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The Jadhav Case and the Legal Effect of Non-Registration of Treaties

EJIL:Talk! - Mon, 06/19/2017 - 09:00

Those following the legal tangle of the Jadhav Case closely would have noticed India’s (attempted) coup de grâce in its oral submissions regarding the bilateral Agreement on Consular Access of 21 May 2008 between India and Pakistan (“2008 Agreement”, Annex 10 in India’s Application Instituting Proceedings) – that it is unregistered and thus, incapable of being invoked. Pakistan’s oral submissions indicate that this Agreement will form a large part of its case on merits, which in fact, is far stronger than the Indian or Pakistani media give it credit for. Pakistan claims that, irrespective of guilt, the fact of arrest on “political or security grounds” exempts Jadhav from the right of consular access, as per paragraph (vi) of the Agreement, which reads as follows: “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on merits.” Pakistan interprets this examination “on merits”, as regarding the grant of consular access itself, making it a matter of discretion rather than right.

India met this contention head on in the oral stage, with a two-pronged argument. First, it argued that the 2008 Agreement does not purport to restrict or reduce consular access rights provided by the Vienna Convention on Consular Relations, 1963 (“VCCR”). According to India, the 2008 Agreement is for the purpose of “confirming or supplementing or extending or amplifying” (Art. 73 VCCR) the VCCR rights, to the extent that the Agreement “further[s] the objective of humane treatment of nationals of either country arrested, detained or imprisoned in the other country” (preamble of the 2008 Agreement). To that extent, the first part of the Indian argument is one of interpretation of paragraph (vi) of the 2008 Agreement. The argument is that the Agreement must not be interpreted as exempting those arrested on political or security grounds from consular access since such an interpretation would be contrary to its preamble, to the VCCR, and to the law of treaties, since Art. 41 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”) permits subsequent bilateral agreements only when they are harmonious with pre-existing multilateral treaties. India has not yet offered a counter-interpretation of paragraph (vi). However, a fair guess is that it will argue that the envisaged “examin[ation]…on merits” is for determining the grant of additional rights conferred by the Agreement (such as immediate release and repatriation) and not for the grant of basic VCCR rights themselves.

However, the second argument, only hinted at by the Indian side, is that the 2008 Agreement is, in any event, inherently inapplicable for two separate reasons: if interpreted as Pakistan claims, the bilateral agreement derogates from the effective execution of object and purpose of the earlier, multilateral VCCR, rendering it invalid under Article 41 (read with 42) of the VCLT; and, it has not been registered with the United Nations Secretariat, making it incapable of being invoked before the International Court of Justice.

It is this second argument regarding the invalidity of the Agreement that is the subject of scrutiny here. The legal effect of non-registration of a treaty has not been the subject of significant discussion amongst States, within the UN or even within academic circles. The pertinent legal provision is Article 102 of the Charter of the UN, which, in paragraph (1) mandates registration of all treaties, and in paragraph (2) imposes an additional sanction to incentivise registration – that of being unable to invoke an unregistered treaty before any UN organ. To this extent, this is a remarkable article – most of the Charter’s articles impose obligations upon Member States, but very few of them back this with a specific sanction, in addition to the general breach of international law that violating the Charter would entail [See Hans Kelsen, The Law of the United Nations, Chapter 18 – Sanctions (7th edn., 2008)]. The reason for such additional punitive force can be traced to its drafting at the UN Conference on International Organizations at San Francisco in 1945, where it was observed that “the basic purpose of the obligation was to prevent secret treaties” [UNCIO Documents, vol. 87, p. 26 cited in Brandon, 29 Brit.Y.B.Int’l L. 186, 196 (1952)]. In fact, the equivalent Article 18 of the Covenant of the League of Nations had gone further, stating that “[n]o such Treaty or International Engagement shall be binding until so registered”. This was watered down when the Charter was being drafted, not least because it led to ambiguity as to how such a treaty, otherwise valid, was to be interpreted outside of the League system – was a non-League body, such as, for instance, the Permanent Court of Arbitration (“PCA”) also not to apply such a treaty? The UN system sought to avert such confusion by providing instead for “relative, not an absolute invalidation” of unregistered treaties [Kelsen, p.722]. Article 102 was worded in such a way as to render the handicap operative only before UN organs. This, it was thought, would create a self-contained system – an offence within the UN, penalised within the UN alone.

However, this raised its own set of doubts and ambiguities – would the same treaty now be valid and operative before the PCA, but not before the ICJ? When challenged simultaneously in different courts, could the treaty’s validity, much like Schrodinger’s cat, exist and not exist at the same time? The simple answer to this question is yes. This is exactly what “relative invalidity” envisages. A more nuanced answer would be that the question is not one of validity as much as operability. Even within the UN system, the validity and binding nature of the treaty is not denied – the Court has stated as much on several occasions (in Qatar v. Bahrain, ¶29, for instance); it is merely its enforceability before that forum that is affected. This handicap is considered necessary to incentivise registration while not resulting in a complete denial of rights since other (non-UN) fora remain available. In any event, there is nothing to bar the party from now registering the treaty and then invoking it before a UN organ [there is difference of juristic opinion on whether this can be done while an organ is seised of the matter or if fresh proceedings must be instituted. Compare Brandon, 200 with Robert Kolb, The International Court of Justice, 543 (2013)]. In other words, Article 102(2) is a procedural hurdle (as opposed to a bar).

A last important feature of Article 102(2) is that it only bars the parties to the unregistered treaty themselves from invoking it; neither third parties nor, importantly, the Court itself is barred from relying on an unregistered agreement. In fact, most authors concur that the UN organs themselves are not obliged to enquire into registration. They may, on their own initiative, and they must, if raised as an objection, disallow parties from invoking unregistered treaties; however, nothing bars them from taking cognizance of such treaties irrespective of parties’ invocation. After all, Article 102(2) was meant as a sanction upon parties concluding “secret treaties”, not as a restriction on the organs of the UN in carrying out their functions [Martens, Ch.XVI Miscellaneous Provisions, Article 102, ¶45, 51 in The Charter of the United Nations: A Commentary, Vol. II (Simma et al. eds., 3rd edn., 2012)].

Thus, given how this provision is only a procedural hurdle and how it exists only to reinforce the substantive law laid down in Article 102(1), it is unsurprising that the organs of the UN have overwhelmingly chosen to disregard the unregistered status of treaties, presumably considering the substantive issues at stake to be more important than reinforcing the importance of registration. The ICJ in Qatar v. Bahrain, allowed invocation of the unregistered 1987 double Exchange of Letters, which was agreed between the parties to be a treaty. In Corfu Channel, the ICJ accepted jurisdiction under an unregistered Special Agreement and even permitted the United Kingdom to cite, in its defence, an unregistered agreement dated 22 November 1945 [Martens, ¶56; Brandon, 199]. In the Aegean Sea Continental Shelf case, the effect of Article 102 upon the unregistered accord verbal of 31 May 1975 was questioned but it was nevertheless considered and rejected on merits. Even the Permanent Court, bound by the more onerous Article 18 of the Covenant, in Eastern Greenland, found the unregistered Ihlen Declaration of 22 July 1919 to be “binding” despite the express wording of Article 18. Even before the General Assembly, unregistered treaties have been invoked without objection –the USSR relied on an unregistered 1950 treaty with China before the First Committee [GAOR (VI), 1st Committee, 502nd mtg. 26 January 1952 cited in Martens, ¶53]. It is evident that the unregistered nature of treaties often passes unnoticed. In fact, there is no recorded instance of a UN organ disallowing invocation of a treaty solely on account of non-registration. Authors are not wrong in concluding that Article 102 is “more honoured in the breach than the observance” [Anthony Aust, Modern Treaty Law and Practice (2000), 280; Martens, ¶57]

What sets this case apart from those in the past is, of course, that the unregistered status has not slipped by unnoticed – it has been actively brought up as an objection by one of the parties. In this case, turning a blind eye is out of the question. The Court is in fact mandated to apply the sanction; however, whether it considers itself able (and whether it chooses) to go over and above this sanction to consider the 2008 Agreement on its own initiative remains to be seen. Given the scant notice paid to Article 102 in the past, there is every reason to believe it will do so. In any case, India will do well to formulate an enunciated counter-interpretation of the 2008 Agreement rather than to count upon its inability to be invoked.

Announcements: BIICL Director Vacancy; Extraterritoriality of EU Law and Human Rights After Lisbon Workshop; CfA International Dispute Resolution; Access to Remedy in National Action Plans to Implement the UNGPs

EJIL:Talk! - Sun, 06/18/2017 - 10:30

1. BIICL Director Vacancy. The British Institute of International and Comparative Law (BIICL) is seeking to appoint an exceptional candidate to the role of Director. BIICL conducts research and activities around the world across the broad range of public international law, private international law, comparative law and the rule of law. This is an exciting opportunity to hold a unique and high profile post in one of the most respected independent legal research institutes in the world. This is a full-time post for a five-year period, which may be renewed. Secondments from other institutions will be considered. The deadline for applications is 24 July 2017. For information on how to apply, see here. Informal enquiries may be addressed to the Deputy Director of BIICL, Patricia Ambrose, at p.ambrose {at} biicl(.)org var mailNode = document.getElementById('emob-c.nzoebfr@ovvpy.bet-41'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%70%2E%61%6D%62%72%6F%73%65%40%62%69%69%63%6C%2E%6F%72%67"); tNode = document.createTextNode("p.ambrose {at} biicl(.)org"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-c.nzoebfr@ovvpy.bet-41"); mailNode.parentNode.replaceChild(linkNode, mailNode); . To view the full job description please see here.

2. Extraterritoriality of EU Law and Human Rights After Lisbon Workshop. The University of Sussex is hosting the research workshop ‘Extraterritoriality of EU Law and Human Rights After Lisbon: Scope and Boundaries’ on July 13 and 14. Anybody interested in attending the workshop should contact Dr Velluti [S.M.Velluti {at} sussex.ac(.)uk var mailNode = document.getElementById('emob-F.Z.Iryyhgv@fhffrk.np.hx-90'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%53%2E%4D%2E%56%65%6C%6C%75%74%69%40%73%75%73%73%65%78%2E%61%63%2E%75%6B"); tNode = document.createTextNode("S.M.Velluti {at} sussex.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-F.Z.Iryyhgv@fhffrk.np.hx-90"); mailNode.parentNode.replaceChild(linkNode, mailNode); ] and Dr Tzevelekos [v.tzevelekos {at} liverpool.ac(.)uk var mailNode = document.getElementById('emob-i.gmriryrxbf@yvirecbby.np.hx-37'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%76%2E%74%7A%65%76%65%6C%65%6B%6F%73%40%6C%69%76%65%72%70%6F%6F%6C%2E%61%63%2E%75%6B"); tNode = document.createTextNode("v.tzevelekos {at} liverpool.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-i.gmriryrxbf@yvirecbby.np.hx-37"); mailNode.parentNode.replaceChild(linkNode, mailNode); ]. Attendance is free of cost but space is limited, with attendance allocated on a first come basis. See here for further information.

3. Call for Abstracts – International Dispute Resolution. The Dispute Resolution Interest Group (DRIG) of the American Society of International Law (ASIL) and the Lewis & Clark Law School are pleased to announce a workshop to discuss academic works-in-progress on international dispute resolution, taking place at the Lewis & Clark Law School on the afternoon of 10 November 2017.  Each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. Submissions are welcome from academics and practitioners around the world. Any topic related to international dispute resolution will be considered. Submissions must be works in progress and should not have been submitted for publication. Abstracts up to 500 words may be submitted by 5pm Pacific Time, 15 July to this folder.  Participants must submit a substantial work in progress by 21 October 2017, which will be circulated in advance of the workshop to all participants. It is expected that this work will consist of a working draft paper at least 20 pages long. Please direct any questions to pbechky {at} bcr-dc(.)com var mailNode = document.getElementById('emob-corpuxl@ope-qp.pbz-69'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%70%62%65%63%68%6B%79%40%62%63%72%2D%64%63%2E%63%6F%6D"); tNode = document.createTextNode("pbechky {at} bcr-dc(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-corpuxl@ope-qp.pbz-69"); mailNode.parentNode.replaceChild(linkNode, mailNode);  or foster {at} lclark(.)edu var mailNode = document.getElementById('emob-sbfgre@ypynex.rqh-99'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%66%6F%73%74%65%72%40%6C%63%6C%61%72%6B%2E%65%64%75"); tNode = document.createTextNode("foster {at} lclark(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-sbfgre@ypynex.rqh-99"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

4. BIICL Event: Access to Remedy in National Action Plans to Implement the UNGPs: Are States Still Taking a Nap? This event will take place on 22nd June 2017: 17:30-19:00. Access to effective remedies is a key component of the UN Guiding Principles of Business and the Human Rights (UNGPs). Despite an impressive uptake of the UNGPs by almost all stakeholders, the victims of business-related human rights abuses continue to struggle in holding corporate actors accountable. Why is this so? This seminar will explore this question in relation to National Action Plans (NAPs) released so far by states. Surya Deva will propose certain key elements that should guide future NAPs as well as the revision of existing NAPs in improving access to effective remedy in business-related human rights abuses. Organised and chaired by BIICL as part of the Economic and Social Research Council Business and Human Rights Seminar Series. Speaker: Surya Deva, City University of Hong Kong and Member of the UN Working Group on Business and Human Rights.

Election of Judges to the International Tribunal for the Law of the Sea

EJIL:Talk! - Sat, 06/17/2017 - 10:40

2017 will be a busy year for elections to international tribunals. There will be elections later this year to elect five Judges of the International Court of Justice and six judges of the International Criminal Court (see here). Earlier this week, the States Parties to the United Nations Convention of the Sea elected seven Judges to the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges and elections for seven judges are held every three years. As with the ICJ and the ICC, ITLOS judges serve for a term of 9 years and may be re-elected [Art. 5(1)ITLOS Statute]. The purpose of this post is to simply to report the results of the 2017 ITLOS election and to make a few observations about possible trends in elections to international tribunals.

The States Parties re-elected two judges currently on the ITLOS bench: Judge Boualem Bouguetaia (Algeria) and Judge José Luís Jesus (Cabo Verde). The five new judges taking up their seats on the 1st of October 2017 will be: Mr Oscar Cabello Sarubbi (Paraguay), Ms Neeru Chadha (India), Mr Kriangsak Kittichaisaree (Thailand), Mr Roman Kolodkin (Russian Federation), and Ms Liesbeth Lijnzaad (The Netherlands).  The full list of candidates for the elections can be found here. Judges are elected where they obtain the largest number of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a majority of the States Parties [Art. 4(4), ITLOS Statute]

An interesting development in the current ITLOS election is the failure of two serving judges: Judges Joseph Akl (Lebanon) and Rudiger Wolfrum (Germany) to be re-elected.  The qualifications and experience of these judges are beyond doubt. However, both have been on ITLOS since its formation in 1996 and there might be a feeling that 21 years is long enough for anyone. I have heard it said at the UN there is a feeling among states that though there are no formal term limits for judicial positions, treaty bodies and the like, it is not healthy for individuals to be there for too long. It was a surprise to some (myself included) when the late Sir Nigel Rodley was not re-elected to the Human Rights Committee last year and perhaps the long period of service on the Committee was a factor. This is an issue that states should take into account in nominating candidates.

Two of the seven judges elected are women (Neeru Chadha and Ms Liesbeth Lijnzaad, who both recently represented their states in the Enrica Lexicie and Artic Sunrise proceedings before ITLOS.). Though it is pleasing to see the number of women judges go up from just the single female judge (Judge Elsa Kelly) on the  current ITLOS bench, 3 out of 21 is still not a particular good number. The statutes of the ICJ and ITLOS are perhaps products of their time in speaking about geographical diversity, representation of the principal legal systems of the world,  but not gender diversity. The ICC Statute, by contrast in Art. 36(8)(a)(iii) requires the States Parties to take into account, in addition to those other factors “a fair representation of female and male judges”. And so they have. There is a far greater representation of women judges on the ICC than on either ITLOS or the ICJ. Perhaps it is time to make formal changes to the processes by which international judges are elected as a prod to achieving fairer gender representation.

We have previously discussed the high number of ICJ judges who were previously members of the International Law Commission. Two of the judges elected this week – Kriangsak Kittichaisaree (Thailand) Roman Kolodkin have served on the ILC.

As the ITLOS Statute requires that equitable geographical distribution be assured among the Members and that there should be at least three Judges from each geographical group as established by the General Assembly of the United Nations [Arts. 2(2) & 3(2) ITLOS Statute], elections for ITLOS are held by reference to geographical groups. With two exceptions, there was more than one round of voting before a conclusion was reached as to who was elected from each group. The two exceptions were with regard to the African and the Eastern European groups. With regard to the former Judges Boualem Bouguetaia and Judge José Luís Jesus  were re-elected (out of 3 candidates) in a single round. With regard to the latter Roman Kolodkin (not to be confused with Judge Anatoly Kolodkin, who was an ITLOS Judge from 1996-2008, and who has a huge oil tanker vessel named after him) was the sole candidate and elected in one round.

The Ogiek Case of the African Court on Human and Peoples’ Rights: Not So Much News After All?

EJIL:Talk! - Fri, 06/16/2017 - 12:00

On Friday, May 26, the African Court on Human and Peoples’ Rights (African Court) delivered its long-awaited judgement on the expulsion of the Ogiek people, a Kenyan hunter-gatherer community, from their ancestral lands in the Mau forest. As the African Commission on Human and Peoples’ Rights (African Commission) did not manage to settle the conflict, it was transferred to the African Court in 2012. The relationship between the African Court and the African Commission is complementary. The African Court’s Protocol does not automatically allow for individual complaints (only eight states signed the Special Declaration rendering individual complaints possible) and its judgements are binding. It was the first indigenous rights case before the Court and it had raised hope with regard to the clarification and operationalization of the Charter’s “peoples’ rights”.

The Court widely followed the African Commission’s application and found that the eviction of the Ogiek without consultation amounted to several rights violations: the right to non-discrimination (Art. 2), culture (Art. 17(2) and (3)), religion (Art. 8), property (Art. 14), natural resources (Art. 21) and development (Art. 22). The respondent’s argument that the eviction was justified by the need to protect the Mau forest was dismissed by the Court. It, however, found no violation of the right to life, as the applicants failed to show that the physical existence of the community was being threatened by the eviction.

This article highlights some of the decision’s most interesting features: (1) the characteristics of indigenousness, (2) the right to land, (3) the right to food as derived from the right to natural resources, and (4) the state’s duty to obtain the free, prior and informed consent (FPIC) of communities. It will be shown how the new judgement relates to the African Commission’s jurisprudence (particularly the well-known 2001 Ogoni and 2009 Endorois decision), as well as to international law.

Indigenousness in Africa

In sub-Saharan Africa, the concept of indigenousness is more controversial than in other regions and the distinction between minorities, indigenous peoples and “peoples” is still not clear cut. The status of a community is relevant insofar as it can allow for the interpretation of the African Charter in light of international indigenous or minority rights and jurisprudence.

In the Ogiek decision, the African Court, instead of applying the characteristics of the AU Working Group of Indigenous Populations/Communities, used the criteria elaborated by the Erica-Irene Daes, the former Chairperson of the UN of the Sub-Commission on Prevention of Discrimination and Protection of Minorities:

  • A timely dimension with regard to the occupation and use of the land
  • Voluntary perpetuation of cultural distinctiveness
  • Self-identification and recognition by other groups or by state authorities
  • An experience of subjugation, marginalisation, dispossession, exclusion or discrimination (para 107)

The “voluntary perpetuation of cultural distinctiveness”, as well as the recognition by other groups or the state are new features. With regard to the cultural distinctiveness, it is questionable, whether this element is not already covered by the principle of self-identification. Moreover, it seems to convey an essentialist understanding of culture, which does not sufficiently acknowledge that culture is constantly changing through endogenous and exogenous influences.

While the identification as indigenous community by other communities may be a reasonable indicator for the status of a group, it can be quite problematic to give much weight to the point of view of state institutions in view of the non-recognition of indigenous rights in the majority of sub-Saharan African states. Regrettably, the judgement does not provide any illumination on the underlying rationale.

The right to land

While the indigenous right to land is recognised by ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the African Charter does not explicitly contain a right to land. In the African context, the right to land has been derived in three different ways: from the right to property (Art. 14), the right to practice religion (Art. 8) and the right to culture (Art. 17) of the African Charter.

In the Endorois case, the African Commission found an infringement of the indigenous community’s right to access religious sites, which constituted a violation of the right to practice religion (Art. 8). Religious communities have the right to “worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes” (para 165). The African Court followed the African Commission’s jurisprudence emphasizing that the “practice and profession of religion are usually inextricably linked with land and the environment“(para 164).

Reading the right to land as an aspect of the right to culture is quite common in the context of minority rights and the approach has also been applied to indigenous groups. The African Commission emphasized the intrinsic link between culture and land. Consequently, it found that the respondent’s claim that the protection of the environment constituted a public interest exception under Art. 27(2) not convincing in the Endorois case.

However, subsuming land under the right to culture and the right to religion bears dangers: it allows for easy contestations by states that argue the community has embraced another religion or culture. Moreover, religious and cultural sites can be interpreted in a geographically narrow way.

Interpreting the communal right to land as a property right could thus be a promising alternative. It is driven by the principle of non-discrimination and challenges the original, Western understanding of property. Just like the Inter-American Court of Human Rights, the African Commission takes the view that the right to property also includes “rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership”. It is thus not very surprising that the African Court also interpreted Art. 14 in a broad way and in light of the UNDRIP. As the expulsion happened against the Ogieks’ will, without prior consultation and without sufficient public interest, the Kenyan government violated Art. 14. Consequently, the African Court’s position is in line with the approach of the African Commission, the Inter-American Court, as well as the ILO Convention 169 and the UNDRIP.

The right to food

The African Court found a violation of the right to natural resources, as the Ogiek were deprived of their traditional food resources produced by their ancestral land. Unlike the American Convention on Human Rights, the African Charter recognises the right to natural resources as a stand-alone right. The African Commission takes the view that natural resources vest in indigenous peoples inhabiting the land.

Without stating so explicitly, the Court seems to derive the right to food from the right to natural resources. This is a very interesting approach as the right to food is mainly discussed as an aspect of the right to life. This was also the approach taken in the Ogoni decision.

Reading the right to food as a derivate of the right to natural resources holds a crucial advantage: the Ogiek case shows that the causality between the eviction of a group and a violation of their right to life can be difficult to establish. The threshold for finding a violation of the right to food as an aspect of the right to natural resources tends to be lower and renders it easier to claim for local communities.

Free, prior and informed consent

One of the most controversial issues in the field of indigenous and minority rights is the right to FPIC. It is not explicitly mentioned in the African Charter, but has been increasingly discussed by the African Commission and other (sub)regional organizations.

In the Ogoni case, the African Commission derived from the right to a healthy environment (Art. 24) the obligation to provide information and meaningful opportunities to be heard and to participate. According to the Endorois decision, the right to development (Art. 22) requires the FPIC of indigenous communities. The African Court interpreted the right to development in light of UNDRIP and found that the Kenyan state had failed to “effectively consult” with the Ogiek (para 210). Besides that, “prior consultations” are required by the right to land under Art. 14 (para 131). In this regard, it missed an opportunity to clarify and extend the African Commission’s position on FPIC.

Nevertheless, the judgement strongly indicates that the African Union organs do not understand the right to self-determination as the only legal source of FPIC. As the right to self-determination is still widely seen as a governmental and an indigenous right, this approach renders it easier to argue for the applicability of FPIC to non-indigenous groups

Conclusion

The judgement of the African Court has been much celebrated amongst indigenous activists. It is a success insofar as it shows that the rights of marginalised communities are increasingly on the African human rights system’s plate and that the African Charter has a particularly great potential to accommodate such claims. A good example for this is the right to food under the right to natural resources, but also the jurisprudence on the right to land. Moreover, the Court seems to assume a broad scope of its collective rights, not limiting them to indigenous groups.

However, some questions remain open: the line between indigenous communities, minorities and peoples has still not been drawn. This partly reflects the intentions of the authors of the African Charter, simultaneously it can be a practical obstacle for many groups. Additionally, the scope and implications of FPIC remain unexplored. While it may be reasonable to detach it from the right to self-determination, the concept remains still remains blurry. In view of the limited resources of the Court, this is not too surprising. Ideally, the African Commission by issuing more General Recommendations or the African Court’s advisory opinion procedure could mitigate some of these shortcomings. But also academia should assume responsibility and dedicate more resources to the exploration of the African human rights system.

The Shifting Landscape of Investor-State Arbitration: Loyalists, Reformists, Revolutionaries and Undecideds

EJIL:Talk! - Thu, 06/15/2017 - 08:00

The investor-state arbitration landscape is shifting under our feet. The utility and legitimacy of traditional investor-state arbitration have come under fire, but states have not converged on a viable alternative. In simplified terms, three main camps are developing, which I call the “loyalist,” “reformist,” and “revolutionary” camps. The vast majority of states, however, are yet to take a public position on whether and, if so, how to reform investor-state dispute settlement. These “undecided” states are not a homogenous group, nor are they necessarily passive. Many states within this group are actively watching these developments and debating the various reform proposals.

One of the big strategic questions for the investment treaty system in the next few years will be whether the loyalists, reformists or revolutionaries will be able to attract a critical number of the undecideds to their cause in order to create a reasonable measure of convergence on a particular approach. The alternative is that the undecideds will split among the existing camps and/or develop their own distinct or hybrid positions. Another question is whether any members of the existing camps will shift their alliances. It is unclear how this will ultimately play out. What is clear, however, is that the tide appears to be turning against the traditional model of investor-state arbitration as it has few – if any – real supporters among states.

Loyalists, Reformists and Revolutionaries

The “loyalists” are states that continue to actively champion investor-state arbitration as the primary form of dispute resolution, even in the face of mounting criticisms by other states and civil society. Yet these states are not loyal to the traditional model of investor-state arbitration. Instead, they are dedicated to new and improved versions of investor-state arbitration, like those adopted in the 2012 US Model BIT or the Trans-Pacific Partnership Agreement (TPP). In this way, the loyalists might be understood as embracing incremental reform.

The two primary examples of loyalists are the United States and Japan. They argue that those who are advocating for broader scale institutional reform have not been able to clearly articulate what the problems with investor-state arbitration are, how their reforms would fix these problems, and how the reforms would not create a host of other problems. They point to some of the benefits of the existing system, such as the ready enforceability of investor-state awards and the depoliticisation of investor-state disputes. They criticise aspects of the alternatives, such as the added delay and expense that would follow from introducing an appellate mechanism or the lack of neutrality involved in relying on domestic courts. To the extent that problems exist, they argue that these can be addressed through targeted reforms – like introducing transparency, developing mechanisms to screen out frivolous claims at an early stage, and imposing rules on arbitrator conflicts, qualifications and ethics.

Reformists” can take many forms. What distinguishes the current reformists from the loyalists is that they don’t think that it is enough to improve the existing model of investor-state arbitration. Rather, they believe that the system needs more fundamental, institutional reform, like the introduction of an international investment court and/or an appellate mechanism, in order to salvage its legitimacy.

The most widely recognised reformists in the current system are the European Union (EU) and Canada. Spurred by significant criticism of investor-state arbitration within both the EU and its member states, the European Commission developed an alternative model, which is an international investment court with a built-in appellate mechanism. The EU and Canada adopted a bilateral investment court in CETA and have jointly advocated developing a multilateral investment court. They argue for a new form of dispute resolution that is more in keeping with other international courts charged with resolving public law disputes, like the World Trade Organisation or the European Court of Human Rights. Instead of continuing with an ad hoc model of “private justice” that has its origins in commercial arbitration, they propose establishing a standing court with judges who are appointed by the treaty parties and who cannot double hat as arbitrators and counsel, coupled with an appellate mechanism to ensure correctness and promote consistency.

Although the loyalists view these proposed reforms as going too far, the “revolutionaries” think that they don’t go far enough. What the loyalists and the reformists have in common is that both agree that investors should be able to bring international claims directly against states, but they disagree on what form that should take (ad hoc arbitration versus a standing court). The key to identifying the revolutionaries is that they reject the wisdom of permitting investors to bring direct claims before international tribunals, preferring instead to require investors to pursue domestic remedies and limiting international dispute resolution to (at most) state-to-state arbitration.

Two exemplars of this approach are Brazil and South Africa. Brazil has never ratified an investment treaty providing for investor-state dispute settlement. More recently, it has started signing Cooperation and Investment Facilitation Agreements that encourage the use of alternative dispute resolution mechanisms, such as conciliatory settlement of disputes through Ombudsmen that are subject to a Joint Committee of the treaty parties, and ultimately permit state-to-state arbitration but not investor-state arbitration. In 2012, South Africa began a process of terminating its investment treaties and in their place has passed the Protection of Investment Act 22 of 2015, which gives primacy to domestic remedies, including mediation and domestic courts. South Africa may consent to international arbitration over an investment dispute, but this would be subject to exhaustion of domestic remedies and would also take place on a state-to-state basis.

States that are Unclear or Undecided

The above sketch provides a helpful framework for understanding the three main camps that have been developed to date. But it is unclear how some states fit within this scheme, while others are yet to privately decide or publicly declare their positions.

India provides a good example of a state whose position is “unclear.” India radically revised its Model BIT in 2015 to eschew traditional approaches to investor-state arbitration, but its overall position is uncertain. India is loyalist in the sense that it still provides for investor-state arbitration, yet it comes close to being revolutionary given how much it restricts access to such arbitration. For instance, before an investor can bring an investor-state claim, it must first seek to exhaust domestic remedies for a period of up to five years. It may then proceed to arbitration within a very narrow time frame, though investor-state arbitral tribunals are not permitted to review the merits of a decision made by a judicial authority of one of the treaty parties. India’s Model BIT also suggests an openness to an appellate mechanism, so it is potentially reformist as well.

The vast majority of states have not yet taken a public position on whether and, if so, how to reform investor-state arbitration. One might be tempted to place these “undecided” states in a group supporting the traditional approach to investor-state arbitration because many of them have a significant number of investment treaties with these clauses on the books. But this would be a mistake as many of these states are concerned about or unhappy with investor-state arbitration and are actively considering their options. One of the biggest questions for the investment treaty system in the coming years is what positions these states will take.

One major player within this camp is China. Instead of aligning itself squarely with an existing camp, China may well develop its own distinct or hybrid approach. In keeping with the high levels of variance across its treaties, China may be happy to develop its approach on an incremental, case-by-case basis instead of seeking to forge a multilateral or regional one-size-fits-all solution. Indeed, China’s existing practice has elements of all three approaches, though its dual interests as a capital importer and exporter suggest that it is likely to align itself somewhere between loyalty and reform. China has accepted investor-state arbitration in many of its treaties. China’s experience in the World Trade Organisation may well make it comfortable with developing an appellate mechanism – as it adverted to in ChAFTA. In some recent treaties, China has also required partial exhaustion of the domestic administrative remedies.

Other states in the undecided category are more likely to view themselves as law-takers rather than law-makers. On a bilateral level, some of these states will end up adopting the position advocated by whichever stronger treaty party they happen to be in negotiation with. For instance, Vietnam accepted a bilateral investment court in its Free Trade Agreement with the EU, but it has not joined with Canada and the EU in promoting this as a multilateral solution. Instead of expending considerable energy coming up with their own approach, many law-taking states think it makes sense to watch how the various reform options develop, including which states are adopting which positions and how other states are responding. Once the new landscape begins to take shape, some of these states may well choose to align themselves with one of the existing or newly formed camps. Waiting is also strategic at this time because what is considered politically acceptable may change during this window. For instance, if more states start adopting the revolutionary approach, other states may have less fear that joining that group will do them reputational damage as being unfriendly to investment.

Evolution, Change and Shifting Alliances

The investment treaty system is a dynamic field and the question of institutional reform is going to be a key concern in coming years. There are a number of important negotiations to watch, including the potential re-enlivening of the Trans-Pacific Partnership (which adopts a loyalist approach) and the Regional Comprehensive Economic Agreement (which is yet to publicly announce an approach). Various developments in South America are also lending support to the revolutionary approach, including in Ecuador and with the Mercosur states.

Hovering above all of this analysis is the question of what will happen with the United States. The United States has been a loyalist of the system, partly because it has benefited greatly from the bilateral approach. Its investors have been able to push for strong, investor-friendly interpretations of investment agreements against a variety of other states. At the same time, the United States has been able to successfully defend every case brought against it and has pushed to develop a relatively more sovereignty-protective approach under NAFTA, which is the treaty under which it has generally been sued. Yet what the US position (or positions) will be under President Trump remains anyone’s guess.

The preferences of some states may also depend on the actions of other states. For instance, the loyalists may prefer to stick with investor-state arbitration, but if these states see a large number of states being at risk of defecting to the revolutionary camp, they are more likely to embrace modest reform proposals to keep these potential defectors within the tent. If so, we might see intermediate positions develop between the more minimalist reforms of the loyalists and the more maximalist reforms of the EU and Canada. Options would include: having states play a role in selecting initial panels of arbitrators from which the disputing parties could select; and developing an appellate mechanism without an investment court. The same could happen between the poles of reform and revolution with, for instance, the introduction of exhaustion of local remedies coupled with an investment court or appellate body.

What is unlikely to happen, however, is that many (or any) states will shift their position from being loyalist, reformist or revolutionary back toward embracing the traditional model of investor-state arbitration. Change is coming; it is just a question of what change will occur and when and how it will transpire. In this regard, it is noteworthy that reform of investor-state dispute settlement is on UNCITRAL’s agenda as a possible future work stream, to be considered at the Vienna session in July 2017. Perhaps states will be able to agree on the need to discuss such reforms in a multilateral forum, even if they remain unable to agree (at least for now) on what reform or reforms might need to be adopted.

Corporations Suing in Defense of Human Rights? Lessons from Arkansas

EJIL:Talk! - Tue, 06/13/2017 - 15:00

Debates regarding corporate responsibility and human rights have centered on claims that corporations or their contractors are directly violating certain human rights or assisting states in doing so.  Whether in the extractive industries (Shell in Nigeria), the apparel industry (the Bangladesh apparel factory collapse), or even software (Google searches in China), many civil society groups see the multinational corporation as a right-violator or at least rights-violation enabler.  But a recent episode in Arkansas – the home of Bill Clinton and the 1957 school desegregation crisis, but also one of the 31 U.S. states with the death penalty — shows corporations taking the offensive for human rights.

Over the last decade, the manufactures of the drugs involved in lethal injections have adopted policies asserting that they will not sell their drugs for that purpose.  A typical example is the 2015 policy of Akorn:

“Akorn strongly objects to the use of its products to conduct or support capital punishment through lethal injection . . . . To prevent the use of our products in capital punishment, Akorn will not sell any product directly to any prison or other correctional institution and we will restrict the sale of known components of lethal injection protocols to a select group of wholesalers who agree to use their best efforts to keep these products out of correctional institutions.”

The companies’ commitment to avoid participation in lethal injection extends to creating an internal protocol in their sales practices, with a goal of keeping the drugs out of the hands of the executioners.

The stakes were raised in Arkansas in April when McKesson Medical-Surgical Inc. sued the state, seeking a preliminary injunction to obtain the return of chemicals it sold to the state corrections department or a guarantee that they would not be used for executions.  McKesson asserted that prison officials deceived the company into selling them one hundred vials of vecuronium bromide, a chemical that causes paralysis during executions.  McKesson claimed that the officials called a sales representative they knew and that McKesson filled the order without knowing their ultimate use.  The legal claims were based on state contract law as well as a violation of the takings clause in the Arkansas Constitution. The next day, a judge in Pulaski County (which covers Little Rock) issued the preliminary injunction.  The state immediately appealed the ruling to the state supreme court, which stayed the injunction.  Over the next week, Arkansas executed four prisoners using the three-drug method that includes vecuronium bromide, although the source of the drug actually used remains publicly unavailable.

McKesson’s legal case may have sounded in Arkansas contract law, but it had human rights written all over it.  Here are the key international legal issues – and some moral aspects — and implications of the case:

A. Was McKesson ever at risk of participation in a human rights violation at all? 

The answer to this question depends in part on one’s assessment of the consistency of the death penalty, as practiced in the United States, with human rights law, in particular the ICCPR and the Convention against Torture (CAT).  The United States has maintained, notably in its 2011 report to the Human Rights Committee and 2013 report to the Committee Against Torture, that the death penalty is consistent with the ICCPR and the CAT.  The Committees, and numerous NGOs, have strongly disagreed, noting serious procedural flaws in death penalty cases as well as the possibility of severe pain during the execution.  For the rest of this post, I will assume that the death penalty in the United States violates the ICCPR due to the arbitrariness with which it is carried out.

We thus enter the legal landscape on corporate responsibility for human rights violations.  The most important elaboration of standards relevant to McKesson’s situation, the UN Guiding Principles on Business and Human Rights (UNGPs), devotes some attention to the question of corporate complicity in the conduct of other actors.  In elaborating the corporate responsibility to respect human rights (one of the three pillars of the UNGPs), Principle 13 states that businesses should, in addition to avoiding harm through their own activities, also “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”  Principle 17 specifies that companies should carry out “due diligence” to prevent such impacts and goes on to explain various understandings of complicity.

Complicity itself has moral and legal meanings, and different legal meanings depending on the context (state vs. individual responsibility, criminal vs. civil wrongs, etc.).  In their book Complicity and Compromise, Robert Goodin and Chiara Lepora parse the various moral understanding of complicity and identify a number of gradations.  Under their view, the sale of drugs to a state with the knowledge that they are being used for executions would constitute “complicity simpliciter,” in that the acts of the drug companies “contribute causally . . . to the implementation of the principal wrongdoing [b]ut they do not in any way ‘constitute’ the principle wrongdoing.”  (pp. 42-43.)  As an international legal matter, complicity by non-state actors has multiple meanings, including the aiding and abetting concept in international criminal law (an area subject to significant disagreement, as James Stewart demonstrates well here).  Without getting too far into the weeds about actus reus and mens rea, it would seem that the knowing supply of drug for execution, assuming that executions are a human rights violation, is an example of moral and legal complicity in that violation.  So, yes, McKesson was at risk of a form of complicity.

B. What was McKesson’s duty in this situation? 

No treaty specifies a duty on corporations, or a duty on states to require corporations, to prevent their complicity in human rights violations as a general matter — although, for instance, international labor treaties impose duties on states to regulate corporate conduct that can harm individuals.  The Guiding Principles are only soft law.  Yet a number of jurisdictions have begun to give them quite a hard shell, such as the EU and requirements on conflict minerals (EU rules here; US rules here, although an appeals court found one part unconstitutional and the Securities and Exchange Commission is limiting enforcement pending a reconsideration by the current administration), and France’s recent law on due diligence across all sectors (here).  It’s important to remember that the Oklahoma prison was a purchaser of McKesson’s drugs.  For purposes of the Guiding Principles, however, the rights violation of a customer is still “directly linked to their operations, products or services by their business relationships.”  Yet  it’s certainly a different case from the acts of a contractor or a supplier.  Indeed, the new French law covers only “sous-traitants ou fournisseurs,” i.e., contractors and suppliers, which would not address customers.

The UNGPs recognize the different economic relationships between a company and those who violate human rights when they state that actions required as part of a company’s due diligence will depend upon “the extent of its leverage” (Principle 19).  And the commentary elaborates further that where the violation is only linked to company activities (without the company actively contributing to it), then the action required will turn on “the enterprise’s leverage over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences.”  Applying these factors to McKesson, the company would seem to have significant leverage over the state prison system (as it is one of a small number of producers of the drug); the relationship with the prison does not seem crucial commercially to McKesson (one suspects it is not a major part of their business); the abuse is quite severe; and return of the drugs would not have adverse impacts.  So, in this case, McKesson’s responsibilities would extend to taking steps to stop the use of its drugs for executions, a course of action it tried through the attempt at an injunction.

C. Does it matter what McKesson’s motivations were? 

The decision of McKesson and the other drug manufacturers to prevent the use of their products for executions was probably motivated by a combination of factors.  Shareholder and some management officials probably opposed the death penalty, and the company probably feared financial consequences – perhaps even boycotts – if it failed to take a stance on the issue.  NGOs like Reprieve played a role as well.  There might even have been a sense that normative expectations about corporate conduct were changing globally after the Guiding Principles.  So moral, economic, and legal factors were probably all at play.  The juxtaposition of companies dedicated to improving human health and the use of drugs to kill the condemned was probably too much for them to handle.

Positivist approaches to law emphasize that the motivation for compliance is irrelevant to a rule’s status as law, though it’s generally a good thing for the rule of law if the legal nature of the norm had something to do with observance.  From the moral perspective, deontologists will care very much about the motivation for action – the essence of the Kantian approach to ethics — and so they might well be dissatisfied if McKesson’s actions were really driven by a concern for the bottom line.  I’m much more of a consequentialist, so the effects of McKesson’s lawsuit are the lodestar of its morality.  If it led the state to avoid using McKesson’s drugs for the execution, or even just to appeal the injunction, then it made it slightly harder for Oklahoma to violate human rights (again, accepting this view of the death penalty).

D. Is this case a precedent for a more proactive role for corporations in protecting human rights?

McKesson’s intervention provides some subsequent practice (in loose VCLT terms) on the scope of due diligence under the UNGPs.  That process extends not merely to monitoring the activities of the company and those with which it has commercial ties, but taking action, to the extent possible, to stop violations.  Here, it would seem that McKesson determined that the only way to prevent the use of its drugs for an execution was to go to court.  McKesson’s actions can at least serve as example to other companies about the strategies they can, or may need to, take to satisfy the due diligence standard.  Some companies will argue that going to court is not required by the UNGPs, and it’s possible that McKesson did more than they require.  But it still serves as a useful ratcheting up of the content of due diligence.

On the one hand, McKesson’s actions – and the decisions of Pharma to create internal procedures to prevent the use of their products for executions – result from a perfect storm of factors favoring progressive action by companies: an unambiguous norm, the ban on the death penalty, with wide support in much of the world; relative ease at developing an internal corporate plan to keep the company away from the violation; and lack of any dependence on the violator for the company’s business.  If any of those factors are absent, companies will probably be less inclined to take a leadership role in ending a human rights abuse.  It’s hard to imagine, for instance, Google going into a Chinese court to prevent the state from blocking access to certain websites in order to avoid complicity in violations of freedom of expression.  And it’s even harder to imagine Google stopping sales in China to prevent such violations.

But big Pharma’s actions show the promise of corporate leadership in other cases. Corporations can have leverage, for example when they are the only supplier of a product that the state has used to violate human rights.  By stopping sales, taking customers to court, or putting in place an internal system to prevent the use of the product, corporations can cut off violations at an early stage (though states can always seek other suppliers with fewer moral scruples).  This sort of proactive involvement clearly requires either corporate leaders with a human rights focus, or advocacy by those with influence over the bottom line — customers and shareholders — to make the business case for taking due diligence more seriously.

Foreign control and ICSID jurisdiction on Energy Charter Treaty Claims of Local Companies: The Eskosol Case

EJIL:Talk! - Mon, 06/12/2017 - 08:00

The ICSID tribunal in Eskosol in liquidazione v. Italy rejected Italy’s Rule 41.5 application to have the claim thrown out for being “manifestly without legal merit.” I offer a summary and some reflections on two interesting aspects on the tribunal’s jurisdiction.

Background

The claimant challenged, under the Energy Charter Treaty (ECT), Italy’s 2011 regulatory rollback regarding a feed-in tariffs (FIT) scheme (check this report by the claimant’s lawyers). Investment connoisseurs are familiar with the topic, litigated in Charanne, Eiser and other exhausted or pending cases, some confidential. The claimant is an Italian company, Eskosol in liquidazione (bankruptcy receivership). Eskosol claims to have invested in a 120-megawatt photovoltaic energy project, expecting to benefit from the 20-year FIT scheme. At the time of the rollback, the Belgian company Blusun held 80% of Eskosol. Eskosol alleged that this change rendered its business unviable. It abandoned its projects, became insolvent and entered bankruptcy receivership in November 2013. In December 2015, the tribunal-appointed receiver brought the ICSID claim, on the company’s behalf.

Blusun, the Belgian company controlling 80% of Eskosol, had brought ICSID proceedings  in 2014, under the ECT, against the same measures. Eskosol attempted to file a non-party submission in that arbitration, asserting that Blusun had usurped its claim and sought damages owed to Eskosol alone. Blusun’s abusive claim would prejudice the rights of Eskosol, its creditors and its minority (non-Belgian) shareholders, since Blusun showed no intention to channel any potential gain to Eskosol. Eskosol’s request was denied. Blusun’s claim failed on the merits in December 2016, and in May 2017 Blusun launched annulment proceedings.

The Decision 

In Eskosol, Italy raised four Rule 41.5 objections for expedite consideration (i.e., invoking glaring legal impediments and not hinging on disputed facts [36; 98]; see Álvarez y Marín [95]). The tribunal considered Eskosol’s claim not “manifestly” meritless. This conclusion does not prejudge the defendant’s full preliminary objections, which the tribunal shall examine, jointly with the merits, in the next phase.

  1. Nationality of the investor and “foreign control”

Eskosol, an Italian company, sued Italy invoking “foreign control,” under Article 25.2(b) of the ICSID Convention and Article 26.7 of the ECT, which reads:

An Investor … which has the nationality of a Contracting Party … and which, before a dispute … arises, is controlled by Investors of another Contracting Party, shall for the purpose of article 25(2)(b) of the ICSID Convention be treated as a “national of another State.”

Italy rebutted that foreign control must be ascertained at the moment of consent to arbitration (the presentation of the ICSID claim) and that, since 2013, the claimant was no longer under foreign control. The bankruptcy declaration shifted the company’s control to an Italian receiver supervised by an Italian judge. The 80% equity held continuously by Belgian Blusun, which lost management powers, would not evince effective foreign control at the time of the arbitration. Effective – rather than formal – control is required under Article 25.2(b) ICSID and Article 26.7 ECT, in light of the Understanding regarding Article 1.6, annexed to the ECT.

The tribunal noted that neither provision requires expressly foreign control on the date of consent. It doubted whether Article 25.2(b) ICSID stipulates such requirement, remarking that Rule 41.5 proceedings are ill-fitted for the interpretation of “ambiguous treaty language” [99]. This conclusion pre-empted the analysis of the “effective control” objection, which sought to rebut the presumption that mere foreign majority shareholding equals “foreign control.”

  1. Eligibility as “investor”

Italy also characterised the claimant as a mere instrumentality of the Belgian holding company, not an actual “investor.” The tribunal understood this objection to suggest that the ICSID concept of “investor” has some objective features, including “some threshold level of substance in operation, beyond legal form” [118]. The tribunal appreciated the “interesting question,” a variation of the familiar inquiry into the objective features of ICSID “investments.”  However, a lack of precedents and the relevance of disputed facts to this objection made it impossible to uphold in Rule 41.5. proceedings [120].

  1. Parallel proceedings

Italy also argued fork-in-the-road and res judicata, invoking the parallel Blusun arbitration. Under Article 26.3(b)(i) ECT, consent to arbitration is withdrawn when the investor already submitted the dispute to domestic courts or other agreed procedures. A fortiori, Italy argued, repeat ECT claims brought to ICSID must be barred. For the tribunal, the case’s circumstances evoke “repeat travels down the identical path” rather than T-junctions, and would be better addressed by the res judicata objection [134]. The tribunal doubted whether Blusun and Eskosol are the same investor [135], a requirement of fork-in-the-road objections.

The same doubt affected the res judicata claim. The tribunal observed that the ECT offers separately arbitration to local companies’ foreign shareholders (the shares being their investment) and/or to those same companies, autonomously, on grounds of foreign control. Essentially, the Treaty itself paves the way for parallel claims.

The tribunal acknowledged the risk of abuse, for instance when a company and the shareholders holding its 100% act separately [167]. In Eskosol, however, Blusun’s share was 80% and the two claims were not coordinated, hence Blusun and Eskosol were not “manifestly” the same party. Without an ICSID mechanism requiring the joinder of shareholders’ and companies’ claims, their respective actions can proceed separately [170].

Finally, the tribunal invited Italy to share the Blusun award with the tribunal. Therein might be some persuasive arguments pointing to the same conclusions on the merits, pace all plausible worries regarding procedural abuse and duplication [171].

When Control Must Be Assessed under ECT Article 26 

Let us sidestep for argument’s sake the plausible argument that Article 25 ICSID requires foreign control when arbitration is launched – which would make Italy’s case much stronger, pushing the relevant date back by years.

The tribunal’s analysis under the ECT rules is quite cavalier. Article 26 ECT requires foreign control “before a dispute.” It discourages nationality-shopping, that is, seeking access to arbitration after the dispute, through foreign control. Essentially, “before a dispute” stands for “not after it.” The claimant readily conceded this clause to mean “immediately before” or “as of the moment” the dispute arose: the time to ascertain control is not any time before the dispute, but precisely when the dispute arises [96].

Yet, the tribunal did not bother checking when the dispute arose. Simply, since “at the time of the two State measures challenged” Eskosol was controlled by Blusun, the requirement was “indisputabl[y]” met [87; 97].

This is a non sequitur: nothing in the decision suggests that the dispute arose precisely when the measures were passed, and a coincidence of dates cannot be presumed. See Duke v Peru [148]:

What is decisive of the tribunal’s jurisdiction ratione temporis is the point in time at which the instant legal dispute between the parties arose, not the point in time during which the factual matters on which the dispute is based took place.

See also Maffezini [98]:

… the existence of the dispute presupposes a minimum of communications between the parties, one party taking up the matter with the other, with the latter opposing the Claimant’s position directly or indirectly.

Disputes might pre-date the contentious measures, see Venezuela Holdings v Venezuela [210]. More typically, dispute follow the breach, crystallising when the claimant’s notification of a complaint based on certain putative rights is ignored or rejected. Disputes arise when there is a certifiable difference of views regarding the parties’ legal positions vis-à-vis each other, “concern[ing] an alleged breach of an obligation [of the ECT]” (Article 26.1 ECT).

Recently, both the ITLOS (in Norstar [85; 132]) and the International Court of Justice (in Marshall Islands [37-40]) inquired into the decisive matter of whether a dispute arose – and when. They did not take disputes for granted, as the Eskosol tribunal apparently did. The question is vital: if the dispute arose after the Belgian shareholder lost control, between 2013 and 2015, the tribunal might lack competence.

Ultimately, if entry into receivership marks the moment after which “foreign control” ceases to exist (see below), Eskosol must prove that an ECT-related dispute already existed then, lest the tribunal throw the case out, even ex proprio motu.

Effective Foreign Control 

Neither Article 25.2(b) ICSID nor Article 26.7 ECT expressly requires effective “foreign control,” but control, unlike ownership, cannot be determined formalistically. ECT parties’ Understanding regarding Article 1.6 confirms as much: control means “control in fact, determined after an examination of the actual circumstances in each situation.”

Moreover, Article 25 ICSID implicitly requires ascertaining effective control. Applying both Article 25.2(b) ICSID and Article 26.7 ECT requires a “double keyhole” approach: the provisions’ requirements cumulate, they are not alternative (see TSA v Argentina [134]). On foreign control, the TSA tribunal noted [147; 153]:

the existence and materiality of this foreign control have to be objectively proven in order … to establish ICSID jurisdiction … [a fortiori] when ultimate control is alleged to be in the hands of nationals of the host State, whose formal nationality is also that of the Claimant corporation.

Whilst the tribunal referred to this doctrine only “for the sake of argument” [100; 108], it seems commonly accepted, see National Gas v Egypt [149]. Even assuming arguendo that effective foreign control as necessary, the tribunal doubted that bankruptcy receivership ended it. Two comments are appropriate.

First, the tribunal accepted arguendo Italy’s argument that the bankruptcy filing displaced foreign control. This is a proposition based on Italian law, essentially a factual matter which, understandably, might be unfit for resolution through Rule 41.5 proceedings. Yet, the tribunal oddly remarked that foreign control would only disappear

… so long as the entity remains in bankruptcy; … [Eskosol’s] shareholders could choose to infuse additional capital into the company, or strike a direct payment deal of some sort with Eskosol’s creditors, to enable it to satisfy its debts and return to operations [104].

Why the tribunal daydreamt about such scenario is unclear. The jurisdictional test requires ascertaining who held effective control at a precise moment (of the dispute or the claim), not who could hypothetically recover it in the future, or who held it in the past (the tribunal slipped in references to Blusun’s control “prior” to the bankruptcy [104] and the contentious measures [105]).

Jurisdictional requirements must be ascertained as existing, not as imaginary. Historic or even hypothetical foreign control (that Eskosol’s shareholders “could choose” to reinstate) is so fundamentally irrelevant for the tribunal’s competence that its mentioning is alarming.

Second, the tribunal is apparently concerned about unfair outcomes of the Loewen kind.

the State could avoid scrutiny of its acts by virtue of their own consequences, simply by invoking the predictable reality that local bankruptcy proceedings always will be supervised by local courts …there … is no logic to divesting the entity of its otherwise applicable right to seek redress for grievances against the State – particularly when doing so might enable it to reverse its financial fortunes enough to emerge from bankruptcy [106].

This sentence betrays the tribunal’s temptation to disregard “effective foreign control” for equity reasons, but it misfires. Italy’s objection is not purely ratione voluntatis, but also ratione temporis. There was no fundamental preclusion of Eskosol’s right to bring ICSID claims. When the challenged measures occurred, years before the bankruptcy, Eskosol could take steps to bring arbitration proceedings (notifying its discontent, occasioning a dispute, seeking an amicable settlement for three months). This was possible in 2011, 2012 and most of 2013.

If, subsequently, the claimant no longer met Article 26.7 ECT’s requirement, it was not because it was “divested of its otherwise applicable right,” but because it failed to exercise it timely. Certainly, the tribunal’s jurisdiction cannot be expanded ex aequo et bono just because, if the claimant succeeded, its “its financial fortunes” could be reversed.

Whether Eskosol “could choose to infuse additional capital” and return to operations is both true and irrelevant. Eskosol “could choose” to bring arbitration beforehand, but failed to do so and that path might be foreclosed.

 

Announcements: The Law and Policy of Brexit; Human Rights Research Students’ Conference; PluriCourts Centre of Excellence Workshop Series; CfA Postdoctoral Researcher – The Paths of International Law; CfP The Use of Law by Social Movements and Civil...

EJIL:Talk! - Sun, 06/11/2017 - 15:30

1. The Law and Policy of Brexit. Maastricht University Brussels Campus: 30 June 2017. This conference will include the following panels: (i) the future of EU-27; (ii) future EU-UK relations; (iii) Northern Ireland and Scotland after Brexit. Confirmed speakers: Prof Kenneth Armstrong (Cambridge), Dr Lorand Bartels (Cambridge), Prof Monica Claes (Maastricht), Prof Sionaidh Douglass-Scott (QMUL), Prof Christina Eckes (Amsterdam), Dr Veronika Fikfak (Cambridge), Prof Christopher McCrudden (Queens Belfast), Prof Hildegard Schneider (Maastricht), Prof Jure Vidmar (Maastricht) and Prof Jan Wouters (KU Leuven). The venue for this conference is Maastricht University Brussels Campus, Avenue de l’Armée 10, 1040 Brussels, Belgium, and it will be held on 30 June 2017 from 10.30-17.30 Attendance is free of charge, but please register here.

2. Human Rights Research Students’ Conference. This Postgraduate Research Students’ conference is on Friday 11 November 2016, 9.00am – 6.00pm at Senate House, School of Advanced Study, University of London. It is aimed at students working within the broad interdisciplinary field of human rights and social justice. The conference aims to stimulate research on contemporary human rights issues, problems, challenges and policies, and to facilitate the dissemination of such research. We are particularly interested in inviting papers which go beyond disciplinary boundaries to embrace interdisciplinary perspectives on human rights themes. We welcome papers from many (and multiple) disciplines including Sociology, Criminology, Anthropology, International Relations, Law, Environmental Justice, Politics, Migration Studies, Philosophy, Economics, Peace and Conflict Studies, Development Studies, History and the study of social movements. Please send abstracts of up to 350 words to HRC {at} sas.ac(.)uk var mailNode = document.getElementById('emob-UEP@fnf.np.hx-62'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%48%52%43%40%73%61%73%2E%61%63%2E%75%6B"); tNode = document.createTextNode("HRC {at} sas.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-UEP@fnf.np.hx-62"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by 15 June 2017. For more information, see here.

3. PluriCourts Centre of Excellence at Oslo University Workshop Series on “Identity on the International Bench”. The PluriCourts Centre of Excellence at Oslo University is organizing a workshop series on “Identity on the International Bench”. On 11 and 12 January 2018, the first workshop will focus on Gender on the International Bench will take place in The Hague. Currently women judges make up on average 17% of international courts and tribunals, demonstrating significant disparity regarding the participation of women on the bench across different international legal regimes. Such lack of representativeness can affect the legitimacy of the international dispute settlement process and its outcomes. The aim of this workshop is to analyse causes and effects of the dearth of women judges, and the resulting implications for the legitimacy of international adjudicatory institutions and the judicial decisions rendered. This will include an examination of international rules and practices concerning appointment and composition of the bench, judicial behaviour linked to the absence or presence of female judges, and potential effects on compliance with judicial awards. Please find the Call for Papers here. Proposals should be submitted via freya.baetens {at} jus.uio(.)no var mailNode = document.getElementById('emob-serln.onrgraf@whf.hvb.ab-77'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%66%72%65%79%61%2E%62%61%65%74%65%6E%73%40%6A%75%73%2E%75%69%6F%2E%6E%6F"); tNode = document.createTextNode("freya.baetens {at} jus.uio(.)no"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-serln.onrgraf@whf.hvb.ab-77"); mailNode.parentNode.replaceChild(linkNode, mailNode);  and c.m.bailliet {at} jus.uio(.)no var mailNode = document.getElementById('emob-p.z.onvyyvrg@whf.hvb.ab-74'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%2E%6D%2E%62%61%69%6C%6C%69%65%74%40%6A%75%73%2E%75%69%6F%2E%6E%6F"); tNode = document.createTextNode("c.m.bailliet {at} jus.uio(.)no"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-p.z.onvyyvrg@whf.hvb.ab-74"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by 31 July 2017.

4. CfA: Postdoctoral Researcher in the ERC-funded Project “The Paths of International Law”, Graduate Institute, Geneva. The Graduate Institute for International and Development Studies in Geneva is recruiting a postdoctoral researcher for the ERC-funded research project “The Paths of International Law: Stability and Change in the International Legal Order”. The successful applicant will work closely with the principal investigator, Professor Nico Krisch, in the realization of the project, through both theoretical work and case studies in different issue areas of international law. Candidates should be enthusiastic about work in an interdisciplinary research team, and they should have an outstanding PhD in international law or international relations and be familiar with the respectively other field. The position is open from 1 October 2017. Recruitment will be for two years, with a possibility of extension up to five years. The gross starting salary will be CHF92,500pa. Further details on the project, the position and the application process can be found here.

5. Call for Papers: The Use of Law by Social Movements and Civil Society. This international and interdisciplinary symposium is organized by the Concerted Research Action on Strategic Litigation (Université Libre de Bruxelles and Université catholique de Louvain) and the International Sociology Association Research Committee 47 ‘Social Movements’. It will be held in Brussels on 22 and 23 March 2018. Keynote speakers include Michael McCann (University of Washington), Boaventura de Sousa Santos (University of Coimbra); Liora Israël (EHESS, Paris); Shalini Randeria (IWM, Vienna) and Bruno Frère (University of Liège). Proposals of max. 500 words should be submitted in English or in French by 1 October 2017 to arc-strategic-litigation@ulb.ac.be. Details on the symposium can be found here.

Announcements: Lectureship Oxford University; Post-Doctoral Researcher Graduate Institute Geneva

EJIL:Talk! - Sat, 06/10/2017 - 09:30

1. The Faculty of Law of the University of Oxford invites applications for a fixed-term Departmental Lecturership in Law, from 1 October 2017 for one year.  The postholder will be required to pursue internationally leading research in Public International Law; to teach and supervise undergraduate and graduate students for the Faculty and St Peter’s College; to provide administrative and pastoral support; and to examine. Applicants must have a proven record of high quality research and publication in Public International Law commensurate with their career experience; relevant teaching experience; a doctorate in Public International Law, or at least have submitted a completed doctoral dissertation for examination, or have attained a comparable level through their publications; demonstrate the capacity to pursue an independent scholarly and research agenda; and have the ability and willingness to undertake pastoral responsibilities associated with undergraduate and graduate teaching, and administrative duties as required.  To apply for this role and to download the further details see here (Vacancy ID: 129045). Applications, written work and references must be submitted before noon on Friday 30 June 2017.  Interviews will be held in Oxford in early July 2017.

2. The Graduate Institute for International and Development Studies in Geneva is recruiting a postdoctoral researcher for the ERC-funded research project “The Paths of International Law: Stability and Change in the International Legal Order”. The successful applicant will work closely with the principal investigator, Professor Nico Krisch, in the realization of the project, through both theoretical work and case studies in different issue areas of international law. Candidates should be enthusiastic about work in an interdisciplinary research team; they should have an outstanding PhD in international law or international relations and be familiar with the respectively other field. The position is open from 1 October 2017. Recruitment will be for two years, with a possibility of extension up to five years; the gross starting salary will be CHF92,500pa. Further details on the project, the position and the application process can be found here.

First Global Treaty Against Illegal, Unreported, and Unregulated (IUU) Fishing Enters into Force

EJIL:Talk! - Fri, 06/09/2017 - 08:00

While the world reacted to the US withdrawal from the Paris Agreement on June 2, a landmark global marine environmental agreement entered into force three days later with the FAO Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated (IUU) Fishing [hereafter, “Port State Measures Agreement or PSMA”].  This first global treaty to combat IUU fishing recognizes that “measures to combat IUU fishing should build on the primary responsibility of flag States and use all available jurisdiction in accordance with international law, including port State measures, coastal State measures, market related measures, and measures to ensure that nationals do not support or engage in IUU fishing” (PSMA, Preamble, paragraph 3), and is designed “to prevent, deter and eliminate IUU fishing through the implementation of effective port State measures, and thereby to ensure the long-term conservation and sustainable use of living marine resources and marine ecosystems.” (PSMA, Article 2).

IUU fishing endangers food security, community livelihoods, and marine environments in many developing countries around the world, particularly in hotspots in West Africa and the Asia-Pacific, causing annual estimated losses worldwide at around USD $23.5 billion to developed and developing coastal States, including the United States and the European Union. IUU fishing directly impoverishes local fishing communities, which in West Africa, for example, is estimated at around USD$ 1.3 billion a year. IUU fishing also exacerbates the problem of unsustainable fishing in the world, where 53% of the world’s fisheries are already fully exploited, and a further 32% are overexploited and depleted. The Food and Agriculture Organization (FAO) and the UN Environmental Programme (UNEP) cautioned in 2009 that the destructive impacts of IUU fishing include, among others, the “extinction (or high risk of extinction of the resource and/or the productive ecosystem and its biodiversity.” (p. 7 of FAO/UNEP Expert Report). The prevalence of IUU fishing in the world is illustrated in the map below (source here), where regional hotspots for IUU fishing are in the Eastern Pacific, the Northwest Pacific, West Africa, Southeast Asia, and Pacific Islands:

To date, not all States implicated in the key IUU hotspots are  parties to the Port State Measures Agreement (PSMA), which to date are only Australia, Barbados, Chile, Costa Rica, Cuba, Dominica, the European Union (as a member organization), Gabon, Guinea, Guyana, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Saint Kitts and Nevis, Seychelles, Somalia, South Africa, Sri Lanka, Sudan, Thailand, Tonga, the United States of America, Uruguay, and Vanuatu.  This post discusses some of the key features of the PSMA, which focus on harmonizing standards for States’ domestic control of their ports, and the coordinated enforcement of international rules to prevent and penalize IUU fishing.

Applicability

Parties apply the measures under the PSMA to foreign vessels seeking entry to their ports, with some qualifications. (PSMA, Article 3).  The PSMA does not prejudice parties’ sovereign rights to their maritime and territorial areas, respects States’ exercise of sovereignty over their ports, and ensures consistency with States’ preexisting obligations and international maritime standards and rules, especially those under the International Maritime Organization (PSMA, Article 4).  It encourages States to cooperate and coordinate on port State measures and exchange information (PSMA, Articles 5 and 6).

Port State Measures

With respect to port entry authorizations and identification procedures and requirements, port States can additionally obtain information from foreign ships “to determine whether the vessel requesting entry into the port is engaged in IUU fishing” (PSMA, Article 9), and possibly deny port entry for vessels determined to have engaged in IUU fishing or related activities [PSMA Article 9(4)], without, of course, affecting international rules on entry into force of vessels in ports in cases of force majeure or distress [PSMA Article 10].  Further restrictions can be imposed on foreign vessels already in port where the port State has “reasonable grounds to believe that the vessel was otherwise engaged in IUU fishing or fishing related activities” [PSMA Article 11(1)(e)].  Port States are also mandated to comply with agreed upon minimum levels of inspection of vessels [PSMA Article 12(2)], with transparency in the transmittal of inspection results to the flag State of the inspected vessel [PSMA Article 15]. The port State can pursue other actions after inspection, including notifying the flag State and appropriate regional fisheries management organizations (RFMOs), or denying the vessel the use of the port for landing, transshipping, packaging and processing of fish and other port services such as refueling, resupplying, maintenance, and dry-docking. [PSMA, Article 18].

IUU inspections procedures by port States are expected to be fair and nondiscriminatory and transparent [PSMA, Article 13(h)].  Annex B to the PSMA outlines the ten mandatory procedures that inspectors should follow in conducting vessel inspection to ascertain if the vessel has engaged in IUU fishing activities.

Role of Flag States 

Flag States should require vessels entitled to fly their flags to “cooperate with the port State in inspections” carried out under the PSMA. [PSMA, Article 20(1)].  If flag States have “clear grounds to believe that a vessel entitled to fly its flag has engaged in IUU fishing or fishing related activities in support of such fishing and is seeking entry to or is in the port of another State”, they shall request the port State to inspect the vessel or take other measures under the PSMA. [PSMA Article 20(2)].  When flag States receive inspection reports indicating that there are clear grounds to believe that vessels entitled to fly their flags have engaged in IUU fishing, they are required to immediately investigate, and upon sufficient evidence, take the necessary enforcement actions in accordance with the flag States’ domestic laws and regulations. [PSMA Article 20(4)].  Flag States must also notify other Parties to the PSMA and other port States and RFMOs of the measures they have taken pursuant to the PSMA. [PSMA Article 20(5)].

Special Requirements of Developing States

The PSMA also notably takes into account special requirements of developing States, which may not have the same level of port facility or capabilities to implement PSMA measures.  To this end, the PSMA allows for the provision of technical and financial assistance, and other cooperative arrangements, to developing countries so as to enable them to join the PSMA, and to be able to innovate and adapt their respective ports for implementation of PSMA measures.  [PSMA Article 21].  Annex D of the PSMA, in particular, discusses information systems and computerized communications that port States must establish to implement the PSMA.  Annex E of the PSMA provides guidelines for training inspectors to implement the PSMA, such as training on ethics; health, safety and security issues; applicable laws and national regulations, areas of competence and conservation and management measures of relevant RFMOs and applicable international law; collection, evaluation, and preservation of evidence; general inspection procedures; analysis of information required for validation of information by the master of the vessel; vessel boarding and inspection; verification and validation of information related to landings, transshipments, processing, and fish remaining onboard; identification of fish species, vessels and gear; electronic tracking systems; and post-inspection follow up actions.

Dispute Settlement

Any PSMA party can initiate “consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible.” [PSMA Article 22(1)]. Should consultations fail, then, “the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.” [PSMA Article 22(2)] If the dispute remains unresolved, then “any dispute of this character not so resolved shall, with the consent of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources.” [PSMA Article 22(3)].

Conclusion 

What is particularly landmark from the design of the PSMA is the standardization of inspection procedures and measures at port by port States (traditionally the exclusive domain of domestic laws); the reporting, investigation, and enforcement duties of flag States (again traditionally the purview of domestic laws); and the technical and funding facility created to realistically assist many countries who have different port enforcement capabilities with varying port facilities and systems.  This model of involving port States in a global cooperation with flag States and RFMOs – while also creating realistic opportunities for assistance to port States challenged by resource and technological constraints – should be similarly considered for other transnational organized crimes at sea, such as human trafficking and smuggling of migrants at sea, illegal drug trafficking at sea, arms smuggling, piracy and armed robbery, as well as to apprehend other perpetrators of marine environmental crimes.

40th Anniversary of the Additional Protocols of 1977 of the Geneva Conventions of 1949

EJIL:Talk! - Thu, 06/08/2017 - 08:00

On 8 June 1977, at the invitation of Switzerland, plenipotentiaries of more than one hundred States gathered at the “Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts” to finalize and adopt Additional Protocols I and II (APs I and II) to the 1949 Geneva Conventions (GCs). Together with the GCs, APs I and II form the core of international humanitarian law.

Their adoption forty years ago marks a milestone in the regulation of armed conflicts. By developing and supplementing the GCs, AP I and II significantly improved the legal protection of victims of armed conflicts. A key achievement of the APs I and II was codifying and developing rules on the conduct of hostilities and those related to the protection of civilians from the effect of hostilities. In treaty law, these rules had remained untouched since the Hague Conventions of 1907. Another crucial enhancement lies in the extension of the protection granted under the GCs to all medical personnel, units and means of transport, whether civilian or military. Both Protocols also expand on the obligations of parties under the GCs with respect to fundamental guarantees for all persons in the power of a party to an armed conflict, the prohibition of acts of violence against detainees and internees, and the requirements that parties provide them with basic necessities, and respect fair-trial guarantees in case of penal prosecution. Moreover, article 90 API brought a new control mechanism to international humanitarian law: the International Humanitarian Fact-Finding Commission.

APs I and II entered into force on 7 December 1978, six months after the second instrument of accession had been deposited by Libya.

One of the biggest successes of the APs is that participation in their negotiation was universal. While the GCs were largely negotiated by European States, all States Parties to the GCs or Members of the UN were invited to attend the Diplomatic Conference at which the Protocols were negotiated. Among other reasons, this explains why the Protocols took four years, and the Conventions only four months, to negotiate. Tellingly, although the authentic texts of the GCs were English and French, the Protocols are authentic in English, Arabic, Chinese, Spanish, French, and Russian. Thus, new States gained a greater sense of ownership of IHL, and the reaffirmation of basic IHL principles by the wider international community of the 1970s was an important goal in itself.

While the four GCs are now universally ratified, the same is not yet true for APs I and II, despite the trend towards wide acceptance. In 1990, only 96 States were parties to AP I and 86 to AP II. In 1995, after the disintegration of the Soviet Union, the number of States parties to APs I and II increased respectively to 146 and 133. Today, 40 years after their adoption, there are 174 States parties to AP I and 168 State parties to AP II, including China, Germany, Russia, France and the UK, as well as the big majority of NATO countries. Therefore, approximately 85 percent of States parties to the GCs (196) are today parties to APs I and II.

Let us now look at the facts and figures more closely. Western European and Others Group (WEOG): very satisfactory on the whole, though four absentees, namely Andorra, Israel, Turkey, United States of America. Africa: Very few absentees (Angola (AP II), Eritrea, Somalia). Eastern European Group: very satisfactory, only one absentee (Azerbaijan). Latin American and Caribbean Group (GRULAC): Only Mexico has not ratified AP II. Asia-Pacific Group: this is the region with the highest number of non-participating countries (four States have ratified API but not AP II (Iraq, DPRK, Syria, and Vietnam); 16 have ratified neither API nor AP II: Bhutan, India, Indonesia, Iran, Kiribati, Malaysia, Marshall Islands, Myanmar, Nepal, Pakistan, Papua New Guinea, Singapore, Sri Lanka, Thailand, Tuvalu). It should be added that the United States of America, Iran and Pakistan have signed but not ratified APs I and II.

To date, 38 States have formulated nearly 180 unilateral declarations pertaining to AP I, whereas 19 States have formulated 47 declarations pertaining to AP II. While it is not always easy to distinguish between reservations and interpretative declarations, a big majority of unilateral declarations do not appear to be reservations as defined by the Vienna Convention. One must note that reservations do not have solely unfortunate aspects; they also foster universal participation in a treaty.

Therefore, despite the universal participation of States during the negotiations of the APs, they are not yet universally ratified. The principal concerns of most States not ratifying AP I were the inclusion of wars of national liberation in the definition of international armed conflict under Art. 1(4) (which applied AP I and all provisions of the four GCs to conflicts in which peoples were fighting against colonial domination, alien occupation, and racist regimes), the recognition of combatant status to guerrilla fighters and the provisions on means and methods of warfare that would limit the use of certain weapons, including, it was believed, nuclear weapons. For AP II, extending the essential rules of IHL to NIACs, the fear was mainly that it might affect State sovereignty and prevent governments from effectively maintaining law and order within their borders. Negotiated between 1974 and 1977 during wars of national liberation, APs I and II were highly contested. However, today the context is very different.

40 years have now passed since the APs were adopted. This is in itself a good reason for States not yet parties to examine if the considerations raised at the time for not joining API and II are still relevant. Most of the States in the world finally joined API and II, including States such as France, Germany, and the United Kingdom, that had at first voiced reservations regarding their content (and indeed joined in the end, subject to a number of reservations and important interpretive declarations). Moreover, through the development of customary law and case-law of Ad-Hoc International Tribunals, the decision not to join APs I and II now has limited practical effect. All States are bound by most of the rules of the APs through customary international law (except in cases in which a State is considered a “persistent objector” of a specific customary norm). Therefore, most of the objections voiced at the time of the adoption of APs I and II appear to no longer constitute an obstacle to joining it. However, some doubts may still exist with regard to articles 43-44 of API, with respect to the definition of armed forces of a Party to the conflict and to the definition of combatant.

There is wide agreement that the rules of APs I and II have withstood the test of time, remain as pertinent as at the time of their adoption and that, in the main, they give expression to international customary law. However, perhaps at no time since 1977 is there a greater need to reaffirm international humanitarian law, as expressed in the two APs. In this respect, each additional ratification or accession would send a much needed signal in favor of the basic rules and principles designed to alleviate the suffering that accompanies today’s armed conflicts.

It therefore is pertinent to seize the occasion of the 40th anniversary of AP I and II to ask States three things:

  • Firstly, for all non-ratifying States of APs I and/or II: Are the reasons for not ratifying the APs still pertinent? If yes, are there ways to address lingering concerns and do the challenges outweigh the advantages of joining the APs? In most cases, most of the reasons for not joining the APs at the time they were drafted will appear to no longer constitute an obstacle to joining them today.
  • Secondly, for States parties to AP I: Are the reasons for not recognizing the competence of the International Humanitarian Fact-Finding Commission established under article 90 of AP I still pertinent? States Parties to AP I can make this recognition by depositing a declaration to that effect with Switzerland, the Depositary State of AP I. Out of 174 States parties to AP I, only 76 have done so.
  • Thirdly, are the reservations that States parties to AP I and/or II submitted at the time of ratification or accession still relevant? If not, withdrawal of these reservations should be considered in conformity with article 22 of the Vienna Convention on the Law of Treaties.

This article was written in a personal capacity and does not necessarily reflect the views of the Swiss Federal Department of Foreign Affairs (FDFA).

Self-Appointment in International Arbitration

EJIL:Talk! - Wed, 06/07/2017 - 08:00

At first glance, paragraph 14 of the UNCLOS Annex VII tribunal’s Order on Provisional Measures in Enrica Lexie (Italy v. India) appears quite mundane. It states in relevant part that “on 30 September 2015, the President of ITLOS appointed … H.E. Judge Vladimir Golitsyn as arbitrator and President of the Arbitral Tribunal” (para. 14). It becomes much more interesting, however, when one realizes that on 30 September 2015, the President of ITLOS was none other than Judge Golitsyn himself.

A similar phenomenon appears to have occurred in another high-profile UNCLOS Annex VII arbitration: Ukraine v. Russia. On 23 December 2016, the Ministry of Foreign Affairs of Ukraine revealed that Judge Boualem Bouguetaia would be a member of the tribunal, “express[ing] its gratitude to the Vice-President of [ITLOS] for rapid formation of the tribunal”. The Ministry failed to note, however, that on 23 December 2016 the Vice-President of ITLOS was none other than Judge Bouguetaia himself.

If it is true that Judges Golitsyn and Bouguetaia appointed themselves to the tribunals, they should not necessarily be reprimanded. After all, these self-appointments would be in accordance with Annex VII of UNCLOS. Article 3 of Annex VII provides that the parties shall appoint three of the five members of the tribunal by agreement, but if they are unable to agree, the appointments shall be made by the President of ITLOS or, if he or she is a national of one of the parties to the dispute, the next most senior member of ITLOS. In Enrica Lexie, this power fell on President Golitsyn. And in Ukraine v. Russia, since President Golitsyn is a national of Russia, this power fell on Vice-President Bouguetaia. Nothing in Article 3 prohibits the appointing authority from appointing him or herself to the arbitral tribunal.

Three Concerns

Nevertheless, an appointing authority’s self-appointment as an arbitrator, as a general matter in international arbitration, is subject to three potential concerns.

First, the appointing authority may have a conflict of interest. For example, he or she might be called upon to decide on a challenge to him or herself. Article 12(1) of the PCA Optional Rules for Arbitrating Between Two States (the PCA Rules) and Article 13(4) of the UNCITRAL Rules grant the appointing authority the power to decide on any challenge to an arbitrator. And while Article 58 of the ICSID Convention grants such a power to the other members of the tribunal, the appointing authority has the power to decide on the challenge in cases where those members are equally divided or the challenge is to a sole arbitrator or a majority of the arbitrators.

With respect to Enrica Lexie and Ukraine v. Russia, this concern may be mitigated. Annex VII tribunals, including the Enrica Lexie and Ukraine v. Russia tribunals, typically adopt their own ad hoc Rules of Procedure. The specific Rules of Procedure adopted by the two tribunals do not seem to create any conflicts of interest, but they also do not specify how decisions on challenges would be made. As a result, should a party file a challenge, the tribunals would have to establish a procedure for deciding on the challenge, as the Annex VII tribunal did in Chagos Marine Protected Area (Mauritius v. United Kingdom) (Reasoned Decision on Challenge, para. 13).

Second, the appointing authority may have sway over a fellow arbitrator by virtue of his or her role as appointing authority. This could be the case if the appointing authority is asked to decide on a challenge to that arbitrator, as discussed above. This could also be the case if the appointing authority appointed not just him or herself, but also that arbitrator, which could occur if the appointing authority has the power to appoint more than one arbitrator. For example, under Article 7(3) of the PCA Rules, when there are five members on the tribunal and the two party-appointed arbitrators do not agree on the choice of the remaining three arbitrators, the appointing authority has the power to appoint the three arbitrators. Even when there are only three members on the tribunal, the appointing authority could find itself with the power to appoint two arbitrators if one party does not appoint an arbitrator in time.

With respect to Enrica Lexie and Ukraine v. Russia, it appears that the appointing authority indeed appointed not only himself but also two other arbitrators on the tribunal, as permitted by Article 3(d) of Annex VII. In Enrica Lexie, Judge Golitsyn appointed Judge Paik and Judge Robinson, along with himself, to the tribunal (Order on Provisional Measures, para. 14). And in Ukraine v. Russia, it appears that Judge Bouguetaia appointed Judge Paik and Judge Gómez-Robledo, along with himself, to the tribunal (Ministry of Foreign Affairs of Ukraine). Whether Judges Golitsyn and Bouguetaia actually have sway over the other arbitrators they appointed, however, is open to discussion.

Third, one can argue that an appointing authority’s self-appointment as an arbitrator contravenes the intentions of the parties. As the argument goes, the very fact that the parties only agreed, directly or indirectly, on the appointing authority and not on the arbitrators reveals that they did not intend for the appointing authority to serve as an arbitrator. In addition, the parties likely would not have intended for the two aforementioned concerns to arise. On the other hand, one can argue that the parties’ agreement on the appointing authority demonstrates that they consider the appointing authority to be an impartial figure, making him or her an appropriate arbitrator. Furthermore, had the parties not intended the appointing authority to serve as an arbitrator, they could have expressly stipulated so in the underlying treaty.

With respect to Enrica Lexie and Ukraine v. Russia, this argument appears to be quite weak, as there has been no complaint from any of the parties that the appointing authority appointed himself. Nevertheless, perhaps such complaint will only arise upon the rendering of the award.

Alternative Scenarios

Notably, the aforementioned concerns do not arise only in the scenario where the appointing authority appoints him or herself to the tribunal. They could also arise where one or both parties appoint the appointing authority to the tribunal. This has occurred at least three times in interstate arbitrations.

First, in Eritrea/Yemen, Eritrea appointed Judge Stephen Schwebel as one of its two party-appointed arbitrators (Award on Territorial Sovereignty, para. 4). Not too long after, Judge Schwebel was elected President of the ICJ, and thus became the appointing authority under Article 1(5) of the arbitration agreement. In this particular case, the aforementioned concerns were not significant. The applicable arbitration rules, enshrined in the arbitration agreement, did not provide for a challenge procedure, nor did either party challenge any member of the tribunal. And although Judge Schwebel, as the appointing authority, could have been called on to appoint a replacement for the president of the tribunal in certain circumstances under Article 3(2)(b) of the arbitration agreement, such circumstances never arose.

Second, in Guyana v. Suriname, the parties agreed to appoint Judge Dolliver Nelson as president of the UNCLOS Annex VII tribunal (Award, para. 4). At the time, Judge Nelson was serving as the President of ITLOS, so he was thus also the Annex VII tribunal’s appointing authority under Article 3 of Annex VII. Once again, the concerns raised above were not significant in this case. The Annex VII tribunal adopted its own ad hoc Rules of Procedure, which did not mention a challenge procedure, and neither party challenged any member of the tribunal. As for the power of appointment, interestingly, Article 6 of the tribunal’s Rules of Procedure provided, arguably contrary to Article 3(f) of Annex VII, that Judge Nelson would not have the sole power to appoint a substitute arbitrator in the case of death or withdrawal of any of the arbitrators.

Third, in Croatia/Slovenia, after Slovenia’s party-appointed arbitrator resigned from the tribunal, Slovenia appointed Judge Ronny Abraham to replace him (Partial Award, para. 42). At the time, Judge Abraham was serving as the President of the ICJ, and Article 2(1) of the arbitration agreement designated the President of the ICJ as the appointing authority. Unlike all the other disputes discussed in this post, the PCA Rules were the applicable arbitration rules by virtue of Article 6(2) of the arbitration agreement. As a result, the conflict of interest concern raised above could have arisen in this dispute. Furthermore, under Article 2 of the arbitration agreement, Judge Abraham could have been called upon to appoint a replacement of some of his colleagues on the tribunal. Nevertheless, these concerns ultimately did not arise because Judge Abraham resigned from the tribunal within three days of his appointment (Partial Award, para. 46).

Conclusion

In conclusion, although the aforementioned concerns could be relevant in cases where the appointing authority is appointed to the tribunal, they are not necessarily applicable. For the time being, there do not appear to be any problems with Judge Golitsyn’s or Judge Bouguetaia’s self-appointments. But the matter definitely deserves the attention of the international arbitration community.

Back to Old Tricks? Italian Responsibility for Returning People to Libya

EJIL:Talk! - Tue, 06/06/2017 - 08:00

On 10/11 May 2017 various news outlets reported a maritime operation by the Libyan authorities, in coordination with the Italian Search and Rescue Authority, in which 500 individuals were intercepted in international waters and returned to Libya. This operation amounted to refoulment in breach of customary international law and several treaties (including the Geneva Refugee Convention and the European Convention on Human Rights), and an internationally wrongful act is one for which Italy bears international legal responsibility.

According to reports, the migrant and refugee boat called the Italian Maritime Rescue Coordination Centre (MRCCC) whilst it was still in Libyan territorial waters. MRCC contacted both the Libyan coastguard and an NGO vessel (Sea Watch-2) with the latter sighting the boat after it had left Libyan waters and was in international waters. During preparations for the rescue, the NGO boat was informed by the Italian authorities that the Libyan coastguard boat which was approaching had “on scene command” of the rescue operation. Attempts by the NGO vessel to contact the Libyan authorities were not picked up. The Coastguard proceeded instead to cut the way of the Sea Watch 2 at high speed and chase its rescue boat. It then stopped the refugees and migrant boat. Reports indicate that the Libyan coastguard captain threatened the refugees and migrants with a gun and then proceeded to take over the migrant boat. Some of the refugees and migrants were transferred onto the coastguard vessel. Libyan officials boarded the migrant boat, with most of the refugees and migrants still on board and both the coastguard and migrant vessel sailed back to Tripoli with the migrants and refugees being disembarked in the Abu Sita Naval Base and transferred to detention centres.

These actions must be seen within the broader dynamics of EU-Libya relations at the moment. First, this is the first noted interception operation by the Libyan authorities in the area and seems to be inspired by growing pressure from the EU for the Libyan authorities to close their borders to migrants and asylum seekers leaving for Europe. This dynamic also involves the payment of over 100 million Euros approved by the European Council in February this year aimed at helping with closing borders and the giving by Italy of vessels to Libya (with the first vessels having been provided less than a month before this incident). In January 2017, Italy and Libya also signed a bilateral Memorandum of Understanding relating to tackling irregular migration. The EU is evidently expecting Libya to help control the number of asylum seekers making the perilous journey to Europe as part of its attempt to address the so-called ‘migration crisis’. The instruction to intercept by Italy must be seen within the context of closer cooperation between the EU (and Italy in particular) and Libya, which is aimed at controlling migration.

There are other contextual factors that also inform this analysis. Foremost amongst these is that, whilst the rescue occurred relatively close to Libya (but in international waters) there was an alternative in that one of the civil society rescue vessels was close by and available to rescue the migrant vessel. That NGO vessel was, it is understood, challenged by the Libyan Coast Guard (with news on the media that this also placed the NGO rescuing vessel and those onboard at risk). This challenges the argument that a rescue was required and had to be conducted by the vessel that was closest. This action should also be seen in the context of growing efforts by the Italian authorities to challenge the work undertaken by these NGOs at sea, which have included statements that imply links between these NGOs and smugglers and magisterial inquiries into similar links. At time of writing none of these inquiries has resulted in prosecutions.

Under Article 2 of the ILC Articles:

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

Looking at the second of these requirements, the principle of non-refoulment is enshrined in Article 3 of the Convention Against Torture, Article 33 of the Geneva Refugee Convention, Article 3 of the European Convention on Human Rights, Articles 4 and 19 of the Charter of Fundamental Rights of the European Union and is recognised as customary international law. The prohibition covers the return of people directly to harm (refoulment), or the return of people to a place that then returns them to harm (chain refoulment). Italy’s actions in this context fall foul of both of these legal prohibitions given the likelihood of return from Libya to other countries (such as Eritrea and Sudan) and the human rights violations experienced by migrants in Libya itself. The prohibition of refoulment entails both negative obligations (not to return) and positive obligations (amongst which are to provide access to protection procedures and to be aware of the risks). There is now a considerable body of ECtHR case law on this point including MSS v. Belgium and Greece, Sharifi and Others v. Italy and Greece, and Khliafia and others v. Italy (see here and here).

Returning people to Libya by Italy has been the subject of a ECtHR decision in Hirsi Jamaa and others v. Italy. The Court found Italy to be in violation of Article 3 of the ECHR (prohibition of torture, cruel and inhumane treatment) through its programme of returning individuals to Libya even if the return was done on the high seas. There is an abundant body of literature on this case and its implications for State action on the high seas (See for instance: here, here and here). Of particular interest is the concurring opinion of Judge Albuquerque who clearly articulates the practical meaning of the court’s reasoning and decision. Returning people to Libya clearly constitutes a breach of an international legal obligation by Italy.

In this particular situation Italy’s Maritime Rescue Coordination Centre (MRCC) instructed the Libyan authorities to take charge of the situation and to take those rescued back to Libya. It simultaneously instructed an NGO rescue vessel to stand down. Instructing Libya to intercept with the intention, or at least full awareness that that instruction would result in the intercepted individuals being returned to Libya in violation of the prohibition of refoulment therefore amounts to an internationally wrongful act. The instruction was given by an organ of State (MRCC) thereby meeting the attribution requirement under Article 4 of the ILC Articles.

Excluding responsibility under these circumstances would severely jeopardise the meaning and value of the ILC Articles and the principles of state responsibility. It would also render meaningless human rights obligations as they apply to persons at sea. Libya too has obligations of its own including the prohibition of torture, cruel and inhumane treatment and of refoulment to other countries.

Italian responsibility can also be established under Article 16 of the Articles on State Responsibility. Article 16 deals with aiding and abetting the internationally wrongful act of another State. It provides that:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

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

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

There are therefore 3 key limitations to the responsibility of the assisting State namely: awareness of the circumstances making the act internationally wrongful, the assistance having been given with a view of facilitating that wrongful act and the completed act being such as would be a wrongful act if committed by the assisting State (See here). In the present context, Italian assistance on the spot and more broadly meets all three of these requirements. As noted above, returns to Libya would indeed be an internationally wrongful act committed by Italy. Italy is well aware of the fact that returns to Libya amount to refoulment not least because it has been found responsible for that exact violation by the ECHR. The instruction to intercept, the provision of resources, and the instruction to Sea Watch 2 to stand down from rescuing the migrants at sea clearly amount to a situation of assistance to the Libyan coastguard in undertaking the action facilitating the wrongful act. Italy’s knowledge of the concerned realities, and the fact that the return itself would be an internationally wrongful act if committed by Italy therefore clearly activates Italian responsibility for that assistance. It does so without prejudice to Libya’s own responsibilities in this context.

The European Union and its Member States have consistently sought mechanisms to curtail the number potential asylum seekers arriving to Europe’s shores and in doing so have worked closely with third countries. When such actions, reflective as they are of a broader policy, amount to human rights violations and internationally wrongful act, there is scope for responsibility for the EU States involved – in this case Italy. Italy’s action in this case clearly activate its responsibility for the international wrongful act, both directly through the instruction given (with awareness of the consequences), and through its assistance of Libya in the perpetration of the wrongful act.

Reflections on the US withdrawal from the Paris Climate Change Agreement

EJIL:Talk! - Mon, 06/05/2017 - 10:30

Ending months of fevered speculation, President Donald Trump fulfilled his campaign promise and announced US withdrawal from the 2015 Paris Agreement last week. He did so because in his opinion the Paris Agreement inflicts ‘severe energy restrictions’ on the United States and ‘punishes’ the United States ‘while imposing no meaningful obligations on the world’s leading polluters.’ This post seeks to examine the merits of the US’ stated rationale for withdrawing from the Paris Agreement, and then offers some reflections on next steps for the US in the international climate change regime.

How Valid are Trump’s Criticisms?

President Trump’s remarks reveal a fundamentally flawed understanding of the Paris Agreement. First, his remarks suggest that the Paris Agreement is a prescriptive instrument that ‘inflicts’ restrictions and ‘imposes’ obligations on states. This is not the case. Admittedly, some states had early in the Paris Agreement negotiations hoped to replicate the Kyoto model of binding ‘targets and timetables’ backed by a compliance system with an enforcement branch. However, it became rapidly evident that the Kyoto model would not find favour either with the US that had rejected the Kyoto Protocol or with developing countries that were expected to take GHG mitigation measures post-2020. Thus, the Paris Agreement reflects an entirely different approach. It requires states to submit ‘nationally determined’ contributions NDCs (not internationally prescribed or negotiated ones) and includes binding obligations of conduct in relation to them (to prepare, communicate and maintain NDCs, not to achieve them). It also subjects NDCs to normative expectations of ‘progression’ and ‘highest possible ambition’. These are expectations, however, not binding obligations. The Paris Agreement thus does not ‘impose’ or ‘inflict’ burdens or obligations of the sort Trump refers to on Parties. To the extent that the Trump administration believes the US NDC to be burdensome, it is not the Paris Agreement that demanded this particular NDC but the previous US administration that unilaterally offered it based on an assessment of national circumstances, constraints and priorities.

President Trump’s remarks also suggest that the Paris Agreement prescribes a burden sharing arrangement between Parties. One, moreover, that is deeply unfair to the US. This too is not the case. Developing countries have long championed for a prescriptive burden sharing arrangement in the climate change regime. However, the US, and other developed countries, seemingly scarred by the Kyoto experience, consistently opposed such a prescriptive burden sharing arrangement in the Paris Agreement. The Paris Agreement therefore contains a more nuanced form of differentiation tailored to each individual issue area. In the area of mitigation, which President Trump alludes to in his remarks, differentiation takes the form of ‘self-differentiation’, that is, since Parties choose their own NDCs, each party differentiates itself from the others. There are limits to such self-differentiation. All Parties are subject to normative expectations of progression and ‘highest possible ambition,’ and developed countries are subject to the expectation of leadership. However, whether Parties fulfil these (or not) is for now left to individual determination.

India and China, singled out in President Trump’s speech, have NDCs that are different from the US NDC not because the Paris Agreement imposes a prescriptive burden sharing arrangement on countries, but because these countries have different national circumstances. It seems patently obvious that India’s NDC would be different to that of the US. India is responsible for 1/3rd the cumulative emissions the US is responsible for, has per capita greenhouse gas (GHG) emissions that are 1/8th that of the US, and has a Human Development Index (HDI) ranking of 131 while that of the US is 10. In any case the rhetoric of victimhood – that the US is being treated unfairly – is peculiar, and deeply problematic, given the US is responsible for 27% of cumulative historic emissions, 15% of cumulative current emissions and has per capita GHG emissions that are double the global average. Moreover the US has, at last count, rejected two of the three multilateral climate change agreements that it helped craft on the grounds of (un)fairness. My colleague, Navroz K. Dubash, rightly challenges this US appropriation of the language and rhetoric of fairness.

Thus the reasons offered by President Trump for withdrawing the US from the Paris Agreement are truly baffling. One can only assume that yet again the international climate regime is being held hostage to the vicissitudes of domestic politics in the US. Be that as it may, now that President Trump has announced US withdrawal from the Paris Agreement, what next?

What Next for the US?

First of all, although the US announcement was made, to much fanfare, earlier this week, the Paris Agreement only permits a state to withdraw three years after the Agreement enters into force for that state. The withdrawal then takes effect a year later (Article 28). The US will remain a Party to the Paris Agreement until at least November 2020. President Trump announced that the US would immediately cease all implementation of the Paris Agreement and its NDC. However, as Daniel Bodansky points out as long as the US is a party to the Paris Agreement, which it will be until 2020, it is bound to perform its commitments under the treaty in good faith. The US is also entitled to continue participating in the ongoing climate negotiations. It is unlikely, however, given President Trump’s remarks, and the drastic funding cuts for environmental programs in the US, that the US will invest time in preparing submissions or send sufficient representation to the ongoing climate negotiations. Even in advance of their decision to withdraw from the Paris Agreement, the US sent a skeletal team to Bonn last month for the latest round of climate negotiations. In any case, the US is likely to be politically marginalized, and its role in shaping the Paris ‘rule book’ will be limited.

Second, the scope for renegotiating the Paris Agreement is limited. President Trump repeatedly expressed a desire to renegotiate the Paris Agreement to secure a fair deal for the US. Other states have made it clear that they have little appetite to renegotiate a painstakingly crafted and widely accepted instrument, indeed one shaped by US red lines. In any case it is unclear, given that the remarks made by President Trump bore little relation to the content of the Paris Agreement, exactly what would be renegotiated and to what end. And, if the US did renegotiate the Paris Agreement it could not secure a better deal than the one it currently has. It appears from the President’s remarks that his administration’s concern is not the Paris Agreement but the NDC chosen by the previous US administration. Some commentators have suggested that the US may still be open to the possibility of downgrading its NDC rather than withdrawing completely from the Paris Agreement. However, such downgrading is likely to wreck havoc with the normative foundations of the Paris Agreement built on ‘progression’, ‘highest possible ambition’ and ‘developed country leadership.’ I discuss this issue in an earlier post. Arguably it is better to have the US outside the regime than in it with a downgraded NDC. With the US out, at least the normative foundations of the Agreement are secure from opportunistic manipulation by the Trump administration.

Finally, should the US choose to return to the fold, the door to re-entry will remain open. Anytime after its withdrawal takes effect the US could deposit its instrument of ratification, acceptance or approval, and thirty days thereafter the Agreement will enter into force for the US (Articles 20 and 21). There is a danger, of course, that the Paris Agreement, like the Kyoto Protocol, will be demonized in American popular consciousness, making later re-entry politically challenging. But if the overwhelming response of US states, cities and corporations is any indication – many of whom have come together to offer to fulfil the US NDC despite Trump’s withdrawal from the Paris Agreement – the US will merely take a diplomatic back seat in the negotiations for the next few years, and return to the fold when the administration changes.

Announcements: International and Comparative Disaster Law Essay Contest; CfP Access and Exclusion in Global Governance; CILS Conference on State Boundary Affairs

EJIL:Talk! - Sat, 06/03/2017 - 09:00

1. International and Comparative Disaster Law Essay Contest. The second annual “International and Comparative Disaster Law Essay Contest” has been launched and the call for abstract is out (see here for awards, potential topics and criteria). This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the Jean Monnet Module on “International and EU Law” of Roma Tre University and the International Disaster Law Project. Essays may examine any issue related to law and disasters from an international or a comparative law perspective. It is open to current and recently graduated students (including PhD and master programs). Abstracts (not exceeding 500 words) should be received no later than 7 July. Authors of the most promising abstracts are requested to submit full essays by 31 October 2017. Awards: A monetary prize (Euro 500); Annual membership ASIL; Winner paper and papers with “honourable mention” published as a “Working Paper” of the IFRC’s Disaster Law Programme. Authors will retain copyright of their papers. Full details here.

2. Call for Papers: Access and Exclusion in Global Governance. IBEI and EsadeGeo will hold the fifth Barcelona Workshop on Global Governance on the topic of “Access and Exclusion in Global Governance” on 11 – 12 January 2018. Speakers include Deborah Avant (Denver), Eyal Benvenisti (Cambridge/Tel Aviv), B.S. Chimni (Delhi), Anna Leander (Copenhagen), and Joost Pauwelyn (Geneva). Details on the workshop can be found here. We invite abstract proposals from all disciplinary perspectives; they should be submitted to info {at} bcnwgg(.)net var mailNode = document.getElementById('emob-vasb@opajtt.arg-10'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%6E%66%6F%40%62%63%6E%77%67%67%2E%6E%65%74"); tNode = document.createTextNode("info {at} bcnwgg(.)net"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-vasb@opajtt.arg-10"); mailNode.parentNode.replaceChild(linkNode, mailNode);  by 30 June 2017.

3. CILS Conference on State Boundary Affairs. The Center for International Law Studies of Universitas Indonesia, in collaboration with Faculty of Law Tanjungpura University, are pleased to announce the 8th CILS Conference on State Boundary Affairs. The Conference will be located at the Faculty of Law, Universitas Tanjungpura, Pontianak, Indonesia on 2-3 October 2017. See here for more details. The CILS invites all legal scholars and professionals to submit abstracts and papers over current developments and legal issues in international law within the scope of the following sub-themes: (1) Land Boundary; (2) Maritime Boundary; (3) Border Security; (4) Cross-Border Trade, and (5) General Topic.

Macron’s Threat of Reprisals and the Jus ad Bellum

EJIL:Talk! - Fri, 06/02/2017 - 14:00

A few days ago, French President Macron reportedly said that the use of chemical weapons in Syria would cross a “red line” for France and result in reprisals. Macron’s statement comes less than two months after the United States conducted airstrikes against Syria for its use of chemical weapons. The vast majority of states that spoke about the U.S. operation supported or were non-committal about it. Very few states condemned it as unlawful. By contrast, most commentators contended that the operation was unlawful. (See the blog posts collected here.) The operation was inconsistent with the longstanding interpretation of Article 2(4) of the UN Charter and not covered by either of the Charter exceptions. Moreover, though there is an ongoing debate about whether the jus ad bellum contains a third exception for humanitarian interventions, the majority view is that it does not. The reason for this view is that, even when states (as a group) appear to condone particular operations that might be characterized as unilateral humanitarian interventions, states decline to articulate the opinio juris that is necessary to establish a new, generally applicable exception to Article 2(4). And in any event, the U.S. operation in April seemed more like a reprisal than like a humanitarian intervention.

So, what should we make of Macron’s statement? When news of it broke, I tweeted this comment:

Several people objected to my tweet. I am continuing the conversation here because I thought it might be of interest to a broader audience, and because its implications go far beyond Macron’s statement. It has to do with how we understand and assess the jus ad bellum.

The principal objection to my tweet was that there is not sufficient opinio juris for a change in the law. Again, most states have not demonstrated that they support a new exception to Article 2(4) or that they want to expand considerably an existing exception. Some scholars have questioned whether that kind of opinio juris is really necessary for humanitarian interventions to be lawful. But I don’t want to go down that road here.

In my view, it’s clear that, in April, states were trying to balance two competing considerations. They supported the operation against Syria to deter the use of chemical weapons, but they did not want to expand the exceptions to Article 2(4). They were trying to assess the U.S. operation based on its particular facts—to treat it as a one-off incident, rather than evidence of a new, generally applicable substantive standard. So, let’s assume for now, that states did not create or endorse a new norm permitting unilateral humanitarian interventions or reprisals.

It would not follow that the law weathered the April incident without change. Any international incident that puts a legal norm at issue communicates not just whether the norm is “good law” but also the extent to which global actors are willing to stand by it and prioritize it against other norms. Of course, legal norms routinely conflict with one another and push in different directions. Because Article 2(4) has unique standing in the legal order, it almost always prevails in these situations. But in the Syria case, Article 2(4) was in tension with another very important legal norm—the ban on chemical weapons. This ban means little if it is repeatedly violated with impunity. And although it usually is upheld without budging on Article 2(4), that option wasn’t working in Syria. In the event, most states that addressed the issue decided that Article 2(4) ought to bend for the ban on chemical weapons. Macron’s recent statement indicates that France would make the same decision again.

For me, this pattern of behavior demonstrates that expectations on the relationship between Article 2(4) and the ban on chemical weapons have shifted—not necessarily for all cases but in the context of the Syria conflict. For those who are interested in preserving the jus ad bellum’s regulatory force, the follow-up question is how best to limit the precedential effect of the Syria strikes, such that they do not invite less palatable deviations from Article 2(4) in the future. That question has come up before, but it does not have easy answers. I offered my initial views on it here. Anthea Roberts disagreed with me, and I then commented on her post here.

Although the question is difficult, two answers that are commonly proffered strike me as either nonresponsive or not credible. First, it is insufficient simply to insist that the April strikes were unlawful and had no effect on the law. Even if we assume that states did not create a new exception to Article 2(4), we have to accept that states, as a group, declined to apply the Article 2(4) prohibition in Syria. They decided to deprive the prohibition both of its operational relevance and of its normative bite. That looks an awful lot like a decision to make the strikes lawful. Or at least, it means that the difference between calling them lawful and calling them unlawful is, as a practical matter, imperceptible. Legal analysts ought to grapple with that reality.

Second and for the same reason, commentators cannot plausibly “hold the line” on the jus ad bellum by pretending that it is somewhere other than where states themselves have taken it. For good or for ill, states reacted to the April strikes as they did. The task now is to assess, and perhaps to try to shape, how their reaction will affect the jus ad bellum going forward.

EJIL Talk! Book Discussion: Djemila Carron’s Response

EJIL:Talk! - Fri, 06/02/2017 - 09:30

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

Introduction

I am grateful to the editors of EJIL: Talk! for organizing this discussion – the first one around a book in French! I also would like to warmly thank Professor Julia Grignon and Doctor Tristan Ferraro – whose articles, books and reflections were very important while writing L’acte déclencheur d’un conflit armé international – for their thoughtful comments on my work. In this contribution, I consider some of the questions they raise in each of their pieces, mainly on the capture of a soldier as a triggering act of an IAC (response to Julia Grignon) and on the classification of transnational armed conflict (response to Tristan Ferraro).

Animus belligerendi

I will not respond in detail to Julia Grignon’s development of my rejection of a criteria of animus belligerendi for the existence of an IAC (Part II, Question VI). She perfectly summed up my main arguments. The intent of a State to be in an IAC or in a state of war has no influence on the existence of an IAC. Once again, to exclude subjective elements from the definition of an IAC was one of the key reason for the shift in 1949 from the notion of war to the one of IAC. This said, as explained in the book, for such a conflict to take place, a State must nevertheless have the intent to use force against another one. I propose to defend this element through the objective requirements on the origin of an IAC (Part II, Question IV). In other words, if a State uses force against another one through its organs, acting in their capacity, following instructions and not mistakenly, the animus to use force is considered fulfilled.

Capture of a soldier

As underlined by Julia Grignon in her piece, I defend the proposition that the mere capture of a soldier in the absence of any act of hostilities or occupation does not trigger an IAC (for my arguments in favor of this position, see p. 193-199). In this respect, I depart from the majority view, including the position of Julia Grignon and the one of the ICRC (see for instance Commentary to Article 2 and 4 to GC III of 1960). For the tenants of this majority view, the capture of a soldier should launch an IAC as this soldier would then benefit from the protection of GC III. Before explaining my reasoning, I would like to stress the rarity of situations of captures occurring without acts of hostilities or occupation. This is even more true as I am in favor of functional definition of occupation. In other words, I consider that occupation begins with the phase of invasion and that there is no necessity of an effective control of a territory. For our discussion, this means that when the troops of a State A are advancing on the territory of a State B and capturing in this setting a soldier of State B, this soldier is covered by the GC because there is an occupation. This preliminary remark is important as many of the examples advanced by the doctrine on the capture of a soldier as a triggering act use situations that in my view are already covered by IHL because of a previous act of violence or an occupation.

I advance several arguments against the capture of a soldier as a triggering act – the main one, as underlined by Julia Grignon, is that the prisoner of war status was not intended and indeed makes little sense for situations of capture out of hostilities or occupation. It seems for instance rather strange to hold that IHL should apply to captures occurring out of hostilities when the main consequence of this application will be the immediate release of this soldier following Article 118 and 119 GC III. In addition, the IHL regime would not always be the appropriate framework for a soldier captured out of hostilities and occupation. For instance, if a State arrests a soldier of another State for illegal entrance into its territory, there is little reason for this soldier to benefit from the regime of prisoner of war (Article 85 GC III).

I did not address directly the question raised by Julia Grignon on the application of IHL to soldiers whose capture precedes and entails the launching of an IAC through a subsequent use force against the detaining State. I would tend to think that this specific situation should not be an exception to the rule I defend in my book and that those soldiers would not benefit retroactively to the moment of the capture of the provisions of GC III. This said, I understand the specificities of the case and agree that this question would benefit from deeper investigations.

Julia Grignon also raises the question whether IHL should apply to the capture and internment of foreign civilians in the absence of previous hostilities. For instance, if a State A, on its own territory, captures and detains civilians of a State B because of inimical relations, would IHL, and particularly GC IV, apply? According to my findings, it is not sufficient that the main situations covered by the GC (existence of the first wounded, sick, shipwrecked, captured soldier or captured civilian) take place for an IAC to be triggered (discussed p. 142-143). Only a use of force between two States, a declaration of war, a war of national liberation or an occupation without resistance have the potential to lead to the application of the laws of IACs. Consequently, many hostile actions between States, such as breakdown of diplomatic relations, movement of troops around the borders, economic sanctions, etc. – and even the accumulation of those acts (p. 252-253) – do not trigger an IAC even if some of those acts would be covered by the GC once there is a situation of IAC or occupation.

Such a reading can be supported by several elements of the interpretation of Article 2 common to the GC under the Vienna Convention on the laws of treaties (VCLT). For instance, the ordinary meaning (Article 31, VCLT) of the terms “armed conflict” of Article 2 common requires an armed action that does not exist with the capture and internment of civilians out of hostilities. This is confirmed by the vast majority of the doctrine and jurisprudence. In addition, when analyzing the context of Article 2 common (Article 31, VCLT), it appears that the personal scope of application of the GC depends on the material scope of application of the GC (p. 155-157). Consequently, foreign civilians captured and interned (personal field of application of GC IV) benefit from protection under IHL only after a use of force between two States or an occupation without resistance (material field of application of all the GC). This reading is confirmed by Article 6 GC IV which states that “[t]he present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2”. In the same way, the Commentary of the ICRC to this Article 6 GC IV specifies that “the majority of the provisions [of GC IV] are only applicable when the conditions laid down in Article 2 are fulfilled. The purpose of that Article [2 common] is then to define the cases in which the Convention is applicable, whereas the present paragraph [of Article 6] is concerned with the beginning of its applicability by the Contracting Parties engaged in the struggle [i.e. once the conditions of Article 2 common are fulfilled]. From that moment the Convention applies to all protected persons provided they themselves, as individuals, fulfil the conditions laid down in Article 4”.

In sum, the GC (and AP I) protect different categories of people because of the existence of an IAC or an occupation without resistance. Therefore, those categories make little sense out of the situations laid out in Article 2 common. Moreover, if there is no use of force or occupation, foreign civilians are protected from the power of the territorial State by other corpus of norms, among them human rights law which seems much more appropriate for the situation and more beneficial for the persons concerned.

Transnational armed conflict

Dr. Tristan Ferraro focuses in his piece on one of the most controversial part of L’acte déclencheur d’un conflit armé international, namely my classification of single NIAC of transnational uses of force by a State against an armed group located on the territory of another State. I defend the position that the absence of consent of the territorial does not add an IAC to the ongoing NIAC (Part II, Question V). In a recent article, I detail the three main arguments in favor of my position. Firstly, the distinction between IACs and NIACs and the existence of a law of NIACs which is the appropriate framework for hostilities between a State and an armed group. Secondly, the separation between ius ad bellum and ius in bello, as the IAC emerging when the territorial State does not consent has the goal of recognizing the damage suffered by this State. In my opinion, this is typically a question of ius ad bellum, not of ius in bello. Finally, it is still unclear to me, in situations of double-classification because of the absence of consent of the territorial State, what conduct would be governed by the law of IACs. Indeed, the proponents of the position defended by Tristan Ferraro do not explain what is the added-value of the emergence of an IAC because of the absence of consent of the territorial State as they underline that in such situations the hostilities are exclusively governed by the law of NIACs.

Tristan Ferraro’s arguments are based on certain assumptions which do not necessarily bear out. Firstly, he claims that “when a State conducts military operation in the territory of another State without its consent, these operations are by definition against that State”. In terms of IHL, when such attacks are solely directed against a non-state armed group, this does not seem to be convincing. While the military operations may be against the territorial integrity of the State, it seems more reasonable to recognize this damage through ius ad bellum (p. 367-368). Nevertheless, as armed actions are taking place, concretely, between a State and a non-state armed group, classification should rely on this element because, once again, the law of NIACs is the appropriate framework for such actions and the law of IACs does not make any significant contribution.

Secondly, Tristan Ferraro seems to assume that I argue against the double-classification IAC-NIAC in situations of transnational conflicts (p. 371-374). In my view, if the intervening State targets not only the armed group but also the territorial State, the “armed conflict with a double-classification” would be appropriate. What I reject is that every use of force of one State on the territory of another one without its consent qualifies automatically as an IAC-NIAC. According to my research, this additional IAC should only appear if the use of force is directed against another State. As a reminder, the book establishes a presumption that an armed action by a State on the territory of another one triggers an IAC unless proved that the operation was directed against an armed group. In the book, I detail a list of criteria to assist with determining if the actions are directed against the armed group, the territorial State, or both (p. 353-366). For instance, I conclude that there was a NIAC between Israel and Hezbollah and an IAC between Israel and Lebanon in 2006. This additional IAC did not appear because Israel used force on the territory of Lebanon but rather because some Israeli actions were directed against Lebanon.

Thirdly, contrary to what is suggested by Tristan Ferarro, I do not intent to bring back a subjective element in the determination of the existence of an IAC. I underline above my rejection of a criteria of animus belligerendi and explain that I secure the necessity of the animus of one State to use force against another one through objective elements. Moreover, I repeat at numerous places in the book my attachment to a factual definition of IAC. Finally, as already said, I precisely develop presumptions and a list of criteria in the book to determine what is the target of a use of force without referring solely to the intent of the belligerents.

Fourthly, I do not think, as suggested by Tristan Ferraro, that I inconsistently give an importance to consent for occupation whereas rejecting this element for the existence of an IAC. In my view, I consistently give a strong importance to the absence of consent both for the existence of an IAC and for a situation of occupation. Indeed, in my opinion, and according to the majority view and jurisprudence, an IAC (and an occupation) can only take place without the consent of the territorial State. This said, I do not consider that this absence of consent is sufficient in itself for the existence of an IAC. In other words, the absence of the consent of a State is necessary but not sufficient for an IAC (and an occupation) to exist.

Conclusion

This talk was a wonderful occasion to continue the reflections on the definition of an IAC. Due to space constraint, I did not respond to all the very pertinent comments made by Julia Grignon and Tristan Ferraro and I hope this discussion will continue in the following days and in other settings.

EJIL Talk! Book Discussion: The Act that Triggers an International Armed Conflict

EJIL:Talk! - Thu, 06/01/2017 - 08:00

This post is part of our book discussion on Djemila Carron’s “L’acte déclencheur d’un conflit armé international“.

While giving an interpretation of Article 2 common to the Geneva Conventions, in order to define the notion of international armed conflict, Djemila Carron touches upon a profusion of subsequent questions. This is one of the interests of this book. This is also what makes this present contribution challenging. Indeed, reading Djemila Carron’s reflection on the act that triggers an international armed conflict makes one, me at least, want to write a ten page contribution on each specific topic. And this is not only because of the proximity between the subject analyzed in her book and my own area of interest in research in international humanitarian law. In my view, in addition to the overall depth and quality of Djemila Carron’s rationale, there are two reasons that explain that feeling when reading her book. First, the prism through which she has decided to deliver the results of her research, that is an analysis under the Vienna Convention on the Law of Treaties, and second the choice that she has made to answer six (plus one) specific questions in order to reach her own conclusions. Not only does a rigorous interpretation that follows the methodology of the Vienna Convention offer a new perspective for the exercise of classification of conflicts, but it also gives a broad overview which is enriched, at the same time, with numerous and often thought-provoking details. In parallel, the structure of the work, built around specific questions, gives the opportunity to open a dialogue. An opportunity that I seize in the following lines.

In the present contribution I have arbitrarily, but purposely, chosen to focus on two of the many issues that the author explores in order to analyze the act triggering an international armed conflict, namely the capture as an act that may trigger an international armed conflict and the necessity, or not, of identifying an animus belligerendi in order to classify a situation as international armed conflict. Within the structure of the book, the first is a sub-question of Question II regarding the nature of the triggering act and the second is a Question in such, namely Question VI regarding the necessity of an animus belligerendi. This choice has been made on purpose, since these two topics are among those with which I have dealt in my own research, but through a different prism, that is the temporal scope of applicability of international humanitarian law.

The capture as a triggering act for International Armed Conflicts

In her book Djemila Carron argues that the mere capture of soldiers from a foreign State does not automatically trigger an international armed conflict. Despite the fact that the literature, whilst not very numerous, has constantly reaffirmed that any soldier captured by a foreign force must benefit from the Third Geneva Convention (even if there are no other hostilities between his State of origin and the detaining State), Ms. Carron demonstrates quite successfully that an analysis under the Vienna Convention on the Law of Treaties might lead to another conclusion. Among her strongest arguments, she shows that the whole regime attached to the prisoner of war status does not make sense without any other hostilities. Indeed, the rule according to which prisoners of war cannot be prosecuted solely for having participated in the hostilities, or the rule that prescribes that they have to be released at the end of active hostilities, would have no justification in the absence of hostilities accompanying the act of capture. Even more, to its logical extreme, considering that the mere capture of foreign combatants does trigger an international armed conflict could result in an absurd reasoning. Whilst convincing, the argument made here raises at least two questions. The first is directly linked with the capture of foreign soldiers: what if this act of capture triggers an international armed conflict in that sense that the State from which these combatants come from decides to engage in hostilities with the detaining State? Would the soldiers be covered by the Third Geneva Convention only from the moment in time at which these hostilities amount to an international armed conflict according to Djemila Carron’s conclusions? Or would they benefit from the protective provisions of Geneva Convention III, a posteriori, from the moment of their capture? Moreover, if one can follow Ms. Carron’s rationale regarding the capture of foreign soldiers, what about the capture and the internment of foreign civilians? This is the second question. When there has been no previous hostilities, how can a distinction be drawn in this case between ordinary detention and detention governed by international humanitarian law? Even if, according to the author, in that case the target of the act would fall under an exception that prevents a conclusion that an international armed conflict has been triggered by this sole capture, is there really no situation in which civilians must not be protected by the Fourth Geneva Convention? Since, in these circumstances, internment or assigned residence would be ordered in the interests of the security of the State carrying out that measure, in our view international humanitarian law should apply to these situations, which in themselves are signs of inimical relations between the two States in question. On the contrary, should it not therefore be the purpose of detention, namely security, and the status of the persons concerned, as nationals of a given third State, that is decisive in this case?

An animus belligerendi as a necessity or not in order to trigger an International Armed Conflict

As underlined by Djemila Carron, and as it has been discussed elsewhere by myself:

“traditionally animus belligerendi was manifested by a “declaration of war or any other formal pronouncement”, whereas international humanitarian law seeks to disregard any expression of a position when it comes to pinpointing the start of its application. The obligations that this branch of the law imposes on States involved in armed conflicts […] lead them [sometimes] to deny the existence of any such conflict in order to evade the application of international humanitarian law. For this reason, any attempt to detect an animus belligerendi would inevitably be stymied by declarations or stances at odds with the situation on the ground. Consequently, although the use of this notion is ostensibly appealing because it seems to facilitate the identification of enmity between the States in question, its untoward effects make its restoration undesirable.” (Grignon, 2014)

The work of Djemila Carron however goes far beyond and confirms – maybe definitively – the reasoning. While so doing, she prevents any attempt to revive the animus belligerendi as an element contributing to interpreting an act as triggering international armed conflicts, which should be recognized and very welcome. After having examined, as she does with a constant meticulousness in all her work, the ordinary meaning of the words “armed conflict which may arise between two or more of the High Contracting Parties” (Article 2 common to the Geneva Conventions), the context, the object and purpose, the subsequent practice, the travaux préparatoires and the circumstances of the conclusion of the Geneva Conventions, her conclusion is relentless: “no criterion of an animus to be in an international armed conflict or in a state of war does exist.” And if any doubt might have remained, the precaution that Djemila Carron takes to contemplate all forms of animus puts an end to any debate even before it could have arisen. Without an animus to be in an international armed conflict in its factual sense, or an animus to be engaged in a state of war in a legal sense, there is absolutely no subjective element that might blur the determination of the existence of an international armed conflict. The only animus that exists is an animus to use force against another State, but this element is an objective one, that is the intention of a State to use force against another which is deduced from the identity of the organ that provokes the triggering act of an international armed conflict, within the scope of its functions and in accordance with instructions; objective criteria that are dealt with in the answer of Question IV of the book relating to the origin (provenance) of the triggering act.

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