majority’s opinion was almost exclusively a question of whether there was a violation of Article 10 (freedom of expression), with the bulk of the opinion finding an unjustified interference. Having found a violation due to the anti-gay propaganda law being an instance of “predisposed bias”, the majority spends only six scant paragraphs before determining there was also a violation of Article 14 (non-discrimination) in conjunction with Article 10.

Judge Dedov took a completely different tact. The gist of his dissent is that the situation involves a balancing of rights. Superficially, his reasoning seems defensible:

  • First, Article 8’s respect for private and family life contains positive obligations.
  • Second, States should enjoy a wide margin of appreciation in respect to public morals and decency.
  • Third, the Court has encouraged states to combat child sexual abuse, including “the forcible informing of children without their desire or consent, in any form, about sex in general”
  • Thus, the right to freedom of expression conflicts with the duty to respect the private life of children. States must balance those two obligations. Russia’s anti-gay propaganda law attempts to balance them and falls within Russia’s margin of appreciation.

But that legal defensibility rests on facts that are indefensible to the Western mentality. The judge’s bias is obvious from his statements that exposing children to the mere existence of homosexuality could make them “interested in […] homosexual relations” or that the purpose of the demonstrations was “to raise awareness of non-traditional sex, thus making children more vulnerable to sexual abuse”. Even his legal reasoning is suspect in places, such as how he attempts to use Article 28 of the Convention on the Rights of the Child (children’s right to education) to say that children shouldn’t be “obtaining information about sex from the applicants’ posters in the street.”

Viewing Dedov’s arguments in the best light possible, children’s extreme vulnerability requires parents—and consequently the State—to be vigilant. The State is a central player as it is needed to protect children when parents are not able to.

There are similarities between the dissent and Western arguments against homosexuality, but they diverge on the issue of individual liberty. Some of Dedov’s points are the same ones conservatives used in the landmark 2013 case of United States v. Windsor that found unconstitutional a federal definition of marriage as only between a man and woman (e.g., both discuss the benefit to society that heterosexual couples provide through procreation). However, conservatives in the US, no matter how anti-LGBT, are staunchly in favor of individual liberty (Marko Milanovic has commented on how Western States’ embrace of liberty requires them to justify restricting same-sex marriage). That is not the case in many Eastern European countries. The more homogenous and communitarian the culture, the more the populace is willing—and often wants—to impose legal restrictions on individual liberty knowing the weight will fall hardest on LGBT people.

Human Rights as a Yardstick

Entering this moral and cultural flash point is human rights. Human rights is a tool to assess States’ treatment of individuals, especially minorities. Detractors claim that human rights is an unprincipled weapon wielded by liberals to support their political agenda. This view is incorrect. Understanding the role of human rights requires taking a step back to see its grounding.

Human rights is ultimately based in law, and law is objective. One party’s interpretation is ultimately right and the other’s wrong. Human rights is more controversial than most fields of law because its moral underpinnings and social implications are much more visible. Not everyone’s morality can be made to comply with human rights, and some will be upset.

Human rights is also universal. With universality, it’s unquestionable that an objective standard is bound to conflict with local views. This imposition by international law is nothing new; a similar development happened in international investment law when an international minimum standard of treatment trumped competing concepts like the Calvo Doctrine.

Thus, human rights gives us a universal, objective standard.  This is hardly a startling statement as anything else would make it impossible to legally apply human rights. A universal, objective standard doesn’t sit well with illiberals. At best, illiberals are political relativists with a touch of ethnonationalism (“What works for your country is fine, but our country and traditions are different; we’ll decide what works for us”). A universal, objective standard is diametrically opposed to this world view. Even worse for illiberals, a universal, objective standard allows outsiders to judge domestic policies, including the treatment of minorities.

Illiberalism’s Indefensibility

Tradition is a significant source of policy for illiberals. For traditional cultures like in Eastern Europe, being pro-family means being anti-LGBT. One flows from the other because homosexuality is viewed as a direct attack on the traditional family. It’s unsurprising that laws are developed to support this popular view.

Tradition, for all its benefits, is rarely reasoned. Reliance on tradition is not only a logical fallacy but is not an argument one can make in a human rights court. The defense of that world view needs a post hoc justification made up of alternative arguments and alternative facts. This façade of legitimacy may work for political sound bites but cannot hold up to scrutiny.

The value of the ECtHR and other international courts in today’s world of competing narratives and disputed facts is to be the bodies that rigorously apply an objective standard. The majority in Bayev didn’t ignore Russia’s perspective; the majority gave it the scrutiny it deserved. Russia’s defense was based in part on the idea that “a minor could be enticed into ‘[a] homosexual lifestyle’”—a point repeated in Dedov’s dissent—which the majority rightfully rejected due to the view “lacking any evidentiary basis”.

On My Way Out – Advice to Young Scholars V: Writing References

Thu, 07/06/2017 - 08:00

I have most certainly reached the final phase of my academic and professional career and as I look back I want to offer, for what it is worth, some dos and don’ts on different topics to younger scholars in the early phases of theirs. This is the fifth instalment and regards that staple of academic life: writing references.

If you are at the beginning of your career as a teacher it is likely that until now you have mostly been the recipient of references rather than the writer of such. Let us separate the writing of references for entry-level candidates seeking an initial teaching appointment or for colleagues in the process of tenure or promotion from references for students seeking admission to graduate programmes, which is likely to be the bulk of your reference writing. I do write references from time to time – though, as you will see, I am quite circumspect in accepting to do so. But since I have, throughout my career in the United States, been involved almost without interruption in the direction of graduate programmes at three major universities (Michigan, Harvard and NYU) I must have read – no exaggeration here – thousands of reference letters for potential masters’, doctoral and postdoctoral candidates. And though you are likely to think that the following is hyperbole, I will state here too, with no exaggeration, that a very large number of these references were worthless or close to worthless.

The following is a generalization, meaning that there are plenty of exceptions, but academic (and public life) culture are hugely impactful in determining the quality of a reference. In many Continental European countries and in many Asian countries – some more, some less, there are also North–South variations – it appears that who writes the reference seems to be more important than the content of such. Applicants will go to great lengths to receive a reference not from the Assistant, or Privatdozent or Maître de Conference etc. with whom there may have actually been a much closer intellectual and academic relationship but from a ‘famous’ professor or judge on the Supreme or Constitutional Court and not infrequently even ministers and the like. It must be a spillover from a more general culture of the labour market. Since the who is more important than the what, the content of these references is predictably short and vacuously laudatory. The ‘big name’ might have scant knowledge of the candidate and in a more or less subtle manner the burden of the reference is ‘You should admit X because I (the big name) think you should.’ Often you can tell that the candidate himself or herself had a hand in drafting the reference. One tell-tale sign is similar phraseology in the reference and the personal statement of the candidate. This scandalizes me less than you might imagine, since it is so often the case that the structure of legal education in many of these countries, with large classes and frontal teaching, means that the professor has, at best, a superficial knowledge of the applicant. What can he or she write? This is typically true of Central and South America too.

The UK, Ireland and the so-called Old Commonwealth (Australia, New Zealand, South Africa, etc) are, as a rule, a shining exception. There is a well-established tradition of detailed and honest references that are typically based on meaningful knowledge of the applicant (again, a result of the structure of legal education) which are very helpful and to which I will return below in suggesting how you might think of the task of writing a reference.

The United States (and Canada, sigh) follow the English in oftentimes writing detailed references but the most common sin is that just as often these read as advocacy – as if the exclusive purpose of the reference is to get the refereed person admitted. Take a few dozen of these and in no time one could compose a dedicated Referee Thesaurus composed of 30 different ways of stating that Moses or Sarah are wonderful without repeating any superlative. At the same time, North Americans are accustomed to discussing an applicant on the phone and these conversations are usually more frank and helpful.

Probably the most common, transcultural misconception about references is that, indeed, their exclusive purpose is to get ‘your candidate’ admitted. This is simply not so. A balance needs to be struck between helping the candidate in his or her application purpose and an academic fiduciary duty owed to the admitting institutions in their selection procedures. If all your references end up looking the same (as is so often the case, see supra) you are failing to strike the right balance. Obviously it would be wrong to accept the task of writing a reference knowing that what you are willing and planning to write would positively harm the applicant. But there is a midway which is both fair and helpful.

The key is to go light on the ‘one of the best students I have ever had’ phraseology, which also runs the risk of provoking mirth in the admission office when a professor uses the same phraseology again and again and which is a datum that in most cases will emerge from the objective, empirical data in the application (grades, ranking, etc.). Instead, it is far more beneficial to provide information and insight that would not be transparent from the formal file. It requires time. You should certainly read the application carefully – there might be things about your education system that are worth explaining in the reference. There may be a paper you supervised that will reveal strengths (and weaknesses) worth discussing. The reference very often plays a role in decision-making when the objective data in the application makes it difficult to choose among what appear to be equally qualified applicants. The result should not be determined by the referee whose superlative thesaurus is richer, but by providing the selector with information that individualizes the applicant and enables the selector to know the person better. In this way, the selector does not simply decide ‘who is better’ but can select the candidate who is more suitable for the programme in question.

I oftentimes open my reference by explaining that I would not be giving a reference if I did not think that the applicant would be suitable for the programme to which he or she is applying, but then I state explicitly that the rest of the reference will speak in substantive terms rather than evaluative ones. I also add that, given that so many references traffic in superlatives, my self-imposed diet should not be construed as killing with faint praise. As I mentioned above, I have learnt this from the best in UK practice.

Here are some Dos and Don’ts.

  • If you agree to write a reference never forget and always respect the deadline – to do otherwise is a capital offence.
  • Speak to the applicant. If you do not think you can write a substantive reference, or a favourable one, be transparent about it. Explain that for a reference to be meaningful real knowledge is more important that status. If you think that you would only be able to write a perfunctory reference you should say so. Countless times I have told former students seeking a reference: What can I say? That you took my class and got an A- ? Students tend to come to you if they got a good grade. I have a practice of many years that you may find helpful. Towards the end of the class I tell students that if they are thinking of doing graduate work at some point and think they might wish to have a reference from me, they should let me have a cv and photo on the last day of class so that I can make notes about them (on the cv itself) when their presence and contribution in class are still fresh in my mind. These get filed away for future reference, excuse the pun.
  • If you belong to a system where there is little opportunity to get to know your students, I would mention that on the reference. If in your system you have Assistants who get to know the students better than you do, write a joint reference with them explaining such. It will be appreciated and others might learn from you.
  • No, you should not ask or allow the applicant to write his or her reference. But I think it is acceptable, and I frequently do this, to ask them to alert you to anything on their vita which they believe is of significance in the context of the specific programme. You will often do a better a job in contextualizing such for the benefit of the selectors.
  • If the application is for a research degree it is not so important that you praise the research project – the selectors will form their own view of that. It is much more helpful if you can provide information on the aptitude of the applicant to engage in such research.

There is a kind of ‘bottom line’ to all of this. To be effective (in helping the applicant) and useful (to the admitting institutions) references are a serious business that require some time, dedication and commitment – not unlike grading exams. Like all things one gets better at it, but it should never just become rote, sloppy or careless. In the panoply of academic citizenship duties this is one which is least welcome and most sacred.

Writing references for persons seeking entry-level appointment, tenure or promotion is a somewhat different kettle of fish. The stakes are much higher both for the candidate and for the appointing or promoting faculty. Thankfully, these requests are not quite as frequent; but this is balanced out by the need for a greater effort at reading and writing.

In many systems there is still the practice that the candidate nominates two to three referees to whom the Selection Committee then turns for a reference. There is nothing wrong with this unless they are the only referees to whom the Committee will turn. Even more so than with student applicants it is unlikely that a referee nominated by the candidate will not be on the whole laudatory. So the American custom of turning to a bunch of referees not nominated by the candidate is salutary. Such referees are asked, or should be asked, if they have any conflict of interest of the friend-foe type. I have only rarely seen this emerge as a problem and usually, in the evaluative dimension of the report, such references are more frank and illuminating.

The advantage of having a nominated referee is usually a consequence of the holy trinity of appointment criteria: scholarship, teaching and academic citizenship. Someone who knows the candidate may better be able to comment on teaching and citizenship. Also, a referee, even if nominated, deeply in the field may, if not lazy, be able to explain the importance of the work, relate it to that which is done by other scholars and the like – with the caveat mentioned above. Being nominated by the candidate has a chilling effect on total candour.

The amount of work involved is typically quite large – especially in tenure reviews. One needs to read a significant sample of the writing (and even more difficult, reread it if one knows it already) and then write a meaningful report, assuming that not everyone on the Selection Committee or the faculty that will eventually make the decision is familiar with the field.

When approached and under time pressure I will tell the Selection Committee that I am only able to write a ‘conclusory report’ – almost like grading an exam or a person. I think these ‘testimonials’ are for the most part worthless to any self-respecting selection committee but they are not uncommon. Here, too, the culture of who writes is more important than what is written sadly often applies.

To a much greater degree than writing references for students applying to graduate programmes the reputation and credibility of the referee are at stake here. If you take average work and praise it as ‘paradigm shifting’ (one of the most odious clichés of the genre) the discrepancy will be noted, the candidate will not be helped, and your own reputation and credibility will take a hit. This incentive for ‘self-preservation’ apart from the substantiality of the file explains why for the most part references for appointment, tenure and promotion have more heft and are more helpful. More time is given, an honorarium is sometimes offered (which makes doing a superficial thing a little bit more difficult) and a more substantial analysis is expected.

All in all, when focusing on scholarship, selection committees are mostly interested in explaining the work, the quality of mind behind it, its contribution and where it fits in the field rather than reading a series of superlatives.

It is very, very hard to refuse your name when asked by a colleague or former doctoral or post-doctoral student applying for a job or tenure or promotion. It has been a while since I have made this kind of request, but I think it is good practice when doing so to put in a sentence such as ‘I know how busy you must be and will understand if you are unable, etc…’ It may also be the case that more than one candidate for the same appointment may approach you – it is totally understandable if you indicate that you are already committed.

I cannot end this reflection without a cri de coeur as regards peer review for articles. My view, which I have often expressed, is that in an era of extensive self-publication the role of peer-reviewed journals is no less and maybe even more important. I expect selfless service, especially from those who have published in EJIL and/or I.CON and have thus, themselves profited from peer review.

EJIL: In this Issue (Vol. 28 (2017) No. 2)

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This issue opens with a set of articles that address a range of centrally important theoretical and doctrinal issues. The first, by Niels Petersen, addresses an evergreen topic in general international law, which has been the subject of several studies in this Journal over the past few years: the identification of customary international law by international courts and tribunals. Petersen seeks to explain why the International Court of Justice rarely conducts a detailed analysis of state practice in identifying customary norms, by reference to the specific institutional constraints that the Court faces. In our second article, Bernard Hoekman and Petros Mavroidis analyse the ambiguities in scheduling additional commitments for policies affecting trade in goods in the GATT compared to the process under the GATS. Next, Janis Grzybowski offers a novel perspective on the old debate about the identification of states, deconstructing the accepted criteria and provoking deeper reflection on the role of ‘silent ontological commitments’ in legal assessments of statehood. Noëlle Quénivet questions whether international law should prohibit the prosecution of children for war crimes, taking this problem as an opportunity to test some of the basic assumptions underpinning the current law and examining the relationship between restorative, retributive, and juvenile rehabilitative justice mechanisms. The final article in this section, by Yota Negishi, proposes that the pro homine principle should serve as a point of focus – and thereby, also, of harmonization – for both conventionality and constitutionality control exercises undertaken by domestic courts.

The second set of articles forms the Focus of this issue: international legal histories – looking back to the twentieth century. In the first article, Giovanni Mantilla revisits the signing of the 1949 Geneva Conventions by the United States and the United Kingdom. He uses the reasoning of these states for signing as the basis for a reflection on contemporary discussions of treaty commitments and the pressure of social conformity. Next, Narrelle Morris and Aden Knaap present a carefully researched examination of the United Nations War Crimes Commission and its problematic relationship with member nations. Finally, Felix Lange offers a rich account of the discipline of international law in Germany between the 1920s and the end of the Cold War.

In our Roaming Charges contribution, by Viorica Vita, a solitary figure seeks to carve out a living selling love locks on a bridge in Rome.

This issue features an EJIL: Debate! centring on an article by Vladyslav Lanovoy, which addresses the use of force by non-state actors and the ability of the International Law Commission’s Articles on State Responsibility to ensure that states facilitating such conduct face legal consequences. Lanovoy submits that complicity should be used as a test of attribution of conduct when a state contributes to the conduct of a non-state actor that leads to the commission of a wrongful act attributed to the state. In his Reply, Ilias Plakokefalos takes up a series of concerns with the approach taken by Lanovoy, who in turn offers a Rejoinder.

The issue closes with a Critical Review of International Governance article by Moria Paz, examining the ‘law of walls’. Drawing on the jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee, Paz argues that human rights courts and quasi-judicial bodies have become deeply implicated in the proliferation of border walls as a strategy of immigration control.

We welcome Gregory Shaffer back to The Last Page with a poem entitled ‘Khundi’, which evokes life, with both its simplicity and complexities, in a corner of the Himalayas.

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