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The ‘Open Arms’ case: Reconciling the notion of ‘place of safety’ with the human rights of migrants

Mon, 05/21/2018 - 08:21

The work of the NGOs rescuing migrants in the Mediterranean Sea has been the subject of much controversy. One of the most recent cases regards the NGO Proactiva Open Arms: it has been accused of smuggling migrants during rescue operations at sea, and its rescue ship was impounded by the Italian authorities. This post examines the decision issued on 16 April 2018 by the pre-trial judge of Ragusa (Sicily) that ordered the release of the Open Arms vessel.

The relevance of this case is twofold. It obliquely tackles the legitimacy of the ‘pull-back’ agreement between Italy and Libya, as part of which the two states agree to collaborate with the aim of returning migrants to Libya, and which was recently challenged before the European Court of Human Rights (see this previous EJIL:Talk! post). Secondly, the decision, despite being just a pre-trial order, offers interesting insights into a contested area of international law which is gaining increase salience, i.e. the intersection between the Law of the Sea and the human rights of migrants.

This post argues that the order issued on 16 April is an important step forward in the definition of the notion of ‘place of safety’. International law merely states that people rescued at sea shall be delivered to a ‘place of safety’, but provides no definition of it (3.1.9. of the International Convention on Maritime Search and Rescue 1979, “SAR Convention”). The decision by the judge in Ragusa interprets ‘place of safety’ in accordance with the human rights of migrants, and rightly overcomes inappropriate distinctions based on migrants’ statuses.

The Law of the Sea and the obligation to rescue people in danger 

Safety at sea is hardly a new concern. As soon as people began sailing seas and crossing oceans, they started dealing with the dangers which lie therein. To safeguard people’s lives, an ancient custom imposes a duty on seafarers worldwide to assist people in danger at sea. In the 20thcentury, this custom duty was codified into international treaties, making states responsible for safety at sea. According to the United Nations Convention on the Law of the Sea 1982 (UNCLOS), a state shall require the master of a ship flying its flag to ‘render assistance to any person found at sea in danger’ (Article 98). The International Convention for the Safety of Life at Sea 1974 (SOLAS) and the SAR convention provide that states are also responsible for coordinating search and rescue operations.

According to the SAR, a state is not relieved from its obligation to guarantee the rescue of people in danger at sea until they are delivered to a ‘place of safety’. Notably, there is no agreed definition of what a ‘place of safety’ is. This is problematic: the fate of people currently fleeing from Libya – and the outcome of the proceedings against Proactiva Open Arms – depend on its definition, as next section shows.

The definition of the concept of ‘place of safety’ (or the lack thereof)

The duty of delivering people to a ‘place of safety’ is an asymmetrical provision of international law. On the one hand, the SAR Convention states that a rescue is not complete until the persons are delivered to a ‘place of safety’; on the other hand, international law does not impose an unequivocal duty on states to allow the disembarkation of rescued persons on their territories. The principle of territorial sovereignty applies: states decide who can enter their territory and who cannot.

This asymmetry places a heavy burden on rescuing ships. They have a duty to swiftly disembark rescued people to a ‘place of safety’, but they might not be able to do so because of states’ refusal to let them in. The ‘Tampa affair’ was emblematic: in August 2001, the Norwegian ship Tampa was refused permission for days to disembark hundreds of rescued people on the Australian coast. The problems faced by the Tampa triggered international reactions, and ultimately led to the adoption of the 2004 Amendment to the SAR and the SOLAS conventions, which was a – modest – attempt to prevent similar situations from occurring again.

The SAR and SOLAS Amendment provides that the state coordinating the search and rescue zone where the rescue takes place has ‘the responsibility to provide a place of safety, or to ensure that a place of safety is provided’. This Amendment does not solve the existing ambiguities, because it does not provide for an obligationof any state to let the rescued people in. Moreover, some states, like Malta, have not accepted the Amendment. This ‘disagreement between Mediterranean states on the content of the duty to render assistance’ is highly problematic, and had repercussions on the Open Arm case and on the protection of migrants’ human rights.

The facts: Tensions between the Libyan coast guard and the NGOs in the Mediterranean Sea

Open Arms is one of the three vessels that Proactiva Open Arms, a Spanish NGO, uses to conduct its rescue missions in the Mediterranean Sea. Working in collaboration with the Italian coast guard, since July 2016 the NGO has saved 25,700 lives at sea. On 15 March 2018, the Maritime Rescue Coordination Centre in Rome informed the Open Arms vessel of the presence of a dinghy sailing international waters, 40 n.m. off Libyan coast. Open Arms was heading towards it, in order to verify its conditions, when the Libyan coast guard took over the coordination of the search and rescue operations, and ordered the NGO vessel to ‘stay out of sight’ (see the pre-trial order, at page 3).

The Open Arms did not comply with the instructions received from the Libyan authorities. Instead, the NGO vessel rescued the people from the dinghy, and then sailed towards a second dinghy that had been spotted in the meantime; while embarking people from this second boat, a Libyan coastguard unit arrived. A couple of hours of high tension followed, during which the Open Arms crew were verbally and physically threatened by the officials of the Libyan coast guard. Still, the NGO managed to complete the rescue of the people from this second dinghy (rescuing 218 people in total) and headed north, in search of a ‘place of safety’ where it could disembark the migrants.

Since a woman and her three-month old infant were in need of an emergency health treatment, the vessel was forced to stop in Malta and to disembark the two there. But, instead of asking Malta for authorization to disembark all of the rescued people, Open Arms continued its journey to Italy. According to the captain’s statements, they did so because Malta always denies migrants permission to land. After two days of navigation, Open Arms reached the Italian coasts and obtained authorization to disembark the rescued people in Pozzallo (Sicily). Shortly after the safe landing, the NGO was informed that the Catania prosecutor had charged two members of the Open Arms’ crew with belonging to a criminal organization and smuggling migrants. While the first accusation was quickly dismissed, the charge of smuggling stood, and the Open Arms boat was consequently impounded by the police.

The decision to release the Open Arms

The order concerning the pre-trial seizure of the Open Arms vessel focused on whether it was plausible to think that the defendants had committed the crime (the fumus commissi delicti test). In particular, the judge examined whether the conduct of the Open Arms crew, which refused to hand over the migrants to the Libyan authorities and brought them to Italy instead, shall be considered migrant smuggling. For its part, the NGO argued that they acted under a ‘state of necessity’ (Article 54 of the Italian criminal code): the unlawful conduct is justified by the necessity to protect the perpetrator or another person from an imminent and serious danger.

First, the order notes that migrants were not in imminent danger: their dinghies, despite being overcrowded, were not leaking and the weather conditions were good. Also, the Libyan coast guard was ready to intervene and rescue the people: Open Arms could have complied with the Libyan authority’s orders and handed over the migrants.

However, the decision also examined the second phase of the rescue: the delivery of the rescued people to a ‘place of safety’. Here, the pre-trial judge reached a different conclusion. The decision states that:

“it cannot be considered ‘safe’ a place where a person seriously risks being exposed to the death penalty, torture, persecution, sanctions or inhuman and degrading treatments, or his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (page 3).

The pre-trial judge, relying on official reports, held that Libya does not guarantee the necessary minimum level of human rights protection. Libya cannot be considered a ‘place of safety’ and, as long as the situation remains unchanged, the refusal of the members of the NGO to hand over the migrants to Libyan authorities and to bring them to Italy was justified by a state of necessity.

Comment on the Open Arms decision

The decision of the judge in Sicily is laudable for two reasons. First, the decision provides an interpretation of the concept of ‘place of safety’ that is in line with international human rights law. The pre-trial order, then confirmed in appeal, states that a ship master shall not only save people from the immediate danger of drowning, but must also take the rescued people to a place where they do not risk being tortured or persecuted.

Secondly, the decision does not fall into the trap of making misleading distinctions between refugees and other migrants. It recognizes to all the right not to be delivered to a place where they can be exposed to the treatments prohibited by Article 3 ECHR. This is important to counteract the common belief that only refugees have the right not to be deported to Libya, while other migrants, called ‘irregular’ or ‘economic migrants’, can be pushed back.

In this sense, the decision by the pre-trial judge in Sicily takes a step forward compared to the ECtHR decision in the case of Hirsi Jamaa. In this case, where the Court condemned Italy for its ‘push-back’ operations to Libya, the fact that the applicants were all in need of international protection was a crucial element. The Hirsi Jamaa decision was based on the fact that ‘no rule governing the protection of refugees was complied with by Libya’ (Hirsi Jamaa, at 125); therefore, the applicants risked being returned to Somalia and Eritrea, countries from which they were fleeing. These are valid considerations only for people entitled to international protection, and their relevance might be questioned for other migrants. Instead, the pre-trial order in the Open Arms case provided migrants at sea with a broader protection, by relying on human rights that apply to everybody, regardless of their status.

Announcements: CfP Transformations of Citizenship; Annual Conference of the Italian Society of International and EU Law; CfP Joint North American Conference of International Economic Law; UN Audiovisual Library of International Law

Sun, 05/20/2018 - 08:00
1. Call for Papers: Transformations of Citizenship. This conference seeks to illuminate, elucidate and review the juxtaposition and tension inherent in the concept of citizenship today in an effort to understand the processes responsible for the key transformations in citizenship that we have witnessed in recent years. The deadline for submissions is 1 July 2018. The conference will be hosed 20 – 21 November 2018 at the University of Graz. For more information, please see here.    2. Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). On 7 – 8 June 2018, the University of Ferrara will host the XXIII Annual Conference of the Italian Society of International and EU Law (SIDI-ISIL). The Conference’s theme is Codification in International and EU Law. The full program of the Conference and the calendar of the pre-conference events organised by the Interests Group of the Society are available here. For registration and further info: convegnosidi2018 {at} unife(.)it var mailNode = document.getElementById('emob-pbairtabfvqv2018@havsr.vg-83'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%6F%6E%76%65%67%6E%6F%73%69%64%69%32%30%31%38%40%75%6E%69%66%65%2E%69%74"); tNode = document.createTextNode("convegnosidi2018 {at} unife(.)it"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-pbairtabfvqv2018@havsr.vg-83"); mailNode.parentNode.replaceChild(linkNode, mailNode); .   3. Call for Papers: Joint North American Conference of International Economic Law. The ASIL International Economic Law Interest Group, the Canadian Council on International Law, and The Centre for International Governance Innovation, together with McGill University Faculty Of Law are organizing a Joint North American Conference on International Economic Law that incorporates the 2018 ASIL IEcLIG Biennial. It will be held at McGill University Faculty of Law, Montreal, Quebec, Canada, 21 – 22 September 2018. The conference theme is “Managing International Economic (Dis)Integration: Challenges and Opportunities.” We invite unpublished paper and panel proposals relating to the conference theme, but will also consider submissions on other topics in international economic law. Paper proposals are to comprise abstracts of no more than 500 words, whereas panel proposals should not exceed 1,500 words. Proposals should be sent to 2018naiel {at} gmail(.)com var mailNode = document.getElementById('emob-2018anvry@tznvy.pbz-10'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%32%30%31%38%6E%61%69%65%6C%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("2018naiel {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-2018anvry@tznvy.pbz-10"); mailNode.parentNode.replaceChild(linkNode, mailNode); , and the submission deadline is 4 June 2018. The complete call for papers is available here.

  4. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs recently added a series of lectures on various subjects of the Council of Europe to the UN Audiovisual Library of International Law website. The lectures were given on “The Council of Europe: Its Objectives and Activities” by Mr. Jörg Polakiewicz, “The Council of Europe’s Work on the Protection of Minorities” by Mr. Marco Leidekker, “Social Rights and the Council of Europe” by Mr. Henrik Kristensen, “The Work of the Committee of Legal Advisers on Public International Law” by Ms. Marta Requena, and “Preventing Torture and Other Ill-Treatment in Europe: The Role of the Council of Europe” by Mr. Jeroen Schokkenbroek. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

What Level of Human Control Over Autonomous Weapon Systems is Required by International Law?

Thu, 05/17/2018 - 08:00

Introduction

Autonomous weapon systems [AWS] raise profound legal, ethical and moral concerns. Scholars have asked, for example, whether AWS can comply with international humanitarian law [IHL]; whether their use will lower the threshold on the use of force and undermine jus ad bellum rules and whether their deployment will create an accountability gap in violation of victims’ rights to remedy. While there is no agreed definition of AWS, the United Kingdom House of Lords’ recent report carries definitions that generally describe AWS as robots that, once activated, are able to make targeting decisions without further human intervention.

In the recent United Nations Group of Governmental Experts [GGE] meeting [9-13 April] on Lethal Autonomous Weapon Systems, States reiterated the need to maintain human control over AWS. Notwithstanding the general consensus on maintaining human control over AWS, there is no agreement on the nature of that human control or how it should be defined.

Issues surrounding the concept of human control

The 2018 GGE meeting brought to fore a number of questions on how human control should be defined. States submitted a number of ideas and suggestions. Organisations like the International Committee of the Red Cross noted both legal and ethical reasons why human control must be maintained. Likewise, the International Panel on the Regulation of Autonomous Weapons discussed military and philosophical perspectives on the notion of human control.

Now that various disciplines – e.g. military, law, ethics, religion, philosophy etc. – have standards that are relevant to the notion of human control over AWS, the paramount question is which standard(s) should determine an acceptable level of human control and why? While States and scholars may cite innovative ideas and standards upon which to define the concept of human control, it is paramount to distinguish between relevant standards and those that are obligatory or legally binding upon States. The later ought to serve as the yardstick.

The other issue obfuscating what is meant by “human control over AWS” is the involvement of various actors – designers, programmers, manufacturers, operators etc. – in the development and deployment of AWS. How does the notion of human control apply to all these actors? Should the notion of human control be understood as a cumulative standard – i.e. the total sum of the activities of all the actors involved or is it a standard applicable to each and every actor in their own capacity and imposing different – albeit related – obligations?

Along the above lines, the delegation from Egypt asked whether the GGE discussion on human control should focus first on the operators of AWS – i.e. combatants or fighters. This makes sense in terms of IHL targeting rules that are primarily concerned with the bearers of weapons.

Delegations from other countries also questioned whether thinking of human control in terms of all the actors involved dilutes the question of responsibility over human use of weapons. This is closely linked to the question when should humans exercise control over AWS? Can human control be sufficiently exercised at the programming stage alone? In other words, can human decisions to use lethal force be preprogramed?

These complex questions and lack of agreed answers shows that the notion of human control over AWS means different things to different States. Thus, unsurprisingly, States continue to use different terms such as “meaningful human control”, “sufficient human control”, “appropriate levels of human judgment” in a bid to describe their understanding of human control.

However, as was correctly noted in the African Group statement to the GGE, it does “not matter what name or term is used to describe human control” because “what matters is the substance and standards of that control”.

International law and human control over AWS

This post strongly suggests that relevant international law standards ought to take primacy in the determination of what constitutes adequate human control over AWS. Any suggested form of human control that does not meet the demands of the relevant legal norms is inadequate.

Human control of weapons is inherent in international law that governs the use of force. While ideas from other disciplines are relevant, the ultimate yardstick to determine the standard of human control should be located in international law.

As noted in International Committee for Robot Arms Control’s statement that was submitted to the GGE, the guiding question that States should ask is: What is the Legally Required Level of Human Control [LRLHC]? Grounding the discussion in binding norms of international law eliminates unnecessary noises that currently permeates the discussion on what constitutes adequate human control.

In the above sense, the African Group on Disarmament noted that human control should not only be “understood in terms of legal principles” but “should not be seen as a matter of good-will by States but a legal standard that they ought to fully abide by”.

A few examples can help in thinking of human control in legal terms. There is a legal duty on humans – not machines – to ensure that international humanitarian law and other relevant legal norms are respected during targeting. It is humans who are entrusted with making legal judgements – in real time – whenever force is used. This is to ensure human legal responsibility for use of force.

Human responsibility for use of force in international law

The fundamental purpose of human control over weapons is to retain human responsibility over use of force. In international law, there is a direct relationship between control exercised and responsibility. When considering the notion of control for the purposes of determining responsibility, the basic legal inquiry in different branches of international law is: who is the aggregator of power at the relevant time?

Likewise, in international criminal law – also in domestic law – individual responsibility is anchored on the concept of mens rea or intention. Individual responsibility is undermined where a weapon system has the capacity to perform critical functions – those that relate to selection of targets, making of legal judgements and release of force – without human input. When such a weapon system is used, it is difficult if not impossible to ascertain the intention of the human operator.

Therefore, the LRLHC that the operator or combatant ought to exercise is that which reflects his or her intention for the purpose of establishing individual responsibility. To preserve human intention and hence human responsibility, the human-machine interaction in the targeting cycle should be characterized by machine dependence on human input in real time.

Framing of the human control standard in international law

Human-machine interaction occurs at various stages in the development and deployment of AWS. The Chair of the GGE has referred to such stages as human “touch points”. Human control of AWS is exercisable at different stages and by different actors as already mentioned above. This has led to the question whether the notion of human control is a cumulative standard. Consequently, questions have arisen whether legal responsibility over AWS can be split and shared among the actors involved. It has also led to the question whether human control can be sufficiently exercised at the programming or other developmental stages of AWS.

While all actors in the development and deployment of AWS play an important role, from a legal standpoint, human control is not the total sum of their activities. Rather, as shown below, human control should be understood as a particularised legal standard that is applicable to each and every individual actor in their own capacity. For each actor involved and based on their respective obligations, the question that must be asked is: what is the LRLHC?

In order to determine the control that ought to be exercised by each actor involved, it is important to focus first on the operators of AWS – i.e. combatants, fighters or law enforcement officials. This is because the accountability gap currently envisaged in the AWS debate largely relates to operators of AWS. More importantly, once one determines the level of control that operators must exercise over AWS, then that standard determines the responsibilities of the rest of the actors.

For example, once it is established that there is a legal responsibility for the operator to make all targeting decisions, then it follows that there is a legal responsibility on the programmer or roboticist not to develop a weapon system that has the capacity to make targeting decisions. Thus, the level of human control that ought to be exercised by the operators by virtue of legal obligations that binds them serve as a yardstick and guideline to the design capabilities that must be and must not be in a weapon system.

Conclusion

Various disciplines are relevant in the discussion of the notion of human control over AWS. However, while certain disciplines are more important in showing why we need to maintain human control, other disciplines are more important in showing how we determine the standard of that human control. In determining the level of human control that ought to be maintained, applicable international law norms must be given primacy. The legal purpose of human control over AWS sets the level of human control required.

Prolonged Occupation or Illegal Occupant?  

Wed, 05/16/2018 - 07:00

An unresolved question in international humanitarian law is whether an occupying power – whose authority as occupant may have initially been lawful – can cross a bright red line into illegality because it is acting contrary to the fundamental tenets of international law dealing with the laws of occupation.  This question has become especially relevant in light of several prolonged occupations in the modern world, including the 50-year-old Israeli occupation of the Palestinian territory.

The principal instruments of international humanitarian law, including the 1907 Hague Regulations, the 1949 Fourth Geneva Convention and the 1977 Additional Protocol to the Geneva Conventions, are silent on this question. However, a purposive reading of these instruments, together with the foundational tenets of international humanitarian and human rights law, leads to the conclusion that an occupying power whose intent is to turn occupation into annexation and conquest becomes an illegal occupant.

In my October 2017 report to the United Nations General Assembly as Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967, I argue that a four-part test can be derived from general principles of international law, including the laws of occupation, to determine whether the status of an occupying power has become illegal. Violating any one of these four parts of the test could establish the occupying power as an illegal occupant. This builds upon previous studies done by E. Benvenisti; O. Ben-Naftali, A. Gross & K. Michaeli; and A. Gross.

Before laying out the four-part test, it is important to note that some international law commentators have advanced the proposition that a lengthy period of occupation – a prolonged occupation – should qualify as a special category under the laws of occupation. In the circumstances of a prolonged occupation, it has been said by these commentators that the laws of occupation may have to be modified to enable the occupying power to maintain an effective rule over the territory in light of evolving administrative needs and emerging social and economic developments. As such, they opine that the conservationist principle at the heart of occupation law would need to be interpreted flexibly.

While prolonged occupation may be a useful descriptive term to capture the existence of a lengthy occupation, it is not appropriate as a distinct legal category within the laws of occupation in the absence of an analysis as to why the occupation has lasted so long and whether the occupying power is still administering the occupation in good faith and with a steady determination to hand the entire occupied territory back to the sovereign – the people – in as short and as reasonable a time period as possible. Otherwise, the concept of prolonged occupation may well become a legal guise that masks a de facto colonial exercise and defeats the transient and exceptional nature which occupations are intended to be.   

The four parts of the proposed test are:

(i) An Occupying Power cannot annex any of the Occupied Territory

In the modern world, an occupying power cannot, under any circumstances, acquire the right to conquer, annex or gain sovereign title over any part of the territory under its occupation. This is one of the most well-established principles of modern international law and enjoys universal endorsement. According to Oppenheim, belligerent occupation does not yield so much as an atom of sovereignty in the authority of the occupant: A. Gross: The Writing on the Wall (2017), at 8.  

Beginning with UNSC resolution 242 in November 1967, the Security Council has endorsed the principle of “the inadmissibility of the acquisition of territory” by war or by force on at least nine occasions, most recently in December 2016. The United Nations General Assembly unanimously affirmed this principle in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States. In the Wall Advisory Opinion in 2004, the ICJ held, at para. 87, that the: “…illegality of territorial acquisition resulting from the threat or use of force” has acquired the status of customary international law.

Israel’s de jure annexation of East Jerusalem and parts of the West Bank in 1967 (by a Cabinet decision) and 1980 (by a Knesset vote) is, ipso facto, a violation of the non-annexation principle, as reflected in the laws of occupation. Shortly after the Knesset vote, the United Nations Security Council in August 1980 censured Israel “in the strongest terms” for the Knesset vote, affirmed that Israel’s actions were in breach of international law, and that Israel’s annexation of Jerusalem was “null and void” and “must be rescinded forthwith.” Israel remains non-compliant with all of the United Nations’ resolutions on the annexation of Jerusalem, there are presently about 210,000 Israeli settlers living in East Jerusalem and Prime Minister Netanyahu has stated that Israel intends to keep all of Jerusalem permanently. Beyond Jerusalem, Israel is actively establishing the de facto annexation of parts of the West Bank through its thickening settlement enterprise, as noted by the ICJ in para. 121 of the Wall Advisory Opinion and by Professor Omar Dajani.

Israel’s predominant reply-arguments are that it has a superior title to East Jerusalem and the West Bank because they were acquired in a defensive war and because Jordan was never the true sovereign at the time of the 1967 war. In response, the absolute rule against the acquisition of territory by force makes no distinction as to whether the territory was occupied through a war of self-defence or a war of aggression; annexation is prohibited in both circumstances: S. Korman, The Right of Conquest (1996), pp. 259-60. And, as the 2016 commentary of the International Committee of the Red Cross states, in para. 324, the legal status of occupation does not require the existence of a prior legitimate sovereign over the territory in question.

(ii) An Occupation is inherently temporary, and the Occupying Power must seek to end the occupation as soon as reasonably possible.

Occupation is by definition a temporary and exceptional situation where the occupying power assumes the role of a de facto administrator of the territory until conditions allow for the return of the territory to the sovereign. In the words of Jean Pictet, at p. 275, this is what distinguishes occupation from annexation. Because of the absolute prohibition against the acquisition of territory by force, the occupying power is prohibited from ruling the territory on a permanent or even an indefinite basis. While the laws of occupation do not set out a specific length of time for the lawful duration of an occupation, the purposive conclusion to be drawn is that the territory is to be returned to the sovereign power – the people of the territory – in as reasonable and expeditious a time period as possible, so as to honour the right of those people to self-determination. (As  UNSC Resolution 1483 (22 May 2003), dealing with the American-led occupation of Iraq, noted, the occupying powers committed to return the governance of Iraq to its people “as soon as possible.”) Indeed, the longer the occupation, the greater the justification that the occupying power must satisfy to defend its continuing presence in the occupied territory.

The duration of the 50-year-old Israeli occupation is without precedent or parallel in today’s world. Modern occupations that have broadly adhered to the strict principles of temporariness, non-annexation, trusteeship and good faith have not exceeded 10 years, including the American occupation of Japan, the Allied occupation of western Germany and the American-led occupation of Iraq. Every Israeli government since 1967 has pursued the continuous growth of the settlements, and the scale of the financial, military and political resources committed to the enterprise belies any intention to make the occupation temporary. As Professor Gershon Shafir has observed at pp. 155 and 161 in A Half Century of Occupation (2017): “temporariness remains an Israeli subterfuge for creating permanent facts on the ground”, with Israel able to employ a seemingly indeterminate nature of the occupation’s end-point to create a ‘permanent temporariness’ that intentionally forestalls any meaningful exercise of self-determination by the Palestinians.

(iii) During the Occupation, the Occupying Power is to act in the best interests of the people under Occupation

The occupying power, throughout the duration of an occupation, is required to govern in the best interests of the people under occupation, subject only to the legitimate security requirements of the occupying military authority. This principle has been likened to a trust or fiduciary relationship in domestic and international law, where the dominant authority is required to act in the interests of the protected person or entity above all else: A. Gross, The Writing on the Wall (2017), at pp. 26-29. The 1907 Hague Regulations, the 1949 Fourth Geneva Convention and modern body of international human rights instruments contain a number of provisions which protect the lives, property, natural resources, institutions, civil life, fundamental human rights and latent sovereignty of the people under occupation, while curbing the security powers of the occupying power to those genuinely required to safely administer the occupation. Accordingly, the occupying power is prohibited from administering the occupation in a self-serving or avaricious manner and it must act in a manner consistent with its trustee responsibilities. 

The pervasive barriers and restrictions in the civil and commercial life of the Palestinians have created a disfigured territorial space, resulting in a highly dependent and strangled economy, mounting impoverishment and receding hope for a reversal of fortune for the foreseeable future. According to recent reports by the World Bank, the United Nations, B’Tselem, the Association for Civil Rights in Israel and Badil, the Palestinians in the West Bank endure distinctly inferior civil, legal and social conditions compared to Israeli settlers; they suffer from significant restrictions on their freedom of movement and a denial to access to water and natural resources; Israel has imposed a deeply discriminatory land planning and housing permit system to support its settlement enterprise; and a number of West Bank communities live under the threat of forcible transfer and land confiscation. Palestinians in East Jerusalem and Gaza also endure distressing living conditions occasioned by the occupation.

(iv) The Occupying Power must act in good faith

The principle of good faith is a cardinal rule of treaty interpretation in the international legal system and has become an integral part of virtually all legal relationships in modern international law. The principle requires states to carry out their duties and obligations in an honest, loyal, reasonable, diligent and fair manner, and with the aim of fulfilling the purposes of the legal responsibility, including an agreement or treaty. Conversely, the good faith principle also prohibits states from participating in acts that would defeat the object and purpose of the obligation or engaging in any abuse of rights that would mask an illegal act or the evasion of the undertaking.

Accordingly, an occupying power is required to govern the territory in good faith, which can be measured by its compliance with the following two obligations: (i) its conformity with the specific precepts of international humanitarian law and international human rights law applicable to an occupation; and (ii) its conformity with any specific directions issued by the United Nations or other authoritative bodies pertaining to the occupation.

Israel has been deemed to be in breach of many of the rules of international humanitarian and human rights law throughout the occupation. Apart from its illegal annexation of East Jerusalem, its settlement enterprise has been repeatedly characterized as illegal by the United Nations Security Council. As well, the prohibited use of collective punishment has been regularly employed by Israel through the demolition of Palestinian homes of families related to those suspected of terrorism or security breaches, and by extended closures of Palestinian communities. Additionally, it is in non-compliance with more than 40 resolutions of the United Nations Security Council adopted since 1967 with respect to its occupation.

Namibia Advisory Opinion

In 1971, the International Court of Justice, in its Namibia Advisory Opinion, stated that annexation by a mandatory power is illegal, the mandatory must act as a trustee for the benefit of the peoples of the territory, it must fulfil its obligations in good faith, and the end result of the mandate must be self-determination and independence. It also held that the breach of the mandatory power’s fundamental obligations under international law can render its continuing presence in the mandate territory illegal, notwithstanding that the Covenant of the League of Nations (Article 22) was silent on this issue. The ICJ found South Africa to have become an illegal mandatory as a result of its aspirations for annexation, its prolonged stay, its failure as a trustee, and its bad faith administration.

The same reasoning would apply, mutatis mutandis, to a determination as to whether an occupying power is still the lawful occupant. Although mandates are governed by the Covenant and occupations are regulated primarily by the Fourth Geneva Convention, they are different branches of the same tree. Both South Africa (as a mandatory power) and Israel (as the occupying power) were/are prime examples of alien rule, the governing power in both cases was/is responsible for respecting the right to self-determination, annexation in both cases was/is strictly prohibited, and the international community on both cases was/is responsible for the close supervision of the alien rule and for bringing this rule to a successful conclusion.

Conclusion

A determination that Israel – or any occupying power whose administration of the occupation has breached one or more of the fundamental principles – has become an illegal occupant would elevate the duty on the international community to bring the occupation to a successful and speedy close. Among other benefits, such a determination would re-establish the framework of international law as the principled path to a just and durable resolution of the Israeli-Palestinian conflict.

Déjà vu? Investment Court Proposals from 1960 and Today

Tue, 05/15/2018 - 11:00

It is not business as usual in investment dispute resolution these days. In late April 2018 in New York, governments and experts met under the auspices of UNCITRAL Working Group IIIto continue vigorously debating how investor-state dispute settlement (ISDS) should be reformed or replacedby an investment court. This is not the first investment court proposal, however.

In the 1950s and 1960s, eminent international lawyers from around the world — Martin Domke, George Haight, F A Mann, Gunnar Lagergren, Elihu Lauterpacht, Raisa Khalfina, and Ignaz Seidl-Hohenveldern, to name a few — discussed an international investment court, notably at International Law Association conferences in 1958, 1960, and 1962. In 1960, ILA participants compared a court and arbitration directly, discussing “Draft Statutes of the Arbitral Tribunal for Foreign Investment” and “Draft Statutes of the Foreign Investments Court.”

Views in 1960, like today, varied sharply. No expert consensus existed that arbitration was better than a court for resolving investor-state disputes. This lack of consensus echoed even earlier debates: in 1905, when ASIL was founded, it was directed “exclusively to the interests of international law as distinct from international arbitration” (as Mark Mazower notes, page 92) because arbitration involved a compromise between interests rather than fidelity to the law. For ASIL founder Elihu Root, arbitration was an advance toward peace, but “the next advance to be urged along this line is to pass on from an arbitral tribunal…to a permanent court composed of judges who devote their entire time to the performance of judicial duties.” (Root might smile if he could see European officials coming to ASIL to discuss why an investment court should replace arbitration.) Unlike ASIL’s founders, arbitration’s supporters in 1905 praised the modesty of its procedures and goals—it was imperfect but feasible.

Feasibility was emphasized again in the 1960s, by attendees at the 1960 ILA conference and at the ICSID Convention’s drafting a few years later. This perception of feasibility stemmed in large part from assumptions made about arbitration in the 1960s, including that arbitral tribunals would not be agents of legal development, that appointing arbitrators was simple, and that arbitration was low cost. One can no longer make these assumptions about investor-state arbitration.

Today, reforming arbitration and creating a court are not mutually exclusive, nor are they only options under consideration at UNCITRAL. They are “elephants in the room” at UNCITRAL, however, so it’s interesting to compare how these two dispute resolution mechanisms look to participants today with how they looked in 1960. In this post, we cover three issues: legal development, appointments, and costs.

Courts and Tribunals as Agents of Legal Development

Permanent international courts can be influential agents of legal development. When a permanent court has jurisdiction over an issue, it can use its discretion to push policy in a particular direction.

This was recognized in the 1960s—many ILA participants expressed concerns about an investment court having an outsize ability to shape the law, given the unsettled status of international law regarding foreign investment in the 1960s. (In 1964, the US Supreme Court observed there “are few if any issues in international law today on which opinion seems to be so divided as the limitations on a state’s power to expropriate the property of aliens.”) Other ILA attendees believed a court was the right actor to find a middle ground between states, through the gradual development of legal reasoning. An ILA attendee from Denmark, Dr. Foighel, noted:

During the discussion there has been some fear as to the ability and the possibility of an international court to solve the different interests between the capital-importing and the capital-exporting states…
This proves as a matter of fact that there exist some common interests between the capital importing and exporting states. To clarify this common interest is the most important task for international lawyers today, and an international court will be a very useful organ to assist in this task.

What wasn’t recognized during the 1960s was that arbitral tribunals could become agents of legal development. Yet this is what has happened. Today arbitral decisions are often characterized as jurisprudence constante, even though contradictory decisionsoccur and calls for a review mechanismare common. Citing precedent is extensive, and increasing transparency makes legal development through arbitral awards more likely to occur.

Today, arbitration tribunals and courts are both agents of legal development. The choice facing participants at UNCITRAL is not court=legal development or arbitration=no legal development. Instead, participants must decide if in the long run, they prefer legal development to occur in a permanent body where precedent operates formally or in a more decentralized manner where precedent operates informally and somewhat inconsistently. And in the meantime, through what means (joint interpretative committeesor more specific substantive law, for instance) would they like to limit adjudicator discretion or encourage consistency?

Appointment
Designing appointment systems for international courts is a delicate diplomatic task, and appointments to international courts can become political struggles, as seen in the 2017 ICJ elections.

This was recognized in the 1960s—several ILA attendees believed that governments were unlikely to agree on a method of appointing judges to an international investment court. Others thought an effective procedure could be created. The “Draft Statutes for the Foreign Investment Court” set out a detailed procedure for electing judges, and specified standards that judges should meet. (Many of these standards are relevant today, for instance Article XIV (1) addressing double hatting: “No member of the Court may act as agent, counsel, or advocate in any case.”) In the 1960s, the view that appointing arbitrators was simpler and therefore more feasible won out; it was a view shared by the father of the ICSID Convention, Aron Broches, who believed the “political complications” of appointing judges with fixed terms would prove an “insurmountable obstacle” to the creation of an investment court.

What Broches and others did not anticipate was party appointment becoming so controversial that addressing public perceptions of arbitrators as beholden to the party that appointed them would becomea pressing concern for some governments. The perception of party-appointed arbitrators as potentially biasedand disproportionately stale, male, and paleis unlikely to go away without reform. If anything, it is likely to intensify as challenges and other developmentsbecome more common and as increased transparency enables empirical scholarship on arbitrator behavior (from just last year, see Charlotin;Franck et alLangford, Behn, and Lie; and Puig and Strezhnev).

The question facing officials now is if they wish to focus on minor reforms to arbitral appointment procedures (perhaps limiting the number of times a law firm can appoint the same arbitrator), on major reforms to arbitral appointment procedures (perhaps getting rid of party appointment), or on designing a procedure for fixed-term appointments. As Anthea Roberts has written, it makes sense for states to think about generating a suite of reform options: designing a procedure for fixed-term appointments does not exclude or replace reforming arbitral appointments.

Costs
Permanent international courts can be costly, and negotiating financing arrangements for them is a challenging task.

This was recognized in the 1960s—even ILA attendees who saw merit in a court recognized the low cost of arbitration as an important advantage. Ignaz Seidl-Hohenveldern, for instance, who believed a court had many theoretical advantages, observed, “An Arbitral Tribunal would be preferable to a Permanent Foreign Investments Court, especially in view of the costs involved in the latter case.” Many suggestions for reducing costs, such as fewer judges initially or employing fact-finding officials (so judges would deal only with legal questions) were presented. Despite these suggestions, it was hard to beat arbitration when it came to the cost issue in the 1960s: as Aron Broches observed, arbitration “wouldn’t require money.”

Consenting to arbitration still doesn’t require money, and governments do not fund arbitral secretariats. While this looks like a good deal for governments in the short run, in the long run it has led governments to exercise less oversight of what these secretariats do, and arguably gives secretariats an incentive to be more entrepreneurial, which tends to help generate more cases against states in the long run.

Cases do cost governments money, of course, and dramatic increases in costs are an urgent concern for governments. Costs were the main substantive topic discussed in the initial UNCITRAL Working Group meeting last fall. This discussion identified factors that contribute to lengthy, costly ISDS proceedings and highlighted ways to reduce costs, such as early dismissal mechanisms or consolidating cases. The Report of the Working Group makes only an oblique reference to a court, noting, “the systematic nature of the concerns identified indicated a need for systemic solutions, which would bring with them the reduction of the overall costs through enhanced predictability and a greater ability to control proceedings themselves.” This subtly asserts that while a court has higher standing costs, it may generate lower costs per case, because counsel will not spend time on arbitrator selection and because, if precedent operates, counsel will be able to consider certain questions of law settled. While many questions about costs remain unanswered, assertions like these show the debate has moved beyond the 1960s binary in which a court required money while arbitration required no money.

There are many broader questions that need careful consideration in ISDS reform debates, including whether any legal dispute mechanism is warranted and whether the justifications for such a mechanism (many of which are inherited from the 1960s) still stand. The reform debate is not arbitration versus a court. If we do look only at these two elephants and how they have changed since they were last compared in the 1960s, however, we observe that many of the challenges that accompany creating a court are the same, while investor-state arbitration has been transformed, invalidating traditional assumptions and generating a range of new reform challenges.

High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights

Mon, 05/14/2018 - 07:00

The mere filing of a case is rarely a reason for legal commentary but in this particular case, it may well be. A few days ago, a broad-based coalition consisting of NGOs and scholars, led by the Global Legal Action Network (GLAN) filed an application against Italy before the ECtHR with potentially far-reaching implications for European migration policy and especially maritime border control. The issues at hand are so-called ‘pullback’ practices in which the Libyan coastguard – funded, trained, and equipped by the Italian authorities under an agreement signed in February 2017 – prevents migrant boats from heading to Europe’s safe shores.

The application concerns events that unfolded the morning of 6 November 2017. A migrant dinghy in distress before the Libyan coast was simultaneously intercepted by the Libyan coastguard and a rescue ship of the German NGO ‘Seawatch’. A messy and partly confrontational rescue process ensued. Of the (approx.) 120 migrants onboard the dinghy, more than 20 persons drowned before and during the operation. 47 others were ‘pulled back’ by the Libyan coastguard, allegedly experiencing human rights violations including torture and inhumane and degrading treatment upon their return in Libya. 59, more lucky individuals, were rescued by the Seawatch and brought to Italy. By merely looking at the facts, the advantages of having a broad-based coalition become clear. University of London Goldsmiths’ Forensic Architecture agency made available an impressive digital reconstruction of the events that unfolded that morning. These details could be a crucial ingredient for a successful case.

Still, the present case comes at a difficult time for migrant rights advocates in Europe. With NGO operations ‘in decline’ and externalisation measures such as the controversial EU-Turkey agreement officially praised as a success, migrant supporters seek to reverse the momentum. Strategic litigation, if effective, promises to deliver such a turning point. A condemnation by the ECtHR of pullback arrangements between states within (Italy) and principally outside (Libya) its jurisdiction would mean a serious blow to border control practices on the Mediterranean. Indeed, the application targets nothing less than the ‘structural conditions’ for human rights violations on the high seas and in Libya as Itamar Mann, legal counsel and contributor to this blog, explained on Twitter. At the same time, it is important to keep in mind the challenges and risks as the application goes forward.

The risks and challenges of going to the Strasbourg Court

The management of a successful test case is a long road as I discuss in my forthcoming monograph Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Rights (Cambridge Asylum and Migration Series). It starts much before the actual application is filed and ends years and possibly decades after the judgment. This short analysis will therefore be limited to those questions that arise at this particular stage.

Firstly, the application still needs to be declared admissible. The clear factual account provided by Forensic Architecture and worldwide media coverage through Associated Press certainly increase the urgency for the ECtHR to deal with the matter. However, apart from the central jurisdictional question discussed below, one issue that often arises in migration-related applications is that they are declared inadmissible or struck off the Court’s docket. On the one hand, governments have been able to increase the number of such instances by deploying ‘anticipatory measures’, for instance granting exceptional permits to individuals in return for a removal of the legal action. On the other hand, lawyers have often had practical difficulties in maintaining contact with clients who have been deported or forced into ‘illegality’. In the present case, 15 of the applicants are now resident in Italy, which reduces the risk of a complete strike-out. However, as far as human rights violations result from returns to Libya, the human rights lawyers rely on the account of only two applicants who are now back in Nigeria, one of which was sold after the pullback. The danger of losing contact with forcibly returned clients is very real as proven in the Hussun case. There, the lawyers (who later also brought the Hirsi case) were unable to prove to the Court that they still legitimately represented 84 persons who had been deported from Lampedusa to Libya.

Caution will also have to be paid to adverse outcomes through restrained or ‘liminal’ judgments, which only seemingly improve the situation. The obvious goal of the applicants and their defenders is to have the Court assert its jurisdiction by holding that a State Party can retain effective control over persons also when its officers ‘only’ equip, train, and possibly instruct vessels of a third state. This model, of course, is itself an evolution compared to previous practice. In 2012, the ECtHR condemned Italy for a ‘pushback’ policy in Hirsi when its coastguard physically intercepted a migrant boat and returned approximately 200 passengers to Libya. Confronted with the question of the extraterritorial application of the ECHR, the Court asserted that the applicants had been ‘under the continuous and exclusive de jure and de facto control of the Italian authorities’ (para. 81). The result was a breach not only of Art. 3 of the ECHR due to refoulement, but also of the prohibition of collective expulsions under Art. 4 of Protocol 4 to the Convention. Mann (2013) was the first to remark that the Court had actually reviewed a ‘primitive’ version of interceptions. Such a judgment, Mann argued, could even serve as a ‘blueprint’ for legally more advanced policies. Pullback arrangements fall precisely in this category, establishing ‘contactless control’, to use the words of Violeta Moreno-Lax (2017), likewise acting as a counsel in this case.

It is not difficult to imagine similar trajectories in the present case. What if the Court perceived it to be relevant that Italy’s coastguard failed to persuade the Libyan officers to cooperate with the German NGO? Not only cynics would hypothesize future ‘maritime dramas’ to be staged for the consumption of a judicial audience. Another double-edged result would be if the Court dealt only with the specific rescue operation but refused to discuss whether Italy had breached the non-refoulement principle by concluding a bilateral agreement under which potential refugees are returned to Libya.

Finally, the applicants and their defenders are facing a political uphill battle at a time when it has become commonplace to tolerate the collateral damage caused by border control. Sadly, Europe’s supranational courts are not immune to such reflexes. The CJEU has avoided two major ‘upsets’ in recent months. It has denied jurisdiction over the EU-Turkey Agreement in a convoluted and formalistic judgment. In X and X, the CJEU found Belgium not to be obliged under EU law to grant humanitarian visas from embassies abroad, snapping that finding otherwise ‘would undermine the general structure’ of the (failing) Dublin system (arguably very much the point). But politics also played a role in Hirsi. In reality, Italy pursued a pushback policy only for a few months under the Berlusconi government in 2009, suspending it for various reasons even before the Hirsi application was communicated. By the time of the ruling in early 2012, the governing coalition had been replaced, making it easier for the (new) Italian administration to accept the verdict. The challenge for the applicants in the present case will be to convince the ECtHR that pullback policies are not only inhumane, but also expandable in the sense that they do not, in fact, ‘stem the tide’ in the way its proponents like to pretend. The public would likewise have to be convinced as even a positive judgment could otherwise result in unwanted backlash across Europe.

A risky action of (potentially) tremendous importance

As an instance of strategic litigation, the application made by GLAN is therefore not without its perils. In the worst case scenario, the ECtHR could provide pullback policies with legitimation similar to the acceptance of pushbacks by the US Supreme Court in Sale. More likely, the ECtHR will recuse itself in some way, leaving human rights defenders behind with the costs in money and effort, and with shattered hopes. But the impact of a successful action – by no means an impossibility – could be tremendous. Not only would it be a rare victory at a difficult time, but it would eclipse the Hirsi decision in both legal and practical significance. The pullback policies in question are common practice in Europe these days. In addition, the action offers a rare opportunity for the ECtHR to illuminate how European border policies fuel some of the gravest human rights violations in the world today such as the auctioning of migrants in Libya. The question is whether the time is ripe for such a ground-breaking ruling.

 

The Missing Link in Migration Governance: An Advisory Opinion by the International Court of Justice

Fri, 05/11/2018 - 07:00

Even though the International Court of Justice (ICJ) has jurisdiction to resolve disputes on the interpretation and application of the 1951 Refugee Convention (Art. 38) and the 1967 Protocol (Art. IV), it has so far not adopted any relevant judgment or advisory opinion. States have not shown interest in activating the Court’s jurisdiction with regard to the Refugee Convention, but they have done so in a variety of disputes broadly linked to transboundary movement of persons or to international protection: Latin American diplomatic asylum (Asylum and Haya de la Torre cases), consular assistance (LaGrand  and Avena cases), and extradition, arrest  or surrender of persons suspected of war crimes and crimes against humanity (Arrest Warrant and Habré cases), and terrorism (Lockerbie case).

As the world currently faces the worst migration crisis since WW II in terms of destabilization potential, due to the combined effects of the wars in Libya and Syria, and poverty in the Sahel, it is time to consider the challenges and benefits of the potential involvement of the ICJ in the global efforts of migration management and international protection. There are three questions to discuss, (a) necessity, (b) feasibility and (c) contribution of a potential ICJ ruling.

(a) Necessity

The involvement of the ICJ is necessary in view of clarifying and adapting core elements of the principle of non-refoulement to the contemporary conditions of migration management. This function cannot be fulfilled on a universal level by any other jurisdictional or quasi-jurisdictional mechanism.

In the first place, non-refoulement should be interpreted in view of the principles of burden-sharing and solidarity. Non-refoulement may be the core principle of the Refugee Convention, but due to the time that has elapsed since the adoption of the Convention, state practice has undergone a rapid change, which has not always been free of controversy. Thus, it is necessary to clarify the meaning of the concept of safe third country and safe country of origin, and the modalities of relocating refugees through bilateral or multilateral arrangements, depending on the reception capacities and financial resources of the States involved.

Second, these issues cannot be authoritatively answered by alternative mechanisms. The system of the Refugee Convention does not include a quasi-judicial body of independent experts selected through a transparent procedure with the authority to decide disputes and to adopt General Comments similar to other human rights bodies (for instance, the Human Rights Committee). The UNHCR is an agency exercising international public authority with limited power of adjudication, and only in cases of Refugee Status Determination, but its activities and standpoints are characterized by a blend of law, policy, and pragmatism. The ExCom Conclusions and the UNHCR Guidelines are soft law instruments or expert opinions, but not authoritative interpretations of international law. Last, but not least, the monitoring and reporting mechanism under Arts. 35 and 36 of the Refugee Convention falls short of the system later agreed for human rights treaties.

The lack of a system of authentic interpretation on a universal level is responsible for the absence of generally accepted standards for the interpretation of non-refoulement and burden-sharing. The gap has been partially filled by national courts and by the CJEU that interpret the Refugee Convention through the lenses of their own constitutional systems and national or supranational interests. From the perspective of the Convention, however, these interpretations appear as discontinued interpretative alternatives that may inform our understanding of the universal rules, but are not authentic interpretations that draw a line between past and future. Furthermore, States, civil society organizations and the UNHCR engage in a continuous struggle for the semantic domination of the Convention, amplifying the indeterminacy of the rules. As a result, the evolution of non-refoulement as a universal principle cannot reach crystallization points, but, instead, the fundamentally normative character of the principle gives way to a more open principle, which becomes increasing incapable of stabilizing normative expectations. Thus, policies (and politics) tend to displace law, instead of being structurally coupled to it.

To prevent any misunderstanding, I do not argue that the Refugee Convention should homogenize refugee protection across the world. Such an enterprise would not only be counterproductive, but would contradict the rationale of regionalization of international law that enables local jurisdictions to adapt the rules to the local conditions. Instead, I argue that regionalization presupposes a minimal but well-circumscribed center of gravity holding the system together. A clear understanding of the principle of non-refoulement as treaty law and as customary international law applicable to refugees and persons fleeing war and human rights violations is necessary in order to preserve the constitutional basis of the universal system of protection.

(b) Feasibility

There are different prospects for activating the Court via an application by a State or via a request for an advisory opinion. A State may apply against another State for alleged violations of the Refugee Convention or of the customary principle of non-refoulement. The chances that a State might decide to use this avenue are slim. The applicant must have a strong interest in the outcome of such a case, engage in a long and complex judicial contest, and possibly harm, at least temporarily, its relations with the respondent. Moreover, the ICJ has interpreted the existence of a ‘dispute’ as a condition of its jurisdiction rather narrowly in the recent cases Georgia v. Russian Federation (2011) and Marshall Islands v. UK (2016). The applicant must establish that a bilateral dispute exists, and it is not sufficient to provide evidence of its existence through general statements in international fora. Thus, the Court excluded in principle the possibility of an actio popularis that would serve the international interest. Finally, even if the existence of a bilateral dispute could be established, it is in no way certain that it would focus on the issues of major significance for the international community; it would probably be tailored to the specifics of that dispute.

More promising would be a request for an advisory opinion by the UN General Assembly. The feasibility problems here are of a broader political order, because the UN Member States should be convinced to adopt a resolution requesting an advisory opinion. State and non-state actors would initially hesitate to take such an initiative, because they would be unwilling to assume the procedural risk. Civil society and UNHCR would probably fear a conservative opinion that would restrict refugee rights. States would fear that the ICJ would revisit the Convention in a more liberal spirit.

The fact is that nobody can predict the outcome of an advisory opinion. The Court has been occasionally ‘conservative’, as in the Opinion on the Threat or Use of Nuclear Weapons, or ‘progressive’, as in the Opinion on the Construction of a Wall. Thus, indeed, the procedural risk is not negligible. The main actors would prefer to carry on the contest on refugee rights v. state sovereignty and, if they lose a battle, they can hope to fight another day. A realistic possibility for a mobilization in the General Assembly would be to create a ‘coalition of the most heavily burdened’, e.g. Europe and Africa, arguing for global burden-sharing as a principle of international law, to be applied alongside the principle of non-refoulement.

(c) Contribution: Advancing migration governance

The advancement of migration governance will benefit first and foremost migrants and refugees, because the ICJ would be given the opportunity to clarify the discretion of States with regard to the management of inflows and would formulate the corresponding guarantees for refugee rights. So far, the legal discussion on non-refoulement has been focusing on the paradigm of access to the territory of the host country, whilst the real problem is the prevention of return to the country of origin and the granting of effective protection to groups of persons through a variety of policy instruments. The clash of these two alternatives is already taking place, but in a rather ‘crude’ manner. Civil society organizations demand freedom of access for migrants and refugees towards their desired destinations, even as the EU externalizes or refuses protection without a clear understanding of the concept of the safe third country or non-refoulement.

By interpreting the Refugee Convention and customary international law, the ICJ can be expected to review non-refoulement and interlinked rights taking the flanking principles of burden-sharing and solidarity into account. The protection of refugees cannot depend on circumstance, but should be based on a system of regional and global distribution of various categories of burdens and costs. As the global refugee crisis is a matter affecting international peace and security, it is obvious that the P5 and other major powers should play a pivotal role in the global protection system.

Non-refoulement cannot be interpreted as a static obligation of states to protect refugees who choose or happen to arrive in their territories, but has to be embedded in a transnational (regional and/or global) migration management context. This is also the meaning of the efforts currently undertaken by the UN General Assembly on the two global compacts on refugees and migration (New York Declaration 2016). Notwithstanding these efforts, the envisaged compact on refugees should not be conceived as a policy instrument separate from the Convention, but as a framework for its implementation, enabling a variety of migration management policies. The combined effect of an advisory opinion and the compact would strengthen normative expectations on international protection and would enable an adaptation of the Convention to the requirements of the time. The recent departure of the United States from the consultations on the global compacts (see The Guardian) makes such a linkage ever more apposite, because it would strengthen normative expectations at a crucial juncture for international relations. Moreover, even if some states can be expected to reject a potential advisory opinion as formally non-binding, its authoritative character will have a long-term impact on the domestic legal systems and on international practice.

The ICJ should recognize the obligation of States to enter into arrangements for migration management and their broad discretion with regard to the choice of the appropriate means,  and should indicate the ‘minimum standards’ compatible with the Convention and human rights law, including the determination of the concept of safe third countries and the legal status of those intercepted on the high seas. The Court could be expected to decide that protection in the region of origin of the refugees would not violate the Convention per se (see Hathaway and Neve, already in 1997), that the relocation of refugees would not, in principle, require their consent, and that all states should participate in regional, trans-regional or global  agreements on burden-sharing either through financial contributions or through relocation and resettlement. Moreover, protection in situations of mass inflow could have a temporary character and would not lead necessarily to resettlement. The Opinion would also clarify the obligations of states with regard to the social and economic rights of beneficiaries of international protection.

An advisory opinion by the ICJ responding to an ‘honest’ and open request by the General Assembly could help establish a global consensus on the fundamentals of a ‘minimum protection order’. It would transform our perceptions on the Refugee Convention from a static to a dynamic instrument  and would facilitate regional or global arrangements for the resettlement, relocation, temporary protection and return of refugees, and on the efficient use of limited financial resources.  A precedent shows that the ICJ can be effective in that regard. In the Haya de la Torre case (1951), a non-binding suggestion by the Court had a prima facie invisible, but in the medium term positive, outcome. The ICJ suggested that the parties should find ‘a practical and satisfactory solution by seeking guidance  from those considerations of courtesy and good neighborliness which, in matters of asylum, have always held a prominent place in the relations between the Latin-American republics’ (p. 83). Thus, the Court nudged these States to conclude the Caracas Convention on Diplomatic Asylum in 1954.

New EJIL: Live! Interview with Jürgen Kurtz on his Article “Convergence and Divergence in International Economic Law and Politics”

Thu, 05/10/2018 - 08:00

In this episode of EJIL: Live! the Editor-in-Chief of the Journal, Professor Joseph Weiler, speaks with Jürgen Kurtz, Professor of International Economic Law at the European University Institute, whose article “Convergence and Divergence in International Economic Law and Politics”, co-authored with Sungjoon Cho, Professor of Law at the Chicago-Kent College of Law, Illinois Institute of Technology, appears in issue 1 of volume 29 of the Journal.

The conversation takes up and deepens the issues explored in the article, noting in conclusion that the article’s very serious engagement on a doctrinal and policy level has ramifications which transcend the specific issue. The interview was recorded at the European University Institute.

Crimea Investment Disputes: are jurisdictional hurdles being overcome too easily?

Wed, 05/09/2018 - 07:00

In February-March 2014, Crimea experienced what is here neutrally referred to as a ‘change of effective sovereign’ (as conceded by Ukraine itself). Subsequent events have given rise to at least nine investment claims by Ukrainian nationals against Russia in connection with their investments in Crimea made prior to the ‘change of effective sovereign’. Substantively, all cases pivot on alleged violations of the expropriation and FET (fair & equitable treatment) clauses of the 1998 Russia-Ukraine BIT. Before getting there, however, a series of jurisdictional hurdles need to be overcome. Firstly, whether the scope of the BIT covers also de facto (as opposed to de jure) territory. Thus, whether under the BIT, Crimea may be understood as Russian territory. Secondly, the BIT’s temporal and personal ambit of application. That is to say, whether Ukrainian nationals and their businesses existing in Crimea prior to the ‘change of effective sovereign’ may qualify, respectively, as foreign Ukrainian investors and investments in Russia. It is doubtful that these questions which, are inevitably intertwined with the public international issue of the legality of the ‘change of sovereign’, can be satisfactorily answered through ‘effective interpretations’ and/or drawing analogies from human rights law. The scope and rationale of investment law differs from that of the latter; the promotion and protection of bilateral business is pursued for the benefit of economic growth, while the protection of fundamental rights and freedoms of persons is undertaken for the good of human kind.  In fact, it is reflected in the standard dispute settlement mechanism envisaged i.e. private ad hoc arbitration v standing international court.

Jurisdictional decisions in five proceedings have recently been rendered. To date, none of these have been made public. Nevertheless, important passages of their reasoning have been uncovered by trusted sources. These allow for a preliminary review of the tribunals’ assessment of the key legal issues involved.

With two letters addressed to the PCA– the first designating the appointing authority in all proceedings, the second appointing registrar by all tribunals- Russia refused to participate in all arbitrations. Russia argued that the “[Ukraine-Russia BIT] cannot serve as a basis for composing an arbitral tribunal to settle [the Claimants’ claims]”, and that it “does not recognize the jurisdiction of an international arbitral tribunal at the [PCA]”. This stance mirrors China’s conduct vis-à-vis UNCLOS’ South-China Sea arbitration in 2013-2015, where broader thorny issues of territorial sovereignty were also at stake. In contrast to China, however, Russia has not issued a ‘position paper’, which could be used by the arbitral tribunals to support a consideration that the letter constitutes a proper jurisdictional objection.

A preliminary note about the investors and the lawyers involved in these disputes is necessary. Of the nine claims so far publicly known, six descend from two Ukrainian billionaires (five from Mr. Komoloiski, one from Mr. Akmenhov). One law firm (Hughes & Hubbard) represents the claimant in five cases, with another law firm (Covington & Burling) representing the claimant in another two. Ukraine’s third-party intervention appears in all of the cases. The arbitral tribunals hearing the disputes feature internationally renowned experts, but their composition is quite repetitive: two cases share the same bench (respectively, Dupuy – Bethlehem – Mikulka and Kaufmann-Kohler – Price – Stern). Two of the other arbitrators, Simma and Rigo-Sureda, first acted as appointing authorities before accepting appointment themselves. Also, two arbitrators, Rigo-Sureda and Stern, decided Sanum v. Laos in 2013 (pivoting on the territorial extension of the China-Laos BIT to Macao – extension that the tribunal granted). Another arbitrator, Bethlehem, acted as an expert for the claimant in that same case.

In the first half of 2017, the first five jurisdictional decisions were rendered: the tribunals in the two pairs of cases with identical composition (here referred as the ‘Dupuy’ and ‘Kaufmann-Kohler’ decisions, with reference to their president), and one other (the ‘Rigo-Sureda’ decision), unanimously affirmed their jurisdiction. In a sixth case (McRae – Simma – Zuleta), the tribunal, adopting a fresh approach, issued a ‘jurisdictional letter’ illustrating that it intends to uphold jurisdiction but will explain the reasons in the final award.

Firstly, it emerged that the outlined commonalities between the claimants (and their lawyers) resulted in the first two jurisdictional decisions (Dupuy) being shared with the second tribunal (Rigo-Sureda). These were all subsequently submitted to the third (Kaufman-Kohler) tribunal. It may not then come as a surprise that while possibly leveraging on slightly different arguments, the decisions do not contradict each other – becoming, rather, progressively more articulated.

With due respect to the difficult task carried out by the renowned arbitrators, and while we await public disclosure of the full decisions, the following touches upon three issues that seemingly underpin, or have constituted part of, their rationale.

1. Investment arbitration as a means to protect Ukrainian businesses in Crimea.

The Rigo-The Sureda and Kaufmann-Kohler decisions found that to exclude territory transferring from Ukrainian to Russian control from the application of the Russia-Ukraine BIT, independently from the legality of said control, would discriminate against Ukrainian investments in Crimea.

In principle, this is to say that in the presence of a BIT, to exclude from its application territory whose control switches between the parties, independently from the legality of said switch and/or control, ipso facto discriminates against those domestic investors whose State no longer controls the territory where they invested. However, the ipso facto treatment of what was at one time domestic as something foreign (i.e., treating domestic Ukrainian investment in Crimea made prior to the establishment of Russian control as foreign Ukrainian investment in Russia) seems to conflict with the good faith understanding of the terms ‘foreign investment’, especially if read through the scope and purpose of a BIT (i.e. to increase foreign investment).

The arbitrators backed this finding through ‘effective interpretation’ of the BIT’s purpose of encouraging investments. Since Ukrainian investment in Crimea ipso facto currently brings benefits to Russia, to deny the Ukrainian investors BIT coverage (thus the possibility of resorting to ISDS) breaches the ‘synallagmatic relationship’ (encouragement <–> protection) the treaty seeks to establish between foreign investors and the host State. A contrario, Russia is to be considered ipso facto bound by the Russia-Ukraine BIT even with respect to Ukrainian investments made in Crimea prior to the change of effective sovereign.

Arguments grounded on BITs’ ‘effective interpretation’ are routinely used by investment tribunals. Regarding investor-State dispute settlement (ISDS), they reflect a view which, starting with Maffezini, progressively gained traction and, accepts that today ISDS is the key element of a BIT; the only independent and impartial (and, often, confidential) forum of experts to which foreign investors can turn. While the argument is logically correct, its legal axiomaticity is less certain. Both investment treaty practice up until the early 1990s (with arbitration either absent or limited to a review of the appropriateness of the compensation granted by the State in case of expropriation), as well as that of the last decade (with arbitration of ‘any dispute’ effectively reduced by all sorts of roadblocks, constraints, exceptions and exclusions), offer normative evidence to the opposite effect. Moreover, the debate over use and extent of ‘effective interpretation’ in investment law, especially with regard to jurisdiction, is ongoing (e.g., §63 of the 1988 jurisdictional decision in Southern Pacific Properties v. Egypt; more recently, Schreuer and Waibel).

In the case of Ukrainian investors in Crimea, a systemic effective interpretation approach (with regard to ISDS especially) is perhaps even less convincing. Investment arbitration is not the best setting to face complex questions of public international law (the effects of Crimea’s change of sovereign, let alone its legality). It is also not the only forum available to Ukrainian investors, or Ukraine itself.

Firstly, Ukraine called for Ukrainian businesses in Crimea to actively engage in ISDS against Russia (Art. 9 BIT), seemingly overlooking the BIT’s State-State dispute resolution mechanism on questions of “interpretation and application” of the treaty (Art. 10 BIT). It would have been more difficult for Russia not to participate in an arbitration on the question of the BIT’s scope regarding Crimea. Also, such a decision would have offered a firmer ground to all subsequent investor-State disputes.

Secondly, Ukrainian businesses in Crimea have the ECtHR to turn to in case of expropriation. Perhaps the ECHR’s standards of indemnification/compensation are not as generous as those of some BITs/investment tribunals, nor its protection for businesses as extensive. Nevertheless, to adopt an expansive jurisdictional approach through sector-specific treaties (BIT) because of other mechanisms’ alleged limitations (ECHR), all the while circling around the elephant in the room (the public international law question over the legality of the “change of sovereign”), entails considerable risks at the enforcement stage.

2. The unique in casu intertwine between the temporal, personal and legal BIT ambits of application.

All tribunals have grounded the inclusion of Crimea in the territorial scope of the Russia-Ukraine BIT in light of Russia’s conduct and effective sovereignty (side-stepping the question of legality). The tribunals offered two reasons for Ukrainian nationals qualifying as foreign investors under the Russia-Ukraine BIT. As mentioned, the Rigo-Sureda tribunal considered that these would otherwise be unfairly excluded vis-à-vis all other foreign investors in Crimea (from States with which Russia concluded BITs). The Kaufmann-Kohler tribunal argued additionally that the BIT refers solely to ‘territory’ -as opposed to ‘sovereign territory’- and features no requirement that the investment be made ab initio in the territory of the other contracting party. Both arguments may not be entirely persuasive:

  1. Investment in Crimea has always been limited in absolute terms, and the part that is neither Ukrainian nor Russian is very modest (before 2014, over 60% of Crimean inward FDI was of Russian origin). Moreover, there is no known cases from those other foreign investors that fled (e.g., McDonalds, Radisson) or stayed (e.g., Auchan, Italian construction companies);
  2. As mentioned, pre-2014 Ukrainian investment in Crimea is domestic in nature, thus genetically not made intuitu personae in Russia.
  3. While the BIT practice on the expression ‘sovereign territory’ is inconsistent in treaties concluded after the entry into force of the Charter, the concept of ‘lawful sovereignty’ is nevertheless included in that of ‘territory’.
  4. A critical aspect of the tribunals’ assessment pivots on the analysis of the requirement that the investment must be made “in accordance with the laws of the host State”. Both Rigo-Sureda and Kaufmann-Kohler tribunals determined that because Russia’s transitional law preserved the rights of all Ukrainian-registered businesses in Crimea (pending re-registration as Russian businesses), these operated in accordance with Russian law. The opposite, however, could be argued as well. The proper translation of the BIT’s personal scope provides that a covered investor is:

any legal entity, established in accordance with the law in force in the territory of that contracting Party, provided that the legal entity is entitled, in accordance with the legislation of its own Contracting Party, to invest in the territory of the other Contracting Party.

With respect to the peculiar circumstances of the case, the investment temporal scope is here consubstantial to the corresponding BIT requirement that the investment be made in accordance with the domestic law of the host State. Hence, Ukrainian investments in Crimea are covered under the Russia-Ukraine BIT from the moment they comply with the transitional law requiring re-registration (provided, of course, that the process is fair). The point is strengthened (not weakened) by the fact that Ukraine acknowledged the effectiveness of Russia’s sovereignty over Crimea. It could be argued that until re-registration (or at least the beginning of the re-registration iter), pre-2014 Ukrainian investments in Crimea are not covered under the Russia-Ukraine BIT, because genetically not foreign and not made in Russia intuitu personae.

3. Assessment and relevance of States’ treaty practice 

Tribunals have long relied on States’ treaty practice to draw conclusions as to the proper interpretation of the in casu BIT. The approach is in principle impeccable, but its application has occasionally proved perfunctory (e.g., Maffezini).

With reference to Russia’s BIT practice concerning the presence (or lack thereof) of the locution “in accordance with international law” attached to the definition of “territory”, the Kaufmann-Kohler tribunal seemingly held that the wording only appeared in investment treaties concluded by Russia with States sharing maritime borders with it (see here). However, Russia’s BITs with Japan, Kazakhstan, and the US feature no definition of territory at all. And while those with Norway and Turkey do, there is a ‘famous comma’ difference (to clarify, see here), in that in neither case the definition clearly sets apart –i.e., between commas- the legality requirement from the wording referring to EEZ and continental shelf – like, instead, in the case with Ukraine:

The term ‘territory’ means the territory of the Russian Federation or the territory of Ukraine, as well as their respective exclusive economic zone and continental shelf, defined in accordance with international law.

This express difference (i.e., the presence of the two commas), featured in the Russian authoritative text, could be all the more significant given the specific use of commas in Russian to qualify a dependent clause. It seems difficult to offer a good faith interpretation of the text other than ‘territory defined in accordance with international law’. Here, it has been already considered that, when the definition of territory is complemented by the phrasing ‘in accordance with international law’, it is implausible that the BIT coverage may go beyond de jure territory (see Costelloe, here). Hence, a preliminary assessment on the legality of the status of Crimea as part of the Russian territory would become necessary. Yet, this was not the case in any decision so far.

This post aims only at sketching out the three topics. As the decisions may not become public soon, additional thoughts on the basis of what is known, and on the issues raised, are welcome.

Achmea: The Fate and Future of Intra-EU Investment Treaty Awards under the New York Convention

Tue, 05/08/2018 - 11:00

On March 6, 2018, the CJEU rendered its judgment in the long-awaited Slovak Republic v. Achmea case (Case C-284/16). This case involved a preliminary reference from the German Bundesgerichtshof in the context of setting aside proceedings initiated by Slovakia against a 2012 award, which was rendered by an investment tribunal in accordance with the UNCITRAL Rules under the BIT between the Kingdom of Netherlands and Czech and Slovak Federative Republic, in force since 1992. Based on its analysis of certain provisions of the EU Treaties (TEU and TFEU), the CJEU ruled that an Investor-State Dispute Settlement (“ISDS”) provision in an intra-EU is not valid under EU law.

Thus far, the academic discussion surrounding the case has focused on the fate and future of Intra-EU BITs (see here and here) but has not ventured into the consequences of the decision for the arbitral awards rendered under these BITs. Since the Achmea decision forms part of EU law and is binding on the national courts of all EU Member States, it reasonably follows that national courts within the EU must now refuse to recognize and enforce non-ICSID awards based on ISDS provisions in intra-EU BITs. However, under Article III of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (“New York Convention”), national courts within the EU also have an obligation to recognize and enforce arbitral awards except where one or more of the seven grounds under Article V apply. This piece utilizes this legal conflict that courts within the EU now face as its starting point and explores the practical implications of the Achmea decision through the lens of Article V of the Convention, focusing on two grounds in particular: violation of public policy and invalidity of the arbitration agreement.

Article V(2)(b): Violation of Public Policy

Post the Achmea decision, invoking the public policy (or ordre public) exception arguably represents the best strategy under the New York Convention in order to resist the recognition and enforcement of an award rendered under an intra-EU BIT. Article V(2)(b) provides that the recognition and enforcement of an award ‘may’ be refused where such action would be “contrary to the public policy of that country” i.e. the State where recognition and enforcement is sought. The New York Convention itself does not define public policy; instead, it allows national courts to derive the applicable standard for public policy from the lex fori, the law of the enforcement forum. It is emphasized that the concept of lex fori is slightly more nuanced within the EU by virtue of the application and interaction of EU law vis-à-vis national laws of Member States.

i. The Notion of EU Public Policy

Post the judgment of the CJEU in Eco-Swiss v. Benetton (Case C-126/97), the national courts of EU Member States found themselves in an unusual position vis-à-vis public policy. In that judgment, the CJEU relied on the principle of equivalence in EU law, according to which if a national court of a member state allows the annulment or refusal of enforcement of an award for violations of national public policy, it must also do so for violations of European public policy. The Court advanced a broad notion of EU public policy; it found that EU competition law “may be regarded as a matter of public policy within the New York Convention.” The permissive attitude of the Court shifted in Manfredi v. Lloyd Adriatico Assicurazioni SpA (Joined Cases C-295-98/04), where it ruled that EU competition law is a “matter of public policy which must be automatically applied by national courts.” The firm position taken by the CJEU indicated that national courts cannot overlook violations of European public policy even though they are at least permitted to do so (though they rarely do so) in the context of domestic public policy under the New York Convention. By extension, this imposes an obligation on the national courts of all EU Member States to flag the violation of EU public policy sua sponte during enforcement proceedings and deny enforcement to awards under intra-EU BITs. Incidentally, the latter fits within the scheme of the New York Convention: the two grounds under Article V (2), non-arbitrability and violation of public policy may be raised by a court sua sponte.

ii. What Constitutes EU Public Policy?

Although no consensus has emerged thus far with respect to the content and the contours of national public policy under the New York Convention, the prevailing position in case law across different jurisdictions is that this exception should be invoked only in those limited circumstances where ‘most basic notions of morality and justice’ of the legal order of a State are violated. Therefore, the public policy exception must be narrowly construed in order to prevent courts from undermining the effectiveness and viability of international arbitration.

The judicial standard adopted by the CJEU in relation to EU public policy represents the prevailing position in form but not in substance. The Court observed in Eco Swiss that Article 101 of the TFEU was a “fundamental provision” which it regarded as “essential for the accomplishment of the tasks entrusted to the Community and, in particular, for the functioning of the internal market.” Article 101 of the TFEU prohibits agreements between commercial undertakings that have as their object or effect the restriction, prevention or distortion of competition within the EU and concomitantly, have a detrimental effect on trade between EU member states.

In Mostaza Claro v. Centro M6vil Milenium (Case C-168/05), the CJEU reiterated the formulation it adopted in Eco Swiss and applied it by analogy to the domain of EU consumer protection law. It found that that Directive 93/13, which was aimed at strengthening consumer protection, constituted a measure that it considered “essential to the accomplishment of the tasks entrusted to the Community and, in particular, to raising the standard of living and the quality of life in its territory.” These judgments demonstrate the willingness of the CJEU to determine the nature of EU norms vis-à-vis public policy on a field-by-field basis (for a detailed discussion, see the article by Prof. George Bermann). However, the breadth of EU law, combined with the potential for any branch to acquire public policy status before the CJEU, suggests that the judicial standard, despite its emphasis on fundamental norms, is potentially capable of wide application across EU law, which is difficult to reconcile with the narrow vision of public policy under the New York Convention.

iii. Qualification of the Principle of Autonomy of the EU as Public Policy

The Achmea decision of the CJEU has one central theme and focus: the autonomy of the EU and its legal order. The final finding of the Court clearly states that ISDS provision in the Netherlands-Slovakia BIT was invalid because it had an adverse effect on the autonomy of EU law. The argumentative route that the Court adopts to reach its conclusion is rather straightforward: the principle of autonomy of the EU vis-à-vis domestic law of Member States and international law is justified by the “essential characteristics of the EU and its law”, which must be preserved by ensuring a uniform interpretation and application of EU law. To achieve this, the EU Treaties have established a judicial system that allows dialogue between the national courts and the CJEU by virtue of preliminary reference under Article 267, allowing the CJEU to offer an authoritative and decisive interpretation of EU law. However, investment tribunals established by Member States inter se do not fit within this judicial system. Thus, they are not subject to the interpretative control exercised by the CJEU, which the Court considered to be a threat to the particular nature of the law established by the EU Treaties and by extension, to the autonomy of EU law.

The Court placed great emphasis on the overriding nature of the principle of autonomy of EU law, which it considered to be equally binding on the Member States as well as the EU. It observed that even when the EU exercises its competence in relation to international agreements, it can submit to the decisions of a court created by such agreements provided that the autonomy of the EU and its legal order is preserved. The Court treated the principle of autonomy as a fundamental and mandatory norm of EU law, which satisfies the judicial standard that the Court followed in Eco Swiss and Mostaza Claro. Therefore, it is highly likely that national courts will now be expected to mandatorily apply public policy sua sponte, which will render the awards rendered under intra-EU BITs rather vulnerable before EU courts.

 Article V (1) (a): Invalidity of the Arbitration Agreement

Although violation of public policy is arguably the strongest argument to resist enforcement, the Achmea decision also leaves room to argue that the arbitration agreement is not valid under Article V(1)(a). To follow this argument, one must first note that unlike commercial arbitration wherein the consent to arbitration is expressed by both parties in the form of a contractual clause or agreement, in the case of investment arbitration, the State normally provides its consent to arbitration by incorporating a unilateral offer in the ISDS provision of the BIT (see here). The consent is only perfected once it is accepted by the investor, whether by communication or by conduct. The perfection of consent, and by extension the arbitration agreement, is thus predicated on a valid offer made by the State, which is later accepted by the foreign investor.

In Achmea, the Court found ISDS provisions in intra-EU BITs to be incompatible with EU law, thereby rendering them invalid under the legal system of the EU. This necessarily implies that the unilateral offer made by the State under such provisions is also invalid. However, there is one impediment: under Article V(1)(a), the applicable law is the lex loci arbitri, not the lex fori, which means that the success of this argument will be predominantly determined by whether the arbitral seat is located within the territory of an EU Member State.

Where the seat is indeed in an EU Member State, the lex loci arbitri includes the operation of EU law through the national law of that EU Member State.  In such a case, it is almost certain that the enforcing courts within the EU would refuse to enforce an award under an intra-EU BIT in light of the Achmea decision and their obligations under Article 19 of the TEU.  However, the situation is far less predictable where enforcement is sought before national courts outside the EU. In such a scenario, given that their discretion is not circumscribed in any way by the Achmea decision or by the general operation of EU law, the enforcing courts can still exercise their discretion under Article V in favour of enforcement even where they find that the arbitration agreement is not valid under the lex loci arbitri.

Alternatively, where the arbitral seat is located in a non-member State, applying Article V (1) (a) raises certain complications for national courts of the EU Member States. In this case, the application of EU law through the lex loci arbitri is no longer a possibility. The national courts cannot rely on the lex fori, which means that any defect in the arbitration agreement must be found within the lex arbitri of the non-EU member State itself. In the absence of such a defect, the national court would be bound by Article III to recognize the arbitral award as binding unless it triggers the ‘safety valve’ and flags the violation of EU public policy sua sponte.  

Conclusion

The above discussion demonstrates that the Achmea decision has far-reaching implications; awards rendered under intra-EU BITs are now exceedingly vulnerable not only in enforcement proceedings but also in annulment proceedings. The defence of public policy may offer limited leeway to national courts in the EU, which are unfortunately caught between their obligations under Convention and the demands of the EU legal order. But with the fault lines between these two realms becoming increasingly visible, the courts must tread carefully and hopefully, they will find the order in the chaos.

New Issue of EJIL (Vol. 29 (2018) No. 1) Published

Tue, 05/08/2018 - 08:00

The latest issue of the European Journal of International Law (Vol. 29, No. 1) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access articles in this issue are Jochen von Bernstorff, Violence and International Law before 1914: On Imperial Ordering and the Ontology of the Nation State, and Eyal Benvenisti, Upholding Democracy amid the Challenges of New Technology: What Role for the Law of Global Governance? EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

A Court that Dare Not Speak its Name: Human Rights at the Court of Justice

Mon, 05/07/2018 - 08:00

Editor’s Comment: The adequacy of the ECJ jurisprudence in the area of human rights has been the subject of extensive critical comment in recent times, not least since its much commented upon decision in Opinion 2/13. I have invited one of the most authoritative, knowledgeable and sober voices in the EU law interpretative community, Daniel Sarmiento to contribute a Guest Editorial on this topic. We are honoured to publish it in this issue. 

‘We are not a human rights court.’ This phrase has been repeated over and again by judges and advocates general of the Court of Justice of the EU for many years. To the question of why does the Court not rely more on Strasbourg case law on human rights in the field of, say, competition, the reply was a classic: ‘we are not a human rights court’. If the Court was accused of ignoring international human rights instruments in cases with a strong tie with international law, the response sounded familiar: ‘we are not a human rights court’. If human rights were put aside or restricted in the name of free movement rules, the explanation was always ready to go: ‘we are not a human rights court’.

Indeed, the Court of Justice was not designed in its early days to be a human rights court, but its current role as the lead player of the European judicial landscape has put it in an unprecedented situation. There is no area of policy that escapes the scrutiny of the Court of Justice: the digital world has found in the Court an uncompromising upholder of private life that will not tolerate intrusions in the sphere of individuals’ privacy; the effectiveness of asylum policy depends on the Court’s readiness to interpret asylum rules as procedural or substantial guarantees in light of human rights; consumers throughout the continent rely on the Court’s judgments to rule on how banks, digital titans or retailers treat their clients; criminal procedures have come under the umbrella of EU harmonization instruments, putting the Court in a privileged position to set standards and guarantees of criminal procedure in all Member States.

These are only a few examples of how the Court has been transformed from a modest international jurisdiction into a supranational hegemon, whose decisions have a direct and significant impact on the rights and lives of millions of Europeans.

The transformation has been particularly intense in the field of human rights. Ever since the entry into force of the Charter of Fundamental Rights of the EU, the Court of Justice has faced thousands of preliminary references from national jurisdictions searching for interpretative help on human rights. For the very first time, the Court has begun to be systematically confronted with human rights questions in a way that cannot be solved through its traditional syllogistic and apodictic reasoning. The case of freedom of religion is paradigmatic: in scarcely two years, the Court has been confronted with the interpretation of the Charter’s rules on freedom of religion and equality in cases concerning the use of the headscarf in the workplace, the use of private slaughterhouses for the Islamic Feast of the Sacrifice, the collection of private data by Jehovah’s Witnesses when preaching on the doorstep, or the recruitment criteria of management based on the grounds of the candidate’s religious beliefs. No matter how predominant the internal market and its rules might be, the argument that ‘we are not a human rights court’ has dramatically run out of steam since the entry into force of the Charter.

But is the Court solely to be blamed for its lack of enthusiasm in embracing its human rights responsibilities?

Probably not.

The European legal community is broad and intellectually powerful, exerting at the same time a significant influence over the Court of Justice, its judges, its advocates general, its legal secretaries and all the actors that play a role in the decision-making process in Luxembourg. The ‘legal community’, understood as academics, commentators, practitioners and civil servants from the EU Institutions and the Member States, has hardly engaged with the Court in its new capacity as a human rights jurisdiction. For the past years since the entry into force of the Charter, academia has been more concerned, to give a few but revealing examples, in criticizing the Court’s decision to reject the agreement on the accession of the EU to the European Convention on Human Rights, or in arguing how unworkable its interpretation of Article 51 of the Charter, and the criteria to determine its scope of application in Member States, is for national courts. In the meantime, national courts, particularly constitutional courts, have kept themselves busy playing a European cat-and-mouse game, with the aim of dealing with a Freudian obsession about power, prominence and fatherly authority. The price we have paid is an academic community increasingly out of touch with the crucial task of contributing to a European common legal project, and a judiciary too obsessed with power and setting the terms of the dreary question of the final word

Thus, the Court of Justice cannot be solely blamed for having little appetite to become a human rights court: the legal community has given her scarce materials to reflect on, not many scholarly utensils to construe a human rights discourse with intellectual added value. For the time being, EU legal scholarship has provided the Court with some valuable works, but also many complaints about competence creep and lack of sensitivity. Hardly the material on which an incipient human rights court can feed on.

This outcome is closely linked to a change in the approach towards EU law that took place in the late 1990s. As European legal scholarship took a critical turn, a negative narrative about European justice and integration emerged in academic circles in various Member States. Constitutional pluralism, and particularly its strand of radical pluralism, was the most sophisticated manifestation of this critical trend, in which the Court of Justice was seen as an unreliable hegemon, too powerful to be left alone with no supervision from national constitutional courts. The economic crisis and the rise of a Eurosceptic wave throughout Europe, in which arguments about austerity, democratic deficits, German diktat and technocracy, among others, turned a critical stance towards European integration and law into a sceptical undercurrent that impregnated much of the literature on EU law and integration. When the time came to turn the Court of Justice into a human rights court, many of those who criticized the Court in the 1980s for not doing enough, were now accusing the Court for being activist, insensitive and intrusive with national identities.

For all its faults and defects, the Court of Justice is a remarkable institution that has produced one of the most relevant legacies of European legal culture. However, no matter how remarkable this jurisdiction might be, it cannot construe on its own a case law as complex and ambitious as the current circumstances now demand. If the Court is to assume its role as a human rights court, it needs, inter alia, constitutional courts to provide useful contributions on the scope and interpretation of human rights, and not gratuitous reminders of how powerful and self-important constitutional courts can be. In this regard, the recent judgment in M.A.S. is very a positive development, whereby the Italian Constitutional Court has engaged with the Court of Justice in a genuine dialogue not so much about power, but about striking, in a common and noble effort, the right standard of protection in interpreting a fundamental right (Case C-42/17, M.A.S and M.B. (EU:C:2017:936)).

The same applies to academia. The critical turn of many commentators has hardly helped the Court to find a helpful hand in scholarly writings as of late. For a jurisdiction trying to assert the effective enforcement of a new but intrusive legal order in closed and self-centred national legal systems, the discourse of radical pluralism is an unmanageable tool that puts the Court before an impossible dilemma to which it cannot reply. Radical pluralists have still not come to grips with the fact that their claims are not only unassumable, but hardly understandable for a jurisdiction whose mission is to ensure a coherent and uniform interpretation of EU law.

However, it is possible to construe a positive working relationship in which all parties retain their independence while nevertheless contributing positively to facilitating the Court’s full transit into its new skin. In the same way that the Italian Constitutional Court has put aside its discourse on the controlimiti on EU law and has embraced a shared effort in the interpretation of human rights, hand in hand with the Court of Justice, legal scholarship should assume that there is a lot of work ahead of us that is better construed with the Court, rather than confronting it. The critical turn is a useful guide in pointing towards where we should not head, but it cannot be the main guiding light in the academic legal discourse. As the saying goes, plan beats no plan.

No matter how flawed Opinion 2/13 might be, or how disappointing the Court’s reluctance towards international law was in Kadi, or how frustrating the Court’s interpretation of the Charter’s horizontal provisions can be, legal scholarship has a duty to engage constructively with the Court, not against it. This is not an invitation to blindly accept whatever comes from the Court, quite the contrary. It’s simply an invitation to support the Court in its struggle to speak its name loud and clear, so that it can soon be in a position to unashamedly say ‘we were not a human rights court, but we are one now’.

 

Announcements: CfP International Law Weekend 2018; CfS Melbourne Journal of International Law; UN Audiovisual Library of International Law

Sun, 05/06/2018 - 13:00

1. Call for Proposals: International Law Weekend 2018. Under the unifying theme “Why International Law Matters”, the American Branch of the International Law Association (ABILA) and the International Law Students Organization (ILSA) are inviting proposals for International Law Weekend 2018, which will be held from 18 – 20 October 2018 in New York. More information and the call for proposals can be found here.

2. Call for Submissions: Melbourne Journal of International Law. The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 19(2). The deadline for submissions is 1 July 2018. MJIL is a peer-reviewed academic journal based at the University of Melbourne which publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil {at} unimelb.edu(.)au var mailNode = document.getElementById('emob-ynj-zwvy@havzryo.rqh.nh-46'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%6C%61%77%2D%6D%6A%69%6C%40%75%6E%69%6D%65%6C%62%2E%65%64%75%2E%61%75"); tNode = document.createTextNode("law-mjil {at} unimelb.edu(.)au"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-ynj-zwvy@havzryo.rqh.nh-46"); mailNode.parentNode.replaceChild(linkNode, mailNode); . For more information please see here

3. New Additions to the UN Audiovisual Library of International Law. On the occasion of International Labour Day, the Codification Division of the UN Office of Legal Affairs has added the following lectures to the UN Audiovisual Library of International Law website: Mr. Dražen Petrović, Registrar of the Administrative Tribunal of the International Labour Organization, on “The Administrative Tribunal of the International Labour Organization” and Ms. Tomi Kohiyama, Deputy Legal Adviser of the International Labour Organization, on “La dynamique de l’action normative de l’Organisation internationale du Travail : sa politique normative”. The UN Audiovisual Library of International Law provides high quality international law training and research materials to users around the world free of charge.

Vital Statistics; Time for Change – With Thanks to Guy Fiti Sinclair

Sun, 05/06/2018 - 08:00

Vital Statistics

Each year we publish statistics on the state of our submissions: where submissions originated, which were accepted, and which were published in EJIL during the previous 12 months. We do this to observe and understand any changes that may be taking place in submission and publication patterns in our Journal and to keep our authors and readers informed of such.

The final selection of articles published in EJIL is determined by two principal considerations: quality is, naturally, one of these. All published articles go through our double-blind peer review process. We do not put the finger on the scale when it comes to national or geographic origin of the article, gender and other such factors. We look for excellence: articles we hope will be read, recalled, referred to and cited in years to come.

The second consideration is curatorial. EJIL is not a mere refereeing service. We publish between 40-60 articles per year. We receive anywhere between 5-10 articles per week. We receive many more excellent articles that are worthy of publication than we are able to publish, given considerations of space. Choices have to be made. Our curatorial decisions aim to produce issues of interest to a wide variety of readers, covering different areas of international law, different approaches to scholarship, and the like. EJIL Talk! is an integral part of EJIL and its coverage is part of the mix we consider. Thus, in the initial screening by the editorial office we may reject articles simply because we have published recently on the topic, or there might be something in the pipeline and other similar considerations. We also engage in some ‘agenda setting’ by initiating debates and from time to time commissioning symposia generated by our own Boards or accepting symposia proposed by others. Finding the right balance is always a delicate curatorial decision and the figures are fluid. In recent years we have privileged unsolicited articles, given the growing number and quality of submissions. In 2017 we published fewer commissioned symposia in our four issues than in previous years: unsolicited manuscripts accounted for 76 per cent of our published pages, whereas in previous years it had been around 65 per cent.

Whilst the percentage of manuscripts submitted by women authors this past year rose from 32 to 38 per cent, the percentage of accepted submissions by women dropped from 33 to 24 per cent and the figure for published articles fell slightly from 35 to 32 per cent. We believe this is a haphazard dip.

We somewhat arbitrarily divide the world into four regions for our statistical purposes: the European Union, the Council of Europe countries outside the EU (CoE), the US and Canada, and the rest of the world (RoW). We measure by country of submission rather than by nationality of author, simply because it is not possible to accurately obtain the latter information. However, we think the figures convey a fairly reliable picture of our authors and EJIL’s presence in the world. EJIL received submissions from 55 countries during 2017.

Of the total number of manuscripts submitted in 2017, 37 per cent came from the EU, 7 per cent from CoE countries, 12 per cent from the US and Canada and 44 per cent from RoW countries. As in previous years, however, a larger percentage of articles from EU countries were accepted and published: 53 and 47 per cent, respectively. So too, the US and Canada saw a larger percentage of manuscripts accepted and published, 29 and 27 per cent respectively. Fewer manuscripts from the RoW were accepted and published: 12 and 21 per cent, respectively. We will be monitoring this, too. CoE countries made up a small but stable part of accepted and published manuscripts: 6 and 5 per cent respectively.

We encourage submissions from authors outside the English-speaking world, and provide an excellent copy-editing service for all articles accepted for publication. This past year saw a small rise in the percentage of submissions from non-English-speaking countries, from 62 to 65 per cent. We saw an increase in published manuscripts from non-English-speaking countries, 47 per cent, reflecting the large increase in accepted articles in this category in the previous year. The figure for accepted articles from non-English-speaking countries was 41 per cent in 2017 so there will be a dip in published articles from non-English-speaking countries in 2018. These numbers oscillate around 50 per cent.

I have written before about my scepticism regarding Impact Factor, H-Index and the like. There are no sour grapes here: for example EJIL’s H-Index among international law journals as computed by Google Scholar places it number 3 after the American Journal of International Law and the Human Rights Quarterly, and on the William & Mary ranking for impact factor among international law peer-reviewed journals it is typically ranked similarly. My scepticism is based on the bias in the journal database from which these indices are calculated (strong North American bias), and more importantly because of the negative impact that the chase after a higher ‘impact factor’ produces on editorial policy. ‘Famous’ scholars will increase your impact factor to the detriment of the young and upcoming. ‘Sexy’ topics will have the same effect, to the detriment of the esoteric and unusual. And yet if you examine our Tables of Contents over the last quarter century you will see plenty of evidence for our commitment to young scholars and a broad range of topics. Likewise, you can improve your impact factor by simply reducing the number of articles published. Our issues grow in thickness.

The metric we pay most attention to, and which we think is relevant to our authors too, is the number of PDF downloads of EJIL articles. Our open access policy (all EJIL articles are free and accessible after one year from the date of publication) means they have become, for example, a major resource for classroom teaching. The numbers keep growing. For 2017, there were 636,000 annual downloads of EJIL articles, up 28 per cent from the previous year. We hope that despite the unavoidable necessity to be selective in what we can publish, international legal scholars will continue to submit their work for consideration by EJIL.

Time for Change: With Thanks to Guy Fiti Sinclair

Guy Fiti Sinclair joined EJIL as the Associate Editor in September 2012. He agreed to take on the position for one year. Now, after more than five years of excellent service, Guy is stepping down as Associate Editor but, thankfully for us, he will stay on as a member of our Scientific Advisory Board. For his excellent judgment and insight, his dedication and efficiency, his care to detail and towards the authors, his wit and good humour, our most sincere thanks go to Guy and we wish him every success in his academic career.

I also take this opportunity to welcome Johann Justus Vasel on board as our new Associate Editor.

EJIL Vol.29 (2018) No. 1 : In This Issue

Fri, 05/04/2018 - 16:30

The overture for the 29th volume of EJIL is conducted by Eyal Benvenisti, whose Foreword article opens this issue. Benvenisti aims to determine the role of global governance today in view of the challenges presented by new information and communication technologies. In his view, the task has shifted, or rather expanded, from simply ensuring the accountability of global bodies to upholding democracy and protecting dignity. As with previous Foreword articles we have published, Benvenisti’s article takes stock of an important field of study in international law, and is sure to set the agenda for that field in the coming years.

The following articles in this issue share a retrospective dimension. Wolfgang Alschner and Damien Charlotin undertake the arduous task of analysing almost seven decades of jurisprudence of the International Court of Justice regarding its increasing self-referentiality. Intriguingly, they find that the growing complexity of the Court’s self-citation network is both a vice and a virtue. This empirically grounded and institution-centric endeavour is followed by an article by Hendrik Simon, which takes an almost deconstructivist approach in reexamining one of the most prominent and provocative doctrines in the history of international law. By shedding light on forgotten disputes in 19th-century international legal discourse on justifying war he demystifies the doctrine of liberum ius ad bellum. Ignacio de la Rasilla del Moral complements this section with aretro-introspection. Given the upcoming 150th anniversary of academic publishing in international law periodicals, he examines the history of international law journals from the mid-18th century until today, concluding with thoughts on certain contemporary features such as digitalization, linguistic monopolies and specialization.

The next set of articles focuses on International Economic Law. Sungjoon Cho and Jürgen Kurtz identify the distinctive historical paths and multiple intersections of international investment and trade law from a common origin to divergence and reconnection. In their view, this pattern of convergence and divergence is not limited to historical development but can also be traced to common challenges deriving from balancing market goals and public interest. Christopher Vajda explores mechanisms of dispute resolution in a variety of international economic agreements of the EU, and distils from this comparative exercise the importance of a direct effect whilst pointing to some deficiencies concerning the agreement with Canada.

Roaming Charges takes us to Manila where public transport can be unique experience.

In this issue, and over the next three issues of EJIL, we will mark the four-year centenary of the Great War with a four-part symposium on International Law and the First World War. Each part of the symposium will explore different aspects of international law’s relationship to the global conflict. We begin in this issue with ‘International Law before 1914 and the Outbreak of War’. Following Gabriela Frei’s Introduction on international law and the ‘great seminal catastrophe of the 20th century’, Jochen von Bernstorff explores the largely unregulated employment of violence and international law before 1914 by differentiating between order-related and ontological justifications.

This issue closes with two Critical Review articles. 

In his Critical Review of International Jurisprudence article, Alan Desmond explores the increasingly curtailed human rights protection granted by the Strasbourg Court to migrants facing deportation under Article 8 ECHR and proposes a less state-centric and more human rights-consistent approach. We close the issue with a Critical Review of International Governance article by Joel Dennerley, who examines state liability in the event of collisions of space objects. Since these aspects are governed by the only fault-based liability regime, the analysis of this vague but important term is front and centre.

 On the Last Page we feature a poem entitled ‘Monolith’ by Stephen Haven.

New Issue of EJIL (Vol. 29 (2018) No. 1) Out Next Week

Fri, 05/04/2018 - 11:30

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler, Editor in Chief of EJIL, and a guest editorial by Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid. These posts will appear in the Editorial of the new issue. 

Here is the Table of Contents for this new issue:

Editorial

A Court that Dare Not Speak its Name: Human Rights at the Court of Justice; Vital Statistics; Time for Change: With Thanks to Guy Fiti Sinclair; In this Issue

The EJIL Foreword

Eyal Benvenisti, Upholding Democracy amid the Challenges of New Technology: What Role for the Law of Global Governance?

Articles

Wolfgang Alschner and Damien Charlotin, The Growing Complexity of the International Court of Justice’s Self-Citation Network 

Hendrik Simon, The Myth of Liberum Ius ad Bellum– Forgotten Disputes about Justifying War in 19th Century International Legal Discourse

Ignacio de la Rasilla del Moral, A Short History of International Law Journals (1869–2017)

Focus: International Economic Law

Sungjoon Cho and Jürgen Kurtz, Convergence and Divergence in International Economic Law and Politics

Christopher Vajda, The EU and Beyond: Dispute Resolution in International Economic Agreements

Roaming Charges: Manila

More than One Way to Heaven

 

Symposium: International Law and the First World War

International Law before 1914 and the Outbreak of War

Gabriela Frei, International Law and the First World War: Introduction

Jochen von Bernstorff, Violence and International Law before 1914: On Imperial Ordering and the Ontology of the Nation State 

Critical Review of International Jurisprudence

Alan Desmond, The Private Life of Family Matters: Curtailing Human Rights Protection for Migrants under Article 8 ECHR? 

Critical Review of International Governance

Joel Dennerley, State Liability for Space Object Collisions: The Proper Interpretation of ‘Fault’ for the Purposes of International Space Law

Review Essay 

Charlotte Peevers, Liberal Internationalism, Radical Transformation and the Making of World Orders. Review of Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World

Book Reviews

Manfred Nowak, Human Rights or Global Capitalism: The Limits of Privatization (Jan Klabbers)

Nathalie Clarenc, La suspension des engagements internationaux (Alina Miron)

Florian Couveinhes Matsumoto and Raphaëlle Nollez-Goldbach (eds). Les motifs non-juridiques des jugements internationaux (Paolo Palchetti)

Joachim Müller (ed.) Reforming the United Nations: A Chronology (Wolfgang Münch)

The Last Page

Stephen Haven, Monolith

 

70 Years of the International Law Commission: Drawing a Balance for the Future

Thu, 05/03/2018 - 07:06

This post, and its sister post on OpinioJuris, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. From its first session, in 1949, the Commission has played an indispensable role in the promotion of the “progressive development of international law and its codification”. Yet the desire to “codify” international law – to formulate and systematize rules of international law in order to avoid conflicting norms and enhance legal certainty – predates the Commission by many decades, if not centuries. An exhibit exploring the history and the achievements of the Commission is currently on display in the Visitors Lobby of the General Assembly Building at the United Nations Headquarters in New York. Here are five things you may not know about the International Law Commission and the codification movement from which it emerged.

The Founding Father

If Hugo Grotius is the “father” of international law, the progenitor of the codification movement is Jeremy Bentham (1748-1832). A lawyer, philosopher and social activist, Bentham strongly believed in the importance of positive law: “to be without a code is to be without justice”, as he put it (Letter to Daniel O’Connell, Works of Jeremy Bentham, Vol. X, p. 597). In his view, a comprehensive, written code would remove legal gaps and inconsistencies and make the law accessible to all. It would also guard against judge-made rules and – even worse in Bentham’s eyes – natural law (“nonsense upon stilts” (Anarchical Fallacies, ibid., Vol. II, p. 501)).

Bentham’s codification efforts extended to the international sphere. Like many later codifiers, he hoped that a set of written rules could prevent war and establish a lasting peace. His desire to rid international rules of the vestiges of natural law went so far that he proposed to replace the commonly used term “law of nations”, which encompassed an array of moral principles, with a new term: “international law” (An Introduction to the Principles of Morals and Legislation, ibid., Vol. I, p. iii).

A Social Movement

Over the course of the 19th century, the codification movement gathered steam. Several authors proposed their own international codes, such as the Swiss-German Johann Caspar Bluntschli (Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 1868) and the Italian Pasquale Fiore (Il Diritto Internazionale Codificato e la sua Sanzione giuridica, 1890). In 1873 two associations were established to further the cause: the Institut de droit International and the Association for the Reform and Codification of the Law of Nations (now known as the International Law Association (ILA)). Among diplomats, lawyers and activists, codification became a political ideal on par with disarmament and free trade. The codification movement was so much in the public eye that a Dutch satirical magazine mocked the process in 1875, at the occasion of the third annual ILA conference in The Hague (see illustration). The cartoon is entitled “Congress for the Codification of the Law of Nations”; the comment reads “A Babylonian confusion of words that will [surely] lead to peace.”

The Institut and the ILA continue to influence the development of international law. They differ from the International Law Commission in that the latter derives its mandate and authority from an intergovernmental body, the General Assembly of the United Nations, and regularly interacts with governments in a formal fashion. It is the General Assembly, acting through its Sixth (Legal) Committee, that debates and decides on the fate of the outcomes of the Commission’s work. As a United Nations organ, the Commission also guarantees a representation of views from all corners of the world, as seats are allocated on a regional basis. Still, given the expertise of the Institut and the ILA, and the overlap in its membership with the Commission, the associations and the Commission mutually reinforce each other.

The League of Nations Committee

The International Law Commission is not the first codification body established by States. In 1924 the League of Nations appointed 17 legal experts to the “Committee for the Progressive Codification of International Law”. The Committee was chaired by Hjalmar Hammarskjöld, the father of the later Secretary-General of the United Nations, and its members included a young British lawyer called James Brierly, who would later be among the first members of the International Law Commission. Unlike the current Commission, the mandate of the League of Nations’ Committee was limited to identifying items “ripe for codification”.

Upon its recommendation, the League convened a Codification Conference in The Hague in 1930, to work on the topics nationality, territorial waters and State responsibility. The exercise proved overly ambitious: without draft conventions or negotiating texts, delegates found that they had too little time to cover the many complex issues on the agenda. As it turned out, codification involved more than mechanically transcribing customary law into written agreements; it also required the progressive development of new rules, to fill gaps and resolve conflicts – a political as much as a legal exercise.

In the end, the Conference produced few noticeable results. However, it did make general recommendations to improve the codification process, in particular regarding the importance of preparing draft conventions prior to convening a diplomatic conference. Many of the lessons from the 1930 Codification Conference informed the drafting, in 1947, of the Statute of the International Law Commission.

Codification v. Progressive Development

Pursuant to Article 13(1)(a) of the Charter of the United Nations, as well as its own Statute, the Commission is mandated to promote the codification of international law – the precise formulation and systemization of existing international rules – and its progressive development – the formulation of new rules of international law. Whether the Commission should focus on one or the other remains an oft-debated topic. The truth is that the Commission’s statute provides for both. Its drafters already acknowledged that the two are “not mutually exclusive” and that the distinction was only drawn “for convenience of reference” (A/331, para. 7). In their view, “no clear-cut distinction between the formulation of the law as it is and the law as it ought to be could be rigidly maintained in practice” (ibid., para. 10). Still, the distinction remains meaningful. A lack of differentiation risks either understating or overestimating the existing international legal obligations of States.

Achievements

In seventy years the Commission has faced plenty of challenges, yet its results are remarkable. The 1969 Vienna Convention on the Law of Treaties and the 2001 articles on State responsibility for internationally wrongful acts and are well-known outcomes of its work. However, the Commission also laid the foundation of the current regime on the law of the sea: its 1956 articles concerning the law of the sea formed the basis of the first Conference on the Law of the Sea in Geneva in 1958, a process that set the stage for the subsequent negotiation and adoption of the 1982 United Nations Convention on the Law of the Sea. Moreover, without the Commission there may not have been an International Criminal Court: having worked on international criminal justice since its first session in 1949, it provided the first draft of the Statute that was negotiated during the 1998 Rome Conference. The Commission remains the main standard-setter in many technical areas, from transboundary aquifers to state succession. Through these activities, the Commission has laid – and continues to further – a solid legal foundation for peaceful international relations.

The exhibit on “70 Years of the International Law Commission” will be on display at the Visitors Lobby of the United Nations Headquarters in New York until 1 June 2018. It will then move to the Palais des Nations in Geneva in July 2018. For more information about the commemorative events, visit the website of the Commission .

 

China leans in on international adjudication: Why Beijing’s answer to defeat will be more forceful engagement

Wed, 05/02/2018 - 07:00

This year China might suffer the third in a string of stinging defeats at international tribunals that would then cover trade, investment, and law of the sea matters. Contrary to persistent expectations in some policy circles, China’s leaders will not opt for withdrawal. They have resolved to make existing mechanisms work for China, and shape global governance by doubling down on engagement. In line with different degrees of Chinese integration into these systems, Beijing will respond by ratcheting up litigation (trade), upgrading bilateral treaties (investment), and pushing for favourable state practice through diplomacy (law of the sea). The international community will have to deal with a newly powerful legal actor who is very much on the offense.

Failure and Frustration

In two ways, trade law could this year deliver the third bombshell setback in China’s recent engagement with international adjudication. Firstly, there is China’s soon to be decided WTO complaint against the EU’s retention of a distinct (although modified) antidumping methodology for (states like) China. A similar case against the United States is in the consultation stage. Beijing had expected that its Accession Protocol would deliver automatic ‘market economy status’ including more favourable antidumping treatment 15 years after it joined the WTO.

Secondly, a major trade law standoff is unfolding between China and the US, involving the mutual adoption of tariffs and filing of WTO complaints, which could come to a head this year. The US filed a complaint on China’s protection of intellectual property (IP) rights alleging TRIPS Agreement violations. At the same time, the US Trade Representative (USTR) proposed tariffs following a Section 301 US Trade Act of 1974 investigation into Chinese IP practices. Beijing already responded with a WTO complaintalleging that such tariffs would violate the GATT, and its own list of proposed tariffs. Less crucially, China initiated another case alleging GATT and Safeguards Agreement violations through US tariffs on steel and aluminium products.

Previously, giant life insurer Ping An became the first Chinese company to lose an investment arbitration, when its $1 billion claim against Belgium over the Fortisbank nationalization was rejected in 2015. A year later, China suffered an almost total defeat against the Philippinesin an Annex VII UNCLOS law of the sea arbitration on South China Sea issues in July 2016.

Such setbacks trigger angry reactions in China against allegedly biased international institutions that might never give China a fair shake. Many commentators decried China’s supposed second-class membership in the WTO, when the EU decided against granting market economy status, while recent US trade actions are termed severe violations and ‘typical of unilateralism and trade protectionism’ by the Chinese government. Chinese officials were stunned when the investor in Ping Anlost over the ‘technicality’ of whether to rely on the older or the more recent bilateral investment treaty (BIT) between China and Belgium. Following the South China Sea case, it was mooted that Beijing could ‘denounce’ the UN Convention on the Law of the Sea (UNCLOS) to be safe from other states’ attempts to ‘exploit’ the system ‘for political reasons’.

Doubling Down

Yet China is not going to withdraw, and Western governments, as guardians of the current system, will be surprised by how forcefully it will instead lean in to shape existing legal regimes. Tools will differ, but trade litigation, investment treaty making and law of the sea diplomacy to influence state practice serve the same purpose: align the rules further with China’s interests.

This effort is part of the more assertive foreign policy outlined by China’s president Xi Jinping, who just consolidated his power at the First Session of the 13th National People’s Congress. In a major shift, Xi has declared that China will no longer just participate in the international system, but provide ‘guidance’ towards a ‘new international order’. A recent treatise in the People’s Daily confirmed the ambition to seize the ‘historic opportunity’ to shape a new order while US policies under President Trump leave a leadership vacuum.

An underestimated driver of such strategic decisions is a policy elite of Chinese international lawyers who overwhelmingly favour playing offense. Prominent academics and legal counsels to the Chinese leadership have argued that with WTO dispute resolution, just showing up is half the battle. They have called for China to develop the litigious ‘mind set’ and investment treaty framework to go with its new status as major global investor. Lastly, they want China to go around the South China Sea award and influence the law of the sea by shaping state practice through diplomacy.

Bespoke Strategies

After China was refused ‘market economy status’, its Ministry of Commerce immediately struck back at the EU with a complaint at the WTO. Should it now lose the case, its appeal will already be prepared, as will be fresh complaints tackling the broader issue from different angles. At the same time, Beijing encourages Chinese companies to more proactively ‘prove’ to regulatory agencies abroad that they operate under market conditions, and contest adverse decisions at local courts.

Similarly, the Chinese government very quickly responded to recent (partly only proposed) US tariffs, with two fresh complaints. The current overall dispute with Washington will see a Chinese leadership that is more open to negotiated solutions than on antidumping methodology. Should there be any adverse decisions, though, China would again immediately appeal and file further complaints.

Flanking its litigation strategy, China continues massive diplomatic lobbying. Firstly, this serves to gain recognition as a market economy. More than 80 countries have already complied by explicitly providing such recognition, and FTA negotiations in line with theBelt and Road Initiative are to increase that number. President Xi has called for hastened implementation of China’s free trade strategy to strengthen its position in writing global trade rules, after failed Western efforts with TPP and TTIP left the field open.

Secondly, Beijing is actively portraying itself as defender of the WTO trade regime against a protectionist Trump administration onslaught. While many governments share US concerns about IP rights in China, Beijing uses (potential) US tariff implementation without WTO decisions, especially where broadly targeted such as on steel and aluminium, to position itself as the better trade citizen. China’s aim is not only to offset pressure concerning domestic legal changes, but also to shape future coalitions of states in international trade law reform (or rather in blocking reform where existing frameworks suit China).

On investment law, the investor’s defeat in Ping An spurred the Chinese government to quickly improve its investment treaties and seek influence on global investment rules harmonization. Beijing wants to get new investor-friendly treaties in place that include improved transitional clauses, and grant broad access to international arbitration, as well as, quite unusually, appellate bodies. Chinese lawyers argue that such mechanisms may improve legal predictability, but perhaps more importantly they would give the Chinese side another chance in case of defeat.

Wanting to make use of the full arsenal of available measures, the Chinese leadership also acts on the multilateral level. On the path towards a common worldwide investment law system that looks more like the WTO in the trade area, Beijing seeks to set the agenda and touts the ‘Guiding Principles for Global Investment Policymaking’, adopted at the 2016 G20 Summit in Hangzhou, as a first step. The non-binding principles are infused with Chinese wording and interpretations of principles such as legal predictability, transparency, and effective dispute resolution.

Finally, in the third issue area of the law of the sea, after the stunning loss on South China Sea claims, Beijing decided to undermine the award’s authority with a diplomatic push to underline contradictory state practice. Chinese officials aim to prevent the arbitrators’ restrictive interpretations of ‘historic rights’ and ‘island’ status from becoming international customary law. They point out, for example, that the United States and Japan use tiny rocks to make extensive maritime claims, and lobby states worldwide to support China’s interpretation of its islands’ entitlements. Some scholars point out the potential for further UNCLOS implementation agreements(as on deep seabed mining), which could clear up ambiguity in terms favourable to China and override the tribunal’s decisions.

While China may strictly reject compliance with the South China Sea award, it needs UNCLOS to protect its interests and gain influence on maritime governance. Beijing aims to secure a large UNCLOS-sanctioned continental shelf in the East China Sea, based on favourable geography vis-à-vis Japan. It wants Chinese companies to be in a prime position for the coming International Seabed Authority-sanctioned mining bonanza under the high seas worldwide, and it intends to have a seat on the table regarding Arctic governance issues. Indicative of its strategic choice to shape the system from within, China now adopts more UNCLOS-like language for its South China Sea claims and backs away from the ‘Nine-dash Line’.

The Future of China and International Law

So, in a nutshell, what should we expect China to do? Its approach has already evolved considerably. The focus shifted from the international legal order’s ‘hardware’ – joining institutions and equipping them with Chinese judges and staff – to its ‘software’. Now the Chinese leadership wants more influence on the treaties and customary law behind the system. In a parallel process, once it feels confident enough in a particular field, China gradually but inevitably boots up participation at court.

Prominent voices in China, including Prof. Yi Xianhe, influential advisor to Politburo member and foreign policy czar Yang Jiechi, have argued that China must be a ‘leader country’ on international law, if it is to consolidate economic and political gains. That includes actively engaging with international tribunals. Such statements represent an emerging consensus among Chinese international lawyers that forward-leaning engagement will on balance be a positive for China, and the best protection of its national interests.

European Court of Justice Bans Homosexuality Tests for Asylum Seekers

Tue, 05/01/2018 - 07:00

Asylum seekers in European Union countries will no longer be subject to psychological tests to prove their homosexuality, according to a decision by the European Court of Justice (ECJ) on 25 January 2018. In F v. Bevándorlási és Állampolgársági Hivatal, the ECJ declared the illegality of the use of psychological reports based on projective personality tests in determining sexual orientation of asylum seekers.

The asylum applicant, a Nigerian man identified as F, sought asylum in Hungary, arguing that he has a well-founded fear of persecution because of his homosexuality. The Bevándorlási és Állampolgársági Hivatal (Office for Immigration and Citizenship of Hungary, hereinafter “Immigration Office”) rejected his asylum application. While the Immigration Office concluded that F’s application was not “fundamentally contradictory,” the Immigration Office found that F’s statement about his homosexuality “lacked credibility” based on one psychologist’s report (para. 22). F appealed this decision to a Hungarian court, and the case was eventually referred to the ECJ.

The “expert report” at issue in the case was produced by a psychologist after an investigative examination, which involved several basic projective personality tests, including the “Draw-A-Person-In-The-Rain” test and the Rorschach and Szondi tests. Upon completing the tests, the psychologist concluded that F’s homosexuality could not be confirmed.

The ECJ ruled that EU law does not prohibit authorities or courts from ordering the production of an expert report to help assess the facts and circumstances relative to an asylum seeker’s claim, but only if the production of the report is consistent with human rights law and the report is not relied upon solely or conclusively. The Court further held that EU law precludes the preparation and use of a psychological expert’s report based on projective personality tests to determine an individual’s sexual orientation when assessing an asylum claim sought by the individual on the ground of sexual orientation.

The Use of Experts’ Reports in General

The standard for making determinations about sexual orientation is one of overall coherence and plausibility: The Court held that, when assessing an applicant’s sexual orientation as the ground for asylum, the authorities should look at the applicant’s statements and other related “facts and circumstances.” Statements are overall coherent and plausible if they are not contradictory to any specific or general information relevant to his/her case. In addressing the standard, the ECJ particularly noted that authorities should look at the applicant’s general credibility, and it did not require confirmation of every single aspect of the applicant’s statements (para. 33).

An expert’s report can be used to assist with determinations, but only if (1) the report is not the only factor considered in reaching a decision, and (2) the process of the report’s production meets international standards, including human rights law. The ECJ concluded that, when the authority’s decision on the application is being contested by the applicant before a court, the law does not categorically prohibit the responsible authority or the court from ordering the production of an expert’s report, to assist with assessing the “facts and circumstances” related to the asylum claim on the basis of sexual orientation. However, the ECJ emphasized that the procedures and methods for producing such an expert report must be consistent with EU law, including the Charter of Fundamental Rights of the European Union (“the Charter”) and in particular its protections for the rights to privacy and family life in Article 7.

An expert’s report cannot be the only factor considered in reaching a determination. That said, the ECJ clarified that, even with an expert’s report produced in a manner consistent with the legal requirements, a court reviewing the matter cannot base its decision solely on the report. A court also cannot, a fortiori, consider the report binding or conclusive while reviewing the applicant’s appeal from the authority’s decision (para. 45).

The Use of Psychological Experts’ Reports

The preparation and use of a psychological expert’s report must be subject to the same scrutiny: Moving on to psychological experts’ reports, as the one disputed in the case F, the ECJ held that the procedures for recourse to such a psychological report assessing an individual’s sexual orientation must be consistent with human rights law, including the right to respect for privacy and family life, enshrined in Article 7 of the Charter.

The ECJ noted that the production and use of a psychological expert’s report inherently amounts to an interference with an individual’s right to private life, because of the nature of the human aspects being examined in this context, namely sexuality and sexual orientation of an individual. The Court stated that an applicant is placed under de facto pressure when asked to consent to such a psychological exam, because the applicant knows that such requests are “closely linked to the decision” the authority will make regarding his/her asylum status. The decision on the asylum status often concerns the applicant’s fear of persecution, sometimes even life and death. In such context, an applicant’s consent is “not necessarily given freely”, thus constituting an interference with privacy (paras. 52-3).

But an “interference” does not necessarily entail a violation of Article 7 of the Charter. Limitations on the exercise of the rights are allowed under certain circumstances, but only if such limitations are necessary — meaning that they serve the general interest recognized by the European Union or work to protect the rights and freedoms of others (para. 55) — and that the interest at stake is proportionate to the interference (Article 52 of the Charter).

Applying this standard, the ECJ ruled that the seriousness and nature of the interference posed by the use of psychological examination based on personality projective tests in the context of ascertaining sexual orientation fails to meet the principle of proportionality:

  • First, the characteristic being examined in this context, namely sexuality, concerns the essential identity and very personal and intimate aspect of a person’s life;
  • Second, while a psychological report might offer additional information on the circumstances, in no way can it offer a definitive answer concerning an individual’s sexual orientation or an individual’s internal fear of persecution;
  • Third, asylum applications are to be determined by examining the “consistency and plausibility” of the applicants’ statements as a general matter, and not every single aspect of the statements needs to be confirmed decisively with evidence ( 68).

Interestingly, the ECJ did not engage in a further discussion regarding what categories are or are not considered aspects of life that are too personal or intimate in evaluating the “interference” with one’s private life. The Court essentially adopted a balancing test — weighing between the intrusive nature of the practice and the objectives such practice serve, based on the totality of facts and circumstances.

In addition to human rights standards, the ECJ noted that the methods and principles of producing a psychological report should also meet the standards accepted by the international scientific community. But the Court remained sensitive to its subsidiary role in fact-finding — noting whether the methods are sufficiently reliable on scientific grounds is a factual assessment issue and should be reserved to national courts (para. 58). Nevertheless, the ECJ found it sufficient to conclude, based on the analysis of the proportionality principle, that such practice is not consistent with EU law.

Impact Upon EU States & Global Refugee Crisis

In a similar case in 2014, the ECJ had previously struck down a Dutch court’s decision rejecting several asylum seekers’ applications because they failed to “prove” their homosexuality. The ECJ said that asking questions on sexual practices or asking for evidence of homosexual acts when determining asylum seekers’ sexual orientation infringed their rights to privacy and family life. One difference is that in the 2014 Dutch case, the asylum seeker voluntarily offered evidence of his homosexuality, while in F the sexuality test was imposed upon the applicant.

The January 2018 decision reaffirmed the ECJ’s overall position on this issue, calling for respect for human rights and dignity in the process of evaluating asylum applications. This decision is legally binding and will have a profound impact upon the 28 European Union states, in light of the increasing number of refugees in Europe seeking asylum on the basis of their sexual orientation.

Principle 18 of the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity prohibits forced psychological tests for the purpose of ascertaining sexual orientation or gender identity. In F, the ECJ actually considered it necessary to take account of Principle 18, referring to the state practice of France and the Netherlands. As a declaratory document, the Yogyakarta Principles has no legal binding effect in itself, though it may be interpreted as partly reflective of customary international law as well as States’ legal obligations under binding human rights treaties.

Pursuant to the ECJ decision, the Administrative and Labour Court (Szeged, Hungary) has repealed the Immigration Office’s decision that allowed the use of personality projective tests to determine the sexual orientation of F. The Hungarian court ordered the re-examination of F’s asylum application but it remained unclear how the Immigration Office will reform its regular procedures on assessing applicants’ sexuality. On the other hand, the Hungarian State Secretary in a recent statement expressed concern over the potential impact on the number of asylum seekers at the Hungarian border after this decision, and he stated that the reliability of such tests should be left to psychologists, not judges. Hungary is not alone in using “gay tests” on determining asylum seekers’ sexual orientation. It is worth monitoring how the EU states will implement the ECJ’s decision, as well as how the international community in general will ensure the respect for human rights while addressing future asylum claims on the basis of sexuality related grounds.

ICERD and Palestine’s Inter-State Complaint

Mon, 04/30/2018 - 07:00

On 23 April, The Guardian reported that Palestinian diplomats had filed an inter-state complaint against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). According to the Ministry of Foreign Affairs and Expatriates of the State of Palestine:

Palestine is a State whose territory remains under a belligerent colonial occupation. For its part, Israel, the occupying Power, has maintained its colonial occupation over the past fifty years by imposing racist and discriminatory policies against Palestinian citizens.  Confronting this pervasive reality of racism and discrimination is a priority. This cannot wait. It should not. No person or people should be asked to tolerate racism or the violence and injustice it breeds.

The Guardian writes that “the submission is believed to be the first interstate complaint filed under the treaty”. This is true in relation to ICERD, and also the entirety of the UN international human rights treaties; as the OHCHR highlights in its portal on inter-state complaints: “Note: these procedures have never been used.”

The inter-state procedure is not found in every treaty – there is no formal procedure for filing inter-state complaints under CEDAW and its Optional Protocol. The procedure is found in ICCPR, ICESCR, CAT, CMW, CED and Optional Protocols, but it is generally optional and both States have to have recognised the competence of the Committee to receive such communications.In an authoritative study on the inter-state complaints procedure in a 1988 article in Human Rights Quarterly, Scott Leckie highlights how its optional nature on a reciprocal basis “has and will continue to limit its utilization”. This is in addition to the fact that it is often seen as “a hostile and quite drastic response by a state desiring to address human rights questions in another state.” However he believes its positive effects are often overlooked.

Of the international human rights treaties, only ICERD has a compulsory inter-state complaints mechanism, found in Articles 11-13, which applies to all States Parties upon ratification. This does not render it unique in human rights law, with compulsory inter-state provisions also found in the ILO, the ECHR and the African Charter for example, with established inter-state caselaw emanating from the regional systems. But its compulsory character under ICERD is unique among the UN international human rights treaties.

Article 11(1) ICERD reads:

If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

The original draft of Article 11 referred to inter-state ‘complaints’, but in the Third Committee, Mexico proposed substituting the word ‘complaints’ with ‘communications’. This was adopted for its more inclusive and less adversarial tone.

Article 11(2) continues:

If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notifying the Committee and also the other State.

Provided the exhaustion of domestic remedies criterion is satisfied, Article 12(1)(a) governs the next stage:

The Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution of the matter on the basis of respect for this Convention.

Article 12(1)(b) provides a mechanism of secret ballot from among CERD members in the event of a failure to agree on some or all of the composition of the Commission. Article 13(1) provides:

When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute.

These ‘findings and recommendations’ are communicated to the States Parties, who must respond within three months as to whether they are accepted or not. The final act under Article 13(3) is that the Chairman of the Committee “shall communicate the report of the Commission and the declarations of the States Parties concerned to the other States Parties to this Convention.”

The procedure overall clearly sees an escalation from Article 11 to Articles 12 and 13, with the latter two provisions employing the language of ‘dispute’ instead of ‘communication’. It is foreseen by the treaty that the current ‘communication’ from Palestine can be resolved within Article 11, including through bilateral negotiations. If not then it escalates to a ‘dispute’ and the consequent machinery of the Conciliation Commission. 

Article 22 ICERD, invoked separately in recent years by Georgia and Ukraine against the Russian Federation, provides that a dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement [emphasis added]. While this could presumably apply to a dispute on the outcome of the inter-state complaints procedure, Israel has entered the following reservation: “The State of Israel does not consider itself bound by the provisions of article 22 of the said Convention.” Hence the matter appears confined to the mechanisms of Articles 11-13 for its resolution.

The communication itself is 350 pages long, with The Guardian reporting that it has seen only a summary. It includes the following:

Palestinians are severely limited in their freedom of movement compared to Israeli settlers and are subject to “confiscation and seizure” of their land, including home demolitions. It says Israel violates the right to equal treatment before tribunals by using separate legal systems for Palestinians and settlers, and points to higher maximum sentences for Palestinian defendants. It claims Israel has violated article 3 of the convention, which prohibits racial segregation and apartheid. “It is clear that Israel’s acts are part of a widespread and oppressive regime that is institutionalised and systematic; that accords separate and unequal treatment to Palestinians,” the summary says, calling for the dismantling of all existing Israeli settlements.

It is the reference to Article 3 that may gain the most attention. It reads: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” At the drafting stage, the Third Committee had taken a decision not to include in the Convention any reference to specific forms of discrimination; however, it retained the particular reference to apartheid because “it differed from other forms [of racial discrimination] in that it was the official policy of a State Member of the United Nations.” In 1995, the Committee issued General Recommendation 19 stating that the reference to apartheid may have been directed exclusively at South Africa, “but the article as adopted prohibits all forms of racial segregation in all countries.” Hence the prohibition is read as applying to a range of situations in many countries, for example often used in relation to segregation and the Roma.

The Committee has already pronounced on the relevance of Article 3 in its Concluding Observations to Israel (2012):

The Committee is extremely concerned at the consequences of policies and practices which amount to de facto segregation, such as the implementation by the State party in the Occupied Palestinian Territory of two entirely separate legal systems and sets of institutions for Jewish communities grouped in illegal settlements on the one hand and Palestinian populations living in Palestinian towns and villages on the other hand. The Committee is particularly appalled at the hermetic character of the separation of two groups, who live on the same territory but do not enjoy either equal use of roads and infrastructure or equal access to basic services and water resources. Such separation is concretized by the implementation of a complex combination of movement restrictions consisting of the Wall, roadblocks, the obligation to use separate roads and a permit regime that only impacts the Palestinian population (art. 3 of the Convention).

The Committee draws the State party’s attention to its general recommendation 19 (1995) concerning the prevention, prohibition and eradication of all policies and practices of racial segregation and apartheid, and urges the State party to take immediate measures to prohibit and eradicate any such policies or practices which severely and disproportionately affect the Palestinian population in the Occupied Palestinian Territory and which violate the provisions of article 3 of the Convention.

Patrick Thornberry’s The ICERD: A Commentary (OUP, 2016) follows the exchange, noting how Israel’s opening statement challenged “any spurious claim regarding apartheid or racial segregation in Israel”. He comments however that “The Committee has made an unusually high number of references to Article 3 in concluding observations on the territories occupied by Israel, employing the language of grave concern or deep concern and, more unusually, as a violation, though without individuating the elements of the article.” The observation is that CERD has not ‘individuated’ the term ‘apartheid’ in relation to Israel, preferring instead to bracket practices as an overall violation of Article 3. Israel’s most recent State Report, submitted in 2017, has just one reference to the issue which reads: “Apartheid has always been regarded as abhorrent by the GOI [Government of Israel] and society, and continues to be so regarded. Apartheid has never been practiced in Israel. There exists in Israel no restrictions of any kind as to place of residence nor is there any segregation of any kind.” It has yet to be examined by CERD.

Leckie believes that the inter-state complaints procedure “could be considered more seriously by more states as a useful and constructive policy tool with the potential effect of enhancing human rights throughout the world.” Although unlikely to resolve the structural weaknesses in the universal inter-state communications procedure, Palestine’s inter-state communication is certainly historic. As its Ministry of Foreign Affairs concludes, “We are the litmus test”.

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