Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development 9789004459823, 9004459820

Citation preview

Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development

Frontispiece: Photo by Ljilja Suvajdžić, vanhartegefotografeerd.nl. The Library of Congress Cataloging-​in-​Publication Data is available online at http://​catalog.loc.gov

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. isbn 978-​9 0-​0 4-​4 5982-​3 (hardback) isbn 978-​9 0-​0 4-​4 5989-​2 (e-​book) Copyright 2021 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents  Preface ix  Notes on Contributors xiv Withdrawing from International Organizations 1 1  Niels Blokker Sovereignty as Responsibility 2  Exercising Permanent Sovereignty over Natural Resources in the Interest of Current and Future Generations 21 Daniëlla Dam-​de Jong 3  Non-​State Actors and Human Rights Obligations Perspectives from International Investment Law and Arbitration 37 Eric De Brabandere and Larissa van den Herik 4  Global Threats and Fragmented Responses Climate Change and the Extra-​Territorial Scope of Human Rights Obligations 62 Helen Duffy What Is a State in International Law? How Is This to Be 5  Determined? 93 John Dugard 6  The Role of Customary International Law as a Tool for the Progressive Development of International Criminal Law Undermining the Sovereignty of States for the Sake of Humanity? 113 Robert Heinsch 7  The Responsibility of the Netherlands for Its Nationals Abroad 125 Erik Koppe How about Consolidating the Frontiers but Furthering the Effectiveness 8  of Human Rights? Lessons from Yerevan 139 Rick Lawson

vi Contents 9  Shifting the Frontiers of International Human Rights Law 171 Titia Loenen Waters Rising 10  Possible Effects of Sea Level Rise on the Legal Regime of Baselines and Delineation of Maritime Zones 184 Xuechan Ma 11  The International Criminal Court and Human Security Looking Ahead Complementarity? 203 Andrea Marrone 12  The Establishment of Flight Information Regions and Air Defence Identification Zones Air Law Is Air Law and Maritime Law Is Maritime Law; Shall the Twain Ever Meet? 223 Pablo Mendes de Leon 13  Maritime Security and Sustainable Development and the Coastal Communities of India An Empirical Analysis 247 Bimal N. Patel 14  To Speculate or Not? On Determining Adequate Remedies for Denial of Justice and Other Judicial Wrongs 264 Vid Prislan 15  Human Rights Law and the Return of Stolen Assets 294 Cecily Rose Principles for the Sustainable Governance of Shared Natural 16  Resources 307 Nadia Sánchez Castillo-​Winckels 17  Economic, Social and Cultural Rights and Customary International Law 326 William A. Schabas

Contents

vii

World Law’s Modern Master Builders 336 18  Otto Spijkers The World in Disarray. Great-​Power Competition and the Decline of 19  Multilateralism 360 Alfred van Staden How Can We Justify International Criminal Justice? 377 20  Carsten Stahn China’s Perception of State Sovereignty in International Dispute 21  Settlement 414 Linlin Sun 22  Public Administration and Ordinary Virtues The Venice Principles on the Ombudsman Institution 440 Luc Verhey 23  The Right to Marry as a Right to Equality About Same-​Sex Couples, the Phrase “men and women”, and the Travaux Préparatoires of the Universal Declaration 457 Kees Waaldijk

Preface This book is an homage to Professor Nico Schrijver, on the occasion of his retirement from Leiden University. It is an academic present, prepared by international law colleagues and staff, in gratitude and respect for what he has achieved in Leiden since his appointment to the Public International Law Chair in 2005, following in the footsteps of illustrious scholars such as Van Vollenhoven, Telders, Van Asbeck, Van Panhuys, Kooijmans and Dugard. Under Nico Schrijver’s gentle leadership, the Afdeling Internationaal Publiekrecht was transformed into the Grotius Centre for International Legal Studies, benefiting from important preparatory work by his predecessor John Dugard. This has been much more than a mere change of name. It accompanied unprecedented changes in the size and composition of the international law staff. In 2005, there were only a few, mainly Dutch nationals. Ten years later, the Grotius Centre had more than 30 professors, lecturers, PhD scholars and other staff, fully specializing in public international law, many of them coming from abroad. The evolution of the Grotius Centre in these years has been a tale of two cities: Leiden and The Hague. Having a strong basis in Leiden, the Centre’s premises in The Hague also contributed to the rapidly rising presence and profile of Leiden University in what is now widely known as the ‘legal capital of the world’. Nico Schrijver has played a key role in realizing this transformation and expansion of the Centre, thanks to his talent to connect people and the constructive and diplomatic approach that characterize him. This expansion of the Grotius Centre and the internationalization of staff are to some extent both the cause and the effect of the parallel growth and internationalization of students specializing in international law at Leiden University. Under Nico Schrijver’s leadership, and thanks to the commitment and drive of the rapidly expanding number of staff members, the English language Master programmes in public international law have experienced an unprecedented growth. Today the Grotius Centre welcomes yearly some 150 to 200 students in the Regular llm and some 50 in the Advanced llm s from all around the globe. At the same time, at the Bachelor level, Nico Schrijver has been responsible for the introduction of a first-​year compulsory course on Public International Law, which is now taught yearly to more than 1000 Dutch students beginning their law studies at Leiden University. For this purpose, he wrote the textbook Internationaal publiekrecht als wereldrecht (now in its 4th edition, 2020). Apart from teaching international law, Nico Schrijver has supervised many PhD candidates, most of whom have contributed to this book. As a supervisor,

x Preface Nico Schrijver has given his PhD candidates considerable freedom to develop their own thoughts and approaches, while providing them with invaluable guidance throughout the process. Yet, what characterizes him most is his continuous support for the broader development of his PhD candidates, both with respect to their personal life and their career paths. To many, Nico has been a Doktorvater in the true paternal sense. Nico Schrijver’s research during his Leiden years covered a wide variety of specific areas of international law: ranging from United Nations law, including the ius ad bellum, to the law of the sea, sustainable development law, human rights law, investment law, counterterrorism and more. Some of his major publications in these years are The Evolution of Sustainable Development in International Law: Inception, Meaning and Status, based on his course for The Hague Academy of International Law, and his award-​winning Development Without Destruction: The United Nations and Global Resource Management, in addition to the collaborative projects on The Security Council and the Use of Force: Theory and Reality –​A Need for Change? (with Niels Blokker), Elected Members of the Security Council (with Niels Blokker) and Counter-​Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (with Larissa van den Herik). Overall, Nico Schrijver’s approach in teaching and research may be characterized as truly global (hence the title of his textbook Internationaal publiekrecht als wereldrecht), far from ‘Western’ or ‘Eurocentric’, and fully taking into account perspectives from the Global South. Such a perspective generates a strong interest in global challenges, from terrorism to climate change and sustainable development. The seeds of inspiration for some of these themes may perhaps be found in Nico Schrijver’s childhood. Born as the son of a horticulturist, he had the opportunity to familiarize himself with sustainability in the most practical sense from a very young age. Living close to a dyke shielding the land from the destructive powers of the sea made him furthermore aware of the dangers of sea level rise and the need for environmental protection. This background may also explain his highly practical approach as a researcher. Nico Schrijver is far from an armchair scholar, overseeing developments in international law from a dusty office in an ivory tower. He is keen on connecting his academic work to developments in practice and on connecting professionals in these disparate fields. Making such connections almost comes naturally as Nico Schrijver has a sociable personality and is a man of many talents. In addition to his academic tasks, he has been active as a Senator in the Dutch Parliament (2011–​2017); he was a member of the renowned Dutch Committee of Inquiry on the War in Iraq (2009–​2010) and was a member and a vice-​chair

Preface

xi

of the UN Committee on Economic, Social and Cultural Rights (2008–​2016). Furthermore, he has appeared as counsel before the International Court of Justice, the International Tribunal for the Law of the Sea, and unclos Annex vii Tribunals, and served as expert before domestic courts, as well as in proceedings before the Inter-​American Court of Human Rights and before various international investment tribunals. In view of his diplomatic skills and leadership qualities, it is no surprise that he has been the President of the two oldest and most prestigious universal associations of international lawyers: the International Law Association (2010–​2012) and the Institut de Droit International (2017–​2019). In short, it is clear that Nico is much more than a schrijver (writer). Against this background, it cannot come as a surprise that his Leiden colleagues and staff were keen to prepare this academic present. We have experienced at first hand how Nico Schrijver has given new momentum to the research and teaching of international law at Leiden University: as an internationally renowned scholar in his own right, but also one that could build upon Leiden’s strong international law tradition. In his years at the helm of our Grotius Centre, he succeeded in bringing highly talented young staff and PhD candidates to Leiden University, taking advantage of favourable conditions such as student internationalization, a period of growth of the Leiden Law Faculty and the expansion of Leiden University’s activities in The Hague. A sociable person, Nico Schrijver facilitated cooperation, not only among the Grotius Centre staff, but also with the wider Law Faculty. For all he has done for international law at Leiden University, the Leiden international law community owes him an academic quid pro quo. Certainly, by limiting the authors to Leiden colleagues and staff this Liber Amicorum is necessarily incomplete. However, bringing on board Nico’s many other colleagues and friends from outside Leiden University would have made the preparation of this academic present near to impossible. For these reasons, this Liber is an homage by Leiden amicae amicique. The list of contributors to this academic present reflects the international composition and orientation of the Grotius Centre. The majority of authors are not of Dutch origin but come from a dozen or more countries from different parts of the globe. The contributions to this book deal with a great diversity of issues, reflecting Nico Schrijver’s broad research interests. But they have one thing in common: they all deal in one way or another with changes in international law and new developments. The title of this book, Furthering the Frontiers of International Law –​Sovereignty, Human Rights and Sustainable Development is also a reference to the research programme of the Grotius Centre, which is carried out under the heading of Exploring the Frontiers of International Law.

xii Preface The notions of sovereignty, human rights and sustainable development refer to Nico Schrijver’s core interests and contributions to academia and practice. We have not asked the contributors to devote their contributions to a strictly defined topic. The number of fields in which Nico Schrijver has been active as well as the fields of expertise of the contributors are far too broad to justify such an approach. Rather, we have decided to take a broader theme that reflects Nico Schrijver’s research interests and have asked the contributors to prepare their chapters against this background, while leaving them free in the choice of their specific topics, in the spirit of Leiden University’s motto praesidium libertatis. The title of this book, Furthering the Frontiers of International Law: Sovereignty, Human Rights, Sustainable Development, reflects Nico Schrijver’s most important areas of research. Sovereignty is reflected throughout Nico Schrijver’s work, starting with his monograph on the principle of permanent sovereignty over natural resources. It is furthermore a recurrent theme in his writings on foreign investment and Dutch foreign policy, but especially in his many contributions on the UN system of collective security, ranging from the prohibition on the use of force, to critical reflections on the functioning of the UN Security Council and counter-​terrorism. Human rights as a research theme is directly reflected in Nico Schrijver’s work on the right to development, on the remedies related to the immunity of the United Nations, on the Responsibility to Protect, and the functioning of UN human rights bodies. It is, however, also an important underlying theme permeating his other work, as one of the three international legal pillars underpinning the notion of ‘sustainable development’. Sustainable development is omnipresent in Nico Schrijver’s writings. He is one of the leading scholars in this field, laying the theoretical foundations for and giving shape to the concept within international law, including in its various applications: from global resource management to climate change and beyond. The contributions to this Liber have all been written against the background of these key research areas. Some are devoted to ‘furthering the frontiers’ in a particular part of international law, for example the contributions by Marrone, Mendes de Leon, Schabas, Spijkers and Stahn. Others mostly focus on developments in one of the three areas mentioned in the title. ‘Sovereignty’ is reflected inter alia, in the contributions by Blokker, Dugard, Koppe, Prislan, van Staden, Sun and Verhey. ‘Human Rights’ are central in the chapters prepared by De Brabandere and van den Herik, Duffy, Heinsch, Lawson, Loenen, Rose and Waaldijk. ‘Sustainable development’ is the theme of the contributions by Dam, Ma, Patel and Sanchez Castillo.

Preface

xiii

The contributions to this Liber have been finalized in the Summer of 2020, although exceptionally some more recent developments could be taken into account. We are grateful to the authors for their inspired contributions and smooth cooperation. We thank Niamh McCormack for her meticulous editorial work and Brill/​Nijhoff, in particular Lindy Melman, for their support during the preparation of this Liber. This is an academic goodbye, in gratitude and respect. At the same time, we are convinced that Nico Schrijver will continue his contributions to the furthering of the frontiers of international law in the years to come, and that we will stay in touch with him. We wish him well! Niels Blokker, Daniëlla Dam-de Jong, Vid Prislan (Editors)

Notes on Contributors Niels Blokker was appointed as Professor of International Institutional Law to the ‘Schermers Chair’ in 2003 (0.2). Since 2013 this is a full-​time appointment. He graduated from Leiden University (1984), where he also defended his dissertation (1989). From 1984 he was a lecturer, subsequently a senior lecturer in the law of international organizations at Leiden University. In 2000 he was appointed senior legal counsel at the Netherlands Ministry of Foreign Affairs. In 2007 he became Deputy Legal Adviser at this Ministry. As of 1 August 2013 he has left the Foreign Ministry and started working full-​time at Leiden University. His publications include International Institutional Law (co-​authored with the late Henry Schermers, 6th edition November 2018) and Saving Succeeding Generations from the Scourge of War (2021). He is co-​founder and co-​editor-​ in-​chief of the journal International Organizations Law Review. His main current research project is about the governance of international courts and tribunals. Daniëlla Dam-​de Jong is Associate professor at the Grotius Centre for International Legal Studies at Leiden University and Academic Director of its ll.m. Reg. programme in Public International Law. She wrote her PhD dissertation under the supervision of Professor Nico Schrijver and Professor Larissa van den Herik (Leiden University, 2013). Her monograph International Law and Governance of Natural Resources in Conflict and Post-​Conflict Situations (cup, 2015) has received a research prize by the Foundation Praemium Erasmianum. Daniëlla is a member of the ila Committee on Role of International Law in Sustainable Natural Resource Management for Development and of the iucn wcel Specialist Group on Peace, Security and Conflict. She is also member of the editorial board of the Netherlands Yearbook of International Law. Eric De Brabandere is Professor of International Dispute Settlement Law and Director of the Grotius Centre for International Legal Studies at Leiden Law School. He is Editor-​in-​Chief of the Leiden Journal of International Law, and a member of the Board of Editors of the Journal of World Investment & Trade, the Revue belge de droit international, and the Martinus Nijhoff Investment Law Book Series. He also is Attorney-​at-​Law at the Brussels Bar (with dmdb Law) practicing in international law and investment arbitration.

Notes on Contributors

xv

Helen Duffy is Professor of International Human Rights and Humanitarian Law at the University of Leiden and runs ‘Human Rights in Practice,’ an international legal practice specializing in strategic human rights litigation and advice. She is a graduate of the University of Glasgow (llb Hons) University College London (llm) and Leiden (PhD, under Prof. Nico Schrijver), and honorary/​visiting professor at Glasgow, Melbourne and American universities. Publications include The ‘War on Terror’ and the Framework of International law (cup, 2nd ed. 2015), Strategic Human Rights Litigation: Understanding and Maximising Impact (Hart, 2018) and Law Applicable to Armed Conflict (with Bohrer and Dill), cup 2020. John Dugard is Emeritus Professor of Law, Universities of Leiden and the Witwatersrand; Member of International Law Commission (1997–​2011); UN Special Rapporteur on the Situation of Human Rights in the Occupied Palestinian Territory (2001–​ 2008); former Judge ad hoc, International Court of Justice. Robert Heinsch is an Associate Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University, and is the Director of its Kalshoven-​Gieskes Forum on International Humanitarian Law at Leiden University and the founder of the Leiden ihl clinic. From 1 April 2018 to 28 February 2019 he held the daad Guest Chair for International Humanitarian Law, International Criminal Law and Applied Legal Theory at the Institute of Peace and Armed Conflict (ifhv) of Bochum University in Germany. During his time at the ifhv he successfully created the Bochum ihl Clinic. He has published numerous articles in the field of international criminal law and international humanitarian law, including a monograph on the jurisprudence of the Yugoslavia and Rwanda War Crimes Tribunals and its impact on the development of ihl. Previously, he has worked as a Legal Advisor in the ihl Department of the Red Cross Headquarters in Berlin, and as a Legal Officer in the Trial Chamber of the International Criminal Court in The Hague. Larissa van den Herik is Professor of Public International Law at the Grotius Centre for International Legal Studies at Leiden Law School. She wrote her PhD dissertation on the Rwanda tribunal under supervision of Nico Schrijver and Jan Watse Fokkens (vu Amsterdam, 2005). She is currently Chair of the Advisory Committee on Public International Law to the Netherlands Government and member of the

xvi 

Notes on Contributors

National Group of the Permanent Court of Arbitration. She is also General Editor of the Cambridge Studies in International and Comparative Law. Her recent publications are on, inter alia, UN sanctions and international law, reparations for (de)colonization, the UN Security Council and specifically also the reporting requirement under Article 51 of the UN Charter. Her current research project is on diasporas and international law. Erik Koppe is an associate at the civil litigation department of Pels Rijcken in The Hague, the Netherlands. He obtained his law degrees at the University of Groningen and his doctorate (cum laude) at the same university. His doctoral thesis –​ The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict –​was published with Hart Publishing in 2008. After obtaining his doctorate degree in 2006 he worked as an associate at the dispute resolution department of Freshfields Bruckhaus Deringer in Amsterdam and as an assistant professor of public international law at Leiden Law School. Rick Lawson has a chair in European human rights law at Leiden University, the Netherlands. From 2011 to 2016 he served as dean of Leiden Law School. Currently he is programme director of the Adv. llm programme in European and International Human Rights Law and, since 2020, a member of the Management Board of the EU Fundamental Rights Agency in Vienna. Titia Loenen is professor of Human rights and Diversity at Leiden University. She holds degrees in history and law from the same university. Her research covers human rights and equality issues in an international and comparative perspective. Recent work includes research on the interaction and overlap between European and international human rights protection mechanisms and on (potential) tensions between gender equality and religious freedom. Xuechan Ma is currently working as a climate change specialist at the Fisheries Division of the Food and Agriculture Organization (fao) of the United Nations (UN) at the Headquarters in Rome, Italy. She obtained her Ph.D. in 2020 from the Grotius Centre for International Legal Studies of Leiden University in the Netherlands under the supervision of prof. dr. N.J. Schrijver and dr. C.E. Rose. She studied law at Peking University in China where she obtained her ll.b. degree in

Notes on Contributors

xvii

2013 and ll.m. degree with distinction in 2015. She passed the Chinese bar exam in 2013. She conducted internships at the Appeals Chamber of the UN International Criminal Tribunal for the former Yugoslavia (icty) in The Hague, the Netherlands, and at the Division for Sustainable Development Goals of UN Department of Economic and Social Affairs (desa) at the UN Headquarters in New York City, USA. She actively participated in academic conferences and has published several papers in leading journals, including Marine Policy, and the Chinese Journal of International Law. Her research interests include general public international law, the law of the sea, climate change laws and policies, natural resources management, and empirical legal research. Andrea Marrone holds a doctorate in public international law from Leiden University. He is currently lecturing in international organizations law and policy making at the University of Applied Sciences, Inholland, Rotterdam. Since 2004 Dr. Marrone is employed in the Office of the Prosecutor of the International Criminal Court, the first permanent and treaty based international judicial institution established to help end impunity for the perpetrators of the most serious crimes of concern to the international community. In 2016 Dr. Marrone has been a programme advisor at Cordaid development agency in the field of security and justice. He has published on issues strengthening the maintenance of international peace, justice and security and lectured at various universities, including unibo and the European College in Italy, the Nuremberg Academy in Germany and the Institute of Peace and Dialogue in Switzerland. Dr. Marrone completed a research project at Leiden University within the PhD Program Exploring the frontiers of international law. His areas of expertise cover public international law and international relations, law of international organizations, European policy, law and institutions, human security and global affairs. Pablo Mendes de Leon is Professor of the International Institute of Air and Space Law of Leiden University, which is one of the leading international scientific research and teaching institutes in the world, specialised in legal and policy issues regarding aviation and space activities. The Faculty of Law of Leiden University founded the institute in 1986. In addition to his duties as Director of the International Institute of Air and Space Law of Leiden University, Pablo Mendes de Leon maintains a vast range of memberships in organisations that work to combine law and practice of aviation law and policy. For instance, he is President of the European Air Law Association, Visiting Professor at the National University of Singapore and the University of Bordeaux, France, Member, Panel of

xviii 

Notes on Contributors

Experts, Shanghai International Economic and Trade Arbitration Commission, Member, Court of Commercial Arbitration, Bucharest, Romania, Member of the Dutch Aviation Accident Board, a Board Member of the magazines Air and Space Law, Journal of Air Law and Commerce and the Italian ania Insurance Newsletter and the Director of the Series of Publications in International Aviation law and Policy with Kluwer Law International. He is the author of a large number of publications on topical issues regarding aviation law and policy. Bimal N. Patel is Vice-​Chancellor and Professor of International Law, Rashtriya Raksha University (www.rru.ac.in), India; Member, National Security Advisory Board, India; Member, 21st Law Commission of India; former Director, Gujarat National Law University (2008–​19); author/​editor of works in public international law, law of the sea and maritime law; international dispute settlement, Indian practice on International Law; International Courts and Tribunals, among others. Vid Prislan is a Postdoctoral researcher at the Amsterdam Center for International Law (acil), Amsterdam Law School, where he also teaches in the Master’s programme in International and European Law. Vid conducts research in the areas of foreign investment law and investment arbitration, and has a particular interest in the interactions between domestic courts and investment tribunals. Prior to joining acil, Vid was a doctoral researcher at the Grotius Centre for International Legal Studies. His dissertation, which addresses the role of domestic courts in investment arbitration, was supervised by Nico Schrijver. Vid holds a Graduate Diploma in international relations from the University of Ljubljana, an ll.b. in Dutch law, and an ll.m. and Ph.D. in international law from Leiden University. Vid is a Book Review editor of the Leiden Journal of International Law. Cecily Rose is an assistant professor in the Grotius Centre for International Legal Studies, Leiden Law School. She conducts research in the areas of international dispute settlement and transnational criminal law. Her research in the area of transnational criminal law concerns, in particular, international legal approaches to corruption, organized crime, and money laundering. In recent years Cecily has also served as a consultant for the UN Office on Drugs and Crime, the UN Office of the High Commissioner for Human Rights, and the World Bank.

Notes on Contributors

xix

Cecily holds a Ph.D. and an ll.m. in international law from the University of Cambridge, a J.D. from Columbia Law School, and a B.A. (English) from Yale University. Prior to joining the Grotius Centre, Cecily Rose worked as an associate legal officer at the International Court of Justice and the Special Court for Sierra Leone. She also previously worked in private practice, as an associate in the International Regulation and Compliance group of Steptoe & Johnson, llp, in Washington, D.C. Nadia Sánchez Castillo-​Winckels holds an llm and a PhD from Leiden University. She obtained her llb from the Pontificia Universidad Católica of Chile and is a qualified lawyer member of the Chilean Bar. She specializes in public international law with a focus on environmental and sustainability law. Her published work concentrates on sustainable natural resource governance. She is a former lecturer at the China Youth University of Political Studies and the University of International Business and Economics, both in Beijing, China, and a consultant in international environmental and sustainability law and governance. William A. Schabas is professor of international law at Middlesex University in London, emeritus professor at Leiden University and distinguished visiting faculty at the Paris School of International Affairs, Sciences Po. He is professor emeritus at the National University of Ireland Galway and honorary chairman of the Irish Centre for Human Rights. He is the author of more than twenty books in the fields of human rights and international criminal law, including Oxford Commentaries on the Rome Statute and the European Convention on Human Rights. Professor Schabas has prepared the quinquennial reports on the death penalty for the United Nations Secretary-​General. He was a member of the Sierra Leone Truth and Reconciliation Commission. Professor Schabas is an Officer of the Order of Canada and a member of the Royal Irish Academy, and holds several honorary doctorates. Otto Spijkers is Professor of International Law at Wuhan University’s China Institute of Boundary and Ocean Studies (cibos) as well as its Research Institute of Environmental Law (riel) and Founding Staff Member of its International Water Law Academy (iwla). He is also a member of the Committee on the Role of International Law in Sustainable Natural Resource Management for Development of the International Law Association. Before joining Wuhan University, he was Lecturer of Public International Law at Utrecht University,

xx 

Notes on Contributors

and researcher at the Utrecht Centre for Water, Oceans and Sustainability Law (ucwosl) and the Netherlands Institute for the Law of the Sea (nilos). He obtained his doctoral degree at the Grotius Centre for International Legal Studies at the University of Leiden, where he also taught and coordinated a course on “World Law” (Wereldrecht), together with Nico Schrijver. His doctoral dissertation, which was supervised by Nico Schrijver and Koos van der Bruggen, is entitled The United Nations, the Evolution of Global Values and International Law, published with Intersentia in 2011. Alfred (Fred) van Staden born in 1942, studied political and social sciences at the University of Amsterdam (1960–​1966), where he earned his PhD in 1974. After completing his military service he worked for more than three years at this university. In 1971 he moved from Amsterdam to the Department of Political Science of Leiden University. In 1977 he became professor of diplomatic history (on special appointment) and three years later he was appointed professor of international relations which position he held until 2017. Between 1986 and 1989 he served as the dean of the Leiden Law School. Between 1995 and 2005 he was director of the Netherlands Institute of International Relations ‘Clingendael’ (The Hague). In 2005 he joined the Department of Public International Law of Leiden University. In his career he also served in several policy advisory capacities for the Dutch government. He was, among others, the chairperson of the (then) Advisory Council on Peace and Security (1990–​1996) and member and vice-​chair of the Advisory Council on International Affairs (2006–​2017). Alfred van Staden has published extensively on topics related to foreign policy, European integration, and international order. His major publications are A faithful ally. The Netherlands and the Atlantic Alliance (1974), The right to govern. The democratic legitimacy of the European Union (2003), and Between the rule of power and the power of rule. In search of an effective world order (2007). Carsten Stahn is Professor of International Criminal Law and Global Justice at the Leiden Law School and Queen’s University Belfast, former Legal Officer at the International Criminal Court and author/​editor of 17 books and over 70 articles in international law and international justice. Linlin Sun is currently an assistant professor at Law School, Zhongnan University of Economics and Law (Wuhan, China). She studied international law at Peking University (Beijing, China) and gained her Doctoral degree at Grotius Centre

Notes on Contributors

xxi

for International Legal Studies, Leiden University (Leiden, the Netherlands). Her PhD dissertation entitled International Environmental Obligations and Liabilities in Deep Seabed Mining will soon be published as a monograph with Cambridge University Press. She published articles in peer-​reviewed journals, such as the Chinese jil and the Melbourne jil, she also presented papers at conferences and conducted internships at several international organizations. Her main research interests include: the law of the sea, international environmental law, international institutional law, state responsibility and liability, international space law as well as general international law. Luc Verhey (1960) is member of the Advisory Division of the Dutch Council of State and professor of Constitutional and Administrative Law (Kirchheiner Chair) at the Faculty of Law of Leiden University. He has worked on broad issues of constitutional law such as fundamental rights, democracy, public accountability, the relationship between the legislator and the courts and the role and position of ombudsmen. Kees Waaldijk (llm Rotterdam, PhD Maastricht) is professor of comparative sexual orientation law at Leiden University (since 2011). He previously worked at the universities of Rotterdam, Maastricht, Utrecht, Edinburgh, Lancaster and California. He introduced the notions of ‘standard sequences’ and ‘small change’ to characterize the process of legal recognition of same-​sex orientation in different countries. Since publishing his first article on same-​sex marriage in 1987, Kees Waaldijk has contributed to the opening up of family law to gay and lesbian couples in the Netherlands and beyond. He is co-​author of the book Sexual Orientation Discrimination in the European Union. His inaugural lecture was about The Right to Relate, which like most of his publications is available at www.law.leidenuniv.nl/​waaldijk. With an international team he created the LawsAndFamilies Database –​Aspects of legal family formats for same-​sex and different-​sex couples (www.lawsandfamilies.eu), which covers 50 years of marriage, partnership and cohabitation rights in 21 countries. The Global Index on Legal Recognition of Homosexual Orientation that he is developing, has been presented in a 2019 article he co-​authored: The Relationship between lgbt Inclusion and Economic Development. He runs the annual Summer School on Sexual Orientation & Gender Identity in International Law.

­c hapter 1

Withdrawing from International Organizations Niels Blokker Un adieu ce n’est pas un adieu1,2

∵ On 6 July 2020, in this year marked by the covid-​19 pandemic, the United States announced that it will withdraw from the World Health Organization.3 This announcement is but one demonstration that States may not only want to establish new international organizations or join existing ones, they may also want to leave them and withdraw. Another example in recent years is most well-​known universally, amongst specialists and laymen, by its shorthand ‘Brexit’ (British exit from the European Union). As other issues in international relations, withdrawals from international organizations are often highly politicized. At the same time, law has a role to play, in the common interest of those who leave and those who stay. This contribution aims to analyze this role, and to put the two above-​mentioned recent cases in a broader context of the law and practice of withdrawals from international organizations. 1 Professor of International Institutional Law (Schermers Chair), Grotius Centre for International Legal Studies, Leiden University. I thank dr. Vid Prislan for his comments. With this contribution I would like to pay tribute to Nico Schrijver on the occasion of his retirement from Leiden University. Under his leadership, the Grotius Centre has expanded within a decade, from a few mainly Dutch staff members to a truly international group of more than 30 teachers and researchers in international law. The law of international organizations is one of Nico Schrijver’s areas of expertise. Partly due to his efforts as a Senator, the Netherlands did not withdraw from at least one international organization, the United Nations Industrial Development Organization (see Parliamentary Document Handelingen ek, 19 December 2016, 12-​4-​4/​12-​4-​5). Even though this contribution is written on the occasion of his retirement from Leiden University, it is hoped and expected that Nico Schrijver will continue working as an academic, be it at a slightly different pace in his new status of emeritus. Un adieu ce n’est pas un adieu. 2 Opening words of a song written by Charles Aznavour. 3 See https://​w ww.un.org/​s g/​e n/​c ontent/​s g/​n ote-​c orrespondents/​2 020-​0 7-​0 7/​n ote -​correspondents-​answer-​questions-​regarding-​the-​world-​health-​organization.

© Koninklijke Brill NV, Leiden, 2021 | D

2 Blokker The structure of this contribution is straightforward. Part 1 will discuss the applicable rules of international law, distinguishing between the specific rules on withdrawal of individual organizations and the general rules of the 1969 and 1986 Vienna Conventions on the Law of Treaties. Part 2 will give a brief and necessarily incomplete overview of practice, including some recent examples of (threats of) withdrawals. During the last few years, an increasing number of governments and political leaders have criticized international organizations. Years of globalization and international cooperation have made way for times in which nationalist and populist sentiments are voiced louder and receive more support. It is necessary to put the recent withdrawals from international organizations into historical perspective, and some figures will show that withdrawals are of all times. Finally, part 3 will offer some concluding observations. 1

Applicable Rules of International Law

Specific Rules 1.1 When the first international organizations were established, the founding States often considered that at some future point in time they might want to leave, and therefore agreed to include a provision on withdrawal in the organization’s constituent instrument.4 For example, Article 19 of the 1874 Constitution of the Universal Postal Union provided that after three years following the entry into force of this Constitution, members may withdraw, ‘on giving notice one year in advance’.5 Almost a century and a half later, such a provision is still very common in constituent instruments of international organizations. A more well-​known early example is the League of Nations. The very first article of the Covenant kept the door to the League open for States to not only join but also to leave. According to the final sentence of Article 1, ‘Any Member of the League may, after two years’ notice of its intention so to do, withdraw from the League, provided that all its international obligations 4 The inclusion of a withdrawal clause in early constituent instruments of international organizations is not self-​evident. Treaties concluded before 1900, in particular multilateral treaties, rarely contained denunciation clauses. This changed during the 20th century; at present most treaties include such clauses. See O. Corten and P. Klein (eds.), The Vienna Conventions on the Law of Treaties (2011), Vol. ii, 1253. 5 The original text of this constitution (the ‘Treaty concerning the formation of a General Postal Union’) is available at https://​avalon.law.yale.edu/​19th_​century/​usmu010.asp. See also F. Seidler, Der Austritt und Ausschluß von Mitgliedern aus den Sonderorganisationen der Vereinten Nationen (1990), 105.

Withdrawing from International Organizations

3

and all its obligations under this Covenant shall have been fulfilled at the time of its withdrawal’. In contrast, the United Nations Charter does not contain a withdrawal provision. This is not an omission, but the result of extensive discussions during the 1945 San Francisco conference, where the UN was established. As in many other respects, the League of Nations experience played an important role in these discussions. The League’s withdrawal clause was extensively used: 17 members withdrew. In San Francisco, a number of States feared that including a provision on withdrawal in the Charter might send a wrong signal to members of an organization with the ambition of universality. At the same time, the founding States of the UN were not under the illusion that withdrawals could simply be prevented by not including a withdrawal clause in the Charter. Some were afraid that it might become difficult to obtain support for the Charter in their countries if they were never able to withdraw, even if amendments were adopted which they had voted against and had refused to ratify. As a compromise, a declaration of interpretation was adopted in June 1945.6 This declaration disapproved of withdrawal and stated:7 If […] a member because of exceptional circumstances feels constrained to withdraw, and leave the burden of maintaining international peace and security on the other members, it is not the purpose of the Organization to compel that member to continue its cooperation in the Organization. It is obvious, however, that withdrawal or some other forms of dissolution of the Organization would become inevitable if, deceiving the hopes of humanity, the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice. Nor would it be the purpose of the Organization to compel a member to remain in the Organization if its rights and obligations as such were changed by Charter amendment in which it has not concurred and which it finds itself unable to accept, or if an amendment duly accepted by the necessary majority in the Assembly or in a general conference fails to secure the ratification necessary to bring such amendment into effect.

6 This description of the Charter negotiations on withdrawal from the UN is partly reproduced from H.G. Schermers and N.M. Blokker, International Institutional Law (6th ed. 2018), 110–​111 (with references to literature). 7 See uncio Vol. vii, 267 (‘commentary on withdrawal from the Organization’, adopted on 17 June 1945).

4 Blokker The last phrase illustrates the living character of the Charter. The non-​entry into force of an amendment considered by the organization as necessary is given the same legal effect, as far as the right to withdraw is concerned, as a constitutional amendment. For example, in the context of discussions on Security Council reform, if a compromise solution to amend the Charter were adopted by the necessary two-​thirds majority of UN membership, according to this declaration of interpretation a withdrawal from the UN would be acceptable in case such an amendment would not be adopted (due to, for example, the non-​ ratification by one of the permanent members). It would not be ‘the purpose of the Organization to compel a member to remain in the Organization’ if, after so many years of discussions and negotiations, the necessary reform of the Security Council could not be achieved and that member would no longer take the view that the Council could carry out its primary responsibility for the maintenance of international peace and security on its behalf (Article 24(1) of the Charter). The Constitution of the World Health Organization also lacks a withdrawal clause. As in the case of the UN, the conference establishing the who adopted a declaration, stating that: ‘A member is not bound to remain in the Organization, if its rights and obligations as such are changed by an amendment of the constitution in which it has not concurred and which it finds itself unable to accept’.8 The US found this declaration insufficient and indicated, in ratifying the who Constitution, that its ratification was subject to the understanding that the US could withdraw on a one-​year’s notice. The World Health Assembly accepted this understanding.9 Unlike the UN Charter and the who Constitution, the constituent instruments of the majority of the hundreds of existing international organizations contain a withdrawal clause.10 Some more recent examples of universal

8

Proceedings of the International Health Conference, 1946 (Official Records who, No. 2), 26 and 74. 9 See https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=IX-​1&chapter=9&clang=_​en#11. 10 In 1963, ilc Special Rapporteur Waldock stated that ‘nearly all’ constituent instruments of international organizations include a withdrawal clause (Yearbook of the International Law Commission 1963, Vol. ii, 69 (para. 20)). In 1982, Widdows wrote that less than one-​ fifth of these instruments lack such a clause (K. Widdows, ‘The unilateral denunciation of treaties containing no denunciation clause’, (1982) 53 British Yearbook of International Law, 83–​114, at 98). More recently, in the dataset used by Von Borzyskowski and Vabulas, about 60% of the 308 international organizations covered has a withdrawal clause (I. von Borzyskowski en F. Vabulas, ‘Hello, goodbye: When do states withdraw from international organizations?’, (2019) 14 The Review of International Organizations, 335–​366, at 339, 360).

Withdrawing from International Organizations

5

organizations are (between brackets their year of establishment): the World Trade Organization (1994), the International Criminal Court (1998), and the International Renewable Energy Agency (2009). Some examples of regional organizations are the African Union (2000), the East African Community (1967; re-​established in 1999), the Association of South East Asian Nations (1967; asean Charter adopted in 2007) and the European Union (1992; withdrawal clause introduced by the Lisbon Treaty, 2007). Examples of specialized or technical organizations are the International Organization of Vine and Wine (2001), the International Commission on Missing Persons (1996; constituent instrument adopted in 2014), the iter International Fusion Energy Organization (2006), the Asian Infrastructure Development Bank (2015), the International Solar Alliance (2016), the Pan-​African Intellectual Property Organization (2016). The substance of all these withdrawal provisions is largely similar and has hardly changed over time. There are six key elements: first and foremost, the nature of a withdrawal is similar in that it is a unilateral act. States that want to leave, may leave, normally after a period of notice, without any agreement with, or authorization from the organization. This is in contrast to the rules for joining most international organization, which require a positive decision by one or more organs of the organization and often also the fulfilment of conditions for membership.11 Leaving an international organization is usually unconditioned. Exceptionally, the organization’s rules or other instruments may discourage departures. An example is the above-​mentioned 1945 Declaration adopted during the UN Charter negotiations. Another example is the clause for withdrawing from the Organization for the Prohibition of Chemical Weapons:12 Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this Convention if it decides that extraordinary events, related to the subject-​matter of this Convention, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal 90 days in advance to all other States Parties, the Executive Council, the Depositary and the United Nations Security Council. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.

11 12

See eg. UN Charter, Art. 4. Chemical Weapons Convention, Art. xvi(2).

6 Blokker Nevertheless, even though such exceptional clauses may discourage departures, the organization concerned does not need to give its approval. The decision to leave is a unilateral decision. This is also true in the European Union,13 even though its withdrawal rules are different in other respects. They lay down a procedure that is triggered once a Member State notifies the European Council of its intention to withdraw. Subsequently, the EU negotiates and concludes an agreement with that Member State, ‘setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union’.14 The agreement ‘shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament’.15 The wording of these rules suggests that a withdrawal from the Union is normally effectuated by an agreement rather than by a unilateral act. Nevertheless, the bottom line is that a Member State may withdraw unilaterally, if no agreement can be reached. The EU procedure for withdrawing is exceptional, with an important role for the European Commission (negotiating the agreement), the European Council (providing guidelines for these negotiations and concluding the agreement) and the European Parliament (giving its consent). The withdrawal procedure of other regional integration organizations is not similar to the EU procedure, but comparable to the rules of most other international organizations.16 Withdrawing from an international organization is therefore fundamentally different from seceding from a State, by more or less autonomous regions.17 While the United Kingdom could have withdrawn unilaterally from the EU had there not been a withdrawal agreement, autonomous parts of a State such as Catalonia or Scotland cannot unilaterally withdraw from Spain and the United Kingdom respectively. It is inherent in state sovereignty that it is ultimately the State that holds the key of the exit door, both externally (on withdrawal from an international organization) and internally (on secession by one of its regions). Second, in line with this, constituent instruments of international organizations generally do not explicitly prohibit members to leave. An exception is the iter International Fusion Energy Organization. Its host State France may not

13 Treaty on European Union, Art. 50(3). 14 Id., Art. 50(2). 15 Id. 16 See e.g. the Treaty for the Establishment of the East African Community (1999), Art. 145(1). 17 See further C. Closa (ed.), Secession from a Member State and Withdrawal from the European Union (2017).

Withdrawing from International Organizations

7

withdraw; the world largest tokamak, a very expensive magnetic fusion device, is built on its territory.18 As another exception, a number of withdrawal provisions prohibit members to leave during the ‘warming up’ of the organization, its early years of operation. This gives the organization the chance to demonstrate its use and may be particularly helpful in cases where considerable financial and other efforts are required before its activities bear fruit.19 Examples are the following (between brackets the number of initial years during which withdrawals are prohibited): nato (20 years), the iter International Fusion Energy Organization (10 years), the Square Kilometre Array Observatory (10 years), cern (7 years) the International Renewable Energy Agency (5 years) and the Asia-​Pacific Space Cooperation Organization (5 years). Third, withdrawal provisions usually indicate a period of notice.20 An announcement on a Monday by a Member State that it wants to withdraw may usually not be followed by the actual withdrawal on Tuesday. Both the organization and the member concerned need some time to unwind membership ties and to anticipate the situation of non-​membership. The length of the period of notice varies greatly. Often this is a period of one year. Exceptionally, withdrawals take effect immediately. Examples are the International Monetary Fund and the World Bank.21 These exceptions are explained by the need to safeguard the economic independence of the participating States.22 In contrast, the withdrawal provisions of constituent instruments of more recently established financial organizations provide for a period of notice; examples are the African Development Bank and the Asian Infrastructure Development Bank (at least six months). A few organizations have provisions laying down a two-​year period of notice of withdrawal. Apart from the League of Nations, this is the case for the International Labour Organization (Article 1(5)) and the Organization of American States (Article 148). For Benelux it is even three years (Article 39(2)). Fourth, a notice of withdrawal may always be retracted. Some constituent instruments mention this explicitly.23 The government of a State that has announced its withdrawal may change; it may change its mind, perhaps 18 iter Agreement, Art. 26(1). 19 See further N. Singh, Termination of Membership of International Organisations (1958), 28–​30. 20 Singh refers to this as a ‘cooling-​off period’ (id., at 30–​33). 21 imf Articles of Agreement, Art. xxvi(1); World Bank Articles of Agreement, Art. vi(1). 22 J. Gold, Membership and Nonmembership in the International Monetary Fund (1974), 333–​334. 23 East African Community, Art. 145.1(b); Asian Infrastructure Investment Bank, Art. 37(2). The Treaty on European Union, does not explicitly mention this, but the Court of Justice confirmed it in Wightman, ecli:eu:C 2018:999. On this preliminary ruling, see A. Cuyvers,

8 Blokker influenced by the organization or other members;24 or it may be forced to change its mind following internal criticism, for example by its parliament. An international organization may also decide to change some of its policies or decisions, as a result of which a withdrawing State reconsiders its decision to leave. However, out is out: once a period of notice is over and a withdrawal has taken effect, the member that has left can only rejoin by following the regular admission procedure. The moment of exit is therefore a defining moment, at which the State concerned loses the status of Member State that it had before, with the corresponding rights and obligations. This is different from informal forms of cooperation such as brics, the G-​8 and the G-​20, where participants can come and go more easily, without hardly any formalities. Fifth, withdrawing members must fulfil their obligations towards the organization they leave, and towards the remaining members. Some constituent instruments explicitly mention this. An early example is the League of Nations, as mentioned above. More recent examples are financial organizations such as the Asian Infrastructure Investment Bank (Article 37) and organizations involved in very expensive activities such as the European Space Agency (Article xxvi) and the iter International Fusion Energy Organization (Article 26). This obligation may raise temporal questions, which may be relevant in certain cases not only for States, but also for individuals and legal entities. For example, Burundi notified its withdrawal from the icc on 27 October 2016. It took effect on 27 October 2017. Could the icc Prosecutor decide to open investigations after Burundi announced its withdrawal, but before the end of the one-​year notice period? On 25 October 2017, the Prosecutor was granted authorization by the Pre-​Trial Chamber to commence an investigation into the situation in Burundi.25 Other examples have arisen in investment arbitrations in the context of the International Center for the Settlement of Investment Disputes.26 ‘Wightman, Brexit, and the sovereign right to remain’, (2019) 56 Common Market Law Review, 1303–​1332. 24 Gold, supra note 22, 333. 25 See https://​www.icc-​cpi.int/​Pages/​item.aspx?name=171109_​otp_​statement. The Chamber ‘confirmed that Burundi’s withdrawal from the Rome Statute has no effect on the jurisdiction of the Court over crimes allegedly committed during the time period it was a State Party. Nor does it affect the continuing obligation of Burundi to cooperate with the Court in relation to the investigation, given that it was authorized and initiated before the withdrawal of Burundi from the Statute came into effect’. 26 See A. Tzanakopoulos, ‘Denunciation of the ICSID Convention under the General International Law of Treaties’, in R. Hofmann and C.J. Tams, International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (2011)

Withdrawing from International Organizations

9

Sixth, the procedure for withdrawing is usually the same. The member that wants to leave needs to send a notice of withdrawal to the depository, to the organization, to the host State, or to whoever is indicated in the withdrawal provision. Next, it is for this authority to inform the other members. Only in the European Union, the withdrawal procedure is more elaborate, as outlined above. 1.2 General Rules A limited number of constituent instruments of international organizations lacks a withdrawal clause.27 In the absence of such a clause, general rules of international law apply. By far most relevant is the Vienna Convention on the Law of Treaties (1969). In addition, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) may become relevant following its entry into force,28 when an international organization would withdraw from another international organization. The relevant rules of these two Vienna Conventions are similar. The Vienna Conventions apply to treaties establishing an international organization, ‘without prejudice to any relevant rules of the organization’.29 They contain general rules for the termination of or withdrawal from a treaty. According to Articles 54 of both Vienna Conventions, parties may withdraw in ‘conformity with the provisions of the treaty’, or ‘at any time by consent of all the parties after consultation with the other contracting parties’. Articles 56 provide for general rules for treaties containing no withdrawal provision. The default rule is that in such cases, parties may not withdraw, unless one of the following two exceptions apply: it is established that the parties intended to admit the possibility of withdrawal, or a right of withdrawal may be implied by the nature of the treaty. In addition, even if these exceptions do not apply, parties may withdraw if all other parties agree (Articles 54). As to the procedure for withdrawing, Articles 56(2) provides that a party that wants to withdraw

27

28 29

75; T. Voon and A.D. Mitchell, ‘Denunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Law’, (2016) 31 ICSID Review 413. Examples are the UN, the who, asean and the Cooperation Council of Turkic Speaking States. The original constitutions of unesco, the European Communities, the European Union and Benelux did not explicitly provide for withdrawals, but withdrawal clauses were later introduced in amendments to these constitutions. Entry into force of this convention requires 35 ratifications by States. As at 20 July 2020, 32 States have ratified. In addition, 11 international organizations have deposited an act of formal confirmation or an instrument of accession. Vienna Convention (1969), Art. 5; Vienna Convention (1986), Art. 5.

10 Blokker shall give not less than twelve months’ notice of its intention to do so. This period of one year is often mentioned where international organizations do have a withdrawal clause. These general rules give a helpful general legal framework for cases where members want to leave an international organization that lacks a withdrawal provision in its constituent instrument. The general rule is that in such cases, members may not withdraw. It is assumed that States, by not including a withdrawal clause in the constitution, did not want to admit this possibility. This presumption is more in line with the prevailing sentiment at the creation of a new organization (not a natural moment to consider withdrawing) than with a down-​to-​earth legal approach of offering some predictability for a future that is by definition uncertain. It reflects an underlying idea of support for international cooperation: ‘members may not withdraw, unless …’. However, the exceptions mentioned in Articles 56(1) are also broad, so that it will usually not be too difficult for members (and their legal advisers) to provide a legal underpinning for withdrawing in the absence of a withdrawal clause. On balance, these general rules give some amount of stability while demonstrating a sense of reality that in practice members cannot be prevented from leaving an international organization if they really do not want to stay. 2

Practice

Following this brief overview of specific and general rules governing withdrawals from international organizations, this part will briefly analyze relevant practice. It is impossible to give a full overview. There are hundreds of international organizations; a full overview of all withdrawals from these organizations would far exceed the scope of this contribution. The analysis below is therefore based on the existing literature and on recent practice. The withdrawal clause in the League of Nations Covenant has been used rather intensively. No less than 17 States left (including Germany and Japan (both in 1933), and Italy (in 1937)).30 As mentioned above, the UN Charter does not contain a withdrawal provision. In practice, no Member State has 30

See F.P. Walters, A History of the League of Nations (1952), 64–​65. The other withdrawals were by Costa Rica (1925), Brazil (1926), Paraguay (1935), Nicaragua (1936), Guatemala (1936), Honduras (1936), Salvador (1937), Chile (1938), Venezuela (1938), Hungary (1939), Peru (1939), Spain (1939), Roumania (1940) and Haiti (1942). See further K.D. Magliveras, ‘The Withdrawal From the League of Nations Revisited’, (1991) 10 Penn State International Law Review, 25–​71.

Withdrawing from International Organizations

11

withdrawn from the UN in its 75 years of existence.31 This is a significant achievement considering the League of Nations experience during its less than twenty years of life. During the past 75 years, there have been a considerable number of situations in which, using the terms of the 1945 declaration of interpretation, ‘deceiving the hopes of humanity, the Organization was revealed to be unable to maintain peace or could do so only at the expense of law and justice’. Nevertheless, even though such situations could justify a withdrawal from the UN, apparently members have generally considered that the advantages of membership outweighed the disadvantages of a withdrawal. However, in the recent era of rising nationalism and populism, political leaders of UN Member States have exceptionally not only criticized the UN, but also announced that their country would withdraw from the world organization. In August 2016, President Duterte of the Philippines threatened to leave the UN, in response to the UN High Commissioner for Human Rights (Prince Zeid) criticizing extrajudicial killings in Duterte’s war on drugs. This threat received worldwide attention and criticism, and one day later Duterte said that this threat was a joke.32 President Bolsonaro of Brazil stated on 18 August 2018, a few months before he was elected President: ‘[i]‌f I’m elected president, I will leave the UN. This institution serves no purpose … It’s a meeting place for communists’.33 Nevertheless, so far, Brazil has not taken the initiative to withdraw. Withdrawing from international organizations may seem fashionable today. This is not only illustrated by statements such as those by Presidents Duterte and Bolsonaro quoted above, and by statements of European politicians that their country should follow the example of the UK and leave the EU (Marine le Pen in France (‘Frexit’), Wilders and Baudet in the Netherlands (‘Nexit’)). It is

31

In 1965, Indonesia notified the Secretary-​General of the UN that it had decided to withdraw (the main reason being the election of Malaysia as a member of the Security Council). However, in 1966 it announced that it would resume full cooperation with the UN. Subsequently, this temporary absence of Indonesia was interpreted by the President of the General Assembly as ‘based not upon a withdrawal from the United Nations but upon a cessation of cooperation’. See Schermers & Blokker, supra note 6, 114–​115 (with references to literature). 32 See various reports in the press, e.g.: https://​www.reuters.com/​article/​us-​philippines-​ duterte-​un-​idUSKCN10W05W; https://​www.straitstimes.com/​asia/​se-​asia/​philippines-​ not-​leaving-​un-​foreign-​minister; https://​cnnphilippines.com/​news/​2016/​08/​25/​Duterte-​ on-​leaving-​U.N.-​Can%E2%80%99t-​you-​take-​a-​joke.html. 33 See https://​www.telesurenglish.net/​news/​Bolsonaro-​Vows-​to-​Leave-​UN-​Its-​Where-​ Communists-​Meet-​20181028-​0007.html.

12 Blokker even more clearly demonstrated when leaders practice what they preach and their countries actually leave international organizations. The most conspicuous examples of the last few years are the following: –​ European Union –​Brexit. On 23 June 2016, a referendum took place in the United Kingdom on membership of the European Union. The question asked was: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ With a turnout of 72%, a small majority of 51.89% of the voters was in favour of leaving, 48.11% in favour of remaining. The referendum was not legally binding, but the government decided to implement the result. On 29 March 2017, the UK formally notified the European Council of its intention to withdraw.34 Negotiations on a withdrawal agreement took considerable time. The agreement was concluded on 17 October 2019 and entered into force 1 February 2020.35 As of that day, the UK is no longer a member of the EU (and of the European Atomic Energy Community).36 –​ World Health Organization: on 6 July 2020, the US notified the UN Secretary-​ General of its decision to withdraw. The withdrawal will become effective in one year, on 6 July 2021. Presidential candidate Biden announced he would undo this decision if he were elected in November 2020, so that the US would continue to be a member of the who.37 The decision by the Trump government is directly related to the covid-​19 pandemic. In April 2020, the US suspended its financial contributions to the who, pending an investigation into the organization’s ‘failed response to the covid-​19 outbreak’. Following this investigation, in May 2020, President Trump indicated in a four-​page letter to the who Director-​General that ‘repeated missteps by you and your organization in responding to the pandemic have been extremely costly for the world. The only way forward for the World Health Organization is if it can actually demonstrate independence from China’.38 The US threatened that, if the who would not make substantive

34 35

In accordance with Art. 50(2) of the Treaty on European Union. For the text of this agreement, see Official Journal of the European Union, 12 November 2019, C 384 1/​01. For an analysis, see M. Dougan, ‘So long, farewell, auf wiedersehen, goodbye: The UK’s withdrawal package’, (2020) 57 Common Market Law Review, 631–​704. 36 There is a vast amount of books and articles on Brexit. See eg. Harold D. Clarke, Matthew Goodwin and Paul Whiteley, Brexit: Why Britain Voted to Leave the European Union (2017); G. Evans and A. Menon, Brexit and British Politics (2017). For legal analyses, see the contributions to the special issue of the Common Market Law Review (Vol. 55, May 2018). 37 See https://​apnews.com/​9dc4077f95d183649ca24a32a18abf01. 38 President Trump published the letter on Twitter, see https://​twitter.com/​realDonaldTrump/​status/​1262577580718395393/​photo/​1.

Withdrawing from International Organizations

13

improvements within 30 days, the US would make the suspension of its contribution permanent and reconsider its membership.39 It announced its withdrawal on 6 July 2020. –​ unesco: since 1 January 2019, Israel and the United States are no longer members. As stated by the US government, its decision ‘reflects U.S. concerns with mounting arrears at unesco, the need for fundamental reform in the organization, and continuing anti-​Israel bias at unesco’.40 The US already stopped paying its contributions to unesco after the organization admitted Palestine as a full member, on 31 October 2011. –​ International Criminal Court: Burundi withdrew (27 October 2017) as well as the Philippines (17 March 2019). The Philippines indicated the following in its notice of withdrawal: ‘The decision to withdraw is the Philippines’ principled stand against those who politicize and weaponize human rights, even as its independent and well-​functioning organs and agencies continue to exercise jurisdiction over complaints, issues, problems and concerns arising from its efforts to protect its people’.41 Burundi did not mention its reasons for leaving in its notice. It may relate to the decision by the icc Prosecutor to initiate preliminary investigations into possible crimes against humanity in Burundi, in the context of an internal political crisis and much violence when President Nkurunziza decided to run for a third term.42 Two other State parties to the Rome Statute –​the Gambia and South Africa –​announced their withdrawal, but retracted their formal notice of withdrawal before the one-​year period of notice was over.43 In the case of the Gambia this happened following a regime change. Under President Jammeh, the Gambia decided on 10 November 2016 to withdraw. President Jammeh accused the icc of prosecuting only Africans.44 Following the election of a new President (Barrow), the Gambia informed the depository (the Secretary-​General of the UN) as follows: ‘After a thorough review of the 39 Id. 40 See https://​www.state.gov/​the-​united-​states-​withdraws-​from-​unesco/​ (press statement by the spokesperson of the US State Department). 41 See https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=XVIII-​10& chapter=18&clang=_​en#2. 42 See https://​www.theguardian.com/​law/​2017/​oct/​28/​burundi-​becomes-​first-​nation-​to-​leave -​international-​criminal-​court. 43 See M. Ssenyonjo, ‘State Withdrawal Notifications from the Rome Statute of the International Criminal Court: South Africa, Burundi and the Gambia’, (2018) 29 Criminal Law Forum, 63–​119; J.-​P. Perez-​Leon-​Acevedo, ‘Why Retain Membership of the International Criminal Court?’, (2018) 15 International Organizations Law Review, 364–​387. 44 See https://​www.reuters.com/​article/​us-​gambia-​icc/​gambia-​announces-​withdrawal-​from -​international-​criminal-​court-​idUSKCN12P335.

14 Blokker circumstances surrounding that decision [-​the decision to withdraw -​], the new Government of the Republic of The Gambia hereby notifies you of its decision to rescind that notification of withdrawal with immediate effect’.45 In the case of South Africa, the government announced its withdrawal on 19 October 2016. In its notice of withdrawal it explained in detail the reasons for this decision. Amongst these reasons were issues relating to head of state immunity, the arrest warrant for the Sudanese President Al-​Bashir and disappointment in the way in which the icc’s Assembly of States Parties dealt with this.46 However, a few months later, on 7 March 2017, the government revoked its decision to withdraw. It was forced to do so after a high court decided that the withdrawal was unconstitutional, in the absence of prior parliamentary approval.47 –​ International Whaling Commission (iwc): Japan withdrew on 1 July 2019, and resumed commercial whaling. The Japanese government indicated that other iwc members did not want to reconsider the iwc’s moratorium on commercial whaling, even though there was scientific evidence that certain whale species and stocks of whales were abundant, and that Japanese views were not sufficiently taken into account.48 –​ International Coffee Organization: the US left this organization on 3 June 2018. The withdrawal announcement did not mention the reasons to withdraw.49 In 1993, the US also withdrew from this organization (as a reaction to the establishment by 29 coffee producing countries of the Association of Coffee Producing Countries), but it returned as a full member in 2005. –​ There are a few other recent examples (eg. Qatar withdrew from opec on 1 January 2019), but not many.

45 See https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=XVIII-​10& chapter=18&clang=_​en#2. 46 Id. 47 See http://​www.coalitionfortheicc.org/​news/​20170222/​south-​africa-​icc-​withdrawal-​bid -​unconstitutional-​say-​judges. 48 For the decision of the Japanese government to withdraw, see https://​www.mofa.go.jp/​ ecm/​fsh/​page4e_​000969.html. 49 See https://​www.comunicaffe.com/​the-​united-​states-​announces-​the-​withdraw-​from-​the -​ i nternational- ​ c offee -​ a greement/​ # :~:text=MILAN%20%E2%80%93%20 The%20United%20States%20is,International%20Coffee%20Organization%20 (ICO).&text=The%20United%20States%20was%20among,Association%20of%20 Coffee%20Producing%20Countries); https://​dailycoffeenews.com/​2018/​10/​22/​us-​state-​ department-​confirms-​withdrawal-​from-​the-​international-​coffee-​agreement/​.

Withdrawing from International Organizations

15

–​ Finally, on 17 October 2018 the US announced its withdrawal from the Universal Postal Union (upu), because ‘current international postal practices in the upu do not align with United States economic and national security interests’.50 The US complained in particular about the low postal rates (‘terminal dues rates’) for small packages from China. As mentioned, the upu withdrawal rules include a period of notice of one year. Before the end of this period and following an extraordinary congress organized in September 2019 to address the American concerns, an agreement was reached and the US revoked its notice of withdrawal.51 It is clear from these examples that withdrawing from international organizations is not only about Brexit and the US withdrawal from the who, but also concerns other countries and international organizations. Although these examples may suggest, in the context of the current nationalistic and populist rhetoric, that the swing of the pendulum is now moving from a growth of international organizations towards their stagnation and decline, it is useful to put these recent events in a larger perspective. ‘Facts kick’, as the Swedish sociologist Gunnar Myrdal once wrote.52 Alternative facts do not. Two important facts are relevant: Firstly, withdrawals of international organizations are not a new phenomenon but have always occurred; there is no significant surge in recent years. Secondly, in most cases the leavers rejoined the organization after some time. Withdrawing from international organizations is of all times. As mentioned above, 17 members withdrew from the League of Nations. Since 1945, no member has left the United Nations, but States have sometimes withdrawn from other organizations. One study has demonstrated that from 1945 until 1987, there have been 46 withdrawals from the specialized agencies of the UN.53 Another, more recent study covering 308 international organizations has demonstrated

50 51

52 53

https://​www.whitehouse.gov/​presidential-​actions/​presidential-​memorandum-​secretary-​ state-​secretary-​treasury- ​secretary-​homeland- ​security-​postmaster- ​general- ​chairman-​ postal-​regulatory-​commission/​. See J. Galbraith (ed.), ‘Contemporary Practice of the United States Relating to International Law. United States Remains in the Universal Postal Union, Rescinding Its Notice of Withdrawal’, (2020) 114 American Journal of International Law, 128–​132. On 16 October 2019, the upu Director General visited President Trump in the White House and publicly showed the US letter revoking its decision to withdraw (see upu Press Release, available at https://​www.upu.int/​en/​News/​2019/​10/​US-​officially-​revokes-​intent-​to-​withdraw-​from-​ postal-​union-​during-​Washington-​D-​C-​visit-​of-​UPU%E2%80%99s-​Dir). G. Myrdal, Objectivity in Social Research (1969), 40. F. Zeidler, Der Austritt und Ausschluß von Mitgliedern aus den Sonderorganisationen der Vereinten Nationen (1990), 128–​129.

16 Blokker that from 1945 to 2014, States have left international organizations in some 200 cases, without a significant surge in recent years.54 This study’s main conclusion is that members rarely leave international organizations.55 The most frequent ‘leavers’ are the US (10 withdrawals), Canada (9), the UK (7), Indonesia (7), Poland (6) and Australia (6).56 Most withdrawals concern a limited number of organizations; about half of all withdrawals were from 9 organizations.57 The study finds that nationalistic and populist reasons ‘are not the key driving force for igo withdrawals across time’ […]; rather, ‘geopolitical factors are integral to understanding when and why States withdraw from igo s’.58 The most important examples of withdrawals where constitutions did not have a withdrawal clause happened a long time ago. In 1949 and 1950, nine East European States and China announced that they would leave the who. In 1952 and 1953, Czechoslovakia, Poland and Hungary decided to leave unesco.59 Neither the who nor unesco accepted these withdrawals. As a matter of principle, such refusals may have been correct. However, there was little these organizations could do to force these apostate States to return. In addition, with membership also the financial contributions of these countries continued, making it more difficult to find a solution. In December 1954, unesco decided to add a withdrawal clause to its constitution.60 Even before this was adopted, Hungary, Poland and Czechoslovakia revoked their withdrawals, and paid part of the outstanding contributions. The who did not amend its constitution. When the 10 States that had left indicated that they wanted to rejoin (China in 1952, most of the others in 1955), an arrangement was made with

54

55 56 57

58 59 60

Von Borzyskowski and Vabulas, supra note 10. As explained in the supplementary materials to this study, the authors have used an original dataset of 493 international organizations, but have limited their research to active organizations (having a website or internet presence), resulting in 308 organizations. This conclusion confirms, with detailed figures, the prevailing view in literature. See e.g. É. David, Droit des organisations internationals (2016), 265–​288 (at 265: ‘Le retrait d’un État d’une O.I. reste relativement rare’). Id., at 342. Id., at 343 (World Tourism Organization (21), International Whaling Commission (18), unido (10), who (9), unesco (9), ilo (9), International Copper Study Group (7), fao (7), Common Afro-​Malagasy Economic Organization (7)). The number of 9 withdrawals from the who is an error; there have been 10 withdrawals. Id., at 361. On the reasons for withdrawing, see also K.D. Magliveras, ‘Membership in international organizations’, in J. Klabbers and Å. Wallendahl (eds.), Research Handbook on the Law of International Organizations (2011) 84, in particular at 98–​101. See in more detail about these withdrawals from the who and from unesco, with references to literature: Schermers & Blokker, supra note 6, 112–​114. unesco Res. ii.1.1, adopted by the General Conference on 8 December 1954.

Withdrawing from International Organizations

17

conditions how these ‘inactive members’ could resume active participation. The returning East European States had to pay five per cent of their contribution over the years of absence. In addition, as the other –​active –​members, they were considered to be bound by the Sanitary Regulations adopted during their absence. Even though they did not pay their outstanding membership fees in full, this practice, without any formal readmission to these organizations, demonstrated that the approach followed (continuation of membership, rejection of the withdrawals) was correct and was accepted by the two organizations and their (active and temporarily inactive) members. Second, in most cases, the States that withdrew rejoined the organization after some time. Often, they keep a certain ‘lighter’ relationship with the organization after having withdrawn as a full member.61 Thus they may have experienced that you can withdraw from an international organization, but not from globalization. Climate change, terrorism, pandemics and other man-​made and non-​man made problems are of a global nature and cannot be effectively controlled at the national level. This was illustrated when the United Kingdom, in the midst of Brexit negotiations, proposed to conclude a bilateral agreement with the EU on security, law enforcement and criminal justice cooperation.62 Usually staying is more in the self-​interest of States than leaving, even though it may not always be perceived that way. If the US will not retract its July 2020 notice of withdrawal from the who before 7 July 2021, it is most likely that it will rejoin sooner or later, as happened previously in other cases (eg. the ilo, where the US returned three years after it left in 1977; unesco (within 19 years); the International Coffee Organization (within 12 years)). The aggressive stance by the US against the who (as if covid-​19 originated in Geneva) was criticized world-​wide as well as within the US, and the American withdrawal will probably complicate rather than facilitate US domestic measures to fight this virus. 61

S. Cuendet, ‘La qualité de membre: acquisition, évolution, perte’, in E. Lagrange and J.-​M. Sorel (eds), Droit des organisations internationales (2013), 289–​316, in particular at 312, 314; N. Kang-​Riou and D. Rossati, ‘The Effects of Juridification on States Exiting International Institutions’, (2018) 15 International Organizations Law Review, 265–​294. 62 See Security, law enforcement and criminal justice –​a future partnership paper (UK Government paper, available at https://​www.gov.uk/​government/​publications/​security-​ law-​enforcement-​and-​criminal-​justice-​a-​future-​partnership-​paper). As is mentioned in this paper, ‘in the face of growing and evolving threats, it is in the interests of both the UK and the EU to ensure that close cooperation remains possible. […] There are clear practical benefits to each side from sustaining deep, broad and dynamic cooperation in the fight against crime and terrorism in view of the evolving and growing nature of cross-​ border threats’ (paras. 36 and 38).

18 Blokker Even though this overview of practice is necessarily incomplete, it shows that the withdrawals from international organizations during recent years are not a new development, but rather a continuation of past practice. 3

Concluding Observations

Withdrawing from international organizations has been frequent front-​page news in recent times. Brexit and the announcement by the US that it will leave the who may be seen as more than isolated issues and part of a general trend of criticism of international cooperation and international organizations, fueled by rising nationalism and populism. In the midst of highly politicized issues such as these, it is useful to revisit the law and the practice of withdrawals from international organizations. The brief analysis in this contribution has shown that a stable and adequate legal framework is in place, assisting international organizations and their members to making it through times of change when members want to leave. Most constituent instruments of international organizations contain specific withdrawal rules. The absence of such rules may be interpreted as an indication that the founders of an organization did not want members to leave. Early practice relating to the who and unesco supports this reading. States may not only agree to leave the door of the organization open for members to leave, they may also agree to keep it closed. Sovereignty entails the ultimate power of submission to rules limiting sovereignty. This is also illustrated by the rules that prohibit withdrawals from various international organizations during a ‘warming up’ period, the initial years of operation. In the exceptional case of iter, the host State France may not withdraw at all, not even after a specified number of years. However, according to most withdrawal clauses, the decision to leave is a unilateral decision that members may take without the agreement of other members or the organization, in contrast to most rules for joining international organizations. Such exit clauses are not necessarily an expression of limited trust in the organization; they also facilitate the establishment of a new international organization with the necessary powers. States may find it easier to join and commit themselves if they know that they also have the right to leave. The unilateral nature of the decision to leave is usually not unrestricted. The main limitation is the period of notice, the length of which may vary up to three years. The main rationale of a period of notice is that it enables the organization, the member that intends to leave and the remaining members to adapt to the new situation. It also gives time to the withdrawing member

Withdrawing from International Organizations

19

to reconsider its decision to leave, and to the organization to convince the member to stay. In recent years this has resulted in the retraction of a number of announcements to withdraw (the Gambia and South Africa (icc), United States (upu)). The Vienna Conventions on the Law of Treaties (1969 and 1986) provide an adequate general framework, relevant in particular where international organizations do not have specific withdrawal rules. They are sufficiently precise in some respects: the default rule that members may not leave in the absence of a withdrawal clause, with some very broad exceptions, a period of notice of one year and the requirement to notify the depositary. They are sufficiently unobtrusive by fully giving precedence to applicable rules of the organization (Articles 5, 54(a)). In practice there have been some 200 withdrawals from international organizations since 1945. This does not seem to be a high number, given that there are hundreds of international organizations and that most of them have been in existence for a long time. These withdrawals have always happened and are certainly not only a recent phenomenon. On the basis of the practice of the first universal political organization, the League of Nations, it might have been expected that leaving an international organization could occur almost as often as joining. In total 17 members withdrew during two decades. However, subsequent practice has been less volatile. It is noteworthy that no member has ever left the UN during its 75 years of existence. Although this is different for other international organizations, the number of withdrawals for individual organizations has almost never reached the level of the League of Nations. In recent years, marked by nationalism and populism in a number of countries, capricious political leaders and angry or frustrated voters provided a fertile ground for some withdrawals, but there has been no exodus from international organizations. It is uncertain whether this will change in the near future, but past practice does not make this likely. Furthermore, the existing periods of notice may work as a useful safety valve, and if members really leave, past practice shows that it may be expected that they will rejoin, sooner or later. Un adieu ce n’est past un adieu. Why is it that members rarely leave international organizations? Why is it that almost all members remain members of almost all international organizations, almost all of the time?63 Although difficult to prove, it may be speculated or even assumed that the answer to these questions is to be found in 63

Inspired by Henkin’s famous words: ‘Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’ (L. Henkin, How Nations Behave: Law and Foreign Policy (2nd ed. 1979), at 47).

20 Blokker the processes of globalization and the corresponding deflation of State sovereignty, i.e. the decreasing capacity of States to govern their part of the globe. The establishment of international organizations, near permanent membership and the rarity of withdrawals are primarily in the self-​interest of States to regain some control by ‘sharing sovereignty’. More specific answers to the questions above are to be found in the preambles and opening articles of constituent instruments of international organizations, explicitly stating the raison d’etre of institutionalized cooperation. In the hundreds of cases in which international organizations are created, as many times the States concerned agreed that more static, ‘un-​institutionalized’ cooperation would not suffice (concluding an agreement without establishing an organization). By creating an international organization, the States concerned obtain a new capacity, membership of a corporate body to which it is difficult to say goodbye. The general theme of this Liber amicorum raises the question whether there is any room or need for furthering the frontiers of the law on withdrawing from international organizations. The answer suggested by what has been discussed is that such room or need is limited. The law on withdrawals has been remarkably stable over time. Its nature (mostly unilateral), a notice period and a simple procedure can already be found in the 1874 constituent instrument of the one of the oldest international organizations, the Universal Postal Union. In the long run, changes may be useful or necessary in the direction of a bigger say for the other members and the organization in the conditions and timing of leaving, in particular in more supranational and more complex organizations. The interest of other members is clear and recognized when countries join an organization. Why should it be different when members leave? The withdrawal procedure of the European Union may inspire future changes, in particular its key instrument, the withdrawal agreement, with a role for the organization in its negotiation and conclusion. Needless to say, the bottom line will remain that members can withdraw unilaterally, if no agreement can be reached within a certain period. Otherwise the departure should be called secession rather than withdrawal. Apart from the European Union, no other international organization has such a procedure, in which the interests of the other members are better represented. The only soft surrogates are the few small normative attempts to discourage members to leave, as in the 1945 UN Declaration and in the opcw withdrawal clause. Knowing that un adieu ce n’est pas un adieu, withdrawal clauses could as well be strengthened.

­c hapter 2

Sovereignty as Responsibility

Exercising Permanent Sovereignty over Natural Resources in the Interest of Current and Future Generations Daniëlla Dam-​de Jong 1

Introduction

The permanent sovereignty over natural resources (‘psnr’) principle is the cornerstone of the regulation of natural resources found within states’ jurisdictions. This principle, which has evolved into a norm of customary international law,1 emerged as a product of the era of decolonization. It was asserted by colonial peoples and developing states as a means to protect their natural capital against appropriation by foreign rulers. The primary purpose of the psnr principle was therefore to empower these newly independent and developing states.2 In a similar spirit, permanent sovereignty was included in the identical Articles 1(2) of the International Covenant on Economic, Social and Cultural Rights (icescr) and the International Covenant on Civil and Political Rights (iccpr) as an inherent part of the right of peoples to self-​determination.3 These provisions determine that ‘[a]‌ll peoples may, for their own ends, freely dispose of their natural wealth and resources’, while ‘in no case may a people be deprived of its own means of subsistence’. Notwithstanding the general references to “peoples” as holders of the right to freely dispose of natural resources, the drafting history of these provisions suggests that these were to apply exclusively to colonial peoples.4 Their 1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] icj Rep. 168, para. 244. 2 See N.J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997), p. 36–​76; D. Rosenberg, Le Principe de Souveraineté des Etats sur Leurs Ressources Naturelles (1983); G. Elian, The Principle of Sovereignty over Natural Resources (1979). 3 1966 International Covenant on Economic, Social and Cultural Rights (icescr), Annex to unga Resolution 2200 (xxi) of 16 December 1966, 993 unts 3; 1966 International Covenant on Civil and Political Rights (iccpr), Annex 2 to unga Resolution 2200 (xxi) of 16 December 1966, 999 unts 171. 4 See N.J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997), p. 36–​76.

© Koninklijke Brill NV, Leiden, 2021 | D

22 

Dam-de Jong

application to distinct communities within a state was not contemplated at the time. The provisions were therefore ‘State rights in disguise’,5 intended to provide nascent and developing states a shield to protect their rights over their natural resources vis à vis former metropolitan or otherwise dominant states.6 Likewise, where the landmark 1962 Declaration on Permanent Sovereignty over Natural Resources refers to peoples and nations as subjects of the principle of psnr,7 these references must be understood within the historic context of decolonization. As such, the principle of psnr emerged as a concept with a strong inter-​state focus, in the sense that it aimed to provide peoples united in one state with the tools to safeguard their interests towards peoples in other states. Where the first operational paragraph of the 1962 Declaration emphasizes that ‘[t]‌he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-​being of the people of the State concerned’,8 this reference was primarily intended to strengthen the claim of newly independent states towards their former oppressors. It confirmed that natural resources were to be used for the well-​being of the people inhabiting the newly independent states instead of benefitting their former colonizers.9 This inter-​state focus remains of crucial importance in today’s world, inter alia in relation to regulating foreign investment or to prevent states intervening

5 For the notion ‘State rights in disguise’ as well as a critical appraisal of peoples’ rights, see J. Crawford, ‘Some Conclusions’, in J. Crawford (ed.), The Rights of Peoples (1988), 159. 6 Today, this ambivalence with respect to peoples as holders of the right to freely dispose of natural resources is still visible in the obligations that States have pursuant to Article 1(2) of the iccpr. The Human Rights Committee stated in its General Comment No. 12 on the right to self-​determination that the right to freely dispose of natural resources ‘entails corresponding duties for all States and the international community’. It further noted that ‘States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other rights set forth in the Covenant’. 7 Declaration on Permanent Sovereignty over Natural Resources, UN Doc. A/​r es/​1803 (xvii), 14 December 1962, first operational paragraph. 8 Declaration on Permanent Sovereignty over Natural Resources, UN Doc. A/​r es/​1803 (xvii), 14 December 1962, first operational paragraph. 9 See, for instance, Resolution 2158(xxi) on Permanent Sovereignty over Natural Resources, UN Doc. A/​r es/​2158(xxi), 25 November 1966 which develops the 1962 Declaration on Permanent Sovereignty over Natural Resources. This resolution recognizes that ‘the natural resources of the developing countries constitute a basis of their economic development’ and that ‘in order to safeguard the exercise of permanent sovereignty over natural resources, it is essential that their exploitation and marketing should be aimed at securing the highest possible rate of growth of the developing countries’.

Sovereignty as Responsibility

23

militarily in another state from looting that state’s natural resources.10 In other words, it underlines that states have the exclusive prerogative to exercise authority over the natural resources found within their jurisdiction and an obligation to (ensure) respect (for) the sovereignty of other states over their natural resources. This chapter focuses however on developments that seek to give effect to the principle of psnr and the related right to self-​determination within independent states. It discusses an evolution towards a more human rights-​ oriented conceptualization of the principle of psnr, referring to a strengthening of the position of human beings as beneficiaries of the principle of psnr and subjects of the right to self-​determination, based on distinct obligations for states towards the current and future generations. This evolution ensues from and is necessitated by the following developments. The first stems from the so-​called ‘resource curse’, referring to the paradox that natural resources wealth leads to economic stagnation and underperformance.11 One of the reasons for this is that large rents for natural resources make governments less accountable and foster corruption, because these rents replace tax revenues for which governments must account to the population.12 This in turn may lead to the weakening of government institutions, making a country vulnerable to crises, including the outbreak of an armed conflict.13 It is estimated that around 2030 –​the year in which the sustainable development goals should be achieved –​‘more than half of the world’s poor will be living in countries

10

The intervention by Uganda and Rwanda in the Democratic Republic of the Congo in the 1990s provides a classical example, although the International Court of Justice was not able to conclude on the basis of the available evidence that the acts of looting and plundering of natural resources committed by members of the Ugandan army were state-​ sanctioned. It therefore preferred to characterize these acts as violations of the prohibition of pillage instead of the principle of psnr. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] icj Rep. 168, para. 242–​243. An interesting case that is more recent concerns Syria. In October 2019, U.S. president Donald Trump stated that he intended to remain in Syria for the purpose of exploiting Syria’s oil fields. This statement was widely criticised, both internationally and domestically. See R. Wright, ‘Trumps Baffling Plan to Pillage Syria’s Oil’, The New Yorker, 30 October 2019. 11 See R. Auty, Sustaining Development in Mineral Economies: The Resource Curse Thesis (1993). 12 See P. Collier and A. Hoeffler, ‘Resource Rents, Governance, and Conflict’, (2005) The Journal of Conflict Resolution 49(4), 625. 13 See, e.g., M.L. Ross, ‘The Political Economy of the Resource Curse’, (1999) World Politics 51(2), 297; and J.D. Sachs and A.M. Warner, ‘The Curse of Natural Resources’, (2001) European Economic Review 45, 827.

24 

Dam-de Jong

affected by high levels of violence’.14 These developments require higher international scrutiny with respect to how governments use natural resources and, more specifically, to promote that these are used for the well-​being of the population.15 A second development necessitating an evolution towards a human rights-​oriented conceptualization of the principle of psnr is an increasing awareness of the dependence of human life on the proper functioning of ecosystems, defined as ‘dynamic complex[es] of plant, animal and micro-​organism communities and their non-​living environment interacting as a functional unit’.16 Environmental degradation caused by phenomena such as climate change and over-​exploitation of natural resources have a direct impact on the lives of current and future generations. This chapter explores how various international legal obligations –​some established, others emerging –​shape the human rights orientation of the principle of psnr. The emphasis on the well-​being of the population as expressed in the first operative paragraph of the 1962 Declaration on Permanent Sovereignty over Natural Resources already paved the way for establishing a direct connection between the principle of permanent sovereignty and human rights. More recently, it has been recognized by human rights bodies that access to natural resources and sustainable exploitation are essential prerequisites for the protection and fulfillment of a variety of human rights, most importantly the right to life, the right to an adequate standard of living, including the rights to food and water, and the right to health. Conversely, the protection of human rights, including participatory rights, is considered essential for the protection of the environment and natural resources. The recognition of these interrelationships has resulted in a cross-​fertilization between international human rights law and international environmental law, which has been referred to as the ‘greening of human rights’.17 This chapter zooms in on these developments,

14 15

16 17

United Nations and the World Bank (2018) Pathways for Peace: Inclusive Approaches to Preventing Violent Conflict, xi. The promotion of national development and the well-​being of the population has always been the principal objective of the principle of psnr. The first operational paragraph of the 1962 Declaration on Permanent Sovereignty over Natural Resources determines that ‘[t]‌he right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-​being of the people of the State concerned’. Convention on Biological Diversity, Art. 2. A. Boyle, ‘Human Rights and the Environment’ in Ben Boer (ed.) Environmental Law Dimensions of Human Rights (2015), 203. See also the UN Framework Principles on Human Rights and the Environment, developed by Special Rapporteur John Knox under the auspices of the Human Rights Council. unhrc, Report of the Special Rapporteur on

Sovereignty as Responsibility

25

which are instrumental in shaping the obligation to exercise permanent sovereignty for the well-​being of the people. It examines the emergence of participatory rights (section 2) and the right to live in an adequate environment and to have access to natural resources (section 3). 2

Participatory Rights

Participatory rights are closely connected to the right of self-​determination of peoples, as included in identical Article 1 of the icescr and the iccpr. The first limb of this provision accords a right to peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’, while the second limb incorporates the right of peoples to freely dispose of their natural resources and not to be deprived of their means of subsistence. It was noted in the introduction that the right to self-​determination at its origins was intrinsically connected to the quest of colonial peoples for independence. However, while particular aspects of the exercise of the right to self-​determination may remain reserved for colonial peoples, the right to self-​determination itself has increasingly been interpreted as being applicable in the relationship between peoples within a state and their governments.18 These peoples concern the population of the state as a whole as well as distinct communities within the state, most importantly indigenous peoples and minorities.19 Very importantly, the right to self-​determination has been interpreted as giving rise to participatory rights for citizens. Already in 1984, the hrc

18

19

the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John Knox, UN Doc A/​h rc/​37/​59 (2018). See for instance Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, [2019] icj Rep. 95, para. 144, in which the Court explained that it confined itself to analyzing the right to self-​ determination in the context of decolonization only, while acknowledging that the right to self-​determination is a ‘fundamental human right’ which ‘has a broad scope of application’. See for instance African Court on Human and Peoples Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/​2021, Judgment of 26 May 2017, para. 198–​199, which concludes that the notion “people” as used by the African Charter on Human and Peoples’ Rights covers ‘the population as the constituent elements of the State’, but also ‘the ethnic groups or communities identified as forming part of the said population within a constituted State […] provided such groups or communities do not call into question the sovereignty and territorial integrity of the State without the latter’s consent’.

26 

Dam-de Jong

indicated in its General Comment 12 that proper implementation of the right to self-​determination requires the establishment of constitutional and political processes ‘which in practice allow the exercise of this right’.20 One way of giving effect to this is through individual rights. Article 25 of the iccpr, for instance, includes a right for individuals to take part in the conduct of public affairs. In its General Comment No. 25 on the right to participate in public affairs, voting rights and the right of equal access to public service, the Human Rights Committee made an explicit connection between Articles 1 and 25 of the Covenant.21 Other rights included in the iccpr and the icescr play an important supporting role in this respect. This is notably the case for the freedom of expression included in Article 19 of the iccpr, the freedom of peaceful assembly formulated in Article 21 of the iccpr and the right to freedom of association included in Article 22 of the iccpr and Article 8 of the icescr.22 In relation to natural resources governance, reference can be made to Principle 10 on public participation of the 1992 Rio Declaration on Environment and Development, which determines that ‘[e]‌nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have […] the opportunity to participate in decision-​making processes …’.23 This principle has inspired the adoption of two important regional conventions that address participation of citizens in environmental matters, namely the 1998 Convention on Access to Information, Public Participation in Decision-​Making and Access to Justice in Environmental Matters (Aarhus Convention) and, more recently, the 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement), which has not yet entered into force.24 Both conventions relate 20

21 22 23 24

See General Comment No. 12: The right to self-​determination of peoples (Art. 1), adopted by the Human Rights Committee at its twenty-​first session, 13 March 1984, Office of the High Commissioner for Human Rights, para. 3. See also Guidelines for the treaty-​ specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights, UN Doc. ccpr/​C/​2009/​1 (2010), under Article 1. Human Rights Committee, General Comment No. 25: The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25), 12 July 1996, UN Doc. ccpr/​C/​21/​Rev.1/​Add.7, para. 2. Ibid, para. 25. 1992 Rio Declaration on Environment and Development, 31 ilm 874 (1992). 1998 Convention on Access to Information, Public Participation in Decision-​making and Access to Justice in Environmental Matters, 2161 unts 447; 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, https://​repositorio.cepal.org/​bitstream/​handle/​11362/​43583/​ 1/​S1800428_​en.pdf.

Sovereignty as Responsibility

27

to environmental matters more generally and therefore cover only particular aspects of natural resources management. Nevertheless, while the Escazú Agreement must still prove itself in the years to come, the Aarhus Convention, complemented by the 2015 Maastricht Recommendations on Promoting Effective Public Participation in Decision-​making in Environmental Matters, has played an important role in increasing environmental democracy in the European region, not in the least because of its compliance committee.25 With respect to indigenous peoples, participatory rights have been given shape in the right to free, prior and informed consent, as included in the 2007 UN Declaration on the Rights of Indigenous Peoples (undrip).26 The right to free, prior and informed consent entails an obligation for governments to consult indigenous peoples in good faith with the aim to obtain their free and informed consent before approving a project that has an impact on the enjoyment of their ancestral lands and the natural resources associated with their traditional lifestyle.27 These participatory rights are often connected to the protection of other human rights. The Human Rights Committee, for instance, has established a connection with the right of minorities to enjoy their culture pursuant to Article 27 of the iccpr, while the Committee on Economic, Social and Cultural Rights has established a direct connection between participatory rights for indigenous peoples and the right of self-​determination under Article 1 of the icescr.28 Participatory rights for indigenous peoples have further been connected to the protection of property rights. Several human rights bodies have recognized the communal property rights of indigenous peoples over their lands and used these as a legal basis for establishing participatory rights.29 In its landmark 25

26 27 28 29

See e.g. J. Ebbesson, ‘Principle 10’, in J.E. Viñuales, The Rio Declaration on Environment and Development: A Commentary (2015), 287, referring in footnotes 107 and 108 to the following cases brought before the Aarhus Compliance Committee: accc/​C/​2004/​3 (Ukraine), 14 March 2005; accc/​C/​2004/​8 (Armenia), 31 March 2006; accc/​C/​2006/​16 (Lithuania), 7 March 2008; accc/​C/​2008/​24 (Spain), 15–​18 December 2009; and accc/​ C/​2009/​37 (Belarus), 24 September 2010. It should be noted that Ebbesson has been a member of the Aarhus Compliance Committee (currently its chair) since 2005. United Nations Declaration on the Rights of Indigenous Peoples, Annex to UN General Assembly Resolution 61/​295 (2007). For a more detailed analysis of this right, see B. Rombouts, Having a Say: Indigenous Peoples, International Law and Free, Prior and Informed Consent (2014). See for instance the committee’s concluding observations in relation to Cameroon’s fourth periodic report. Concluding observations on the fourth periodic report of Cameroon, UN Doc. E/​C.12/​c mr/​c o/​4 (2019), paras. 12 and 16. See further F. Lenzerini, ‘The Land Rights of Indigenous Peoples under International Law’, in M. Graziadei and L. Smith (eds.), Comparative Property Law: Global Perspectives (2017),

28 

Dam-de Jong

Saramaka case, for instance, the Inter-​American Court of Human Rights interpreted Article 21 of the American Convention on Human Rights30 relating to the protection of property to ‘call for the right of members of indigenous and tribal communities to freely determine and enjoy their own social, cultural and economic development […] grant[ing] to the members of the Saramaka community the right to enjoy property in accordance with their communal tradition’.31 It further determined that the state must abide by the following three conditions when granting concessions on the territory of the Saramaka. First, the state must ensure the effective participation of the members of the Saramaka people in the project, including a duty to actively consult the community and to obtain their free, prior and informed consent. Second, the state must guarantee that the Saramakas will receive a reasonable benefit from any such project within their territory. Third, the state must perform an environmental and social impact assessment prior to issuing concessions.32 In its subsequent Sarayaku people v. Ecuador judgment, the Inter-​American Court furthermore decided that the duty to consult constitutes a general principle of international law, that the consultation process should entail a ‘genuine dialogue as part of a participatory process in order to reach an agreement’ and that the process must be construed as ‘a true instrument of participation’, carried out in ‘good faith’, with ‘mutual trust’ and with the goal of reaching a consensus.33 The African Court on Human and Peoples’ Rights has likewise referred to the right to property in its case law as a basis for participatory rights for indigenous peoples. In its judgment in the Ogiek case instituted by the African Commission on Human and Peoples’ Rights against Kenya, the Court determined that the eviction of the Ogieks from their ancestral lands ‘against their will, without prior consultation and without respecting the conditions of expulsion in the interest of public need’ constituted a violation of Article 14 of the African Charter on Human and Peoples’ Rights,34 protecting the right to property.35 In the same judgment, the Court also recognized the right to

30 31 32 33 34 35

393–​411; and J. Gilbert, Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors (2016). 1969 American Convention on Human Rights, oas No. 17955. Inter-​American Court of Human Rights, Case of the Saramaka People v. Surinam, Judgment of 28 November 2007, para. 95. Ibid., para. 129, 133–​134. Inter-​American Court of Human Rights, The Kichwa people of Sarayaku v. Ecuador, Judgment of 26 July 2012, paras. 164, 167, 186 and 200. 1981 African Charter on Human and Peoples’ Rights, 1520 unts 217. African Court on Human and Peoples Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/​2021, Judgment of 26 May 2017, para. 131.

Sovereignty as Responsibility

29

development included in Article 22 of the African Charter as an autonomous legal basis for participatory rights.36 Especially important is that the Court interpreted Articles 14 and 22 in light of relevant provisions included in the UN Declaration on the Rights of Indigenous Peoples (undrip).37 The participatory rights of other local communities are also gradually receiving legal recognition. An interesting development concerns the rights of peasants. In December 2018, the UN General Assembly adopted the Declaration on the Rights of Peasants and Other People Working in Rural Areas,38 which equally provides for consultation rights, as well as an obligation for the state to conduct environmental and social impact assessments, access rights to natural resources necessary for an adequate standard of living, protection of land rights and benefit-​sharing. Most importantly, Article 2(3) of the Declaration determines that states shall consult and cooperate in good faith with peasants and other people working in rural areas through their own representative institutions, engaging with and seeking the support of peasants and other people working in rural areas who could be affected by decisions before those decisions are made, and responding to their contributions, taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-​making processes. Although this declaration is not legally binding and did not receive unanimous support,39 it signals an important trend towards empowering communities that depend on land and natural resources for their subsistence. 36

37

38 39

Ibid., para. 207–​211. These determinations confirmed the line of reasoning developed in an earlier decision by the African Commission. See African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication No. 276/​2003, Decision of 25 November 2009. The Court referred to Article 26 of the undrip in relation to Article 14 of the African Charter and to Article 23 of the undrip in relation to Article 22 of the African Charter. See African Court on Human and Peoples Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/​2021, Judgment of 26 May 2017, para. 126 and 209. United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/​r es/​73/​165 (2018). The Declaration was adopted with 121 votes in favour, 8 votes against and 54 abstentions. See https://​www.un.org/​en/​ga/​73/​resolutions.shtml.

30  3

Dam-de Jong

The Right to a Decent Environment and Access to Natural Resources40

The right to freely dispose of natural resources as an aspect of peoples’ right to self-​determination contained in identical Article 1(2) of the icescr and the iccpr includes a prohibition to deprive peoples of their means of subsistence. In light of the evolution of the right to self-​determination as being applicable in the relationship between states and their constituent peoples, this prohibition arguably has relevance for how states exercise sovereignty over their natural resources. At the very least, the obligation to exercise permanent sovereignty over natural resources for the well-​being of the people must be interpreted as prohibiting governments to undertake projects that deprive communities of their means of subsistence. This prohibition is translated in procedural obligations as discussed in the previous section, but also in more substantive obligations, notably not to deny communities access to natural resources necessary to support their livelihood. Furthermore, it is argued that exercising sovereignty for the well-​being of the people also entails positive obligations to provide peoples and individuals access to natural resources and to protect the environment. These obligations are discussed in the current section. The most direct references to rights of access to natural resources in international legal instruments can be found in the (non-​binding) UN declarations on the rights of indigenous peoples and on the rights of peasants. Where the previous section discussed procedural rights for these communities as a way to secure their right to dispose of their lands and natural resources, both declarations also formulate substantive rights. Directly relevant substantive rights contained in the Declaration on the Rights of Indigenous Peoples include a right for indigenous peoples not to be forcibly removed from their lands and territories, a right ‘to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities’ as well as a right ‘to own, use, develop and control the lands, territories and resources that they possess’.41 The Declaration on the Rights of Peasants formulates a right for peasants and other people working in rural areas ‘to have access to and to use in a sustainable manner the natural 40 41

This section occasionally borrows from D.A. Dam-​de Jong and S. Wolters, ‘Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ilc’, (2020) Goettingen Journal of International Law 10 (1), 111. United Nations Declaration on the Rights of Indigenous Peoples, Annex to UN General Assembly Resolution 61/​295 (2007), Articles 10, 20(1) and 26(2).

Sovereignty as Responsibility

31

resources present in their communities that are required to enjoy adequate living conditions’.42 In both declarations, the principal rationale for providing such rights seems to be to strengthen the legal position of the communities as owners and users of land and natural resources. Human rights bodies have furthermore developed express connections between access to natural resources and the enjoyment of human rights in their practice. In its General Comment on the Right to Food, for instance, the cescr framed the right to food as a right to have access to adequate food, implying an obligation not to take any measures that result in preventing such access […] to ensure that enterprises or individuals do not deprive individuals of their access to adequate food […] [and to] pro-​actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security.43 It furthermore referred to land rights as well as sustainable management and use of natural resources as being relevant for securing the right to food.44 Likewise, the cescr recognized a right to have access to safe, sufficient and affordable water as being essential for the realization of the right to an adequate standard of living (Article 11) and the right to health (Art. 12).45 Furthermore, the Human Rights Committee, in its General Comment No. 36 on the right to life, stated that ensuring access to ‘essential goods and services’ such as food and water was part of the measures that states should take to protect the right to life.46 Both human rights bodies have built on these statements in their country-​specific practice. The Human Rights Committee, for instance, in its views regarding Teitiota v New Zealand, expressly considered whether the state had fulfilled its obligation to provide access to potable water as a factor relevant for

42 43 44 45 46

United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/​r es/​73/​165 (2018), Article 5. cescr, General Comment No. 12 on the right to adequate food (art. 11), UN Doc. E/​C.12/​ 1999/​5 (1999), para. 15. Ibid., para. 25 and 26. cescr, General Comment No. 15 (2002) on the right to water, UN Doc. E/​C.12/​2002/​11 (2003), para. 37. Human Rights Committee, General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc ccpr/​C/​g c/​36 (2018), para 26.

32 

Dam-de Jong

the protection of the right to life.47 Likewise, the cescr consistently examines access of communities to essential natural resources, such as land and water. In its 2020 concluding observations regarding Guinea, for instance, the cescr expresses its concerns about the effects of mining operations on the environment and the health of local communities. It recommends to the state party to ‘step up its efforts to guarantee the quality of water sources, including by establishing the liability of companies and individuals involved in mining activities that lead to the pollution of water sources’.48 Relevant practice of regional bodies focuses primarily on indigenous peoples. Examples include the Inter-​American Court’s judgment in the 2005 Yakye Axa Community and the 2017 Ogiek judgment by the African Court concerning forced evictions of indigenous peoples. In both cases, the human rights bodies considered the connection between access to lands and natural resources for these peoples and the protection of relevant human rights, including the rights to life and to property. Very importantly, the Inter-​American Court determined that ‘generating minimum living conditions that are compatible with the dignity of the human person and of not creating conditions that hinder or impede it’ are core obligations for the state pursuant to the right to life.49 These developments are strongly connected to the recognition in international human rights law of a right to a healthy environment, whether derived from existing human rights or as an autonomous human right. The practice of human rights bodies shows a gradual evolution in recognizing such a right to a healthy environment. At the international level, this right has been recognized as inherent to the enjoyment of other human rights.50 For example, the Committee on Economic, Social and Cultural Rights (cescr) stated that the right to health formulated in Article 12 of the icescr includes a healthy environment as an ‘underlying determinant’ of health.51 The Human Rights Committee furthermore recognized in its General Comment No. 36 on the right to life that states’ duty to protect life implies that they ‘should take appropriate 47 48 49 50 51

Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2728/​2016, UN Doc. ccpr/​C/​127/​D/​ 2728/​2016 (2020), para. 9.8. cescr, Concluding observations on the initial report of Guinea, UN Doc. E/​C.12/​g in/​c o/​ 1 (2020), para. 16 and 17(d). IACtHR, Case of the Yakye Axa Indigenous Community v. Paraguay, Judgment of 17 June 2005, para. 162. D. Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights Have Been Recognised’ 35 Denver Journal of International Law & Policy (2006) 1, 129, 129. cescr, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12 of the icescr), UN Doc E/​C.12/​2000/​4, 11 August 2000, para 4.

Sovereignty as Responsibility

33

measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity.’52 Environmental degradation has been listed among these general conditions as giving rise to threats to life.53 Moreover, the Committee stated that ‘[e]‌nvironmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’,54 thereby framing environmental degradation as a direct threat to the right to life. In light of these interconnections, the Committee suggested that states’ obligations pursuant to the right to life should be informed by their obligations under international environmental law and vice versa.55 Relevant obligations mentioned by the Committee include sustainable use of natural resources, conducting environmental impact assessments as well as various forms of cooperation with other states to prevent environmental harm.56 The Committee applied this reasoning in the case Portillo Cáceres v. Paraguay, where it held that the right to life may be violated if states fail to take appropriate measures in relation to environmental pollution.57 A similar trend is discernable among regional human rights bodies. In the African and Inter-​American system substantive rights to a satisfactory and healthy environment have been recognized,58 whereas in the European system it was determined that environmental degradation or damage may violate the enjoyment of other human rights.59 The Ogoniland decision of the African 52

Human Rights Committee, General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc ccpr/​C/​g c/​36 (2018), para 26. 53 Ibid. 54 Ibid, para 62. 55 Ibid. 56 Ibid. 57 Human Rights Committee, Portillo Cáceres v. Paraguay, Communication No.2751/​2016, UN Doc ccpr/​C/​126/​D/​2751/​2016, Concluding observations of 9 August 2019, para 7.3. See on these developments G. Le Moli, ‘The Human Rights Committee, Environmental Protection and the Right to Life’, (2020) International & Comparative Law Quarterly 69(3), 735. 58 For the Inter-​American system, see Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (adopted 17 November 1988) oas Treaty Series No. 69. For the African system, see Article 24 of the African Charter on Human and Peoples’ Rights. 59 These include Articles 2, 6, 8, 10 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 unts 221. Relevant case law of the European Court for Human Rights includes Dubetska and others v. Ukraine App No 30499/​03 (echr, 10 February

34 

Dam-de Jong

Commission on Human and Peoples’ Rights was the first to elaborate on the right to a healthy environment. The Committee interpreted Article 24 of the African Charter on Human and Peoples’ Rights, which formulates a right to a satisfactory environment to impose ‘clear obligations upon a government’.60 More specifically, according to the Commission, it ‘requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.61 Another notable development concerns the 2017 Advisory Opinion of the Inter-​American Court on Human Rights on the ‘Environment and Human Rights’.62 In this Advisory Opinion, the Court framed the right to a healthy environment as both a derivative and an autonomous right. It furthermore determined that the content and the scope of the right to life must be interpreted through international environmental law. These developments should be approached with due caution, as the majority reflect best practices or standards rather than hard obligations for states. This is especially so when positive action is required by states to protect the environment and to secure access to natural resources. Nonetheless, these developments are significant, as they underline that states’ obligation to protect human rights should be made effective through the implementation of their obligations under international environmental law. This implies first and foremost that states should use their natural resources in a sustainable way so as to prevent environmental degradation and to secure continued access for communities to the natural resources that they need for their basic subsistence. Furthermore, it is relevant to note that the Human Rights Committee and the Inter-​American Court embrace extraterritorial human rights obligations for states. This is where the merging of international human rights law and international environmental law produces the most revolutionary effects, as the obligation for states under international environmental law to take appropriate measures to prevent significant transboundary damage to the environment provides a hook to extend the state’s jurisdiction under international human rights law to human beings outside that state’s territory on the basis 2011) para 105; López-​Ostra v. Spain (1995) 20 ehrr 277, para 51; and Guerra v. Italy (1998) 26 ehrr 357, para 60. 60 African Commission on Human and Peoples’ Rights, Social and Economic Rights Action Center, Center for Economic and Social Rights v. Nigeria, Communication 155/​96, Decision adopted in October 2001, para. 52–​55. 61 Ibid. 62 Inter-​American Court of Human Rights, Environment and Human Rights, Advisory Opinion oc-​23/​17 requested by the Republic of Colombia, Inter-​American Court of Human Rights Series A No. 23 (2017).

Sovereignty as Responsibility

35

that they are affected by the state’s activities. This extension of states’ responsibility is revolutionary in two respects. From a substantive perspective, it has long been recognized that the right for states to exercise permanent sovereignty over their natural resources must be balanced with a responsibility not to cause significant transboundary damage to the environment.63 However, the recent practice seems to go beyond this by cautiously recognizing that states may also bear responsibility for damage caused by their corporations operating abroad.64 From a procedural perspective, this recent practice opens the door for transboundary claims by individuals and communities for environmental damage that directly affects the enjoyment of their human rights. 4

Conclusions

This chapter has set out several developments demonstrating a turn to a more human rights-​oriented conceptualization of the principle of psnr. Most importantly, these developments have strengthened the position of current -​and indirectly also future -​generations as the beneficiaries of the principle of psnr and they have reconfigured ‘peoples’ as holders of the right to freely dispose of natural resources. These developments show that a state’s right to exercise sovereignty over its natural resources is increasingly subject to obligations towards communities and individuals within its own population and –​ tentatively –​towards individuals and communities living in other states. Ultimately, the recent trends stretching the scope of jurisdiction and state responsibility also raise more fundamental questions about the exercise of sovereignty. In a world characterized by increased interdependence, a move towards a system of shared responsibility to protect the integrity of ecosystems for all becomes inevitable, especially where this concerns the regulation of international business transactions and their effects on the environment. Nico Schrijver himself has contributed to the developments set out in this chapter in the various capacities he has held throughout the years, including as a member of the cescr, as a special rapporteur and chair of several ila 63

64

See for instance Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, [2010] icj Rep. 14, para. 101, where the International Court of Justice articulates that a state ‘is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’. For a more detailed analysis, see D.A. Dam-​de Jong and S. Wolters, ‘Through the Looking Glass: Corporate Actors and Environmental Harm Beyond the ILC’, (2020) Goettingen Journal of International Law 10 (1), 111.

36 

Dam-de Jong

committees on sustainable development and of course as a leading academic on the topic. I have had the privilege of being able to develop myself sustainably under his mentorship, starting as his student assistant in 2004 and culminating in the defense of my doctoral dissertation in 2013. Nico has since remained a great source of inspiration for me and I am confident that his work will continue to inspire both current and future generations of scholars.

­c hapter 3

Non-​State Actors and Human Rights Obligations Perspectives from International Investment Law and Arbitration Eric De Brabandere and Larissa van den Herik 1 Introduction1 The interplay between human rights and international investment law and arbitration is without doubt one of the most contentious issues surrounding the contemporary regulation of foreign investment.2 They seem indeed, at first glance, to be relatively separate fields of international law and traditionally, international investment treaties were silent on issues of human rights. While the vast majority of international investment treaties do not mention human rights, states have since recently effectively included references to human rights norms in their treaties. Also, several recent cases have taken up human rights of foreign investors as part of a counterclaim raised by the host state of the foreign investment, thus showing an increased infiltration of human rights into investment law and arbitration. The interconnectedness between human rights and international investment law and arbitration is a relatively recent field of enquiry, both on the academic and policy level. But the role and responsibility of corporations in respecting human rights when they invest or operate other activities abroad, often grouped under the umbrella of ‘corporate social responsibility’ (csr) has been on the international agenda for a long time. The (relatively) recent attention given to the human rights aspects of foreign investment in the specific 1 Eric de Brabandere is Professor of International Dispute Settlement and Director, Grotius Centre for International Legal Studies, Leiden University; Attorney-​at-​Law (Belgium). Larissa van den Herik is Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden University. This chapter is in parts based on research previously published as E. De Brabandere, ‘Human Rights and Foreign Direct Investment’, in M. Krajewski and R. T. Hoffmann (eds.), Research Handbook on Foreign Direct Investment (2018), 619–​645. 2 For a discussion of recent discussions on the policy level, including in relation to human rights aspects of international investment law, see A. Roberts and T. St. John, ‘UNCITRAL and ISDS Reforms: Agenda-​Widening and Paradigm-​Shifting’ (20 September 2019), available at https://​ www.ejiltalk.org/​uncitral-​and-​isds-​reforms-​agenda-​widening-​and-​paradigm-​shifting/​.

© Koninklijke Brill NV, Leiden, 2021 | D

38 

DE BRABANDERE AND VAN DEN HERIK

context of international investment law and arbitration has to be seen not only as a consequence of recent treaty and arbitral practice, but also as being on a continuum with this broader csr debate. Contrary to general international law, foreign investors are –​as non-​state actors –​key protagonists in international investment law and arbitration, since they are the main beneficiaries of the rights contained in international investment treaties. The very result of an international investment treaty is that foreign investors are given certain substantive rights under that treaty,3 coupled (in most cases) to the possibility to initiate a claim against the host states of the investment for violations of those rights. One of the specific features of investment law and arbitration indeed is that foreign investors are in fact able to directly bring a claim against the host state for breaches of the obligations that the host state has entered into with the home state of the investors. That dispute settlement relationship makes it particularly attractive to consider the extent to which such disputes may not only revolve around the obligations of the host state but also of the investor, and in particular investor obligations in respect of human rights. At the same time, the specific nature of international investment law and arbitration, in which foreign investors (individuals and corporations) play a major role, makes transpositions of the general csr debate to this field not straightforward. It is nonetheless beyond doubt that investors operating in a foreign state may themselves be bound by certain human rights obligations existing mainly under the domestic laws of the host state in which the activity takes place, but also, sometimes, under the legislation of their home state based on a certain form of extraterritoriality.4 While such questions fall under the general issue of how to hold international corporations accountable for human rights violations, there is a recent tendency in investment agreements to add specific human rights-​related obligations of foreign investors.5 The precise impact of 3 We do not here intend to engage in the debate on whether investors in fact benefit from direct rights under investment treaties or if they are beneficiaries of states’ obligations. See on this, notably, M. Paparinskis, ‘Investment Treaty Arbitration and the (New) Law of State Responsibility’, (2013) 24(2) European Journal of International Law 617. 4 On the applicability of human rights to foreign investors under domestic law, see E. De Brabandere, ‘Human Rights and Foreign Direct Investment’, in M. Krajewski and R. T. Hoffmann (eds.), Research Handbook on Foreign Direct Investment (2018), 619–​645. On the extraterritorial effect, see E. De Brabandere and M. Hazelzet, ‘Corporate Responsibility and Human Rights –​Navigating between International, Domestic and Self-​regulation’, in Y. Radi (ed.), Research Handbook on Human Rights and International Investment Law (2018). 5 See, amongst others: United Nations Economic Commission for Africa and African Union, Draft Pan-​African Investment Code, UN Doc. E/​e ca/​c oe/​35/​18; African Union Doc. au/​ stc/​f mepi/​e xp/​1 8(ii) (26 March 2016). For a recent survey, see N. Diamond, ‘2019 in

Non-State Actors and Human Rights Obligations

39

such provisions will without doubt become clearer in the years to come, as such provisions are likely to proliferate, and to that extent, they probably are the starting point of an evolution in which investor rights are increasingly coupled to investor obligations in the field of human rights and the protection of the environment. In this chapter, we will first discuss the position of foreign investors, as non-​ state actors, in international investment law and arbitration (section 2). This is key not only to understand the question whether foreign investors are bound to respect human rights law when operating investments abroad, but also, and perhaps most importantly, to assess the contours and limits of the debate on the human rights obligations of foreign investors. We will next address the question whether human rights obligations directly impose obligations on foreign investors as a matter of international law (section 3). While much has already been written on the subject, the recent decision of the Arbitral Tribunal in Urbaser v. Argentina has somehow revived this debate in the specific context of investment law arbitration and thus merits attention. Thirdly, we will address the effect of the insertion of clauses concerning the obligations of foreign investors in investment treaties (section 4). 2

Foreign Investors as Non-​State Actors in International Investment Law and Arbitration

In order to better and fully understand the way in which international investment law and arbitration interconnects with human rights, it is important to first briefly explain and map the specificity of the field before turning to how, in theory and practice, human rights (can) play a role in international investment arbitration. In recent decades, the number of dispute settlement mechanisms, and the number of disputes settled via existing institutionalized mechanisms (international courts and tribunals or arbitration institutions) have substantially increased, a phenomenon often termed ‘the proliferation of judicial institutions’.6 Within this development, it is important to point out that several of Review: International Investment Agreements and Human Rights’, Kluwer Arbitration Blog (8 February 2020), available at http://​arbitrationblog.kluwerarbitration.com/​2020/​02/​08/​2019-​ in-​review-​international-​investment-​agreements-​and-​human-​rights/​. 6 E. De Brabandere, ‘Pragmatism in International Law: Non-​State Actors and International Dispute Settlement’, in J. d’Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on Non-​State Actors in International Law (2011), 342–​359.

40 

DE BRABANDERE AND VAN DEN HERIK

these bodies grant standing to non-​state actors, in particular individuals and corporations.7 This has principally been noticed in the area of international investment law and arbitration.8 In those proceedings, individuals have been given the right to bring claims directly against a state, for claims related to investment disputes as defined in the instrument containing the consent of the states to have such disputes settled directly between the investor and the host states of the investment. Besides newly created mechanisms which grant individuals and corporations direct standing before an international judicial body, the majority of disputes settled through arbitration in the past decades concerned disputes between a state and a non-​state entity. A brief look at the activities of the International Centre for Settlement of Investment Disputes (icsid),9 the most used forum for the settlement of investment disputes, and the Permanent Court of Arbitration (pca) illustrate this point very clearly. The recent statistics of the caseload of icsid show a massive increase in the number of investor-​state arbitrations starting in the late 1990s with 35 new registered cases in 2020.10 As of 1 January 2020, icsid had registered a total number of 745 cases. The total number of interstate arbitrations in which the pca acted as a registry amounted to 199 in 2019, of which 49 were initiated in that year.11 Of the total number of pca-​administered cases in 2019, four cases were purely interstate arbitrations, while 125 were treaty-​based investor-​state arbitrations. But these figures, except from showing a trend and hinting at the quantitative importance of investor-​state disputes in contemporary international dispute settlement, tell us little about the legal mechanism employed to initiate 7 8

9

10 11

C. P. Romano, ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle’, (1999) 31(4) New York University Journal of International Law and Politics 709, at 711–​751. At the same time, the increased access of non-​state actors to international dispute settlement has been visible also in various other international forums under which individuals can directly bring claims against states, such as the Claims Resolution Tribunal for Assets Deposited in Swiss Banks, the German Forced Labour Compensation Programme, the Holocaust Victim Assets Programme, the UN Compensation Commission and the Iran-​US Claims Commission. See for an overview H. M. Holtzmann and E. Kristjánsdóttir (eds.), International Mass Claims Processes: Legal and Practical Perspectives (2007). The International Centre for Settlement of Investment Disputes (icsid) was created by the 1965 Washington Convention or icsid Convention (Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 575 unts 159, entered into force on 14 October 1966). icsid, Caseload Statistics (2020–​1), available at https://​icsid.worldbank.org/​resources/​ publications/​icsid-​caseload-​statistics. Permanent Court of Arbitration (pca), Annual Report 2019, at 10, available at https://​ docs.pca-​cpa.org/​2020/​03/​7726c41e-​online-​pca-​annual-​report-​2019-​final.pdf.

Non-State Actors and Human Rights Obligations

41

such disputes. And those underlying mechanisms are of fundamental importance to fully grasp the way in which investment law and arbitration interacts with the human rights aspects of foreign investment, and the limits thereto. The genealogy of granting foreign investors procedural and substantive rights indeed is key to understanding both the possibility and limits of the human rights aspects of investor-​state relations. 2.1 Substantive Rights of Foreign Investors The majority of investment treaties contain relatively similar standards or norms geared towards the protection of foreign investors, which find their origins (mostly) in customary norms dating back to the late 19th century and early 20th century.12 Contemporary treaties for instance require investors and investments to be accorded fair and equitable treatment (with important differences in formulations), (full) protection and security, very often also national treatment, most favoured nation treatment, they prohibit direct and indirect expropriations unless certain strict conditions are met, and they also contain other clauses related to transfer of funds, transparency, and compensation for losses owing to war, armed conflict, revolution, a state of national emergency and other exceptional circumstances.13 Investment treaties frequently also contain so-​called ‘umbrella clauses’, to the effect that states parties to the investment treaty take on the obligation (at the treaty level) to respect any other obligations they entered into with the foreign investor at the domestic level.14 Such obligations are contracted between the states parties to the investment treaty and are in principle inter-​state obligations: one state commits to treat foreign investors of the other state(s) who invest in the latter state in a certain way. But these inter-​state obligations in effect amount to rights for foreign investors15 –​such as the right to be treated fairly and equitably, or the right not the be expropriated without compensation. The operation of investment treaties and the granting of such rights in fact very much resemble the human rights system, in which individuals are granted rights under human

12 13 14 15

See K. J. Vandevelde, ‘A Brief History of International Investment Agreements’, (2005) 12(1) U.C. Davis Journal of International Law & Policy 157–​194. A. Reinisch (ed.), Standards of Investment Protection (2008). See e.g., Art. 10 of the Switzerland Model bit (1995), available at https://​investmentpolicy. unctad.org/​international-​investment-​agreements/​treaty-​files/​2853/​download (accessed 10 July 2020). On the question whether investors in fact benefit from direct rights under investment treaties or if they are beneficiaries of states’ obligations, see the references in note 3.

42 

DE BRABANDERE AND VAN DEN HERIK

rights treaties and, sometimes, also the capacity to file claims against states for violation of these rights.16 However, the protection of foreign investment is not the objective of the treaty as such; rather, the objective of the treaty is broader, i.e. the promotion of foreign investment and capital flows between two or more states.17 The investment protection provisions and the access to arbitration for foreign investors usually provided in international investment treaties are in fact merely a means to achieve this goal. This is an important aspect of investment treaties, since this explains the silence, generally, of international investment treaties on issues of human rights.18 Therefore, the application of human rights as part of the applicable law is not always straightforward –​especially if we are dealing with treaty-​based claims, as we will explain later. From a procedural perspective also, the jurisdiction of investment tribunals does not always allow for the consideration of human rights aspects of the disputes. This is mainly the consequence of the specific design of investment treaties. 2.2 Procedural Rights of Foreign Investors A clear distinction between the substantive rights granted to private parties and the ability to bring a claim for the violation of that right needs to be made. The mere fact that contemporary investment treaties contain standards of treatment, which create rights to investment protection, does not in and of itself create a right to initiate a claim for alleged breaches of these rights directly against the host state. As cogently noted by Brigitte Stern in her dissenting and concurring opinion in the Impregilo case: it is indeed not because a State has given its consent to another State to grant some substantive rights to the investors of that State that it automatically flows from such a consent that the State also gives its consent to the foreign investors to allow the latter to sue the State directly in an international arbitration. For such a right to come into existence, a specific 16 17 18

E.-​U. Petersmann, ‘Human Rights and International Trade Law: Defining & Connecting the Two Fields’, in T. Cottier, J. Pauwelyn, and E. Bürgi (eds.), Human Rights and International Trade (2005), 29–​94. J.W. Salacuse, The Law of Investment Treaties (2009), Ch. 4. A search on the unctad’s iia Mapping Project shows that out of the 2,577 mapped investment treaties, only 92 mention of ‘corporate social responsibility’, and similar figures apply to mentions of ‘health and environment’, and ‘labour standards’ in investment treaties. See http://​investmentpolicyhub.unctad.org/​IIA/​mappedContent#iiaInnerMenu (accessed 23 June 2020).

Non-State Actors and Human Rights Obligations

43

consent has to be given inside the treaty, and the State can shape this consent as it sees fit, in providing for the basic conditions under which such a consent is given, in other words, the conditions under which such an ‘offer to arbitrate’ is made to the foreign investors.19 The direct access of individuals and corporations to the international forum is not necessarily the direct and automatic consequence of granting direct substantive rights to private parties. The standing of individuals and corporations in international investment arbitration is inspired mainly by a perceived fear of lack of independence of domestic courts and tribunals20 and the ineffectiveness of the customary system of diplomatic protection in modern foreign investment operations.21 Customarily, disputes between foreign investors and a state, especially when the state acts in the exercise of its sovereign authority, should be brought before the domestic courts of that state. Only in exceptional cases are private claims of individuals settled at the international level, namely through the exercise of diplomatic protection.22 In those circumstances, the individual is first requested to exhaust all local remedies available in the host state. The home state of the individual can then ‘espouse the claim’ of its national and bring a claim under international law against the other state. However, the state of the individual’s nationality is not acting in the rights of the individual but is instead acting in its own right. In other words, the conflict is transformed into an interstate conflict. The investor has no right to diplomatic protection and is thus left to the discretion of the state of its nationality. To avoid this rather cumbersome and uncertain procedure, investment treaties habitually grant investors the right to directly bring a claim against the host state before an international arbitration tribunal. Investor access to investment treaty arbitration is, simply put, the withdrawal of the procedural barriers imposed by the rules on diplomatic protection, through the explicit consent by states which allow the foreign investor of one state to bring a claim directly against another state without the former state’s intervention. The 19

Impregilo S.p.A. v. Argentine Republic, icsid Case No. arb/​07/​17, Concurring and Dissenting Opinion of Professor Brigitte Stern, 21 June 2011, para. 53. 20 C. McLachlan, L. Shore and M. Weiniger, International Investment Arbitration. Substantive Principles, (2008), 61–​2; Z. Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’, (2004) 74(1) British Yearbook of International Law 151, at 214. 21 E. De Brabandere, Investment Treaty Arbitration as Public International Law (2014), 60. 22 International Law Commission (ilc), Draft Articles on Diplomatic Protection, International Law Commission, Report on the work of its fifty-​eighth session (1 May to 9 June and 3 July to 11 August 2006), General Assembly Official Records, Sixty-​First Session, Supplement No. 10, UN Doc. A/​61/​10, 1006, at 26.

44 

DE BRABANDERE AND VAN DEN HERIK

overall majority of investment treaties provide for direct access to investor-​ state arbitration, with certain variations as to the conditions and waiting periods.23 For the purposes of this chapter, we will not engage with the question of the direct or indirect character of the rights that foreign investors derive from investment treaties offering direct investment arbitration; a question which is still subject to debate.24 What is important is the rationale behind direct investment arbitration: the use of the conventional available dispute settlement mechanisms, in this case the domestic courts of the host state coupled with discretionary diplomatic protection, is considered of limited usefulness for settling investment disputes. The direct access to international arbitration thus provides the possibility for the investor to have access to an effective international remedy while at the same time offering an interesting investor-​ friendly environment for the host state. Before turning to the obligations of foreign investors under human rights law, a brief note should be made regarding the limited jurisdiction of investment tribunals. In investment treaty arbitration, the consent of the states, expressed through the signature of bilateral and multilateral investment treaties, is given only for claims directly related to investments, and therefore cannot be extended to any types of conflict between the investor and the home state. The scope of jurisdiction indeed is defined and limited by the agreement of the states party to the treaty granting jurisdiction, or in the event of consent otherwise expressed, by that instrument. A tribunal thus has no competence in matters which fall outside the responsibility given to the tribunal by the parties. An investment tribunal, which has jurisdiction over a certain dispute, cannot extend this jurisdiction to other categories or types of disputes between the parties. Investment agreements contain provisions delimiting the scope of application of the treaty and thus the jurisdiction of tribunals established under that treaty. If the jurisdiction of the tribunals is limited to ‘investment disputes’, the scope of the tribunal’s jurisdiction does not extend to other types of disputes. This principle has been illustrated in the Biloune v. Ghana case.25 The Tribunal noted that its jurisdiction under the agreement between the

23 24 25

See amongst others the Model bit s of Canada, the UK, Chile, France, South Africa, Switzerland and the US, available at http://​investmentpolicyhub.unctad.org/​IIA/​ IiasByCountry#iiaInnerMenu (accessed 10 July 2020). See E. De Brabandere, Investment Treaty Arbitration as Public International Law (2014), 19. Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana (uncitral), Award on Jurisdiction and Liability, 27 October 1989, (1994) 95 International Law Reports 184.

Non-State Actors and Human Rights Obligations

45

investor and the host state was limited to disputes relating to an investment.26 The Tribunal held that it is therefore not competent to deal with every human rights violation of the foreign investor, but only to the extent that such a violation affects the investment and thus becomes an investment dispute.27 Here we should also point to the decision of the Tribunal in Urbaser v. Argentina,28 discussed in detail below (section 3.3). The Tribunal accepted jurisdiction over the human rights counterclaim based on a broadly formulated investor-​state arbitration clause. When investment treaties contain dispute settlement clauses which cover ‘all disputes relating investments’ without any limitation to disputes limited to the rights contained in the treaty, a human rights-​based counterclaim by the state can be accepted by an arbitral tribunal.29 It is for this reason that the Tribunal in Urbaser allowed Argentina to present a human rights counterclaim against the foreign investor because such claim is ‘in connection with an investment’.30 However, opening up the possibility, as a matter of jurisdiction, for an arbitral tribunal to hear a human rights counterclaim does not, as explained in the previous paragraphs, allow a transformation of the investment dispute into a human rights one. 3

The Obligation of Foreign Investors to Respect Human Rights

Since the beginning of the 21st century, numerous avenues for increasing the accountability of corporations have been explored in the legal literature and several international instruments have been adopted in an effort to regulate the conduct of non-​state actors, in particular the conduct of business entities in the human rights sphere.31 As explained before, the discussion of foreign investors’ obligations has to be seen as a continuation of that debate. We will 26 27 28 29 30 31

Ibid., 188. Ibid., 203. Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, icsid Case No. arb/​07/​26, Award, 8 December 2016. See P. Dumberry and G. Dumas-​Aubin, ‘When and How Allegations of Human Rights Violations can be Raised in Investor-​State Arbitration’ 2012 (13) The Journal of World Investment & Trade 360. Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, icsid Case No. arb/​07/​26, Award, 8 December 2016, paras 1143 ff. See for an overview L. J. van den Herik, and C. J. Letnar, ‘Regulating Corporations under International Law: From Human Rights to International Criminal Law and Back Again’, (2010) 8(3) Journal of International Criminal Justice 725–​743; E. De Brabandere and M. Hazelzet, ‘Corporate Responsibility and Human Rights –​Navigating between International, Domestic and Self-​regulation’, in Y. Radi (ed.), Research Handbook on

46 

DE BRABANDERE AND VAN DEN HERIK

here briefly outline the current understanding of human rights obligations of foreign corporations in order to better understand the relation between a state’s human rights and investment obligations discussed in the next sections. Indeed, one can only clearly analyse the connection between human rights and investment law when the respective responsibilities of both the host state and the foreign investor in this respect are explicitly delineated. Host State Obligations and the Principled Absence of Direct Corporate Obligations under under International Human Rights Law Traditionally, human rights obligations are addressed to states and have been intended principally to regulate the relations between individuals and the state. The state not only bears a duty to respect the human rights of the individuals on its territory, but also has a duty to ensure that private actors, including foreign investors, do not violate those rights.32 This has been explicitly included in the 1966 International Covenant on Civil and Political Rights (iccpr), which gives states the obligation ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant’.33 Human rights thus have, strictly speaking, no direct horizontal effect, in the sense of being applicable, as a matter of international law, in relations between individuals and/​or corporations. The essential public/​private divide of human rights has also been dealt with by the UN Human Rights Committee in its General Comment No. 31, in which the Committee explicitly emphasized that the primary obligations remain with the state: 3.1

The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would

32 33

Human Rights and International Investment Law (2018); ajil Unbound Symposium, Soft and Hard Law on Business and Human Rights (2020), Vol. 114, at 163–​191. C. Tomuschat, Human Rights: Between Idealism and Realism (2003), 309; J. H. Knox, ‘Horizontal Human Rights Law’, (2008) 102(1) ajil 1–​47. Art. 2 of the International Covenant on Civil and Political Rights (adopted and opened for signature, ratification and accession by General Assembly Res. 2200A (xxi) of 16 Dec. 1966).

Non-State Actors and Human Rights Obligations

47

impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.34 Notwithstanding the absence of international human rights obligations for corporations,35 there is a visible trend towards such responsibility,36 but so far, this trend has not resulted yet in any firm confirmation of a direct international law-​based responsibility for corporations. Several committees of human rights conventions have nonetheless recognized to a certain extent the ‘responsibility’, in a broad sense, of corporations in the field of human rights. An example is the Committee on the Rights of the Child, which recognized first that at present ‘there is no international legally binding instrument on the business sector’s responsibilities vis-​à-​vis human rights’.37 It then nonetheless stated that ‘duties and responsibilities to respect the rights of children extend in practice beyond the State and State-​controlled services and institutions and apply to private actors and business enterprises’ and that the state is responsible for ensuring that corporations meet their responsibilities to respect children’s rights.38 A second example is the Committee on Economic, Social and Cultural Rights which has likewise in its General Comment No. 14 of 2000 affirmed that state parties should ‘prevent third parties from violating the right [to the highest attainable standard of health, protected under article 12 of the International Covenant on Economic, Social and Cultural Rights] in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international

34

UN Human Rights Committee General Comment No. 31 [80] –​The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. ccpr/​C/​21/​Rev.1/​ Add. 13 (2004), para. 8. 35 The Human Rights Council adopted Resolution 26/​9 in 2014 to set up an Intergovernmental Working Group (igwg) to elaborate an international legally binding instrument ‘to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’ (Human Rights Council Res. 26/​9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc. A/​h rc/​26/​9L.22/​Rev.1 (2014), para. 1). So far, however, no agreement seems to exist as to the precise contours of such a treaty. 36 N. Jaegers, ‘Sustainable development goals & business and human rights discourse: Ships passing in the night?’, (2020) 42(1) HRQ 145–​173. 37 Committee on the Rights of the Child, General Comment No. 16 (2013) –​On State Obligations regarding the Impact of the Business Sector on Children’s Rights, UN Doc. crc/​C/​g c/​16 (2013), para. 8. 38 Ibid.

48 

DE BRABANDERE AND VAN DEN HERIK

law’.39 In practical terms, the International Covenant on Economic, Social and Cultural Rights (icescr) is of more direct interest to international investment law and arbitration than other human rights instruments, such as the iccpr. The rights contained in the former, such as the right to health and the derived right to water, are indeed more likely to be impacted by foreign investment than those contained in the iccpr, because of the specific economic and social nature of the rights contained in the icescr. Especially with regard to corporations, the Committee on Economic, Social and Cultural Rights stated that ‘States Parties should also take steps to prevent human rights contraventions abroad by corporations that have their main offices under their jurisdiction, without infringing the sovereignty or diminishing the obligations of the host States under the Covenant’.40 More recently, the Committee issued its General Comment No. 24 on 10 August 2017 in relation to the obligations of states under the icescr in the context of business activities.41 General Comment No. 24 however remains focused in essence on the obligations of states rather than obligations of foreign investors under international law. The main principles contained in the Comment indeed relate to situations under which states can be held responsible for the conduct of business entities under the customary law on state responsibility,42 the obligation for states to adopt certain measures to ensure that business activities do not infringe economic, social and cultural rights,43 and the extraterritorial application of such obligations.44 With the exception of the principled statement that ‘under international standards, business entities are expected to respect Covenant rights regardless of whether domestic law exist or are fully enforced in practice’,45 which was inspired by the UN Guiding Principles on Business and Human Rights (ungp),46 one cannot find 39 Committee on Economic, Social and Cultural Rights (cescr), General Comment No. 14 (2000) –​The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/​C.12/​2000/​ 4 (2000), para. 39. 40 cescr, Statement on the obligations of States parties regarding the corporate sector and economic, social and cultural rights*, UN Doc. E/​C.12/​2011/​1 (2011), para 5. 41 cescr, General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities*, UN Doc. E/​C.12/​g c/​24 (2017). 42 Ibid., para. 11. 43 Ibid., para. 14. 44 Ibid., para. 25. 45 Ibid., para. 5. 46 UN Human Rights Council, ‘Report of the Special Representative of the Secretary-​ General on the Issue of Human Rights and Transnational Corporations and other

Non-State Actors and Human Rights Obligations

49

any reference to direct international human rights obligations of business entities. The Comment, however, has drawn attention mainly because of the statements it makes in relation to investment treaty-​making,47 which we will discuss in the next section. Soft Law Regulation of Business and Human Rights and the Absence of Direct International Responsibility The current situation is therefore that the primary obligation to respect and ensure respect for human rights lies with, mainly, the host state. Foreign investors cannot be said to be the direct holders of human rights obligations under international law. The obligations foreign investors have, are essentially based on domestic law. There is however a large quantity of non-​binding instruments, such as the Global Compact, the International Labour Organization (ilo) Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (tdp), the oecd Guidelines for Multinational Enterprises, and most recently the ungp.48 The ungp are based on the ‘Protect, Respect and Remedy’ Framework which rests on three pillars, including ‘the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved’.49 The ungp are however couched in non-​binding terms –​ there is no reference to any direct application of international human rights obligations to corporations under international law. It is not premised on the idea of a direct human rights responsibility of corporations under international law. At the same time, discussions are proceeding on the adoption of a binding instrument. The Human Rights Council adopted Resolution 26/​9 in 2014 to set up an Intergovernmental Working Group (igwg) to elaborate an international legally binding instrument ‘to regulate, in international

3.2

47

48 49

Business Enterprises, John Ruggie, Guiding Principles on Business and Human Rights –​ Implementing the United Nations “Protect, Respect and Remedy” Framework’, UN Doc. A/​h rc/​17/​31 (2011) (ungp). D. Desierto, ‘The ICESCR as a Legal Constraint on State Regulation of Business, Trade, and Investment: Notes from CESCR General Comment No. 24 (August 2017)’, ejil:Talk!, 13 September 2017, available at www.ejiltalk.org/​the-​icescr-​as-​a-​legal-​constraint-​on-​state-​ regulation-​of-​business-​trade-​and-​investment-​notes-​from-​cescr-​general-​comment-​no-​24-​ august-​2017/​ (accessed 21 December 2017). ungp, supra note 35. Ibid., para. 6.

50 

DE BRABANDERE AND VAN DEN HERIK

human rights law, the activities of transnational corporations and other business enterprises’.50 There initially was much discussion on the scope of the instrument, the nature of the rights to be covered –​ranging from a focus on gross human rights violations to an approach including all human rights –​and the nature of the corporations the treaty will focus on. While the Human Rights Council resolution limited the potential addressees of a legally binding instrument to ‘all business enterprises that have a transnational character in their operational activities’,51 others, notably ngo s, have pleaded to extend the scope to all types of business enterprises, consistent with the oecd Guidelines, the 1977 ilo Tripartite Declaration of Principles Concerning Multinational Enterprises and the UN Guiding Principles on Business and Human Rights.52 A revised draft was released in July 201953 and serves as the basis for intergovernmental negotiations in the course of 2020 and beyond. The 2019 revised draft is intended to apply generally to all ‘business activities’ of corporations, ‘including particularly but not limited to those of a transnational character’54 and to ‘all human rights’.55 In relation to substantive obligations, it is notable that the ‘legally binding instrument’ mostly addresses the responsibility of corporations through obligations of states to take certain measures in order to implement corporate responsibility at the domestic level.56

50 51 52

53

54 55 56

Human Rights Council Res. 26/​9 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, UN Doc. A/​h rc/​26/​9L.22/​Rev.1 (2014), para. 1. Ibid., footnote 1. Human Rights Council, Open-​ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Written Statement submitted by Social Service Agency, Global Policy Forum, Geneva Infant Feeding Association, Friend of the Earth Europe, cidse, non-​governmental organizations in special consultative status, First Session, Geneva, UN Doc. A/​h rc/​wg.16/​1/​n go/​ 9 (2015), para. ii (1); Human Rights Council Res. 26/​9, supra note 39, para. 2. See Open-​ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Chairmanship Revised Draft 16.7.2019 –​Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises, available at https://​www.ohchr.org/​Documents/​HRBodies/​HRCouncil/​WGTransCorp/​OEIGWG_​ RevisedDraft_​LBI.pdf (accessed 23 June 2020). Ibid., Art. 3(1). Ibid., Art. 3(3). See, notably, ibid., Arts. 4–​6.

Non-State Actors and Human Rights Obligations

51

Urbaser v. Argentina and the Human Rights Obligations of Foreign Investors In light of general principles set out in the previous two sections, it is with some surprise that the tribunal in Urbaser v. Argentina engaged in a rather extensive discussion on whether foreign investors, as corporations, can and do have any human rights responsibilities under international law, and whether corporations can be regarded as subjects of international law. The discussion of the tribunal has to be seen in light of the counterclaim brought by Argentina,57 whereby Argentina in essence claimed that the foreign investor, acting as shareholder of the Argentinian company agba s.a. holding a concession of water distribution and sewage in Buenos Aires, had breached its investment obligations under the concession contract. The Tribunal assessed whether the foreign investor had any ‘obligations’ in respect of human rights law. It first accepted as a matter of principle that bit s generally can contain rights of host states and corresponding obligations for foreign investors.58 On the specific question of whether the foreign investor held any human rights obligations, the tribunal engaged in a discussion on the question whether private companies are subjects of international law. While the tribunal noted that the principle of the ‘subjectivity’ of private companies ‘has lost its impact and relevance’,59 it nonetheless proceeded to explain that foreign investors can invoke rights from general international law. It pointed in this respect to the treaty’s mfn clause, which contains the principles that more favourable treatment derived from general international law or other investment treaties can be relied on by the foreign investor. This, of course, is not contentious: that foreign investors derive certain rights from treaties, and from general international law, is well established.60 On the obligations side, the tribunal however made some surprising statements. It first explained the non-​contentious principle that ‘international law accepts corporate social responsibility as a standard of crucial importance for companies operating in the field of international commerce’, referring to the abovementioned ungp.61 It then however moved to assert that this implies a commitment to comply with human rights in the framework of their international activities, which in

3.3

57 58 59 60 61

Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, icsid Case No. arb/​07/​26, Award, 8 December 2016, paras. 1156ff. Ibid., para. 1187. Ibid., para. 1194. H. E. Kjoss, Applicable Law in Investor-​State Arbitration: The Interplay between National and International Law (2013). Urbaser v. Argentina, supra note 46, para. 1195.

52 

DE BRABANDERE AND VAN DEN HERIK

turn would imply that it can ‘no longer be admitted that companies operating internationally are immune from becoming subjects of international law’.62 Then, the Tribunal noted that the several initiatives taken on the international level in fact are not ‘on their own, sufficient to oblige corporations to put their policies in line with human rights law’, and that a contextual approach is necessary to assess the existence of any non-​state human rights obligations.63 Moving to the specific issue of the right to water, the Tribunal engaged in an analysis as to whether that specific right contains any obligation on the investor’s part. Such a right, according to the Tribunal, is well-​recognized as a human right, and contains a clear corresponding duty on states to ensure access to clean drinking water for all individuals on their territory.64 Then, in a rather strange move, the Tribunal explained that, in fact, what Argentina argues, is that the right to water incumbent upon Urbaser, as shareholder of agba, was based on the concession contract, and not on international law, and that the investment treaty itself did not contain any obligation for the foreign investor to respect the human right to water.65 It then confirmed that ‘the human right to water entails an obligation of compliance on the part of the state, but it does not contain an obligation for performance on part of any company providing contractually required service. Such obligation would have to be distinct from the state’s responsibility to serve its population with drinking water and sewage services’.66 The Tribunal then explained that generally, the right to water does not directly apply to private companies, absent any domestic obligation to that effect.67 Finally, in the specific case at hand, the Tribunal found that the concession contract in fact contained no obligation to ensure the right to water.68 This decision calls for a couple of observations, as far as the general discussion on human rights obligations of foreign investors is concerned. Firstly, one can wonder why the tribunal engaged in a discussion about the ‘subjectivity’ of private companies. For several years now, the whole question of who is a subject of international law, or merely an object, has been said to be circular or even obsolete and thus in fact irrelevant.69 Experience has shown that it is

62 Ibid. 63 Ibid. 64 Ibid., para. 1205. 65 Ibid., paras. 1206–​7. 66 Ibid., para. 1208. 67 Ibid., para. 1210. 68 Ibid., paras. 1211–​20. 69 De Brabandere, supra note 2, at 342–​359.

Non-State Actors and Human Rights Obligations

53

possible to confer obligations on entities even if they are not formally recognized as ‘subjects’. Considering the essentially circular reasoning of the notions of ‘subjectivity’ and ‘capacity to have rights and obligations’, one can envisage corporations being given direct obligations under international law, similar to the obligations of individuals under international criminal law.70 ‘Envisaging’, however, does not imply that such a direct responsibility already exists. As discussed, the various instruments adopted so far, have not succeeded in –​ or were simply not aimed at –​creating a direct international obligation for corporations. The Tribunal in fact comes, indirectly, to the same conclusion when it explains that the several initiatives taken on the international level are not ‘on their own, sufficient to oblige corporations to put their policies in line with human rights law’, and that a contextual approach is necessary to assess the existence of any non-​state human rights obligation.71 In this respect also, one can wonder why the tribunal referred to the 1948 Universal Declaration of Human Rights (udhr), the icescr, and the ilo’s Tripartite Declaration of Principles,72 since the first and third are non-​binding instruments, and in the case of the first two, the references to the fact that all organs of society should respect human rights does not imply any legal obligation under international law to that effect. This is moreover implied in the mentioned General Comment No. 24 of the Committee on International Economic, Social and Cultural Rights. 4

Investor Obligations in Investment Treaties

Although, as mentioned, human rights obligations for foreign investors are only rarely included in investment treaties themselves, there are several recent examples of investment treaties containing clauses which refer to the obligations of foreign investors in the area of human rights. Yet the idea of incorporating, in an investment treaty, references to human rights obligations of foreign investors, or more broadly csr, is not new. A notable attempt to do so was the Multilateral Agreement on Investment (mai) proposed by the Organisation

70

71 72

J. H. Knox, ‘Horizontal Human Rights Law’, (2008) 102(1) AJIL 19, on criminal corporate responsibility see also L. J. van den Herik and E. van Sliedregt, International Criminal Law and the Malabo Protocol, in S. Dewulf (ed.), La [CVDW] Liber Amicorum Chris van den Wyngaert (2017), 511–​529. Urbaser v. Argentina, supra note 46, para. 1195. Ibid., paras. 1197–​8.

54 

DE BRABANDERE AND VAN DEN HERIK

for Economic Cooperation and Development (oecd).73 The draft of the –​ now defunct –​mai contained a provision which was based on the ‘association’ of the treaty with the oecd Guidelines on Multinational Enterprises to that agreement.74 Since then, several treaties have incorporated human rights obligations of foreign investors through clauses which contain obligations for states to ‘encourage’ investors operating in their territory to voluntarily comply with csr standards, including human rights.75 Such clauses have no real obligatory effect in practice, at least from the perspective of the foreign investor. A more recent, and for the purposes of this chapter more interesting, type of clauses contains clear references to obligations of foreign investors. The following examples, which remain relatively limited in number compared to the bulk of existing investment treaties,76 show a gradual inclusion and further refinement of provisions relating to the human rights obligations of foreign investors. One of the first treaties to include such a clause is the 2006 Southern African Development Community Protocol on Finance and Investment (sadc Protocol).77 The sadc Protocol was signed in 2006 and entered into force in 2010. Article 10 of the Annex on ‘Co-​Operation on Investment’ stipulates that ‘foreign investors shall abide by the laws, regulations, administrative guidelines and policies of the Host State.’ A similar clause was included in the Investment Agreement for the Common Market for Eastern and Southern Africa (comesa) Common Investment Area (comesa Investment Agreement), which was signed in 2007, but has not (yet) entered into force.78 Article 13 of the comesa Investment Agreement, entitled ‘investor obligation’ also imposes a generally worded obligation on comesa investors and their investments to ‘comply with 73 74 75 76 77 78

The Multilateral Agreement on Investment: Draft Consolidated Text, oecd Doc. No. daffe/​m ai(98)7/​r ev1 (1998), available at www.oecd.org/​daf/​mai/​pdf/​ng/​ng987r1e.pdf (accessed 29 August 2017). Ibid., at 96. See, e.g., Art. 810 of the Canada-​Peru Free Trade Agreement (2009), available at http://​ international.gc.ca/​trade-​commerce/​trade-​agreements-​accords-​commerciaux/​agr-​acc/​ peru-​perou/​fta-​ale/​background-​contexte.aspx?lang=eng (accessed 29 August 2017). M. M. Mbengue and S. Schacherer, ‘The ‘Africanization’ of International Investment Law: The Pan-​African Investment Code and the Reform of the International Investment Regime’ (2017), 18(3) The Journal of World Investment & Trade 414–​448. Southern African Development Community Protocol on Finance and Investment (signed 18 August 2006, entered into force 16 April 2010), available at https://​www.sadc.int/​files/​ 4213/​5332/​6872/​Protocol_​on_​Finance_​_​Investment2006.pdf (accessed 9 July 2020). Investment Agreement for the comesa Common Investment Area (signed 23 May 2007, not yet in force) (comesa Investment Agreement), available at http://​investmentpolicyhub.unctad.org/​Download/​TreatyFile/​3092 (accessed 29 August 2017).

Non-State Actors and Human Rights Obligations

55

all applicable domestic measures of the Member State in which their investment is made’. A further sophistication of such provisions can be found in the 2012 Southern African Development Community Model bit (sadc Model bit),79 which however has not yet been used in practice. It contains a provision which confirms and further develops the principles set forth in the sadc Protocol and the comesa Investment Agreement. Article 15.1 of the sadc Model bit establishes the duty for investors ‘to respect human rights in the workplace and in the community and State in which they are located’, and further provides that ‘investors and their investments shall not undertake or cause to be undertaken acts that breach such human rights. Investors and their investments shall not assist in, or be complicit in, the violation of the human rights by others in the Host State, including by public authorities or during civil strife.’ A more specific provision in relation to labour standards is also included,80 as is a provision prohibiting investors to operate their investment ‘in a manner inconsistent with international environmental, labour, and human rights obligations binding on the Host State or the Home State, whichever obligations are higher’.81 These provisions were again adopted and further specified in the recently negotiated Draft Pan-​African Investment Code (paic).82 The draft has not been adopted so far, nor has it been used in practice. Moreover, not much information on the negotiation of the draft is publicly available, with the exception of the March 2016 draft text.83 The draft text contains no less than six provisions dealing with investor obligations. Besides provisions dealing with corporate governance obligation of investors, socio-​political obligations, bribery, and the use of natural resources,84 two provisions deal with human rights obligations of foreign investors in particular. Article 22 of the paic, titled ‘Corporate social responsibility’, provides amongst others for an obligation for foreign investors to ‘abide by the laws, regulations, administrative guidelines and policies of the host State’. Article 24 in turn deals with ‘Business ethics and human rights’, and sets several principles that 79 80 81 82 83 84

South African Development Community, ‘SADC Model Bilateral Investment Treaty Template with Commentary’ (2012), available at www.iisd.org/​itn/​wp-​content/​uploads/​ 2012/​10/​SADC-​Model-​BIT-​Template-​Final.pdf (accessed 29 August 2017). Ibid., Art. 15.2. Ibid., Art. 15.3. United Nations Economic Commission for Africa and African Union, Draft Pan-​African Investment Code, UN Doc. E/​e ca/​c oe/​35/​18; African Union Doc. au/​s tc/​f mepi/​e xp/​ 18(ii) (26 March 2016) (paic). For a full discussion of the draft, see Mbengue and Schacherer, supra note 65, at 414–​448. paic, supra note 71, Arts. 19, 20, 21 and 23.

56 

DE BRABANDERE AND VAN DEN HERIK

should govern compliance by investors with business ethics and human rights: (a) Support and respect the protection of internationally recognized human rights; (b) Ensure that they are not complicit in human rights abuses; (c) Eliminate all forms of forced and compulsory labor, including the effective abolition of child labor; (d) Eliminate discrimination in respect of employment and occupation; and (e) Ensure equitable sharing of wealth incurred from investments.85 India also has recently adopted a similar approach in its 2016 Model bit.86 The model treaty has not yet been used in practice either, but it contains several articles which contain the obligations of foreign investors in more detail. Article 12 of the treaty contains a general obligation for foreign investors to respect the domestic laws of the host state. It then contains a non-​exhaustive list of more specific legislation, such as labour laws, and legislation relating to human rights.87 Article 13 is quite unique compared to the previous examples, and relates to the responsibility of the home state of the investor, and the mandatory submission of civil liability actions against the investor in its home state for ‘acts, decisions or omissions made in the Home State in relation to the Investment where such acts, decisions or omissions lead to significant damage, personal injuries or loss of life in the Host State’.88 The home state of the investor in turn is to ‘ensure that their legal systems and rules allow for, or do not prevent or unduly restrict, the bringing of court actions on their merits before their domestic courts’ for such civil liability actions.89 This clause is in line with the possibility for states, based on their legislative authority, to adopt legislation to regulate the extraterritorial activities of their nationals –​ both physical and legal persons. It departs from the general rule however in that the possibility under general international law is transformed into a treaty obligation. Several discussed examples mainly operate as a confirmation of the obligations of foreign investors to comply with domestic law, including human

85 86 87 88 89

paic, supra note 71, Art. 24. India Model bit (2016), available at https://​www.mygov.in/​sites/​default/​files/​master_​ image/ ​ M odel%20Text%20for%20the%20Indian%20Bilateral%20Investment%20 Treaty.pdf (accessed 29 August 2017). Ibid., Art. 12.1 (i) and (v). Ibid., Art. 13.1. Ibid., Art. 13.2.

Non-State Actors and Human Rights Obligations

57

rights law, which as such is a non-​controversial proposition. Foreign investors indeed are under such an obligation since the operation of an investment in the territory of states implies that the investment and the investor fall under the jurisdiction of that state. Yet, some provisions go further than this. As can be observed from Article 24 of the piac, there are several references to the obligations for foreign investors to respect –​generally –​international human rights law. However, that specific provision, on the face of it, is not couched in mandatory terms, and rather sets the principles that investors ‘support and respect the protection of internationally recognized human rights’ as a norm that should ‘govern compliance by investors with business ethics and human rights’. The inclusion of clauses referring to the obligations of foreign investors under domestic law operate as an international confirmation of the –​mainly –​ domestic obligations of foreign investors. The main reason –​from a litigation perspective –​to include such provisions, is to facilitate the presentation of counterclaims by the host state. This is also why some of the treaties discussed above contain, in parallel, specific clauses on counterclaims. The comesa agreement for instance provides that ‘a Member State against whom a claim is brought by a comesa investor under this Article may assert as a defence, counterclaim, right of set off or other similar claim, that the comesa investor bringing the claim has not fulfilled its obligations under this Agreement, including the obligations to comply with all applicable domestic measures or that it has not taken all reasonable steps to mitigate possible damages’.90 A similar provision is found in the sadc Model bit.91 The paic is much more detailed in this respect. While providing for an optional arbitration, subjected to ad hoc consent of the parties to the dispute, the paic provides not only for the plain right for states to initiate counterclaims based on breaches of the paic, but also that: Where an investor or its investment is alleged by a Member State party in a dispute settlement proceeding under this Code to have failed to comply with its obligations under this Code or other relevant rules and principles of domestic and international law, the competent body hearing such a dispute shall consider whether this breach, if proven, is materially relevant to the issues before it, and if so, what mitigating or off-​setting effects

90 91

comesa Investment Agreement, supra note 67, Art. 28.9. sadc Model bit, supra note 68, Arts. 19 and 29.19.

58 

DE BRABANDERE AND VAN DEN HERIK

this may have on the merits of a claim or on any damages awarded in the event of such award.92 The legal bases of potential counterclaims imitated by states are not only broad, there is also an express provision to the effect that any so established dispute settlement body has the obligation to appraise the relevance of breaches by the investor of the paic, and to determine any effect the breach has on the merits of the claim or the damages. The Indian Model bit contains similar language.93 In light of the Urbaser case, in which the Tribunal had accepted a human rights-​based counterclaim, one might wonder whether such clauses are necessary. So far, the Urbaser case is the first and one of the only cases in which a decision was rendered discussing in detail a human rights counterclaim by a state. There will certainly be other tribunals which will follow this decision. At the same time, some tribunals may depart from the decision of the Urbaser tribunal to accept a counterclaim as a matter of admissibility, jurisdiction or merits based on the specific formulation of an applicable treaty, as has been the case in several decisions prior to Urbaser.94 Express treaty language in the examples mentioned thus clarifies the situation.95 Before concluding, we need to add that several international investment treaties contain so-​called ‘legality requirements’ or ‘in accordance with the law’ provisions, i.e. provisions which require from the foreign investor to comply with the laws of the host state. A typical example can be found in Article 1 of the French Model bit, which contains in its definition of investment the following phrase: It is understood that those investments are investments which have already been made or may be made subsequent to the entering into force of this Agreement, in accordance with the legislation of the Contracting 92 93 94

95

paic, supra note 71, Art. 43. Indian Model bit, supra note 75, Art. 14.11. Certain Tribunals have considered that the remoteness between the counterclaim –​ grounded in domestic law or in a contract –​and the initial claim constitutes a reason to decline to exercise competence over the counterclaim. See e.g. Saluka Investments B.V. v. The Czech Republic, uncitral, Decision on Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004, paras. 39–​40 and Sergei Paushok, cjsc Golden East Company and cjsc Vostokneftegaz Company v. The Government of Mongolia, uncitral, Award on Jurisdiction and Liability, 28 April 2011, paras. 684 ff. See E. De Brabandere, ‘Human Rights Counterclaims in Investment Treaty Arbitration’, (2017) 2 Revue Belge de Droit International, 591.

Non-State Actors and Human Rights Obligations

59

Party on the territory or in the maritime area of which the investment is made.96 The general idea behind such clauses is to bar the application of the treaty to investments made in breach of the host state’s legislation,97 and as a consequence bar an arbitral tribunal from establishing jurisdiction to hear a claim based on an ‘illegal’ investment.98 Tribunals have in the past years read such a requirement into investment treaties even in the absence of such clause. The general reasoning behind this practice results from the application of the general principle99 that investments acquired in breach of the host state’s law cannot benefit from protection under a treaty.100 While much has already been written on the subject,101 there is still little consensus on the exact contours of such requirement. It is of course not the purpose here to engage in the exercise of delimiting such contours, but the important point is that it has been argued that legality requirement clauses can function ‘as an entry point for human rights argumentation for the host state’s defense so that investments made in 96

Article 1, Draft Agreement Between the Government of the Republic of France and the Government of the Republic of (…) on the Reciprocal Promotion and Protection of Investments, available at https://​investmentpolicy.unctad.org/​international-​investment-​ agreements/​model-​agreements (accessed 31 May 2017). 97 See for a discussion: Jarrod Hepburn, ‘In Accordance with Which Host State Laws? Restoring the ‘Defence’ of Investor Illegality in Investment Arbitration’ (2014) (5) Journal of International Dispute Settlement 531. 98 See for instance Fraport ag Frankfurt Airport Services Worldwide v. Philippines, icsid Case No. arb/​03/​25, Award, 16 August 2007. See also Inceysa Vallisoletana v. El Salvador, in which the Tribunal’s jurisdiction was predetermined by the requirement of an investment made in accordance with Salvadoran law. It applied the principle of ‘good faith’ as part of the national laws of the host state. The Tribunal, applying the principle of good faith as part of Salvadorian Law, explained that: ‘El Salvador gave its consent to the jurisdiction of the Centre, presupposing good faith behavior on the part of future investors. […] By falsifying the facts, Inceysa violated the principle of good faith from the time it made its investment and, therefore, it did not make it in accordance with Salvadoran law. Faced with this situation, this Tribunal can only declare its incompetence to hear Inceysa’s complaint, since its investment cannot benefit from the protection of the bit’ (Inceysa Vallisoletana, S.L. V. Republic of El Salvador, icsid Case No. arb/​03/​26, Award, 2 August 2006, para 230). 99 Michael Polkinghorne and Sven-​ Michael Volkmer, ‘The Legality Requirement in Investment Arbitration’ (2017) 34(2) Journal of International Arbitration 155. 1 00 See e.g. Plama Consortium Limited v. Bulgaria, icsid Case No. arb/​03/​24, Decision on Jurisdiction, 8 February 2005, paras 143–​144. 101 See for a recent article and overview of literature on the subject: M. Polkinghorne and S.-​ M. Volkmer, ‘The Legality Requirement in Investment Arbitration’, (2017) 34(2) Journal of International Arbitration 155.

60 

DE BRABANDERE AND VAN DEN HERIK

violation of applicable international human rights law fall outside the isds jurisdiction.’102 However, so far, case law applying human rights as part of a ‘legality requirement’ is non-​existent. 5

Conclusion

The interaction between human rights and international investment law is complex. Globalization of the world economy has resulted in an expansion of corporate activity in foreign states, which have privatized many areas of the public sector and of public activity and transferred the management of such activities to foreign investors. As a result, the impact of foreign investors on the public health and human rights generally has increased. Foreign investors, moreover, very often benefit from protection against acts of states via different standards of treatment in order to facilitate such investments, which may lead to clashes between the investor or host state’s human rights obligations, and the obligations states have towards the foreign investor derived from investment treaties. The primary responsibility for human rights resides with the host state, which has the obligation to ensure respect for human rights on its territory. There are, at this stage, no international law instruments providing for a direct international responsibility for foreign investors for breaches of international human rights law. Such obligations, in essence, are still obligations of states towards individuals under their jurisdiction. This of course does not imply that human rights cannot be of relevance in investment disputes. However, the limited jurisdiction of investment tribunals, derived from an applicable international investment treaty, implies that human rights disputes as such between foreign investors and states cannot be brought before investment tribunals. Arbitral tribunals established under a treaty generally have a competence limited to investment disputes. This, however, does not imply that human rights issues are absent from investment disputes, because human rights aspects related to an investment dispute can, depending on the arbitration clause, be brought before an investment tribunal. Then, the human rights obligations of foreign investors, mainly on the level of the domestic law of the host state, can be considered by an arbitral tribunal, even absent an explicit treaty-​clause

102 V. Kube and E.-​ U. Petersmann, ‘Human Rights Law in International Investment Arbitration’, eui Working Paper No law 2016/​02, available at http://​cadmus.eui.eu/​handle/​1814/​38985, p. 20.

Non-State Actors and Human Rights Obligations

61

incorporating such obligations. This will in practice most often be the case in the event of a counterclaim brought by the host state. One of the most recent evolutions in this respect has been the inclusion of human rights obligations in investment treaties. The clauses included in the model treaties discussed above, however, have not yet been inserted in subsequently negotiated investment treaties, nor have the treaties discussed entered into force. But, recent drafts such as the paic may be a first step towards an increased focus on not only the rights, but also the obligations of foreign investors, and will facilitate the consideration of such obligations by investment tribunals.

­c hapter 4

Global Threats and Fragmented Responses

Climate Change and the Extra-​Territorial Scope of Human Rights Obligations Helen Duffy The world has never seen a threat to human rights of this scope.1 The impacts of climate change challenge traditional notions in international law, most notably those relating to the principle of territorial sovereignty …2

∵ 1

Introduction

Climate change is the quintessential global threat –​the challenge per excellence to our ‘global commons’.3 As the Dutch Supreme Court noted in December 2019, warming of the earth beyond 2°C, and ‘according to more recent insights to no more than 1.5°C, will jeopardise the lives, welfare and living environment of many people all over the world, including in the Netherlands. Some of these consequences are already happening right now’.4 Just as ‘the warming of the 1 United Nations High Commissioner for Refugees (unhcr), ‘Global Update at the 42nd Session of the Human Rights Council Opening Statement by UN High Commissioner for Human Rights Michelle Bachelet Office of the High Commissioner for Human Rights’, 9 September 2019, available at: www.ohchr.org/​EN/​NewsEvents/​Pages/​DisplayNews. aspx?NewsID=24956&LangID=E. 2 N. Schrijver, ‘The Impact of Climate Change: Challenges for International Law’, in Fastenrath et al, From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (2011), 1278 at 1278. 3 G. Hardin, ‘Tragedy of the Commons’, (1963) 162 (3859) aaas 1243; and Gore, The Inconvenient Truth, in N. Schrijver, ‘Managing the global commons: common good or common sink?’, (2016) 37(7) Third World Quarterly 1252, at 1263. 4 The State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda [2019] Supreme Court of the Netherlands, Summary of the Decision available at: https://​www.escr-​net.org/​caselaw/​2020/​state-​netherlands-​ministry-​economic-​affairs -​and-​climate-​policy-​v-​stichting-​urgenda.

© Koninklijke Brill NV, Leiden, 2021 | D

Global Threats and Fragmented Responses

63

climate system is now unequivocal,’5 so too are its impact on the full range of civil political, economic, social and cultural rights, and the need for urgent proactive measures.6 As such, climate change is part of what Nico Schrijver described in 2016 as a ‘state of affairs regarding international areas of our planet and their natural resources popularly labelled the tragedy of the global commons’.7 Noting many problems and deficits in the legal landscape, including lack of effective international oversight or dispute settlement, he went on (in characteristically constructive tone) to explore whether we might view the situation as a ‘promise for the future rather than a tragedy,’ by seeing the global commons as ‘laboratories for innovative forms of global governance and international law making’?8 This resonates strongly in the context of climate change, in which international law is being employed as a key weapon of choice against impeding climate catastrophe. Some of the ‘promise’ Schrijver referred to can certainly be derived from the flurry of legal and political activity around the globe –​from the negotiating halls of the Paris Agreement,9 to the corridors of power where climate laws and plans are elaborated and implemented (however imperfectly), to the streets where the Extinction-​Rebellion movement protests, to the courtrooms of the world where the burgeoning practice of ‘climate justice’ litigation unfolds. Rights based climate litigation, through domestic courts and international human rights courts and bodies, has been a growth industry in recent years. Just in the year leading up to the publication of this book in honour of Nico Schrijver, judgement in the leading Urgenda case was handed down by the Dutch Supreme Court,10 followed by the Irish Friends of the Environment clg v. The Government of Ireland & The Attorney General in the Irish Supreme Court,11

5 6 7 8 9

10 11

Schrijver, n.2. Bachelet, n.1. N. Schrijver, ‘Managing the global commons: common good or common sink?’, (2016) 37(7) Third World Quarterly 1252, at 1252. ibid. In the Paris climate accord states agreed to the goals of limiting warming to well below 2 degrees Celsius above pre-​industrial levels, and to pursue efforts to limit the increase to 1.5 degrees, alongside ‘highest possible ambition, reflecting [their] common but differentiated (cbdr) responsibilities and respective capabilities, in the light of different national circumstances.’ (Art 4(3)). The State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda [2019] Supreme Court of the Netherlands. Friends of The Irish Environment clg v. The Government of Ireland, Ireland and the Attorney General [2019] iehc 747.

64 Duffy People v. Arctic Oil in the Norwegian Supreme Court,12 and the ‘Case of the Century’ in the Paris Administrative Tribunal.13 These were preceded by a slew of other cases globally, with varying results, from the Americas14 to Asia15 and beyond.16 An adverse decision by the Swiss Courts prompted one of a number of cases now pending on the international level, before the European Court of Human Rights (ecthr). While regional and international courts and bodies have yet to grapple fully with climate change in their contentious jurisdictions, the flow of national cases –​and international developments such as the first advisory opinion dedicated to human rights and environment,17 and General Comments by global human rights bodies –​are the harbingers of much more human rights litigation before supranational courts and bodies in the near future. The most important innovations in the ‘legal laboratory’ of responses to climate change must surely be the international climate-​specific accords, and it would be misplaced to expect litigation to be a primary driver of policy change in this field. But the resort to international human rights law (ihrl) and litigation does have a multi-​faceted role to play. ihrl is a relatively advanced and developed body of law, which in recent years has shown its ability to evolve in face of realities, giving rise to the growing recognition, for example, of a free-​ standing right to a healthy environment as an emerging right under ihrl which bolsters the work of environmental actors. Resort to ihrl has symbolic significance too, potentially shaping the narrative around climate change by focusing on how what can seem like abstract scientific concern affects real human beings and a host of their basic rights in concrete ways, already today. Crucially, seeing climate change through the human rights lens brings with it mechanisms of enforcement that do not exist under International Environmental

12 13 14

15 16 17

Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy, hr-​2020-​846-​J, Supreme Court of Norway. TA Paris, 1ère Chambre, 4ème section, 3 February 2021. One of many innovative examples, see Commonwealth v. Exxon Mobil Corp., Case No. 1984CV03333, Mass. Super. Ct. regarding the company’s alleged coverup of facts relating to climate change. The first Latin American case was lodged by de Justicia in Colombian courts in 2018. One of many egs see In re Court on its own motion v. State of Himachal Pradesh and others, [2013] cwpil No. 15 of 2010, National Green Tribunal of India. One source suggests to mid-​2019 there had been 1328 climate change cases worldwide: www.lse.ac.uk/​GranthamInstitute/​climate-​change-​laws-​of-​the-​world/​ and http://​ climatecasechart.com/​us-​climate-​change-​litigation/​. Inter-​American Court of Human Rights Advisory Opinion oc-​23/​17 of November 15, 2017 requested by the Republic of Colombia.

Global Threats and Fragmented Responses

65

Law (iel), on both national and international levels. It has implications for access to information,18 and participation in policy formulation.19 It provides a framework to hold states to account to their climate commitments benchmarked in the accords, while providing the flexibility to require them to go further to take additional necessary steps as scientific understanding evolves and climate realities shift.20 More broadly, it has been suggested that a human rights focus helps to promote the rule of law in this context: governments become directly accountable for their failure to regulate and control environmental nuisances, including those caused by corporations, and for facilitating access to justice and enforcing environmental laws and judicial decisions.21 It is also increasingly clear that the application of human rights law is replete with legal challenges.22 Schrijver wrote in 2011 that ‘the impacts of climate change challenge traditional notions in international law, most notably those relating to the principle of territorial sovereignty …’.23 This is true of ihrl too, and points to the issue at the heart of this chapter. While in principle human rights are universal, global, inherent in our common nature as human beings, the reality of controversy over the scope of applicability of ihrl tells a different story. In particular, over decades we have seen the slow, inconsistent and at times chaotic evolution of legal standards in relation to the question of the 18 19 20

21 22

23

Ireland’s case ultimately turned on access to information under domestic law. A. Boyle, ‘Climate Change, Sustainable Development, and Human Rights’ (2020) In Kaltenborn M., Krajewski M., Kuhn H. (eds) Sustainable Development Goals and Human Rights. Interdisciplinary Studies in Human Rights, vol 5. Springer, Cham. See Sn 2, positive obligations. This is crucial as evolving science indicates that even the Paris targets are already outdated. See eg the ipcc Special Report on Global Warming of 1.5C, which indicates that even at 1.5C there are serious risks to health, livelihoods, food security, water supply, human security and economic growth, and these risks increase further at 2C. 2C is also associated with irreversible impacts such as the loss of nearly all of the world’s corals. Supra n.17, 177. There are many of these –​including victim status and standing, jurisdiction, causation, the relationship between international climate change law on the hand and international human rights law on the other, the large number of potentially responsible States and private actors, and the massive scale of the impact. The territorial focus addressed in this chapter is just one. N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1278.

66 Duffy applicability of international human rights norms beyond states’ territorial borders. The thorny issue of the ‘scope’ of human rights treaties –​sometimes simply referred to as the ‘jurisdiction’ question or ‘extra-​territorial applicability’ (eta) –​has contributed to the development of divergent international and regional standards, as between (and sometimes within) systems. Yet, it is a crucial question upon which the applicability of ihrl, and its relevance to address key human rights challenges of our time, depends. In turn, if there is one issue that exposes the inadequacy of some of the more restrictive approaches to the jurisdiction question to date, it is the essentially global, transboundary nature of climate change. This chapter will briefly set out the relationship between ihrl and climate change, before honing in on the approach to eta of various courts and bodies to date, and their implications for climate change. How do approaches to the scope of applicability of human rights treaties, that have often been carved out case by case, context by context by different bodies, apply in the context of the essentially un-​territorial and transboundary nature of climate change? Do human rights obligations, including positive obligations of prevention that are crucial in this context, apply? The answers to these questions are not obvious in light of the fragmented development of jurisprudence, but they are crucial to whether ihrl can keep pace with reality and remain relevant to confront key global human rights challenges of our time. 2

Climate Change and Human Rights

Climate change is a global problem requiring urgent global solutions. The 2015 Paris Agreement recognises ‘the need for an effective and progressive response to the urgent threat of climate change on the basis of the best available scientific knowledge’.24 Addressing climate change is one of UN’s Sustainable Development Goals.25 In addition, growing attention has been directed to the profound and wide-​reaching impact on human rights. Recognition of the human rights implications of climate change is not, however, new. As far back as the year Nico Schrijver embarked on his legal studies at the University of Groningen, the 1972 Stockholm Declaration confirmed that an environment of a quality that permits a life of dignity and well-​being is a

24 25

Paris Agreement, Preamble. UN Department of Economic and Social Affairs Sustainable Development, Goal 13, available at: https://​sdgs.un.org/​goals.

Global Threats and Fragmented Responses

67

human rights issue.26 However it was not until 2008 that the Office of the UN High Commissioner for Human Rights (ohchr) published the first report on the relationship between climate change and human rights, noting the impact of ‘global warming … for the full range of human rights’.27 The report reminds us that the environment is a precondition to the enjoyment of human rights,28 just as human rights are ‘tools to address environmental issues, both procedurally and substantively’.29 In recent years, on the international and national spheres, it has been more widely and emphatically recognised that climate change is one of the most pressing contemporary challenges to rights.30 The Paris Agreement specifically refers to human rights in the preamble, calling on states to ‘respect, promote, and consider their respective obligations on human rights’ when taking action to address climate change.31 The UN Human Rights Council (unhrc) has recognised that climate change ‘has already had an adverse impact on the full and effective enjoyment of human rights enshrined in the Universal Declaration of Human Rights and other international human rights treaties’.32 In 2019, the Intergovernmental Panel on Climate Change (ipcc) highlighted the need for enhanced mitigation ambition in order to protect human rights.33 In the same year UN High Commissioner for Human Rights Michelle Bachelet offered the sobering reminder that: Climate change is a reality that now affects every region of the world. The human implications of currently projected levels of global heating are

26 27 28 29 30

31 32 33

United Nations General Assembly (unga), United Nations Conference on the Human Environment, UN Doc. A/​r es/​2994 (1972), Principle 1. ohchr, Climate Change and Human Rights, UN Doc. A/​h rc/​10/​61 (2009), para. 20. ohchr, Climate Change and Human Rights (2009), para. 16–​19. ohchr, Analytical Study on the Relationship between Human Rights and the Environment, UN Doc. A/​h rc/​19/​34 (2011), para. 8. unhrc, General Comment No. 36: Article 6: Right to life, UN Doc. ccpr/​C/​g c/​36 (2019), para. 62; unga, ‘Declaration of the United Nations Conference on the Human Environment’, UN Doc. A/​r es/​2994 (1972), para. 1; ohchr, ‘Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate Change and Human Rights’, UN Doc. A/​h rc/​10/​61 (2009). Paris Climate Agreement of 2015, Preamble. unhrc, ‘Human Rights and Climate Change’, UN Doc. A/​h rc/​r es/​41/​21 (2019), at 2. V. Masson-​Delmotte et al (eds.), Global warming of 1.5 °C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-​industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, Intergovernmental Panel on Climate Change (2019).

68 Duffy catastrophic. Storms are rising and tides could submerge entire island nations and coastal cities. Fires rage through our forests, and the ice is melting. We are burning up our future –​literally. […] The world has never seen a threat to human rights of this scope. This is not a situation where any country, any institution, any policy-​maker can stand on the sidelines. The economies of all nations; the institutional, political, social and cultural fabric of every State; and the rights of all your people –​and future generations –​will be impacted.34 While it has been noted with some force that the ‘UN human rights community is a late arrival at the climate change ball –​very late,’35 there is now evidence of a realisation of the human rights stakes across the United Nations.36 With regard to the nature of the rights and the obligations at stake, much of the litigation to date has focused on the civil and political rights enshrined in the European Convention for Human Rights (echr), the American Convention for Human Rights (achr) or the International Covenant on Civil and Political Rights (iccpr) –​in part as these rights have provided a basis for claims in the relevant systems. Important national litigation, including the Dutch Supreme Court’s decision in the Urgenda case, and others before Irish, Swiss, Norwegian and French courts,37 has largely been based on the right to life, to private and family life, and the right to a remedy before national courts.38 At the international level, the intersection between climate change and the range of human rights, including core non-​derogable rights, has been made clear. The unhrc, in diverse roles, has recognised the implications for the right to life. General Comment No. 36 of 2019 recognises climate change as among ‘the most pressing and serious threats to … the right to life’.39 In earlier decisions, such as e.h.p et al v. Canada, Vaihere Bordes and John Temeharo v. France and 34

35 36 37 38 39

unhrc, ‘Global update at the 42nd session of the Human Rights Council Opening Statement by UN High Commissioner for Human Rights Michelle Bachelet Office of the High Commissioner for Human Rights’ (2019), available at: https://​www.ohchr.org/​EN/​ NewsEvents/​Pages/​DisplayNews.aspx?NewsID=24956&LangID=E. A. Boyle, ‘Climate Change, Sustainable Development, and Human Rights’, in M. Kaltenborn, M. Krajewski, H. Kuhn (eds), Sustainable Development Goals and Human Rights (2020), 5 Interdisciplinary Studies in Human Rights, 171. This is seen in the work of multiple human rights bodies referencing climate change in general comments of international and regional bodies. See Sn. 2. The claims were framed in relation to articles 2, 8 and 13 echr as reflected in national law. In eg. The State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda [2019] Supreme Court of the Netherlands the right to a healthy environment under the Norwegian constitution was also at stake. unhrc, General Comment No. 36 n.30 para. 62.

Global Threats and Fragmented Responses

69

Lubicon Lake Band v. Canada, the unhrc has recognised that environmental pollution can threaten the right to life of present and future generations, and the livelihood of indigenous communities.40 In its recent decision on Teitiota v. New Zealand, it further recognised that ‘given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized’.41 The first Special Rapporteur on Human Rights and Environment, John Knox, has also noted the link to the core right to human dignity when he stated that ‘without a healthy environment, we are unable to fulfil our aspirations or even live at a level commensurate with minimum standards of human dignity’.42 Nico Schrijver in his writing emphasises the relatively more neglected issue of the direct impact on economic, social, and cultural rights (escr s) including ‘the rights to life, health, adequate housing, food, access to fresh water, property, and culture, to name just some fundamental rights in this category’.43 Several General Comments of the United Nations Committee on Economic, Social and Cultural Rights (cescr) on which Schrijver served for several years, have fleshed out the relationship between specific escr s and environmental protection, including water, food and health.44 More fundamentally still, the challenge that climate change poses to the very existence of states45 is reflected in the right of peoples to exist, the right to self-​determination and the right to culture.46

40

41 42 43 44 45 46

The decisions were based in part on Article 27 iccpr on minority rights. E. H. P. v. Canada, Communication No. 67/​1980, UN Doc ccpr/​C/​o p/​1 (1980), at 20; Mrs Vaihere Bordes and Mr John Temeharo v. France, Communication No. 645/​1995, U.N. Doc. ccpr/​C/​57/​D/​645/​ 1995 [1996]; Lubicon Lake Band v. Canada, Communication No. 167/​1984, U.N. Doc. Supp. No. 40 (A/​45/​40) [1990], at 1. unhrc Teitiota v. New Zealand, Views adopted by the Committee under Article 5(4) of the Optional Protocol, concerning Communication No. 2728/​2016, UN Doc. ccpr/​C/​127/​ D/​2728/​2016 [2020] para. 9.11. Special Rapporteur on Human Rights and the Environment, ‘About Human Rights and the Environment’, available at: https://​www.ohchr.org/​EN/​Issues/​Environment/​ SREnvironment/​Pages/​AboutHRandEnvironment.aspx. N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1290. See e.g. cescr General Comments No. 12 (food), No. 14 (health) and No. 15 (water). N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1283–​1286. T. Frere, C. Y. Mulalap & T. Tanielu, ‘Climate Change and Challenges to Self-​Determination: Case Studies from French Polynesia and the Republic of Kiribati’, (2020) 129 The Yale Law Journal 648, at 649; International Covenant on Economic, Social and Cultural Rights 1966, Article 15 on culture.

70 Duffy Given the urgent need for ambitious forward-​thinking political responses to this global problem, ‘participatory rights’, including access to information, the right to be consulted, and to participate in decision-​making are crucial. They form part of the ‘basic set of citizen rights to be involved in designing response measures to climate change.’47 Another critical part of the rights landscape is equality. While climate change may affect all of our rights, it is a brazen discriminator. Across the escr and civil and political rights spectrum, international bodies have highlighted the disproportionate impact of environmental harm on indigenous peoples, the elderly, children, socio-​economically disadvantaged, among others.48 Even this brief review shows that climate change is an issue implicating almost all rights, and epitomising the indivisibility of civil, political, social, economic and cultural rights. Underpinning this is also a growing trend towards recognition of an autonomous right to a healthy environment.49 Though to date there is still no universal human rights treaty recognising this right, it is enshrined in several regional treaties.50 The right also has significant recognition at the domestic level, being incorporated into the constitutions of more than 100 countries.51 Where not explicitly included in the iccpr or cescr, ‘a 47 48

49

50

51

N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1290. unga, Report of the Special Rapporteur on the Issue Of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/​73/​188 (2018), para. 22. See also International Labour Organization (ilo), ‘Indigenous Peoples and Climate Change: From victims to change agents through decent work’ (2017), at 7, available at: https://​www.ilo.org/​wcmsp5/​groups/​public/​-​-​-​dgreports/​-​-​-​gender/​documents/​publication/​wcms_​551189.pdf; cescr, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), UN Doc. E/​C.12/​2000/​4 (2000), para. 27 on the displacement of indigenous peoples from their traditional territory, linked to environmental degradation, and its deleterious effect on their health. Although there is some discussion as to scope and content, this has been defined as ‘the right to an ecologically balanced, sustainable, healthy, clean, or satisfactory environment that permits healthy living for human (and sometimes non-​human) entities on Earth’; L. J. Kotzé, ‘In Search of a Right to a Healthy Environment in International Law: Jus Cogens Norms’, in J. Knox and. Pejan (eds.) The Human Right to a Healthy Environment (2018), at 136. C. Rodríguez-​Garavito, ‘A Human Right to a Healthy Environment? Moral, Legal, and Empirical Considerations’, in J. Knox and R. Pejan (eds.) The Human Right to a Healthy Environment (2018), 159 at 161–​162. See Article 24 of the African Charter on Humans and Peoples Rights, Article 38 of the Arab Charter on Human Rights, Article 1 of the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters in Europe and Article 11.1 of the San Salvador Protocol in the Americas. D. Boyd, ‘Catalyst for Change: Evaluating Forty Years of Experience in Implementing the Right to a Healthy Environment’, in J. Knox and R. Pejan (eds.) The Human Right to a Healthy Environment (2018), 17 at 18.

Global Threats and Fragmented Responses

71

healthy environment’ has also been recognised as an ‘underlying determinant’ of other human rights.52 Likewise, as the ecthr found in Tatar v. Romania, the right to private and family life depends on states meeting their obligations to ensure ‘effective prevention of damage to the environment and human health’.53 More than perhaps any other issue, climate change also forces us to engage with how conduct now will have potentially devastating impacts in the future, underscoring the critical importance of these ‘positive obligations’ to secure ‘effective protection’ from damage to the environment and its impacts on human rights.54 Positive obligations to prevent harm are triggered where: (i) the state knew or should have known that (ii) there was a real, serious and foreseeable risk and (iii) the state failed to exercise due diligence in the adoption of necessary and appropriate measures reasonably available to it to prevent or protect from the risk. Their importance is underlined by the fact that, as noted by Nico Schrijver, it will often be extremely difficult to prove the attribution of climate related harm to the state,55 as required in ‘negative’ obligations cases. By contrast, positive obligations focus on duties to act in the face of risk. Positive obligations are flexible enough to adjust to require states to do what is ‘necessary,’ as well as feasible or ‘reasonable,’ to avert foreseeable risk,56 and this changes as science evolves, and as the capacity of states varies. Thus, as the Dutch Supreme court made clear, positive obligations under the echr may require states to go beyond regional targets where science indicates that these targets are insufficiently ambitious. At the same time, standards agreed in climate accords are likely to provide benchmarks for what can reasonably be expected of states under positive ihrl, thus bolstering the effectiveness of those commitments. Citing positive echr obligations, the Dutch Supreme Court in Urgenda found contracting states to have climate related obligations:

52

cescr, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’, UN Doc. E/​C.12/​2000/​4 (2000), para. 4. 53 ecthr Tatar v. Romania, Judgment, Application No. 67021/​01 [2009] para. 88. 54 1966 iccpr, Article 2; 1966 International Covenant on Economic, Social and Political Rights (icescr), Article 3. 55 N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011). As would be required for responsibility under ‘negative’ obligations for violations caused by their own conduct and contributions to climate change. 56 E.g. ecthr Öneryıldız v. Turkey, Judgment, Application No. 48939/​99 [2004] 657, para. 75; eto, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2013) Principles 13; Ioane Teitiota v. nz, Decision, Communication No 2728/​2016, hr Committee, 7 January 2020.

72 Duffy to take suitable measures if a real and immediate risk to people’s lives or welfare exists and the state is aware of that risk. … Each country is thus responsible for its own share [and] obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility.57 In an area where delay means irreversible harm, and perilous tipping points threaten, the role of preventive human rights obligations, alongside iel, is crucial in enabling the law to be timely, nimble and relevant. These developments in ihrl are of little consequence, however, if the law is deemed not to apply at all. Yet, as the arguments of parties to recent litigations illustrates, governments may seek to avoid the application of human rights protections by arguing that ihrl does not apply to protect persons from climate related risks beyond the state’s own borders.58 3

Comparative Approaches to Extra-​Territorial Applicability of ihrl

ihrl has wrestled with controversies regarding the scope of application of obligations, and when they extend beyond territorial borders, for decades. It is now clear and legally uncontroversial that obligations do extend beyond states borders, but when and according to what test? The starting point is of course the treaty provisions themselves. The echr and achr provide that states must secure the rights to ‘everyone within their jurisdiction’, while the iccpr refers to ‘all individuals within its territory and subject to its jurisdiction’, both raising the question what ‘jurisdiction’ means for this particular purpose. The African Charter and the icescr make no reference to jurisdiction or territory at all, but questions of scope still arise. One thing the treaties have in common is the failure to provide clear answers to the question of scope from a straightforward textual analysis. Human rights conventions must then be interpreted according to principles of interpretation that are broadly shared by human rights courts and bodies.59 These include an evolutive interpretation of treaties, as ‘living instruments’

57 58 59

The State of Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda [2019], Summary of the Decision, para. 5.7.5. See eg the Norwegian litigation where the Court of Appeal, citing the ‘jurisdiction clause’ in Article 1 echr, accepted the state’s arguments that the global consequences of climate change were beyond the scope of the state’s obligations under the echr. See discussion on principles of interpretation in H. Duffy, Trials and Tribulations, in Law Applicable to Armed Conflict (2020), p. 78.

Global Threats and Fragmented Responses

73

responsive to a changing world.60 Rights must be applied in a manner which renders them ‘practical and effective, not theoretical and illusory,’ so the treaty can fulfill its protective purpose without ‘vacuums of protection.’61 A contextual analysis in turn calls for an interpretation that takes into account the nature of the rights at stake and the context as a whole. A ‘holistic’ approach prompts reference to other areas of international law (including environmental law)62 as a guide to the interpretation of human rights treaties. There is also increasing ‘trans-​judicial dialogue’ between courts and bodies, which can ultimately contribute to the mutual influence of standards between systems, and which increases the relevance of a comparative view of approaches to our issue. The result is the rich and dynamic, but not always crystal clear and consistent, development of human rights norms. A review of practice reveals differences of approach between human rights courts and bodies in their interpretations of the ‘jurisdictional’ question. In general, approaches converge around the notion that rights apply in situations where the state is deemed to have exercised sufficient ‘effective control’. The knock-​on question, on which there is more divergence of approach, is however, control of what? Territory? The situation? The activities of their own agents or actions? Persons affected by their conduct, or simply their human rights? The case by case, issue by issue or context by context approach, has resulted in a patchwork legal framework, where this question has been answered differently among –​and sometimes within –​ human rights systems. The section that follows will sketch out a brief overview of developments before different bodies, and what they say about the scope of obligations in the context of evolving contemporary challenges such as climate change. 3.1 The European Court of Human Rights 3.1.1 echr: Effective Control of What? The handling of eta has been controversial and erratic before the ecthr, leading to the (under-​)statement that the Court has ‘not spoken with one voice’ on the issue and the more emphatic rejection of ‘[t]‌he morally and legally

60 61 62

R. Lawson, ‘A Living Instrument: The Evolutive Doctrine Some Introductory Remarks (2020), available at: https://​www.echr.coe.int/​Documents/​Speech_​20200131_​Lawson_​JY_​ ENG.pdf; Murillo v Costa Rica, Case no. 12.361, IACtHR (2012). ecthr Airey v. Ireland, Judgement, Application No. 6289/​73 [1979] 305 para. 24. See e.g. ecthr Demir v. Turkey, Judgement, Application No. 34503/​97 [2008]; ecthr Tatar v. Romania [2009], among other cases. See e.g. the interplay of IHRL and IHL, Duffy n.57.

74 Duffy untenable position of the Court on the jurisdictional threshold’ in particular cases.63 The Court’s consistent reiteration of the ‘essentially territorial’ scope of human rights obligations64 as its starting point has largely gone unchallenged. In carving out exceptions, it has set down standards that often appear inherently linked to the facts of the particular case, which may explain why such tests have proved inadequate in light of very different facts in subsequent cases. In fact, the Court has over time taken various, evolving approaches to scope, requiring control of a range of different types in different factual contexts. Thus for example in a series of early cases, it was Turkish military control of Northern Cyprus, through its relationship with a subordinate administration, that provided the basis for extra-​territorial jurisdiction.65 Effective control was then exercised by Russia through its ‘decisive influence’ over the breakaway regime in Transnistria.66 When it came to the Banković et al. v. Belgium et al case,67 relating to the 1999 bombing of Radio Television Serbia in Belgrade during North Atlantic Treaty Organisation (nato) airstrikes against the Federal Republic of Yugoslavia (fry), the Court looked back to these cases. It found that it had always based eta on ‘effective control of the relevant territory’68 or the exercise of ‘all or some of the public powers normally to be exercised by [] Government;’ ergo, absent control of Belgrade and the exercise of such public powers, the individuals killed in the attack were not within the ‘jurisdiction’ of the states under the echr. The Court sought to support its approach by advancing another territorial consideration –​suggesting the ecthr operated within an ‘espace juridique’ that protected rights within European space and not beyond.69 The focus then 63

64

65 66 67 68 69

ecthr J. Bonello, Concurring Opinion, Al-​Skeini and Others v. United Kingdom, Judgment, Application No. 55721/​07 [2011] para. 6. J. Albuquerque’s Dissenting Opinion, Georgia v Russia, paras. 22,30. See e.g. H. Duffy, ‘Georgia v. Russia: Jurisdiction, Chaos and Conflict at the European Court of Human Rights’, Just Security (2021) available at: https://​www. justsecurity.org/​74465/​georgia-​v-​russia-​jurisdiction-​chaos-​and-​conflict-​at-​the-​european-​ court-​of-​human-​rights/​. E.g., ecthr Ilascu and Others v. Moldova and Russia, Judgment, Application No. 48787/​99 [2004] para. 318; ecthr Banković v. Belgium, Judgment, Application No. 52207/​99 [2001] para. 890; ecthr Catan and Others v. Moldova and Russia, Judgment, Applications Nos. 4337/​04, 8252/​05, 8454/​06 [2012]. ecthr Loizidou v. Turkey, Judgment, Application No. 15318/​89 [1995] para. 10. See also ecthr Cyprus v. Turkey, Judgment, Application No. 25781/​94 [2001] para. 331. ecthr Ilascu and Others v. Moldova and Russia [2004]; ecthr Catan and Others v. Moldova and Russia [2012]. ecthr Banković v. Belgium [2001]. ecthr Banković v. Belgium [2001] para. 71. ecthr Banković v. Belgium [2001] para. 80.

Global Threats and Fragmented Responses

75

was on territorial control or control of area (coa), and the location of that territory within the Convention space, rather than on the states’ control over their conduct or its impact on the individuals concerned. However, as the Court recently acknowledged, the jurisprudence ‘evolved’ after Banković, and the exceptions expanded.70 The ecthr made clear in multiple other cases that while territorial control is one basis for jurisdiction, it is not the only one and jurisdiction could also arise from the conduct of state agents abroad who exercise other forms of control. This prompted the comment by an English judge that Banković had been ‘effectively overruled.’71 One relatively flexible and principled approach appeared in Issa v. Turkey, concerning the alleged killing of captured shepherds by Turkish soldiers in Northern Iraq, where the Court deemed jurisdiction to ‘follow logically’ simply from the exercise of ‘authority and control through its agents operating –​whether lawfully or unlawfully –​in the latter State’.72 Nodding to the earlier approach of the unhrc, the Court rejected ‘unconscionable distinctions’ between violations by a state within its own territory and abroad.73 In a series of subsequent decisions concerning violations by military personnel in Iraq, an (essentially) two-​part test was set down: effective control of an area or control of persons by state agents. In Al Skeini v. United Kingdom and Jaloud v. Netherlands, jurisdiction was established over individuals shot on the streets of occupied Iraq by UK soldiers, or crossing checkpoints manned by Dutch soldiers, whether or not the state controlled the territory in question, as ‘what is decisive in such cases is the exercise of physical power and control over the person in question.’74 In various cases involving law enforcement or military operations abroad, where individuals have been taken into the custody or physical control of the state, there was little hesitation in also finding them within the state’s effective control.75 The Court endorsed the two-​ part test, but took a restrictive approach to its application during the ‘chaos’ of active hostilities abroad in an international armed conflict, in the Georgia

70 ecthr Georgia v. Russia (II), Judgment, Application No. 38263/​08 [2021]. 71 See Al-​Saadoon v Secretary of State for Defence and Others, [2015] ewhc 715, para. 35. 72 ecthr Issa and Others v. Turkey, Judgment, Application No. 31821/​96 [2004] para. 71. 73 ecthr Issa and Others v. Turkey [2004] para. 71. 74 ecthr Al-​Skeini and Others v. United Kingdom [2011] para. 136; See also Al-​Skeini case cited in ecthr Jaloud v. Netherlands, Judgment, Application No. 47708/​08 [2014] para.139. 75 ecthr Al-​Skeini and Others v. United Kingdom [2011]; ecthr Hassan v. United Kingdom, Judgment, Application No. 29750/​ 09 [2014]; ecthr Ocalan v. Turkey, Judgment, Application No. 46221/​99 [2014].

76 Duffy v. Russia Judgment.76 Notably, in doing so, it also implicitly recognised that jurisprudence is likely to evolve as facts before the Court evolves; it reiterated that the question ‘whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts’.77 Over time, the case-​law of the ecthr has developed piecemeal, carving out ‘exceptions’ to the primarily territorial scope of the Convention when states control an area of territory, exercise public powers in it, or exercise control over the person in question. The Court has made clear that this does not mean there are no other situations in which the state may be deemed to exercise some other form of ‘effective control’.78 What this means for other circumstances of violations which do not fit readily into territorial or personal control is therefore far from clear. These include issues arising in pending cases: including, 79 Big Brother Watch v. United Kingdom, digital surveillance and privacy violations across borders.80 As the Court has not yet dealt with transboundary environmental harm, what it means for climate change also remains a matter of speculation. It may well be that it will continue to adjust, as it has before, to adopt a test based on a more flexible approach to control in order to be able to give meaningful effect to the echr in the context of the particular facts and the potential gravity of climate-​related violations. In doing so, it may also be informed by the approach of other bodies (discussed below), which have adopted more flexible approaches to ‘effective control’ and began to offer guidance on what ‘jurisdiction’ might mean in the climate context. 76 77 78

79

80

ecthr Georgia v. Russia (ii) [2021] para. 83. For a criticism of this judgment see e.g. Duffy n.62. ecthr Georgia v. Russia (ii) [2021] para. 82, and Al-​Skeini and Others v. United Kingdom [2011] para. 132. In both ecthr Georgia v. Russia (ii) [2021] and ecthr Hanan v. Germany, Judgment, Application No. 4871/​16 [2021] the Court makes broad references to undefined ‘exceptional circumstances’ that may justify extending jurisdiction. See e.g. ecthr Georgia v. Russia (ii) [2021] dissenting Judges Yudkivska, Wojtyczek and Chanturia (attached to the decision) p. 188. B. Cali, ‘Has ‘Control Over Rights Doctrine’ for Extra-​Territorial Jurisdiction Come of Age? Karlsruhe, too, has Spoken, now it’s Strasbourg’s Turn’, Blog of the ejil (2020), available at: https://​www.ejiltalk.org/​has-​control-​over-​rights-​doctrine-​for-​extra-​territorial-​ jurisdiction-​come-​of-​age-​karlsruhe-​too-​has-​spoken-​now-​its-​strasbourgs-​turn/​. The state has argued against jurisdiction and the applicants for a more principled, coherent approach to eta than that adopted by the Court to date. ecthr Big Brother Watch and Others v. United Kingdom, Judgment, Applications Nos. 58170/​13, 62322/​14 and 24960/​15 [2018]. See UNHCHR approach at

Global Threats and Fragmented Responses

77

3.1.2 Territorial Conduct with Effects Abroad? Before considering other approaches to extra-​territoriality, the European jurisprudence also prompts a more preliminary question: when is a case really ‘extra-​territorial’ at all? For example, the Norwegian Supreme Court case concerned conduct by the Storting –​the grant of export licenses for drilling within the state, but where its effects would be inextricably internal and external. The ecthr’s ‘exceptional’ extra-​territorial jurisprudence, by contrast, developed in situations where state agents operated beyond its borders and allegedly violated the rights of persons also situated outside the state’s territory. One could query whether this makes a difference, given the wording of the jurisdiction clause and its focus on persons within the states jurisdiction? Brief regard to ecthr practice suggests, however, that it may. While much attention has been focused on the eta of the echr, the ecthr has actually quite often found violations to arise from domestic state action, whether through regulation, policy or administrative decisions, which produced effects abroad. It has done so without questioning the application of the Convention despite the fact that in some cases the individuals affected were located abroad and not in any sense under its physical control. The Court has considered situations where legislative, judicial or policy decisions have ‘produced effects’ as falling within the state’s jurisdiction in a range of situations. For example, in Kovačić and Others v. Slovenia where a legislative amendment adopted by the Slovenian National Assembly barred Croatian nationals abroad from withdrawing currency, ‘… the Court finds that the acts of the Slovenian authorities continue to produce effects, albeit outside Slovenian territory, such that Slovenia’s responsibility under the Convention could be engaged’.81 In Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, where judicial decisions prevented a child from reuniting with its mother in Canada, the Court concluded that it had ‘no doubt’ that the Convention applied to the mother irrespective of her location in Canada.82 Likewise, legislation and policy decisions in respect of sanctions, with effects on persons who were at all material times outside of the state (and precluded from entering it to access medical care) and not themselves under its control, have also been held covered by the echr in Nada v. Switzerland.83 81 82 83

ecthr Kovačić and Others v. Slovenia, Decision on admissibility, Application No. 44574/​98 [2003] 5(c). ecthr Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, Judgment, Application No. 13178/​03 [2006] para. 62. ecthr Nada v. Switzerland, Grand Chamber Judgment, Application No. 13178/​03 [2012] 1691. See T. Altwicker, ‘Transnationalizing Rights: International Human Rights Law in Cross-​Border Contexts’, (2018) 29(2) European Journal of International Law 581, at 592. See

78 Duffy It is also noteworthy that in several recent cases, Hanan v. Germany, concerning German airstrikes in Afghanistan,84 and Georgia v. Russia,85 the Court has found the institution of an investigation or legal proceedings in the state was sufficient to establish a jurisdictional link for the purposes of Article 1 (irrespective of whether or not the underlying allegations being investigated fell within that jurisdiction). To some extent relevant principles can also be discerned from the developed body of ecthr case-​law on non-​refoulement. This is somewhat different from the cases above as the individuals are within states jurisdiction at the time of transfer. However, the Court had to grapple squarely with disputed questions concerning whether it had jurisdiction to address situations where the human rights violations –​the effects of its conduct and domestic decisions –​was felt exclusively abroad. In Soering v. United Kingdom, when it first dealt with the issue,86 the Court recalled the logic that the Convention did not govern actions of non-​parties, but that a Contracting Party may be responsible for acts or omissions on its own territory which had foreseeable effects in breach of the Convention outside its territory. ‘The decision’ on its territory therefore engaged the state’s jurisdiction.87 In each of the cases above, it made sense for the echr to apply to the state’s exercise of its own public powers, despite the effects being felt abroad. The locus of individuals in areas controlled by the state, or physical control of them, was not the issue. It was enough that there was sufficient nexus, through the state’s own decisions, between the conduct and the individuals whose rights were violated. On this view, the approach reflects that of other courts and bodies considered next. But it reminds us that as the jurisprudence continues to evolve, it will be necessary to consider in what circumstances it makes sense to think about the exercise of power as territorial or extra-​territorial at all, and whether such distinctions are themselves sustainable.

84 85 86

87

likewise, ecthr X and Y v. Switzerland, Decision on Admissibility, Application Nos. 7289/​ 75 and 7349/​76 [1977] at 73. ecthr Hanan v. Germany, Judgment, Application No. 4871/​16 [2021]. ecthr Georgia v. Russia (ii) [2021]. ecthr Soering v. United Kingdom, Judgement, Application No. 14038/​88 [1989] 11 439, para. 86 concerning a German national detained in the UK on murder charges pending extradition to the United States, where he faced a risk of degrading and inhumane treatment on ‘death row’. ecthr Soering v. United Kingdom [1989] para. 91.

Global Threats and Fragmented Responses

79

iccpr: The UN Human Rights Committee 3.2 The unhrc was first into fray on the eta issue when it found Uruguayan officials responsible for kidnapping and mistreatment by Uruguayan security forces on Argentinian soil.88 It asserted strong words of principle back in 1981, which have since resonated across other systems,89 when it described it as ‘unconscionable’ to ‘interpret the responsibility under the … Covenant as to permit a state party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory’.90 Standing back to assess the nature of states’ obligations more broadly in General Comment No. 31, the unhrc set down that: States parties are required by article 2, paragraph 1, to respect and ensure the Covenants rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party …91 On this basis it has found several states responsible for violations beyond their territorial borders.92 Its ‘consistent approach’ has been endorsed by the International Court of Justice (icj), which has noted (arguably more broadly) that the iccpr ‘is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.93 88

89 90 91

92 93

See, e.g., unhrc Lopez Burgos v. Uruguay, Communication No. 52/​1979, UN Doc. ccpr/​ C/​13/​D/​52/​1979 [1981]; unhrc Celiberti de Casariego v. Uruguay, Communication No. 56/​1979, UN Doc. ccpr/​C/​13/​D/​56/​1979 [1981] and individual opinion of Tomuschat (attached to both decisions). See e.g. ecthr Tatar v. Romania [2009]. unhrc Lopez Burgos v. Uruguay [1981] para. 12. ohchr, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. ccpr/​C/​21/​Rev.1/​Add.1326 (2004), para. 10. See also e.g. Concluding Observations of the Human Rights Committee: Belgium, UN Doc. cpr/​c o/​81/​b el, 12 August 2004, para. 6. ohchr, Concluding Observations of the Human Rights Committee: Israel, UN Doc. ccpr/​C/​79/​Add.93 (1998); ohchr, Concluding Observations of the hrc: Israel, UN Doc. ccpr/​c o/​78/​i sr (2003). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 09 July 2004, i. c. j. Reports 2004, p. 136, para. 111. ‘The Court describes this extra-​territorial reach of the iccpr as ‘natural’, ‘considering the object and purpose of the [iccpr]’, para. 109. The icj relied on reports and case law from the UN Human Rights Committee in finding that ‘while the jurisdiction of states is primarily territorial, it may sometimes be exercised outside the national territory … it would seem natural that

80 Duffy The unhrc formulation, focusing on ‘anyone within the power or effective control of the state’,94 does not answer questions arising when people are not within the states physical control but nonetheless have their rights affected. Other developments that nudge the analysis forward a little include the unhrc observations encouraging states to take measures to avoid violations by companies registered on their territories, but active abroad, which may support a loser approach to jurisdiction than simply state ‘control of persons’.95 Two recent considerations of the matter by the Committee are, however, particularly interesting for present purposes. In its General Comment No. 36 on the Right to Life, the unhrc interpreted ‘jurisdiction’ as covering persons ‘over whose enjoyment of the right to life [the state] exercises power or effective control …96 [which] includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted’.97 This is particularly relevant for present purposes as the unhrc also acknowledged in their General Comment that environmental degradation, climate change and unsustainable development constitute ‘some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life’.98 The unhrc reframing of how to think about the connection between the individual and the state, is likely to provide a crucial reference point going forward. It clarifies that the effective power or control it referred to previously extends to control over the enjoyment of the rights of individuals, through

94

95

96

97 98

even when such is the case, States parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this.’ S. Joseph and S. Dipnall, ‘Scope of Application’, in D. Moeckli, S. Shah and S. Sivakumaran (eds.), International Human Rights Law (2018), 150 at 157. The icj has understood that effective control is exercised in an occupied territory, on its Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj, 2004, paras. 108–​113. ohchr, Concluding observations of the Human Rights Committee; Germany, UN Doc. ccpr/​C/​d eu/​c o/​6 (2012), para. 16: ‘It is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/​or its jurisdiction respect human rights standards [and] … to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.’ ohchr, General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, UN Doc. ccpr/​C/​g c/​36 (2018), para. 63. See also ohchr, General Comment No. 31, para. 10: ‘a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.’ ohchr, General Comment No. 36, para. 63. ohchr, General Comment No. 36, para. 62.

Global Threats and Fragmented Responses

81

impact on those rights, rather than necessarily control over the individuals themselves. Finally, a recent decision on an individual communication, A.S. et al v. Italy of 27 January 2021, testifies to the importance and complexity of the issue. In a majority decision, the unhrc found that Italy had the obligation to protect the life of shipwrecked migrants who had sent SOS messages that had been received but not adequately responded to, and who ultimately drowned in the Mediterranean Sea just outside Italian territorial waters. The unhrc referred to standards previously established, such as inter alia whether the migrants were ‘within the power or effective control of that State party’ and whether ‘the risk of an extra-​territorial violation [was] a necessary and foreseeable consequence [of the states conduct] judged on the knowledge the State party had at the time’.99 The majority concluded that jurisdiction was established as ‘in the particular circumstances of the case, a special relationship of dependency had been established between the individuals on the vessel in distress and Italy’.100 Of potential relevance in the climate context, given the synergy between international environmental law and human rights, is the unhrc explicitly citing to broader international law obligations –​in that case arising from the law of the sea –​as relevant to the interpretation of human rights obligations. 3.3 UN Committee on the Rights of the Child This decision mirrors in some respects the approach to jurisdiction of the Committee of the Rights of the Child (the Committee) in the first two decisions in which it has addressed the extra-​territorial scope. In two admissibility decisions in September 2020 and February 2021, the Committee found that French children held in camps in NE Syria, under the control of Kurdish de facto authorities, fell within French ‘jurisdiction’.101 They were French nationals in a situation of extreme vulnerability and, crucially, France had the ‘power and capability’ to protect their rights under the Convention on the Rights of 99

unhrc A.S. et al v. Italy, Communication No. 3042/​2017, UN Doc. ccpr/​C/​130/​D/​3042/​ 2017 [2021] para. 7.5 [emphasis added], reflecting ohchr, General Comment No. 36 para. 10. 100 unhrc A.S. et al v. Italy [2021] para. 7.8 [emphasis added], opinion of Shany, Heyns and Pazartzis (attached to the decision): the decision ‘fails to distinguish between situations in which states have the potential to place [individuals] under their effective control …, and situations involving the actual placement of individuals under effective state control’ para. 2 [emphasis added]. 1 01 H. Duffy, ‘French Children in Syrian Camps: the Committee on the Rights of the Child and the Jurisdictional Quagmire’, Blog Leiden Childrens Rights Observatory (2021) available at: https://​childrensrightsobservatory.nl/​

82 Duffy the Child (crc). It concluded that States therefore ‘have the positive obligation to protect the human rights of child nationals in the Syrian camps, despite the fact that these camps are under the control of a non-​state armed group’. The decisions were criticised for apparently basing jurisdiction on the nationality of the children –​a dubious for the applications of rights that apply without distinction.102 However, in fact the Committee decision on jurisdiction, like that of the unhrc in the Italian case, is based on a holistic consideration of the range of factual and legal considerations that led, in the particular facts, to there being sufficient nexus between the state and the applicants in the case to establish jurisdiction.103 3.4 UN Committee on Economic Social and Cultural Rights Given the centrality of Economic, Social and Cultural Rights to the discussion, the approach of the Committee on Economic, Social and Cultural Rights (cescr) on which Professor Schrijver served for a number of years, is particularly pertinent. The Covenant itself stands apart from most other treaties considered as it does not refer explicitly to ‘jurisdiction’ in the treaty itself.104 Moreover, the emphasis placed by the cescr (like the crc)105 on international cooperation106 and seeking and providing assistance, naturally envisages a cross border dimension of the obligations to protect and fulfil rights.

102 M. Milanovic, ‘Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights’, Blog of the EJIL (2020), available at: https://​www.ejiltalk.org/​repatriating-​the-​children-​of-​foreign-​terrorist-​fighters-​and-​the-​ extraterritorial-​application-​of-​human-​rights/​ 103 Duffy, French Children in Syrian Camps, n. 102. 104 W. Vanderhole, ‘Beyond Territoriality: The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights’, (2011) 29 Netherlands Quarterly on Human Rights 429, at 430. 105 See eg. ohchr, General Comment No. 19 by the Committee on the Rights of the Child on public budgeting for the realization of children’s rights (Art. 4 of the Convention of Rights of the Child), UN Doc. crc/​C/​g c/​19 (2016), para 35: States that lack the resources to fully realize the crc must seek international cooperation; States with resources ‘have an obligation to provide such cooperation with the aim of facilitating the implementation of children’s rights in the recipient State.’; See also Center for International Environmental Law, ‘States’ Human Rights Obligations in the Context of Climate Change’ (2018). 106 Strong obligations of international cooperation and assistance are also made explicit in later General Comments such as 2016 general comment on the right to sexual and reproductive health. cescr, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’, UN Doc. E/​C.12/​2000/​4 (2000), para. 45.

Global Threats and Fragmented Responses

83

Fleshing out these obligations in concluding observations107 and General Comments, the Committee underscored that the Covenant applies to harm beyond state parties’ own borders.108 With respect to the right to water, it stated that: … International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.109 Reflecting the positive nature of obligations under the Covenant, the cescr further added that ‘[s]‌teps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries’.110 It has been pointed out that among the noteworthy aspects of the Committee’s contribution has been its recognition that the positive obligations of states ‘to fulfil’ rights also apply abroad.111 This approach is supported by the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, which suggests that: States must desist from acts or omissions that create a real risk of nullifying or impairing the enjoyment of economic, social and cultural rights extraterritorially. The responsibility of States is engaged where such nullification or impairment is a foreseeable result of their conduct.112 107 E.g. ohchr, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN Doc. E/​C.12/​1/​Add.90 (2003), para. 15 and ohchr, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel, UN Doc. E/​C.12/​1/​Add.69 (2001), paras. 11–​12. 108 M. Langford, Global Justice, State Duties the Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (2013), at 7. 109 cescr, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), UN Doc. E/​C.12/​2002/​11 (2003), para. 31. 110 cescr, General Comment No. 15 (2003), para. 33. 111 W. Vandenhole, ‘Towards a Division of Labour for Sustainable Development: Extraterritorial Human Rights Obligations’, in M. Kaltenborn, M. Krajewski, H. Kuhn (eds.), Sustainable Development Goals and Human Rights. Interdisciplinary Studies in Human Rights (2020), 221 at 233. 112 Extra-​ territorial Obligations Consortium, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2013), Principles 13.

84 Duffy Once again, a number of years before the unhrc’s General Comment No. 36 focused on foreseeable impact, this document suggests in comparable terms that the test should simply be whether the violations were a foreseeable result of the states conduct. Other UN Entities: UN High Commissioner hr and Special Rapporteurs Within the UN framework, other special experts and procedures have had multiple opportunities to consider the scope of obligations. While General Comment No. 31 has generally been taken as a starting point, the formulations used differ slightly, again reflecting the factual issues at hand. Like climate impacts, and unlike capturing an individual on the streets of Buenos Aires, interference with privacy rights through surveillance abroad is one scenario where the states conduct and its impact is not readily pinned down in terms of physical location, and is not obviously captured by the concept of control over the person as such. In its report on the right to privacy in a digital age, the ohchr shows leadership with a principled approach that moves away from carving out narrow exceptions and shoehorning practices into them. The report refers back to the unhrc’s guiding principle ‘as expressed even in its earliest jurisprudence, that a State may not avoid its international human rights obligations by taking action outside its territory that it would be prohibited from taking “at home” ’.113 It suggests

3.5

where the State exercises regulatory jurisdiction over a third party that physically controls the data, that State also would have obligations under the Covenant. If a country seeks to assert jurisdiction over the data of private companies as a result of the incorporation of those companies in that country, then human rights protections must be extended to those whose privacy is being interfered with, whether in the country of incorporation or beyond (emphasis added).114 In its ‘Analytical study on the relationship between human rights and the environment’, we see this pragmatic approach applied in a way that may have foreshadowed unhrc General Comment No. 36:

1 13 ohchr, ‘The Right to Privacy in the Digital Age’, UN Doc. A/​h rc/​27/​37, (2014), para. 33. 114 ohchr ‘Privacy in the Digital Age’, (2014), para. 34.

Global Threats and Fragmented Responses

85

the recognition of the extraterritorial obligations of States allows victims of transboundary environmental degradation, including damage to the global commons such as the atmosphere and dangerous climate change, to have access to remedies. Those who are adversely affected by environmental degradation must be able to exercise their rights, irrespective of whether the cause of environmental harm originates in their own State or beyond its boundaries and whether the cause of environmental harm lies in the activities of States or transnational corporations (emphasis added).115 Similar approaches are reflected in reports of experts supporting the extraterritorial application of all human rights relevant to climate change.116 This approach is mirrored in another ground-​breaking development from the Inter-​ American system. Inter-​American System 3.6 The Inter-​American Commission on Human Rights (iachr) in its case law has long acknowledged that the human rights obligations continued to apply when the United States was active abroad –​during the US invasion of Grenada117 and, more recently, in respect of the detainees in Guantánamo Bay.118 One important and underrated contribution was the Armando Alejandre ‘Brothers to the Rescue’ case where Cuba shot down civilian light airplane, and the question the Commission asked was whether there was a direct link between the individuals and the state. The ‘persons subject to its authority or control’ of the state test was satisfied when they died as result of ‘direct action of Cuban agents in international air space’.119 By far the most significant development for our purposes, however, is the Advisory Opinion on The Environment and Human Rights of 15 November 2017 of the Inter-​American Court of Human Rights (iacthr). This was the first time an international court was presented squarely with the question of greenhouse gas emissions and whether there was an extraterritorial jurisdictional

115 ohchr, ‘Analytical Study on the Relationship between Human Rights and the Environment’, UN Doc. A/​h rc/​19/​34 (2011), para. 72. 116 See e.g J. Knox, ‘Diagonal Environmental Rights’, in M. Gibney and S. Skogly (eds.), Universal Human Rights and Extraterritorial Obligations (2010), 82 at 83–​85. 117 See Coard et al. v. the United States, Inter-​American Court of Human Rights (IACtHR), Case 10.951, Report No. 109/​99, 29 September 1999, Annual Report of the IACtHR (1999). 118 IACommHR, Precautionary Measures in Guantanamo Bay, Cuba, 13 March 2002. 119 See e.g., Armando Alejandre, Jr. et al., IACtHR, Case 11.589, Report No. 86/​99 (1999), para. 25.

86 Duffy link, albeit based on domestic activities with extraterritorial effect.120 In its reasoning the Court affirmed that it did. It accepted jurisdiction based on several grounds, stating that: [w]‌hen transboundary harm or damage occurs, a person is under the jurisdiction of the State of origin if there is a causal link between the action that occurred within its territory and the negative impact on the human rights of persons outside its territory. The exercise of jurisdiction arises when the State of origin exercises effective control over the activities that caused the damage and the consequent human rights violation (emphasis added).121 The Court has ‘essentially redefined’ the ‘effective control’ test, as the state’s control over the domestic activities rather than control over a person or territory.122 The Court’s approach does not answer all the questions either, such as the nature of the ‘serious’ human rights violations to which it applies and, in particular, the nature of the ‘causal link’. Causation is a complex issue in the environmental context of multi-​actor contributions, and difficult to prove, as Nico Schrijver has pointed out.123 The Opinion does however join an emerging chorus in firmly rejecting the idea that human rights obligations are inapplicable based on formalistic notions of territorial or personal control. Moreover, the Court does not distinguish between State actions and omissions, making clear that positive obligations also apply extraterritorially. This has been described as ‘the most important novelty’ in the opinion, such that

120 State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity: Interpretation of the Scope of Articles 4(1) and 5(1) in Relation to Articles 1(1) and 2 of the American Convention on Human Rights (The Environment and Human Rights), IACtHR, Advisory Opinion OC-​23/​ 17, 15 November 2017; A. Berkes, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’, Blog of the EJIL (2018), available at: https://​www.ejiltalk.org/​a-​new-​ extraterritorial-​jurisdictional-​link-​recognised-​by-​the-​iacthr/​. 121 IACtHR, State Obligations in Relation to the Environment Advisory Opinion of 2017, para. 104(h). 122 M. L. Banda, ‘Inter-​American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights, (2018) ASIL 22(6), available at: https://​www.asil.org/​insights/​volume/​22/​ issue/​6/​inter-​american-​court-​human-​rights-​advisory-​opinion-​environment-​and-​human. 123 N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1295.

Global Threats and Fragmented Responses

87

if a company operating in State A causes transboundary environmental harm that adversely affects an individual’s life and physical integrity in State B, then the individual is within A’s jurisdiction. This makes sense under due diligence as far as State A failed to take reasonable steps to protect individuals abroad from human rights violations, i.e. it had the capacity to protect and the knowledge on the risk of the wrongful act.124 The Advisory Opinion should not then be understood as requiring proof that a state caused the harm in all cases, as it also embraces the positive due diligence obligations of states. By asserting that what is key is the state’s control over its own ‘activities’, and relationship between that conduct and the violations, the Court makes an important (if far from final) contribution to reframing the discussion on scope in this area. 3.7 The African Human Rights System An enquiry into the African system’s approach, which has been subject to less international attention, is also revealing. The African Charter on Human and People’s rights itself does not deal with jurisdiction or scope, but back in 2003, the Commission appeared not to hesitate to find Burundi, Rwanda and Uganda responsible for human rights violations extra-​territorially, albeit without addressing the issue directly.125 Since then, as with the unhrc and icescr, it has been through General Comments that the African Commission became more explicit in its approach. Notably in its own General Comment on the right to life, which preceded that of the unhrc, the Commission adopted a broad reaching approach to the different circumstances in which the state’s negative and positive obligations might apply abroad: A State shall respect the right to life of individuals outside its territory. A State also has certain obligations to protect the right to life of such individuals. The nature of these obligations depends for instance on the extent that the State has jurisdiction or otherwise exercises effective authority, power, or control over either the perpetrator or the victim (or the victim’s rights), or exercises effective control over the territory on which the victim’s rights are affected, or whether the State engages in conduct

1 24 A. Berkes, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’, (2018). 125 Democratic Republic of Congo v. Burundi, Rwanda and Uganda, African Commission of Human and Peoples’ Rights, Communication 227/​99 (2003), paras. 79–​80.

88 Duffy which could reasonably be foreseen to result in an unlawful deprivation of life.126 Echoing the unhrc and icesr, the extraterritorial scope of the right to life is furthermore developed in paragraph 18 of the General Comment where States’ obligation to hold accountable nationals or businesses domiciled in their territory or jurisdiction responsible for committing or contributing to arbitrary deprivations of life extraterritorially is affirmed. This broad approach, which finds various bases for the meaningful link between state and situation, is reflected in the more recently adopted Guidelines on terrorism and Human Rights which state simply ‘Extra-​territoriality: States are bound by their human rights obligations while conducting counterterrorism operations abroad.’127 4

Conclusions

As states’ spheres of operation and influence grow in a globalised world, epitomised by the ‘global’ nature of climate change, a rigid approach to distinctions based on territorial locus or control becomes increasingly untenable. The question how to interpret the ‘jurisdiction’ clauses has been the subject of divergent formulations adopted by different bodies in various contexts. These are crucial questions upon which the applicability of the human rights framework, and the oversight of human rights courts and tribunals, depends. So far as these require control over territory or persons, they challenge the relevance of ihrl to address key human rights problems of time, in particular climate change. Various trends and commonalities emerge from the comparative survey. It is now unanimously accepted across all systems that artificial limits on jurisdiction cannot be drawn at a state’s territorial borders, and states must be accountable for violations abroad. Control of territory abroad as an exclusive basis for such jurisdiction has been resoundingly rejected across fora. Other than the ECtHR, recent developments -​from the unhrc General Comment No. 36 and Italian decision, to the iacthr in its Advisory Opinion, to the African Commission General Comment No. 3 and Committee of Rights of the 126 African Commission on Human and Peoples’ Rights, General Comment No. 3 on the African Charter On Human And Peoples’ Rights: The Right To Life (Article 4) (2015), para. 14. 127 Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, adopted by the African Commission on Human and Peoples’ Rights during its 56th Ordinary Session in Banjul, Gambia (2015).

Global Threats and Fragmented Responses

89

Child -​recognise that it is similarly inadequate, if ihrl is to be given effect in the world, to draw the line at persons under ‘physical control’ of the state. Even at the ECtHR, there are many cases where there was no such control over the persons as such, yet the case was admissible based on all the facts and circumstances.128 Moreover, close inspection suggests that, although courts and bodies have framed analysis differently (some as extra-​territoriality, or not), all human rights bodies have accepted the idea that states must be responsible for conduct and decisions within their borders, with human rights effects beyond its shores. While hardly uniform, a discernible shift emerges in terms of rethinking ‘control’ –​from focusing on control of territory abroad or control of persons, to control of the state’s own conduct that causes or impacts on violations abroad. In all systems considered here, bar the European, general comments and advisory opinions have facilitated this process, enabling a stepping back from a more fragmented, case by case carving out of exceptions, to reflect more coherently on cross cutting principles or how the law should be interpreted as whole. Cases have then applied those standards in particular contexts, albeit often without articulating their legal reasoning as fully as they might. The ecthr approach may lag behind in part as its normative development has been limited, for now, to that contentious, case by case, approach wherein jurisprudential standards often reflect the facts of particular cases. However, as the ecthr continues to develop its jurisprudence to give effect to the echr in novel contexts, as has been done during the seventy years of the life of the Convention, we may see a continueing, if irregular, broadening of scope.129 In interpreting ihrl to address new challenges, it is noteworthy that supranational human rights courts and human rights bodies employ similar principles of interpretation, which will be relevant to clarifying scope in the future. These include the teleological approach that seeks to meet human rights treaties’ protective purpose, ensuring they are ‘practical and effective,’130 and 128 Most recently, contrast Georgia v Russia which reasserted the control of area or of persons tests, and Hanan v Germany which extended jurisdiction to investigations, and see other cases involving effects abroad discussed above. 129 B. Cali, ‘Has ‘Control Over Rights Doctrine’ for Extra-​Territorial Jurisdiction Come of Age? Karlsruhe, too, has Spoken, now it’s Strasbourg’s Turn’, Blog of the European Journal of International Law, 21 July 2020. Cali calls for greater coherence in the echr approach, noting that ‘control over someone else’s territory or control over person are sub-​themes of a more basic, but a more coherent idea: effective control over the rights of a person’. Cf. the step back taken by the Court in Georgia v Russia. 130 H. Duffy, Trials and Tribulations, in Bohrer, Duffy and Dill, Law Applicable to Armed Conflict, Cambridge (2020); R. Lawson, A Living Instrument: The Evolutive Doctrine Some Introductory Remarks (2020).

90 Duffy avoiding ‘vacuums’ of protection.131 Across bodies, we see deliberations on scope including a rejection of ‘unconscionable’ double standards,132 whereby a state is expected to abide by human rights standards ‘at home’ but can violate them with impunity beyond its own borders.133 The contextual approach has also been central, as standards that made sense in the context, of say military occupation and detention abroad, simply do not in the context of data control or the rights implications of climate change. Many cases reflect the need to tailor approaches to particular facts and circumstances. This chapter has shown how ihrl can and has adjusted to remain relevant, practical and effective, and there is reason to be confident that it will continue to do so. The cautious flexibility of courts to depart from their previous approaches to jurisprudence further enables ongoing evolution. As courts continue the distinctive trend of trans-​judicial dialogue between courts and human rights bodies134 we are likely to see standards and approaches continue to move closer together. Anachronisms, uncertainties and differences undoubtedly remain. It is undoubtedly a matter of regret that the ‘effective control of what’ question has not been more clearly and consistently answered in a way that would provide greater assurance to climate litigators. Among the many outstanding questions that deserve attention is the scope of states positive obligations beyond their frontiers, which are imperative to timely and effective interventions in the climate change space but on which there is currently minimal judicial guidance.135 This chapter has focused on international standards elaborated by courts and human rights bodies. However, as regards the role of human rights litigation, it is likely to continue to be on the national level that these issues will first fall to be resolved and where we might hope to find promising developments 131 ecthr Al-​Skeini and Others v. United Kingdom [2011] para. 142. ecthr Loizidou v. Turkey [1995] para. 78; ecthr Cyprus v. Turkey [2001] para. 78; ecthr Banković v. Belgium [2001] para. 80. 132 In unhrc Lopez Burgos v. Uruguay [1981] para. 12, the hrc described it as ‘unconscionable’ to ‘permit a state party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.’ 133 unhrc Lopez Burgos v. Uruguay [1981] para. 12 is reflected in the ecthr (ecthr Tatar v. Romania [2009]), see also ohchr, The Right to Privacy in the Digital Age (2014); See also, IACtHR, State Obligations in Relation to the Environment Advisory Opinion of 2017. 134 Duffy, Trials and Tribulations, n.117. 135 Some cases (see Al-​Skeini), and some scholars, have suggested positive obligations only apply where there is control of territory abroad, but there is reason to doubt whether such an approach can apply in all contexts, as reflected in its rejection by the Interamerican court (ao Environment and Human Rights) the UNHRC and Committee on the Rights of the Child.

Global Threats and Fragmented Responses

91

in the near future. As the German Constitutional Court recently reminded us when considering the scope of obligations in relation to extra-​territorial surveillance, there is nothing to ‘exclude a more extensive protection of fundamental rights by the Convention states’ than by the ecthr.136 The German Court’s focus on ‘control of action’ of the state, and its effect on human rights abroad, is a potentially important reference point for an effective and common sense approach to the jurisdictional question of relevance in the climate context. This role of national courts is at the heart of the human rights system. As the ecthr President Sicilianos noted when he commented the Urgenda judges’ direct use of the echr and ecthr case law, ‘By relying directly on the Convention, the Dutch judges highlighted that fact that the echr really has become our shared language and that this instrument can provide genuine responses to problems of our time’.137 It is important to recognise and reflect on the genuine concerns that have underpinned some of the more restrictive approaches in jurisprudence so far. One is the need to ensure that ihrl does not impose ‘impossible burdens’ on states, and that the law is ‘practical and effective’ for states charged with implementing it, as it is for victims seeking to enforce their rights. However, this concern can be addressed and accommodated within the substance of ihrl, including flexible standards on ‘due diligence,’ and the basic rules on state responsibility whereby States are responsible only for violations attributable to them. Under primary rules of ihrl, this may include harm caused by the state or the real and serious risks they fail to avert, but only so far as ‘foreseeable,’ and the measures are ‘reasonably’ within the state’s power.138 Whether states are legally responsible for violations in relation to climate change may involve complex, challenging but essential determinations for courts. There is no principled reason to preclude them from making these determinations through the creation of abstract artificial boundaries around ‘jurisdiction.’ 136 German Constitutional Court in Bundesverfassungsgericht, Judgment of the First Senate of 19 May 2020, 1 BvR 2835/​17, para. 99. B. Cali, ‘Has ‘Control Over Rights Doctrine’ for Extra-​ Territorial Jurisdiction Come of Age? Karlsruhe, too, has Spoken, now it’s Strasbourg’s Turn’ (2020). The Court at para. 98, refers to two pending cases before the Grand Chamber of the ecthr –​ ecthr Big Brother Watch and Others v. United Kingdom [2018] and ecthr Centrum för Rättvisa v. Sweden, Judgment, Application No. 35252/​08 [2018] –​ concerning surveillance measures with targets abroad. 137 L. Sicilianos, Solemn Hearing on the occasion of the opening of the judicial year (2020), at 4, available at: https://​www.echr.coe.int/​Documents/​Speech_​20200131_​Sicilianos_​JY_​ENG. pdf. 138 Section 2.

92 Duffy As Nico Schrijver noted in 2011, It is a Herculean task to develop an international law that is up to the challenge of what the Climate Change Convention sets so aptly as its ultimate objective: … stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system … within a time framework to adopt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.139 It is even a more daunting task to give effect to the law. While climate change is a ‘global problem requiring a global response’ that goes beyond ihrl mechanisms, international human rights litigation has a role to play in that endeavour.140 It is essential that its relevance and its ability to do so is not thwarted by the poisoned cloak of unduly circumscribed and anachronic approaches to applicability and scope. 1 39 N. Schrijver, The Impact of Climate Change: Challenges for International Law (2011), at 1297. 140 ohchr, Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/​h rc/​31/​52 (2016), paras. 41–​42.

­c hapter 5

What Is a State in International Law? How Is This to Be Determined? John Dugard As a friend and colleague, it is a pleasure to contribute to this collection of essays to mark the retirement of Nico Schrijver from the Faculty of Law of the University of Leiden. These essays serve to acknowledge both Nico’s productive leadership of Leiden’s department of international law and his enormous contribution to international law at home and abroad. Since January 2015 the Prosecutor of the International Criminal Court (ICC) has been conducting a preliminary examination into the commission of war crimes and crimes against humanity committed in the Occupied Palestinian Territory (OPT). On 20 December 2020, before proceeding to an investigation under Article 53(1) of the Rome Statute into the situation in Palestine, the Prosecutor requested the Pre –​Trial Chamber (PTC) of the ICC for a ruling on the Court’s territorial jurisdiction in Palestine in terms of Article 19(3) of the Rome Statute. 1 In the absence of any definition of the term ‘State’ in the Rome Statute, this request sought confirmation that the territory over which the Court might exercise jurisdiction under Article 12(2)(a) of the Rome Statute comprised the the Occupied Palestinian Territory, that is the West Bank, East Jerusalem and Gaza. Immediately the Attorney General of Israel and the Israeli Foreign Ministry submitted memoranda to the Prosecutor in which they claimed that Palestine was not a State within the meaning of Article 12(2)(a) of the Rome Statute with jurisdiction over the territory in question and thereby empowered to delegate jurisdiction to the icc.2 The Israeli memoranda discounted the fact that Palestine was a member of the icc and had participated positively in the 1 Prosecutor’s Request Pursuant to Article 19(3) for a Ruling on the Territorial Jurisdiction of Palestine, ICC-​01/​18 of 20 December 2020. 2 These two memoranda were generously attached as annexures to the Prosecutor’s Request Pursuant to Article 19(3) for a Ruling on the Territorial Jurisdiction for Palestine, icc-​01/​18 of 20 December 2019. They were later withdrawn as the ptc ruled that they resulted in the Prosecutor exceeding her permitted page length. Nevertheless their initial publication by the Prosecutor placed them in the public domain.

© Koninklijke Brill NV, Leiden, 2021 | D

94 Dugard activities of the icc for five years, arguing repeatedly instead3 that Palestine was not a State because it was not a State under ‘general international law’. Later, in response to the ptc’s invitation to amici to make submissions on the Prosecutor’s request, a number of prominent international lawyers endorsed the Israeli government’s view that Palestine was not a State as defined by ‘general international law’. These friends of Israel included a group4 headed by the former President of the French Constitutional Court, Robert Badinter, Malcolm Shaw, Emeritus Professor of Law of the University of Leicester and author of International Law, perhaps the best known student international law text, and Jay Sekulow, President Trump’s private lawyer writing on behalf of the European Centre for Law and Justice (eclg). Badinter et al repeatedly state that Palestine is not a State ‘pursuant to general international law’.5 Later they argue that it fails to qualify as a State ‘under general principles of law’6 and still later that it does not meet the requirements of statehood under customary international law.7 Shaw likewise invokes the concept of ‘general international law’ as a means of measuring statehood.8 In addition he states that there is a ‘normal international legal definition’ of State9 and argues that the icc has ‘no competence to refuse the traditional definition of statehood already established under international law.’10 Whether an entity claiming to be a State complies with this traditional definition, it seems, must be determined by the ‘international community’.11 (No attempt is made to define this body. Shaw insists that it should possess ‘universal membership’12 but clearly it is not the body most representative of the international community, the UN General Assembly.) Related to the argument that a State is defined under general international law is the notion that there is an ‘ordinary’ meaning of State that is to be determinative. This view, which derives from Article 31(1) of the 3 4 5 6 7 8 9 10 11 12

Ibid., Attorney General’s memorandum: executive summary, para. 6; memorandum paras. 8, 9, 14, 26; Foreign Ministry’s memorandum, paras. 14, 23. The group of authors comprised, in addition to Robert Badinter, Irwin Cottler, David Crane, Jean-​Francois Gaudreault-​DesBiens, David Pannick and Gugliemo Verdirame. See Robert Badinter et al, Submission to the ptc under Rule 103 of the icc, No icc-​01/​18 of 16 March 2020, paras. 2(a), (b) and (c), 3, 5, 6, 21. Ibid., para. 25. Ibid., para. 35. See, too, para. 33. Malcolm Shaw, Submission to the ptc under Rule 103 of the icc, No icc –​01/​18, 16 March 2020, para. 47(i). Ibid., para. 4. Ibid., para.11. Ibid., paras. 7 and 47. Ibid., para. 7.

What Is a State in International Law?

95

Vienna Convention on the Law of Treaties, was advanced by Sekulow on behalf the eclg.13 On 5 February 2021 the Pre -​Trial Chamber handed down a majority judgment, in whch it held that the State of Palestine had lawfully acceded to the Rome Statute in 2015 and become a member State of the ICC. Consequently it qualified as a State for the purposes of Article 12(2)(a) of the Rome Statute.14 It was therefore unnecessary for the Chamber to make a determination of Palestine’s statehood under general international law. Indeed it was precluded from so doing by the Rome Statute. 15 In the present author’s opinion this is an obvious and correct interpretation of the Rome Statute. The argument that there is a definition of State under general international law was therefore not addressed by the PTC. It is, however, one that warrants examination. This is the remit of the present chapter. 1

Is There a Conclusive Definition of State in General International Law?

General International Law 1.1 Before turning to the question whether there is a definition of State under general international law, it is necessary to examine the term ‘general international law’. Although this term is occasionally used by the International Court of Justice,16 its meaning is unclear as the term does not appear in the sources of international law listed in Article 38(1) of the icj Statute. When the Court used this term in Pulp Mills17 and Certain Activities18 it was inferred that it equated ‘general international law’ with customary international law.19 The Draft Conclusions of the International Law Commission on the Identification 13 See eclg, Submission to the ptc under Rule 103 of the icc, No icc-​0/​18, 16 March 2020, para. 4. 14 Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-​01/​18 of 5 February 2021. See, in particular paras. 94-​102, 109. 15 Ibid., paras. 54,93,103,106,108, 111. 16 See, for example, Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] icj Rep. (i) 3, at para.204; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) [2015] icj Rep. 665, at paras. 152, 162, 168, 229(6). 17 Ibid. 18 Ibid. 19 See the separate opinions of Judge Donoghue and Judge ad hoc Dugard in Certain Activities, ibid., 3 at 782 and 846–​849 respectively.

96 Dugard of Customary International Law likewise equates general international law with customary international law.20 This means that those who argue that there is a definition of State under ‘general international law’ in effect argue that a State is defined under customary international law. This is made clear in several submissions to the ptc in the Palestine case that expressly claim that customary international law defines a State. Whether this argument has any substance will be considered later. There is no suggestion that ‘general international law’ may be equated with or likened to general principles of law under Article 38(1)(c) of the icj Statute. This is because such general principles are mainly confined to rules of ‘procedure, evidence and the machinery of the judicial process’21 including notions of good faith or legal defences such as estoppel or res judicata. There is no precedent for this source of law being invoked to give substantive meaning to subjects of international law. 1.2 Is There a Definition of State under Treaty Law? The Montevideo Convention on the Rights and Duties of States 1933 describes the ‘qualifications’ that a State ‘as a person of international law’ should possess but makes no attempt to define a State or what makes it a ‘person of international law’. Although the State is the centre of the international legal order States have preferred not to define such an entity in a multilateral treaty. This is very understandable as this would require a decision on the vexed question of whether an entity is a State is a question of fact, as advocated by the declaratory school of recognition, or whether it becomes a State when it is recognized by others (the constitutive school of recognition) or when it is admitted to an organization such as the United Nations. Not only are such questions controversial and much debated but any treaty providing an objective and absolute definition of a State would undermine the cherished discretion of existing States to decide for themselves whether an entity is a State or not. This explains why there is no general definition of a State in a treaty that is applicable to all situations. The experience of the International Law Commission testifies to the unwillingness of States to define a State. Although the question of statehood and recognition was initially identified in 1948/​9 as a topic to be considered by the International Law Commission,22 this body has studiously 20 21 22

A/​73/​10, 2018, Commentary on Conclusion 1. Para. 2. M. Shaw, International Law (2017), at 74. When it embarked on its work programme in 1949 the Commission identified 25 topics as suitable for codification. This was reduced to 14, including the recognition of States and governments. See A. Watts, The International Law Commission 1949–​1998 (1999), Vol.1, at 4.

What Is a State in International Law?

97

avoided the subject. In 1949 when the International Law Commission was working on its Draft Articles on the Rights and Duties of States it declined to follow a suggestion by the United Kingdom and India that the term ‘State’ be defined.23 The Commission has consistently refused to define the term ‘State’24 and has, moreover, refused to consider the matter in its long-​term programme of work.25(On a personal note, I can confirm that while I was a member of the ilc (1997–​2011) any suggestion that the question of statehood or recognition be examined by the ilc was dismissed out of hand by colleagues). Although no treaty contains a general definition of ‘State’, several treaties do provide a specific definition of State for the purpose of a particular treaty. For instance, the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (icty) explain what is meant by the term ‘State’ for the purpose of the icty,26 as does the Law of the Sea Convention.27 And, of course, many multilateral treaties prescribe that entities qualify as ‘States’ for the purpose of a particular treaty either because all UN member States, States parties to the icj Statute or member States of UN specialized agencies may become party to the Convention (the Vienna formula)28 or because ‘all States’ may become party to the Convention –​the ‘all States formula’ employed by the Rome Statute of the icc.29 Have International Tribunals Defined a State? 1.3 The International Court of Justice has refrained from providing a definition of State, even in cases such as Kosovo30 in which it might have offered a definition. There are, however, two notable attempts to define a State by international tribunals.

23

Ibid., Vol ii, 1654. See, too, J.Crawford, The Creation of States in International Law (2006), 38–​40. 24 Crawford, ibid., 39. 25 Ibid., 40, 757. 26 Rule 2. 27 Art. 305(1) of the Law of the Sea Convention. 28 See Art. 48 of the Vienna Convention on Diplomatic Relations and Art. 81 of the Vienna Convention on the Law of Treaties. 29 See Art. 125 (3) of the Rome Statute of the icc. See further the discussion of both the ‘all States formula’ and the ‘Vienna formula’ in the Prosecutor’s Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction for Palestine, icc-​01/​18, 20 December 2019, 57–​59. 30 [2010] icj Rep. 403.

98 Dugard The first such instance was the definition of the Arbitration Commission established by the European Conference on Yugoslavia, presided over by Robert Badinter and commonly known as the Badinter Commission: [T]‌he State is commonly defined as a community which consists of a territory and a population subject to an organized political authority, that such a State is characterized by sovereignty … the effects of recognition by other States are purely declaratory.31 The second judicial attempt to provide a definition of statehood occurred in the decision of the International Criminal Tribunal for the Former Yugoslavia in Prosecutor v Milosevic32 in which the Tribunal declared that ‘[t]‌he best known definition of a State is the one provided by Article 1 of the Montevideo Convention’ whose ‘four criteria [for statehood] have been used time and again in questions relating to the creation and formation of States. In fact, reliance on them is so widespread that in some quarters they are seen as reflecting customary international law.’33 While the Tribunal did ‘not feel obliged to determine the question of the status of the criteria as customary international law’34 it proceeded to examine the question whether Croatia had met the requirements of statehood on the date on which it declared independence in terms of the Montevideo criteria.35 Both these ‘definitions’ of statehood reaffirm the criteria for statehood of the Montevideo Convention. Milosevic makes it clear that it was guided by the Montevideo criteria for statehood while the Badinter Commission ‘definition’ is simply a reformulation of the Montevideo Convention. The validity of these dicta as definitions of statehood is therefore dependent on the question whether the Montevideo Convention provides a comprehensive definition of statehood or merely a list of some of the characteristics of an entity to be considered in deciding whether it is a State or not. This is confirmed by the Badinter submission to the Pre-​Trial Chamber in the Palestine case which argues in the same paragraph that Palestine fails to qualify as a State in terms both of the definition proclaimed by the Badinter Commission and the customary law test of statehood contained in the Montevideo Convention.36 31 32 33 34 35 36

Opinion No 1, (1991) 92 ilr 162. it-​02-​54-​T. Ibid., paras. 85–​86. Ibid., para. 86. Ibid., paras. 94–​115. Supra note 5, para. 33.

What Is a State in International Law?

99

The Views of Jurists 1.4 A sporadic search of legal literature shows that jurists have not been forthcoming in defining a State. The French jurist Georges Scelle told the International Law Commission in 1950 that he ‘had been active in international law for more than fifty years and still did not know what a State was and he felt sure that he would not find out before he died. He was convinced that the Commission could not tell him.’37 Others have been less blunt, although James Crawford has stated that ‘there has long been no generally accepted and satisfactory legal definition of statehood’.38 There is a dispute among jurists as to whether a State is a question of fact or whether it is a question of law, whether the fulfilment of certain factual criteria suffices or whether the imprimatur of the law is also required.39 The principal legal instrument for the determination of statehood –​recognition –​remains uncharted and scholars debate whether it is declaratory or constitutive in nature. Many scholars lean in favour of viewing a State as a question of fact by offering the Montevideo Convention’s criteria, qualifications or characteristics of statehood as the definition of State. Thus Rosalyn Higgins stated in 1994 that ‘the definition of “a State” has remained virtually unchanged and continues to be well described by the traditional provisions of the Montevideo Convention on the Rights and Duties of States’ –​permanent population, defined territory, government and capacity to enter into relations with other States.40 This view is shared by Nico Schrijver.41 On the other hand, writers who believe that statehood is explained by the Montevideo Convention criteria are careful not to describe it as a definitive or conclusive definition of state.42 Thus Oppenheim does not use the term ‘definition’ in endorsing the conditions laid down by the Montevideo Convention for the existence of a State and prefers to declare that this Convention explains the ‘concept’ of the State.43 Malcolm Shaw avoids the word definition completely in his account of statehood, which is premised on the Montevideo Convention criteria –​but accepts that self-​determination and recognition have impacted on these criteria.44 Generally writers refrain from 37 38 39 40 41 42 43 44

yilc 1950/​i , 84, para. 22. Cited in Crawford, supra note 23, 38. Ibid., 37. Ibid., 3–​6. Problems and Process. International Law and How We Use It (1994), 39. Internationaal Publiekrecht als Wereldrecht (2018), 52. M. Craven, ‘Statehood, Self-​Determination and Recognition’ in M.D. Evans, International Law (2014) 217. Craven declares that the Montevideo Convention is unclear and is either ‘too abstract or too strict.’ R. Jennings and A Watts (eds.), Oppenheim’s International Law (1992), 120. International Law (2017) 156–​164.

100 Dugard arguing that there is a customary international law definition of State that encapsulates the criteria of the Montevideo Convention –​as argued by several submissions to the Pre -​Trial Chamber in the Palestine case.45 Instead they prefer to see it as the starting point for any enquiry into the question whether an entity of doubtful status qualifies as a State. Vaughan Lowe puts it well when he says that the Montevideo Convention definition of State ‘was a child of its time, and reflects none of the preoccupation with self-​determination, democracy and legitimacy which characterized discussions of Statehood later in the twentieth century. But is a good place to start because while its four criteria have been added to, no-​one has suggested that any of them is dispensable.’46 In similar vein Brownlie’s Principles of Public International Law declares that the criteria of the Montevideo Convention are ‘no more than a basis for further investigation. Not all the conditions are necessary, and in any case further criteria must be employed to produce a working definition.’47 Finally, whether an entity qualifies as a State will depend as much on the context of the question asked as on the fulfilment of the criteria of the Montevideo Convention. As D.P. O’Connell warned, the sense in which the term State is used in a particular case ‘will depend upon the context, and the inclusion or exclusion of a particular entity from the category of “State” cannot be presumed from any a priori notion of the qualifications of statehood.’48 Does the Montevideo Convention Contain a Conclusive Definition of Statehood under Customary International Law? There is a common view that Article 1 of the Montevideo Convention prescribing the criteria for statehood as they stood in 1933 is today a rule of customary international law that provides a binding rule on the meaning of State. This view was advanced by both States and amici in their submissions to the Pre-​Trial Chamber in the case of Palestine. The Czech Republic, Hungary and Germany, Shaw, Badinter, the European Centre for Law and Justice and the Lawfare Project all disputed the statehood of Palestine on the ground that it failed to comply with one or more of the Montevideo Convention criteria for statehood –​population, defined territory, government and capacity to enter into international relations. These submissions, the opinions of some jurists and the reasoning of at least two tribunals, make it necessary to examine whether Article 1 of the Montevideo Convention today reflects a rule of

1.5

45 46 47 48

See below Section 1.5. International Law (2007) 153. See, too, Craven, supra note 42, 217. J. Crawford (ed.) (2019) 118. International Law, London (1970) Vol. l, 283.

What Is a State in International Law?

101

customary international law against which the status of an entity seeking acceptance as a State may be measured. Any enquiry into the statehood of a an entity claiming statehood that is unable to show that it qualifies as a State by reason of its acceptance as a State by the community of nations,49 will inevitably commence with an examination into whether the entity meets the criteria of the Montevideo Convention –​population, defined territory, government and capacity to conduct international relations. But there is big difference between asserting that the Montevideo criteria are the starting point for such an enquiry and claiming that they are the only criteria and factors to be considered and that satisfaction of these criteria constitutes a binding customary rule. In the first place, contemporary State practice requires other factors to be considered; secondly, the criteria are so lacking in uniformly accepted content that they fail to satisfy the requirements of usus and opinio juris necessary for the creation of a customary rule. In addition, there is the matter of recognition. An entity that fails to satisfy the criteria of Montevideo may be recognized by existing States as a State, as in the case of Bosnia-​Herzegovina when in 1992 it was recognized as a State and admitted to membership of the United Nations without an effective government. Or an entity may meet the requirements of statehood proclaimed in Montevideo and still not be recognized as a State, as in the case of Somaliland. States retain a discretion to decide whether an entity qualifies as a State and in such a case their subjective interpretation of the Montevideo conditions will prevail. In such circumstances it is difficult to attribute fixed content to the Montevideo criteria. The first question to consider is whether the four Montevideo Convention conditions for a statehood are generally accepted. This requires an examination not only of each criterion employed in the Montevideo Convention but also of the meaning attached to each criterion in State practice. 1.5.1 Permanent Population Today there is agreement that the term population refers to a people living in a particular territory. Whereas previously States refused to accept as States entities with a small number of inhabitants (such as Liechtenstein, Monaco, San Marino)50 today there appears to be no required minimum. Some fifty 49 50

For example by admission to the United Nations or one of its specialized agencies; see further below Section 2. The League of Nations refused to admit these entities to membership on account of their size. See J. Duursma, Fragmentation and the International Relations of Micro States. Self-​ determination and Statehood (1996), 171–​4, 233–​7, 292–​4.

102 Dugard member States of the United Nations have populations of less than a million, and Tuvalu and Nauru have less than 15,000 inhabitants each. The Holy See (Vatican) has a population of less than 1000 that cannot be described as permanent; and a territory of 100 acres. Despite this it is recognized by over 170 States and enjoys permanent non-​member observer status before the United Nations. The statehood of the Holy See is anomalous and it is unlikely that so small an entity without the Holy See’s special religious status would be recognized as a State. Would States recognize Pitcairn Island with a population of less than fifty as an independent State? Probably not, which serves to show that there must be some minimum population for a State. And there are other problems that might lead to questioning of an entity’s statehood such as the nationality of the population. States might well balk at the idea of recognizing an entity whose population overwhelmingly comprised foreigners, although more than eighty per cent of the population of Qatar and the United Arab Emirates comprises foreigners. 1.5.2 Defined Territory This requirement has been very generously interpreted to include a territory without defined borders,51 a territory with separate parts52 and a territory fragmented into several parts.53 This does not deter States determined not to recognize an entity as a State from raising arguments about undefined borders and fragmented territory should the occasion arise. Thus the statehood of both Israel and Palestine has been questioned on the ground that their borders are not defined54 while the United Kingdom advanced the fragmented nature of the South African Bantustan, Bophutatswana, as a reason for not recognizing it.55 1.5.3 Government The Montevideo Convention lists ‘government’ as one of its four criteria. The Montevideo Convention provides no definition of government but in practice this requirement has generally been interpreted as meaning ‘effective government’, that is a government that is in general control of its territory and

51

In the North Sea Continental Shelf Cases, the International Court of Justice declared that ‘there is … no rule that the land frontiers of a State must be fully delimited and defined’ [1969] icj Rep. 3 at para.46. 52 For example, the United States and Alaska. 53 For example, Indonesia. 54 Crawford, supra note 23, 48. 55 Ibid., 47.

What Is a State in International Law?

103

is independent of any other authority. This is said to be the ‘most important single criterion of statehood’.56 This criteria has no fixed or clear meaning. State practice shows that the criterion of effective government is relative in the sense that it depends on the circumstances of each case and the whims of recognizing States. In some cases States assert the need for demonstrably effective government when determined not to recognize an entity as a State for political reasons. On other occasions States have displayed a great willingness to relax this requirement. During the decolonization period former colonies were recognized as States and admitted to the United Nations in pursuance of the right of self-​ determination despite having ineffective governments in many cases. Self-​ determination proclaimed in Resolution 1514(xv) was seen to trump traditional notions of effective government. In 1960 the Republic of Congo was recognized and admitted to the United Nations at a time when it had no effective government, a secessionist territory (Katanga) and two factions claiming to be a government.57 In 1973 Guinea-​Bissau was recognized by States and admitted to the United Nations before it was recognized by the colonial power –​Portugal –​ and at a time when its government did not exercise authority over the majority of its population or major towns.58 In 1976 Angola was recognized by States and admitted to the United Nations at a time when two factions –​the Popular Movement for the Liberation of Angola and the National Union for the Total Independence of Angola rivalled each other for power –​a contested rivalry that was to continue for several decades.59 This flexibility in respect of the criterion of effective government shows that it is not seen by States to be a binding customary rule but rather a factor to be considered by States in the politics of recognition. This is demonstrated by the sharply contrasting decisions of the United States and many member States of the European Union on the statehood of Palestine and Bosnia-​Herzegovina. Palestine is not recognized by these States mainly because it is seen not to have an effective government. That the statehood of Palestine is to be judged in the context of decolonization as it is covered by the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples60 is ignored. In contrast, Bosnia Herzegovina, a State not covered by the 1960 Declaration, was recognized by the United States and European Union and admitted to the 56 Ibid., 56. 57 Ibid. 58 D. Raic, Statehood and the Law of Self-​Determination (2002) 98–​99. 59 Ibid., 99–​100. 60 Resolution 1514 (xv). See in particular, paras. 1, 2, 4 and 5.

104 Dugard United Nations in 1992 at a time when the government controlled less than one-​half of its territory and was challenged by rival factions –​a situation that continued until the Dayton Peace Agreement of 1995.61 1.5.4 Capacity to Enter into Relations with Other States There is an inherent contradiction in the Montevideo Convention in respect of the fourth criterion of statehood. While Article 1 provides that the capacity to enter into relations with other States is a criterion of statehood, Article 3 declares that ‘the political existence of a State is independent of recognition by other States.’ This assertion that by necessary implication there is no connection between the requirement of capacity to enter into relations with other States and recognition fails to take account of the fact that a State cannot demonstrate a capacity to enter into relations with other States until it is recognized by other States. A State does not have to show that it is recognized by many States but it cannot prove that it has a capacity to enter into relations with other States until it can point to the fact that it has relations with at least some other States as proof of such a capacity. This obvious truth was recognized by British Special Commissioners of Inland Revenue in Caglar v Billingham (Inspector of Taxes) in respect of the Turkish Republic of Northern Cyprus when it stated: In view of the non-​recognition of the Turkish Republic of Northern Cyprus by the whole of the international community other than Turkey we conclude that it does … not have functional independence as it cannot enter into relations with other States. It therefore does not satisfy the fourth requirement of statehood.62 The view that it is sufficient for a would-​be State to prove that it has a diplomatic corps ready to go into action when it is given the opportunity to do so was asserted by the Supreme Court of the Bantustan State of Bophutatswana in response to the argument that it failed to meet the fourth criterion of statehood because it had been recognized by no other State.63 Few will accept this proposition. The argument that the Montevideo Convention’s criteria represent customary international law must be premised on State practice. As far as the fourth criterion is concerned, State practice shows that some measure of recognition 61 Raic, supra note 58, 414–​418; Shaw, supra note 44, 342. 62 108 ilr 510 at 545, para. 182. 63 S v. Banda 1989(4) South African Law Reports, 519 at 543.

What Is a State in International Law?

105

is essential to meet the test of statehood. There is no instance of an entity satisfying the requirements of statehood, and by necessary implication the criterion of capacity to conduct international relations, without some recognition. This is illustrated by the cases of Somaliland and Taiwan. Somaliland appears to satisfy the first three requirements of statehood prescribed by the Montevideo Convention. That it has the capacity to enter into relations with other States is evidenced by its relations with States such as Ethiopia, South Africa, Kenya and the United Kingdom. But it is not recognized by any State64 and consequently is not seen to be a State. Taiwan too conducts relations with many States but is not recognized as a State with the consequence that it is not viewed as a State.65 This reveals an inherent flaw in the Montevideo Convention: Article 1’s fourth criterion is irreconcilable with Article 3 from the perspective of State practice. In these circumstances it cannot seriously be suggested that this criterion satisfies the tests of either usus or opinio juris for it to qualify as a customary rule. Criteria for Statehood in Addition to Those of the Montevideo Convention Today criteria not contained in the Montevideo Convention are advanced for statehood with the backing of State practice66 which means that Montevideo cannot be seen as the final statement on statehood. The main factors seen as complementing or elucidating Montevideo’s criteria are independence, sovereignty, self-​determination, recognition and the violation of peremptory norms.

1.6

1.6.1 Independence and Sovereignty Independence and sovereignty are increasingly used as terms that capture the notions of government and capacity to conduct international relations. Independence as the right of a State to exercise the functions of a State within its territory to the exclusion of other States67 is seen by Crawford as the central68 and decisive69 criterion for statehood, but he acknowledges that it is

64 65 66 67 68 69

See J. Dugard, ‘The Secession of States and their Recognition in the Wake of Kosovo’, (2013) 357 Recueil des Cours 9, at 139. See Crawford, supra note 23, at 198–​221. See the suggested additional criteria discussed by Crawford, ibid., at 62–​95. See the dictum of judge Huber in the Island of Palmas arbitration (1928) 2 riaa 829, at 838. Creation of States, supra note 23, at 62. Brownlie’s Principles of Public International Law (2019) at 119.

106 Dugard closely associated with the requirement of effective government.70 Shaw likewise views independence as ‘crucial’ to statehood, but prefers to categorize this as an aspect of the capacity to conduct international relations.71 Like Badinter in his arbitral opinion on Yugoslavia,72 both Crawford and Shaw equate independence with the concept of sovereignty.73 Statehood is certainly associated with notions of independence and sovereignty, but both these terms are more renowned for their elasticity than their precision. This means that it is difficult to argue that State practice has generated a customary rule requiring a State to demonstrate ‘independence’ or ‘sovereignty’ as a pre-​requisite to statehood. Certainly they do not add clarity to the contested notions of government and capacity to enter into international relations of the Montevideo Convention. 1.6.2 Self-​Determination The right of a people to self-​determination cannot be seen as an interpretation or elucidation of the Montevideo Convention. It is an autonomous criterion unrelated to and in some respects contradictory to the criteria prescribed by Montevideo. Certainly it has weakened the criterion of government if this is to be interpreted as effective government. Despite this it is today viewed as an important factor to be considered in deciding whether an entity is to qualify as a State. The United Nations,74 the International Court of Justice75 and scholarly opinion76 are agreed on this. The Prosecutor of the icc, in her request for ruling of the Pre-​Trial Chamber of the icc on the Court’s territorial jurisdiction in Palestine declared that: [t]‌he principle of self-​determination has significantly affected and modified the law governing territorial sovereignty …77 [t]the international

70 71 72 73 74 75

76 77

Ibid., at 119. International Law (2017), at 160. Supra note 31. Crawford, in Brownlie’s Principles of Public International Law (2019), at 124; Shaw, International Law (2017), at 160. See Articles 1, 55; General Assembly resolutions 1514(xv) and 2625(xxv). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] icj Rep. icj Rep.16, at 31; East Timor (Portugal v Australia),, [1995] icj Rep. 90, at 102; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, [2019] icj Rep. 95, at paras. 153–​162. See, for example, Crawford, supra note 23, at 107–​148; Shaw, supra note 71, at 162. icc-​01/​18, 20 December 2019, 104 at para. 194.

What Is a State in International Law?

107

community has recognized the right of the Palestinian people to self-​ determination and to an independent and sovereign State …78 Today there are 193 member States of the United Nations, whose statehood is unquestioned. Most are the product of the process of decolonization which saw the United Nations jump from an institution with 76 member States in 1955 to its present membership of 193. The right of self-​determination has been the driving force behind the emergence of an international community characterized by diversity and universality. If self-​determination has played and continues to play such an important role as a factor or criterion in the determination of statehood can it really be argued that compliance with the four criteria of Montevideo alone suffices for such a determination? 1.6.3 Recognition Recognition is muddled by the debate between the constitutive and declaratory schools over the impact of recognition on statehood. Constitutivists argue that recognition creates the State while declaratorists maintain that statehood is a question of fact and that recognition simply acknowledges –​declares –​ that an entity meets the factual requirements of statehood. An unfortunate consequence of this debate is that strict declaratorists, who seem to enjoy the support of most academics, claim that a State may come into existence with no recognition at all –​as long as it satisfies the factual requirements for statehood set out in Montevideo. This is simply wrong. An entity cannot qualify as a State without some recognition. There is no example in today’s world of an entity accepted as a State without some recognition. As shown above,79 Somaliland and Taiwan are not accepted as States despite the fact that they conduct international relations with States because they are not recognized by other States. Whether an entity with only a handful of recognitions, such as Abkhazia80 and South Ossetia,81 are accepted as States is doubtful. On the other hand, Kosovo, with some 115 recognitions,82 and Palestine with 138 recognitions, may claim to be accepted by the international community as States despite their exclusion from membership of the United Nations. Obviously membership of the United

78 79 80 81 82

Ibid., 111 at para. 219. Supra, at notes 64 and 65. Seven States recognize Abkhazia. Six States recognize South Ossetia. In recent times fifteen of these States have withdrawn their recognition.

108 Dugard Nations, as a collective act of recognition83 on the part of the international community, places the statehood of an entity beyond doubt even if there are serious doubts about the compliance of such an entity with the Montevideo criteria. It is not necessary to decide whether recognition is a factor to be considered in deciding whether an entity is a State or whether it is a criterion for statehood. The simple fact is that without substantial recognition on the part of other States or admission to the United Nations, a would-​be State is not a State. The situation is admirably summed up by Malcolm Shaw: There is also an integral relationship between recognition and the criteria for statehood in the sense that the more overwhelming the scale of international recognition is in any given situation, the less may be demanded in terms of the objective demonstration of adherence to the criteria. Conversely, the more sparse international recognition is, the more attention will be focused upon proof of actual adherence to the criteria concerned.84 1.6.4 Peremptory Norms The Montevideo Convention predated the era of jus cogens. Consequently it took no account of the entity that complies fully with its four criteria but has come into existence in violation of a peremptory norm of international law, such as aggression or denial of the right of self-​determination. Today such entities are denied statehood.85 Related to this is the factor of illegal behavior on the part of the State that denies the statehood of a colony, occupied territory or secessionist territory. The suppression of human rights and the violation of international humanitarian law in the denial of statehood may result in loss of a claim to the territory: ex injuria jus non oritur.86 These developments serve to show that the Montevideo Convention must be seen in the context of its time and that it is both misleading and inaccurate to see it as the final statement on the notion of statehood. 83

On collective recognition, see J. Dugard, ‘The Secession of States and their Recognition’, supra, note 64, at 57–​69. 84 Supra note 71, at 164. 85 See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, [2010] icj Rep. 403, at 437–​8. 86 See the Prosecutor’s Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in respect of Palestine, icc -​01/​18 of 20 December 2019, paras. 157–​178. Here the Prosecutor stressed Israel’s illegal settlements and illegal construction of a wall in Palestinian territory as factors to be considered in the context of statehood.

What Is a State in International Law?

2

109

How Is an International Tribunal to Decide whether an Entity Is a State?

Executive Certificate before National Courts 2.1 This section is devoted to examining how an international tribunal might or should respond to a request that it pronounce upon the statehood of an entity before it. There is little point in considering how a national court would respond because in most circumstances in most countries such a determination will be made by the government of the forum State by means of an executive certificate informing the court of its conclusive decision on this subject having regard to the political policies of the government. Hopefully this decision will be informed by consideration of the criteria of the Montevideo Convention and other factors of the kind described above, but in most countries few restraints are placed on the discretion of the government.87 The international community and the United Nations have no equivalent of the national executive certificate which confers authoritative approval of a State before an international court. There are, however, some indicia in the United Nations system and the present international order that offer assistance. Membership of an intergovernmental organization committed to universality provides strong evidence of general acceptance as a State by the community of States. Although the decision to admit an entity to such an organization will be a political decision on the part of existing members there is little doubt that such a decision will be reached with due regard for the normative criteria for statehood considered above.88 2.2 Membership of the United Nations It would seem that there is an irrebuttable presumption that a member State of the United Nations is a State. The 193 member States of the United Nations include nearly all entities that claim to be States in today’s world. Member 87

88

This practice is consistently employed by common law courts, but is also followed in most civil law countries. See J. Crawford (ed.), Brownlie’s Principles of Public International Law (2019), at 147–​154; R. Jennings & A.Watts (eds.) Oppenheim’s International Law (1992) Vol. i, at 1046–​1052. Todd Buchwald and Stephen Rapp present a contrary argument in their amicus submission to the ptc of the icc in the Palestine case: icc –​01/​18 of 16 March 2020, particularly 32. Their sophisticated argument that disavows the decision of the plenary body of an international organization because it is ‘political’ fails to take account of the extent to which international organizations are guided by the normative criteria for statehood in the admission of States to membership of international organizations.

110 Dugard States may not recognize each other89 or maintain diplomatic relations but it is inconceivable that the International Court of Justice or any other international court would second guess the United Nations and find that a member State fails to qualify as a State –​even if could convincingly be proved that it failed to meet the accepted criteria for statehood. Recognition by the General Assembly 2.3 In rare cases, where an entity claiming statehood elects not to apply for UN membership –​as with the Holy See,90 or where it fails to obtain the support of the Security Council for political reasons91 –​as with Palestine,92 the General Assembly may decide to recognize an entity as a non-​member observer State with rights to participate in debates in the Assembly. Such a decision would seem to provide clear evidence of statehood but the challenges to Palestine’s statehood in amici submissions to the Pre -​Trial Chamber of the icc suggest that some States do not accept such a decision as conclusive proof of statehood. Such a decision by the most representative body of the United Nations and international community must, however, give rise to a presumption of statehood, albeit rebuttable. 2.4 Membership of a UN Specialized Agency Membership of a UN specialized agency also provides strong evidence of statehood as ‘specialized agencies tend to aspire to broad, sometimes near –​ universal, membership rivalling or exceeding that of the UN itself’.93 Of the 17 specialized agencies two –​fao and who –​have more members than the UN. Membership of such an agency therefore provides strong evidence of general acceptance of a member as a State. The admission of a State to a specialized agency contains a further indication of statehood. The ‘Vienna formula’ in

89 90 91 92

93

For example, some Arab States still persist in their non-​recognition of Israel. In 1964, and again in 2004, the General Assembly recognized the Holy See as a permanent observer State, with the right to participate in debates in the Assembly. The Holy See has, however, chosen not to apply for full membership. Between 1946 and 1955 Finland, Italy, Albania, Bulgaria, Hungary and Romania were denied membership of the United Nations because of the threat or use of the veto. In 2012 the General Assembly resolved in Resolution 67/​19 that Palestine enjoys ‘non-​ member observer State status in the United Nations’. In 2011 Palestine failed to obtain the support of the Security Council due to the threat of the US veto: see statement by USA, Security Council 66th Session, 6636th Mtg. 24 October 2011, Security Council Official Records. S/​PV.6636, p. 12. R. Higgins, P. Webb, D. Akande, S. Sivakumaran & J. Sloan (eds.), Oppenheim’s International Law. United Nations (2017), 239–​240. See too Art. 57 of the UN Charter.

What Is a State in International Law?

111

Article 81 of the Vienna Convention on the Law of Treaties allows States that are members of specialized agencies to become parties to multilateral treaties that adopt this formula.94 Membership of International Organizations Other than Specialized Agencies Membership of an international organization operating outside the United Nations, such as the International Criminal Court, the Permanent Court of Arbitration, the International Tribunal for the Law of the Sea and the Organization for the Prohibition of Chemical Weapons that, unlike regional arrangements, aspire to universality also provides strong evidence of general acceptance as a State.

2.5

2.6 Reaching a Decision on Statehood Where the statehood of an entity admitted to membership of an intergovernmental organization restricted to States is challenged in respect of the activities or functions of such an organization such a challenge must fail. Once an organization has agreed to accept an entity as a member State this is conclusive proof of statehood for the purpose of the operations of that organization. This has been confirmed by the Pre-​Trial Chamber of the ICC in the Palestine jurisdiction case. If this were not the case no member State of an organization would be secure in its rights of membership. There would always be some State ready to challenge the rights of a member State on the ground that its borders were uncertain, its government ineffective or its capacity to conduct international relations doubtful. The Cook Islands presents an example of a State vulnerable to such a strategy.95 The Cook Islands is a State in free association with New Zealand. Although not a member of the United Nations it is a member of four specialized agencies, the icc and has diplomatic relations with many States. Could Australia object to its referral to the icc of a crime committed by an Australian national on the territory of the Cook Islands on the ground that it fails to constitute a State under ‘general international law’ –​in the way that it objected to Palestine’s statehood?

94 95

See, for example, Art. 17 of the Convention on the Elimination of All Forms of Racial Discrimination. This is probably why the Prosecutor raised the question of the Cook Islands and the icc in her request for a ruling on the Court’s territorial jurisdiction in the case of Palestine: icc –​ 011/​18, 20 December 2019, para. 125.

112 Dugard It is only in cases involving a dispute between States outside the framework of an international organization of which they are both members and not relating to the affairs of that organization that the issue of statehood may be raised by way of a challenge to a legal action. In such a case it might be necessary for an international court –​or national court in the absence of an executive certificate –​to decide whether the plaintiff State is indeed a State. Here it is suggested that the court should proceed as follows. First, it should enquire whether the State in question has received general acceptance by the community of States by reason of its membership of the United Nations, a specialized agency or other intergovernmental organization with universal membership. Here it should also enquire whether the entity if not a member of the organization has been permitted to participate in the work of the organization. Second, when the evidence is inconclusive in the sense that doubts remain about the statehood of the entity, it should resort to the traditional criteria for statehood contained in the Montevideo Convention, together with recognition, self-​determination, the principle of ex injuria non oritur and the prohibition on the creation of States in violation of a norm of jus cogens. The criteria for statehood of the Montevideo Convention provide a starting point for an understanding of the development of notions of statehood in international law. But they are not a legal panacea for the determination of statehood. They do not provide a definition of State, constitute ‘general international law’ on the concept of State or represent clear customary law. They are simply factors to be considered in the ascertainment of statehood along with other considerations of the kind described above.

­c hapter 6

The Role of Customary International Law as a Tool for the Progressive Development of International Criminal Law Undermining the Sovereignty of States for the Sake of Humanity? Robert Heinsch 1 Introduction1 Nico Schrijver has dedicated his academic career to many areas of international law, including the advancement of human rights law. In this regard, one can easily gather from his works that the respect for the core values of our global community and especially the principles of humanity are at the very heart of his writings. The present contribution wants to highlight the specific role the principles of humanity can play for both international humanitarian and international criminal law, while at the same time stressing that international judges need to be careful when using these principles as a justification to expand possible rules to the area of customary international law. Although customary law and especially the criterion of opinio juris have been a decisive factor for the development of international criminal law and international humanitarian law during the more than two decades of the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (icty), the International Criminal Tribunal for Rwanda (ictr),2 and also the Special Court for Sierra Leone (scsl) we need to raise the question of whether the currently existing international (criminal) courts and tribunals, and especially 1 Dr. Robert Heinsch, ll.m. is an Associate Professor for Public International Law at the Grotius Centre for International Legal Studies, and the Director of the Kalshoven-​Gieskes Forum on International Humanitarian Law and its International Humanitarian Law Clinic at Leiden Law School ([email protected]). 2 With regard to the icty’s and ictr’s judicial law-​making in the area of international criminal law, please refer to R.W. Heinsch, ‘Judicial ‘Law-​Making’ in the Jurisprudence of the icty and ictr in Relation to Protecting Civilians from Mass Violence: How Can Judge-​Made Law Be Brought into Coherence with the Doctrine of the Formal Sources of International Law’ in P. Ambach, F. Bostedt, G. Dawson, S. Kostas (Eds.) The Protection of Non-​Combatants During Armed Conflict and Safeguarding the Rights of Victims in Post-​Conflict Society (2015) 297–​330.

© Koninklijke Brill NV, Leiden, 2021 | D

114 Heinsch the International Criminal Court (icc) should not be bound to follow a more cautious approach in their jurisprudence in order to secure the acceptance of its decisions by the world community and to ensure that the Court does not have to face any reproaches of violating the principle of legality or encroaching upon the sovereignty of States.3 2

The Need for Customary International Law in the Early Phases of International Criminal Law

While a good case can be made for claiming that the extensive use of customary international was a necessary tool in the early phases of the development of international criminal law, it is important to assess whether this claim still applies almost 20 years after the Rome Statute for the Permanent International Criminal Court entered into force, on 1 July 2002. In this regard, it is pivotal to have a look at article 38 of the Statute of the International Court of Justice (icj) which sees customary international law as one of the three primary sources of international law, stating that international custom is to be understood as “general practice accepted as law”. From this starting point scholars and especially the icj have developed an elaborated system of what is to be understood as belonging to the two requirements, namely an objective element referred to as “State practice” (usus) and a subjective element requiring the “belief that the respective State practice corresponds to a legal obligation or a legal right” (opinion juris).4 2.1 Adjustment of the “State Practice” Requirement However, during the early years of jurisprudence of the UN ad hoc Tribunals for the former Yugoslavia and Rwanda, we witnessed a tendency to apply those 3 On this topic, see for example: B. Van Schaack, Legality & International Criminal Law (2009) 103 Proceedings of the Annual Meeting (American Society of International Law) 101, 104. Accessed November 30, 2020. http://​www.jstor.org/​stable/​10.5305/​procannmeetasil.103.1.0101a. 4 Instructive in this regard is the icj’s statement in the North Sea Continental Shelf Cases, icj Reports 1969, 3, at 44 (para. 77) where it observed: “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of rule requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitates.” This has been confirmed in the Continental Shelf (Libya v Malta) case, icj Reports 1985, 13 at 29–​30 (para. 27) where it held that “It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinion juris of States […].”

The Role of Customary International Law

115

two conditions of customary international law in a more flexible way. In particular, the jurisprudence of the icty seemed to have interpreted these requirements more broadly in order to adjust them to the special features of international humanitarian law and international criminal law.5 As the icty Appeals Chamber in its Decision on Jurisdiction in the Tadić case stated: [A]‌word of caution on the law-​making process in the law of armed conflict is necessary. When attempting to ascertain State practice with a view to establishing the existence of a customary rule or a general principle, it is difficult, if not impossible, to pinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in fact comply with, or disregard, certain standards of behaviour.6 This observation raised by the icty Appeals Chamber in 1995 is persuasive in its simplicity. It appeals to common sense that (State) practice which cannot be seen because the information is not accessible during the special circumstances of war is almost impossible to pinpoint in the context of the traditional two-​step approach. At the same time, and due to the prohibitory character of ihl rules, the respective (State) “behaviour” would actually be a “non-​act”, since the compliance with such a rule will usually be seen as an omission. In this regard, it is important to quote another statement from said Tadić decision which probably had very much impact on the law creating process in international criminal law over the last two and a half decades. In its 1995 Tadić decision, the icty Appeals chamber came to the conclusion that: [R]‌eliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions.7 That these so-​called “verbal acts” can represent legitimate examples of State practice has been confirmed by the 2018 Final Report of the International Law Association’s Committee on the formation of customary international law,8 by

5 For more details, please see supra, footnote 2. 6 Prosecutor v. Duško Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 99. 7 Prosecutor v. Tadić, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 99. 8 International Law Commission, Draft conclusions on identification of customary international law with commentaries (2018), Conclusion 6 (1), p. 133; available at https://​legal. un.org/​ilc/​texts/​instruments/​english/​commentaries/​1_​13_​2018.pdf.

116 Heinsch the 2005 Study of the icrc on Customary International Humanitarian Law9 and by distinguished scholars.10 There are also a substantial number of decisions of international tribunals in which verbal acts have been treated as examples of practice.11 These verbal acts might include diplomatic statements, policy statements, press releases, official manuals, instructions to armed forces, comments by governments on draft treaties, legislation, decisions of national courts and executive authorities, etc.12 Some commentators have criticized that it is sometimes hard to distinguish these verbal acts from evidence of opinio juris and that the icty took advantage of this fact in order to use the same documents for illustrating the objective as well as the subjective element, and that therefore this approach is not supposed to be “based on a sound and consistent methodological approach”.13 However, given the special character of the law of armed conflict and its underlying factual situation, a good argument can be made for the view that military manuals need to be seen as evidence for both State practice and opinio juris. From this follows that international criminal tribunals should not be precluded from using these kinds of verbal acts in order to prove a rule of customary law. From the author’s point of view, the icty in its Tadić decision was right to stress the special character of armed conflicts and the difficulty to find evidence for a customary rule. This can be illustrated by a simple example: The compliance with a prohibitory norm like Article 51 (2) of Additional Protocol i to the Geneva Conventions “The civilian population as 9

See J. Henckaerts, ‘Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict’, (2005) 87 IRRC 175, 179. 10 Cf. Meron, (1987) 87 ajil 348, 361: “Generally, however, because of the difficulty of ascertaining significant state practice in periods of hostilities, manuals of military law and legislation of states providing for the implementation of humanitarian law norms as internal law should be considered as the best types of evidence of such practice and, sometimes perhaps, as a statement of opinion juris as well”. 11 E.g., “Lotus” case (1927), pcij Ser. A, No. 10, pp. 23, 26–​30; Nottebohm case (2nd Phase), icj Rep. 1955, p. 4 at pp.21–​23; Fisheries Jurisdiction (Merits), ibid. 1974, p. 3 at 24-​26 (paragraphs 55–​58); Nicaragua case (Merits), ibid., 1986, p. 14 at 97–​109 (paragraphs 183–​207); Nuclear Weapons, icj Rep. 1996, p. 226, e.g., at 259–​61 (paragraphs 86, 88); Gabcikovo-​ Nagymaros Project, icj Judgment of 25 September 1997, e.g. at paragraphs 49–​54, 83, & 85. 12 See International Law Commission, Draft conclusions on identification of customary international law, with commentaries (2018), adopted by the International Law Commission at its seventieth session, in 2018, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/​73/​10), Conclusion 6, available at https://​legal.un.org/​ilc/​texts/​instruments/​english/​commentaries/​1_​13_​2018.pdf. 13 V. Heintschel Heinegg, ‘Criminal International Law and Customary International Law’, in: Zimmermann (ed.), International Criminal Law and the Development of Public International Law, (2003), 43.

The Role of Customary International Law

117

such, as well as individual civilians, shall not be the object of attack.” (italics by author) could be fulfilled by an omission (e.g., soldiers not targeting civilians). However, it is obvious that an omission is much harder to prove than a physical act. Therefore, it is often easier to rely either on a verbal justification that the killing was legitimate (e.g., because the target was not a civilian) or to refer to the respective military manual of the armed forces which states that it is prohibited to kill civilians. Consequently, one has to admit that verbal acts have an important place in establishing that a customary rule of the international law of armed conflict exists.14 Adjustment of the Frequency and Uniformity Requirement in the Area of International Humanitarian and Human Rights Law In a similar vein, one has been able to observe a tendency to lower the threshold concerning the “high-​frequency and high-​consistency requirement” with regard to State practice, especially in the area of international human rights and international humanitarian law. For example, with regard to the passage of a short time to observe the creation of a new rule of customary law, the icj already in 1969 stated that “the passage of only a short period of time is not necessarily, or of itself a bar to the formation of new rule of customary law”15 when dealing with the question whether a customary rule can develop from a conventional rule. Furthermore, it was an icty Judge, Judge Sidhwa, who stressed in his separate opinion to the Tadić Appeals Decision in 1995 that: 2.2

Abrupt development of customary law is not unusual. In the field of international human rights law, convention and custom have sometimes sprung up almost instantaneously, leading to almost overlapping developments in conventional and customary law.16 The most important statement in this regard was probably made by the icty Trial Chamber in the Kupreškić et al. case in 2000, when it came to the conclusion that concerning the prohibition of reprisals against civilians the following needs to be taken into account:

14 15 16

See also on this: Report of the International Law Commission, 65th session, Chapter x, para. 143, available at https://​legal.un.org/​ilc/​reports/​2014/​english/​chp10.pdf. North Sea Continental Shelf Cases, icj Reports 1969, 43. Prosecutor v. Tadić, Separate Opinion of Judge Sidwha on the Defence Motion for Interlocutory Appeal on Jurisdiction (1995), para. 115.

118 Heinsch This is however an area where opinio iuris sive necessitates may play a much greater role than usus, as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitates, crystallising as result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.17 However, it is important to note that this last statement goes a step further than the previously mentioned decisions. By referring to the Martens clause, and especially the “demands of humanity or the dictates of public conscience” the icty Chamber seemed to have opened up the door wide for so-​called “judge-​ made law”.18 While still trying to connect their findings to the formal source of customary international Law (“customary process”), it seems that the decisive aspect in “finding” the right law, are now the concepts of humanity and public conscience (“under the pressure of”). This also begs the question who is supposed to determine the content of these concepts. From the perspective of the law applier, the answer seems obvious: the judges of the respective chamber. However, this brings us very close to a theory of the sources of international (criminal) law which bases its core on a natural law approach.19 This seems like an approach which is not without dangers, since it gives the judges great power in stating what the law is and might be in direct contradiction with the sovereignty of States, which are still seen as the main (and arguably only) creators of international law.20 17 18 19

20

Prosecutor v. Kupreškić et al., Trial Chamber, Judgement, 14 January 2000, para. 527. Very instructive in this regard: J. Powderly, “Judges and the Making of International Criminal Law”, (2020) Accessible at Nov 30, 2020, from https://​brill.com/​view/​book/​ 9789004368729/​front-​9.xml. On this topic, please refer to R. Alford, The Role of Natural Law as a Source for International Law, Opinio Juris (2008) available at: http://​opiniojuris.org/​2008/​11/​19/​the-​ role-​of-​natural-​law-​as-​a-​source-​for-​international-​law/​ and D. Jacobs, ‘International criminal law’ in J. Kammerhofer & J. D’Aspremont (Eds.), International Legal Positivism in a Post-​Modern World (2014) (pp. 451–​474). Very elaborative on this topic: P. Schröder ‘Natural Law, Sovereignty and International Law: A Comparative Perspective’ in: Hunter I., Saunders D. (eds) Natural Law and Civil Sovereignty (2002).

The Role of Customary International Law

119

However, it is also important to stress that this is not a completely new development, because already after the Nicaragua Judgement of the icj in 1986, there were commentators who observed that: “The ‘ought’ merges with the ‘is’, the lex ferenda with the lex lata”.21 Advantages of Customary Law in the Law-​Creating Process of New Areas of Law It is important to keep in mind that international law does not know a central legislative body which has the power to create new law when a new situation has to be regulated. We also know that the drafting and ratification of treaties can be a very long process and therefore customary international law has a pivotal role especially in a newly developing field like international criminal law.22 Thus, especially in the years of the “birth” of international criminal law (International Military Tribunal at Nuremberg, International Military Tribunal for the Far East in Tokyo) and also during its “adolescence” (icty, ictr, scsl) customary international law was decisive in order to establish a functioning system of international criminal law. If it was not for the icty Appeals Chamber’s statements on the scope and existence of customary international humanitarian law in non-​international armed conflicts, it is highly questionable if war crimes in non-​international armed conflicts would have been included in the jurisdiction of the icc.23 Today it is common opinion that even in international criminal law, customary law is a legitimate source and does not violate the principle of legality

2.3

21

22

23

T. Meron, ‘The Geneva Conventions as Customary Law’, (1987) 81 AJIL 361; the full statement is “These decisions nevertheless point to a certain trend in this area, including a tendency to ignore, for the most part, the availability of evidence of state practice (scant as it may have been) and to assume that noble humanitarian principles that deserve recognition as the positive law of the international community have in fact been recognized as such by states. The ‘ought’ merges with the ‘is’, the lex ferenda with the lex lata. The teleological desire to solidify the humanizing content of the humanitarian norms clearly affects the judicial attitudes underlying the ‘legislative’ character of the judicial process.” Cf. T. Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’, (1996) 90 AJIL 247, stating that: “[c]‌ustomary law is thus a major vehicle for the alignment, adjustment and even the reform of the law. In many other fields of international law, treaty making is faster than the evolution of customary law. In international humanitarian law, change through the formation of custom might be faster, but less precise in content, than the adjustment of law through treaty making.” For an extensive overview of the process which lead to the codification of customary war crimes in the Rome Statute, please refer to Y. Tan, The Rome Statute as Evidence of Customary International Law (2019), available at https://​openaccess.leidenuniv.nl/​handle/​1887/​71143.

120 Heinsch (“nullum crimen sine lege”) even though it would not be accepted in most of the national jurisdictions as a source for a penal norm.24 However, even international human rights documents, like the iccpr and the UN Declaration of Human Rights, do not explicitly exclude customary international law as a source (for international criminal law).25 Actually, in a still developing system like the international criminal legal system, customary international law helps the legal regime to adapt much faster to challenges then by way of (treaty) codification. Therefore, it should be seen as a necessary step in the development of international criminal law for the icty and the ictr to take recourse to customary international law so extensively. Having in mind the special nature of armed conflicts, it also seemed inevitable to take recourse to “verbal acts” as proof of State practice and also in some cases to use it as an indication for opinio iuris at the same time. However, especially in the area of international criminal law with its requirements set up by the principle of legality,26 one has to keep in mind that the standard for the applicable law constantly has to be examined to verify if it fulfils the requirements which are set up by the respective international human rights documents in order to protect the interests of the accused. A case can be made that the entry into force of the Rome Statute of the icc might be an indication for the fact that this standard already has become higher. 3

Does the Existence of the Rome Statute Change the Way of Using Customary International Criminal Law in the Jurisprudence of International Courts and Tribunals?

In contrast to the early phases of the existence of the ad hoc Tribunals, the Rome Statute of the International Criminal Court and its entry into force on 1 July 2002 must be seen as a turning point in the development of international 24

Cf. Y. Tan, ‘The Identification of Customary Rules in International Criminal Law’, (2018) 34(2) Utrecht Journal of International and European Law, 92–​110. doi: http://​doi.org/​ 10.5334/​ujiel.434. 25 See also sw v. United Kingdom, Series A, No. 335-​B, 22.11.1995, paras. 35 f.; siehe auch cr v. United Kingdom, Series A, No. 335-​B, 22.11.1995, paras. 33 f. Please refer also to W. Schabas, International Criminal Court (2004), 71; and R.W. Heinsch, (2005), Die Weiterentwicklung des humanitären Völkerrechts durch die Strafgerichtshöfe für das ehemalige Jugoslawien und Ruanda: Zur Bedeutung von internationalen Gerichtsentscheidungen als Rechtsquelle des Völkerstrafrechts, (2005) 317–​318. 26 See infra section 3.

The Role of Customary International Law

121

criminal law. The Rome Statute and the other legal documents of the Court like the Elements of Crimes and the Rules of Procedure and Evidence represent the first international codification of an elaborate system of international criminal law on a permanent basis. Especially important is that the principle of legality is explicitly laid down in article 22 of the Rome Statute (“nullum crimen sine lege”) as well as in article 23 (“nulla poena sine lege”). It is probably not a coincidence that neither the icty nor the ictr Statute included such a provision. Therefore, one might argue that the Judges of the icc have to especially be aware of this principle every time they will look at a rule of customary international law. One might even say that nowadays the standard for proving the existence of a rule of customary international law must be considered higher under the Rome Statute regime than in previous times under the Statutes of the UN ad hoc Tribunals. This interpretation is also supported by article 21 (3) which explicitly provides that the application and interpretation of the law used by the icc must be consistent with internationally recognized human rights,27 for example, the fair trial rights of the accused as laid down in detail in article 67 of the Rome Statute.28 However, it needs to be stressed again that no international human rights treaty explicitly prohibits the use of customary law in international criminal law as such,29 and the Rome Statute also allows for the application of customary international law under article 21 (2), although only as a secondary source after the sources mentioned in article 21 (1): The Statute, the Elements of Crimes, and its Rules of Procedure and Evidence.30 That the Rome Statute nevertheless envisages the Judges to be able to use customary law as a source for its decisions is shown by the very existence of article 21 (2) according to which the Court shall apply:

27

A thorough overview of recent icc jurisprudence in this context is provided by E. Irving, ‘The other side of the Article 21(3) coin: Human rights in the Rome Statute and the limits of Article 21(3)’, (2019) 32(4) Leiden Journal of International Law, 837–​850. doi 10.1017/​ S0922156519000426. 28 Concerning the fair trial rights under the Rome Statute, please refer to: Y. McDermott & W. Schabas, Article 67: Rights of the Accused, in: Triffterer, O./​Ambos, K. (eds.) Commentary on the Rome Statute of the International Criminal Court, Observers Notes, Article by Article, (2015). 29 See supra footnote 25. 30 For an extensive analysis of the sources applicable before the icc, see A. Pellet, Revisiting the Sources of Applicable Law before the ICC. In Arcs of Global Justice: Essays in Honour of William A. Schabas (2018). Retrieved 1 Dec. 2020, from https://​oxford.universitypressscholarship.com/​view/​10.1093/​oso/​9780190272654.001.0001/​oso-​9780190272654-​chapter-​13.

122 Heinsch In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflicts. [Emphasis added] Although this paragraph does not explicitly state customary law as a source of the icc’s decisions, and some commentators have discussed the question why the drafters included “principles” as well as “rules” and what might be the difference between these two categories, there seems to be general agreement nowadays that paragraph 2 of article 21 refers to what is usually understood as customary international law.31 While it is important to observe that the International Criminal Court is able to apply rules of customary international law, we cannot be sure that every single legal issue surrounding the application of this source of international criminal law has actually been addressed in the Rome Statute. This is especially true because the Rome Statute’s final draft was completed in four hectic weeks in the summer of 1998. The Rome Statute nevertheless was a big step forward towards a more sophisticated international criminal law system which especially has the advantage that most of the necessary rules and principles are actually written down in a coherent text. This is something which comes much closer to the requirements of a national criminal system than the situation we had 25 years ago before the ad hoc Tribunals were established. However, even though we are in the lucky position that international criminal law is not anymore in the same rudimentary stage as it was in 1995 when the icty Appeals Chamber issued its first decision in the Tadić case, international criminal law is far from a perfect and complete legal system as we know it from our national backgrounds. Therefore, we cannot exclude that the icc will use customary international law in its future decisions when it is interpreting the law of the Statute, although it has done so only sparingly during the last 18 years of its existence.32 The icc has actually confirmed this approach in the Katanga case by stating that the Court “shall apply the subsidiary sources […] only where it identifies a lacuna in the provisions of

31 32

M. McAuliffe deGuzman, ‘Applicable Law’ in: O. Triffterer, (Ed.), Commentary on the Rome Statute (1999), article 21, margin number 14.; A. Pellet, ‘Applicable Law’ in: Cassese/​Gaeta/​ Jones (eds.) The Rome Statute of the International Criminal Court (2003), 1071. On this topic, see the enlightening account by F. Pcar, ‘Transformation of Customary Law Through ICC Practice’, (2018) 112 AJIL Unbound, 182–​186. available at https://​www.cambridge.org/​core/​journals/​american-​journal-​of-​international-​law/​article/​transformation-​ of-​customary-​law-​through-​icc-​practice/​E3280DDA4C095469D7AC13110229B036.

The Role of Customary International Law

123

the Statute, the Elements of Crimes and the Rules.”33 The Trial Chamber in Katanga affirmed in this respect that “where the founding texts do not specifically resolve a particular issue, the chamber must refer to treaty or customary international law and the general principles of law,” and because of this it might need to refer “to the jurisprudence of the ad hoc tribunals and other courts on the matter.”34 4

Perspectives for Customary Law in the Future Development of International Criminal Law

While the statements cited above show that also in the future customary international law will play a role in the jurisprudence of the icc, it has to be kept in mind that the icc –​on a political level –​has to ensure that its decisions are accepted by the world community. It needs to be clear that the Court’s decision represents the current state of law and that the Court must be consistent with internationally recognized human rights in its application and interpretation of law. We should not forget that the icc –​more than the ad hoc Tribunals which were backed by Chapter vii resolutions of the UN Security Council –​is dependent on the cooperation and acceptance by member and non-​member States. As we all know, a Court can take a big risk when referring to customary rules of law when these rules actually have not been accepted by the relevant States as being the binding law (lex lata). One obvious example is that the icty in its Tadić decision offered an extensive list of war crimes which –​according to customary international law –​can be committed in non-​international armed conflicts, including for example certain means and methods of attack (e.g., the prohibition of the use of chemical weapons).35 A few years later, in 1998, the drafters of the Rome Statute could however not agree on the inclusion of these crimes in Article 8 on war crimes, which clearly reflects the absence of sufficient opinio juris regarding their customary nature at that time. It was only in 2010 that some of these crimes were included in the Rome Statute as a result of the Kampala amendments.36 The consent of States is an important

33

Prosecutor v. Katanga, icc-​01/​04-​01/​07, Judgment Pursuant to Article 74 of the Statute, para. 39 (Mar. 7, 2014). 34 Prosecutor v. Katanga, supra footnote 33, at para. 47. 35 See Prosecutor v. Tadić, Appeals Chamber, Decision on Jurisdiction (1995), para. 124. 36 Cf. A. Alamuddin, Ph. Webb, ‘Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute’, (2010) 8(5) Journal of International Criminal Justice, 1219–​1243. https://​ doi.org/​10.1093/​jicj/​mqq066.

124 Heinsch aspect which has always to be taken into account when working with customary international law in the area of international criminal law.37 Especially in regard of the work of the icc, the current author is therefore of the opinion that one has to adhere to high standards when using customary international law as a source of international criminal law. Consequently, international criminal courts and tribunals should be careful not to make too extensive use of relying on “verbal practice” or even opinio juris as the sole evidence for the existence of a customary rule or making exceptions of the high-​ frequency and high-​consistency test. As we all know it is much harder to act according to a special rule than to just utter the intention to do so. As William Shakespeare put it in his famous play King Henry viii: ’T is well said again, And ’t is a kind of good deed to say well: And yet words are no deeds.38 5

Conclusion

In conclusion, it is important to stress that customary law has had in the past and will have in the future a great importance for developing new areas of law in the international context. This has been proven in an impressive way by the development of international criminal and international humanitarian law during the 1990s and 2000s. However, one always has to keep in mind that law, including customary international law, has to reflect the moral values of the community which it regulates. In the moment that judges and practitioners go a step too far when applying customary international law and set themselves in contrast to the legal subjects of the international community, then they risk that the whole system loses its credibility. We should not confuse the desire of what ought to be the law (“lex ferenda”) with the reality of what actually is the law (“lex lata”). If we do this, we should not be surprised if the critics who claim that there is no such thing as “international law” will gain ground. But the current author is optimistic that the rule of law in international relations will further develop (with the help of customary international law) and that the icc will be a cornerstone of a new and more elaborated system of international (criminal) law. 37 38

Very instructive in this regard: T. Müller, ‘Customary Transnational Law: Attacking the Last Resort of State Sovereignty’, (2008) 15(1) Indiana Journal of Global Legal Studies. Available at: http://​www.repository.law.indiana.edu/​ijgls/​vol15/​iss1/​3. Shakespeare, William, King Henry viii. Act iii. Sc. 2 [Emphasis added].

­c hapter 7

The Responsibility of the Netherlands for Its Nationals Abroad Erik Koppe 1 Introduction1 I am honored to have been invited to contribute to Nico Schrijver’s Liber Amicorum on the occasion of his retirement from Leiden Law School. I have known Nico Schrijver for almost fifteen years and in that time we have developed a close relationship. Before I finish this contribution with a few personal words (part 4), I will address two substantive issues, both of which Nico Schrijver and others may find interesting. First, I will address the protection of the environment during armed conflict, which I could have discussed at greater length in view of recent developments, but which I ultimately decided not to do (part 2). Second, I will address the responsibility of the Netherlands for its nationals abroad, which I will discuss in light of a recent judgment of the Supreme Court of the Netherlands (part 3). In that context I have tried to identify the frontiers of international law, rather than further the frontiers of the international law, as is the title of this liber amicorum. 2

Intermezzo –​The Protection of the Environment during Armed Conflict

Nico Schrijver was scheduled to give his farewell lecture on 6 November 2020. It so happens that in 2001, the General Assembly declared this day (6 November) the ‘International Day for Preventing the Exploitation of the Environment in War and Armed Conflict’.2 The General Assembly considered that damage to the environment in times of armed conflict impaired ecosystems and 1 The author is an Associate at Pels Rijcken in The Hague, the Netherlands. The views and opinions expressed in this article are those of the author and do not purport to reflect the opinions or view of Pels Rijcken or its clients. 2 A/​Res/​56/​4, adopted without a vote on 5 November 2001; Observance of the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict.

© Koninklijke Brill NV, Leiden, 2021 | D

126 Koppe natural resources long beyond the period of conflict, and often extended beyond the limits of national territories and the present generation. The General Assembly subsequently invited Member States, entities of the United Nations system and other international and regional organizations to observe 6 November each year as the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict. The date was chosen because 6 November 2001 marked the 10th anniversary of the extinguishing of the last oil well fire in Kuwait after the 1990–​1991 Gulf War.3 It would therefore have been a natural choice to discuss the law relating to the protection of the environment during armed conflict in this chapter. After all, Nico Schrijver worked at the Department of Legal Affairs of the United Nations Secretariat in the early 1990s when the Security Council established the liability of Iraq for the damage it had caused by occupying Kuwait on 2 August 1990, including environmental damage and the depletion of natural resources (by S/​r es/​687)4 and for quite some time we have shared an academic interest in the subject matter. In 2010 Nico Schrijver published his book ‘Development without Destruction’ in which he discussed, among other issues, the relationship between natural resources and armed conflict.5 And I wrote my doctoral thesis on the protection of the environment during international armed conflict, which I completed in 2006 and which was published in 2008.6 I could have discussed the Draft Principles on Protection of the Environment in relation to Armed Conflicts, which were adopted by the International Law Commission (ilc) on first reading in 20197 and transmitted through the United Nations Secretary-​General to United Nations member states, international organizations and non-​governmental organizations for comments and observations.8 In that context, I could have discussed the Advisory Report on the ilc’s Draft Principles of the Netherlands Advisory Committee on Public International Law (concluding that the Draft Principles provide a valuable 3 See W.J. Hybl, Representative of the United States, in Press Release ga/​9946 of 5 November 2001, through . 4 S/​ r es/​687 (1991), adopted on 3 April 1991, by 12 votes to 1, with 2 abstentions, on the situation between Iraq and Kuwait. 5 N.J. Schrijver, Development Without Destruction. The United Nations and Global Resource Management (2010). 6 E.V. Koppe, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict (2008). 7 A/​74/​10, Report of the International Law Commission, Seventy-​First session (29 April–​7 June and 8 July-​9 August 2019), Chapter vi; see also A/​r es/​74/​186 of 18 December 2019. 8 See https://​legal.un.org/​ilc/​guide/​8_​7.shtml. The deadline for comments and observations is 1 December 2020.

Responsibility of the Netherlands for Its Nationals Abroad

127

contribution to the consolidation and development of international law)9 and the government’s response to the Advisory Report.10 I could have also discussed the Guidelines on the Protection of the Natural Environment in Armed Conflict of the International Committee of the Red Cross (icrc) which were published on 25 September 2020.11 Similar to the ilc’s Draft Principles, the icrc Guidelines contain an elaborate set of norms that States should observe in times of armed conflict, some of which indeed appear to reflect customary international law. Indeed, I could have compared both sets of norms that were identified by the ilc and the icrc and I could have discussed the scope of these norms and their added (legal) value. I could have discussed to what extent these norms relate to other norms of public international law relating the protection of the environment during armed conflict, in particular treaty norms that were drafted by states to do just that, such as Articles 35(3) and 55 of Additional Protocol i.12 After all, 174 states consented to be bound by these treaty rules and the large majority did so long before any new (customary) norms relating to the protection of the environment during armed conflict materialized. It is one thing to identify ‘new’ rules of customary international law or norms that may be crystallizing into norms of customary international law, it is another thing to establish the relationship between any ‘new’ rules of customary international law and the existing rules of treaty law, particularly 9

10 11

12

Advisory Committee on Public International Law, Advisory Report on the ilc’s Draft Principles on Protection of the Environment in Relation to Armed Conflicts, Advisory Report No. 36, 9 July 2020, published at https://​www.advisorycommitteeinternationallaw. nl/​. Letter of the Minister of Foreign Affairs of 25 August 2020, with the government’s response to the advisory report, Kamerstukken ii 35 300 v, nr. 73. icrc Guidelines on the Protection of the Natural Environment in Armed Conflict; Rules and Recommendations relating to the Protection of the Natural Environment under International Humanitarian Law, with Commentary; 25 September 2020; https://​www. icrc.org/​en/​document/​guidelines-​protection-n ​ atural-​environment-​armed-​conflict-​rules-​ and-​recommendations-​relating. These guidelines are a follow-​up to the icrc Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict which were first published by the icrc in 1993 (see A/​48/​269, Report of the Secretary-​General to the General Assembly on the Protection of the Environment in the Environment in Times of Armed Conflict, of 29 July 1993, with Annexed the icrc Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict) and slightly amended in 1994 (see: A/​49/​323, Report of the Secretary-​General on the United Nations Decade of International Law, of 19 August 1994). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature on 12 December 1977, entered into force on 7 December 1978, unts, Vol. 1125, No. 17512.

128 Koppe where their scope of application is markedly different. For example, how does the customary prohibition on causing excessive collateral damage to the environment during international armed conflict and the customary duty of care (or the obligation to show due regard for the environment during military operations)13 relate to the prohibition to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-​term, and severe damage to the natural environment under Article 35(3) ap i? And which rules will ultimately determine what a military commander is allowed or not allowed to do during armed conflict? Concurrent application of rules is common in every legal order and has been studied since at least the Middle Ages.14 It raises fundamental questions such as whether one rule can affect the scope of application of another rule; the question whether rules can be applied simultaneously or only by simultaneous exclusion; or whether the law permits a choice between rules.15 I have previously analyzed the relationship between the various written and unwritten rules of public international law relating to the protection of the environment during armed conflict and which rules must be applied in the hypothetical situation that the responsibility of a state would be invoked in relation to damage to the environment during armed conflict.16 I would repeat myself if I were to discuss that here. It is surprising, though, that, as far as I know, the issue of concurrence has received little to no attention in literature or norm-​creating projects such as the work of the ilc and the work of the icrc, even though the subject matter

13

14 15 16

See Rules 43C and 44 of the icrc’s 2005 Customary International Humanitarian Law (cihl) Study, though https://​ihl-​databases.icrc.org/​customary-​ihl/​eng/​docs/​home. See also Rule 1 and 7 of the icrc’s Guidelines and (indirectly) Principles 14 and 15 of the ilc’s Draft Principles. The icrc’s findings in 2005 confirmed that my conclusions in 2006 (when I completed my doctoral thesis) relating to the existence of a customary duty of care for the environment and a customary prohibition of wanton destruction of and excessive collateral damage to the environment during armed conflict were indeed correct. See Koppe, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict, p. 246–​273. See for example R. de Graaff, Concurrence in European Private Law (2020), p. 1. See also A.G. Castermans, H.B. Krans, Samenloop, Tweede Druk, Monografieën BW, No. A21, (2019). De Graaff, Concurrence in European Private Law, p. 1. See Koppe, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict (2008), for example at p. 273–​279, 289–​297, 306–​308, 328–​ 333, 349–​364; and Koppe, The principle of ambituity and the prohibition against excessive collateral damage to the environment, (2013) 82 Nordic Journal of International Law 53, at 68–​77.

Responsibility of the Netherlands for Its Nationals Abroad

129

was generally discussed by the ilc in 200617 and is of great practical importance in international (legal) practice. I would think that the increasing number of norms that belligerent parties allegedly must observe while conducting military operations, including the two above-​mentioned provisions in Additional Protocol i, a number of alleged customary rules of international humanitarian law, and the principles and rules identified by the ilc and the icrc require (further) analysis, in particular in relation to the norms regulating the conduct of hostilities. Some of these rules have different scopes and their application may lead in particular cases to opposing outcomes (lawful conduct v. unlawful conduct), which in turn leads to legal uncertainty and confusion. After all, all these norms need to be translated in practical terms that will provide useful guidance for the military who will be primarily responsible for the implementation of these norms. Generally, I would say that as a matter of principle, one does not need more norms –​whether you call them principles or rules –​if you can achieve the desired result by means of interpretation of existing rules. After all, there is always a danger that you will not be able to see the forest for the trees anymore and I would be surprised if Nico Schrijver, who has had the privilege of reviewing legislation, first as a member of the Senate and subsequently as a member of the Advisory Division of the Council of State, would disagree with me on this. I could have discussed all of the above issues and it would have been a natural choice to do so. Instead, I chose to discuss the meaning of a general observation made by the Supreme Court of the Netherlands on the responsibility of the Netherlands for its nationals abroad. The judgment reflects the interaction between Dutch law and public international law, which Nico Schrijver, as a former annotator of cases of the Supreme Court of the Netherlands in the Nederlandse Jurisprudentie, will appreciate. 3

The Responsibility of the Netherlands for Its Nationals Abroad

On 26 June 2020, the Supreme Court of the Netherlands rendered its judgment in a case instigated by 23 women and 56 children who were held in two camps in North 17

Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, adopted by the International Law Commission at its Fifty-​eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/​61/​10).

130 Koppe East Syria against the Netherlands.18 The women and children had summoned the Netherlands to repatriate them from North East Syria or at least to make an effort to do so but their claims were ultimately rejected by the Supreme Court. The Supreme Court ruled, in short, that the Netherlands was not obliged to repatriate the women and children. The women and children were not within the jurisdiction of the Netherlands in the meaning of Article 1 of the European Convention on Human Rights, Article 2(1) of the International Covenant on Civil and Political Rights and Article 2(1) of the International Convention on the Rights of the Child.19 Further, the Supreme Court ruled that the Netherlands’ refusal to repatriate the women and children was not unlawful in view of the national security interests involved, the security situation in North Syria, and the impact of such operation on foreign relations.20 While addressing the question of whether the Netherlands’ refusal to repatriate the women and children was unlawful under Dutch law, the Supreme Court generally observed that under certain circumstances, the Netherlands has a special responsibility towards Dutch nationals even when they are not within the jurisdiction of the Netherlands.21 The Supreme Court held (in translation): Even when the State does not have jurisdiction, it has a special responsibility towards in any case Dutch nationals. If the human rights of these individuals, like the right to life and the right to freedom and security are violated or are threatened to be violated, this special responsibility entails that the State must determine whether, under the circumstances of a particular case, it can and must make an effort to end this violation or avert an imminent violation. The State cannot suffice to state that it does not have jurisdiction. The heavier the interests that are involved, the more that can be expected from the State.22 18 19 20 21 22

Hoge Raad 26 June 2020, ecli:nl:hr:2020:1148; nj 2020/​293, annotated by C.M.J. Ryngaert. The judgment has not been translated into English. Hoge Raad 26 June 2020, ecli:nl:hr:2020:1148, para. 3.2–​3.7. Hoge Raad 26 June 2020, ecli:nl:hr:2020:1148, para. 3.8-​3.22. Hoge Raad 26 June 2020, ecli:nl:hr:2020:1148, para. 3.10.2. The Court held in para. 3.10.2: “Ook indien de Staat geen rechtsmacht toekomt, heeft hij een bijzondere verantwoordelijkheid tegenover in ieder geval personen met de Nederlandse nationaliteit. Indien de mensenrechten van deze personen, zoals het recht op leven en het recht op vrijheid en veiligheid, worden geschonden of dreigen te worden geschonden, brengt deze bijzondere verantwoordelijkheid mee dat de Staat gehouden is te beoordelen of hij zich in de omstandigheden van het geval kan en moet inspannen om deze schending te beëindigen of om de dreigende schending af te wenden. De Staat kan dus niet volstaan met de constatering dat hij geen rechtsmacht heeft. Naarmate de

Responsibility of the Netherlands for Its Nationals Abroad

131

The Court referred to the Advisory Opinion of the Advocate-​General of 24 April 2020,23 to substantiate this special responsibility. In the paragraphs that the Supreme Court refers to, the Advocate-​General discusses the law relating to diplomatic and consular protection in the Netherlands. Under Dutch law, Dutch nationals do not have a general right to consular assistance when they are outside the Netherlands. The government may decide how and to what extent the Netherlands provides consular assistance to Dutch nationals abroad, while taking into account the general principles of good governance (“de algemene beginselen van behoorlijk bestuur”). On the basis of Dutch case law, it appears that the government must generally take the fate of Dutch nationals who are detained in foreign countries to heart (“zich het lot behoort aan te trekken”) and that it should hold foreign authorities accountable if they are held under inhuman conditions. Foreign policy considerations may play an important role in this regard, however.24 In light of these observations, it appears that the special responsibility of the Netherlands for Dutch nationals who are not within the jurisdiction of the Netherlands is limited to Dutch nationals who are detained abroad and who may, under specific circumstances and specific conditions, benefit from consular assistance from Dutch consular officers. Indeed, in view of general limitations on the exercise of jurisdiction or governmental power under public international law, I cannot think of any other circumstance under which the Netherlands, or any other state for that matter, has other responsibilities let alone any written or unwritten obligations towards its nationals abroad. The Netherlands has merely the right to exercise legislative jurisdiction over its nationals abroad, as I will explain below, and the Netherlands has merely the right to invoke the responsibility of another state under public international law, if the rights of its nationals are abused, by exercising its right of diplomatic protection.25 Further, in practice, some states have even invoked

23 24 25

belangen die in het geding zijn zwaarder wegen, zal van de Staat meer mogen worden verwacht.” Advisory Opinion ag Valk 24 April 2020, ecli:nl:phr:2020:412. Advisory Opinion ag Valk 24 April 2020, ecli:nl:phr 2020:412, para. 6.18–​6.21, referring, among other cases to Court of Appeal of The Hague 25 November 2011, ecli:nl:ghsgr 2004:AR7484, para. 6. See Article 1 of the Articles on Diplomatic Protection, A/​61/​10, Draft Articles on Diplomatic Protection with commentaries, 2006; Report of the International Law Commission, Fifty-​ eigth session (1 May –​9 June and 3 July –​11 August 2006), p. 13, see http://​legal.un.org/​ilc/​ texts/​9_​8.shtml. The International Court of Justice confirmed in 2007 that Article 1 of the Articles on Diplomatic Protection reflected customary international law. See: Ahmadou Sadio Diallo (Guinea v drc), Preliminary Objections, Judgment of 24 May 2007, [2007] icj Rep. 582, para. 39. For example, the Netherlands invoked the responsibility of Russia for the downing of flight mh-​17 on 17 July 2014 “in their own right and in the exercise of

132 Koppe an alleged right to use force to protect the rights of their nationals abroad,26 although this justification has never been generally accepted in public international law.27 I would be willing to go so far as to assert that states, generally do not have any obligations towards their own nationals abroad, for the very reason that their governmental powers, their jurisdiction, is as a matter of principle limited to their own territory. The International Court of Justice observed: This principle [the principle of sovereign equality of States] has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory.28 As I have explained elsewhere,29 states are permitted to exercise jurisdiction outside their own territory,30 but their right to do so is limited by the general

26

27

28 29 30

their right to protect individuals on board flight MH17.” See the joint Note Verbale of the Netherlands and Australia Letter, annexed to the Letter of the Minister of Foreign Affairs of 25 May 2018, Kamerstukken ii 2017–​2018, 33 997, Nr. 117, annex. A state is under no obligation to exercise diplomatic protection, however. See for example, Article 2 of the Articles on Diplomatic Protection, which provides that “[a]‌State has the right to exercise diplomatic protection in accordance with the present draft articles.” In its commentary the ilc states: “A State has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so. The internal law of a State may oblige a State to extend diplomatic protection to a national, but international law imposes no such obligation.” A/​61//​10, Draft Articles on Diplomatic Protection with commentaries, Article 2, Commentary, para. 2. See also Article 19 Articles on Diplomatic Protection. See S.A. Alexandrov, Self-​defense against the Use of Force in International Law (1996), p. 190–​201, referring, among other instances to the military operations by France and the United Kingdom against Egypt in 1956 and the rescue of Israeli hostages by Israel in Uganda in 1976. See also D.W. Bowett, The Use of Force for the Protection of Nationals abroad, in: A. Cassese (Ed.), The Current Legal Regulation of the Use of Force (1986). There is some state practice relating to so-​called “non-​combatant evacuation operations”, however. See for example, the United Kingdom’s guidance on Non-​combatant evacuation operations (jdp 3–​51), through https://​www.gov.uk/​government/​publications/​jdp-​3-​ 51-​non-​combatant-​evacuation-​operations. See also the Letter of the Minister of Foreign Affairs of the Netherlands of 21 March 2011, Kamerstukken ii 32 709, nr. 1 in relation to the attempted evacuation of a Dutch national from Libya. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment of 3 February 2012, [2012] icj Rep. 99, para. 57 (text added by the author). See E.V. Koppe, Jurisdiction, in: C.E. Rose et al., Introduction to Public International Law (2021) (forthcoming). After all, the principle of sovereignty attributes ‘suprema potestas’ and independence to each state. See The Island of Palmas Case (or Miangas), United States v. The Netherlands,

Responsibility of the Netherlands for Its Nationals Abroad

133

obligation of states to respect the personality and sovereign equality of other states.31 The exercise of enforcement jurisdiction is the most intrusive manifestation of jurisdiction by a state and would therefore most likely interfere with the sovereign rights of other states. The exercise of enforcement jurisdiction outside a state’s territory is therefore, in principle, prohibited under public international law. The Permanent Court of International Justice (pcij) held in the S.S. Lotus case: Now the first and foremost restriction imposed by international law upon a State is that –​failing the existence of a permissive rule to the contrary –​it may not exercise its power in any form in the territory of another State.32 Providing consular assistance in a foreign state to detained nationals, for example, which qualifies, in my view, as a form of enforcement jurisdiction, is permitted under the 1963 Vienna Convention on Consular Relations, and therefore not prohibited under public international law. While states may generally not exercise any enforcement jurisdiction outside their territories, they enjoy a large measure of discretion to exercise legislative and adjudicative jurisdiction over persons, property and acts outside their territories. The pcij held in the S.S. Lotus case that public international does not prohibit states from exercising jurisdiction in their own territories “in respect of any case which relates to acts which have taken place abroad”.33 The picj held: Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited

31

32 33

Award of the Tribunal, Permanent Court of Arbitration, 4 April 1928, p. 8; see https://​pca-​ cpa.org/​en/​cases/​94/​. According to the General Assembly, one of the elements of sovereign equality is: ‘(c) Each State has the duty to respect the personality of other States.’ A/​r es/​2625 (xxv) of 24 October 1970. Public international law also limits the exercise of jurisdiction by states within their own territories, for example, in relation to (property of) foreign states, foreign state officials and international organizations. The Case of the S.S. ‘Lotus’ (France v. Turkey), Judgment of 7 September 1927, pcij Series A –​No. 10, p. 18. Lotus case, p. 19.

134 Koppe in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.34 Already in 1927, the pcij observed that in practice, states had adopted a great variety of rules “without objections or complaints on the part of other States”. In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.35 State practice shows that many if not most states explicitly extend the scope of some their legislation and the power of their courts to persons, property or acts outside their own territory by relying on a link between the state and the persons, property or acts involved. For example, it appears that most states have extended the application of some of their domestic legislation outside their territories to regulate or protect their nationals abroad.36 The Netherlands, for example, chose to extend the application of a limited number of provisions of the Dutch Criminal Code to Dutch nationals outside the Netherlands37 and to anyone committing one of the indicated crimes against a Dutch national outside the Netherlands.38 Dutch nationals may therefore be subject to Dutch law when they are outside the territory of the Netherlands and may be held accountable for breaches of Dutch law. However, the extension of some of its legislation to nationals abroad does not create any obligations for the Netherlands towards its nationals abroad. At least, I am not aware of any such rules under Dutch law. Could the Netherlands then have any (unwritten) obligations under Dutch law to its nationals abroad (other than the obligation to consider requests for consular assistance as indicated above), even when it has no jurisdiction or 34 35 36

37 38

Lotus case, p. 19. Lotus case, p, 19. The bond between a state and its nationals has traditionally been viewed as a sufficiently genuine link to justify extra-​territorial application of domestic legislation. Indeed, jurisdiction almost certainly began as a bond between an individual and his or her sovereign. V. Lowe, International Law (2007), p. 174. See, for example, Article 7 of the Dutch Criminal Code, see https://​wetten.overheid.nl/​ BWBR0001854/​. An unofficial translation in English of a previous version of the Dutch Criminal Code can be found through https://​www.legislationline.org/​. See, for example, Article 5 of the Dutch Criminal Code.

Responsibility of the Netherlands for Its Nationals Abroad

135

authority to act? Would the existence of such obligation be in conformity with the international legal framework outlined above? My answer would be no, I do not think that is the case. Although public international law allows states a large measure of discretion to extend the scope of their legislation outside their territories, the pcij indeed observed that the jurisdiction of states is not unlimited. After all, by extending the scope of their legislation to persons, property and acts outside their own territory, states can exert significant influence outside their territory which may interfere with the sovereign rights of other states. This is particularly true when a state extends the application of its public laws outside its territory, such as its criminal laws, its tax laws and its administrative laws, including its financial and economic laws.39 Public laws are “quintessentially manifestations of the state’s sovereign power, rather than laws that lay down the ground rules for the creation of rights and duties between individuals, in the way that, say, contract, family, and land law do.”40 But this could also be true for tort law, which, albeit private in character, may have as much regulatory impact as written, public laws. Staker writes: The most difficult laws to classify on this basis are tort laws. These are in some respects private, but may also be viewed as laws by which the State prescribes rules of conduct for society, in the same way that it does in its criminal law, but leaving the enforcement of those rules up to private parties. This dual nature of tort law is most evident in US antitrust laws, where those injured by unlawful anticompetitive practices are enabled to recover treble damages, as an incentive to act as ‘private attorneys general’ in the enforcement of the laws. For that reason, English courts have refused to enforce US antitrust laws.41 In view of the above, it is arguable that the (territorial) scope of Dutch tort law, including the scope of any (unwritten) obligations following from Article 6:162 of the Dutch Civil Code42 is subject to the same territorial limitations as the

39

See also Lowe who illustrates the scope of the prescriptive jurisdiction of states by reference to criminal law, but ‘the principles apply to all ‘public’ laws that make up the public order of the state including, for example, tax and competition laws.’ Lowe, International Law, p. 171–​172. 40 C. Staker, Jurisdiction, in: M.D. Evans (Ed.), International Law (2014), p. 331. 41 Staker, Jurisdiction, p. 331–​332. 42 Article 6:162 Dutch Civil Code provides, in unofficial translation: “1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him,

136 Koppe (territorial) scope of Dutch public laws, if the state is summoned to act outside its territory. Could it then also be that the scope of any (unwritten) obligations of the Netherlands is subject to a similar presumption against extra-​territoriality of domestic legislation which has been accepted by the Supreme Court of the United States? The Supreme Court of the United States has held that domestic legislation is presumed to apply only within the territory of the United States to prevent unintended and unwarranted foreign policy consequences.43 The Supreme Court held in 2013: This presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” eeoc v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). As this Court has explained: “For us to run interference in … a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957). The presumption against extra-​territorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences not clearly intended by the political branches.44 A presumption against extra-​territorial application of Dutch tort law, including any (unwritten) obligations that may be derived from it, could entail that if the Netherlands is summoned to act outside the territory of the Netherlands, or in relation to someone who resides outside the territory of the Netherlands, it may not be obliged to consider such request let alone to act. If such request is

43 44

must repair the damage that this other person has suffered as a result thereof. 2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour. 3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).” See http://​www.dutchcivillaw.com/​civilcodebook066.htm. Also, under English and Welsh Common Law there is a presumption against extra-​ territoriality of legislation. See Lowe, International Law, p. 175. Kiobel et al. v. Royal Dutch Petroleum Co. et al, 569 U. S. 108 (2013), p. 116–​117.

Responsibility of the Netherlands for Its Nationals Abroad

137

only based on the nationality of the claimant45 and nothing else (like the presence of consular officers in the territory of the state where he or she is present) then it is arguable that the scope of any (unwritten) obligations of the State under Article 6:162 Dutch Civil Code does not extend to the claimant involved and the state would not be required to consider any request to act and analyze all the relevant interests involved. The practical impact of this view may be limited but it is certainly worthwhile to consider the territorial scope of any (unwritten) obligations that the Netherlands has under Dutch law in light of the limitations imposed on the Netherlands by public international law. 4

Summary and Laudatio

In my contribution to this liber amicorum, I addressed two issues that I thought would be of interest to Nico Schrijver and to others. First, I addressed, in an intermezzo, the protection of the environment during armed conflict. I indicated that this topic would have been a natural choice for further discussion since Nico Schrijver was originally scheduled to give his farewell lecture on the ‘International Day for Preventing the Exploitation of the Environment in War and Armed Conflict’, which is celebrated each year on the 6th of November. Instead, I chose to discuss the scope of the responsibility of the Netherlands towards its nationals abroad in light of a recent judgment of the Supreme Court of the Netherlands. I indicated that the observation of the Supreme Court has to be understood in light of the obligations of the Netherlands to provide, under particular circumstances and particular conditions, consular assistance to nationals who are held in detention in foreign countries. I also indicated that it is arguable that the scope of any (unwritten) obligations of the Netherlands under Dutch tort law, as a matter of principle, is limited to the territory of the Netherlands, in view of the territorial limitations on the exercise of enforcement and legislative jurisdiction under public international law. This would be different if the state would be authorized to act abroad, for example, it can and wishes to provide consular assistance to nationals abroad. 45

Establishing jurisdiction within the framework of human rights treaties on the basis of nationality alone appears to be a weak and arbitrary basis. See M. Milanovic, Repatriating the Children of Foreign Terrorist Fighters and the Extraterritorial Application of Human Rights, ejil:Talk!, 10 November 2020, https://​www.ejiltalk.org/​repatriating-​the-​children-​ of-​foreign-​terrorist-​fighters-​and-​the-​extraterritorial-​application-​of-​human-​rights/​.

138 Koppe Let me finish my contribution to this Liber Amicorum by adding a few words on my personal relationship with Nico Schrijver. I have known Nico Schrijver for almost fifteen years and I have had the privilege to work with him for almost ten years. Our working relationship has always been very professional and very friendly, perhaps because we have so many things in common. We both obtained our law degrees and doctorate degrees from the University of Groningen, and we were both supervised by Prof. Wil Verwey, both during our studies and during our doctoral research, which makes us academic relatives or even academic brothers. We have both been influenced by the Groningen school of public international law as expressed in the writings of Wil Verwey as well as his predecessor Prof. Bert Röling, both of whom focused on issues of peace and security as well as economic development and environmental protection in their academic (and practical) work.46 And above all, I believe we have a similar (northern) moral compass and perspective on society. Nico Schrijver may have retired from Leiden Law School, but as is evident from his work at the Council of State and his recent appointment as a judge ad hoc at the International Tribunal for the Law of the Sea, his career is far from over. Life is too short for Nico to sit on his laurels: hora non est! 46

During my doctoral research on the protection of the environment during armed conflict, for example, I noticed that Röling had identified a new fundamental or basic principle of the law of armed conflict or international humanitarian law, namely the principle of environmental protection, which arguably emerged during the 1970s. E.V. Koppe, The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict (2008), p. 117. See W.D. Verwey, Bert V.A. Röling; 1906–​1985, in: The Moulding of International Law: Ten Dutch Proponents, (1995), p. 45. In 2012 I further developed this idea, provided further substance to it and named it the principle of ‘ambituity’ after the Latin word ‘ambitus’ which means, among other things, environment. See E.V. Koppe, ‘The principle of ambituity and the prohibition against excessive collateral damage to the environment’, (2013) 82 Nordic Journal of International Law.

­c hapter 8

How about Consolidating the Frontiers but Furthering the Effectiveness of Human Rights? Lessons from Yerevan Rick Lawson 1 Introduction: plus ça change …1 This small contribution in honour of a great person is inspired by two events. Both have to do with persons reaching the end of their term in their respective offices, whether they like it or not: it is the law. However, this is where the similarities end. One event relates to a formal decision which was entirely predictable and which in all likelihood, and much to our joy, will have no impact whatsoever on the real world. The other event relates to a rather spectacular change in the law, which triggered a non-​decision the wider consequences of which, unfortunately, are likely to be huge. The first event is, of course, the retirement of Professor Nico Schrijver. At first sight this is a great loss, a reason for sadness and sorrow. A towering figure amongst the clan of international lawyers, Nico has made an enormous contribution to the study and practice of volkenrecht. He combines idealism with realism, unremitting diligence with personal charm, a global professional network with loyalty to his friends and colleagues. It is tempting to reflect on Nico’s contribution to his favourite areas such as social justice, sustainability and development, the law of the sea or dispute settlement. It is equally attractive to dwell on his countless roles –​as professor, PhD supervisor, senator, UN committee member, arbiter, speaker, chairman and so on. But as a colleague from a ‘neighbouring department’, European law, I’d better leave these assessments to others who are more qualified. I will limit myself to the observation that Leiden Law School benefitted tremendously from his many qualities ever since his appointment in 2005. Following in the footsteps of Peter Kooijmans and John Dugard, Nico managed to give a massive boost to a team that already enjoyed a great reputation. During his years at

1 Prof.dr. R.A. Lawson has a chair in European Human Rights Law. He was Dean of Leiden Law School in 2011–​2016.

© Koninklijke Brill NV, Leiden, 2021 | D

140 Lawson the helm, the department of public international law experienced a tremendous growth. There were more students, more PhD defences than ever before. The size of the staff multiplied; its composition became truly global. The Grotius Centre for International Legal Studies was created. The international Advanced llm programmes were expanded; at the same time the ‘regular’ Master programme in public international law became one of the biggest of the Law School. A continuous flow of activities and new programmes led to the establishment of a permanent presence in The Hague. Nico was everywhere. And, somehow, somewhere, he seemed to own a well, or rather a waterfall that continued to pour out books, articles and speeches. The faculty owes him a lot. For all these reasons one might think that his retirement is a reason for gloom and despair. How could we do without him? But I take comfort in the firm believe that as an emeritus professor Nico will remain as active and prolific as he has always been. He is simply not the kind of person to stop. Plus ça change, plus ça reste la même chose, as our mutual friend Niels Blokker would say. So we are confronted with a formality here, a decision that is an unavoidable application of the law but which will not have any significant consequences. It is not always like that. The summer of 2020 also brought us, for want of a better expression, a non-​decision –​a non-​decision that will have a considerable impact in the years to come. And it is very much a source of concern. The ‘non-​decision’ I am referring to comes from the European Court of Human Rights. It is neither a judgment nor an admissibility decision –​it is a mere press release, about a type of pronouncement that is not anticipated by the European Convention of Human Rights. On 8 July 2020 the Strasbourg Court issued a communiqué concerning an application from four judges of the Constitutional Court of Armenia.2 The judges –​one of whom was Alvina Gyulumyan, a former judge of the European Court itself –​complained that they had lost their position after a change in the Armenian constitution. They asserted that the adoption of this constitutional amendment was carried out in

2 Press release issued by the Registrar of the Court, echr 209 (2020) of 8 July 2020: The European Court refuses urgent measure in case concerning constitutional reform in Armenia. The press release can be found on the website of the Court, www.echr.coe.int. It refers to a name, Gyulumyan and Others v. Armenia, and to an application no. (25240/​20), but for the time being this is all we have. The Court’s search engine, Hudoc, does not contain any documents concerning this case. At the time of writing (August 2020) it seemed that the case had not been communicated (yet) to the Armenian government. This had not changed at the time of final editing (November 2020).

Lessons from Yerevan

141

violation of domestic law and was arbitrary. They also alleged that the changes were the result of a long process of harassment of judges of the Constitutional Court, which started after a change of government. The applicants wanted to preserve their current positions and therefore requested the European Court to indicate, by way of interim measure, that the application of the constitutional amendments should be suspended pending the examination of the case in Strasbourg. The answer was short: no. The Court decided to reject the request as outside the scope of application of Rule 39 (interim measures) of the Rules of Court, since it did not involve a risk of serious and irreparable harm of a core right under the European Convention on Human Rights. Constitutional court judges complaining about harassment and actually losing their position as the intended result of legislative change: that is, unfortunately, not as unique in 21st century Europe as one might think. Still the situation calls for an explanation. For this we need to delve a bit in the recent history of Armenia. And this is actually an edifying exercise: highly interesting developments have taken place –​and are taking place –​in this small country in the Caucasus. It is also worthwhile to reflect on this case against the wider background of the current rule of law crisis in, for instance, Poland and Hungary. These countries receive much more attention than Armenia. Of course, developments and circumstances differ from time to time and place to place.3 Yet the new Armenian case provides us with a fresh opportunity to reflect on the response of the Strasbourg Court to situations where the independence of the judiciary is allegedly under pressure. One specific question triggered by this case relates to the role of interim measures in the Court’s toolbox. But first we need to find out what is happening in Armenia. I hope that Nico Schrijver, himself a seasoned traveller, will enjoy a journey to Yerevan. It will take a bit of time, but as the Michelin Guide would have it, ça vaut le voyage. On our way back we will have a stop-​over in Strasbourg –​a place Nico knows very well as a former member of the Parliamentary Assembly of the Council of Europe. And if time allows, we will also pay a brief visit to Luxembourg, where the Court of Justice of the European Union faces similar questions as its Strasbourg counterpart.

3 See e.g. W. Szablowski, Dancing Bears: True Stories of People Nostalgic for Life Under Tyranny (2018).

142 Lawson One last remark before we embark on our journey. This contribution was written in the summer of 2020 –​well before the simmering conflict between Armenia and Azerbaijan escalated. After some skirmishes in July, heavy fighting broke out on 27 September 2020.4 The two countries, accusing one another of provocations and unwarranted attacks, declared martial law. It would appear that both sides suffered considerable damage and casualties, among both the civilian population and the armed forces. After six weeks, on 9 November, a Moscow-​brokered agreement was reached to end hostilities.5 Azerbaijan claimed that the deal represented a victory; indeed Armenia made a number of territorial concessions in the Nagorno-​Karabakh region as Russian peacekeeping contingents were deployed in parallel with the withdrawal of Armenian armed forces. Seen in the light of these recent developments, the references to the “frontiers” in the title of this volume and in the title of the present contribution may be read with very different eyes. Indeed one might be inclined to think that some of the episodes that are the subject of this article are rather trivial when compared to these dramatic developments. And, to the extent that I am critical of some of these episodes, some observers might even find it inappropriate, in these dark hours, to focus so much on certain problems in Armenia whereas ‘the other side’ has an extremely poor record in terms of human rights, democracy and the rule of law. The latter observation is undeniably true.6 And yet, the urgency of the armed conflict of the autumn of 2020 should not obscure the importance of the issues that we will discuss here. I do believe that it is worthwhile to study Armenia’s recent history and the role that some European institutions played in it. It contains some important lessons that are truly positive and inspiring. Other lessons are worrying. But, as Nico would be

4 See among many reports e.g. bbc, 29 September 2020, “Armenia-​ Azerbaijan conflict: Casualties mount in Nagorno-​Karabakh battle”, bbc.com. 5 See e.g. L. Gehrke and Z. Weise, 10 November 2020, “Russian troops arrive in Nagorno-​ Karabakh following cease-​fire deal”, www.politico.eu. The text of the agreement can be found e.g. at report.az/​en/​. 6 See in this respect the rapidly growing series of judgments of the European Court where very serious violations of the echr are found, including ECtHR, gc judgment of 29 May 2019, Ilgar Mammadov v. Azerbaijan (infringement proceedings) (no. 15172/​13). See also the Report of the Independent Investigation Body on the allegations of corruption within the Parliamentary Assembly of 15 April 2018, which disclosed that several members of the Parliamentary Assembly of the Council of Europe (pace) were bribed to soften the criticism of the serious human rights violations in Azerbaijan (at http://​assembly.coe.int/​Communication/​IBAC/​ IBAC-​GIAC-​Report-​EN.pdf).

Lessons from Yerevan

143

the first to remark, these lessons should inspire us too, in our constant search for a more just world order. 2

Climate Change in Yerevan

Embodying one of the oldest nations of Europe, the Republic of Armenia emerged as an independent state in 1991, after the formal dissolution of the Soviet Union.7 During its first years as a sovereign state, Armenia faced many challenges: socio-​economic difficulties, a war with Azerbaijan (another one) over the Nagorno-​Karabakh region, tense relations with Turkey. Closed borders with Turkey and Azerbaijan continued to cripple the economy. The political climate in the country deteriorated, with competing parties accusing one another of electoral fraud and corruption. The presidential elections of 2008 even led to a tragedy. Serzh Sargsyan won the vote, but thousands of demonstrators gathered in the capital Yerevan claiming that the elections were stolen. Robert Kocharyan, the out-​going president and an ally of Mr. Sargsyan, declared a state of emergency and used the armed forces to quell the protests. Eight demonstrators died, and so did two servicemen. As is the case in several countries in the region, the main issue in Armenia’s political life became not an ideological conflict between liberals and conservatives, or –​to use a somewhat old-​fashioned distinction –​between the left and the right.8 It became a fight between the authorities and the opposition, a competition between countless factions with grandiose names as Mighty Fatherland or New Country. The prize: control over the state apparatus –​and its resources. Popular dissatisfaction grew steadily and culminated in the so-​ called ‘Velvet Revolution’ of April 2018. Serzh Sargsyan, who had been president of the republic since 2008, stepped down under large-​scale public pressure. This successful democratic transition through peaceful disobedience deserves to be studied and may even serve as a source of inspiration in other countries, such as Belarus today.9 Following the peaceful overturn of the previous government, the former opposition leader Nikol Pashinyan was appointed prime minister. By the end of 2018 his ‘big tent’ political party, the My Step Alliance, won the 7 For a remarkable account of Armenia during the Soviet period, see V. Grossman, An Armenian Sketchbook (originally published in Russian, 1965; English translation 2013). 8 M. Zolyan, What to Expect from Armenia’s New Leader (2018), at carnegie.ru. 9 A. Ohanyan, Belarusians Can Learn a Lot From Armenia’s Velvet Revolution (2020), at massispost.com.

144 Lawson elections with a landslide victory, receiving 70% of the vote and winning 88 of the 132 seats in parliament. Mr. Pashinyan, the former editor of a popular opposition newspaper, had a clear agenda: fighting corruption, ensuring fair elections, ending the power of the oligarchs and the political elites that were rooted in the old Soviet nomenclature, modernising his country and the way it is governed. Mr. Pashinyan is widely seen as a liberal, and it is tempting to consider him a pro-​Western politician. Indeed, the success of this charismatic, reform-​minded person reminds one of the early years of Mikhail Saakashvili as president of Georgia. But unlike Mr. Saakashvili, Mr. Pashinyan made it clear from the outset that he did not want to distance himself from Armenia’s big neighbour Russia. Within a month after he came to power, Mr. Pashinyan met twice with Russian president Putin.10 The brand-​new prime minister was pragmatic enough to acknowledge that Armenia depends on Russia for its military security and economic survival. His image as a liberal, Western-​oriented statesman is also difficult to reconcile with certain steps taken during the recent covid-​19 pandemic. Having declared a state of emergency, Armenia introduced exceptionally stringent restrictions on the freedom of the press to report about the corona crisis.11 Having said that, what matters for present purposes is that Mr. Pashinyan managed to engage large parts of the population. He unleashed an enormous amount of energy to pursue a reformist, rule-​of-​law oriented agenda –​at a time that an authoritarian wave has washed away much of the optimism that prevailed in liberal Europe at the end of the Cold War.12 Authors on both sides of the Atlantic may express fear for the future of democracy13 –​but Armenia went 10

The good relations seem to continue to date, despite reported tensions. On 1 June 2020, ‘Russian President Vladimir Putin, by telephone, congratulated Armenian Prime Minister Nikol Pashinyan on his 45th birthday and wished him and his family a speedy recovery after testing positive for Covid-​19’ –​see Press Office of the Government of Armenia, Pashinyan and Putin Discuss June 24 Great Patriotic War Ceremony in Moscow, at hetq.am. 11 See Notifications under Article 15 of the Convention in the context of the covid-​19 pandemic, at www.coe.int. On 19 March 2020 Armenia notified the Secretary-​General of the Council of Europe about the measures it had taken in response to the corona crisis. Articles 23–​24 of the declaration provided that any reporting on the crisis, including by the mass media, must be produced ‘exclusively by making reference to the information provided by the Commandant’s Office … The reports … must not contradict the official information and shall reproduce it as far as possible’. The derogation was withdrawn on 16 September 2020. Initially ten Council of Europe member states made derogations under Art. 15 echr; by the end of October 2020 all but Georgia had withdrawn their derogations. Of these ten states none went as far as Armenia did. 12 Cf. J. Zielonka, Counter-​revolution –​Liberal Europe in Retreat (2018). 13 See e.g. S. Levitsky and D. Ziblatt, How Democracies Die –​What History Reveals About our Future (2018); T. Snyder, The Road to Unfreedom –​Russia, Europa, America (2018);

Lessons from Yerevan

145

the opposite way, restoring its democracy. This does not go unnoticed. There is a Armenian large diaspora, and several Armenians indicated that they wanted to return to their home country when Mr. Pashinyan started his reforms.14 The EU has stepped up efforts to develop its relationship with Armenia.15 In a similar vein The Netherlands, seeing opportunities to support the reforms, opened an embassy in the summer of 2020.16 Writing with all the caution that befits a distant observer, it seems fair to assume that Mr. Pashinyan faced the dilemmas (and continues to face the dilemmas) that are quite familiar in transition situations. On the one hand he must have felt the need to remove members of the previous ruling party, who might otherwise be blocking reforms; on the other hand he would need the expertise and skills of those who are able to run a country, which means more often than not that they worked with the previous authorities. True, I have met several highly talented and dedicated officials who had not been involved in public administration prior to 2018 and who wanted their country to make a fresh start. But Armenia is relatively small –​about three million inhabitants –​ with, unavoidably, a relatively small pool of people who have the know-​how necessary for public administration. And the new prime minister could not afford to wait or waste time with experiments: he had to deliver results to a population with high expectations. Likewise Mr. Pashinyan must have wanted to bring to justice individuals who were widely believed to have been involved in criminal activities under the previous government, including unjust enrichment. Yet his credibility would

14 15

16

C. Mudde, On Extremism and Democracy in Europe(2017) and, by the same author, The Far Right Today (2019). N. Hauer, Following revolution, Armenia becomes more attractive to diaspora (2019), at eurasianet.org. Following Armenia’s adhesion to the Eurasian Economic Union (2014), which is dominated by Russia, the negotiations on an association agreement with the EU were suspended. After fresh negotiations the EU-​ Armenia Comprehensive and Enhanced Partnership Agreement (cepa) was signed. It entered into provisional application in June 2018. On 17 April 2020, the Dutch Council of Ministers agreed to appoint Nico Schermers as resident ambassador to Armenia. See Netherlands to open first Dutch Embassy in Yerevan (7 May 2020), at www.diplomatmagazine.eu. In this article Schermers –​a Leiden alumnus –​is quoted as saying: ‘… the opening of this embassy … is also a testament to the trust we have in Armenia’s future. Two years after the Velvet Revolution the country is in the middle of an impressive political transition. A lot has been achieved in only a short span of time. Ahead now lies the task of implementing reforms, which will at times be challenging. As my Minister already noted during his excellent visit to Yerevan last January, the Netherlands will be an ally in these reform-​efforts’.

146 Lawson be undermined if he failed to respect the independence of the courts and the principles of fair trial. To respect the courts, however, might be less than obvious for him. Trust in the Armenian judiciary was very low in general, and in a post-​revolutionary setting there will always be fertile grounds for suspicions –​ well-​founded or not –​that the judges will frustrate attempts to bring to justice those who once appointed them. In the case of Mr. Pashinyan his personal experience with the judicial systems was not very helpful either. Following the 2008 post-​elections demonstrations he was blamed for ‘organizing mass disorders’ and sentenced to seven years imprisonment. He actually spent two years in prison. This episode may not exactly inspire confidence in the courts. But, unlike ordinary civil servants, judges are protected by the principle of irremovability17 –​which brings us to a certain four judges of the Constitutional Court. 3

Temperature Spike: Criminal Charges against a Former President

If it is true –​to stay with the metaphor of climate change –​that greenhouse gases trap heat and prevent it from leaving the Earth’s atmosphere, then the criminal case against former president Robert Kocharyan was one big carbon emitter. It made the temperature in Armenia increase further and further. This part of the story started in July 2018. Mr. Kocharyan had always been held responsible by his opponents for the violence in the wake of the 2008 elections. And so, just three months after the Velvet Revolution, he was charged with ‘overthrowing the constitutional order of Armenia’ during the final weeks of his rule in 2008. This was historic case, and not only for Armenia. As an observer noted, it was the first time the head of state of a post-​Soviet country was imprisoned (or, to be precise: taken into pre-​trial detention) on the basis of grave criminal charges.18 Clearly the Armenian courts found themselves between a rock and a hard place. Any decision in favour of the former president would be seen as proof that the judges had remained loyal to the man to whom they owed 17

18

On this see, e.g., ECtHR, gc judgment of 23 June 2016, Baka v. Hungary (no. 20261/​12), para. 72–​75, referring inter alia to the UN Basic Principles on the Independence of the Judiciary (1985): ‘Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office. … Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties. … Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review’. M. Kharatyan, Competing protests and the death of a witness: month one of Armenia’s ‘trial of the century’ (2019), at oc-​media.org.

Lessons from Yerevan

147

their career. Any decision against him would be framed as evidence of pressure from the current government –​the same kind of political interference of which prime minister Pashinyan accused his predecessors. Finding itself in a minefield, the First Instance Court of Yerevan quickly suspended its examination of the case: it applied to the Constitutional Court with a request to determine if the charges against Kocharyan actually were compatible with the principle of legal certainty. The question was prompted by an amendment of the Criminal Code in 2009 –​that is, one year after the 2008 post-​election violence. As part of a reclassification of certain offences, the criminal provision that was to be applied in Mr. Kocharyan’s case was introduced as a self-​standing article. Would it be lawful to prosecute the former president on that basis? The Constitutional Court found an innovative way to pass on this hot potato: it requested an advisory opinion on the matter from the European Court of Human Rights. An interesting move –​it was only the second time in history that such a request was referred to the Court.19 In May 2020 the Strasbourg Court gave its advisory opinion, telling the Constitutional Court that it should not compare the various subsequent versions of the criminal code in abstracto. Rather it should make an assessment in concreto, taking into account the specific circumstances of the case.20 With this –​unsurprising –​ answer, the ball was back in Yerevan again. Meanwhile the ex-​president himself had been in and out of pre-​trial detention three times. He was first arrested in July 2018. His release was ordered in May 2019, exactly one year after the Velvet Revolution. Prime minister Pashinyan appeared to be still in a revolutionary mode: he responded by calling on his supporters to rally and block the entrances of court buildings.21 Indeed, to him the blockade was the ‘second most important stage of the Armenian revolution’ and, in a televised speech during a cabinet meeting, he said it was time for a ‘surgical intervention’ in the country’s judicial system and the beginning of ‘transitional justice’.22 ‘The Armenian people perceive the judiciary as 19

The possibility to seek advisory opinions was created through Protocol 16 to the echr, which entered into force in 2018. 20 ECtHR, opinion of 29 May 2020, Advisory opinion concerning the use of the ‘blanket reference’ or ‘legislation by reference’ technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law. 21 J. Kucera and A. Mejlumyan, Armenia: After ex-​president released, premier opens conflict with judges and Karabakh leaders (20 May 2019), at eurasianet.org. 22 N.N., Pashinyan instigates protests outside Armenian courts calling for transitional justice (20 May 2019), at oc-​media.org.

148 Lawson a remnant of the former corrupt system, where conspiracies are constantly being designed and carried out against the people’, the prime minister said. He also laid out a plan to reform the judiciary, including publicizing each ‘judge’s political connections, family background, [and] property status’ and asking those with connections to the former government to quit.23 There were of course those who criticized Mr. Pashinyan’s statements. Leaving the predictable reaction of the Kocharyan camp aside, Armenia’s human rights ombudsman, Arman Tatoyan approached the classic dilemma of transitional justice from the other side: ‘There are problems in the court system, including its independence … but these problems must be solved using exclusively legal means. Therefore, the prime minister’s statement … is extremely dangerous for the security and stability of the country’s legal system’.24 The next month a court of appeal ordered that Mr. Kocharyan be arrested again. This time his supporters were booing. And it was thus that, slowly but unavoidably, the case made its way to the Constitutional Court, again. 4

Climate Change and the Constitutional Court of Armenia: Hit by a Hurricane

If climate scientists suggest that tropical cyclones have changed in number and intensity due to climate change,25 then the experience of the Constitutional Court of Armenia seems to confirm this. By the summer of 2019 it found itself in the midst of a hurricane. Apparently this time the Constitutional Court could not find a way to avoid or delay a ruling in the Kocharyan case –​on 4 September 2019 it ruled that the former president’s arrest was unconstitutional. This ruling led, not surprisingly, to the next public outcry. Prime Minister Pashinyan called the Constitutional Court’s decisions a ‘threat to democracy’ and claimed that ‘the only hope of the former corrupt regime is pinned on the Constitutional Court and its president Hrayr Tovmasyan’.26 The anger quickly translated into calls to get rid of the ‘old’ Constitutional Court judges, that is, the ones who were appointed before the 2018 revolution. 23 24 25 26

Kucera and Mejlumyan, supra note 20. Ibidem. Here I am obviously far beyond my turf. I refer to the Wikipedia page on the topic, Tropical cyclones and climate change. N.N., Armenia to hold referendum on Constitutional Court in April (9 February 2020), at reuters.com.

Lessons from Yerevan

149

For this an amendment of the Constitution was necessary. The situation was somewhat complicated, and at the same time rather simple. The more complicated version is that the composition of the Constitutional Court had been subject to a series of constitutional amendments. The institution was first established in 1995, four years after Armenian independence. The 1995 Constitution provided for nine judges who would remain in office until reaching the age of 70. Ten years later the 2005 Constitution changed the age-​limit to 65. In 2015 there was another change to the constitution; new judges were to be chosen for a non-​renewable term of twelve year. The mandate of the president became six-​year, non-​renewable. The procedures for nominating and electing judges also changed considerably. The Venice Commission responded positively to these changes, which were said to be in line with European practice.27 The latest set of changes was accompanied by a so-​called grandfather clause: Article 213. This provision stipulated that all judges chosen prior to the entry into force of the 2015 Constitution would remain in the Court in accordance with the rules in place when they were chosen. As such this transitional arrangement is praiseworthy, as it protects the tenure of the judges elected before the new rules started to apply. Meanwhile the 2015 Constitution also changed the powers of the president of the republic considerably. It was therefore agreed that the new constitution would enter into force on the occasion of the next presidential elections, which were scheduled in 2018. So far, so good. In practice, however, things worked out rather differently. To the surprise of many, the then president of the Constitutional Court, Gagik Harutyunyan, resigned in March 2018, 20 days before the end of his term of office. Within days parliament elected Hrayr Tovmasyan as member and president of the Constitutional Court –​just weeks before the new Constitution entered into force. As a result Mr. Tovmasyan, born in 1970, could benefit from the ‘pre-​ 2015’ age-​limit of 65 years. Interestingly it was the very same Mr. Tovmasyan who, as former Minister of Justice, had played a leading role in drafting the 2015 constitutional reform package. In other words, he grandfathered himself an appointment to the Court until the year 2035. Under the same grandfather clause he was to keep his mandate as president until retirement. One other member would attain the retirement age in 2037, i.e. more than 20 years after the adoption of 2015 constitutional amendments. Three weeks later, the ‘Velvet Revolution’ took place. Since then, heated exchanges between prime minister Pashinyan and Constitutional Court 27

Venice Commission, First Opinion on the Draft Amendments to the Constitution (Chapters 1 to 7 and 10) of the Republic of Armenia (doc. cdl-​a d(2015)037-​e of 23–​24 October 2015), paras. 161–​166, at www.venice.coe.int.

150 Lawson president Tovmasyan were the order of the day. In October 2019, the ruling My Step Alliance adopted a motion calling on the Constitutional Court to oust its president, questioning his impartiality. Subsequently, the National Security Service summoned and interrogated Mr. Tovmasyan’s family members about their property. In December 2019 Mr. Tovmasyan was charged with abuse of power while he was serving as Armenia’s justice minister. The latter rebutted by filing a defamation lawsuit against Mr. Pashinyan. In the autumn of 2019, especially after the ruling in the Kocharyan case, frustration with rulings of the Constitutional Court had reached such levels (and this is the simple version of the story) that parliament decided to end the situation. The first attempt, from December 2019, consisted of a kind offer. The seven Constitutional Court judges who were appointed before the 2018 revolution, and hence had a mandate was until retirement, were asked to resign early, in return for several advantages.28 None of the judges, however, accepted the offer. When it became clear that being nice did not work, parliament agreed on amendments to the Constitution that would entail, quite plainly, the dismissal of the seven ‘old’ judges, including the president. Under the existing rules parliament was competent to decide on these constitutional amendments by itself. It was decided, however, to put this proposal to referendum. The advantage was that, with a referendum, the proposed amendments would not have to be submitted for review by the Constitutional Court –​the Armenian government was not terribly interested in the opinion of Mr. Tovmasyan and his colleagues, and argued that to involve the Constitutional Court would lead to a conflict of interest. And so a referendum was scheduled to be held in April 2020 –​to the dismay of the opposition which claimed that the Constitutional Court was by-​passed.29 In the meantime, the covid-​19 global crisis came, and already by mid-​ March it became clear that the referendum had to be postponed. As the 28

29

This package enjoyed the support of the Venice Commission: Joint Opinion on the Amendments to the Judicial Code and Some Other Laws: “all justices of the Constitutional Court should enjoy the same status, irrespective of whether they were appointed before or after the 2015 revision of the Constitution (…).as a matter of principle, where the early retirement scheme remains truly voluntary, i.e. excludes any undue (political or personal) pressure on the judges concerned, and when it is not designed to influence the outcome of pending cases, there are no standards that would lead the Venice Commission to oppose such a scheme” (doc. cdl-​a d(2019)024 of 11–​12 October 2019) at www.venice.coe. int. For a discussion see S. Vasilyan, Armenia’s Constitutional Referendum: Denting the Constitutional Court? (2020), at constitutionnet.org.

Lessons from Yerevan

151

pandemic expanded and the prospect of a referendum started to fade, the question arose if it would not be better to cancel the referendum and let parliament decide after all –​without involving the Constitutional Court. The legal questions now started to pile up and, to be on the safe side, the Armenian government decided in May 2020 to request an opinion on the whole matter from the Council of Europe’s Venice Commission. I promised a three star trip –​well, the Venice Commission’s struggle with the situation certainly mérite un détour. 5

Riding the Storm: The Venice Commission and the Constitutional Amendments

The Armenian government presented the Venice Commission with three questions. Was it legitimate to cancel the referendum and put the constitutional amendment back on the agenda of parliament? Was it necessary to seek the opinion of the Constitutional Court? And then the heart of the matter: what to think of the new rules regarding the composition of this court? For reasons of brevity I will only deal with the latter question. The government had found a clever formulation: ‘In the current situation, which is the best way to fully bring to life the new model of the Constitutional Court, prescribed by the Constitution (amended in 2015)?’.30 Phrased like this, the issue was not about how to dispose of individual judges representing a ‘threat to democracy’ or being ‘the only hope of the former corrupt regime’ –​not at all. It was all about doing justice to the philosophy of the 2015 Constitution. This was actually quite a generous thing to do, as this constitution had been adopted when the previous government and president Sargsyan were still in power. To complicate matters, the government submitted to the Venice Commission a proposal that differed from the one that parliament had adopted. Apparently at some point a new approach had been agreed upon. Rather than dismissing the seven ‘old’ judges, it was now anticipated that all members of the Constitutional Court would enjoy the same status and term of office (12 years, non-​renewable), irrespective of whether they were appointed before or after the 2015 Constitution entered into force. This new proposal would have a 30

All quotes in the following passage come from Venice Commission, Opinion on three legal questions in the context of draft constitutional amendments concerning the mandate of the judges of the Constitutional Court (doc. cdl-​a d(2020)016-​e of 19 June 2020) at www. venice.coe.int. For the sake of brevity it is merely noted here that the Venice Commission concluded that it was acceptable to cancel the referendum, but not to proceed without seeking the opinion of the Constitutional Court.

152 Lawson more limited impact on the ‘old judges’. Only three of them would be directly affected: two had been in office for more than twelve years and one judge was serving a second term.31 The Opinion of the Venice Commission deserves to be read beyond the borders of Armenia as well. It addresses problems that also exist in other countries, and it is a courageous attempt to navigate in stormy weather. So let us look at some of the key passages, which begin as follows: 27. The guiding principles for the assessment … are the independence of the courts and their members, avoiding any unnecessary hierarchy or inequality between the judges, and the trust in the institution. 28. In the past, the Venice Commission has repeatedly been critical of changes to the retirement age or term of office of judges, even as part of a general reform of the judiciary, in particular if such changes were made in haste and without convincing justification. Retroactive changes to the retirement age or term of office of judges affect the independence of judges and may, dependent on the number of judges affected, also have negative effects on the efficiency of a court. This is why international standards of judicial independence explicitly guarantee security of tenure until the mandatory retirement age or the expiry of the term office, and at the same time limit the grounds for dismissal to incapacity or professional misconduct (…) 29. (…) Irremovability is designed to shield the constitutional court judges from influence from the political majority of the day. It would be unacceptable if each new government could replace sitting judges with newly elected ones of their choice. (…) Having been appointed under a previous government is simply not a compelling reason for replacing a judge. The Venice Commission continued to praise the 2015 amendments to the Armenian Constitution. Its safeguards meant ‘to establish the highest level of 31

Vasilyan reports that two of the targeted three judges –​Hrant Nazaryan and Felix Tokhyan –​have served more than 24 and 22 years, respectively. See S. Vasilyan, Armenia’s overlapping constitutional reforms: Wither the Constitutional Court? (2020), at constitutionnet.org. The third judge was Ms. Alvina Gyulumyan, who had been a member of the Constitutional Court from 1996 to 2003. She then served as judge of the European Court of Human Rights from 2003–​2014. After her term of office in Strasbourg ended, she returned to ‘her’ Constitutional Court. Under the new system, she could not have been re-​appointed at the Constitutional Court, so her membership of this court would expire immediately.

Lessons from Yerevan

153

independence and impartiality possible in a democratic system governed by the rule of law’. New judges of the Constitutional Court could only be elected by a qualified majority of three-​fifths in parliament;32 the exclusion of the possibility of their re-​election undoubtedly contributed to their independence and a term of twelve years is fully in line with European standards. So far, so good. But what about the ‘old’ judges of the Constitutional Court who had been appointed until the age of 70, or 65, and whose term of office would now be brought back to 12 years? Some of them would lose their position the minute the new system entered into force. Here the Venice Commission started by expressing its reservations: 38. While the introduction of a limited term for constitutional judges cannot be ruled out and on the contrary is commendable, the Commission is of the view that, in principle, a transitional period allowing for a gradual change in the composition of the Court, which prevents such limitation from being used, or from being perceived to be used, as a means at the disposal of the political majority to change the composition of the Court, is appropriate. Such a transitional measure serves to debunk the sense that the limitation of the term of office of the judges is in fact linked to the actions carried out by those judges in the performance of their judicial office being disliked by the ruling majority. Moreover, provisions introducing fixed-​term mandate for judges that result in their immediate removal from office, without a transitional period to protect their confidence in their security of tenure, do not comply with the principle of irremovability of judges. 39. (…) it is appropriate that, if the constitutional provisions on the appointment and the term of office of constitutional court judges are amended, any shortening of the term of office only applies to judges to be appointed after the entry into force of the new provisions. Article 213 is therefore in line with international standards and any departure from the set transitional arrangements must be examined with extreme caution. To summarise: the 2015 amendments to the Armenian Constitution were excellent, and so was the transitional arrangement of Article 213. Clearly this is bad news for the plans to put an end to this very arrangement. However, and this is where the Opinion takes a remarkable turn: things could have been worse. 32

It might be noted that prime minister Pashinyan’s party currently has 88 out of 132 seats in parliament –​exactly two-​thirds. So as matter stand today they have the required majority of three-​fifths needed to elect judges.

154 Lawson 40. The draft amendments to transitional Article 213 of the Constitution, which were initially put to referendum on 5 April 2020, entail the dismissal of all the 7 judges (including the Chairperson) appointed before the entry into force of the 2015 amendments on 9 April 2018 –​including those who had not yet served the full 12 years’ term according to the 2015 amendments. Blanket measures of this kind, without transitional arrangements, would be at odds with Article 6 echr (see Baka v. Hungary). The Commission therefore welcomes that the approach suggested in the request does not lead to the automatic and indiscriminate dismissal of all judges appointed before the entry into force of the 2015 amendments. In other words: seven judges could have lost their position, but now it will only be three. 41. The current request by the authorities suggests actually a different and less intrusive approach. Accordingly, by an amendment to transitional Article 213, the new terms of office introduced in 2015 (twelve years) could take effect for all judges, including the judges appointed before the entry into force of the 2015 amendments. This would mean that judges having already served 12 years would be dismissed, while judges who had been appointed before 9 April 2018 but who had served less than 12 years would stay in office until they had served a total of 12 years. (…) The Venice Commission went on to note that the Armenian government had some good arguments for its proposal: the new model provided by the 2015 Constitution was not yet fully brought to life as a result of the extraordinarily long transition period; there was a stark difference between the status of the judges, depending on when they happened to be appointed; the proposed measure aimed at a standardisation of the judges’ term of office, based on a general reform of the Constitutional Court, and subjected all judges to the same general rule. And then there was an argument of a rather different nature: 44. The authorities underscore that in order to remedy the public distrust in the Constitutional Court, which is an urgent need in Armenia, the composition of this institution should reflect as soon as possible the current provisions, which guarantee high standards concerning the independence of the Constitutional Court. They also stress that the current crisis around the Constitutional Court presents serious challenges for

Lessons from Yerevan

155

ensuring the “democracy guaranteed by the Constitution, as well as sufficient qualities for a state governed by the rule of law”. For an international body it must be difficult to weigh that argument, coming from one side in a bitter dispute. Be that as it may, the picture is clear. We have a good constitution, a good transitional arrangement, a problematic proposal to modify the transition –​and good arguments to do so. So some solution needs to be found. Sometimes one cannot avoid dirty hands. 52. … as pointed out above, any interference with the principle of irremovability of judges remains highly problematic and should be strictly limited. A solution has to be found reconciling to the extent possible the different conflicting interests at stake. In this respect, the Commission particularly takes into consideration that the 2015 reform, with the democratic safeguards it introduced, does not leave room for the ruling majority to have the control of the Court. It also notes the legitimate need in Armenia to have the new constitutional provisions produce their effects without an excessive and unreasonable delay. 53. The Commission reiterates that the appropriate way of bringing to life a new model of a Constitutional Court is to maintain the term of office of the current judges and to allow for a gradual introduction of the new terms of office through normal replacements. However, given the circumstances in Armenia, a possible solution may be to amend the current Article 213 and provide for the renewal of the Constitutional Court while envisaging a transitional period. A transitional period would allow for a gradual change in the composition of the Court in order to avoid any abrupt and immediate change encroaching on the independence of this institution. The authorities are best placed to measure the length of this transitional period and the Commission is not in a position to propose a concrete time period. Determining the length of this period requires striking a balance between two competing public interests: on the one hand, the transitional period must reach a minimum length in relation to each individual judge’s remaining term of office in order not to constitute a disproportionate interference with the principle of irremovability of judges. On the other hand, an exceptionally and unreasonably long transitional period which extends well beyond the object of its purpose, risks thwarting the implementation of the will of the constituent power as expressed in the 2015 amendments. It is therefore important to allow a gradual change over a certain period, the duration of which respects this

156 Lawson balance and to ensure that this measure remains an exception and does not create any dangerous precedent for future governments. So a ‘gradual change’ is called for. As regards the position of the Constitutional Court’s president, the Venice Commission issued, again, a subtle call for moderation: 79. (…) although the international standards appear to provide more leeway concerning his position, changes in the term of office of the chairperson also require a cautious approach. It would therefore be advisable to envisage a transitional period instead of immediately terminating the mandate of the current chairperson of the court upon the entry into force of a possible amendment to Article 213. That was it. One observer summarised the 20-​page long and laborious Opinion as follows: the Venice Commission ‘largely supported the initiative’.33 6

Silence after the Storm: 89-​0

And with that, the road was cleared. Parliament knew enough. On 19 June 2020 –​the very day that the Venice Commission delivered its opinion –​the constitutional amendments were introduced in parliament. They had not been adjusted to the recommendations of the Venice Commission.34 An extraordinary session was convened, but the two opposition parties, Prosperous Armenia and Bright Armenia, boycotted the debates. Three days later the proposals were adopted, with a 89-​0 vote. The first and second readings took place on one single day. As a practical result the term of office of three judges ended with immediate effect. Mr. Tovmasyan had to step down as Court president, but he would remain a judge until the end of his new 12 year term. Two other Constitutional Court members will have to resign in 2022.

33 34

R. Elliott, Building an Armenian Constitutional Court to Last (23 July 2020), at armenianweekly.com. In the concluding paragraphs of the Opinion, as a sort of afterthought, the Venice Commission expressed ‘regret’ that ‘a proposal for constitutional amendments was introduced in the Armenian Parliament on the day of the adoption by the Venice Commission of this Opinion, which proposal is not in line with the recommendations in this Opinion’ (para. 82). In a press release of 22 June, the Secretary General of the Council of Europe called on the Armenian authorities ‘to be guided’ by those recommendations.

Lessons from Yerevan

157

The outcome was applauded by observers: ‘The effective removal of Tovmasyan and the other Justices appointed during the Sargsyan and Kocharyan eras … removed the last real obstacle to meaningful judicial reform in Armenia’.35 Meanwhile prime minister Pashinyan announced comprehensive constitutional reforms. One of the major changes under consideration was the creation of a Supreme Court, which would combine the functions of the Constitutional Court and the Court of Cassation.36 However, Mr. Tovmasyan and his three colleagues were not prepared to go down without a fight. On 26 June 2020, the very day that the constitutional amendments entered into force, the four judges seized the Strasbourg Court. They requested the Court to indicate, by way of interim measure, to the Armenian Government to: freeze the enforcement of the constitutional amendments and, in particular, preserve the offices of the applicants; abstain from appointment of new judges at the Constitutional Court; abstain from institution of any proceedings against the judges and or/​suspend the ongoing proceedings; and ‘ensure the physical safety, mental and moral integrity of judges by abstaining from manipulation of public perceptions through administrative resources’. 7

The European Court of Human Rights in a Changing Environment

All this sounds terribly familiar, even if these developments in Armenia never reached the headlines of West European newspapers. Still we have heard this story, or a similar story, before. In the well-​known case of Baka, the mandate of the president of the Hungarian Supreme Court came to a premature end, as the intended result of a reorganisation of the judiciary. Mr. Baka, himself a former judge of the Strasbourg Court, complained before the European Court of Human Rights about his dismissal –​just like the four judges from the Armenian Constitutional Court.37 Or take the more recent case of Laura Kövesi v. Romania.38 Ms. Kövesi was removed as the chief prosecutor of the national anticorruption agency before the end of her term, following her criticism of legislative reforms in the area of corruption. She was unable to challenge that decision in court. She, too, lodged a complaint in Strasbourg. And what about the long list of controversial 35 Elliott, supra note 32. 36 Vasilyan, supra note 30. 37 ECtHR, gc judgment of 23 June 2016, Baka v. Hungary (no. 20261/​12). 38 ECtHR, Chamber judgment of 5 May 2020, Kövesi v. Romania (no. 3594/​19).

158 Lawson measures adopted in Poland since 2015, aiming at a ‘reform’ of the judiciary? Well … actually there are no Strasbourg judgments about the Polish rule of law crisis. But that is another issue.39 What matters here is that there are similarities across borders which are too obvious to ignore. Come to think of it, cases involving the dismissal of judges have emanated in recent years from many more countries, including Croatia,40 Finland,41 Germany,42 Slovakia,43 Ukraine,44 Italy,45 North Macedonia,46 Portugal,47 Georgia,48 Cyprus49 and, indeed, Armenia.50 Could it be that we have a trend here? Over the last years virtually all the organs of the Council of Europe have spoken out against measures that affect the independence of the judiciary.51 They were often joined by the European Commission, the osce and the United Nations, for instance in the case of Poland.52 Could it be that the various cases 39

40 41 42 43 44 45 46 47 48 49 50 51

52

It is difficult for an outsider to understand why the Court has remained silent in the case of Poland. It is clear that the Court depends on applications being lodged, but the fact remains that a highly relevant case, brought in Jan. 2018, was only communicated in Sept. 2019; that is 20 months later: see Xero Flor v. Poland (no. 4907/​18). Similar delays occurred in other potentially relevant cases: Bojara v. Poland (no. 27367/​18), Grzęda v. Poland (no. 43572/​18), Żurek v. Poland (no. 39650/​18; lodged in August 2018, communicated in May 2020); Sobczyńska and Others v. Poland (nos. 62765/​14 a.o.). ECtHR, judgment of 5 February 2009, Olujić v. Croatia (no. 22330/​05). ECtHR, judgment of 27 January 2009, G. v. Finland (no. 33173/​05). ECtHR, judgment of 16 July 2009, Bayer v. Germany (no. 8453/​04). ECtHR, judgment of 20 November 2012, Harabin v. Slovakia (no. 58688/​11). ECtHR, judgments of 9 January 2013, Oleksandr Volkov v. Ukraine (no. 21722/​11), and of 25 September 2018, Denisov v. Ukraine (76639/​11). ECtHR, judgment of 9 July 2013, Di Giovanni v. Italy (no. 51160/​06). A whole series of cases including ECtHR, judgment of 7 January 2016, Gerovska Popčevska v. fyrom (no. 48783/​07). ECtHR, judgment of 21 June 2016, Tato Marinho dos Santos Costa Alves dos Santos and Figueiredo v. Portugal (nos. 9023/​13 and 78077/​13). ECtHR, judgments of 28 March 2017, Sturua v. Georgia (no. 45729/​05) and of 12 October 2017, Gabaidze v. Georgia (no. 13723/​06). ECtHR, judgment of 31 October 2017, Kamenos v. Cyprus (no. 147/​07). ECtHR, judgment of 20 October 2015, Saghatelyan v. Armenia (no. 7984/​06). See e.g. Report by the Secretary General of the Council of Europe, State of democracy, human rights and the rule of law (2017), 15; pace, New threats to the rule of law in Council of Europe member States: selected examples (Resolution 2188(2017)); Commissioner for Human Rights, The independence of judges and the judiciary under threat (Human Rights Comment, 3 September 2019). See e.g. European Commission, press release of 10 October 2019, Rule of Law: European Commission refers Poland to the Court of Justice to protect judges from political control, at ec.europa.eu (ip_​19_​6033); odihr, press release of 14 January 2020, Urgent Interim Opinion on the Bill Amending the Act on the Organization of Common Courts, the Act on the Supreme Court and Certain Other Acts of Poland (as of 20 December 2019) at osce.org/​odihr;

Lessons from Yerevan

159

of dismissed judges reveal a pattern, that they reflect the growing pressure on the judiciary? A first caveat is that these cases differ strongly from one to another. On the one hand there are ‘isolated’ cases where a judge complains for instance about disciplinary measures that were imposed on him/​her; sometimes the Strasbourg Court finds a violation (for instance because the review procedure did not meet the requirements of Article 6 echr); sometimes no violation is found. The cases of Baka and Kövesi, on the other hand, are different: they are clearly situated in a general context of deliberate pressure on the judiciary as a whole. It could be said that the dismissal of the applicants –​which was the result of “ad hominem legislative measures”53 –​was indeed the climax of this situation. Should we view the application brought by the four Armenian judges in the same category? A first reaction might be: no! Mr. Baka and Ms. Kövesi were the heroes of the story, so the argument would go: they stood for a just cause, they did their job, and then they lost their position because the authoritarian or corrupt rulers of their country wanted to get rid of them. Isn’t it the opposite in the Armenian case? Don’t we have a good, modern, reform-​oriented government that wants to improve the country and that is frustrated in its attempts by old-​school judges who try to protect the vested interests of former rulers? Weren’t they the judges representing a ‘threat to democracy’? No doubt there are many observers who see it this way. This was also the position of the Armenian government before the Venice Commission: there is public distrust in the Constitutional Court; the crisis around the Constitutional Court endangers democracy; something needs to be done. Let’s assume, for the sake of the argument, that we sympathise with this point of view. Should it be a material consideration for the European Court of Human Rights? Should the Court distinguish, somehow, between the cases of Baka and Kövesi on the one hand and the new Armenian case of Gyulumyan and Others on the other? If the Court would do so, how then to avoid the conclusion that the protection of human rights depends on whether the applicant is –​or is seen as, or is framed

53

United Nations ohchr, press release of 25 June 2018, Poland: Reforms a serious blow to judicial independence, says UN rights expert at www.ohchr.org. The expression comes from the CoE Committee of Ministers (!) in the context of the discussions over the execution of the Baka judgment. See decisions adopted at the 1355th meeting, 23–​25 September 2019 (dh).

160 Lawson by his supporters/​opponents as –​a good guy or a bad guy?54 How to stay out of politics? I would rather suggest as a working hypothesis that there are certainly differences between Baka and Kövesi and Gyulumyan and Others, but also enough similarities to study these cases together. How did the Strasbourg Court deal with these cases? What lessons can be learnt? 8

Effective Protection of Judicial Independence and the Role of Interim Measures

There is one element that played a crucial but invisible role in the cases of Baka and Kövesi: the passage of time. Mr. Baka brought his application in March 2012 and obtained a favourable Grand Chamber judgment –​in June 2016.55 That was quite quick by Strasbourg standards. But this victory did not bring about Mr. Baka’s reinstatement in his original position. The Hungarian government lost the case, paid the damages awarded by the Court, and for the rest nothing really happened.56 A fait accompli had successfully been created. The case of Ms. Kövesi was dealt with even faster. She lodged a complaint in Strasbourg in December 2018. Within weeks the Court decided to deal with the case on a priority basis; it managed –​despite the corona crisis –​to deliver a judgment in a bit more than a year.57 Like in Baka, the Court found in favour 54

So far I have not seen the argument that any complaint brought by the dismissed Armenian judges would be stopped by Art. 17 echr, which prohibits abuse of rights. If applicable, Art. 17’s effect is to negate the exercise of the Convention right that the applicant seeks to vindicate in the proceedings before the Court. For this it would have to be demonstrated that the judges in question used their rights ‘to engage in an activity … aimed at the destruction of any of the rights of the echr’. That test is not easily satisfied: Art. 17 is only applicable on an exceptional basis and in extreme cases (ECtHR, gc judgment of 15 October 2015, Perinçek v. Switzerland (no. 27510/​08), §§ 113–​115). 55 ECtHR, gc judgment of 23 June 2016, Baka v. Hungary (no. 20261/​12). 56 In the context of the discussions over the execution of the Baka judgment, the Hungarian government dryly noted that no further individual measures were possible because the position of the President of the Kúria is not vacant and by the time the mandate of the Kúria’s incumbent President expires in January 2021, Mr. Baka will have reached the mandatory retirement age. See doc. dh-​d d(2019)737 02/​07/​2019 at www.coe.int. The Hungarian government used exactly the same argument before the Court of Justice of the EU (cjeu), when the Commission brought infringement proceedings against Hungary about the premature end of the term served by the supervisory authority for the protection of personal data: (cjeu, 8 April 2014, European Commission v. Hungary (Case C-​288/​12), para. 26). The Court was not impressed (para. 34–​35). 57 ECtHR, Chamber judgment of 5 May 2020, Kövesi v. Romania (no. 3594/​19).

Lessons from Yerevan

161

of the applicant. Her dismissal was found to be in breach of the Convention and this may have limited the chilling effect that it must have had on her colleagues. Still, she did not get her position back. Luckily for her, Ms. Kövesi found another job in the meantime: the EU appointed her as the first European Public Prosecutor. Both cases illustrate, in a backhand way, how important the passage of time is in determining the practical effectiveness of the protection that Strasbourg has to offer. Delays may not only affect the individual judge’s position that was at stake, or judicial independence more in general –​they can also affect legal certainty. In the case of Ástráðsson v. Iceland the applicant complains of undue political involvement in the selection process of judges for the newly established Court of Appeal. If his complaint is well-​founded –​and the Chamber believed that it was58 –​then the consequences may be far-​ranging. Arguably all decisions of the new Icelandic Court of Appeal might be liable to the claim that they were delivered by a tribunal not meeting the requirements of Article 6 echr. So, again, when Mr. Ástráðsson lodged his complaint in Strasbourg, time was of the essence. And indeed, the case was communicated within a month, a judgment was delivered well within a year. The case then went to the Grand Chamber, which held a hearing 20 months after the case was first introduced in Strasbourg. That is quite an achievement: the Court faces an enormous case load and, despite all efforts, it has a significant backlog. But the Court had no choice: it could not afford to let precious time go by. Against this background it is only logical to expect that the case brought by the four Armenian judges will be dealt with expeditiously. And since they wanted to preserve their positions in the Constitutional Court, it is understandable from their perspective that they applied for interim measures. If other judges were elected in their position –​as was bound to happen59 –​any victory in Strasbourg would become nugatory. 58 59

ECtHR, Chamber judgment of 12 March 2019, Guðmundur Andri Ástráðsson v. Iceland (no. 26374/​18), now (still!) pending before the Grand Chamber. Indeed, on 15 September 2020 Parliament elected three new judges of Constitutional Court. One of them was the acting chairman of the Court of Cassation, Yervand Khundkaryan –​a controversial candidate. Civil society and human rights defenders responded with disappointment to the elections: “Nothing fundamentally has changed”, the chairman of the Helsinki Citizens’ Assembly said –​a sad confirmation of ‘plus ça change, plus ça reste la même chose’, as noted in the introduction. See A. Mejlumyan, 23 September 2020, “Armenia’s Pashinyan compromises on court reform”, at eurasianet.org. It does not seem that the elections have ended the crisis surrounding the Constitutional Court: in September 2020 the judges failed to agree on who would become their new president.

162 Lawson Yet the European Court of Human Rights did not go along. As we have seen in the introduction, the request for interim measures was rejected ‘as out of scope’ since it did not involve a risk of serious and irreparable harm of a core right under the Convention. The press release added: Although the applicants’ request for an interim measure has been found to be out of scope, it is still open to them to lodge an application and to pursue their complaints before the Court. When required, the Court may decide to give priority to certain applications. The refusal of the interim measure was decided by a Chamber of the Court which was constituted by drawing of lots of judges who joined the Court after 31 October 2014, that is the date when former Judge Gyulumyan’s mandate ended. The national judge withdrew from the case under Rule 28 of the Rules of Court. *** Measures under Rule 39 of the Rules of Court are adopted in the framework of proceedings before the Court and in no way anticipate subsequent decisions on the admissibility or merits of cases before it. The Court only exceptionally allows requests for interim measures, where, in the absence of such measures, applicants would be exposed to a real risk of irreparable damage. For further information see the factsheet on interim measures. A first observation is that this is all we know about the procedure and the Court’s reasoning: we only have this press release. That piece of information is already an exception in itself; among the thousands of cases in which applicants request interim measures, it is only in a few high-​profile cases that the Court’s Registry issues a press release at all.60 As in the case of Gyulumyan and

60

Clearly a judicial Catch-​22 is looming. Any attempt to remove the newly elected judges, so as to allow the ‘old’ judges to resume their original position, would in its turn be difficult to reconcile with the principle of irremovability of judges –​the very same principle that the ‘old’ judges invoked to challenge their dismissal. As a result restitutio in integrum becomes virtually impossible, unless one could demonstrate that the newly elected judges did not act in good faith when accepting their positions. See for instance Press release echr 234 (2020), The Court grants an interim measure in favour of Aleksey Navalnyy (21 August 2020); Press release echr 240 (2019), The Court decides not to indicate an interim measure requiring that the applicants be authorised to disembark in Italy from the ship Sea-​Watch 3 (25 June 2019); Press release echr 179 (2019), Italian Government must provide temporary accommodation for Roma children and their parents evicted from a settlement (20 May 2019); Press release echr 161 (2019), Withdrawal of Vincent Lambert’s treatment: Court denies request for suspension (30

Lessons from Yerevan

163

Others, such a document mainly contains standard phrases; we are not provided with any specific reasoning relating to the particular case at hand. Only in very rare cases are we allowed to see a glimpse of the discussions that the Strasbourg judges may have had.61 Indeed in the case of Gyulumyan and Others an effort is made to explain how the Chamber was constituted, so as to prevent any suggestions that a former judge might receive special treatment when he or she appears before the Court as an applicant. But this is as far as transparency and accountability go when it comes to interim measures. A second observation concerns the finding that the applicants’ request for interim measures is ‘out of scope’, because it does not involve a risk of serious and irreparable harm of a ‘core right’ under the Convention. It is true that the Court has developed a well-​established practice in this respect, as is stated in the Press Release –​but it is equally true that this is merely a policy choice. The relevant provision, Rule 39 of the Rules of Court, does not contain any limitation in this respect: Rule 39 –​Interim measures 1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings.62 The grounds on which Rule 39 may be applied are not defined in the Rules of Court. In one of the leading cases in this area, Mamatkulov, the Court stated

61

62

April 2019). The escalation of the armed conflict with Azerbaijan, in September 2020, led to requests for interim measures from both sides: Press release echr 265 (2020), The Court grants an interim measure in the case of Armenia v. Azerbaijan (30 September 2020), Press release echr 265 (2020), The Court’s decision on the request for an interim measure lodged by Armenia against Turkey (6 October 2020); and Press release echr 310 (2020), Request for interim measures lodged by Azerbaijan against Armenia concerning the conflict in Nagorno-​Karabakh (27 October 2020). In 2019 the Court dealt with 4,779 requests for interim measures, of which, like in previous years, about 10% were granted. See Press release echr 234 (2020), echr grants an interim measure in case concerning the SeaWatch 3 vessel (20 January 2019): ‘Today, a chamber of the European Court of Human Rights decided, by a majority [emphasis added], to grant an interim measure concerning the vessel SeaWatch 3, which has 47 migrants on board and is currently anchored outside of Syracuse, Sicily’. Should one assume, a contrario, that the Chamber was unanimous in Gyulumyan and others? See Rules of Court, at the website of the echr.

164 Lawson … in practice the Court applies Rule 39 only if there is an imminent risk of irreparable damage. While there is no specific provision in the Convention concerning the domains in which Rule 39 will apply, requests for its application usually concern the right to life (Article 2), the right not to be subjected to torture or inhuman treatment (Article 3) and, exceptionally, the right to respect for private and family life (Article 8) or other rights guaranteed by the Convention. The vast majority of cases in which interim measures have been indicated concern deportation and extradition proceedings.63 It is understandable that Strasbourg wants to limit the use of interim measures.64 The Convention itself does not expressly empower the Court to adopt these measures (hence the ‘non-​decision’ to which the introduction of this article referred), and the Court should not be seen as making use of an implied power without a compelling cause. A more mundane argument is that the handling of requests for interim measures is highly disruptive, for the Court and for the Registry. One would not want to open the floodgates for more requests. Yet I believe it is wrong to exclude interim measures a priori in cases like of Gyulumyan and Others on the sole ground that they are not about “core rights” which are equated, in essence, with Articles 2 or 3 echr. I would argue that the effet utile, the effectiveness of the echr, requires a more assertive approach to the ‘scope’ of application of Rule 39: the scope should extend to situations where the position of the judiciary as such is at stake. This is not to say of course that interim measures should always be indicated, but at least the Court should not deprive itself of the option. Clearly my proposal does not concern the ‘isolated’ case where a judge complains for instance about disciplinary measures, without there being an arguable claim that there is a ‘systemic’ issue in the country concerned. But if there is such an issue, then vigilance is called for: arguably the capacity of a state to comply with its obligations under the Convention comes into play.

63

64

ECtHR, Grand Chamber judgment of 4 February 2005, Mamatkulov and Askarov v. Turkey (nos. 46827/​99 and 46951/​99), § 104; Grand Chamber judgment of 10 March 2009, Paladi v. Moldova (no. 39806/​05), §§ 86–​90. See also “Practice Directions –​Requests for interim measures” at the Court’s website. Cf. already M. Buquicchio-​de Boer, ‘Interim measures by the European Court of Human Rights’, in M. de Salvia and M.E. Villiger (eds.), The Birth of European Human Rights Law –​ Liber Amicorum Carl Aage Nørgaard (1998), 229–​236.

Lessons from Yerevan

9

165

Independence of the Judiciary: An Attack on One Is an Attack on All65

There are several arguments in favour of widening the scope of application of interim measures so as to include situations where there appears to be a general issue as regards the independence of the judiciary. Firstly, it has been stated time and again that the effectiveness of the right of individual petition is one of the keystones of the system set up under the echr.66 What is the purpose of allowing four Armenian judges to challenge their forced retirement from the Constitutional Court if it is clear from the outset that other judges will be elected in their position? Should there not be at least a realistic prospect of an interim measure in order to preserve and protect their rights and interests, pending the Court’s final decision? The second argument is the reverse of the first one: interim measures should be possible in order to preserve the Court’s ability to render meaningful judgments. The effectiveness, and indeed the credibility, of the Court is weakened if it fails to intervene at a point in time that an intervention can actually make a difference. The obvious rebuttal to this argument is that one must accept the limitations of the ex post review exercised by the Court. A violation of the right to life cannot be undone either; the same is true for years spent in prison. The Court is not a fourth instance; the protection of rights takes place at the domestic level. Under Article 19 echr the task of the Court is limited to ensuring that the High Contracting Parties comply with their obligations under the Convention. The Court should therefore be slow to intervene in domestic situations by indicating interim measures. All of this is true. Yet, what happened to Mr Baka and Ms. Kövesi was, because of their functions and because of the context of their dismissal, part of a much wider picture. These are the rare cases where one might say: an attack on one is an attack on all. The judiciary has a central place in the “human rights eco-​system”. This means that a measure affecting the independence of the judiciary is necessarily capable of affecting the State’s institutional capacity to secure effective protection of the rights and freedoms protected by the

65

66

This part of the essay seeks to develop an argument that was initially made in an earlier contribution, R.A. Lawson, ‘A Living Instrument: The Evolutive Doctrine –​Some Introductory Remarks’, in The European Convention on Human Rights: living instrument at 70 –​Dialogue between judges (European Court of Human Rights, Council of Europe, 2020), 7–​13. See, among many authorities, ECtHR, judgment of 6 September 1978, Klass a.o. v. Germany (no. 5029/​71), § 34.

166 Lawson Convention. And it follows from the Court’s very mission to ensure compliance by the High Contracting Parties with their obligations under the Convention, as stated in Article 19 echr, that the Court should do all within its powers to protect this eco-​system. If the Court abstains, it fails the essence of its mission. This elementary notion is actually the necessary consequence of the principle of subsidiarity, which leaves it in the first place to the domestic authorities to secure human rights to all within their jurisdictions. This principle was always present in the Court’s case-​law, but in recent years it has been emphatically embraced by the member states of the Council of Europe.67 At the most recent high-​level conference on reform of the Convention system, in Copenhagen (2018), the member states reconfirmed their support for the principle of subsidiarity and the concept of shared responsibility. The latter concept ‘aims at achieving a balance between the national and European levels of the Convention system, and an improved protection of rights, with better prevention and effective remedies available at national level’.68 With national authorities as the first guarantors of the Convention, the right to an effective remedy is clearly a central element of the principle of subsidiarity. So what should the Court do if a member state adopts measures, the foreseeable result of which is that its judicial authorities will no longer be in a position to offer effective remedies? What if the balance between the national and European levels of the Convention system is disrupted, because a state no longer performs its part? There is only one possible answer. The Court should respond. And it should do so as quickly as possible. As the saying (and the Strasbourg case-​law) goes: justice delayed is justice denied.69 The same argument can also be expressed in other words. According to the last paragraph of the press release in the Armenian case, the Court may consider interim measures if ‘applicants would be exposed to a real risk of irreparable damage’. In other words, the test is highly individualised. Is that in line with the core mission of the Court, as defined in Article 19 echr? One answer to this question was given in 1950, when the European Convention was drafted.

67

68 69

In the Brighton Declaration (2012), it was decided to add a recital to the Preamble of the Convention affirming that the States Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto. To this end Protocol 15 was adopted. Declaration adopted by the high-​level conference on reform of the Convention system, Copenhagen, 2018, para. 9 (to be found on the Court’s website). See, among many authorities, ECtHR, Grand Chamber judgment of 28 July 1999, Ferrari v. Italy (no. 33440/​96), § 21, reaffirming “the importance of administering justice without delays which might jeopardise its effectiveness and credibility”.

Lessons from Yerevan

167

Pierre-​Henri Teitgen, a former Minister of Justice of France who would later be elected judge in the Court, reflected on the purpose of the Convention: We are less concerned to set up a European juridical authority capable of righting isolated wrongs, isolated illegal acts committed in our countries, than to prevent, from the outset, the setting up in one or other of these countries a regime of the Fascist or Nazi type. That is the essential element of our purpose.70 Now here we are in dangerous territories. No-​one is claiming that a regime of the Fascist or Nazi type is currently being set up in one of the European countries, however the 1979 statement does make one thing clear: the Court should have an open eye for structural developments that have the potential of putting the core values of the echr at risk. It is that risk which, to my mind, which may justify the indication of interim measures just as much as (or even more than) a purely personal risk in an individual case. 10

Lessons from Luxembourg

When it comes to responding to challenges to the rule of law, inspiration may be taken from the Court of Justice of the European Union. The Luxembourg Court has had to rule on a whole series of cases involving the rule of law in various EU Member States. In doing so, it has been in a position to develop its case law considerably, thus influencing the course of events. What matters for present purposes is that the cjeu has been able to play its role through the use of expedited procedures and, where necessary, the adoption of interim measures. In doing so, it has managed to avoid being confronted with a fait accompli which might undermine the full effectiveness of any future final decision.71 Recently, interim measures were at the core of a rather exceptional case, in which Ms. Eleanor Sharpston tried to preserve her position as Advocate General of the cjeu. Ms. Sharpston had been appointed as ag until October 2021, but the EU Member States considered that her term of office would end earlier, on 31 January 2020, as a result of Brexit. Ms. Sharpston disagreed. When a new ag was appointed in what she considered to be still ‘her’ place, Ms. 70 71

P.H. Teitgen, in Travaux préparatoires de la cedh part v (1979), 292–​294. See, notably, cjeu, Order of 17 December 2018, Commission v. Poland (C-​619/​18 R), § 68 et seq. and Order of 8 April 2020, Commission v. Poland (C-​791/​19 R).

168 Lawson Sharpston applied for interim relief. The General Court granted the application, with a consideration that is worth quoting: … the negative consequences of replacing a lawfully appointed office holder by someone whom may ultimately be deemed to have been appointed unlawfully, are self-​evident. Such a scenario is not in the interests of the applicant nor in those of her possible successor. Nor, since such a result would generate challenges as to the composition of the Court of Justice, thereby impugning the validity of its judgments, is it in the interests of the application of the rule of law in the European Union not to accede to this application.72 The context is very different, but the considerations are not without relevance to the case of Gyulumyan and Others. The primary focus of that case is of course on the interests of the applicants. But as long as the legitimacy of their early retirement is a matter of doubt, the position of their successors is affected. And so is the credibility of the court of which they formed part. These should have been good reasons for the Strasbourg Court to give at least serious consideration to the request for interim measures. This is certainly not the place for an extensive analysis of interim measures in the Luxembourg Court. Suffice it to recall that Article 160(3) of the Rules of Procedure provides that applications for interim relief must specify ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’. From this the Court has derived two main conditions: (1) granting such a measure is justified, prima facie, in fact and in law (the so-​called fumus boni juris); (2) the measure is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached regarding the substance. In analysing the case, the court hearing the application for interim relief must, where appropriate, also weigh up the interests involved. Those conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not met.73 72

73

gc, Order of 4 September 2020, Sharpston v Council and Representatives of the Governments of the Member States (T‑550/​20 R), para. 13. The Order was overturned by the Vice-​President of the Court, Order of 10 September 2020, Council of the European Union v Eleanor Sharpston (C-​424/​20 P(R)) on the ground that she did not have a prima facie case in her action for annulment. But this outcome does not invalidate the observation quoted above. See e.g. cjeu, Order of 20 November 2017, Commission v Poland (C‑441/​17 R), paras. 29–​30.

Lessons from Yerevan

169

It is submitted that there is nothing to prevent the European Court of Human Rights from adopting a similar approach. The proposed shift does not amount to an expansion of the Court’s use of interim measures, but rather a recalibration of the instrument. Indeed, it is not argued that the Strasbourg Court should lower the threshold for the application of interim measures; I do not believe that the cjeu is considered to be particularly generous in this area. But an approach á la luxembourgoise would enable the Strasbourg Court to at least consider the issues at stake in cases like of Gyulumyan and Others. It is more appropriate to address these situations, which are potentially critical for the effective application of the Convention as a whole, than to limit the use of interim measures to individual deportation cases. 11

Lessons from Yerevan

What conclusions can we derive from this story, the length of which is commensurate to my admiration for Prof. Nico Schrijver? Firstly, I trust that Nico will agree that it is actually worthwhile to follow the developments in Armenia, and that in doing so we should not limit ourselves to the recent armed conflict with Azerbaijan. The country has undergone a remarkable and successful democratic transition after its peaceful ‘velvet revolution’, and it has engaged in an ambitious reform programme. At a time that so much attention goes to developments in Poland and Hungary, or Russia and Turkey, these developments are a most welcome source of inspiration to those who, like Nico, seek to defend core values such as democracy, human rights and the rule of law in Europe. Secondly, the story shows the difficulties that accompany transition in a country where political relations have always been tense. We focussed on the judiciary and immediately the dilemmas became visible. How to reform the judiciary and at the same time respect the independence of the courts and the principle of irremovability of judges? How to prosecute a former president without destabilising the whole country? Questions that kept not only national politics busy, but also the Venice Commission and the Strasbourg Court. As to the European Court of Human Rights: ‘Yerevan’ triggered a disappointing and alarming pronouncement when the Court refused to indicate interim measures in the case brought by four (former) judges of the Constitutional Court who challenged what they perceived as arbitrary and unlawful dismissal. There may have been good substantive reasons to reject the request, but the ‘mechanical’ answer that the request was ‘out of scope’ does not do justice to

170 Lawson the important task that has been entrusted to the Strasbourg Court and to the domestic courts. The aim of this article is therefore not to call for furthering the frontiers of the law –​these days it would already be quite an achievement if we managed to consolidate these frontiers. It is rather the effectiveness of human rights protection that deserves to be furthered. And so Yerevan’s last lesson for today is that there is always work that remains to be done. The world cannot yet do without your daily involvement, Nico!

­c hapter 9

Shifting the Frontiers of International Human Rights Law Titia Loenen 1

Introduction

International human rights law is a particularly dynamic field of international law. Over recent decades it has seen tremendous development, characterized by increasing interaction and interplay between a large number of judicial and semi-​judicial bodies interpreting and applying human rights.1 In fact, a multilayered system of human rights protection has come into existence which is founded on a wide array of human rights instruments such as UN human rights treaties,2 regional conventions on human rights,3 and national constitutional human rights provisions.4 They all have their own supervisory mechanisms, be it of a fully judicial kind (such as courts rendering legally binding decisions) or of a semi-​judicial nature (such as the UN treaty bodies, which only produce

1 Nico Schrijver participated in this process for many years, both through his academic work and his committed membership of the UN Committee on Economic, Social and Cultural Rights during the period 2008–​2016. This contribution is inspired by his long term dedication to human rights. 2 The main global treaties include the 1965 International Convention on the Elimination of All Forms of Racial Discrimination; 1966 International Covenant on Civil and Political Rights; 1966 International Covenant on Economic, Social and Cultural Rights; 1979 Convention on the Elimination of All Forms of Discrimination against Women; 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; 1989 Convention on the Rights of the Child; 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; 2006 International Convention for the Protection of All Persons from Enforced Disappearance; 2006 Convention on the Rights of Persons with Disabilities. 3 The main regional human rights conventions are the 1950 European Convention on Human Rights; 1969 American Convention on Human Rights; 1981African Charter on Human and Peoples’ Rights. In Asia, so far no similar regional human rights system has developed. 4 Human rights now seem part and parcel of most modern constitutions as is exemplified by the inclusion of human rights in the constitutions of many countries of the Global South in the wake of the democratization processes in the eighties and nineties.

© Koninklijke Brill NV, Leiden, 2021 | D

172 Loenen soft law).5 Interestingly, formally speaking these judicial bodies operate largely autonomously, without a distinct legal hierarchy existing between them. As such, the current human rights protection system is characterized by a plurality of standards, without a unifying entity guaranteeing cohesion and consistency in the interpretation and application of these standards. At the same time, the practice of these judicial bodies seems to show that they are quite aware of each other’s work and use it as inspiration under their own mandate regarding the interpretation and application of human rights standards.6 So far, and in particular where the interpretation of human rights standards by global and regional judicial bodies is concerned, this implicit or explicit interaction has resulted in quite a lot of convergence rather than divergence in interpreting and applying human rights standards.7 In this respect two general developments in the interpretation of human rights standards by global and regional human rights bodies seem to stand out. Firstly, interpretation is overall dynamic and tends to be directed at an outcome that is perceived as the most favourable or optimal for the complainant. Under the American human rights system this approach is termed a pro homine approach. In Europe, the European Court of Human Rights (ECtHR) has used the notion of the need for ‘effective protection’ of human rights to convey this idea. The UN human rights treaty bodies typically refer to the tripartite obligations of states to not just ‘respect’, but also ‘protect’ and ‘fulfill’ human rights to arrive at a similar dynamic and broad approach. Whatever the distinctive interpretative methods used, the overall result has been a rather extensive interpretation of human rights standards by global and regional human rights bodies.8 Of course, this is not to say that all bodies follow this dynamic and 5 In this paper I will use the terms ‘judicial bodies’ or ‘human rights bodies’ as generic terms to refer to all of them, whether their output is legally binding or not. 6 This can be very explicit, e.g. when the judicial body concerned explicitly refers to other bodies, or implicitly, e.g. where it uses clearly similar lines of reasoning in its interpretation of human rights standards. 7 For national interpretations this is much harder to establish due to the large number of countries involved, so no doubt the picture will be much more diverse. Nevertheless, some major jurisdictions that are well-​known for applying or drawing inspiration from global and regional human rights standards are e.g. South Africa, Columbia and Argentina. Judicial bodies in European countries tend to look in particular to the work of the main regional bodies, the European Court of Human Rights and the EU Court of Justice. 8 See for this phenomenon e.g. M. Killander, ‘Interpreting regional human rights treaties’, 2010 sur –​International Journal on Human Rights 145; L. Lixinski, ‘Treaty interpretation by the Inter-​American Court of Human Rights: expansionism at the service of the unity of international law’, 2010 European Journal of International Law 585; Laurence Burgorgue-​Larsen, ‘ “Decompartmentalization”: the key technique for interpreting regional human rights treaties’, 2018 International Journal of Constitutional Law (I*Con) 187.

Shifting the Frontiers of International Human Rights Law

173

far reaching approach all the time and in all cases. In fact, as far as the ECtHR is concerned it seems to be backtracking a bit in response to the political and public debates on the role of the court vis á vis the national authorities that resulted, among others, in the adoption of Protocol no. 15 to the echr.9 This Protocol emphasizes the margin of appreciation of the national authorities in implementing the rights guaranteed under the echr. Secondly, explicit or implicit interplay and interaction between the human rights bodies often reinforces the tendency to adopt the most favourable interpretation of the human rights standards concerned rather than a more minimal one.10 This means that the highest human rights standard often comes out on top as the overall standard followed by human rights bodies, not the lowest. Both developments taken together are shifting the frontiers of international human rights law. In the following I will explore this process of interaction between human rights bodies and the resulting development of human rights standards in more detail by analyzing two specific examples. The first concerns the development of the approach to economic, social and cultural rights as justiciable rights (section 2), the second the approach to ‘reparations’ as going beyond a focus on individual compensation (section 3). Said developments are not without contestation and challenge. After briefly discussing them (section 4) I will draw some overall conclusions on the influential role the increasing interaction between human rights bodies plays in shifting the frontiers of international human rights law (section 5). 2

Economic, Social and Cultural Rights

Though the 1948 Universal Declaration of Human Rights included civil and political rights as well as economic, social and cultural rights (social rights for short), the latter did not receive the same legal status as the former when several years later the drafting of the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr) started against the backdrop of the Cold War. In fact, drafting two treaties instead of one to render the protection of the rights included in the Universal Declaration of Human Rights into legally binding 9 10

2013 Protocol No.15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms. They are often well-​informed of the standards developed by other human rights bodies through the parties bringing the complaints and/​or third party interventions by ngo s, academic institutions or national Human Rights Institutes.

174 Loenen obligations was caused by different perceptions of the two sets of rights by the Cold War powers that proved at the time unsurmountable.11 In addition to ideological rifts, with the western bloc emphasizing the importance of civil and political rights and the eastern bloc the priority of social rights, principled differences regarding the conceptualization of social rights also played a major role. Roughly speaking, western countries and their allies did not consider social rights to have the same legal status as civil and political rights. Contrary to the latter, social rights were not perceived as genuine rights, that is as justiciable rights that an individual can enforce against the state. Instead, social rights were seen as aspirational goals requiring the development of all sorts of –​often costly –​policies and positive state action, not just state non-​ interference. As such, the realization of social rights was held to come exclusively under the discretionary competence of the national authorities and not to give rise to enforceable obligations for the state. The formulation of the obligations under the iccpr and icescr came to reflect these divergent views. Whereas the iccpr requires the States parties succinctly ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction’ the rights included in the Covenant (Article 2(1) iccpr) the icescr formulates their obligations in terms of ‘progressive realization’ of the rights it contains and does not refer to the individual as a bearer of such rights: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-​operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means including particularly the adoption of legislative measures. (Article 2 lid 1 icescr). Notwithstanding this apparent difference in terminology, subsequent developments have gradually closed the perceived gap between the two sets of rights. Though this shift in perspective is still ongoing, taking the equal status of civil and political rights on the one hand and social rights on the other as the starting point is now part and parcel of the dominant interpretation of international human rights law. As the Vienna Declaration adopted at the 1993 World Conference on human rights famously puts it: ‘All human rights are universal,

11

For a brief overview of this background see I. Bantekas and L. Oette, International Human Rights Law and Practice (2016, 2nd edition), at 400–​403.

Shifting the Frontiers of International Human Rights Law

175

indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis’.12 The approach to the equal normative status of social rights and civil and political rights in the Vienna Declaration is not just a gratuitous and formulaic statement, but has become a legal reality in several respects. Firstly, conceptually a rigid distinction between the two kinds of rights has shown itself to be untenable. Both types of rights may imply both negative and positive obligations for state authorities. Thus rights to liberty, security and fair trial belonging to the classical civil and political rights do not just require the state to refrain from arbitrary arrest and detention, but also to take measures to develop and maintain a decent judicial system and to provide free legal aid when necessary. On the other hand, a typical social right such as the right to housing does not just require states to develop policies to realize sufficient housing, but may in specific contexts also include an immediate and enforceable obligation not to evict someone. This is not to say that the realization of social rights may not indeed require more often and to a larger extent state intervention than guaranteeing the enjoyment of civil and political rights, but both sets of rights cannot be approached as fundamentally different. To what extent they give rise to negative or positive obligations must be assessed on a case by case basis. Secondly and more importantly, the contention that social rights are non-​justiciable rights has been overhauled by legal realities. Courts in various jurisdictions have started to apply social rights and are increasingly doing so. In this respect the Global South has played a pioneering role. In several countries the transition to democracy in the eighties and nineties of the last century was coupled with the inclusion of social rights in the constitution and a mandate for courts to adjudicate such rights.13 As a consequence a process of judicialization of social rights has been initiated that has resulted in an increasing body of jurisprudence concerning social rights.14 South Africa provides a well-​known example of this important development. A landmark case in this respect is the case of Grootboom.15 In this case 12 13 14 15

UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/​ conf.157/​23, Part i, para 5. See for a detailed analysis of such developments V. Gauri and D.M. Brinks (eds.), Courting social justice. Judicial enforcement of social and economic rights in the developing world (2008). Judicialization can be regarded as a specific form of legalization, that is as legalization with a central role for courts and other judicial bodies. Government of the Republic of South Africa v. Grootboom and others 2001 (1) sa 46 (cc) (Grootboom).

176 Loenen ms. Grootboom and others were evicted from a piece of land on which they had settled illegally to escape from the unbearable housing conditions in the slums in which they had lived before. As the eviction rendered them homeless, they claimed the state should provide them with alternative housing so as to comply with its obligation under the South African Constitution, which includes a right to access to housing. Though the South African Constitutional Court did not go along with granting the complainants the concrete remedy they claimed, it did hold that the government had violated their right to access to housing. In doing so the Court considered that the Constitutional right to housing does not imply a right to housing in terms of a right that is ‘immediately on demand’,16 but it does require the government to develop and implement a housing policy that meets a test of ‘reasonableness’. The housing programme in place did not meet that test ‘in that it failed to provide for any form of relief to those desperately in need of access to housing’.17 The Court concludes that in this way the government violates the right to housing.18 Interestingly, South Africa is not the only jurisdiction where social rights have found their way to judicial review. Similar developments have occurred in other countries in the Global South such as Brasil, Argentina and India.19 Though it is hard to provide concrete and specific evidence for this, it is very likely that each of the courts involved have been influenced by developments elsewhere. As it is, the Internet revolution has made information about the work of many human rights bodies easily accessible, with academics and international ngo s often playing a major role in processing and disseminating such information. The final jewel in the crown of the recognition of the equal status of social rights at the global level is represented by the introduction of an Optional Protocol to the icescr which provides for an individual complaints procedure. Whereas a mandate for the Human Rights Committee to receive such complaints in relation to the iccpr was already initiated in 1966, initiatives to introduce this mechanism for the icescr were not taken seriously until the described shift in perception of the legal nature of social rights was well under way. Eventually the Optional Protocol to the icescr was adopted in 2008 and entered into force in 2013.20 Since then the Committee of Economic, Social and 16 17 18 19 20

Ibid, section 33. Ibid, section 95. Ibid, section 99. See Gauri and Brinks (2008), supra note 13. For an overview of the background and content of the Optional Protocol to the icescr see Geneva Academy of International Humanitarian Law and Human Rights, The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,

Shifting the Frontiers of International Human Rights Law

177

Cultural Rights (cescr), the supervisory body to the icescr, has embarked on developing its jurisprudence in response to individual complaints which so far mainly regard the right to housing and the right to social security, their first view on the merits being given in 2015.21 Even though these views are not legally binding but of a soft law nature only, the existence of a complaints procedure regarding social rights manifests the acceptance of social rights as rights that can be adjudicated. Cumulatively, these developments underscore that the question is not anymore whether social rights are justiciable, but rather to what extent and how they can be applied by courts and other judicial bodies. To conclude, the changed perception and legal status of social rights is a major achievement that is the product of increasing interplay and interaction between human rights bodies. 3

Reparations for Human Rights Violations

Another area in which the frontiers of international human rights law are shifting concerns the obligation to provide reparations to redress human rights violations. In this area the Inter-​American Court of Human Rights (IACtHR) has played a leading role in the development and dissemination of human rights standards.22 The IACtHR was established in 1979. It is competent to decide individual complaints referred to it by the Inter-​American Commission of Human Rights regarding alleged violations of the American Convention on Human Rights, that is if the state party concerned has accepted its jurisdiction to do so.23 The

21

22

23

Geneva 2013, https://​www.geneva-​academy.ch/​joomlatools-​files/​docman-​files/​The%20 optional%20protocol%20In%20brief%202.pdf. cescr 17 June 2015, i.d.g. v Spain, Communication no. 1/​2013. All views are published on the website of the Office of the High Commissioner for Human Rights, https://​www. ohchr.org/​EN/​HRBodies/​CESCR/​Pages/​TableJurisprudence.aspx. For an overview of the jurisprudence of the cescr in the first five years see Titia Loenen, ‘Vijf jaar klachtrecht onder het Verdrag inzake Economische, Sociale en Culturele rechten. Een analyse van de jurisprudentie in het licht van het debat over rechterlijke toetsing aan sociale rechten.’, 2019 Nederlands Tijdschrift voor de Mensenrechten/​NJCM-​Bulletin 103. Though in the following I focus on the Inter-​American Court of Human Rights, it should be noted that the Inter-​American Commission of Human Rights, which preceded the Court by two decades, also played an important role in developing human rights standards. It is beyond the scope of this contribution to explore this further. Almost all Latin-​American countries have done so, but two major actors in the region, the US and Canada, have not and are not even a party to the Convention as such.

178 Loenen Convention covers mainly civil and political rights, such as the right to life, right to fair trial and rights protecting against arbitrary detention and torture. Contrary to the ‘views’ of the UN treaty bodies, its decisions constitute legally binding judgments. Though the IACtHR was modelled to a large extent on the ECtHR, the IACtHR soon developed its own particular approach to its supervisory role which reflects the different social, economic and political context it operates in. In the seventies and eighties this context was characterized by the existence of military dictatorships and gross human rights violations including mass killings, enforced disappearances and arbitrary detention and torture. The period of democratization that followed in the nineties and beyond greatly improved the human rights situation in the region, but structural and mass violations still exist in many countries. Against this background the IACtHR developed its jurisprudence with a clear awareness of the structural dimensions of most of the individual human rights complaints brought to it. This may well explain why the IACtHR developed an innovative, broad approach to the reparations it orders the state to provide to the victim(s) after finding a violation.24 Traditional forms of reparation will either consist in restoring the individual complainant to the position (s)he held before the violation occurred (restitutio in integrum) or if this is not possible, to provide financial compensation for the harm suffered. In its jurisprudence the IACtHR developed a wide range of additional forms of reparation directed at individual victims as well as communities and society at large. Thus it has ordered states to reopen a village school and staff it; to reestablish a medical clinic; establish a fund for relatives of victims; to hold a public ceremony to commemorate victims or place a memorial plaque. Reparations of an even more structural nature include orders to reform legislation, develop new policies or training programmes for state officials such as security personnel, prison officials or prosecutors.25 This broad approach to reparations has become one of the outstanding features of the Inter-​American approach to human rights adjudication and it seems safe to say that it exerted quite some influence on developments regarding the approach to reparations in other jurisdictions. One such development took place at the UN level regarding the question how to deal with the aftermath of gross human rights violations including violations of international humanitarian law and how to prevent repetition. 24

For an overview see T.M. Antkowiak, ‘Remedial Approaches to Human Rights Violations: The Inter-​American Court of Human Rights and Beyond’, 2008 Columbia Journal of Transitional Law 351. 25 Ibid.

Shifting the Frontiers of International Human Rights Law

179

The increased attention for this issue resulted in 2005 in the adoption by the General Assembly of the UN of the ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’.26 Though this is not a legally binding document as such, it can be regarded as laying down generally accepted international standards and thus as highly authoritative. Since then, the broad approach to reparations with its focus on the need for structural in addition to just individual redress seems to be receiving increasing support in human rights adjudication. The cescr is a good example. As mentioned above, the Optional Protocol to the icescr established an individual complaints procedure and gives the cescr the mandate to render its (legally non-​binding) decision whether a violation has occurred or not. In the views it delivered so far, the cescr also adopts a broad approach to the reparations that it recommends the state to take after finding a violation of the icescr has occurred. Thus, in a case against Spain it has formulated recommendations to develop and implement a comprehensive housing plan for low-​income persons in addition to providing relief for the individual complainant.27 In another case it recommended the government of Ecuador to provide for a comprehensive pension benefits plan.28 So far, the ECtHR has not followed this line of ordering broad and general reparations, but this may be explained by the particular monitoring system applicable under the echr which differs from the legal arrangements in the Inter-​American human rights system. In the European system the Committee of Ministers of the Council of Europe plays a leading role in ensuring that states take the necessary measures to comply with judgments of the European Court in which they are found to violate the echr.29 4

Contestation and Challenges

Though the above developments in human rights standard setting that shift the frontiers of international human rights law can overall be seen as positive achievements, they also meet with some serious contestation and critique. Apart from principled legal objections, major concerns exist regarding their 26 27 28 29

General Assembly Resolution 60/​147 of 16 December 2005, A/​r es/​60/​147. cescr 20 June 2017, Mohammed Ben Djaza v. Spain, Communication no. 5/​2015. cescr 26 March 2018, Marcia Trujillo Calero v. Ecuador, Communication no. 10/​2015. Article 46 echr.

180 Loenen ultimate impact for real people on the ground: is all this sophisticated standard setting helpful to improve their human rights situation or rather a waste of time and resources that could be better spent? 4.1 Principled Legal Objections The legal debates often focus on the expanding role of judicial bodies in determining the content of human rights standards in increasing detail and question whether this is a proper role for courts or other semi-​judicial bodies. This debate is of particular relevance regarding the development of human rights standards in the areas of social rights and reparations discussed in this contribution. Human rights bodies have taken an increasingly broad interpretation to the applicable human rights standards and to their competence to review state conduct in these areas, which are traditionally perceived as allowing the states a very wide margin of discretion. In the academic literature two main arguments are often put forward to argue against the expanding role of judicial bodies and for a much more deferential approach.30 To start with, it is contended that courts are ill-​equipped to deal with the type of issues that are involved when social rights are at stake or structural reparations are needed to address human rights violations. Such issues are complex and polycentric: they usually involve the interests of many more people or groups who are not a party to the case, they often imply important policy decisions and may have major consequences for budget allocation. As such decision making power should rest primarily with the legislative and administrative powers, which are better-​placed to cope with the complexities at stake.31 The second argument is also related to concerns regarding the proper division of powers between the three branches of government, but is of a more principled democratic nature. From the perspective of democratic legitimacy, the expanding role of courts in human rights standard setting is deemed problematic as the primary role in this process should be left to the state institutions that are democratically accountable.32 The European debate on the proper role of the ECtHR shows that a decrease in the perceived

30

For an overview of this discussion see e.g. J. King, Judging Social Rights, (2012), at 1–​14; S. Fredman, ‘Review article: Coming of age: socio-​economic rights as human rights.’ In: Sandra Fredman and Meghan Campbell (eds), Social and Economic Rights and Constitutional Law (2016), https://​www.elgaronline.com/​view/​Research_​Reviews/​9781784718299/​intro.xml. 31 King, supra note 30, at 4–​8. 32 Ibid.

Shifting the Frontiers of International Human Rights Law

181

legitimacy of decisions by judicial bodies can subsequently have serious political backlash effects.33 To overcome this tension between the role of courts and the other branches of government, ‘dialogical’ approaches to the role of courts have been suggested. In such approaches courts figure as a push factor in activating other state institutions to develop laws and policies to improve the human rights situation and in monitoring their progress in doing so, rather than deciding themselves what has to be done in any detail. Thus ‘Courts contribute to the iterative process of specifying the right by demanding a deliberative justification for a State’s actions or inactions in progressively realising a right, thereby strengthening democratic accountability.’34 The judgment of the South-​African Constitutional Court in the Grootboom case referred to above can be seen as an example of this type of approach. Judgments such as these are meant to force the government into more and better action rather than trying to decide what it must do in any detail.35 The same holds true for the general reparations recommended by the cescr (see section 2). In fact, dialogical approaches to human rights adjudication emphasize the need for interplay with other actors to make it effective. They contextualize the work of judicial bodies and acknowledge that their work is part of a much larger network of actors striving for the realization of human rights. This ties in with the second concern about the tremendous development of human rights standard setting we have witnessed in the past decades. However lofty these developments may be on paper, are they indeed more than a paper tiger? 4.2 Concerns about Ultimate Impact When discussing the impact of legal procedures, it is important to understand ‘impact’ as including both direct and indirect effects. Direct impact refers to the direct and immediate effects of decisions by human rights tribunals for the individual cases litigated before such bodies, whereas indirect impact considers the more indirect, broad effects of such cases on furthering human rights. I follow the distinction made in this respect by Cavallero and Brewer, who emphasize that the ultimate impact of decisions of human rights bodies on the ground is not to be measured by compliance in individual cases, but rather

33

For a collection of articles on this issue e.g. S. Flogaitis, T. Zwart and J. Fraser (eds.), The European Court of Human Rights and its discontents. Turning Criticism Into Strength (2013). 34 Fredman, supra note 30, at 27. 35 Ibid, at 3.

182 Loenen by the broader legal and/​or societal effects their decisions have.36 In this context, they demonstrate that the impact of a human rights decision is likely to increase if it ties in with the work of a wide variety of other actors able to exert pressure on relevant authorities and to effectuate change, including grassroots organization, ngo s, politicians, civil servants and the media.37 Though this type of impact is thus difficult to measure in statistical terms and can only be inferred indirectly, at the end of the day it is what often matters most for people on the ground. Indirect impact may occur through the influence of the work of judicial bodies on broader normative discussions, including human rights discourse and morals. It may also come about when the work of judicial bodies helps building up local pressure to change policies and practices that ultimately result in improving the human rights situation for people in their daily lives. Research shows this can indeed happen, again through much more diffuse mechanisms than direct compliance with judicial decisions and human rights standard setting. Thus Cameron notes that the jurisprudence of the South African Constitutional Court on social rights had ramifications far beyond the individual cases decided and has resulted in modifications of legislation, change in attitudes towards hiv/​aids and has given a voice to groups that were hardly heard before.38 In respect of Colombia, Rodríguez-​Garavito also identifies several important indirect effects of court cases regarding the right to food, education and housing of displaced persons. It promoted forming alliances between activists and other actors to develop efforts to improve the position of this group. In addition, public understanding and sensitization to the plight and needs of this group was greatly improved. Last but not least the government was activated to formulate and implement policies to alleviate the situation of displaced persons.39 In short, this type of impact reaches far beyond the individual case and may sometimes even occur when the case is lost.40 It also shows that ultimately human rights standard setting can only be effective if it is sufficiently accepted and supported locally. A wide variety of actors may 36

J.L. Cavallero and S.E. Brewer, ‘Reevaluating regional human rights litigation in the twenty-​first century: the case of the Inter-​American Court’, 2008 American Journal of International Law 768. 37 Ibid, at 788. See also C. Rodríguez-​Garavito, ‘Beyond the courtroom: the impact of judicial activism on socio-​economic rights in Latin America’, 2011 Texas Law Review 1669. 38 E. Cameron, ‘A South African perspective on the judicial development of socio-​economic rights’, in: L. Lazarus, C. McCrudden and N. Bowles (eds), Reasoning rights. Comparative judicial engagement (2014), 319. 39 Rodríguez Garavito, supra note 37. 40 Cameron, supra note 38.

Shifting the Frontiers of International Human Rights Law

183

need to be involved to achieve that: domestic courts, National Human Rights Institutes, civil society organizations, religious and political leaders, public and social media et cetera. 5

Concluding Remarks

The –​often implicit –​interaction between global, regional and national judicial bodies interpreting and applying human rights standards has increased tremendously, particularly over the last decade. The process of mutual influence taking place only became possible on a truly significant scale in the wake of the Internet revolution, which makes the work of human rights bodies easily available and accessible. This interaction has resulted in a wealth of more refined and detailed human rights standard setting, in which the most favourable (pro homine) interpretations for the complainants tend to be adopted that put all sorts of positive obligations on national authorities to not just respect human rights standards, but also to protect and fulfill these rights. The developments regarding the human rights standard setting in the area of social rights and reparations as discussed above are prime examples and have shifted the frontiers of international human rights law. Though having refined human rights standards is overall –​without disregarding its problematic sides –​a positive achievement, it is clear that standard setting by human rights bodies is not the end, but the starting point for improving the human rights situation of real people in their daily lives. A lot of other actors are needed to turn rights on paper into realities on the ground. Nevertheless, international, regional and national judicial bodies play their own role in this process and can have a positive impact. In this respect, measuring impact by exclusively focusing on compliance and enforcement issues is wrongly conceived. Indirect impact may often be far more important though it is admittedly very hard to measure. Ultimately, much depends on how the work of judicial bodies ties in with and is embedded in the work of a wide variety of other actors. By acting in a variety of capacities in his personal career Nico Schrijver contributed in his own unique way to this process.

­c hapter 10

Waters Rising

Possible Effects of Sea Level Rise on the Legal Regime of Baselines and Delineation of Maritime Zones Xuechan Ma I see all the water rising To drown everyone This is tomorrow’s way to end our days Watch as the clouds, they gather now to wash us away Water is rising coming to wash it all way There’s no denying we were so wrong Waters Rising, written by mark tremonti for Alter Bridge

∵ 1 Introduction* Mark Tremonti has explained the inspiration behind the song ‘Waters Rising’ being a fictional apocalyptic scenario.1 In the real world sea level rise, ‘as one of the most obvious manifestations of the radical changes to the Earth’s system that homo sapiens have brought’, is among the most certain outcomes in a warming world.2 The 2019 Special Report on the Ocean and Cryosphere (srocc) of the Intergovernmental Panel on Climate Change (ipcc) confirmed * Xuechan Ma is a climate change specialist at the Food and Agriculture Organization of the United Nations; Ph.D. in international law at Leiden University (2020); ll.m. (2015) & ll.b. (2013) at Peking University. 1 Song facts about Waters Rising by Alter Bridge, available at: https://​www.songfacts.com/​facts/​ alter-​bridge/​waters-​rising?fbclid=IwAR11_​tkQpgI2Dm64-​n- ​QJ_​WzyKBX6_​UxdVky6Ic0X-​ cqAaE_​nfPLIX3FNOY (last accessed 4 September 2020). 2 D. Freestone, D. Vidas, A.T. Camprubí, ‘Sea Level Rise and Impacts on Maritime Zones and Limits: The Work of the ILA Committee on International Law and Sea Level Rise’, (2017) 5(1) The Korean Journal of International and Comparative Law 5, at 7; D. Vidas, ‘Sea-​level rise and international law: at the convergence of two epochs’, (2014) 4(1–​2) Climate Law 70, at 71.

© Koninklijke Brill NV, Leiden, 2021 | D

Waters Rising

185

that the global mean sea level rose 0.16 meter between 1902 and 2015.3 The melting of ice sheets and glaciers was the dominant source of the rise, which exceeded the effect of thermal expansion of ocean water. The impacts of sea level rise are already being felt around the world, with negative consequences such as floods, loss of territory, coastal erosions, salt-​water intrusion into ground water and destruction of infrastructure and homes.4 The future does not look promising. Despite a certain degree of scientific uncertainty about the extent of the rise, global mean sea level is expected to continue rising at an increasing rate and is likely to rise 0.84 meter in 2100 under the ‘business-​as-​usual’ scenario with respect to 1986–​2005 practice.5 Even with sharp and immediate cuts to carbon emissions, this figure would be at a rise of 0.5 meter this century.6 Two issues are further worth noting. First, estimates and impacts of sea level rise have geographical variability. While 70% of the coastlines worldwide are projected to experience a sea level change within ±20% of the global mean, some places are very likely to experience ‘significant deviations of local and regional sea level change from the global mean change’.7 Recent research suggests that many Small Island Developing States (sids) and developing countries across Asia, due to low elevations, are especially at the forefront of sea level rise threats such as chronic coastal flooding and permanent inundation.8 In particular, the media often feature Kiribati and Tuvalu as ‘disappearing States’ that will be submerged completely by 2050.9 Second, the frequency of extreme sea level events (i.e. extremely high sea levels caused, for example, by waves and tides) are projected with high confidence to increase from once per century in the recent past to at least once per year by 2050 at many locations, especially in tropical regions.10 As some scholars have pointed out, a departure from the general stability of natural conditions of the last few thousand years on which the current system of international law has close reliance, the upcoming epoch –​characterized by relative environmental instability and novel challenges such as 3 4 5 6 7 8 9 10

ipcc, srocc –​Summary for Policymakers (2019), at 10. R. Balesh, ‘Submerging Islands: Tuvalu and Kiribati as Case Studies Illustrating the Need for a Climate Refugee Treaty’, (2015) 5 Earth Jurisprudence & Envtl. Just. J. 78, at 78. ipcc, supra note 3, at 20. S.A. Kulp and B.H. Stauss, ‘New elevation data triple estimates of global vulnerability to sea-​level rise and coastal flooding’, (2019) 10(1) Nature Communications 1, at 2. ipcc, AR5 (2014), ­chapter 13 –​sea level change, at 1140. Kulp and Stauss, supra note 6, at 2. J. McAdam, ‘Swimming against the tide: why a climate change displacement treaty is not the answer’, (2011) 23(1) International Journal of Refugee Law 2, at 8. ipcc, supra note 3, at 20.

186 Ma climate-​induced changes –​is calling into question some basic axioms of international law.11 This echoes an insightful observation made by Professor Nico Schrijver about a decade ago, ‘[t]‌he impacts of climate change challenge traditional notions in international law, most notably those relating to the principle of territorial sovereignty, with its presumptions of defined territory and fixed maritime boundaries’.12 Sea level rise is without exception and calls for re-​evaluation of some currently accepted paradigms of international law. In 2019, the International Law Commission (ilc) included the topic ‘Sea-​ level rise in relation to international law’ in its programme of work.13 As identified in the syllabus prepared for the ilc’s discussion in 2018, sea level rise was likely to produce consequences in three main areas, namely the law of the sea, statehood, and protection of persons affected by sea-​level rise.14 Subject to adjustment in the light of the complexity of the issues to be considered, the ilc planned to work on the law of the sea-​related issues in 2020 and issues of statehood and the protection of persons affected by sea level rise in 2021.15 In terms of the potential legal effects of sea level changes on the international law of the sea, the ilc has spelt out six issues:

(i)

Possible legal effects of sea-​level rise on the baselines and outer limits of the maritime spaces which are measured from the baselines; (ii) Possible legal effects of sea-​level rise on maritime delimitations; (iii) Possible legal effects of sea-​level rise on islands as far as their role in the construction of baselines and in maritime delimitations; (iv) Possible legal effects of sea-​level rise on the exercise of sovereign rights and jurisdiction of the coastal State and its nationals in maritime spaces in which boundaries or baselines have been established, especially regarding the exploration, exploitation and conservation of their resources, as well as the rights of third States and their nationals (e.g., innocent passage, freedom of navigation, fishing rights);

11 Vidas, supra note 2, at 70, 80; Freestone, Vidas and Camprubí, supra note 2, at 9. 12 N. Schrijver, ‘The Impact of Climate Change: Challenges for International Law’, in U. Fastenrath et al. (eds.) From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, Oxford Scholarship Online (2011) 1278, at 1278. 13 Official Records of the General Assembly, Seventy-​fourth Session, Supplement No. 10 (A/​ 74/​10), para. 265. 14 Official Records of the General Assembly, Seventy-​third Session, Supplement No. 10 (A/​ 73/​10), at 328, para.12. 15 A/​ c n.4/​s r.3480, Provisional summary record of the 3480th meeting, at 16.

Waters Rising



187

(v) Possible legal effects of sea-​level rise on the status of islands, including rocks and on the maritime entitlements of a coastal State with fringing islands; (vi) Legal status of artificial islands, reclamation or island fortification activities under international law as a response/​adaptive measures to sea-​level rise.16

Figure 10.1 situates these issues (i)-​(vi) in the regime of the international law of the sea. To begin with, according to the fundamental principle of ‘la terre domine la mer’ (‘the land dominates the sea’), territorial sovereignty over land territories such as islands or mainland can generate maritime entitlements over specific marine areas.17 As reflected in issue (v), sea level rise may influence the capacity of islands in generating maritime entitlements by modifying their legal status from fully-​entitled islands to rocks or even to submerged features. Meanwhile, sea level rise is pushing the coastal front landward and submerging islands that currently serve as base points for the construction of baselines, thereby moving the baselines landward and affecting the delineation of maritime zones, as indicated in issues (i) and (iii). As a potential response or adaptation measure to sea-​level rise, the construction of artificial islands, reclamation or island fortification activities may also have consequences for the identification of base points and thus the location of baselines and maritime zones, as inferred in issue (vi). Furthermore, a distinction should be made between delineation and delimitation. While delineation is to depict the extent of maritime entitlements that a coastal State can claim under international law, delimitation is to lay down a maritime boundary between States with opposite or adjacent coasts in the presence of overlapping entitlements.18 Upon the delineation of maritime zones measured from established baselines, a country might need to delimit a maritime boundary with neighbouring countries in case of overlapping claims, where the presence of islands may be taken into account during the consideration of ‘relevant circumstances’, which is often the last step in maritime

16 See supra note 14, at 328–​329, para.15. 17 See North Sea Continental Shelf (Federal Republic of Germany/​Denmark), Judgment of 20 February 1969, [1969] icj Rep. 3, para.96. Also see C. van Bijnkershoek, De Dominio Maris Dissertatio (oup 2nd ed. 1744) (translated by R. Van Deman Magoffin), at 43. 18 South China Sea Arbitration (The Philippines v. China), Jurisdiction and Admissibility, Award on Jurisdiction and Admissibility of 29 October 2015, pca, para. 156.

Waters Rising

189

As to the structure, this chapter, based upon a brief exposition of the legal regime of baselines and maritime zones, first explores whether lex lata –​especially the United Nations Convention on the Law of the Sea (unclos)21 –​presents the proper paradigm to cope with negative consequences resultant from sea level rise (section 2). This chapter then continues to discuss proposals de lege ferenda to preserve the status quo (section 3). Some concluding observations are made in the final section (section 4). 2

Lex lata: Generally Ambulatory Baselines and Maritime Entitlements

This section presents a case for the argument that the current international legal framework is not entirely adequate to deal with the negative consequences of sea-​level rise on baselines and the delineation of maritime zones. 2.1 unclos Is Not Prepared for Sea Level Rise The baselines are lines from which the breath of the maritime zones is to be measured. unclos prescribes three methods of drawing baselines. First, pursuant to Article 5, the default baselines are normal baselines that are the low-​water lines along the coast as marked on large-​scale charts officially recognized by the coastal State.22 The low-​water lines are inherently changing with sea level changes. Second, in exceptional circumstances, Article 7 provides that the method of straight baselines joining appropriate points can be used in localities where the coastline is deeply indented and cut into or if there is a fringe of islands along the coast in its immediate vicinity.23 These straight baselines are required not to depart to any appreciable extent from the general direction of the coast, and the sea areas lying within these lines must be sufficiently closely linked to the land domain.24 For normal and straight baselines, the outermost permanent harbour works can be considered as forming part of the coast for the purpose of drawing baselines.25 The same applies to low-​ tide elevations, which are ‘above water at low-​tide but submerged at high tide’, in exceptional circumstances.26 Third, according to Article 47, an archipelagic 21 22 23 24 25 26

UN General Assembly, Convention on the Law of the Sea, 10 December 1982. unclos, Article 5. unclos, Article 7(1). unclos, Article 7(3). unclos, Article 11. unclos, Article 13(1) (normal baselines) and Article 7(4) (straight baselines).

190 Ma State can draw straight archipelagic baselines to join the outermost points of the outermost islands and drying reefs of the archipelago to the extent that the water-​land ratio is somewhere between 1 to 1 and 9 to 1.27 Measured from the baselines, the modern law of the sea has delineated the oceans into several types of maritime zones associated with different rights and obligations. These maritime zones include internal waters,28 archipelagic waters,29 the territorial sea,30 contiguous zone,31 exclusive economic zone (eez),32 continental shelf,33 high seas,34 and the international seabed.35 A literal reading of Articles 5, 7 and 47 of unclos indicates that normal, straight and archipelagic baselines can shift with the morphological conditions of the coastal front, which can be composed of the outermost islands, reefs, low-​tide elevations and permanent harbour works. This ambulatory feature of baselines is in line with Weil’s observation: ‘From the moment States were recognised as having rights over areas of sea … these rights have been based on two principles which have acquired an almost idiomatic force: the land dominates the sea and it dominates it by the intermediary [of] the coastal front’.36 Sea level rise is pushing the coastal front and thus the baselines to move landward, with islands, reefs, and low-​tide elevations getting partially or completely submerged, thereby potentially leading to shrinking maritime entitlements. The actual shifting distance of the baselines depends closely on the gradient of the land surface in the area concerned, and as Soons identified, in some areas a 0.5 meter rise in the sea level can cause the baselines to shift landward for tens of kilometres.37 With the landward shift of the baselines, both the inner and outer limits of the territorial sea, contiguous zone and eez will also shift landward. This change is well captured in the words of Soons, ‘[t]‌he extent (area) of these sea areas remains the same; only the

27 unclos, Article 47. 28 unclos, Article 8. 29 unclos, Article 49. 30 unclos, Article 3. 31 unclos, Article 33. 32 unclos, Articles 55–​57. 33 unclos, Articles 76–​77. 34 unclos, Article 86. 35 unclos, Articles 136–​137. 36 Vidas, supra note 2, at 74, drawing on: P. Weil, Geographic Considerations in Maritime Delimitation, in J.I. Charney and L.M. Alexander (eds), International Maritime Boundaries, vol. 1 (Dordrecht: Martinus Nijhoff, 1993), at 115. 37 Soons, supra note 20, at 216.

Waters Rising

191

location of the inner and outer limits changes’.38 When it comes to the continental shelf, whereas its inner limits will shift landward, the effects of shifting baselines on its outer limits are less clear. As discussed below, Article 76(9) of unclos is intended to permanently fix the outer limits of the continental shelf.39 Changes of sea level on this scale was not envisaged at the adoption of unclos.40 In light of this, Vidas commented that ‘no remedies for the consequences of sea-​level rise can be found in unclos: it was tailored to the geographical circumstances of its own time, not the ones yet to come’.41 Nevertheless, there are two rare provisions in unclos –​Articles 7(2) and 76(9) –​designed to preserve the status quo, although their original intention was not for addressing sea level changes. Article 7(2) in Relation to Preservation of Straight Baselines 2.2 One rare provision relates to straight baselines that have been widely used in practice by a substantial majority of coastal and Archipelagic States.42 Article 7(2) of unclos provides that [w]‌here because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-​water line and, notwithstanding subsequent regression of the low-​water line, the straight baselines shall remain effective until changed by the coastal State.43 The purpose of this provision is to stabilise straight baselines to some extent to avoid fluctuation as in the case of normal baselines.44 Since unclos itself does not define the meanings of relevant terms contained in Article 7(2), it remains open to question whether sea level changes can be counted as ‘other natural conditions’ that make the coastline ‘highly unstable’. 38 Ibid. 39 See section 2.3 below. 40 C. Redgwell, ‘UNCLOS and Climate Change’, (2012) 106(1) American Society of International Law Proceedings’ 406, at 408. 41 Vidas, supra note 2, at 75. 42 Although recent statistics are unavailable, Pharand pointed out that ‘by 1985, 60 States had used the straight baseline system and 12 more had adopted enabling legislation’. See D. Pharand, Canada’s Arctic Waters in International Law (1988), at 147. 43 unclos, Article 7(2). 44 S. Sefrioui, ‘Adapting to sea level rise: a law of the sea perspective’, in G. Andreone (ed.), The Future of the Law of the Sea (2017), at 7.

192 Ma Looking at the drafting history, the texts of Article 7(2) were not contained in the 1958 Convention on the Territorial Sea and Contiguous Zone, a predecessor of unclos, and was proposed by Bangladesh for the first time in an informal position paper during the third United Nations Conference on the Law of the Sea (1973–​1982), in the following formulation: The localities where the coast line is deeply indented and cut into or if there is a fringe of islands along the coast in its immediate vicinity or if the water adjacent to the coast is marked by continual process of alluvion and sedimentation creating a highly unstable low water line the method of straight baselines joining appropriate points on the coasts or on the coastal waters may be employed in drawing the baseline from which the breadth of territorial sea is measured [emphasis in original].45 The above texts were proposed with the Ganges/​Brahmapurta River delta in mind, where no stable low-​water line existed and more than 10 million tons of silt was deposited in the monsoon season.46 The main element of this proposal was first included, together with what later became Article 7(1), as part of the first paragraph in the Informal Single Negotiating Text (isnt): In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. Where because of the presence of a delta or other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-​water line and, notwithstanding subsequent regression of the low-​water line, such baselines shall remain effective until changed by the coastal State in accordance with the present Convention.47 In light of this, as suggested in a technical publication on baselines prepared by the United Nations (UN) Office for Ocean Affairs and the Law of the Sea (doalos), in exercise of one of its major responsibilities to ensure that State practice develops in a manner consistent with unclos provisions, Article 7(2) 45 46 47

Nordquist, M.H., et al. (eds.), United Nations Convention on the Law of the Sea, 1982: a commentary. Vol. 2: Articles 1 to 85, Annexes I and II, Final act, Annex II (Nijhoff. 1993), at 97. Ibid, at 101 and footnote 8. Ibid, at 98.

Waters Rising

193

should be regarded as subordinate to Article 7(1) but not an alternative to it.48 It means that for Article 7(2) to apply the coastline must satisfy the conditions set out in Article 7(1), namely ‘where the coastline is deeply indented and cut into’ or ‘if there is a fringe of islands along the coast in its immediate vicinity’.49 Endorsing this interpretation, the unclos commentary concluded that ‘even in the cases covered by [Article 7(2)], no basepoints for determining straight baselines may be taken from submerged areas’.50 With respect to the wording ‘notwithstanding subsequent regression of the low-​water line’, the unclos commentary explained that at the adoption of unclos, regression of low-​water marks was considered by hydrographers as a rare phenomenon, as most deltas advanced rather than retreated except in the case of heavy damming upstream.51 Thus, Article 7(2) was apparently adopted without sea level changes in mind. More importantly, doalos has further suggested that the wording ‘a delta and other natural conditions’ infers that there must be a delta in order for Article 7(2) to apply.52 This interpretation significantly limits the application scope of Article 7(2) to only include unstable coastlines in a delta. It follows that Article 7(2) cannot apply to preserve straight baselines against sea level rise if such straight baselines are not established in the area of a delta. Article 76(9) in Relation to Preservation of Outer Limits of Continental Shelf Another exceptional provision is Article 76(9), through which unclos provides legal certainty for the outer limit of the continental shelf. Article 76(9) reads as follows: ‘The coastal State shall deposit with the Secretary-​General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf.’53 Redgwell commented that the wording ‘permanently’ was undoubtedly deliberate given ‘significant sunk costs in continental shelf exploration and exploitation’.54 As of today, only very few countries (e.g. Australia, Belgium, Chile) have deposited with the UN Secretary-​General a complete set of the geographical 2.3

48

UN Office for Ocean Affairs and The Law of the Sea, Baselines: An examination of the relevant provisions of the United Nations Convention on the Law of the Sea (1989), at 24, para.48. 49 Ibid. 50 Nordquist et al. (eds.), supra note 45, at 101. 51 Ibid. 52 UN Office for Ocean Affairs and The Law of the Sea, supra note 48, at 24, para.48. 53 unclos, Article 76(9). 54 Redgwell, supra note 40, 407.

194 Ma coordinates of the outer limits of their continental shelf in accordance with Article 84(2) of unclos.55 For some countries, the absence of the Article 84(2) deposit is a consequence of the difficulty to delimit maritime boundaries with neighbouring countries. Hence, it would be somewhat unrealistic to expect these countries to make use of Article 76(9) by completing the deposit in the near future, in order to preserve the outer limits of the continental shelf from being impacted by sea level rise. 2.4 Interim Conclusion In sum, unclos provides no remedies to specifically deal with the negative consequences of sea-​level rise. As a result, the baselines and delineation of maritime zones will, in general, have to fluctuate with sea level changes under the current international legal framework. Articles 7(2) and 76(9), albeit designed to preserve the status quo of straight baselines or the outer limits of continental shelf, are insufficient to tackle the effect of sea level rise in all its aspects. 3

Lex Ferenda: Freezing or Shifting Baselines and/​or Outer Limits of Maritime Zones?

Given the inadequacy of unclos in dealing with the negative consequences of sea-​level rise on baselines and the delineation of maritime zones, this section continues to discuss proposals de lege ferenda aimed at preserving the status quo. 3.1 Two Proposals de Lege Ferenda The unavoidable consequence of the impact of sea level rise is the regression of baselines and landward shifting of the outer limits of maritime zones, thereby potentially causing the loss of maritime space especially internal waters and archipelagic waters.56 As concluded in section 2, the generally ambulatory baselines as stipulated in unclos are inadequate to cope with negative consequences resultant from sea level changes. A few countries (especially sids) are calling for the preservation of the baselines and/​or maritime entitlements in the face of sea level rise.57 Nevertheless, 55 56 57

undoalos, Deposit of charts, available at: https://​www.un.org/​Depts/​los/​ LEGISLATIONANDTREATIES/​depositpublicity.htm (last accessed 25 July 2020). Freestone, Vidas and Camprubí, supra note 2, at 22. These countries include Maldives and 16 member countries to the Pacific Islands Forum (Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands,

Waters Rising

195

some countries have not yet expressed their views in this regard. In response to the ilc’s request for information and views on the topic of ‘sea-​level rise in relation to international law’,58 the governments of the United Kingdom (UK) and the Netherlands, for example, referred to their practices with regard to ambulatory baselines in line with unclos.59 Similarly, the government of United States (US), albeit not a party to unclos, has emphasized its recognition of the rules governing coastal baselines as reflecting customary international law and its longstanding practices in conducting routine surveys of its coasts and adjusting the normal baselines accordingly.60 Scholars have put forward proposals de lege ferenda (not prescribed in current international law) to preserve the status quo. Some nuanced difference, however, exists among these opinions. Some scholars such as Rayfuse and Hayashi prefer freezing permanently the baselines and consequently the maritime limits.61 In contrast, others such as Soons and Caron are in favour of keeping the original outer limits of maritime zones regardless of the regression of baselines caused by sea level rise.62 Both proposals can bring legal certainty, security and stability to the maritime order,63 but they can have different implications if implemented in reality. In the first proposal where the baselines are fixed, sea level rise is expected to transform dry land into submerged areas that will lie to the landward of these fixed baselines. Such submerged areas will obtain the status of internal waters where a costal State enjoys the same absolute sovereignty as over the previous dry land. Meanwhile, the locations and extent of the territorial sea, Nauru, Niue, Palau, Papua New Guinea, Samoa, New Zealand, Solomon Islands, Tonga, Tuvalu, Vanuatu). See Comments by government at https://​legal.un.org/​ilc/​guide/​8_​ 9.shtml. 58 unga resolution A/​74/​425, at 4, para.4. 59 UK, Submission (10 January 2020), available at https://​legal.un.org/​docs/​?path=../​ilc/​sessions/​72/​pdfs/​english/​slr_​uk.pdf&lang=E, at 2; Netherlands, Submission (27 December 2019), available at https://​legal.un.org/​docs/​?path=../​ilc/​sessions/​72/​pdfs/​english/​slr_​ netherlands.pdf&lang=E, at 2. 60 US, Submission (14 February 2020), available at https://​legal.un.org/​docs/​?path=../​ilc/​sessions/​72/​pdfs/​english/​slr_​us.pdf&lang=E, at 1–​2. 61 See e.g., R. Rayfuse, ‘International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma’, (2010) Univ. N.S.W. Faculty of Law Research Series, Paper 52, at 12; M. Hayashi, ‘Sea-​Level Rise and the Law of the Sea: Future Options’, in D. Vidas and P.J. Schei (eds.), The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (2011), at 198. 62 See e.g., Soons, supra note 20, 223–​226; D.D. Caron, ‘When law makes climate change worse: Rethinking the law of baselines in light of rising sea level’, (1990) 17(4) Ecology Law Quarterly 621, at 647. 63 Sefrioui, supra note 44, at 15–​16, 18, 20.

196 Ma eez and continental shelf as measured from the fixed baselines remain the same. In the second proposal with only the outer limits of maritime zones fixed, as sea level rise moves the baselines landward, the breadth of the territorial sea, eez and continental shelf will expand and likely exceed the maximum limits as stipulated in unclos. 3.2 Discussion and Recommendation In the author’s view, the first proposal is more preferable than the second one for three reasons. First, unlike the second proposal, the first proposal will not lead to obvious conflicts with existing unclos provisions. As mentioned earlier, the second proposal will cause the expansion of the territorial sea, eez and continental shelf, and consequently, the breath of the territorial sea and eez will exceed the maximum limits as stipulated in Articles 3 and 57 of unclos. Therefore, compared with the second proposal, the first proposal has the merit of not involving the need to amend these two unclos provisions, which could add considerable difficulties.64 Second, the first proposal is more feasible in terms of implementation than the second one. The first proposal would require coastal States to establish the baselines and give due publicity to them. For example, Hayashi has proposed the core provision to read like the following: A coastal state may declare the baselines established in accordance with the relevant provisions of the los Convention as permanent once it has shown them on charts of an adequate scale or described them by a list of geographical coordinates, and given due publicity thereto, notwithstanding subsequent changes in geographical features of coasts or islands due to sea-​level rise.65 The second proposal has a similar requirement that coastal States will have to establish and publish the outer limits of various maritime zones. However, in most circumstances, it is easier for countries to establish the baselines than the outer limits of various maritime zones. Especially for some countries, the existence of a maritime boundary dispute with neighbouring countries can make the deposits of the geographical coordinates of the outer limits of their territorial sea, eez and continental shelf in accordance with Articles 16(2), 75(2) and 84(2) of unclos extremely difficult.

64 Hayashi, supra note 61, at 196. 65 Ibid, at 198.

Waters Rising

197

Admittedly, the unilateral establishment of the baselines by a coastal State is not always without dispute and could involve pre-​existing disputes including those relating to ‘the status of rocks and islands or the location and legitimacy of straight baselines’.66 However, in terms of drawing baselines, the outcomes of these disputes usually only influence a relatively small extent of sea areas and therefore, as rightly pointed out by Rayfuse, these disputes can persist until resolved through the normal processes (e.g. negotiation, adjudication).67 Third, the first proposal can ensure fairness and equity for developing countries. Freezing the baselines through legal fiction has the advantage of freeing coastal States from the need to physically preserve base points or baselines for the mere purpose of preserving maritime entitlements. The second proposal has a similar effect, but it is not as thorough as the first one, as costal States might still have the incentive to reinforce base points or baselines for gaining a larger size of internal water or archipelagic water to the landward of the baselines. As correctly observed by the government of Maldives, the Maldives and other sids would be further disadvantaged by an international legal regime that allows maximizing maritime entitlements through large-​scale coastal reinforcement, which may be possible for some developed States with sufficient resources and appropriate geography but will not be feasible for the Maldives or other sids.68 In light of this, the first proposal has a considerable merit of ensuring fairness and equity for developing countries because it leaves no room for maximizing maritime entitlements through physical preservation of base points or baselines. To avoid doubt, it has to be clarified that this chapter does not discourage physical preservation of base points or baselines through ‘artificial conservation of the baseline’ or ‘the construction or reinforcement of sea defences (shoreline protection)’.69 However, such physical preservation or conservation activities should not be driven by the mere purpose of enlarging specific maritime zones. It would be better if resources are directed to more substantive adaptation needs such as harbours protection, species relocation, and wetland conservation.70

66 Rayfuse, supra note 61, at 6. 67 Ibid. 68 Republic of Maldives, Information and examples of State practice on “Sea-​level rise in relation to international law” (31 December 2019), available at http://​legal.un.org/​docs/​ ?path=../​ilc/​sessions/​72/​pdfs/​english/​slr_​maldives.pdf&lang=E, at 16. 69 Soons, supra note 20, at 222. 70 Caron, supra note 62, at 650.

198 Ma The above proposal de lege ferenda could be transformed into new rules of customary international law or translated into a new treaty instrument. Nevertheless, the former is less feasible than the latter, because severe disputes might have already arisen with land areas submerged due to sea level rise by the time the new custom takes shape. A considerable period is generally required for the accumulation of State practice and the occurrence of opinio juris.71 New treaty provisions prescribing the permanent preservation of the baselines can be incorporated in either a new treaty independent from any existing treaties or a protocol, amendments or agreements supplementary to existing treaties including, for example, unclos or the United Nations Framework Convention on Climate Change (unfccc). In particular, the parties to unfccc can adopt protocols on any matters relating to unfccc –​presumably including climate-​induced sea level changes –​through the Conference of Parties (cop) pursuant to its Article 17, as in the case of the Kyoto Protocol.72 Any State party to unclos, by written communication, can propose specific amendments to the Convention in relation to baselines and request the convening of a conference to consider such proposed amendments.73 Whereas the above formal amendment procedure has never been used so far, the parties to unclos have de facto already amended three provisions, namely Articles 2(2) and 4 of Annex ii and Article 4(3) of Annex vi, through consensus decisions by the Meeting of State Parties (splos).74 Despite the lack of explanation of their legal nature, splos decisions made by consensus can presumably be regarded as an agreement among all the parties to amend unclos.75 Unlike a protocol and amendments (both formal and de facto) that exclude the participation of non-​parties, the UN General Assembly may invite all interested States, including parties and non-​parties, to a conference or a subsidiary 71 Hayashi, supra note 61, at 200. 72 unfccc, Article 17(1). 73 unclos, Articles 312–​316. 74 For amendment of Article 2(2) of Annex ii, see splos/​5, Report of the third meeting (27 November-​1 December 1995), at para.20; for amendment of Article 4 of Annex ii, see splos/​72, Decision regarding the date of commencement of the ten-​year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex ii to the United Nations Convention on the Law of the Sea (29 May 2001), and also see splos/​183, Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly developing States, to fulfil the requirements of article 4 of Annex ii to the Convention, as well as the decision contained in splos/​72, paragraph (a); for amendment of Article 4(3) of Annex vi, see splos/​3, Report of the first meeting (21–​22 November 1994), at para.16. 75 Hayashi, supra note 61, at 204.

Waters Rising

199

forum (such as a special committee or working group, another body or informal consultations outside the General Assembly) to negotiate and adopt an agreement supplementary to unclos, in this case, with the aim of fixing permanently the baselines and consequently the outer limits of maritime zones.76 Examples of such General Assembly-​led processes include the adoption of the Agreement relating to the implementation of Part xi of unclos in 1994 and the UN Fish Stocks Agreement in 1995 as well as the ongoing negotiation of an international legally binding instrument under unclos on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. 3.3 Towards Deterritorialization in International Law In light of the above reasons, this chapter posits that the proposal de lege ferenda of freezing permanently the baselines and consequently the outer limits of various maritime zones has more considerable merits than the proposal of fixing the original outer limits of maritime zones and leaving the baselines ambulatory with coastal regression. This proposal, by its nature, transforms the traditional land-​sea interface by divorcing the baselines from the changing coastal front. It has to be clarified that the above position rests upon the presumption that coastlines recede gradually. Will this position stand if the land territory, based upon which the baselines are drawn and maritime entitlements are delineated, has vanished into the sea? As mentioned above, rising sea levels are swallowing the territories of low-​lying island States like Kiribati and Tuvalu and likely make them totally disappear in the future! A low-​lying island State may consider relocating the whole population to live on the territory of another State. For example, in 2014, the then Kiribati president, Anote Tong, purchased a piece of land from Fiji to help secure a future threatened by sea level rise.77 Nevertheless, the problem remains whether a country without its own territory can continue its statehood on the territory of another State and keep its original entitlements to maritime zones. A defined territory has long been regarded as a fundamental element of statehood together with the other three elements (a permanent population, government, and the capacity to enter into international relations with other States), as emphasized in the 1933 Montevideo Convention on the Rights and 76 77

Ibid, at 204–​205. L. Caramel, ‘Besieged by the rising tides of climate change, Kiribati buys land in Fiji’, The Guardian (1 July 2014), available at https://​www.theguardian.com/​environment/​2014/​jul/​ 01/​kiribati-​climate-​change-​fiji-​vanua-​levu.

200 Ma Duties of States.78 On this basis, the sea is closely tied to the land according to the fundamental principle of ‘la terre domine la mer’, whereby a State can only claim maritime entitlements over specific marine areas when it enjoys territorial sovereignty over certain land territories,79 or as summarized by the International Court of Justice in the Fisheries case, ‘[i]‌t is the land which confers upon the coastal State a right to the waters off its coasts’.80 Consequently, as described by Mann, the modern international law ‘seems to establish a satisfactory regime for the whole world’ by dividing the world into ‘compartments within each of which a sovereign State has jurisdiction’.81 Therefore, it is difficult to imagine how international law will recognize a country’s entitlements to maritime zones without sovereignty over physical land territories. However, as rightly pointed out by Professor Nico Schrijver, sovereignty is ‘not an absolute and static concept but more a relative and dynamic one’.82 One notable change in recent decades has been vividly portrayed by Benvenisti as follows: In past decades the predominant conception of sovereignty was akin to owning a large estate separated from other properties by rivers or deserts. By contrast, today’s reality is more analogous to owning a small apartment in one densely packed high-​rise that is home to two hundred separate families … The privilege of bygone days of opting out, of retreating into splendid isolation, of adopting mercantilist policies or erecting iron curtains is no longer realistically available.83 Drawing on this inspiring metaphor, the extreme scenario of relocating population of a sinking island State to the territory of another State is analogous

78

Montevideo Convention on the Rights and Duties of States, adopted 26 December 1933, entered into force 26 December 1934, Article 1. 79 See North Sea Continental Shelf, supra note 17, para.96. Also see van Bijnkershoek, supra note 17, at 43. 80 Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, [1951] icj Rep. 116, at 133. 81 F.A. Mann, The Doctrine of Jurisdiction in International Law (1964), at 30, quoted in: H.L. Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, (2009) 57 American Journal of Comparative Law 631, at 632. 82 N. Schrijver, ‘The Changing Nature of State Sovereignty’, (1999) 70(1) British Year Book of International Law 65, at 98. 83 Eyal Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’, (2013) 107 American Journal of International Law 295, at 295.

Waters Rising

201

to a country renting a room in another State’s apartment, and it is actually not uncommon that a tenant enjoys exclusive use rights over the room. ‘International law … may be more flexible than we think’, said Professor Nico Schrijver.84 He cited Judge Huber’s vision of collective sovereignty as a supporting argument: ‘it may be stated that territorial sovereignty belongs always to one, or in exceptional circumstances to several States, to the exclusion of all others’.85 In this sense, it is perhaps not impossible that the further deterritorialization of international law, by divorcing sovereignty from territory to the extent of allowing the continued existence of statehood of sinking island countries, and by divorcing the sea from the land in the sense of recognizing maritime entitlements originally measured from the disappeared land, may transform into positive rules of international law in the near future as a legal response to the novel challenges brought by sea level rise in the future. Admittedly, the disappeared land can add difficulties and increase costs of monitoring, control, surveillance (mcs) and enforcement within original maritime zones. However, as rightly pointed out by Rayfuse, these challenges could be dealt with in several ways, including through the use of sophisticated satellite and other mcs technologies, through cooperation with regional fisheries management organizations (rfmo) and other relevant international organizations, or through creating a new international mechanism to coordinate the rights, benefits and obligations of sinking States and other States.86 4

Conclusion

The regime of the international law of the sea, as it currently stands, does not adequately address the continued maintenance of baselines and outer limits of maritime zones in the face of sea level rise. This chapter argues in favour of new positive rules of international law to freeze baselines and consequently the delineation of maritime entitlements regardless of coastal regression and even in the extreme scenario of submerged land, for the sake of ensuring certainty, fairness and equity. This position perhaps can find its roots on the evolving concept of ‘permanent sovereignty over natural resources’, which is also the topic of a landmark monography written by Professor Nico Schrijver.87 84 Schrijver, supra note 12, at 1285. 85 The Island of Palmas Case (or Miangas) (United States of America v The Netherlands), Award of 4 April 1928, xi unriaa 831, at 838. 86 Rayfuse, supra note 61, at 12. 87 N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997).

202 Ma The concept of ‘permanent sovereignty over natural resources’, initiated to secure peoples living under colonial rule and subsequently newly independent States equitable access to benefits arising from exploiting natural resources, has further evolved with a growing emphasis ‘on the obligation of all States to manage their resources in the interests of economic development and that of their population, and in an environmentally responsible way, while also taking into account the interests of other States and humankind’.88 This is not the end. As Professor Nico Schrijver noted: ‘Changes in the interpretation of the principle of permanent sovereignty will go hand in hand with the continuing evolution of international law’.89 Perhaps a new series of rights and obligations in response to challenges being brought by sea level rise can grow out of the continuing evolution of this concept. 88 89

Ibid, at 24–​25. Ibid, at 395.

­c hapter 11

The International Criminal Court and Human Security Looking Ahead Complementarity? Andrea Marrone 1 Introduction1 The humanistic views and the intellectual sophistication, the legal theory formulations and the evidence-​based research approach of my mentor and other prominent scholars dealing with the preservation of the rule of law at Leiden University, greatly inspired me. Professor Nico Schrijver, in his capacity as chair of the department of public international law at Leiden University, accurately supervised in a supportive and inspiring manner my evidence-​based research approach as an external PhD candidate. I struggled with the principles underlying human security that have been latent in international law for ages, centralising individuals in global affairs. I am extremely grateful for his guidance allowing me to perform and complete my doctorate successfully. It is my pleasure to write this Liber Amicorum to my mentor who dedicated his academic career for a just cause. This contribution advocates for global features preserving, maintaining and restoring the rule of law, while offering capacity-​building to protect civilians in situations of war and crime. The expectation of human security that centralizes the fundamental rights of individuals is the priority, and complementary global regimes should be designed and governed in accordance with such priority. In order to pursue human security international criminal justice requires complementary working methods with the regime maintaining peace and security looking ahead complementarity. This contribution questions the progress of international law upholding human security preserving fundamental individual rights in situations of war 1 Andrea Marrone has a Doctorate in Public International Law, Leiden University, and is Lecturer in International Organisations Law and Policy Making, University of Applied Sciences, Inholland, Rotterdam. Staff member of the International Criminal Court, Office of the Prosecutor. The views expressed in this contribution are the sole responsibility of the author and do not necessarily reflect the view of any organisation.

© Koninklijke Brill NV, Leiden, 2021 | D

204 Marrone and crime.2 It debates the progress achieved and further progress possibly achievable by the legal and political frameworks protecting civilians based on a universal jurisdiction.3 It emphasizes the necessity to solve the interaction gaps between complementary global regimes dealing with mass atrocities, despite several obstacles and constraints. Obviously, the interaction between them is the only way to further cultivate the idea of justice based on their complementary nature such as the United Nations Security Council and the International Criminal Court. In the present reality of post-​cold war international relations, the obstacles, challenges and concerns facing the governance of international threats and crimes proliferate.4 The clusters of international governance currently under scrutiny require attention by decision-​makers in the fields of peace and justice, cooperation, complementarity and victim rights. Maintenance and restoration of peace and security based on accountability is still weak in regard to aggression, terrorism, nuclear and chemical weapons, and also against the illicit trafficking of drugs, people, firearms and natural resources. Furthermore, the emerging frameworks of governance dealing with mass atrocity crimes rely on last resort methods falling under complementary responsibilities rather than relying exclusively on international criminal justice and the paradigm of accountability.5 It is clear that these pathways of governance should create 2 See H. Owada, “Human Security and International Law”, Part 4, Paper 34, in U. Fastenrath et al (eds.), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, 2011, Oxford University Press, at: http://​www.oxfordscholarship.com/​view/​10.1093/​acprof:oso/​ 9780199588817.001.0001/​acprof-​9780199588817-​paper-​34 See also N. Schrijver, Development without Destruction: The UN and Global Resource Management United Nations Intellectual History Project Series, Indiana University Press, 2010. 3 The crimes covered by universal jurisdiction include genocide, crimes against humanity, war crimes, torture and enforced disappearances. States can prosecute criminals who are on their territory, regardless of where the crimes may have been committed or of the nationality of the perpetrators and the victims. The interest of such procedures for lawless regions is obvious. See V. Paulet, “The ICC Universal Jurisdiction: Two ways, one fight”, Coalition for the ICC, 23 May 2017, available at: http://​www.coalitionfortheicc.org/​news/​20170519/​icc-​universal-​ jurisdiction-​two-​ways-​one-​fight last accessed at 09 October 2018. For an overview of the current debate, see unga Sixth Committee, ga/​L/​3571, Without Clear Definition, Universal Jurisdiction Principle Risks Misuse, Abuse, Sixth Committee Speakers Warn, Press release, 10 October 2018 available at: https://​www.un.org/​press/​en/​2018/​gal3571.doc.htm. 4 UN Report of the Secretary General’s High-​Level Panel on Threats, Challenges and Change, A More Secure World. Our Shared Responsibility, Annexes, “Summary of recommendations”, Part 2, “Collective security and the challenge of prevention”, “Conflict between and within States”, p. 100, 2004, available at: http://​www.un.org/​secureworld/​report2.pdf. 5 The category of mass atrocity crimes refers to the commission of genocide, crimes of war and crimes against humanity and their definitions can be found at: http://​www.preventorprotect. org/​overview/​definitions.html.

The International Criminal Court and Human Security

205

one unique road map avoiding ranked, parallel and/​or conflicting directions when intervening in situations of war and crime. Unfortunately, this is not yet the case. The international governance of war and crime in multiple-​country-​ situations is characterized by serious gaps in the areas of law enforcement, civilian protection and sustainable order requiring all of them urgent solutions. In addition, the current shifts in international law, namely humanitarian, criminal and human rights frameworks require analysis and debate now, and in the years to come, in order to preserve the rule of law.6 The establishment of an international judicial institution responsible for verifying, on a case-​by-​case basis, whether serious humanitarian crimes fall under the competence of domestic judicial authorities, or whether an international judiciary is required, is a visible accomplishment advocated for decades. The emerging regime of the Rome Statute is the result of global advocacy for international criminal justice and accountability to deal with the major perpetrators of mass atrocity crimes. The significant paradigm shift is found in the governance of massive humanitarian escalations of last resort in conflict and post-​conflict situations where both the responsibility to protect civilians and the fight against the impunity of international crimes have to be taken into account. 2

The Responses of ‘never again’ to Mass Atrocity Crimes

The United Nations Security Council Resolution 1674 adopted on 28 April 2006, reaffirmed the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Resolution 1674 committed the Security Council to take action protecting civilians during armed conflicts. Pursuant to the UN legislation the duty to protect civilians is correlated with the maintenance of peace and security and with the right to intervene in the domestic affairs of sovereign States for humanitarian reasons, while further extending the reach of a criminal jurisdiction to punish the perpetrators. This has been the case in Darfur, Sudan, and Libya, although, so far, the Security Council has remained silent with regard to the extreme violence used against civilians in Syria and in other country-​situations. The icc, as an international judicial institution which is independent from the UN system, 6 See C. Eboe-​Osuji, ‘US Founders respected International Law’, Paper submitted to the Council on Foreign Relations, on 6 July 2020, available at: https://​www.icc-​cpi.int/​itemsDocuments/​ 2020-​07-​06-​US-​Founders-​respected-​International-​Law.pdf.

206 Marrone has acquired jurisdiction over crimes committed in non-​states parties to the Rome Statute. Soon after these referrals were issued, support by the Security Council for the Court waned and the criticisms were widespread. Following the recommendations by the UN International Commission of Inquiry on Darfur, the Security Council decided to refer this country-​situation to the Court.7 In the unsc resolution 1593 (2005), challenging issues were discussed by legal analysts. First, they emphasized that the states parties to the icc and non-​states parties have different obligations to cooperate with the Court, irrespective from the adoption of a Security Council resolution. Secondly, they discussed the question of the immunity granted to nationals of non-​states parties. Thirdly, the controversial reference contained in the resolution to exemption agreements was also noted upon. Finally, they criticized the absence of any measure for victim compensation.8 In regard to the last resort humanitarian escalations, current debates in the Security Council should serve to examine the failure to refer country-​situations to the Court, such as the violence in Gaza, Syria and other country-​situations as well as the serious shortcomings in its referrals in Libya and Darfur.9 Additional discussion is required concerning the political responsibility of the Security Council to support the presence and activity of the Court with its mandate configurations in the Democratic Republic of Congo (drc), Uganda, Central African Republic, Ivory Coast, Mali, Kenya, and so forth, preventing the escalation of violence during difficult political transitions. The ideal would be to see complementary mandates supporting each other in the country-​situations where they are both involved. The scope of their complementary character should not be wasted. The partnership that exists between the United Nations and the International Criminal Court represents a good opportunity: the fight against war and crime based on the rule of law, multilateralism, collective responsibility, global solidarity and mutual accountability requires reliable interactions. In the paragraph below the development of complementary global regimes working for peace and justice will be analysed, 7 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-​ General, 25 January 2005, pursuant to Security Council Resolution 1564 of 18 September 2004, available at: http://​www.un.org/​news/​dh/​sudan/​com_​inq_​darfur.pdf. 8 L. Condorelli, A. Ciampi, “Comments on the Security Council Referral of the situation in Darfur to the ICC”, Journal of International Criminal Justice, July 2005, 3(3): 590–​599 first published online July 6, 2005. 9 On February 26, 2011, the Security Council voted unanimously to impose sanctions on the Libyan authorities, slapping the country with an arms embargo and freezing the assets of its leaders, while referring the violent repression of civilian demonstrators to the International Criminal Court (icc), adopting Resolution 1970.

The International Criminal Court and Human Security

207

including their interaction in order to progress with individual protective measures in situations of war and crime. 3

The Development of Complementary Global Regimes Fostering Human Security

The current dynamics of humanitarian solidarism and the trends of interventionism and isolationism in international policy and law require discussions taking into consideration the challenges of our time and the political realism of some permanent members of the Security Council in regard to mass atrocity crimes. The Responsibility to Protect (RtoP or R2P) has been developed at the beginning of this century by the International Commission on Intervention and State Sovereignty (iciss) in response to the challenge imposed on States on how to respond to grave human rights violations if humanitarian interventions were an unacceptable assault on sovereignty. The iciss tried to solve the dilemma of sovereignty versus human rights by arguing that sovereignty entails certain responsibilities. A sovereign State has the responsibility to protect its citizens from genocide, war crimes, ethnic cleansing and crimes against humanities. With the adaptation of the RtoP in the 2005 World Summit, the UN Member States accepted that the protection of human rights was an inherent part of sovereignty. Furthermore, the UN Member States accepted not only that every State had this responsibility towards their own population, but when a State fails to protect its citizens from these crimes the State temporarily loses its right on sovereignty and the responsibility to protect shifts towards the international community. This responsibility entails the prevention of serious crimes, including their incitement, through appropriate and necessary means. The UN’s 2005 World Summit Outcome Document explicitly limits the application of the RtoP norm to genocide, ethnic cleansing, war crimes and crimes against humanity. These crimes of common concern have been clearly and comprehensively defined in a range of documents including the founding statute of the International Criminal Court (Rome Statute). It needs to be noted that the RtoP does not apply to many grave threats to human security, whether from climate change or disease, or from many aggressive or even harmful national policies, such as the suspension of civil liberties, mass corruption, or coups d’état. Other human rights instruments, legal frameworks and international governance institutions are considered better suited to address these pressing human security threats. At the very heart of the RtoP norm is the principle that the states, with the aid of the international community, must act to prevent mass atrocities, including respond and rebuild situations where

208 Marrone mass atrocities occur. Equally central is the idea that the concerned stakeholders should help states to prevent these gross abuses through what the UN document characterizes as “diplomatic, humanitarian and other peaceful means”. This could include strengthening state-​capacity through economic assistance, rule-​of-​law reform, building of political institutions and security sector reforms (army, police and judiciary), or, when violence has begun or seems imminent, through direct acts of mediation negotiating peace processes. Only when such means have been unsuccessful should the international community, acting through the Security Council, turn to more coercive measures. These could include such non-​consensual measures as economic sanctions or the threat of sanctions, arms embargoes, or the threat to refer perpetrators to international criminal prosecution. Should peaceful means be inadequate and the state in question is manifestly failing to protect its population, then, and only then, would the Security Council consider the use of military force. Thus, here it comes, as pressing issue, the search of relevant links between regimes and sub-​ regimes dealing with mass atrocity crimes, establishing the truth about them, fighting against their impunity, and providing law enforcement capacity on the side of the victims. The establishment of judicial institutions enforced by political organs after the scourge of two world wars since the Tokyo and Nuremberg tribunals, the advent of ad hoc tribunals (icty, ictr) and mixed courts, including the broad definition of multilevel jurisdictions, are important reference points by which to measure the progress in the fight against impunity of international crimes at global level. The icc established as the result of an emerging multilateral political process is one of the major third generation of international judicial institutions securing justice for victims when it cannot be delivered at the national level.10 Investigations and prosecutions in multiple country-​situations involve such shocking allegations as genocide, mass murder, rape, torture and the use of child soldiers. The Court is currently conducting preliminary examinations in a number of situations while dealing with investigations and prosecutions concerning the commission of international crimes committed during difficult political transitions. The Court also received jurisdiction over individuals responsible in cases of aggression during inter-​state conflicts. For the first time since the post-​w wii trials in Nuremburg and Tokyo, an international court will be able to hold leaders individually criminally responsible for waging aggressive war.11 However, the complementary role currently taking shape 10 11

Y. Shany, Assessing the Effectiveness of International Courts, Oxford University Press, 2013. Benjamin B. Ferencz, The Illegal Use Of Armed Force As A Crime Against Humanity, in Journal on the Use of Force and International Law, 2015, vol. 2, issue 2, pp. 187–​198.

The International Criminal Court and Human Security

209

between global regimes of complementary character deserves attention. It is required to examine the sensitive issues which characterize the formulation of current public policy and the legal and political frameworks of international regimes fostering peace, justice and security in toto.12 The current impasse in situations of extreme violence in Syria indicates that an integrated approach of governance based on justice and accountability is necessary. But is such an approach desired by the permanent members of the Security Council? And what kind of working methods will be ever applied between the UN political organ and the icc?13 It must be noted that multilateral treaties provide the basic architecture of international regimes relying on international cooperation in the fight against war and crime. This is the case for the UN Charter and the Rome Statute. These regimes established international governance institutions, normative capacity and multilevel jurisdictions to influence State behaviour strengthening the notion of individual accountability, whilst also promoting the concept of human security in international society. Nevertheless, their effectiveness and public authority dealing with global threats and crimes continues to be problematic for several reasons. Considering the minimal resources allocated to them alone, the expectations that they will respond to the current challenges in conflict and post-​conflict situations are very high. First, these international regimes have to rely on the support and cooperation of governments. Second, in order to maximize the results, the interaction between them is fundamental for democratic governance but not less problematic. The political determination to establish an independent, permanent, universal, International Criminal Court in ‘relationship’ with the United Nations system, “with jurisdiction over the most serious crimes of common concern to the international community as a whole”, was settled in the preamble of the Rome Statute. The preamble of this treaty recognizes the link between peace and justice, stating that “grave crimes threaten the peace, security, and well-​ being of the world” and affirming that the States parties are “determined to put an end to the impunity for the perpetrators of these crimes, and thus, contribute to the prevention of such crimes”.14 12 13 14

H. Mistry, D. Ruiz Verduzco, “The UN Security Council and the International Criminal Court”, International Law Meeting Summary with Parliamentarians for Global Action, 16 March 2012, available at: http://​www.pgaction.org/​pdf/​activity/​Chatham-​ICC-​SC.pdf. See Statement of the Prosecutor of the icc, Fatou Bensouda, at first meeting on unsc-​i cc relations, 6 July 2018, available at: https://​www.icc-​cpi.int/​Pages/​item. aspx?name=180706-​otp-​statement-​arria-​formula. Rome Statute of the International Criminal Court, available at: http://​untreaty.un.org/​ cod/​icc/​statute/​99_​corr/​cstatute.htm.

210 Marrone Considering the practice of the last decade, the pursuit of peace and justice in conflict and post-​conflict societies presents controversial challenges for the governance of humanitarian escalations of last resort. Several problems occur in the coordination of efforts of independent political and judicial international mandates, particularly between the configuration strategies of international peacemakers and peacekeepers, and the interests of victims and witnesses of international crimes, mainly concerning their relocation, protection and reparation in the context of human security.15 Some analysts point out that “even if peace and justice complement each other in the long term, in the short term, tensions have arisen between efforts to secure peace and efforts to ensure accountability for international crimes”.16 In theory, the principle of interdependence between peace, justice and security at global level should focus on strengthening relationships and partnerships between complementary international mandates, such as the Rome Statute institutions and the United Nations system, particularly considering that the main characteristic of the emerging regime of international criminal justice is based on cooperation networks at domestic, regional and global levels.17 In practice, the interdependence of peace, justice and security is compromised by obstacles caused by balancing powers at international level. This is particularly evident when looking at the interaction between political, executive and judicial mandates and the international governance that derives from such compromise. At a structural level, all of the Rome Statute institutions are not part of the United Nations system but their mandates are complementary. These global governance institutions deal, respectively, with international threats, peace sustainability and crime control, but their partnerships and working methods are not sufficiently implemented. The institutional relationship between the Court and the United Nations is governed by the relationship agreement between the organisations.18 Any amendment of such agreement must be approved by the UN General Assembly and by the Assembly of States parties (asp) in accordance with the Rome Statute. Several

15

16 17 18

N. Jain, “A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court” EJIL (April 2005) 16(2): 239–​254, available at: http://​ejil. oxfordjournals.org/​content/​16/​2/​239.abstract; F. Mégret, Victims before the International Criminal Court: A New Model of Criminal Justice? Victims of Crime Research Digest, Issue No. 5, available at: http://​www.justice.gc.ca/​eng/​pi/​rs/​rep-​rap/​rd-​rr/​rd5-​rr5/​p6.html. S. Darehshori, “Pursuing Peace in an Era of International Justice”, Politorbis Nr. 50–​3/​2010. A. M. Slaughter, A New World Order, Princeton University Press, 2004. icc-​a sp/​ 1/​ 3 (2004) available at: http://​untreaty.un.org/​cod/​icc/​asp/​1stsession/​report/​ english/​part_​ii_​g_​e.pdf.

The International Criminal Court and Human Security

211

basic principles, such as discretion and confidentiality, preside over the cooperation between the Court and the United Nations, a cooperation which also relies on specific arrangements and agreements regulating their interaction in the field operations. In theory, the ways in which global actors interact with each other is relevant to evolve in their respective competences. This is also valid for the governance of serious humanitarian crises, which are all related to the destabilization and disintegration of nation-​states and the struggle of capacity-​building in their own domestic reality in order to fight against war and crime. Although there are no doubts that a multilateral dimension is necessary to centralize the security of individuals at global scale, the interaction between complementary global regimes depends on the complex intersection between politics and law in the ‘new’ world order. The preservation of the rule of law and the politics of mass atrocity crimes are the two sides of the same coin. Such interaction depends on the political determination of the international community to prevent, react and rebuild in the wake of mass atrocities in accordance with the principle of universality. The ideal would be the establishment of a system of governance which monitors humanitarian interventions and civilian protection mandates, with a focus on the prevention of, response to, and reconstruction after mass atrocity crimes would occur. Despite the existence of a treaty-​based jurisdiction dealing with serious crimes of common concern and an emerging regime of international criminal justice complementary to the UN system, such an ideal is far from being realized.19 The fragmentation of legal frameworks based on cooperation with their liberal views based on pluralism is still the trend. In the current political reality the five permanent members of the Security Council have established fragmented international public policy and controversial legislation with regard to the governance of mass atrocity crimes.20 19 20

D. R. Black, P. D. Williams, The International Politics of Mass Atrocities. The Case of Darfur, Routledge, 2010. In resolution S/​r es/​1422 (2002), the Security Council, acting pursuant to Paper vii of the Charter of the United Nations, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the icc, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-​month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-​ month periods for as long as may be necessary; 3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations.

212 Marrone The main assumption in this contribution is that, on the one hand, for an understanding of the present-​day effects which stem from the political determinations of international governance institutions, the causes established by the decision-​makers made in the past must be examined. On the other hand, if we wish to understand the effects that might appear in the future, we must focus on the causes currently being created by the present decision-​making. The question is whether international governance institutions born from such political process could have an impact, simultaneously, on the causes and effects of war and crime. The main concern is whether human security measures would be applied during humanitarian escalations of last resort between complementary global regimes fostering peace and justice. Thus, it will need to be verified in which direction the policies of global ‘humanitarianism’, global ‘solidarity’, collective ‘responsibility’ and mutual ‘accountability’ will further evolve. A political road map preserving human security is required and the next paragraph clarifies the major dilemma among the institutional frameworks of the rule of law preserving human security in conflict and post-​conflict societies. 4

The Concept of Complementarity and the Dilemma of Human Security

Soon after the establishment of the Rome Statute system and the treaty-​based framework of international criminal justice deriving from it, it became clear that the fight against the impunity of crimes of common concern, and the limited jurisdiction dealing with such impunity, is not a sufficient prerequisite for human security expectations in conflict zones. In other words, the nature of interactions between complementary global regimes merits further development handling mass atrocity crimes and the protective measures of civilians. In particular, the ways the emerging regime of international criminal justice could find its place in the arrays of peace and security with regard to the configuration of law enforcement mandates in the field operations, civilian protection mandates, relocation and rehabilitation of civilians, and domestic reforms of security governance, or rule of law sectors (army, police and judiciary) will require particular attention by the decision-​makers in the Security Council. The impact of international governance institutions on the criminal behaviour of states and individuals in situations of war and crime has been dealt extensively by valuable observers, while the complementary interaction between them is still open for debate. The Rome Statute represents a tool of human security. However, an extension of capacity-​building in conflict and

The International Criminal Court and Human Security

213

post-​conflict situations with regard to law enforcement and civilian protection measures is required. The simple question is: how? An initial step would be for the regime of international criminal justice to receive immediate support in the field operations from the political configurations of peace enforcement and peace building mandates of the Security Council. In spite of their small size and the very few resources allocated outside the constellation of the UN entities, the institutions established under the Rome Statute regime have the potential to re-​propose new approaches for the preservation of the international legal and political order dealing with mass atrocities. Such influence depends on several factors and the most important of them deserve further discussions. There are no doubts as to the UN’s potential to play a key role strengthening national justice systems by raising the importance of the Rome Statute in rule of law programming and development aid, including the security sector reforms of shattered domestic systems. The establishment by the UN Human Rights Council (unhrc) of inquiry commissions in the situations where the International Criminal Court is investigating would also benefit from the collection of information and evidence for its judicial activities. Another important role for the UN would be the configuration of mandates on the ground, supporting the activities of the Court, as a prerequisite of an architecture which fosters peace and justice in the context of human security. The current challenge is to provide real protection and to halt the enduring violence in multiple situations of war and crime while following judicial decisions enforcing the rule of law. The ideal would be for judicial decisions not to be neutralized by political approaches, but instead for them to be supported by legal accountability and the assumption of further responsibilities. The responsibility to protect civilians in conflict zones using ‘all necessary measures’ and the new language used for the right of humanitarian intervention (RtoP or R2P) are criticized as being characterized by flawed decision-​ making based on interests and alliances within political organs, and not upon an established legal procedure of binding character as a prerequisite of democratic global governance.21 The same limitation applies to humanitarian escalations referred to a treaty-​based organisation dealing with internationally recognized crimes, which struggles to hold non-​states actors accountable 21

M. Serrano, “The Responsibility to Protect and its Critics: Explaining the Consensus”, Global Responsibility to Protect 3 (2011) 1–​13, available at: http://​www.yale.edu/​polisci/​ conferences/​sovereignty/​mserrano.pdf. G. Evans, The Responsibility to Protect. Ending Mass Atrocity Crimes Once and For All, Brookings Institution Press, 2008. iciss, The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, 2001, available at: http://​responsibilitytoprotect.org/​ICISS%20Report.pdf.

214 Marrone without reliable law enforcement measures. Furthermore, the support and cooperation inherently required by referrals addressed to international criminal justice by the Security Council, currently precludes any binding character of political organs, including their responsibility. The same limits apply to the configuration of mandates on the ground, where the configuration of peace enforcement does not take international judicial activities and the outcomes of such activities into appropriate consideration. So said, are we simply dealing with the arrays of ‘symbolic politics’ of law enforcement, or can we refer to a ‘paradigm in the making’ of governance systems dealing with sensitive human security issues? This contribution proposes further analysis monitoring closely such controversial issues. The current challenges in the international legal and political order between statehood, sovereignty and international governance deserve attention, including the transition of international security and the use of military force. In several situations the military engagements and coalitions, which characterized international responses during internal armed conflicts, undermined the credibility of multilateral treaties fostering stability and rule of law, including the international governance institutions from which they derived. This was the case in Iraq and currently in Syria, Libya and in the rest of the Middle East. The main issue is that the prevention of serious humanitarian breaches and the protection of civilians during difficult political transitions are currently applied in respect of the international security measures of militarization. There are serious doubts that such an approach is a reliable preventive measure capable of challenging the mentality of war and violence during armed conflicts of international or non-​international character. Moreover, does global solidarity mean that military coalitions have the potential to challenge the ideology of despotism and/​or terrorism? This controversial policy issue is also related to the governance of terrorism and the use of weapons of mass destruction, including other serious global threats which have been omitted from any multilateral system. The fight against terrorism or ‘war on terror’ against a dangerous enemy and the quick fix of military operations as seen in the international security policy against Al-​Qaida, with Osama Bin Laden wanted dead or alive, did not work. The risks of applying such methods of security have undermined universal values shared by the world community. Torture, imprisonment, disappearances of individuals and other methods used by secret intelligence have violated the basic requirements of human rights law creating further extremism and international fracture. The problem is that terrorism, as an international security threat, including its legal definition as an international crime, is only at its initial stage of being considered in multilateral governance systems. Furthermore, if the complexity of

The International Criminal Court and Human Security

215

reaching political convergence of expectations at a global scale, when dealing with international threats not yet defined as international crimes is clear, the progress achieved by governance systems dealing with serious violations of international humanitarian law needs to be verified. The Libyan situation saw the military approach once again with nato leading military operations and the Security Council referring the situation to the pillar of accountability of the icc while human security was not appropriately prioritized. Despite such concerns, where can the opportunities in the governance of complementary global regimes be found? The next paragraph provides some clarification about the pragmatic efforts required for the future of complementary global regimes working for peace and justice. 5

The Interaction Strategies between Complementary Global Regimes

In contrast with the traditional meaning of domestic governance which refers to decision-​making defining expectations, granting public powers, or verifying performance in national governing activities, it is well-​known that the term global governance denotes the regulation of international relations between independent and sovereign states in the absence of a supranational authority. There is general agreement between the different schools of governance that the extreme challenges that occur in societies in transition from war to peace, combined with the shortcomings of domestic jurisdictions, require solid rather than symbolic international governance institutions based on the principles of integrity and universality. The mission of such institutions of universal character is to preserve norms and values internationally recognized for the sake of individual rights, while implementing strategies on matters of mutual concern and public good, under the premises of ‘effective’ multilateralism. Recent decades have been characterized by various shortcomings in multilateral options, including the disintegration of international legal and political global frameworks. The systemic crises within international governance institutions have become more complex with the economic and financial breakdowns and the new trend of isolationism in international relations that have taken place at domestic, regional and global levels. Nevertheless, while new opportunities arise for the governance systems presiding over international threats and crimes on which states may rely in case of serious domestic shortcomings, we are still far from the realization of any supranational system. The current interaction among international governance institutions is only based on the early formation of mutual interests, including agreements and arrangements of

216 Marrone cooperation based on secondary law, e.g. the relationship agreement between the United Nations and the International Criminal Court. In any case, the fact that there is not a world government, but, rather, there are multilateral settings in which to debate issues and determine a collective course of actions, does not mean that the international community is not responsible for improving the democratic legitimacy of international governance institutions. On the contrary, such legitimacy depends on democratization processes balancing public powers between complementary authorities, while also defining their policies and their legal responsibilities. In order to explore the current standpoint of such democratic processes it is important to find some common ground in the controversial long-​running debates on a) peace and justice priorities; b) the law enforcement and cooperation dilemmas; c) the protection of human rights and implementation of human security measures; d) the preservation of the rule of law at domestic and global levels; and e) the political determinations to implement interactions in conflict and post-​conflict situations where complementary global actors are currently involved. In other words, the nature of the responsibilities of cooperation those complementary governance institutions might share in the medium-​and long-​ term require further debate in international political fora on the nature, identification, prevention and prosecution of mass atrocity crimes. The paradigm of international criminal justice and accountability under the umbrella of international peace and security, particularly used for its maintenance and restoration, requires solutions which uphold the priority of human security in accordance with the constitution of the world community.22 In fact, the search for a definition of complementary global regimes would constitute a concrete effort to bring about further progress towards a universal jurisdiction. This contribution highlights the necessity to define the meaning of complementary global regimes fostering peace, justice and security in respect of constitutional measures. It debates the global humanitarian policy of interventions and the preparedness of international governance institutions which deal with mass atrocity crimes and aggression, including their public authority, delimitation of competence and responsibility. It contributes to contemporary visions for the preservation of the international legal and political order, including the capacity-​building of the international community governing intra and inter-​state conflicts on the ground, much more than as distant observers, or with militarized international responses under the flag

22

N. Schrijver, Internationaal Publiekrecht als Wereldrecht: een inleiding, Boom Juridische Uitgevers, 2012.

The International Criminal Court and Human Security

217

of humanitarianism and the responsibility to protect civilians. Solutions are anticipated in regard to the misconception and the volatile idea of trias politica in international governance systems.23 At this moment in time, policy formulation of interaction strategies between multilateral premises of complementary character dealing with international threats and crimes deserves debate for several reasons. A constitutional strategy at international level has the potential to influence national constitutions and vice versa. Such a strategy would neutralize the risks of undemocratic positions, which compromise judicial decisions and the important role of justice, which quite simply deserves a better place in the arrays of international peace and security. In the long-​term, the visibility of such a strategy would also serve to harmonize universal values within the different legal systems and traditions of the world community. For such a strategy to become a reality the Security Council should lose its veto powers when dealing with the respect and dignity of human lives. Further agreement about the working methods with the International Criminal Court is absolutely required.24 6

The Pursuit of Universal Jurisdiction

Current efforts should focus on maintaining dialogue with local communities and civil society, including regional intergovernmental organisations such as the African Union, the European Union, the Arab League, and so forth. Constant interaction between the multilateral political actors enforcing international governance institutions is fundamental. In any case, the main responsibility remains in the hands of modern nation-​states approaching such important issues in their constitutions and legal systems, while challenging the international legal order, and vice versa. International governance institutions such as the Assembly of States Parties of the icc should formulate pragmatic policies to harmonize definitions, working methods and procedures among states, in order “to enhance their efficiency and lead to a greater equality between them of prosecutions and trials”.25 The international

23 24 25

T. Weiss, R. Thakur, Global Governance and the UN: An Unfinished Journey, United Nations Intellectual History Project Series, 2010. A. Marrone, The Governance of Complementary Global Regimes and the Pursuit of Human Security: the interaction between the UN and ICC, Intersentia, 2016. X. Philippe, “The principles of universal jurisdiction and complementarity: how do the two principles intermesh?”, in ICRC Vol. 88 Numb. 862 June 2006, p. 375, available at: https://​www.icrc.org/​eng/​assets/​files/​other/​irrc_​862_​philippe.pdf.

218 Marrone responsibilities to prevent, react and rebuild in situations of war and crime require implementation. In the emerging governance of complementary global regimes two main factors require appropriate consideration: the current shift in the post-​cold war international relations characterized by extreme violence during political transitions, regime clashes and warfare, and the necessity for global governance institutions to interact with each other on consensus and strategy building, including resource sharing, exchange of expertise, and lessons learned.26 At the international level, in situations where serious international crimes are being committed, a reliable procedure should be established in order to encourage the Security Council to take appropriate action. The promise of ‘never again’ in response to genocide must be absolutely upheld. The Security Council should support the icc in all situations characterized by the devastation of war and crime.27 Immediately after the outcome of the Review Conference of the Rome Statute in Kampala some commentators have argued “whether the Court will ever be truly universal in its ability to protect individuals from the worst forms of abuse in conflict zones without the support of the Security Council”. For many analysts “the Court, like any international mechanism intended to promote human rights, faces the impossible task of acting morally in a political world characterized by power inequalities, domination and violence. Because the Court lacks an independent law enforcement capacity, it must often accommodate itself to political powers instead of challenging it”.28 Hopefully, democratic interaction strategies between complementary global regimes will neutralize such extreme assumptions or speculations. Only through initiating an appropriate interaction strategy will there be a real chance of strengthening the public authority for the Court, not only vis-​à-​vis the States, but also between the Rome Statute institutions, the UN and other relevant stakeholders. In any case, the Court as an ex ante tribunal is only one aspect in the governance of justice falling under the jurisdiction of the Rome Statute, while the parallel activity of the Security Council promoting ex post mixed courts and tribunals on crimes falling outside the Rome Statute is still on going, although the historical ad hoc tribunals are in 26 27 28

Slaughter, 2004, p. 86, see supra note 13. The proposal was submitted to the Security Council by the “Small Five” UN members, which are Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland, in paragraph 20, Annex to UN Doc. A/​66/​L.42 (28 March 2012). S. Al-​Bulushi, A. Branch, In Search of Justice: The ICC and Power Politics, 2010, at 4, available at: www.almasryalyoum.com.

The International Criminal Court and Human Security

219

the completion phase of their activities (icty, ictr). Given the fact that a political outline characterizing ex-​ante international security situations in a specific country-​situation will impact both the Security Council and the International Criminal Court, the configuration of their mandates in field operations needs to be based on interaction strategies, including the implementation of legal responsibilities of cooperation which should be mandatory for all UN member States. It has been argued that, just as international military intervention in modern warfare has proved destructive in fighting an enemy the same is true for the use or, rather, for the abuse of laws dealing with armed conflicts of non-​ international character in the name of humanitarianism. It has been further argued that the conduct of the Security Council has worked so far to legitimize these fears within States and within their regional political realities. Currently many countries are afraid that the Court could be used by powerful nations to intimidate weaker opponents.29 For this reason, the emerging regime of international criminal justice needs a specific role within the arrays of peace and security maintenance. As many observers have emphasized, “although international laws and tribunals are devoid of enforcing powers, they still serve a decisive function in forcing major players to assume more virtuous behaviour”.30 In any case, the discussions within multilateral political circles about peace and justice, cooperation, complementarity, and civilian protection measures in time of war and crime require urgent solutions by the relevant decision-​making. Such consensus-​building debate has only just begun.31

29

30 31

C. C. Jalloh, “The African Union and Its Discontents with the International Criminal Court”, Jurist Forum, August 6, 2010, available at: http://​jurist.org/​forum/​2010/​08/​the-​african-​ union-​and-​the-​icc-​growing discontent.php C.C. Jalloh, “Regionalizing International Criminal Law?”, in International Criminal Law Review 2009, 9: 445–​466. C. C. Jalloh,, “A Win-​Win for the International Criminal Court”, in International Criminal Law Revue, 2009, 9: 467–​499. See D. Archibugi, ‘The Rule of Law and Democracy’, in European Journal of International Relations, 2004, Vol. 10(3), at 462. For an overview of the asp resolutions and declarations, official records, summaries of the Review Conference of the Rome Statute in Kampala, including the policy stocktaking of international criminal justice: (a) The impact of the Rome Statute system on victims and affected communities; (b) Peace and Justice; (c) Taking stock of the principle of complementarity: bridging the impunity gap; (d) Cooperation (rc/​11, annex v); working group reports and amendments of the Rome Statute are available at: http://​www.icc-​cpi.int/​en_​menus/​ asp/​reviewconference/​Pages/​review%20conference.aspx.

220 Marrone 7

Conclusive Assessment

This contribution recommends interaction strategies between international governance institutions of complementary character for the sake of civilians in conflict and post-​conflict situations. First of all, the practice applied to prevent, react and rebuild situations of mass atrocity crimes require workable, rather than disconnected global governance mandates of complementary character. The International Criminal Court should receive support before, during, and after the humanitarian escalations of last resort and the referral activity coming from the Security Council would take place. Therefore, the implications of, and the controversial intersection between politics and law in our globalized society deserve stronger advocacy in order to progress with the application of justice. After years of divergence in the debate of peace versus justice, the common ground in which respect the regime of international criminal justice deserves a place in the arrays of international peace and security and in civilian protection paradigms, has not been reached in the pursuit of accountability. It still remains to be seen how complementary frameworks will evolve for the pursuit of human security supporting the Court’s judicial outcomes. The distance between multilateral regimes fostering peace, justice and security, and the difficulties to preserve fundamental individual rights are caused primarily by the disintegration of nation-​states and by the widening gap between nation-​states and civilians. This is primarily due to shortfalls in their ability and willingness to take care of civilians in situations of war and crime, and because of three other main factors characterising the international society, which are: a) the fragmentation and decentralization of an international architecture and the legal and political frameworks dealing with individuals, b) the lack of an idealistic vision and a political road map reflecting human security expectations in international humanitarian interventions, and c) serious governance gaps that exist in the approach to international threats and crimes detectable at domestic, regional and international levels. Unfortunately, the old promise by the international community of never again in regard to genocide has not been fully upheld. The quest for complementarity between domestic, regional and international frameworks deserves further efforts based on the civilian protection mandates applied on the ground in situations of war and crime. It is required to maximize results through the complementary character of emerging global regimes for the sake of civilians and in accordance with the challenges of our time. In their struggle to govern multiple situations of war and crime, international regimes simply deal with governance without a government in accordance with their

The International Criminal Court and Human Security

221

provisions, policy formulation and the cooperation with their stakeholders and partners. This is true in both the UN and in the Rome Statute systems. The enduring struggle for a legal doctrine delineating domestic and international responsibilities in situations of war and crime has brought some results, but there is still a long way to go. Further progress depends on the jurisprudence of legal institutions in multiple situations and on the determination to enforce the rule of law and human rights standards at domestic, regional and international levels. The political distance taken by several African States from the Rome Statute are not encouraging issues, including the wrong legal interpretations undermining the rule of law by the US, Russia and China.32 In many country-​situations, engagement in military actions by States and global actors would appear legal but not fully legitimate when promising unrealistic civilian protection mandates during humanitarian interventions. The same concern is valid for the governance of conflicts between States, or inter-​ state conflicts, as in the case of the commission of the crime of aggression. Such governance also represents a controversial ‘paradigm in the making’ of complementary global regimes, if we only consider the triggering mechanisms between the Security Council and the International Criminal Court which deal respectively with the accountability of States and individuals. The ideal would be to provide the configuration of the Security Council’s mandates under the flag of the RtoP with the demands of the International Criminal Court to protect, demobilize, relocate and rehabilitate victims and witnesses, including law enforcement actions on the ground following the judicial outcomes of the Court.33 In order to centralize individual rights in situations of war and crime, the good governance of global regimes of complementary character concerning civilian protection mandates requires further commitment and a deeper political determination to strengthen them. Further responsibilities of the actors involved are required to the same extent in the domestic, regional, and, particularly, in the international dimensions of global cooperation against the devastation of war and crime. Such interaction strategies are significant for the pursuit of their complementary character in dealing with peace and justice, for the expectations of human security measures applied on the ground, and for an integrated governance approach in situations of war and crime. The important requirement for interaction strategies is to rely on the rule of law, 32 33

The International Criminal Court has been unable to gain the support of major powers, two countries have withdrawn from it and recently the Trump administration renewed the attacks over its legitimacy. Marrone, 2016, see supra note 24.

222 Marrone effective multilateralism, collective responsibility, global solidarity and mutual accountability. Any effort based on such values will reflect on the application, respect and extension of the principle of universal jurisdiction upholding human security in international law.

­c hapter 12

The Establishment of Flight Information Regions and Air Defence Identification Zones Air Law Is Air Law and Maritime Law Is Maritime Law; Shall the Twain Ever Meet? Pablo Mendes de Leon 1 Introduction* Nico Schrijver is a multifaceted legal scholar and practitioner, providing scholarship and teaching in a variety of aspects of public international law including human rights, maritime law and institutional law, including the legal regime governing the United Nations. For the purpose of this essay honouring Nico Schrijver, I have chosen maritime law as an angle pursuant to which air law has been influenced. Fundamentally, we are linked by our common interest not only in public international law generally, but also more particularly in these sub-​fields of international law. This paper covers the establishment of Flight Information Regions (fir s) and Air Defence Identification Zones (adiz s), stretching above the Exclusive Economic Zones (eez) and the high seas, discussing the interaction between air law and maritime law. While air law encompasses principles which are derived from maritime law, it appears that air law is more security oriented than maritime law. This different orientation explains the sometimes-​divergent approaches which these two fields of law have adopted in regulating events such as the establishment of fir s and adiz s. That said, the coherence between the two regimes may be employed to develop a more harmonised view on the legality of the said zones. The case studies which are described in section 4, below, show that the formation of these areas in airspace is intertwined with military and strategic motives, which go beyond the regular arguments employed in aviation; namely, the promotion of safety, security and efficiency of the operation. Indeed, policy, and even political considerations have often inspired States to set up such fir s

* The title of this chapter is after R. Kipling, ‘The Ballad of East and West’ (1889): ‘Oh, East is East, and West is West, and never the twain shall meet’.

© Koninklijke Brill NV, Leiden, 2021 | D

224 

Mendes De Leon

and adiz s. That perspective brings various branches of international law into play which will hopefully be illuminating for the reader, and in the first place for my friend Nico Schrijver. 2

The Design of fir s and adiz s

The Design of a fir 2.1 In aviation, a Flight Information Region (fir) is an identified region of airspace, in which a flight information service and an alerting service are provided. It is the largest regular division of airspace in use in the world today. fir s have existed since 1947.1 fir s are not formed in accordance with fixed standards. They are based on technical, administrative, operational, and, in some cases, historical considerations. Subject to norms drawn up by the International Civil Aviation Organization (icao),2 each State may create a fir in its own airspace, and a portion of an adjacent airspace, considering the aforementioned reasons. For landlocked States, the fir consists only of that State’s sovereign territorial airspace.3 As further explained in section 4.1 below, fir s may cover the territorial airspace of several States. 2.2 The Design of an adiz Coastal States have designated aerial zones, named adiz s, outside their respective coastal lines into the high seas to control flights operated by State and/​or any civil aircraft there.4 An adiz encompasses in some part the airspace above 1 https://​en.wikipedia.org/​wiki/​Flight_​information_​region. 2 icao can be viewed as the counterpart of the International Maritime Organization (imo). Its constitution is laid down in Chapter vii of the Chicago Convention on international civil aviation (1944) which has 193 State parties as to which see https://​www.icao.int/​secretariat/​ legal/​List%20of%20Parties/​Chicago_​EN.pdf, [accessed 13 August 2020]. icao is a specialized agency of the United Nations. The last mentioned convention may also be referred to as the Chicago Convention (1944). 3 See, N. Grief, The Legal Principles Governing the Control of National Airspace and Flight Information Regions and their Application to the Eastern Mediterranean, Study made for the European Rim Policy and Investment Council (23 October 2009), at 1–​2. 4 As confirmed by its title, the Chicago Convention (1944) only applies to international civil aviation, leaving the regulation and management of State aircraft outside its scope. States are responsible for the admission and use of State aircraft in their national airspace; see Art. 3 of the Chicago Convention (1944): a) “This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft. b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

The Establishment of Flight Information Regions

225

the territorial sea of the State establishing it, for the greater part the airspace above the eez and/​or Contiguous Zone of that State, and above the high seas. To date there is no internationally agreed definition of adiz. Since the beginning of the 20th century, an increasing number of States have established such airspaces extending up to several hundreds of miles from the coastal line, in which airspace operators must identify themselves, provide information to the competent authorities of the coastal State, and comply with the rules and procedures of that coastal State. Failure to do so may entitle the coastal State to impose remedies and sanctions, such as escorting the flight, interception by military aircraft of the coastal State, and, as a last resort, downing of the aircraft.5 adiz s appeared as a political, military and strategic instrument during the Cold War. In 1950, the United States was the first State in the world that established coastal adiz s extending over the high seas, followed by Canada in 1951.6 While in those days, adiz s were designed to counter military air attacks and potential nuclear strikes, they are progressively aimed towards protecting the State from misuse of civil aircraft as evidenced by the KE007, which took place in 1983, and the September 11th 2001 attacks in the US. These attacks show the security sensitive side of the operation of aircraft. At the time of writing, circa twenty States have established coastal adiz s outside territorial airspace as identified by the Chicago Convention (1944), including the United States, Canada, the United Kingdom, Norway, Iceland, Sweden, Italy, Turkey, Japan, India, Pakistan, Burma, Vietnam, the Philippines, South Korea, Oman, Myanmar, Australia, Indonesia7 and China. 2.3 Similarities and differences between fir s and adiz s fir s and adiz s are both sitting on portions of the sea which are, mostly for the greater part, located outside of the territorial sea of the State establishing the fir or adiz. They are founded on decisions made by States, be it for divergent reasons. These are principal differences between fir s and adiz s: 5 6 7

c) No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. d) The contracting States undertake, when issuing regulations for their state aircraft, that they will have due regard for the safety of navigation of civil aircraft.” See section 4.2, below. P. Zheng, ‘Justifications and Limits of ADIZs under Public International Law’ (2015) 14 Issues in Aviation Law & Policy 183, at 184–​185. See, R.A. Nugraha, ‘The New Plan on Indonesian Air Defence Identification Zone’ (2020) xix The Aviation & Space Journal 38–​43.

226 

Mendes De Leon

–​ fir s are designed to promote the safety and efficiency of international flights passing through the various fir s around the globe, whereas an adiz is created for security reasons. –​ fir s are regulated under the auspices and norms of icao, as well under the fir arrangements with neighbouring States, allocating responsibilities for the performance of air traffic services, including the provision of navigational aid and weather information; an adiz finds its legal basis in domestic regulations, outside the regulatory and policy framework of icao. As a corollary of the above, fir s are made for use by civil aircraft. State aircraft, including military aircraft, may play a relevant role in adiz s, for instance, in case of interception of another State, or civil aircraft. 3

Air Law Principles Applying to the Establishment of fir s and adiz s

Sovereignty as the Core Principle of the Regime of the Chicago Convention (1944) Sovereignty plays a central role in aviation, as demonstrated by the two conventions laying the foundations for civil aviation, namely the Paris Convention relating to the Regulation of Aerial Navigation of 1919, which was replaced by the Chicago Convention (1944). The two conventions start with the unequivocal proclamation of the principle of sovereignty.8 The Chicago Convention entered into force on 4 April 1947, and with 193 State parties is close to universal ratification.9 The unequivocal proclamation of the principle of sovereignty in these two conventions has a military background. The rise of military aircraft during the two major world wars in the 20st century –​dropping bombs while flying in what had become foreign national airspace –​caused a need for strict control. Indeed, airspace has no ‘natural’ or physical boundaries; there are no physical obstacles for aircraft when flying from the airspace of one country into the airspace of another country. Thus, reliance on sovereignty served as a legal tool to safeguard national airspace and security, in the absence of physical boundaries.10 3.1

8

See Article 1, ‘The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory’. This has to be read in conjunction with Article 2: ‘For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’. 9 See https://​www.icao.int/​secretariat/​legal/​List%20of%20Parties/​Chicago_​EN.pdf [accessed 22 August 2020]. 10 See, Pablo Mendes de Leon, Introduction to Air Law (2017), at 9, 10.

The Establishment of Flight Information Regions

227

The result was the confirmation of complete and exclusive sovereignty over national airspace. National airspace is defined as the airspace above land territory of a State, and the territorial waters thereto. National airspace was therefore de jure closed for foreign aircraft and their operators, that is, airlines operating international air services, unless and until it is opened up by an international agreement between States allowing access to the airspace for foreign airlines, illustrating the relevance of such agreements in air law.11 The Premise of Territorial Jurisdiction under the Chicago Convention (1944) Sovereign airspace is limited to the airspace above land territory, internal waters and the territorial sea extending to twelve miles outside of the coastal line. The words ‘complete and exclusive’ in relation to sovereignty have legal relevance and are inspired by security concerns with respect to the use of aircraft after the termination of the Second World War when this convention was signed on 7 December 1944. Article 2 of the Chicago Convention (1944) defines territory as follows:

3.2

For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. The terms suzerainty, protection or mandate are not relevant in this context. At present the Chicago Convention does not refer to the airspace above: –​ internal waters such as lakes, canals, rivers etc. which are deemed to be part of the territory of the State; –​ archipelagic waters, as to which see below; –​ the eez, as to which see also below. Above the high seas, beyond the 12 miles limit of the territorial sea, international air law proclaims that the rules applying there are those established by and under the Chicago Convention (1944). The moment civil aircraft enters national airspace of another State, its navigation and operation is subject to the domestic regulations of that State provided the principle of non-​ discrimination as to the nationality of the aircraft is respected.12 11

12

As to which see, for the operation of scheduled international air services, Article 6 of the Chicago Convention (1944): ‘No scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization’. Art. 11 –​Applicability of air regulations/​‘Subject to the provisions of this Convention, the laws and regulations of a contracting State relating to the admission to or departure from

228 

Mendes De Leon

3.3 The Status of Aircraft under International Air Law The Chicago Convention (1944) makes a distinction between State aircraft and civil aircraft. It only applies to civil aircraft, and not to State aircraft. An indication of the meaning of this distinction –​but probably no more than that –​is given by the following provision: ‘Aircraft used in military, customs and police services shall be deemed to be State aircraft’.13 National laws and publications have attempted to shed a light on this distinction. At the end of the day, those domestic regulations, in conjunction with the circumstances of the case, with particular reference to the use of the aircraft, are designed to determine its status under air law. Because this contribution is on the topic of adiz s, another provision of Article 3 of the Chicago Convention (1944) is relevant, namely, Article 3(c): No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof. Hence, if a foreign aircraft enters US airspace as defined below, the State in which that aircraft is registered, and/​or the State which is responsible for its operation, must ask the US authorities permission for entering US airspace, failing which it may be made subject to sanctions as alluded to in section 4.2 below. It follows from the above that the classification of an aircraft as ‘State’ or ‘civil’ will depend upon the use to which the aircraft is being put in service from time to time. The interpretation of the term ‘use’ cannot be objectively determined but depends on an appreciation of the prevailing circumstances and facts, and the interpretation of the applicable international law; for instance the Red Cross and European Human Rights conventions, dealing with State aircraft, and national law. 3.4 The Right of Overflight under the Chicago Convention (1944) Regime Aircraft fly in transit through a fir or an K to their destination on land territory. That passage makes them subject to the transit regime established by, under

13

its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that State’. (italics added). Article 3(b) of the Chicago Convention (1944), cited in footnote 4 above.

The Establishment of Flight Information Regions

229

and in relation to the Chicago Convention (1944) and the regime of unlos (1982). The latter regime will be referred to in the next section. Transit flights are subject to a differentiated air law regime. The provisions below apply to transit flights operated through national airspace, including fir s and adiz s as the case may be. –​ Transit flights operated by civil aircraft on a non-​scheduled flight is subject to the multilateral regime of the Chicago Convention (1944), allowing freedom of overflight in respect of such aircraft.14 Because, as said, 193 States are a party to this convention, these international transit flights can always be made, subject to the restrictions mentioned in this provision, that is, observance of the terms of the Chicago Convention, including the applicability of domestic navigation instructions on the basis of this provision (Article 5 of the Chicago Convention, in conjunction with Article 11 of the same convention).15 –​ Transit flights operated by civil aircraft on a scheduled flight is subject to the multilateral regime of the International Air Services Transit Agreement (iasta) (1944) which is attached to the Chicago Convention (1944), provided the State in which the aircraft is registered and the foreign State’s airspace through which the aircraft flies are a party to iasta.16 At present, 133 States are a party to iasta. –​ In case iasta is not applicable, transit rights may be obtained via Air Services Agreements, in most cases bilateral air services agreements, which are drawn up for the operation of scheduled international air services, may form the legal vehicle for the operation of transit flights operated by aircraft on scheduled air services.17 14

Art. 5 of the Chicago Convention (1944): Right of non-​scheduled flight/​‘Each contracting State agrees that all aircraft of the other contracting States, being aircraft not engaged in scheduled international air services shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-​stop across its territory and to make stops for non-​traffic purposes without the necessity of obtaining prior permission, and subject to the right of the State flown over to require landing.’ (italics added). 15 Art. 11 of the Chicago Convention (1944): Applicability of air regulations/​‘Subject to the provisions of this Convention, the laws and regulations of a contracting State relating to the admission to or departure from its territory of aircraft engaged in international air navigation, or to the operation and navigation of such aircraft while within its territory, shall be applied to the aircraft of all contracting States without distinction as to nationality, and shall be complied with by such aircraft upon entering or departing from or while within the territory of that State. 16 See https://​www.icao.int/​secretariat/​legal/​List%20of%20Parties/​Transit_​EN.pdf. 17 As to which see the restrictive regime of Art. 6 of the Chicago Convention (1944): ‘No scheduled international air service may be operated over or into the territory of a contracting

230 

Mendes De Leon

–​ The operator of a State aircraft in transit must ask permission for a transit flight from the State whose airspace it wishes to use, by way of a standing agreement or on an ad hoc basis.18 –​ A similar regime exists for flights operated by drones which are also considered as aircraft.19 The legal framework for the operation of transit rights is therefore a rather differentiated legal regime, also reflecting safety and security considerations. The next section will examine the regime of overflight through the airspaces above the high seas and the Exclusive Economic Zones. 3.5 The Regime of unclos (1982) 3.5.1 Background of This Regime The United Nations Convention on the Law of the Sea (‘unclos’) was concluded on 10 December 1982 in Montego Bay, Jamaica, and replaced earlier conventions on the law of the sea, namely, the four Geneva Conventions signed in 1958.20 unclos fundamentally limited the freedom of navigation to the high seas, which was proclaimed in earlier treatises, and applied since the 17th century.21 The Convention entered into force on 16 November 1994 and at the time of writing has 168 parties.22 While it is widely ratified, important maritime States such as the United States and Turkey are not party to it. The same is true for Colombia, Peru and some central Asian States. unclos also lays down a differentiated regime for the freedom of overflight through airspace. However, the terms of the unclos regime are somewhat different from those of the Chicago Convention (1944), as further discussed below.

State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization’. 18 Art. 3(c) of the Chicago Convention (1944): ‘No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.’ (italics added). 19 Art. 8 of the Chicago Convention (1944): /​‘No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization. Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.’ (italics added). 20 UN General Assembly, Convention on the Law of the Sea, 10 December 1982, available at: https://​www.refworld.org/​docid/​3dd8fd1b4.html [accessed 14 September 2020]. 21 See, for instance, Art. 24 unclos. 22 See https://​www.un.org/​Depts/​los/​reference_​files/​chronological_​lists_​of_​ratifications. htm, updated till 9 March 2020, [accessed 18 August 2020].

The Establishment of Flight Information Regions

231

3.5.2 Sovereign Airspace under unclos (1982) Sovereignty in the context of this maritime treaty is explained in Article 2. In contrast to the Chicago Convention, it does not speak of ‘complete and exclusive’ sovereignty. As far as airspace is concerned, sovereignty ‘extends to the airspace over the territorial sea […]’.23 Pursuant to Article 3 of unclos (1982), States have the right to extend the breadth of the territorial sea to 12 miles measures from the coast line which right must be exercised in accordance with unclos (1982) and international law. The sovereignty of a coastal State also extends, in the case of an archipelagic State, to its archipelagic waters.24 3.5.3 The Status of the Airspace above eez unclos introduced new maritime zones into maritime treaty law, including the Exclusive Economic Zone (eez), the Continental Shelf and the Contiguous Zone. For the sake of conciseness of argument I shall focus on the airspace above the eez and the right of overflight. The right of overflight may be exercised in these areas due to the arguments in relation to the applicability of international air law provisions being similar in the context of the right of overflight above the Continental Shelf and the Contiguous Zone, in so far as they are located outside the territorial sea. unclos recognises a freedom of overflight in the airspace above the eez25 and the high seas,26 under different conditions. 23 24 25

26

Art. 2(2). Art. 2(1). Art. 58 Rights and duties of other States in the exclusive economic zone 1. ‘In the exclusive economic zone, all States, whether coastal or land-​locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and […]. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.’ (italics added). For the sake of completeness, the term ‘transit passage’ is explained in Art. 38(2) of the same convention for application through the airspace above maritime straits: ‘Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. However, the requirement of continuous and expeditious transit does not preclude passage through the strait for the purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that State.’ Art. 87 Freedom of the high seas ‘1. The high seas are open to all States, whether coastal or land-​locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for

232 

Mendes De Leon

The recognition of the eez under the unclos led to the question of whether it formed part of the high seas for the purpose of international air law. Various authors have offered answers on these questions. While Heller opined that the rules applying to the right of overflight in the eez should include those of the coastal State,27 Hailbronner argued that the safety of the regime set up by the Chicago Convention (1944), with particular reference to the exclusive and mandatory application of the Rules of the Air of Annex 2 of icao, required a uniform approach towards the question of the right of overflight above the eez.28 Operators of civil aircraft do not enjoy free passage in the airspace above the territorial sea by virtue of unclos (1982).29 However, they may possess such rights pursuant to international aviation agreements; if not they must request special authorisation for such rights.30 From this point, the question arose whether the freedom of overflight above the high seas as recognised in unclos (1982) complied with the provisions of the Chicago Convention. As from 1984, discussions took place in icao on this matter as will now be analysed. Discussions in icao on the Compatibility of the unclos (1982) Regime with the Chicago Convention (1944) 3.6.1 The Identification of Terms Occurring in Both Conventions The unclos treaty entitles States to determine the breadth of the territorial sea at 12 miles,31 whereas the Chicago Convention does not define it.32 If unclos does not apply in a State, such as the United States or Turkey, the breadth of the sea is determined by national law. Contemporaneously, the sovereignty over the territorial sea is exercised subject to the provisions of unclos and to other rules of international law, which may include those of the Chicago Convention.33

3.6

27 28 29 30 31 32 33

coastal and land-​locked States: (a) freedom of navigation; (b) freedom of overflight; […]. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.’ (italics added). P.P. Heller, ‘Air Space Over Extended Jurisdictional Zones’, in J.K. Gamble (ed.), Law of the Sea: Neglected Issues (Law of the Sea Institute, University of Hawaii 1979) 146. K. Hailbronner, ‘Freedom of the Air and the Convention on the Law of the Sea’ (1983) 77 American Journal of International Law 490, 491, and, from the same author: ‘The Legal Regime of the Airspace Above the Exclusive Economic Zone’ (1983) 8(1) Air Law 30, 35–​6. See Part i, section 3 of unclos (1982), in particular Art. 21. See section 3.3. Art. 3 –​Breadth of the territorial sea ‘Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.’ See section 3.5.2 above. Art. 2(3) of unclos (1982).

The Establishment of Flight Information Regions

233

The terms ‘eez’ and ‘archipelagic waters’ did not exist at the time of the conclusion of the Chicago Convention in 1944 and were not discussed at that point in time. This state of affairs raises the question of the relationship between the older treaty, the Chicago Convention, and unclos in light of the provisions incorporated in these conventions with respect to their relationship to other conventions. The Vienna Convention on the Law of Treaties (1969) contains general provisions on treaties covering the same or a similar subject (see the next section). 3.6.2

The Relationship between the Chicago Convention (1944) and unclos (1982) unclos regulates its compatibility with other international treaties by stating that it […] shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this convention. On the other hand, the Chicago Convention stipulates the following: The contracting States accept this Convention as abrogating all obligations and understandings between them which are inconsistent with its terms and undertake not to enter into any such obligations and understandings (italics added).34 In other words, the Chicago Convention proceeds from the exclusivity of its provisions which is less strictly laid down in unclos. This aspect of the Chicago Convention has hardly been discussed or addressed in practice, but it could be used in the present context. The Vienna Convention on the Law of Treaties contains a general provision on treaties dealing with the same or a similar subject matter. If we turn to that convention and define the terms ‘territorial sea’ and ‘high seas’ as covering the ‘same subject matter’ as identified in Article 30 of the Vienna Convention on the Law of Treaties,35 unclos provides for the freedom of

34 35

In Art. 82: Abrogation of inconsistent arrangements. Art. 30 Application of successive treaties relating to the same subject matter: 1. Subject to Article 103 of the Charter of the United Nations, the rights and obligations of States Parties to successive treaties relating to the same subject matter shall be determined in accordance with the following paragraphs.

234 

Mendes De Leon

overflight above the high seas and the eez,36 whereas this right is not given in so many words to the contracting parties of the Chicago Convention. Since unclos does not include all the parties to the Chicago Convention, the said freedom of overflight laid down in it is available for the States which are parties to unclos and the Chicago Convention, but not for States which are parties to the Chicago Convention only. This conclusion follows from the application of paragraph 4 of Article 30 of the Vienna Convention on the Law of Treaties. Hence, the avenue along international law does not make things easier, for instance, because the Chicago Convention has 26 more States parties than unclos. Importantly, those 26 States include the United States and Turkey, both of which have drawn up fir s and adiz s above their eez. Those measures are crucial for determining the right of overflight through these zones. A more practical solution for answering these questions appears to follow from the discussions on this subject matter in icao between 1987 and 2004, summarised in the next section. 3.6.3

Discussions in icao on the Implications of the Entry into Force of unclos (1982) for the Chicago Convention The icao Secretariat was invited to analyse the implications of the entry into force of unclos for the applicability of air law provisions. In the period from 1987 to 2004, icao has studied the topic under the title ‘United Nations Convention on the Law of the Sea –​Implications, if any, for the application of the Chicago Convention, its Annexes and other international air law instruments.’ The first discussion within the Legal Committee evaluated in 1987 the



36

2. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail. 3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty. 4. When the parties to the later treaty do not include all the parties to the earlier one: a) as between States Parties to both treaties the same rule applies as in paragraph 3; b) as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations. 5. […]. Art. 87 of unclos for the high seas and Art. 58 of the same convention for the eez; this right of overflight is subject to the conditions mentioned in these provisions.

The Establishment of Flight Information Regions

235

principal implications which pertain, as far as relevant from this report, to the following: –​ Generally, it was acknowledged that ‘there was, for all practical reasons full consensus on […] matters which deal […] with […] the right of navigation and overflight in the different jurisdictional areas and zones of the sea;’37 –​ icao endorses the unequivocal delimitation of the territorial sea at 12 miles which must now be regarded as a ‘general rule of international law.’ The territorial sea as defined under Article 2 of the Chicago Convention follows the definition of unclos (1982), that is, 12 miles. –​ The eez and the continental shelf are considered as being part of the high seas which are governed by icao rules.38 –​ While ships of all States enjoy a right of innocent passage through the territorial sea, no such right through the airspace above the territorial sea is available for operators of civil aircraft. These operators may acquire transit rights pursuant to an existing international aviation agreement; if not they must request special authorisation for such rights.39 –​ unclos (1982) equates the eez with the high seas as regards freedom of overflight; hence, the introduction of the concept of eez into international law ‘did not at this stage appear to have implications for civil aviation.’40 Thus, the Rules of the Air of icao Annex 2, and other rules drawn up by icao apply there. –​ The Study of the icao Secretariat in 1987 assessed the new status of archipelagic waters and the airspace above it. It does not resolve the question of the legal status of the airspace above such waters in an unequivocal manner, because it contains rather contradictory statements on this subject which are not directly relevant for the present purposes. –​ In 2004, Colombia submitted a paper to the Legal Committee for consideration to grant a ‘preferential right for the coast State to provide air navigation 37

38 39 40

Legal Committee of icao, lc/​26-​w p/​5-​1 dated 4/​2/​87, agenda item 5: United Nations Convention on the Law of the Sea –​Implications, if any, for the application of the Chicago Convention, its Annexes and other international air law instruments, at paragraph 7.2. Legal Committee of icao, lc/​26-​w p/​5-​1 dated 4/​2/​87, agenda item 5: United Nations Convention on the Law of the Sea –​Implications, if any, for the application of the Chicago Convention, its Annexes and other international air law instruments, at paragraph 7.3. See section 2.4 above; see also, Legal Committee of icao, lc/​26-​w p/​5-​1 dated 4/​2/​87, agenda item 5: at paragraph 7.5. icao Legal Committee, 29th Session (1994), Agenda Item 8, at 8-​1.

236 

Mendes De Leon

services or flight protection and support services in the airspace not only above its land portion and territorial sea, but also above the exclusive economic zone […].’41 icao has not followed up this proposal. –​ icao rather than imo is responsible for the design of new air routes through the airspace above archipelagic waters in the context of its responsibility for the establishment of Regional Air Navigation Plans. While the discussions took place between 1987 and 2004, the deliberations on these agenda items seem to be now be closed, because they do not appear on the agenda of the Legal Committee, or any other body of icao anymore. 3.6.4 Conclusions Without any doubt, the relationship between the Chicago Convention and unclos raises fascinating legal questions which have been studied by learned commentators.42 The above examination shows that icao has attempted to find a pragmatic rather than a principal solution following the entry into force of unclos. Although proposals for a fine tuning of the term ‘territory’ laid down in Article 2 of the Chicago Convention have been made by various contracting States in order to align it with the provisions of unclos, the icao Secretariat has apparently resisted those requests. An amendment of the Chicago Convention requires approval from 2/​3 of its contracting States, that is, 129 States.43 A proposal for an amendment may provoke other initiatives designed to clarify provisions, add or delete them. Hence, icao may have chosen for the path of legal certainty by leaving this convention as is. 3.7 Legal Parameters for the Establishment of fir s and adiz s 3.7.1 Legal Parameters for the Establishment of a fir For the present discussion, the restriction to national territory is obviously an important one but it has to be seen in light of a Standard drawn up in icao Annex 11.44 According to this provision, which is regularly used in practice

41 42 43 44

icao lc/​32-​w p-​5–​6 dated 17/​3/​04. For instance, P. de Vries Lentsch, ‘The right of overflight over strait states and archipelagic states’ (1983) 14 Netherlands Yearbook of International Law 165–​225. Pursuant to Article 94 of the Chicago Convention (1944). See, Standard 2.1 Establishment of authority /​‘2.1.1 Contracting States shall determine, in accordance with the provisions of this Annex and for the territories over which they have jurisdiction, those portions of the airspace and those aerodromes where air traffic services will be provided. They shall thereafter arrange for such services to be established and provided in accordance with the provisions of this Annex, except that, by mutual

The Establishment of Flight Information Regions

237

between adjacent States wishing to establish a cross border fir, icao States may delegate to another State, by mutual agreement between them, the responsibility for establishing and providing air traffic services in flight information regions and control zones extending over the territories of the other State or other States. Moreover, if such a delegation is made, the providing State’s responsibility, for instance, Bahrain in the case study as discussed in section 4.3 below, is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned airspace. Such agreement does not affect the ‘national sovereignty’ of the delegating State, Qatar, in the case study below (section 4.3.2). The delegating State (Qatar) and the providing State (Bahrain) may unilaterally terminate their fir agreement ‘at any time’. These stipulations underline the sensitive sovereignty side of the fir arrangement. The same Annex of icao (11) contains Standards on fir s. They basically lay down a definition and parameters for the delineation of fir s, and do not regulate their supervision or establish conditions on authority. In short, fir s have a legal basis in this Annex, but not in the Chicago Convention. The rules governing them must therefore be found elsewhere, in the agreements setting them up, the principles of the Chicago Convention and in Regional Air Navigation (ran) arrangements made under the auspices of icao. These ran arrangements are not directly relevant for the present discussion. The procedure is different in case air traffic services are provided in the airspace above the high seas, in which case icao facilitates the process as explained in its resolution. 3.7.2 Legal Parameters for the Establishment of an adiz While it goes without saying that the geographical scope of adiz s are different from one jurisdiction to another, the measures which State bodies may agreement, a State may delegate to another State the responsibility for establishing and providing air traffic services in flight information regions, control areas or control zones extending over the territories of the former.’ (italics added). Note. –​‘If one State delegates to another State the responsibility for the provision of air traffic services over its territory, it does so without derogation of its national sovereignty. Similarly, the providing State’s responsibility is limited to technical and operational considerations and does not extend beyond those pertaining to the safety and expedition of aircraft using the concerned airspace. Furthermore, the providing State in providing air traffic services within the territory of the delegating State will do so in accordance with the requirements of the latter which is expected to establish such facilities and services for the use of the providing State as are jointly agreed to be necessary.’

238 

Mendes De Leon

adopt for defending the adiz, and national territory, as well as the domestic regulations on which they are based, demonstrate similarities. It is not easy to concisely formulate conclusions on the status of adiz s under international law, including international air law. Their existence is not supported by treaty law, but by domestic law. The right to self-​defence has frequently been mentioned as a justification of an adiz.45 This right is also referred to in Article 3bis of the Chicago Convention, in the context of the prohibition of the use of force against civil aircraft in flight.46 However, several authors have put forward arguments against the standpoint that the establishment of an adiz can be justified by reliance on the right to self-​defence.47 On the other side, authors claim that adiz s form an infraction of the right of overflight.48 In that context, the following two arguments should be considered. Firstly, that right is not laid down in so many words in the Chicago Convention (1944) for the operation of most of the services coming under its scope (see supra, section 3.4). Under maritime law, subject to the obligation to have due regard for ‘the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area’, unclos (1982) acknowledges the freedom of overflight above the high seas.49 This right is also recognized for overflight of the eez above which the greater part of the adiz is located, but it is restricted by States to take into consideration ‘the rights and duties of the coastal State’ –​which could be interpreted to justify the establishment of an adiz there, in conjunction with the right of self-​defence as a rule of international law.

45

46 47

48 49

See, Art. 51 of the UN Charter, and E. Cuadra, ‘Air Defense Identification Zones: Creeping Jurisdiction in the Airspace’ (1978) 18 Virginia Journal of International Law 485, at 497–​ 505; I. L. Head, ‘ADIZ, International Law, and Contiguous Airspace’ (1964) 3 Alberta Law Review, 182, 190, 192. See, Pablo Mendes de Leon, Introduction to Air Law (2017) 28. See, among others, K. Hailbronner, ‘The Legal Regime of the Airspace Above the Exclusive Economic Zone’ (1983) 8(1) Air Law 30, 42–​43; E. Cuadra, ‘Air Defense Identification Zones: Creeping Jurisdiction in the Airspace’ (1978) 18 Virginia Journal of International Law 485, 501–​504. This argument is promoted by S.A. Kaiser, in ‘The Legal Status of Air Defense Identification Zones: Tensions over the East China Sea’ (2014) 63 Zeitschrift für Luft und Weltraumrecht 527, 532. As discussed in section 3.5.3, above.

The Establishment of Flight Information Regions

239

Secondly, whether or not a right of overflight, however based, is violated also depends on the measures which the State managing an adiz implements. A mere identification imposed on the operator of the foreign aircraft cannot be viewed as a limitation on the right of overflight. As said, such measures are laid down in domestic legislation, which vary from one jurisdiction to another. This also brings us to reliance on the Lotus principle pursuant to which, in short, a State is entitled to exercise jurisdictional powers for acts outside its territory, unless such exercise is forbidden by international law.50 Applying this principle to the question of legality of adiz s would help to argue in favour of it. However, the tenability of this principle under current opinions expressed in international law can be argued from different perspectives.51 The question is whether these sources are strong enough to claim that international law courts and scholars are abandoning the Lotus principle, a question which is beyond the scope of this contribution. Finally, the right to set up an adiz may be based on customary law. The establishment of adiz s has been practiced since the early 1950s. Apart from the special case of the adiz in the East China Sea, which is marked by special features (see section 4.2 below), I have not witnessed strong protests against it. A rather convincing number of States has followed suit. All that noted, a further analysis of this interesting question would seem to fall outside of the scope of this contribution. The next sections will examine two case studies involving the application of the above legal parameters. 4

Two Topical Case Studies: The East China Sea and the Middle East Blockade

The Choice for These Case Studies 4.1 One of the attractive sides of the right of overflight above the high seas, the eez, territorial sea and related airspaces concerns its multifaceted character.

50 51

Permanent Court of International Justice, The Case of the S.S. Lotus, France v. Turkey, Judgement no. 9 of 7 September (1927). Declaration of President Bedjaoui on Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Rep. 1996 (July 8), p. 226, p. 270–​271 para. 13; S. Beaulac, ‘The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism’, in S. Allen et al. (eds.), The Oxford Handbook of Jurisdiction in International Law (oup 2019) 54.

240 

Mendes De Leon

The questions which are raised by this subject have political, historical, technical, and, last but certainly not least, interesting legal dimensions. Moreover, they have practical relevance as shown by the case studies on the East China Sea and the Middle East aerial blockade which are discussed in the next sections. 4.2 The Establishment of an adiz in the East China Sea The most recent adiz concerns the East China Sea Air Defence Identification Zone (ecsadiz), established by China on 23 November 2013. This measure has provoked global response, because it overlaps with the adiz s of Japan and South Korea, reaching the Diaoyu Islands (Senkaku Islands in Japanese) in the Eastern direction. Yet, the territorial airspace of the Diaoyu Islands is carved out from the ecsadiz. Moreover, China’s adiz is particular because the measures which it adopts there go beyond those which the other adiz States apply in their adiz s. As shown in the map below, the zone is located outside of the territorial sea of China. In rules issued by the Chinese government, ‘aircraft flying in the ecsadiz must abide by these rules.’52 Aircraft means all aircraft, including therefore civil and State aircraft. The identification measures pertain to compliance with requirements on: 1) the flight plan; 2) radio equipment, and 3) transponder instrument, as well as: 4) an extra ‘logo identification, meaning that aircraft using the ecsadiz must clearly mark their nationalities and the logo of their registration identification in accordance with applicable international rules.53

52 The ecsadiz is based upon the National Defense Law of China (14 March 1997), the Civil Aviation Law of China (30 October 1995) and the Basic Rules on Flight of China (27 July 2001). See Announcement of the Aircraft Identification Rules for the East China Sea Air Defense Identification Zone of the People’s Republic of China, Beijing (Nov. 23, 2013), available at http://​news.xinhuanet.com/​english/​china/​2013-​11/​23/​c_​132911634.htm –​as quoted by P. Zheng, ‘Justifications and Limits of ADIZs under Public International Law’ (2015) 14 Issues Aviation Law & Policy 183, at 198, fn. 78. 53 Zheng, supra note 52; as to the international rules see the Standards and Recommended Practices drawn up in icao Annex 7 on Nationality and Registration Marks of Aircraft.

The Establishment of Flight Information Regions

241

In case of violation of the escadiz rules, the Chinese armed forces will adopt “defensive emergency measures” to respond to aircraft that do not comply with the identification or refuse to follow the above instructions.54 Another feature of the ecsadiz rules pertains to the monitoring of the flight plan conditions by the Chinese authorities, not only in respect of aircraft destined for a point in China, but also for transit passage through this adiz. In other words, if Japan Airlines flies from Tokyo to Singapore through the ecsadiz without making a landing on Chinese territory, it is subject to the applicable Chinese rules.55 However, this is quite common in most adiz s which extend beyond the territorial boundaries of the State which has established such a zone.56

54

55

56

Shortly after the establishment of the ecsadiz, the United States deployed two unarmed B-​52 bombers flying into the zones over the Diaoyu Islands (in Chinese) or Senkaku Islands (in Japanese) without filing flight plans with the aforementioned authorities of China. According to the U.S. official, the unarmed U.S. Air Force B-​52 planes set off on November 25, 2013, from Guam and returned there without incident. The mission lasted for several hours, and the aircraft were in the newly declared adiz of China for about an hour. For this incident, the Ministry of National Defense of China responded that it had monitored two unarmed B-​52 bombers that flew through the ecsadiz on November 26, 2013, and reasserted its ability to control the airspace, especially “it identified the [U.S.] [military] aircraft and monitored the entire two hours and twenty-​two minutes.” In fact, no further “defensive emergency measures” were taken in this incident since the Ministry of National Defense had effectively identified the unarmed U.S. military aircraft. See Barbara Starr & Greg Botelho, Official: U.S. B-​52s Flew over China’s Controversial New Air Defense Zone, cnn, Nov. 27, 2013, http://​edition.cnn.com/​2013/​ 11/​26tworld/​asialchina-​us-​b52s/​; U.S. B-​52 Bombers Challenge China’s New adiz, cntv, Nov. 28, 2013, http://​english.cntv.cn/​program/​china24/​20131128/​100592.shtml see also Zheng, supra note 52. The US has lodged a protest against this extra-​territorial exercise of jurisdictional powers in contravention of the freedom of overflight. See ‘China’s Declared adiz –​Guidance for U.S. Air Carriers’ published on November 29, 2013. The US Department of State stated that ‘Freedom of overflight and other internationally lawful uses of sea and airspace are essential to prosperity, stability, and security in the Pacific. We remain deeply concerned by China’s November 23 [2013] declaration of an ’East China Sea Air Identification Zone’ (see: https://​2009–​2017.state.gov/​r/​pa/​prs/​ps/​2013/​11/​218139.htm [accessed 24 July 2020]). See Jinyuan Su, ‘The Practice of States on Air Defense Identification Zones: Geographical Scope, Object of Identification, and Identification Measures’ 2019 Chinese Journal of International Law 19–​26, paras. 14 and 15.

242 

Mendes De Leon

The picture below visualises the East China Sea Air Defence Identification Zone (ecsadiz).57

The creation of escadiz is in no small part due to territorial claims of the States surrounding the East China Sea. However, as this contribution focusses on the combined effect of maritime law and air law on developments affecting these areas of law, a further look into the political and legal considerations fall outside the scope of this discussion.

57

https://​upload.wikimedia.org/​wikipedia/​commons/​thumb/​c/​c9/​JADIZand_​CADIZ_​ and_​KADIZ_​in_​East_​China_​Sea.jpg/​1200px-​JADIZ_​and_​CADIZ_​and_​KADIZ_​in_​East_ ​ China_​Sea.jpg [accessed 14th September 2020].

The Establishment of Flight Information Regions

243

Air Traffic Management in the Middle East 4.3 4.3.1 The Geographical Scope of the Bahrain fir The State of Qatar does not provide Air Traffic Services itself, but delegated the provision of such services to its neighbour, the Kingdom of Bahrain, pursuant to an Agreement between the two States.58 Thus, the factual control of airspace falls under the fir of Bahrain.59 Consequently, air traffic flying in Qatar’s airspace is managed by the Air Navigation Service Provider of Bahrain. The picture below details the geographical scope of the Flight Information Regions in an area which is marked by political tensions: the Middle East, including the Bahrain fir.60

Notably, air traffic flying from and to Doha and through the airspace of Qatar uses the air traffic services of its neighbour, Bahrain, whose air traffic service 58 See, https://​www.icao.int/​safety/​FITS/​Lists/​Current%20FIR%20Status/​DispForm.aspx?ID=211 [accessed 18 August 2020]. 59 See the previous footnote in conjunction with https://​www.gulf-​times.com/​story/​559447/​ Bahrain-​UAE-​open-​flight-​corridors-​for-​Qatar-​Airways. 60 https://​ w ww.bing.com/ ​ i mages/ ​ s earch?view=detailV2&ccid=P%2bZ%2b kE1p&id=ECB2C4945D7E986E4AE717433DDC3C59F34AA0A0&thid=OIP.P- ​ Z -​ kE1pUzByoZjLLtPb3wHaEu&mediaurl=https%3a%2f%2fcdn.aviation-​ s afety. n e t % 2 f a s n n e w s % 2 f w p - ​ c o n te n t % 2 f u p l o a d s % 2 f 2 02 0 % 2 f 0 1 % 2 f G u l f F I R S . jpg&exph= 607&expw=951&q=bahrain+qatar+flight+information+region+afbeelding&simid=607995175252067506&ck=3786548FE12EE8FD009515401A6AC3F4&selectedIndex =6&qpvt=bahrain+qatar+flight+information+region+afbeelding&ajaxhist=0.

244 

Mendes De Leon

providers control the navigation of Qatari aircraft, and airlines using Qatari airspace. The international law aspects of this fir, and implications thereof in the context of the Middle East dispute on this matter, are discussed below. 4.3.2 The Middle East Blockade On 5 June 2017,61 the Arab Republic of Egypt, the Kingdom of Bahrain, the Kingdom of Saudi Arabia and the United Arab Emirates (uae) closed their airspace to Qatari registered aircraft and imposed severe restrictions on such aircraft regarding access to international airspace over the high seas adjacent to their territorial airspaces. The blockade was not restricted to the national airspaces but also to the Flight Information Regions (fir s), extending beyond national airspace as defined by Articles 1 and 2 of the Chicago Convention of the four blocking States. Behind the Bahrain fir and the blockade lie historical political motives. The Bahrain fir, including the airspace of Qatar, originates from the time before Bahrain and Qatar gained their independence from the United Kingdom (UK) in 1971, which was based on the presence of military radars. These radars were positioned from a military efficiency perspective. This configuration was maintained as a matter of technical and administrative convenience, also considering the small size of the two countries. While the Air Navigation Service Provider of Bahrain continues to supervise traffic in the entire fir, including therefore the airspace of Qatar, the two countries are preparing a cancellation of the current arrangements, whereas Qatar may wish to set up its own fir and perhaps even an adiz. It follows from the institution of the blockade in the Middle East that States are using their national airspace as a political or economic asset in international relations, ignoring the legal parameters governing international civil aviation. Inevitably, that blockade was followed by legal proceedings between the affected States as will now be discussed. 4.3.3 Judicial Actions In June 2017, Qatar submitted a request to the icao Council to urge the blocking States to lift all the restrictions over the high seas and in their fir s. Qatar has brought up its requests under Articles 54(n) and 84 on the Settlement of Disputes on the interpretation and application of the Chicago Convention and its Annexes.62 61 See https://​www.aljazeera.com/​news/​2017/​11/​qatar-​gulf-​crisis-​started-​june-​5-​171122105507731. html –​[accessed on 18 August 2020]. 62 See icao, Annual Report, Supplementing Implementation Strategies –​Legal and External Relations Services –​Settlement of Differences, Request submitted under Article

The Establishment of Flight Information Regions

245

The icao Council encouraged the parties to engage with consultations and negotiations, using the platform of icao, “to ensure the promotion of the implementation of optimal technical solutions” with the purpose of accommodating concerns about flight routes and the provisions of air traffic services as a consequence of the blockade. The icao Council also stressed that it is basically a safety organisation and that questions such as political issues must be addressed in other fora.63 On 27 June 2018, Saudi Arabia, the uae, Bahrain and Egypt submitted their dispute with Qatar regarding their sovereign airspace to the International Court of Justice (icj) because the four States believe the icao “was not competent to consider that dispute” for the reasons set out above. Two weeks before the submission, Qatar had initiated proceedings before the same court (icj) against the uae requesting an end to human rights violations including discrimination against Qatar and Qatari citizens, full reparation and immediate action to protect Qataris from further irreparable harm.64 On 14 July 2020, the icj backed the defendant Qatar by rejecting unanimously the appeal brought by the Kingdom of Bahrain, the Arab Republic of Egypt, the Kingdom of Saudi Arabia and the United Arab Emirates on 4 July 2018 from the Decision of the Council of the International Civil Aviation Organization, dated 29 June 2018, and, by fifteen votes to one, that the icao Council has jurisdiction to entertain the application submitted to it by the State of Qatar on 30 October 2017.65 On 22 July 2020 just over a week following the icj judgement, Qatar announced that it claims five billion US$ from the uae, Bahrain, Saudi Arabia and Egypt as a consequence of the losses incurred by the blockade, including detours, extra flying time, and other energy losses.66 However interesting these

63

64 65 66

54(n) of the Chicago Convention (2017), available at https://​www.icao.int/​annual-​report-​ 2017/​Pages/​supporting-​implementation-​strategies-​legal-​and-​external-​relationsservices-​ settlement-​of-​differences.aspx [accessed 18 August 2020]. See International Court of Justice, Appeal relation to the Jurisdiction of the ICAO Council under Article 84 of the Convention on International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United Araba Emirates v Qatar), at 9, paragraph 1, to be found on https://​ www.icj-​cij.org/​files/​case-​related/​173/​173-​20200714-​JUD-​01-​00-​EN.pdf [accessed 12 August 2020]. See International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), available at: https://​www.icj-​cij.org/​en/​case/​172 [accessed 13 August 2020]. https://​www.icj-​cij.org/​files/​case-​related/​173/​173-​20200714-​JUD-​01-​00-​EN.pdf, [accessed 24 July 2020]. https://​www.bloombergquint.com/​business/​qatar-​air-​seeks-​5-​billion-​from-​saudi-​led-​ bloc-​on-​airspace-​ban [accessed 24 July 2020].

246 

Mendes De Leon

developments are from an international law perspective, they fall outside the scope of the present contribution. 5

Concluding Remarks

The discussion of the above cases signals that they cannot be easily captured under air law regimes and perhaps not even under other international law regimes, considering the complex political and historical relations governing the regimes in the areas concerned. The installation of both the Middle East blockade and the ecsadiz have been influenced by strategic, policy and political motives. In the former case, local tensions, which were created by various sources, inspired the four States to close their airspaces for Qatari aircraft. In the latter case, Chinese aspirations in that area, which includes islands, rocks and reefs with a disputed status under international law, in conjunction with overlaps of the ecsadiz with adjacent adiz s, including those of Japan, South Korea and Taiwan, do not facilitate the relationships with these neighbours. In short, the two cases are surrounded not only by complex political issues, but also by multifaceted legal questions which I hope will appeal to Nico Schrijver. The next years will learn how this disagreement will be solved. It will anyway be fruit for discussion, also in various academic fora.

­c hapter 13

Maritime Security and Sustainable Development and the Coastal Communities of India An Empirical Analysis Bimal N. Patel 1 Introduction* I have been always fascinated by Nico Schrijver’s professional passion for international law-​making in the areas of sustainable development and international peace and security. Thus, when I was approached to contribute a chapter for a Liber Amicorum for Nico, I searched for a proper title which could aptly reflect his intrinsic appreciation for management of natural resources and his long-​lasting contribution in the field of international law. I have been able to discern a gradual evolution of thinking of Nico –​from a heavy emphasis on black letter of international law (when I met him for the first time during a morning coffee-​break at the Institute of Social Studies at the Badhuisweg in 1993 in the Hague) to a pragmatic acceptance of the critical influence of state practice on the evolution of international law (having a family dinner with him and Yuwen at our residence in Leidschendam in December 2019). My own professional journey has enabled me to appreciate the requirement for the reconciliation of international law and practice in the long-​term realization of peace and development. As India embarks upon maritime economy led development, I immediately thought of Nico’s PhD thesis on the Sovereignty over Natural Resources: Balancing Rights and Duties in an Interdependent World. I was puzzled: how can I combine Nico’s influential works on development, international peace and security and international law-​making among others for this Liber? I thought ultimately to pick up a topic which can have elements of security, development, law-​making and law-​implementation and this is why I chose the current title –​Maritime Security and Sustainable Development and the Coastal Communities of India. * Bimal N. Patel is; Vice-​Chancellor, Rashtriya Raksha University (www.rru.ac.in); Member, Editorial Board, International Review of the Red Cross; Member, National Security Advisory Board of India. I would like to thank Mr Sushil Goswami and Mr Abhishek Vyas, Rashtriya Raksha University, for their comments and suggestions.

© Koninklijke Brill NV, Leiden, 2021 | D

248 Patel This topical contribution aims to analyse the inter-​relationship between maritime security and sustainable development with a specific focus on the coastal communities of India. It is argued here that there is a need for a strong cause and effect analysis of maritime security and sustainable development in India and among other maritime nations. Maritime security needs to be seen and needs to be recognized as an important national security enabler for achieving sustainable development. Maritime security and sustainable development studies are currently compartmentalized. For example, academics and scientists studying Illegal, Unreported and Unregulated (iuu) fishing establish the link between iuu fishing and its adverse impact on sustainable development; however, they do not consider iuu fishing as a maritime security threat the way a national security scholar would study it.1 There exist a good number of stand-​alone publications on the impact of iuu fishing and marine environment pollution on sustainable development.2 However, what is missing is the analysis of all important maritime threats and how the whole set of threats impact sustainable development. The interlinkage between maritime security and sustainable development has not yet been an object of systematic study and regulations. However, more and more articulation of the maritime security threats and a concomitant rush for states towards a blue economy will generate more scholarly and policy-​interest in this inter-​disciplinary topic. The 2007 UN Secretary-​General Report identifies eight major maritime security threats, namely piracy, armed robbery, trade in narcotics, human smuggling, proliferation of weapons of mass destruction, transnational organized crime, marine environmental pollution and iuu fishing.3 These threats, like for other nations, have direct and indirect impacts on India’s efforts for the realization of 13 and 14 Sustainable Development Goals (sdg s) –​relating to Climate Change and Life Below Water. The sdg s aim to sustainably manage and protect marine and coastal ecosystems from pollution, as well as address the impacts of ocean acidification. It is expected that enhancing conservation and the sustainable use of ocean-​based resources through international law will also help mitigate some of the challenges facing our oceans. This

1 M.A. Palma, M. Tsamenyi, W.R. Edeson (eds.), Promoting sustainable fisheries: the international legal and policy framework to combat illegal, unreported and unregulated fishing (2010); M.H. Nordquist, J.N. Moore, R. Long (eds.), Cooperation and Engagement in the Asia-​Pacific Region (2020): fao, Combating and Eliminating iuu Fishing in the Asia-​Pacific Region (2019 Report). 2 B.N. Patel and R. Nagar (eds.), Sustainable Development and India: Convergence of Law, Economics, Science and Politics (2018). 3 UN Document A/​62/​66 dated 12 March 2007.

Maritime Security and Sustainable Development

249

contribution shows how each individual threat impacts the quest for sustainable development in India, with specific focus on its coastal communities. Coastal communities of India, both as critical stakeholders but also vulnerable constituencies, have vital stakes as far as the impact of maritime security for their sustainable development is concerned. For example, comprehensive maritime security will enable India to fully exploit the potential of various long-​term and medium term projects including the sagarmala project4 to contribute to food security of these communities by means of preventing, reducing and controlling iuu fishing. Similarly, maritime transport security related investments will enable India and the Coastal Communities to achieve the goal of their employment security. Therefore, it is imperative for India to develop feasible maritime security strategies, mechanisms and processes for the sustainable development of these communities. The sheer population size of coastal communities makes a compelling argument. The population of coastal communities of nine Indian states (Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, Odisha, West Bengal) and two union territories (Diu and Daman and Puducherry) of India amounts to 560 million –​of which 171 million reside in coastal districts. Another 63.9 million belong to low-​elevation coastal zones and by 2060, the total number will reach 216.4 million, as per the Asian Development Bank and Potsdam Institute for Climate Impact Research.5 The maritime governance of India, instead of a comprehensive perspective plan, has been marred with ad hoc and short-​term programs and activities. Consequently, these programs and activities fail to achieve maritime led overall economic development.The coastal states have to map out the potential. These states need to identify, strengthen and support maritime sectors, namely, ports, fisheries, renewable energy, submarine, telecommunications, tourism and marine biotechnology, which constitute the drivers of their economic development. In terms of employment, international shipping offers substantial employment opportunity. As of the end of 2017, there were 154,339 Indian seafarers constituting 9.35% of the global seafarers,6 largely drawn from the coastal states of India. There is huge potential, especially for skills-​enhanced approach. Port-​based ancillary services, supply of goods and services to the 4 The SagarMala project envisages maritime-​led economic development with the specific goal of enhancing the performance of India’s logistic sector. See Sagarmala.gov.in, Ministry of Shipping, Government of India. 5 Centre for Coastal Zone Management and Coastal Shelter Belt, Government of India report as updated on 17 February 2017, https://​www.iomenvis.nic.in. 6 Directorate-​General Shipping Report, 2017. Ministry of Shipping, Government of India.

250 Patel maritime companies also contribute significantly to the employment opportunities. This triggers an observation that safety and security of seafarers –​ which is interlinked with the safety and security of ships –​is essential. If the regime of ship security is jeopardized, it will have direct adverse impacts on the employment opportunities and livelihood of the seafarers belonging to the coastal states. Preservation, protection and rejuvenation of marine natural resources is an important part of overall maritime security and sustainable development strategy. Very few nations have taken resource security as an integral component of their national security. In view of the dwindling resources and increasing population pressure on coastal areas, the ability of a country like India to ensure sustainable development of coastal communities can be meaningfully achieved by addressing the maritime security issues of the entire Indian coastal ecosystem and its resources. India has nearly 8,000 km coastline and these coastlines are located at the interface of land and the Arabian Sea, the Bay of Bengal and the Indian Ocean. These coastal waters furthermore integrate marine and terrestrial processes through mutual interactions. The natural resources are a lifeline for the support of Indian coastal economies and livelihood of millions of coastal populations. In this regard, Gouri Joshi observes that “the entire coastal belt of India is facing cut-​throat competition over space allocation, with local and traditional fishermen community being pushed away from all sides. At sea, commercial trawlers are stealing their catch, permanently degrading the sea-​life and on land, they are pushed out by development projects –​ports, power plants, tourism, upmarket housing –​priority sectors for the economy. The government which should proactively protect the coastal population against the threat of climate change and unsustainable commercial activities degrading the environment is instead relaxing the Coastal Regulation Zones reducing the ‘no development zone’ from 100 meters to 50 meters (Draft crz Notification, 2018).”7 India lost 235 square kilometers (sq. km) of land to coastal erosion, more than the size of the Amsterdam municipality, between 1990 and 2016.8 These have impacted the habitat loss, taken away vital economic basis of agriculture and aquaculture and further contributed to the problems of sedimentation and water supply. Nearly 250 million people (half the size of the population of the 7 G. Joshi, ‘Linking Natural Resources Security with National Security’, in B.N. Patel (eds.), National Security of India and International Law (2020), 112. 8 N. Jamwal, ‘India has lost an entire city’s worth of shoreline to coastal erosion’, Earth Journalism Network, 22 April 2019. accessed 29 June 2020.

Maritime Security and Sustainable Development

251

EU) live within 50 km of the coastline, and more than seven million coastal families of fishers and farmers directly depend on the coastal zones. Very few nations have taken resource security as an integral component of their national security. It is however imperative for the protection and preservation of natural resources, especially of coastal areas, to be made an integral component of India’s national security. This contribution attempts to briefly analyse the scale and gravity of these threats, their effects on the realization of the sustainable development of the coastal communities of India, current efforts and strategies of India and the way forward. 2

Maritime Security Threats

Illegal, Unregulated and Unreported Fishing 2.1 This threat can be considered as a single most important maritime security threat. The fisheries and aquaculture production contributes around 1% (approx. 6 billion usd) to India’s Gross Domestic Product (gdp) (around 2.7 trillion usd) and over 5% to the agricultural gdp, besides giving employment and related activities to 16 million people (almost the size of the whole population of the Netherlands).9 The total fish production during 2017–​18 was 13.77 million metric tonnes, constituting about 6.3% of the global fish production and 5% of the global fish trade. Fish touches human lives in countless ways in terms of providing food, nutrition, livelihood, employment, recreation, amongst others. Aquaculture has one of the highest potentials to contribute to the sdg s covering poverty, hunger and food and nutritional security of the coastal areas as well as hinterland of India. Mechanized fishing trawlers and foreign trawlers together with iuu fishing have devastated the traditional fishing communities of India. These trawlers enter their ancestral coastal waters destroying not only the fish stocks but also the traditional communes of the coastal communities. The protection, restoration and management of inland water resources, ecosystem and biodiversity can provide a key to economic growth, employment and decent work as well as consumption indices of the coastal communities. India’s future fisheries development will substantially contribute to the sdg s by way of doubling the food production, improving the welfare of fishers, promoting exports and providing food and livelihood security to

9 Handbook on Fisheries Statistics 2018, Ministry of Fisheries, Animal Husbandry and Dairying, Government of India.

252 Patel its population. With capita availability and consumption of fish increasing to a level of 11 kg per annum for the fish-​eating population, India will be able to significantly eliminate food and nutritional security concerns of the fish-​dependent population. While the Government has taken a number of initiatives, the private sector too has been joining the Government in what is considered to be a Blue Revolution. However, these optimistic projections are subject to mitigating several challenges, namely the requirement to have responsible aquaculture, prevention, and management of aquatic diseases, organic farming, cage farming, induced breeding and fattening of select species. Besides food and nutritional security, India has initiated a number of measures for the fishing community to provide them livelihood security through housing, insurance, and sea safety, which are all constituent elements of maritime security and safety. Indeed, the training, micro credit and increased participative management –​as an integral component of financial security and inclusiveness –​and updating of the national preparedness for handling situations such as the Tsunami, has been going a long way in achieving holistic sustainable development for these communities. It is imperative that India establishes special protected spaces to halt the depleting fish stocks and marine habitats in general. Unless stringent prudential measures are adopted, devastating fishing practices and overfishing with marine pollution will undo the results of the progressive measures. 2.2 Drug Trafficking Drug trafficking is a global illicit trade involving the cultivation, manufacture, distribution and sale of substances which are subject to drug prohibition laws.10 Drug trafficking through maritime routes is a growing phenomenon and has possible terror subtext too.11 Maritime routes are the ideal routes for the drug trafficking –​the Bay of Bengal as well as the Arabian Sea. Coastal communities are exploited as ‘transit routes’ to reach the continental parts of the South Asian region. The sdg s present key opportunities to ensure that development policies and drug control efforts work side by side to meet common goals, but if the coastal community remains silent on these issues, they will at best limit their efforts and progress towards meeting a number of the sdg s and at worst render them unachievable. Although India is not one of the prominent countries for drug trafficking, it needs to adopt a war-​on-​drugs strategy

10 11

World Drug Report 2010 of the UN Office on Drugs and Crime. Hindustan Times 31 July 2017. Indian Express 29 April 2020. Economic Times 17 August 2019.

Maritime Security and Sustainable Development

253

to prevent, reduce and control the drug trafficking, as India is wedged between the world’s two largest areas of illicit opium production, the Golden Crescent and the Golden Triangle.12 It is important to note that the law enforcement approach to counter the drug trade can lead to militarization as India may need to scale up resources for drug law enforcement, using military means and processes. A flip side of this strategy is that it also can fuel violence as the drug cartels mobilise to fight state security forces.13 2.3 Human Smuggling This is one of the major maritime security threats and it poses an immediate danger to people’s lives and safety. It undermines human rights, hinders sustainable development and also threatens international peace and security. Hundreds of people lose their lives due to human smuggling along the coastlines of the Arabian Sea. Maritime terrorism, piracy, and smuggling of arms and light weapons together with human smuggling constitutes the framework of maritime law intensity conflicts. The higher incidence of arms and human smuggling in the South Asian-​Arabian Sea-​Bay of Bengal theater has been a serious threat and challenge to the Indian littorals.14 Weapons of Mass Destruction 2.4 The Arabian Sea is one of the densest shipping regions in the world. Although the Arabian Sea routes are used for genuine purposes of merchandise and commodities, the lower standard of high-​tech surveillance and gigantic nature of monitoring the trade are twin challenges which narcotic drug traders and dealers use for clandestine purposes. The Indian practice vis-​à-​vis the Proliferation Security Initiative15 suggests that India uses the stipulated measures as it is evident from its interdiction of the North Korean freighter Kwol Son in the Arabian Sea in 2002.16 The psi supports maritime intelligence sharing and employing a multilateral naval engagement process to visit, board, search and seize suspected cargoes.

12 13

unodc Country Profile Report 2015. Ningthoujam Koiremba Singh and William Nunes, ‘Drug Trafficking and Narco-​Terrorism as Security Threats: A Study of India’s North-​East’, (2013) 69 India Quarterly 1, 65. 14 H. Singh, South Asia Defense and Strategic Yearbook (2010), at 43. 15 Proliferation Security Initiative (psi) is a multilateral effort, initiated by USA, to stop trafficking of weapons of mass destruction, their delivery systems and related materials to and from states and non-​state actors of proliferation concern. 16 D.A. Pinkston, ‘Domestic Politics and Stakeholders in the North Korean Missile Development Program’ (2003) The Nonproliferation Review, at 8.

254 Patel 3

Relation between Port-​Led Maritime Development and Maritime Security

India has laid down an ambitious Blue economy roadmap for the overall economic development of the nation through the vision of sagarmala.17 The five pillars of the sagarmala vision are: port modernization and new port development; port connectivity enhancement; port-​ led industrialization; coastal community development and coastal shipping and inland waterways transport. However, India is yet to formulate an integrated vision interlinking and combining the twin aspects of maritime economic development and maritime security. Maritime security can be seen as an enabler for achieving and sustaining the maritime-​led economic development. Freedom of navigation, providing safety and security to the navigation routes, enabling and proactively providing data related to living and non-​living resources to the maritime industry, effectively ensuring protection and promotion of sovereign rights over these resources in its eez and continental shelf as well as a port and ship security framework are critical components of maritime security. Currently, the framework of maritime security action plans is missing and can raise serious doubts regarding the ability of India to protect and promote maritime security objectives and interests. India needs to urgently finalise its plans for the enhanced maritime security capabilities and capacities that can supplement the sagarmala vision. India shall simultaneously develop equally capable plans on marine conservation and resource management as well as on touristic and recreational fisheries.18 India is required to develop feasible implementation plans on sustainable development goals for the maritime transport sectors.19 While preparing the blue-​print for maritime security policy, it shall develop clear guidelines on safety culture and environmental stewardship, energy efficiency, new technology and innovation, maritime 17 18

19

sagarmala Project Reports, Ministry of Shipping, Government of India. A study carried out by the Lawyers’ Initiative for Forests and Environment has identified major bottlenecks that had been existing till 2013. With the introduction of the ambitious sagarmala Project and its corresponding impacts expected on the marine conservation and resource development, a revised research or impact assessment study is essential. ‘Legal Framework for Conservation of Coastal and Marine Environment of India: A Review’, Indo-​Germany Biodiversity Programme, Conservation and Sustainable Management of Coastal and Marine Protected Areas, Technical Report Series 2, 2013. A case study based reports on the Sustainable Development in the Maritime Industry approach can be useful. See V. Hiranandani, Sustainable Development in the Maritime Industry: A Multi-​Case Study of Sea Ports, https://​www.rrojasdatabank.info/​Hiranandani. pdf accessed on 28 July 2020.

Maritime Security and Sustainable Development

255

education and training, maritime traffic management and development of globally competitive standards. Shipping Related Marine Environment Pollution 3.1 International shipping is an important stakeholder in the climate change debate and the consequent achievement of the sdg s. Since climate change is acquiring an important national security dimension and trajectories of CO2 emissions from international shipping are essential, it is important that India maps the trajectories concerning Indian ships. Air pollution and greenhouse gas emissions shall be embedded in the technical and operational measures, improving energy efficiency design and management and in future market-​ based measures, i.e. carbon pricing. As India embraces the sagarmala vision, it is essential that it captures these requirements. Use and carriage of heavy graded oil constitutes India’s major component of oil imports but the carriage of heavy graded oil is an important source of oil pollution. India further needs to develop a Polar Code as it will significantly enable the ships to gain distance around 3900 to 4500 kilometer in both cases –​Northwest Passage and Northern Sea route. This will contribute to the reduction of CO2 emissions and significantly increase cost-​saving for the maritime transport industry of India. India’s shipping related marine environmental pollution prevention, reduction and controlling preparations are abysmal. India has undertaken obligations for safety requirements for all ships which are subject to the unclos; however, it is lagging behind in terms of development of these plans. The national legal framework governing the rights and responsibilities of India and other states in accordance with the international law of the sea, including the unclos and imo instruments, is outdated as the existing maritime code of India was developed prior to the 1990s, i.e. prior to entry into force of unclos (see table on list of major maritime legislation of India below). India needs to ensure a mandatory environmental protection level with zero discharge requirements in areas of greater concern. One of the important areas is the capacity and competence for the development of programs for sea-​users, captains, crew and sea-​farers with respect to marine environmental protection. One of the ways to achieve this goal is through capacity building programs of the international cooperation as envisaged in 21 of the 53 imo marine environment related instruments. India, like the majority of coastal states, requires international cooperation for tackling marine environmental pollution threats related to shipping. For example, shipping related pollution prevention and response are covered by the International Convention for the Prevention of Pollution from Ships (marpol Convention), the International Convention for the Control and Management of Ships Ballast Water & Sediments (bwmc

256 Patel Convention) and the International Convention on Oil Pollution Preparedness, Response and Co-​operation (oprc Convention), while dumping of wastes and other matter are covered by the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention) and its 1996 Protocol. These instruments provide ways and means to obtain and extend international cooperation. In terms of regional cooperation, there is a general lack of regional marine environmental agreements and understanding. Moreover, the initiative taken by India is quite undocumented. The absence of monitoring and enforcement mechanisms like international marine environmental agreements is prevalent in the region too. Furthermore, international cooperation initiatives taken by India in the areas of monitoring and enforcement in order to make the formation of environmental laws and subsequent rights meaningful are dismal. There is neither a global monitoring body nor regional marine environment pollution monitoring body.20 3.2 Piracy The threat of piracy continues to exist and the persistence of the underlying threat can deter coastal communities from freely pursuing the developmental goals through exploring and exploiting coastal resources.21 The Arabian Sea and the Indian Ocean which surround Indian coasts are prominent piracy affected maritime areas in the world. The Somali piracy attacks from 2008 to 2014 have shown the vulnerabilities of India and other Indian Ocean states concerning the maritime security infrastructure. The Piracy Reporting Centre of the International Maritime Bureau, in 2019, received 162 incidents of piracy and armed robbery against ships worldwide, in comparison to 201 reported incidents in 2018. The incidents included four hijacked vessels, 11 vessels fired upon, 17 attempted attacks, and 130 vessels boarded.22 Crew kidnapping increased at an alarming rate, although this largely remains concentrated in the Gulf of Guinea region. However, recognizing that India has one of the highest numbers of seafarers, a sizeable number of Indian seafarers presumably have been subjected to kidnapping which is a cause of concern at national (macro) and coastal states (micro) level. These piracy episodes have been directly impacting the Indian economy and have necessitated the 20 21 22

B.N. Patel, ‘Marine Environmental Law and Practice of China, India, Japan and South Korea’, (2017) Collected Courses of the Xiamen Academy of International Law 11, 66. Anadolu Agency, ‘Piracy in Asian water almost doubles in 2020, report says’, Daily Sabah, 19 July 2020. , accessed on 30 July 2020. International Criminal Court International Maritime Bureau Report, 2019.

Maritime Security and Sustainable Development

257

government to reallocate resources to curbing piracy which were otherwise meant for direct economic development. For example, an Indian warship consistently was stationed in the Gulf of Aden, primarily assisting Indian-​flagged merchant vessels to safely navigate the most vulnerable stretch in the internationally recognized seaway.23 Besides piracy, the incidents of hijacking in the East Arabian Sea suddenly witnessed an increase from November 2010 and India substantially increased its anti-​piracy deployment in the East Arabian Sea since November 2010. As part of its wider role of providing security to shipping in the Indian Ocean Region, the Indian Navy continues to deploy one ship for anti-​piracy patrol in the Gulf of Aden. A total of 72 Indian Navy warships have been deployed till March 2019, which have safely escorted more than 3440 (including 413 Indian flagged) ships with over 25,062 mariners embarked. Till April, 2019, Indian Navy has thwarted 44 piracy attempts and apprehended 120 pirates. Indian Navy presence in this region is being maintained to ensure safety and security of Indian trade. India can effectively address piracy threats only through increased regional and international cooperation. India, China and the US showed considerable convergence of operational views in the late 2000s and early 2010s to tackle the piracy problem including in the East Arabian Sea and the Gulf of Aden. This cooperation resulting into effective results was possible, partly due to the formulation of suitable Standard Operating Procedures (sop s) for the Indian Navy and for its coordination with other navies engaged in anti-​piracy operations.24 Lack of a legislative framework is an important concern, which significantly retards the ability of India in dealing with the piracy threat. As observed by Ranjit Sinha, former Director of the Central Bureau of Investigation of India, “(the) Indian legal system lacks (a) clear and unambiguous mechanism to prosecute maritime pirates. Piracy off the coast of Somalia has been a threat to international shipping and trade.”25 This legal void may be filled soon, as a dedicated Anti-​Piracy Bill has been introduced in the Parliament of India in 2019.26

23 The Diplomat, 19 April 2011. 24 Ibid. 25 Ranjit Sinha address on the inauguration of Maritime Piracy Workshop organized by Central Bureau of Investigation of India in collaboration with Federal Office of Criminal Investigation (bka) Germany, 24 September 2014. 26 A Sessions Court of India convicted Somali pirates under charges, including attempt to murder, kidnapping and relevant sections of the Unlawful Activities (Prevention) Act and Arms Act of India in 2017.

258 Patel Initiatives to Prevent, Reduce and Control Coastal Security Challenge –​Military Component While the above analysis centers around the analysis of the non-​military component of maritime security, it is equally and perhaps more important to explain and understand the impacts of the military security component of maritime security on the development of the coastal communities. The reports prepared by the Ministry of Home Affairs and Ministry of Defense,27 two key ministries responsible for coastal and maritime security, lead to conclude that these two ministries apparently place less emphasis on the impacts of the non-​military component of maritime coastal security and that achievement of the coastal security is an end in itself instead of a means for sustainable development. The focus centers around the maritime terrorism in the wake of Mumbai terrorists’ attacks on 26 November 2008.28 It has been observed that maritime terrorism is aggravated by uncontrolled, unplanned urbanization and industrial development in the coastal regions of India, which is seen as a source for actively providing bases or access to the Somali pirates or groups having maritime terrorist capabilities. India has initiated several measures such as the Community Interaction Program to sensitize the fishing communities on the prevailing security situation and develop them to be the eyes and ears for intelligence gathering. Fishermen have been provided with biometric identity cards. These help in the identification of the fishermen and also to help the government in extending executive help in cases when these fishermen cross international maritime boundary lines and are captured by the maritime neighbours. India also has started tracking vessels and boats as an integrated security protocol. In fact, all vessels above 20 meters length are mandatorily required to be fitted with Automatic Identification System (ais) equipment. Besides these direct measures to help the fishing communities, the security of non-​major ports –​of which 227 are located in coastal states –​are issued with a ‘Compendium of Guidelines’ to address various security concerns.29 As a part of the overall coastal security strategy, India has initiated a coastal mapping project which includes vital details and the location of coastal police stations, local police stations, intelligence set up, fish landing points, fishing villages, ports, customs check posts, hospitals, railway stations, bus stations, bomb disposal facilities etc. The 3.3

27 28 29

For more details see, Annual Reports of the Ministry of Home Affairs (www.mha.gov.in) and Ministry of Defense (www.mod.gov.in), Government of India. For general information on the terrorist attacks in Mumbai, see www.stimson.org; www. rand.org; www.mha.gov.in. Ministry of Home Affairs Annual Report 2017.

Maritime Security and Sustainable Development

259

coastal states and union territories of Gujarat, Maharashtra, Goa, Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, Odisha, West Bengal, Daman and Diu, Puducherry and the Andaman and Nicobar Islands have completed the process of Coastal Mapping. Lakshadweep is in process of completing the exercise.30 Coastal mapping is also considered as an integral component of the Integrated Coastal Resource Management (icrm) as well as for the return of displaced coastal populations and reconstruction. This further helps in developing and managing human uses of coastal resources following the principles of sustainable development. The Indian Navy and Coast Guard remain at the forefront of dealing with the above maritime security threats. The Indian Navy has been designated as the authority responsible for overall maritime security, which includes coastal and offshore security. The Indian Navy is assisted by the Indian Coast Guard (icg), Coastal Police and other Central and State agencies. The icg is also designated as the authority responsible for coastal security in territorial waters including areas to be patrolled by the Coastal Police, up to 24 nautical miles, encompassing the territorial sea as well as India’s contiguous zone. The Director General of icg has been designated as Commander Coastal Command and is responsible for overall coordination between Central and State agencies in all matters relating to coastal security. However, the lack of coordination with regard to enforcement jurisdiction between the Indian Navy and the Coast Guard limits the capability of the Indian state to thwart maritime security breaches in an effective and timely manner. In the larger domain of maritime security of the coastal communities, the following measures are noteworthy. These can contribute to their safety and security and contribute to their commerce and trade growth. India has been contributing to the regional maritime security by ensuring safety and security of maritime traffic through helping maritime neighbours set up their coastal surveillance networks for developing shared Maritime Domain Awareness (mda). In this context, India launched an Information Fusion Centre-​Indian Ocean Region (ifc-​i or) in 2018. The ifc-​i or is a major initiative to put in place a mechanism for mda and to ensure situational awareness of the maritime activities in the region. This Centre provides linkages and coordination with national and multi-​national organizations that are relevant to maritime safety and security. It collates, analyses and disseminates information related to maritime safety and Humanitarian Assistance and Disaster Relief (hadr)

30

For more detail see, Federation of Indian Chambers of Commerce and Industry, Smart Border Management: Indian Coastal and Maritime Security, September 2017.

260 Patel requirements at sea. India has signed White Shipping Agreements31 with a number of countries, provided capacity building assistance and ensured capability enhancement by imparting training. A rule-​based maritime order and stability in the Indo-​Pacific region is of paramount importance to India. Its engagements with the countries and institutions in the region have been deepening in consonance with its interests to promote order and stability in the region. Indian Prime Minister Narendra Modi articulated the new Indian Ocean policy during his visit to Mauritius in March 2015. The policy, encapsulated in sagar (meaning ‘ocean’) which stands for Security and Growth for All in the Region (sagar), includes deepening economic and security cooperation with friendly nations in the region, especially the maritime neighbours and island states and favors collective action and cooperation for peace and security in India’s maritime region.32 India’s relationships with littoral States of the Indian Ocean have grown stronger. The Indian Prime Minister also outlined India’s vision for the Indo-​Pacific region during the Shangri La Dialogue on June 1, 2018. It stands for a free, open, inclusive Indo-​Pacific region, which embraces all in a common pursuit of progress and prosperity. India is also a part of various other multilateral institutions which are actively deliberating maritime security issues in the region including admm Plus, Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ship in Asia (ReCAAP) and Expanded asean Maritime Forum (eamf). The Indo-​US partnership is on a positive trajectory with India being designated ‘Major Defence Partner’ in ndaa-​17 (National Defence Authorization Act) and has been upgraded to Strategic Authorisation Act-​1 Status (sta-​ 1) equating India at par with the closest allies of the US. India has signed important agreements, such as, lemoa (Logistical Exchange Memorandum of Agreement) and comcasa (Communication Compatibility and Security Agreement) which indicates strengthening of relationship and mutual trust. Maritime cooperation, Joint Military Exercises and Military-​ to-​ Military exchanges are expanding contributing further to promoting and preserving stability and rule based order in the Indian Ocean in specific and oceanic waters across the world in general. The Indian Ocean and the Red Sea, bordering several Asian and African nations, provide a major shipping link for India for both security and 31 32

White Shipping Agreements enable information sharing on maritime traffic and maritime domain awareness between India and other state parties. G. Khurana, INDO-​PACIFIC REPORT 2019: Indo-​Pacific Partnership: Realising the Benefits of Economic and Maritime Cooperation, National Maritime Foundation, India, 2019.

Maritime Security and Sustainable Development

261

commerce. A significant percentage of India’s trade, including oil, passes through the Gulf of Aden and the Indian Ocean making this route a priority for enhanced safety and security. Indian Navy ships have been escorting merchant ships and have undertaken various initiatives to strengthen anti-​ piracy efforts. Focus on the maritime domain has become another significant feature of India’s maritime security policy that includes defense and strategic cooperation with Mozambique, Tanzania, Madagascar and East African countries; capacity building; including training of sailors; helping in conducting hydrographic surveys to improve navigability of coastal waters and provision of maritime equipment for Tanzania, Kenya and Mozambique. The Indian Navy undertakes regularly eez surveillance of Maldives, Mauritius and Seychelles as a part of the larger trade and commerce security and cooperation. The Indian Navy has been engaging with various Friendly Foreign Navies for concluding and signing of Agreements for exchange of White Shipping Information, for enhancing India’s Maritime Domain Awareness. India has signed (as of 2017) White Shipping Agreements with 13 countries and have operationalised Virtual Regional Maritime Traffic Center (v-​r mtc) arrangements with Brazil, France, Israel, Kenya, Spain, United Kingdom and Italy.33 4

Conclusion

Each of the major maritime security threats needs either a standalone or combined law at national and state level. This can be partially achieved by the introduction of bills into the Parliament or state assemblies. However, this has not been the case as can be seen by the list of major central legislations governing the maritime development and security domain. Since the passage of any law requires a great deal of time, it is expected that the Government at both levels will hardly have an essential legal framework for the near future. This means the central and state governments will be constrained to address the current challenges and will certainly be in a weaker position when the new challenges will arise out of the implementation of the ambitious sagarmala and developmental projects.

33

Ministry of Defense, Government of India, Annual Report 2018.

262 Patel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32

The Coasting vessels Act, 1838 The Northern India Canal and Drainage Act, 1873 The Obstructions in Fairways Act, 1881 The Indian Ports Act, 1908 The Inland Vessels Act, 1917 The Indian Carriage of Goods by Sea Act, 1925 The Light House Act, 1927 The Dock Workers (Regulation of Employment) Act, 1948 The Calcutta Port (Pilotage) Act, 1948 The Merchant Shipping Act, 1958 The Major Port Trusts Act, 1963 The Seamen’s Provident Fund Act, 1966 The Dock Workers (Regulation of Employment) Amendment Act, 1980 The Hooghly Docking and Engineering Company Limited (Acquisition and Transfer of Undertakings) Act, 1984 The Inland Waterways Authority of India Act, 1985 The Merchant Shipping (Amendment) Act, 1986 The Multimodal Transportation of Goods Act, 1993 The Dock Workers (Regulation of Employment) (Inapplicability to Major Ports) Act, 1997 The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 The Indian Maritime University Act, 2008 The National Waterways Act, 2016. The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 The Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 The Marine Products Export Development Authority Act, 1972 The National Waterways Act, 2016. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 The Marine Insurance Act, 1963 The River Boards Act, 1956 The Coast Guard Act, 1978 The Offshore Areas Mineral (Development and Regulation) Act, 2002 The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 The Environment (Protection) Act, 1986

Maritime Security and Sustainable Development

33 34 35 36 37 38 39 40 41

263

The Biological Diversity Act, 2002 The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 The Narcotic Drugs and Psychotropic Substances Act, 1985 The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 The National Security Guard Act, 1986 The Navy Act, 1957 The National Security Act, 1980 The Border Security Force Act, 1968 The National Investigation Agency Act, 2008

As can be seen, the large majority of the above acts were enacted in the 20th century. At that time, the maritime blindness was prevalent in all walks of life but now when the whole world and India in particular has become critically aware about the maritime economy led country’s development, the persistent absence of legislative and governance efforts should be a cause of absolute concern to the key stakeholders –​Indian Navy, Coast Guard, Marine Police, security agencies, shipping and port authorities, coastal community, and the maritime insurance industry. More worrisome is the lack of focused, forward and coordinated efforts at central and state level in this regard.34 How India will deal with emerging maritime security challenges, especially in the backdrop of ambitious maritime developmental projects and the absence of legislative and governance framework, generates genuine doubts in the minds of those who are studying the twin aspect of maritime development and security. For this Liber, the central conclusion is that the realization of sustainable development goals for the coastal communities of India in the absence of comprehensive and timely focus on maritime security will remain elusive well beyond 2030. 34

In the aftermath of the Kargil Conflict of 1999, the Kargil Review Committee made far-​ reaching recommendations to overhaul and streamline coordinated efforts for maritime security. Based on this report and inter-​ministerial deliberations, a Group of Ministers recommended, among others, setting up of a National Maritime Authority. Nearly 19 years have passed since the recommendation was made in 2001, perhaps the most important recommendation in the maritime security domain –​National maritime Authority, is yet to be materialized. Group of Ministers (2001), Report of the Group of Ministers to Review the National Security System.

­c hapter 14

To Speculate or Not? On Determining Adequate Remedies for Denial of Justice and Other Judicial Wrongs Vid Prislan 1

Introduction

On 30 August 2018, the US oil company Chevron secured an award ordering the Republic of Ecuador to take “immediate steps” to suspend the enforcement of a judgment issued by an Ecuadorian court, which demanded the company to pay almost 10 billion usd in damages for environmental pollution in the Lago Agrio area. The award was rendered by an ad hoc Arbitral Tribunal established pursuant to the US-​Ecuador Bilateral Investment Treaty (bit), which found that the judgment in question had been procured through corruption and as such amounted to a denial of justice, in violation of the provisions of the bit.1 The case is part of a growing practice to use the system of investor-​ State arbitration to seek relief against purported wrongs occasioned by the conduct of domestic courts, including as a result of egregiously wrong judgments.2 Though these developments may be novel to the field of investment arbitration, claims grounded in judicial conduct are far from exceptional in the practice of international courts and tribunals. In the early part of the twentieth century, allegations of denial of justice were among the principal causes of action presented for adjudication to various claims commissions and arbitral bodies.3 Furthermore, cases concerning violations of the right to a fair trial occurring in the context of domestic adjudicative procedures still occupy today a large part of the docket of some human rights courts.4 1 Chevron Corporation (USA) and Texaco Petroleum Company (USA) v The Republic of Ecuador (Second Partial Award on Track II) (uncitral, pca case No 2009–​23, 30 August 2018). 2 See further MD Goldhaber, ‘The Rise of Arbitral Power Over Domestic Courts’ (2013) 1 Stanford Journal of Complex Litigation 373. 3 See J Paulsson, Denial of Justice in International Law (2005), 1. 4 In the period between 1959 and 2015, more than 41 per cent of the violations found by the European Court of Human Rights concerned Article 6 of the Convention, whether on

© Koninklijke Brill NV, Leiden, 2021 | D

To Speculate or Not?

265

Despite the relative ubiquity of international claims originating wholly or partly in judicial (mis)conduct, the topic of State responsibility for judicial acts has thus far been subject to little systematic study. Most scholarly attention has historically been devoted to the problem of denial of justice –​the international delict connoted with the failure on the part of a State to maintain and make available to foreigners a system of justice that treats them fairly and impartially, and that generally affords adequate judicial protection to their rights.5 It is only recently that academic interest has turned to the phenomenon of judicial acts more broadly, albeit mostly from the standpoint of the investment law regime and arbitration.6 This is not the proper occasion to engage in a comparative analysis of how different international dispute settlement bodies proceed with the adjudication of claims grounded in judicial acts. A modest attempt can nevertheless be made at mapping the varied practice of international courts and tribunals when it comes to the granting of remedies for judicial wrongs. A fact lesser known is that Nico Schrijver, in the course of his rich academic career, has acted as Legal Expert in a number of investor-​State arbitrations where allegations of judicial misconduct featured prominently among the investors’ claims.7 Not only; in those very arbitrations, the question of remedies formed an important part of the discussions raised by the parties. What better way to

account of the fairness or the length of the proceedings. See Council of Europe, ‘Overview 1959–​2015: ECHR’, March 2016, , last accessed on 26 October 2020, p. 6. In the judgments delivered by the Court in 2015, nearly a quarter of the violations (still) concerned Article 6. See Council of Europe, ‘The ECHR in Facts & Figures 2016’, , last accessed on 26 October 2020, p. 7. 5 For a contemporary re-​consideration of this delict, see Z Douglas, ‘International Responsibility for Domestic Adjudication: Denial of Justice Deconstructed’ (2014) 63 ICLQ 867. 6 See eg B Demirkol, Judicial Acts and Investment Treaty Arbitration (cup 2018); and the special issue on Judicial Measures and Investment Treaty Law published in (2019) 2 Transnational Dispute Management. 7 In a case brought by Chevron against the Republic of Ecuador (in what would be the first in a series of cases involving the two parties), he provided an opinion on denial of justice by unreasonable delay. See Chevron Corporation (USA) and Texaco Petroleum Company (USA) v The Republic of Ecuador (Partial Award on the Merits) (uncitral, pca Case No 34877, 30 March 2010), para. 180. In a case brought by Philip Morris against Uruguay, he provided expert reports on the standard for denial of justice and the remedies therefor. See Philip Morris Brands Sàrl, Philip Morris Products sa and Abal Hermanos sa v Oriental Republic of Uruguay (Award) (icsid Case No. arb/​10/​7, 8 July 2016), para. 56.

266 Prislan honor Nico’s work than to pick up on those discussions and to reconsider some of the issues that were raised, but perhaps not fully addressed in those arbitrations. The awarding of remedies depends on three steps: the establishment of a breach of an international obligation, followed by the ascertainment of the injury caused by that breach, and ultimately the determination of the appropriate reparation for that injury. Though important to the present discussion, the first step in the analysis will not be subject of detailed treatment here. There is little doubt today that domestic courts are capable of violating international law in a variety of ways.8 Engaging with the challenges and problems pertaining to the establishment of judicial violations of international law would by far exceed the scope of the present contribution.9 The focus of the discussion will instead be on the form and nature of reparations awarded for judicial wrongs, and the process of determining the appropriate measure of such reparations. What will be shown is that international courts and tribunals have been capable of providing various forms of redress for judicial wrongs, ranging from orders of specific performance, to awards of monetary compensation. What will further be explained, however, is that judicial wrongs give rise to specific challenges when it comes to determining the adequate form of reparation. Undoing the effects of judicial wrongs sometimes necessitates speculating as to how law-​compliant courts would have decided the underlying case. These are not speculations that international adjudicators are generally willing to engage in. The discussion is organized in the following way. Part 2 first briefly explains why the conduct of judicial organs requires a different conceptual treatment when it comes to implementing the responsibility of the State. Part 3 then examines the diverging practice of international adjudicatory bodies when it comes to the types of remedies provided to redress judicial wrongs. Part 4 looks more closely at the analytical approaches adopted by adjudicatory bodies in determining the appropriate form of reparation.

8 See Jurisdiction of the Courts of Danzig (Advisory Opinion) pcij Series B No 15, at 24, setting out, by way of a broad proposition, that responsibility would arise not only where a judicial decision goes “beyond the limits” of the courts’ jurisdiction, but also where such decision is “in any other manner […] in conflict with the general principles of international law or the rules governing the relations between [the states involved]”. 9 In recent times, the question has not been subject to systematic treatment. The classical work remains K Eustathiadès, La responsabilité internationale de l’État pour les actes des organes judiciaires et le problème du déni de justice en droit international (1936).

To Speculate or Not?

2

267

International and Domestic Adjudicators and Their Competing Claims to Adjudicatory Authority

From the perspective of contemporary international law, which treats the State as a unitary actor on the international plane, courts may be no different than other State organs.10 Their acts and omissions are equally capable of engaging the responsibility of a State as the conduct of the executive or the legislative.11 On the domestic plane, however, the judicial branch carries out functions that sets courts apart from the political branches of the government: they interpret and apply the law in the name of the State, and thereby conclusively determine what the law actually is.12 For the purposes of establishing the responsibility of the State under international law, this distinction is admittedly of little significance. The principle is well established that the characterization of a given act as internationally wrongful is not dependent of its characterization as lawful by internal law of the State concerned.13 The fact that domestic courts may have conclusively established an act to be lawful from the standpoint of domestic law cannot therefore justify the act at the level of international law. But this is different at the stage of implementing the responsibility of the State, which in the case of judicial wrongs typically requires that measures be

10 11

12

13

See J Crawford, State Responsibility: The General Part (2013), 113ff. As per Article 4(1) of the ilc Articles on State Responsibility, “[t]‌he conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.” Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ilc on the Work of its Fifty-​third Session (2001), UN Doc A/​56/​10 (2001), at 43; emphasis added. The provision is considered to be reflective of customary international law. See or icj, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] icj Rep 62, para. 62. As Chief Justice Marshall observed in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at 177: it is ‘the province and duty of the judicial department to say what the law is.’ In the legal systems of the civil law tradition, courts are taken to provide authoritative interpretations of the law adopted by the legislative branch. While court judgments in such systems generally do not constitute binding precedent, prior decisions (especially those of superior courts) will be treated as persuasive and, by virtue of the doctrine of jurisprudence constante, lower courts will be bound to consider them when reaching a decision. In common law systems, in contrast, courts even have the power to make the law. In such systems, judgments operate so as to affect the rules of positive law, by amplifying them, qualifying them, displacing them, or at the very least, by assisting in the formation of new positive rules of law through the creation of new analogies. Article 3 arsiwa, supra note 11.

268 Prislan taken at the domestic level. For even though it is international law –​as a matter of the fair trial guarantees under human rights conventions,14 or as a matter of the minimum standard of treatment under customary international law15 –​ that may demand specific procedural treatment in the context of the domestic adjudicative process, it is still domestic law that essentially determines the substantive outcome of that process.16 Even in areas where international law does grant protection to certain substantive rights existing in the domestic legal framework, it is domestic law that often determines the validity and scope of those rights, or establishing in whom those rights might be vested. A typical example is that of the protection of property rights. While it is international law –​through the recognition of the right to property under certain human rights conventions,17 or the prohibition of uncompensated expropriation of foreign property under customary international law and investment treaties18 –​that protects property rights and interest of private persons, it is the law of the State where the property is located that actually determines who possesses title to that property in the first place.19 This ultimately gives rise to questions of proper allocation of adjudicatory authority. For, if it is the international adjudicatory bodies that have the last word on points of international law, it is the domestic courts that retain the ultimate authority on points of domestic law. In awarding remedies for judicial wrongs, international adjudicators thus run the danger of ending up on thin ice. How far can they go in providing redress for judicial wrongs? How much can they substitute themselves for domestic courts in determining the outcomes of the domestic adjudicative process when awarding remedies for judicial wrongs? Is it appropriate for them to speculate on alternative outcomes? 14 15 16

17 18 19

See eg Article 6 of the 1950 European Convention on Human Rights (echr); Article 14 of the 1966 International Covenant on Civil and Political Rights; or Article 8 of the 1969 Inter-​American Convention on Human Rights (iachr). See further M Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (oup, 2013), 181ff. As the European Court of Human Rights noted, the right to fair trial expressed in Article 6 echr “does not guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned”. Boulois v. Luxembourg [gc], Judgment (Merits and Just Satisfaction) of 3 April 2012, para. 91. See eg Article 1 of Protocol No. 1 echr, Article 21 iachr. See generally unctad, Expropriation: A Sequel (2012). Generally on this issue, see C Staker, ‘Public International Law and lex situs rule in property conflicts and foreign expropriations’ (1987) 58 Brit. Y.B. Int’l L. 151; and Z Douglas, ‘Hybrid Foundations of Investment Treaty Arbitration’ (2003) 74 Brit. Y.B. Int’l L. 152.

To Speculate or Not?

269

These are the central question addressed in this contribution. But before we move to consider these questions, it is important to first examine the type of remedies that are actually provided in practice to redress judicial wrongs. 3

Remedies in What Form: Restitution, Compensation, or Satisfaction?

The essential principle underpinning the present Law of State Responsibility is that any commission of an internationally wrongful act engages the responsibility of the State and that this responsibility gives rise to a duty of reparation.20 The present rules on state responsibility recognize restitution, compensation, and satisfaction, either singly or in combination, as the possible forms that such reparation can take.21 As a matter of legal principle, restitution remains the primary form that reparation should take. In practice, however, restitution may not always be possible,22 nor necessarily adequate.23 The appropriate form of reparation will therefore depend on the circumstances of each case. This leaves international adjudicators a considerable measure of discretion, albeit one that is also dependent on the concrete relief requested by the injured party.24 As attested to in arbitral and judicial practice, the remedies provided for by international adjudicatory bodies have thus come in a variety of forms and shapes, with significant variation between and sometimes also within the different bodies.25 This has not been any different when it came to awarding reparations for judicial wrongs. In the “classic” arbitrations of the nineteenth and early twentieth century –​ be it individual ad hoc arbitrations established to resolve particular controversies arising out of ill-​treatment of foreign nationals or companies, be it

20 21 22 23 24 25

Factory at Chorzów (Jurisdiction) pcij Series A No 9, at 21, recognizing the “principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form.” See Article 34 arsiwa, supra note 11. The present rules provide an exception where restitution would be “material impossible” to achieve, or else involve “a burden out of all proportion to the benefit deriving from restitution instead of compensation”. See Article 35 arsiwa, supra note 11. In some cases, the damage or injury may simply not be made good by restitution. See Articles 36 and 37 arsiwa, supra note 11. See further J Crawford, ‘Flexibility in the Award of Reparation: The Role of the Parties and the Tribunal’, in R Wolfrum (et al) (eds), Contemporary Developments in International Law: Essays in Honour of Budislav Vukas (2015), 690. See generally C Gray, Judicial Remedies in International Law (1987).

270 Prislan arbitrations before various claims commissions set up to adjudicate broader sets of claims for injuries suffered by foreign nationals during periods of civil unrest or war –​monetary compensation was by and large the preferred remedy for judicial wrongdoing.26 A notable exception is the 1930 award in the Martini case (Italy v. Venezuela), where the Arbitral Tribunal ordered the annulment of certain obligations of payment that were still extant under the impugned judgment.27 But this precedent was the exception confirming the rule, as the awarding of restitution was generally quite extraordinary in the early practice of adjudication.28 With respect to judicial wrongs considered in those early cases, the awarding of monetary compensation was at any rate the most practical remedy to be provided. In view of the considerable delays with which claims concerning the treatment of foreign nationals would normally be brought to international adjudication, orders of restitution would in most cases have been difficult to implement in practice.29 The picture is different when it comes to the practice of the International Court of Justice (icj). In the Court’s jurisprudence, restitution has thus far been the primary form of reparation for judicial wrongdoing. The remedies thus far provided consisted either in the Court ordering that the impugned judicial measure be vacated,30 or in demanding that the individual judgments be reviewed and reconsidered by the competent domestic courts.31 This practice in itself departs from the Court’s general preference for awarding declarations of wrongfulness in lieu of reparations, but is at the same time in line with the Court’s general reluctance to grant compensation.32 The practice of the European Court of Human Rights (ECtHR) displays again different traits. Differently from other contexts, the European Convention on Human Rights (echr) itself regulates the question of remedies in Article 41. Pursuant to the latter, “[i]‌f the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the 26 See various cases discussed in Section 4, infra. 27 Martini Case (Italy v Venezuela) (Award) (3 May 1930), reproduced in (1931) 25 AJIL 554. 28 Grey, supra note 25, 13ff. 29 See MO Hudson, International Tribunals: Past and Future (1944), 195–​98. 30 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ( Judgment) [2002] icj Rep 3, para. 76; or Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) ( Judgment) [2012] icj Rep 99, para. 137. 31 Avena and Other Mexican Nationals (Mexico v. United States of America) (Judgment) [2004] icj Rep 12, paras. 128 and 138; Jadhav (India v. Pakistan) (Merits) [2019] icj Rep 418, para. 138. 32 See Crawford, supra note 24, 692–​695.

To Speculate or Not?

271

Court shall, if necessary, afford just satisfaction to the injured party.” The notion of “just satisfaction” is thereby different from “satisfaction” under the general rules on State responsibility. The Court has been awarding under this heading not only declaratory judgments, but also compensation for pecuniary and non-​ pecuniary damages, as well as restitution.33 Insofar as the most common judicial wrongs are concerned –​i.e, those arising out of violations of the fair trial guarantees under Article 6 echr –​the Court’s approach has been an evolving one. While in its early jurisprudence, the Court would often restrict itself to a declaratory judgment, it later began to award monetary compensation for violations of fair trial guarantees –​though, predominantly, for non-​pecuniary damages. In its more recent jurisprudence, the Court has also been willing to propose –​albeit only exceptionally inclined to order34 –​the re-​opening of trial proceedings.35 Furthermore, through its practice of pilot judgments, the Court has been gradually moving towards providing specific indications of judgment implementation.36 The practice of investment tribunals displays a similar variation. Awarding monetary compensation corresponding to the damage resulting from the judicial act remains the predominant approach followed by arbitrators.37 This is in line with the general preference of investment tribunals to award compensation over other forms of reparation.38 But there are also exceptions. In the Chevron/​Texaco v. Ecuador case referred to in the introduction, the Tribunal ordered, among other measures, that the Respondent cause the enforceability of the judgment to be suspended and take other necessary steps to preclude plaintiffs in the domestic suit from enforcing the judgment.39 More creative, 33

See generally D Shelton, Remedies in International Human Rights Law (2015), 206ff. On the issue of restitution, see also AC Buyse, ‘Lost and regained? Restitution as a remedy for human rights Violations in the context of international law’ (2008) 68 Heidelberg Journal of International Law 129. 34 In a few instances, the Court has referred to the option of re-​trial as an alternative to the payment of compensation in the dispositive part of the judgment. See eg Case of Claes and Others v. Belgium, Judgment (Merits and Just Satisfaction) of 2 June 2005; or Case of Lungoci v. Romania, Judgment (Merits and Just Satisfaction) of 26 January 2006. 35 Case of Piersack v. Belgium, Judgment (Just Satisfaction) of 26 October 1984, para.11. The Court generally endorsed the remedy of retrials in Case of Öcalan v. Turkey, Judgment (Merits and Just Satisfaction) of 12 May 2005, para. 210. 36 See Broniowski v. Poland, Judgment (Merits) of 22 June 2004. 37 See Saipem S.p.A. v. The People’s Republic of Bangladesh (Award) (icsid Case No. arb/​ 05/​07, 30 June 2009); Chevron v. Ecuador (I), supra note 7; or White Industries Australia Limited v The Republic of India (Final Award) (uncitral, 30 November 2011). 38 See C Schreuer, ‘Non-​Pecuniary Remedies in ICSID Arbitration’, (2004) 20 Arbitration International 325. 39 Chevron v. Ecuador (ii), supra note 1, para. 9.1ff.

272 Prislan in turn, was the Tribunal in ata Construction v. Jordan. Having found that Jordanian courts wrongfully extinguished a contractual arbitration clause, the Tribunal made an order to the effect that the Claimant was entitled to proceed to arbitration in relation to the contractual dispute, in addition to ordering that the ongoing Jordanian courts proceedings be immediately and unconditionally terminated. In thus re-​instating the contractual right to arbitration, the Tribunal’s award amounted to restitution under another form.40 Last but not least, while the remedy of satisfaction (eg in the form of a judicial declaration) has generally not been sought after in investment arbitration, in one case such a remedy was considered sufficient as a means of redressing a judicial wrong. In Victor Pey Casado v. Chile, the Tribunal decided that “its formal recognition of the Claimants’ rights and its finding that they were the victims of a denial of justice constitutes in itself a form of satisfaction under international law for the Respondent’s breach” of the applicable investment treaty.41 But this was more a consequence of the failure on the part of the claimant to prove any injury in relation to the denial of justice than a conscious decision as to the appropriateness of such a remedy.42 Despite variations in practice, one element that is common to the jurisprudence is an obvious reluctance on the part of international courts and tribunals to directly interfere with the impugned judgments. One is thus hard pressed to find instances of international decisions seeking to directly annul the impugned domestic judicial measures. Even in the Martini case, where annulment was considered as an appropriate form of reparation, the Tribunal merely decided that Venezuela was “bound to recognize” such annulment.43 The Tribunal left to the discretion of Venezuela to decide how such “recognition” was to take place. Likewise, the icj and the ECtHR have generally left the choice of means for implementing reparations for judicial wrongs to the respondent States. The icj would thus merely demand the relevant State to take steps, “by means of their own choosing”, to ensure that the decisions or orders emanating from their own courts ceased to have effects, both in the domestic 40 41 42

43

ata Construction, Industrial and Trading Company v The Hashemite Kingdom of Jordan (Award) (icsid Case No arb/​08/​2, 18 May 2010), para. 133. Victor Pey Casado and President Allende Foundation v. Republic of Chile (Award) (icsid Case No. arb/​98/​2, 13 September 2016), para. 256. The Tribunal emphasized that the finding of a treaty violation represented “a subsisting obligation on the Respondent and one which […] arose out of a failure in the operation of the Chilean internal system for the redress of acknowledged past injustices. The Tribunal has no doubt that […] the Respondent will remain conscious of that obligation, and will weigh its consequences appropriately.” Ibid, para. 244. Martini case, supra note 27, at 584–​585.

To Speculate or Not?

273

legal order, and transnationally.44 Similarly, the ECtHR took the opportunity to explain that it was “not for the Court to indicate how any new trial is to proceed and what form it is to take. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded […], provided that such means are compatible with the conclusions set out in the Court’s judgment and with the rights of the defence”.45 International investment tribunals have thus far accorded similar deference. The Tribunal in ata left the impugned decisions unaffected, whereas the Tribunal in the Chevron/​Texaco ordered the respondent State to cause the enforceability of the judgment to be suspended. The latter Tribunal further explained that it lacked “the power to annul” the defective judgment (recognizing that “the remedy of annulment, as such, lies with the Respondent’s internal law”); as “an international tribunal” it only had “the power to order the Respondent to take steps to secure that result.”46 Hence, in ordering reparation, international adjudicatory bodies by and large accepted that they were not operating at the same level as domestic courts and recognized they lacked the power to directly quash wrongful judicial measures. However, this formal recognition of the independence of the domestic legal order does not mean that the substance of the international adjudicators’ decision-​making has not encroached upon matters that more properly fall within the authority of domestic courts. As I am about to explain, in order to determine the appropriate measure of reparation, it may sometimes be necessary to step into the shoes of domestic courts. 4

Determining the Appropriate Measure of Reparation

Apart from endorsing the primacy of restitution, the current rules on State responsibility do not provide further guidance on how to determine what reparation in adequate form is. Therefore, one must fall back on the formula set out by the Permanent Court of International Justice (pcij) in the seminal Chorzow 44 See Arrest Warrant, supra note 30, para. 76; and Jurisdictional Immunities, supra note 30, para. 137. See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] icj Rep 62, para. 67. 45 Case of Sejdovic v. Italy, Judgment (Merits and Just Satisfaction), 1 March 2006, para. 127. 46 Chevron v. Ecuador (ii), supra note 1, para. 9.14.

274 Prislan Factory case, pursuant to which the objective of reparation is that to “wipe-​ out all the consequences of the illegal act and re-​establish the situation which would, in all probability, have existed if that act had not been committed.”47 To date, this essential formula has continued to provide the starting point of analysis as to the remedies that the international adjudicator is to provide. Determining the situation that would have existed “but for” the wrongful act is not a simple task. The formula demands a counterfactual analysis: it calls for juxtaposing and comparing real events and developments with a hypothetical situation which the adjudicator is expected to construe by conjecturing on a course of events that would in all probability have ensued had the State responsible for the wrongful act behaved in a law-​abiding way.48 But this hypothetical situation can never be determined with certainty: had the injury not occurred, life would not have stood still. This is not to say that there are no factors that can assist in the analysis. In construing the hypothetical situation, the content of the norm violated plays an important role. The nature of the norm namely determines the nature of the injury. Since, in order to be an adequate one, the reparation awarded must correspond to the actual injury, the content of the norm thus becomes relevant to the question of remedies.49 It may be recalled that, during the codification of the Law of State Responsibility, the ilc initially considered the idea of having differentiated regimes of reparation depending on the nature of the norm violated. The draft articles adopted on first reading differentiated to that end between obligations of conduct and obligation of result.50 The distinction was eventually dismissed as unworkable, and is thus not reflected in the final version of the ilc Articles on State Responsibility.51 For the purpose of the 47 48 49

50 51

Factory at Chorzów (Merits) pcij Series A No 17, at 47. See further T Waelde and B Sabahi, ‘Compensation, Damages, and Valuation’ in P Muchlinski and others (eds), The Oxford Handbook of International Investment Law (2008), 1049, at 1057–​1058. This much has been also recognized by the icj in the Avena case when noting that what constitutes “reparation in an adequate form” does not only depend on the concrete circumstances surrounding each case, but equally on “the precise nature and scope of the injury”. Avena case, supra note 31, para. 119. See A/​c n.4/​L.263/​Add.1 Draft articles on State responsibility: texts adopted by the Drafting Committee: revised text of article 20 and articles 21–​22 –​reproduced in A/​c n.4/​ sr.1469. What was debated, among others, was whether the categorization of norms in obligations of conduct and obligations of result provided sufficient differentiation, the difficulty being in the fact that certain obligations may also be qualified as goal-​oriented. For an examination of this problem, see R Wolfrum, ‘Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations’, in

To Speculate or Not?

275

counterfactual analysis, however, the distinction does retain analytical relevance: it is one thing to determine the hypothetical “but for” situation when the norm envisages a concrete result; it is quite another to do so when the norm prescribes a course of action without specifying an ultimate goal. The nature of the norm violated is thus also of relevance when considering the appropriated measure of reparation for judicial wrongs. Adjudicators have rarely engaged in considerations as to whether the obligations violated by courts were those of result or those of conduct.52 However, a close look at the jurisprudence of international courts and tribunals reveals that, in practice, situations involving a failure to meet a defined judicial outcome have been subject to a different appraisal than situations involving procedural faults in the adjudicative process. Whereas in the former type of cases, adjudicators could simply “imagine away” the judicial wrong, in the latter type of cases, an element of speculation entered the analysis. 4.1 Redress for Judgments Contrary to International Law In cases involving judicial violations of specific obligations of result, determining the appropriate measure of reparation generally does not necessitate difficult and complex thought processes. Where the norm violated is one demanding a defined judicial outcome, the injury results from the judicial measure not conforming to that outcome. This can be the case, for example, where the obligation in question precludes the adjudicative process as such (as in the event of international legal rules regulating jurisdictional immunities, which proscribe the courts’ exercise of adjudicatory authority), or where the obligation demands a particular substantive result (as in the case of rules governing the expropriation of foreign property, which require the payment of adequate compensation). In such situations, in order to determine the hypothetical situation that would have existed but for the court’s violation of international law, it is arguably sufficient to revert to the juridical situation existing before the wrongful judicial act. In a law-​abiding world, the impugned judgment would never have been rendered. The approach just sketched has generally found endorsement in practice. In several cases where the judicial wrong took the form of a judicial measure that, on its substance, was contrary to a rule of international law, international adjudicators found the appropriate remedy to lie in the impugned measure being vacated, or its legal effects caused to cease effect. Reverting to the

52

MH Arsanjani et al (eds), Looking to the Future: Essays on International Law in Honor of W. Michael Reisman (2010), 363. A notable exception is the Avena case, supra note 30, para. 123.

276 Prislan juridical situation existing prior to the wrongful act was deemed sufficient to wipe-​out the consequences of the judicial wrong. An early example is the decision in the above-​mentioned Martini Case. In the circumstances of that case, Venezuela’s Court of Cassation cancelled the Italian company’s concession on ground of non-​performance, and the company was ordered to pay royalties on coal mined, as well as damages for failure to make certain improvements and for suspending work in the mines during the Venezuelan revolution. The Arbitral Tribunal found the imposition of payments to be manifestly incompatible with Venezuela’s international obligations arising from an earlier arbitral award rendered by Umpire Ralston in a case involving the same company before the Italian-​Venezuelan Mixed Commission. Although the payments had never been made, the obligations of payment pursuant to the judgment were still extant, and the Tribunal therefore ordered their annulment.53 The icj has followed a similar approach in cases involving judicial violations of international rules relating to immunities of States and their officials. In Arrest Warrant, the Court noted that the arrest warrant issued by the Belgian judge, which was found to have violated the immunity of Congo’s minister of foreign affairs, was still in force. In the Court’s view, the situation that would have existed had the illegal act not been committed could not be re-​established merely by a finding that the warrant was unlawful under international law. What was necessary, in addition, was for Belgium to take steps to cancel the warrant in question.54 The same reasoning was later adopted in the Jurisdictional Immunities judgment. The Court held that the judicial decisions and other measures infringing Germany’s jurisdictional immunities that were still in force “must cease to have effect, and the effects which have already been produced by those decisions and measures must be reversed, in such a way that the situation which existed before the wrongful acts were committed is re‑established.”55 The same approach underpins the decision in the above-​ mentioned Chevron v. Ecuador case. In the circumstances of that case, Ecuadorean courts ordered Chevron to pay almost 10 billion usd of compensation for environmental damage, despite a contractual settlement between Chevron and Ecuador that released the former from liability for environmental damage. The courts’ failure to respect Chevron’s rights under the settlement agreement was eventually found to amount to a violation of international law: pursuant to the umbrella clause in the applicable US-​Ecuador bit, Ecuador was namely 53 54 55

Martini case, supra note 27, at 584–​585. Arrest Warrant, supra note 30, para. 76. Jurisdictional Immunities, supra note 30, para. 137.

To Speculate or Not?

277

required to “observe any obligation it may have entered into with regards to investments”.56 Since the impugned judgments should never have been rendered had Ecuador complied with its obligations under the umbrella clause, the hypothetical situation was construed by reference to the claimant’s juridical position at the status quo ante.57 The Tribunal therefore considered the reinstatement of Claimants’ rights under international law to require of Ecuador the “immediate suspension of the enforceability” of the judgment tainted by denial of justice and the “implementation of such other corrective measures as are necessary to ‘wipe out all the consequences’ of the Respondent’s internationally wrongful acts, so as to re-​establish the situation which would have existed if those internationally wrongful acts had not been committed by the Respondent.”58 Reverting to the status quo ante may not always provide sufficient a remedy. A judicial outcome that is contrary to what is required under an international obligation incumbent upon the State may cause material and moral damage. It may also lead to loss of expected gain or profits (lucrum cessans), for it cannot be presumed that, in the absence of the judgment, the life of the aggrieved party would not have carried on. In merely re-​establishing the status quo ante, restitution in the form of an order that the wrongful judgment be vacated may thus not always provide adequate redress. In order to wipe-​ out the consequences of the wrongful judgment, compensation (and eventually, satisfaction) may have to be awarded. To the extent that the damage is financially assessable, such compensation shall cover the actual losses that the victim–​be it the State itself, with respect to its property or personnel; be it the State’s nationals, whether persons or companies, with respect to their own property and person –​may have suffered directly as a result of the wrongful judgment. It may also comprise losses occurring in the future, as well as incidental expenses incurred in repairing damage or mitigating loss arising from the breach, including for example litigation costs.59 56 57

58 59

Chevron v. Ecuador (ii), supra note 1, paras. 8.4.-​8.10. nb: In the circumstances of that case, the Tribunal also found that the judgment had been procured through corruption and was thus tainted by denial of justice. As I explain in 4.2, procedural defects in the adjudicative process, including those resulting from the lack of independence and impartiality of the adjudicator, do not make the outcome of that process itself contrary to international law. Had denial of justice been the only wrong committed by the courts, this would have called for a different analysis. Chevron v. Ecuador (ii), supra note 1, para. 9.17. This compensation may further have to be supplemented with compensation for the costs incurred in having the wrongful act redressed (arbitration costs) and moral damages, for example.

278 Prislan Also in calculating compensation for damages resulting from wrongful judgments, adjudicators have generally proceeded on the assumption that a judicial outcome that was contrary to international law would in the hypothetical course of events never have been rendered. In the Costa Rica Packet arbitration, the Netherlands was found responsible for a decision of its court in the Netherlands’ East Indies which, by ordering the preventive custody of a British captain on suspicion of a crime that incontrovertibly took place on the high seas, exercised jurisdiction in contravention with customary international law.60 The Arbitrator awarded compensation for the injuries suffered by the captain, as well the officers, crew and the owners of the vessel resulting from the master’s unlawful detention, without conjecturing on whether a different decision could possibly have been made by the relevant court. The same was the approach of the Italo-​French Conciliation Commission in Decision No. 196, which established that France liquidated certain property of Italian nationals in Tunisia in direct contravention of Article 79 of the 1947 Peace Treaty with Italy that proscribed the seizure of such property.61 The Commission considered that France was liable to pay compensation for the value that the liquidated property would have had at the time of indemnification had the property been normally maintained and administered. In the view of the Commission, the fact that certain liquidations had been ordered by the courts did not change the situation.62 Redress for Procedural and Other Faults in the Adjudicative Process as Such Not all obligations of result are absolute in their nature. In some cases, the result can be subject to specific conditions, with the consequences that courts retain a measure of discretion in determining whether those conditions are met. Take as an example the obligation to recognize arbitration agreements pursuant to Article 2 of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.63 Notwithstanding this general obligation, the Convention itself sets forth in Article 5 a limited number of grounds on which recognition and enforcement of an arbitral award may be refused. The Convention thereby grants the courts of a contracting States the discretion

4.2

60 61

See eg Costa Rica Packet case (UK/​Netherlands) (Award) (184 cts 240, 13 February 1897). Différend concernant l’interprétation de l’article 79, par 6, lettre C, du Traité de Paix (Biens italiens en Tunisie –​Échange de lettres du 2 février 1951) (Decision 196) (xiii unriaa 422, 7 December 1955), 438. 62 Ibid. 63 10 June 1958, entered into force on 7 June 1959, 330 unts 3.

To Speculate or Not?

279

to refuse to recognize and enforce an award. As the ultimate outcome is thus not predetermined, situations involving conditional obligations warrant obviously a different assessment. The same can be said about international law norms demanding particular procedural treatment, such as the fair trial guarantees under human rights law, which comprise obligations of conduct.64 In case of their violation, the injury does not lie in the judgment that is vitiated by procedural irregularities, but in the loss of chance of obtaining a “regular” judicial decision.65 Where the injury is attributable to defects in the adjudicative process as such, “imagining away” the wrongful conduct becomes a more speculative exercise. Was it not for the defects, the plaintiff would still have been pursuing its cause of action, and the competent court would still have to decide on that action. In construing a counterfactual scenario, one cannot thus presume that in the hypothetical, law-​abiding world, courts would necessarily have rendered a different judgment, or would not have rendered any judgment at all. The fact that a court may have abused some treaty-​granted discretionary power does not mean that a law-​abiding court could not have relied on that same discretionary power for another reason. Likewise, the fact that, following a judicial procedure vitiated by a denial of justice, a contractual claim was decided in one way does not necessarily mean that the claim would have been decided otherwise by a law-​compliant court. Hence, determining the hypothetical situation in such cases requires more than just imagining away the defective judgment: essentially, it requires stepping into the shoes of a domestic court and conjecturing how a court administering justice in accordance with the State’s international obligations would have decided the matter presented to it. In practice, international courts and tribunals have mostly circumvented such hypothetical inquiries. Oftentimes, adjudicators found other ways to determine the situation that would probably have existed in the absence of judicial misconduct than by emulating the domestic adjudicative process (1). Although one can also find cases in which international adjudicators were willing to step into the shoes of domestic courts (2), there are also many others in which adjudicators deliberately decided not to conjecture on how a law-​ abiding court would have decided the case –​sometimes considering such an approach to lie outside the proper scope of international adjudication (3). In the end, as I explain, there is probably no correct, one-​size-​fits-​all approach. 64 65

In is generally accepted that the right to a fair trial only guarantees procedural, and not substantive fairness. See WA Schabas, The European Convention on Human Rights: A Commentary (2015), 271. On this, see also Paulsson, supra note 3, 225; and Waelde and Sabahi, supra note 48, 1088.

280 Prislan Much seems to depend on the international adjudicators’ conceptions as to their own nature and functions, and consequently their own position vis-​à-​vis domestic courts (4). 4.2.1

Circumventing the Need to Construe a Law-​Compliant Counterfactual It was particularly in two types of situations that international adjudicators succeeded to avoid engaging in speculations on law-​compliant counterfactuals: first, where the individual rights that failed to obtain recognition through the adjudicative process were not otherwise contested and the presumption could therefore be made that they would have remained unaltered; and second, where due to the intervention of other State organs, the hypothetical outcome of the domestic adjudicative process became irrelevant as a factor to be considered in the analysis. Illustrations of the first type of situations can be found in some of the early arbitral awards upholding denial of justice claims. The first one of interest is the Cotesworth & Powell case, which arose out of severe procedural improprieties that claimants, British merchants involved in a partnership for the purchase and sale of tobacco, experienced in recovering assets following the bankruptcy of their local partner. In the circumstances of that case, the claimants not only had failed to obtain recognition of their title to the assets in question as a result of several decisions rendered without a hearing. The local judge, in collusion with the assignees in bankruptcy, had also sold those assets and thereafter disappeared, with all the documents relating to the suit. The judge was later convicted and found liable for the costs, but the judgment could not be executed because of a general amnesty law. The arbitrators found that the grave procedural irregularities amounted to a denial of justice.66 Although the entire bankruptcy proceedings were later nullified by the Supreme Court of the State of Bolivar, the assets were, by then, impossible to recover. The claimants were consequently awarded an indemnity covering the value of the assets “unjustly attached and not returned”, “[t]‌taking as a basis, then, the state of affairs as it would have been if justice had been followed from the beginning.”67 For the purposes of the latter assessment, the arbitrators did not need to hypothesize how the bankruptcy proceedings would have ended if a proper procedure 66 67

Cotesworth & Powell (Great Britain v. Colombia), Award (1875); reproduced in JB Moore, History and Digest of the International Arbitration to which the United States Has Been a Party, vol. ii (1898) 2050, at 2083–​2085. The part of the final award relating to indemnification was separately published in MM Whiteman, Damages in International Law, vol ii (1937), 882, at 887.

To Speculate or Not?

281

had been followed. It was the Claimants’ contention that the assets did not belong to the bankrupt estate, and thus to the common mass of assets. Since the Supreme Court had already recognized claimants’ title to the assets, the Arbitral Tribunal considered it could “defer” to the Court’s decision (accepting that the decision also correctly estimated the value of those assets).68 The indemnity included interest for lost profits. Another illustration can be found in the Fabiani arbitration. In the circumstances of that case, claimant suffered unjustifiable delays and suspensions in attempting to enforce a foreign arbitral award against his former Venezuelan partners. Having not been able to recover the debts to which he was entitled, the Claimant fell into bankruptcy. The Arbitral Tribunal determined that Venezuelan courts, by permitting the local partner to obstruct the execution of the award (by unjustifiably allowing the local partners to appeal the execution of the award, by allowing a putative jurisdictional conflict to inordinately halt the process, and last but not least, by omitting to place the request of enforcement on the schedule of hearings), committed a denial of justice.69 The Tribunal awarded substantial damages, including on account of losses caused by the bankruptcy. The latter have been awarded on the ground that Claimant had been thrown into bankruptcy for the non-​payment of sums greatly inferior to those to which he was entitled under the award. The Tribunal considered that, had Claimant not been victim of denial of justice, he could have obtained payment of all the sums due to him under the award.70 The Tribunal premised this conclusion on the fact that the Venezuelan Government had never even alleged that those sums were not recoverable against the local partners, whilst the solvency of the latter could also not be questioned.71 Since the Tribunal, in reviewing the conduct of the Venezuelan courts, already ascertained that the grounds on which the enforcement of the award was obstructed had no basis in Venezuelan law, the Tribunal did not need to separately inquire whether the commercial award could have been refused recognition on other grounds. In the Cotesworth & Powell and Fabiani cases, performing a counterfactual analysis was not indispensable for determining the amount of compensation, since claimants’ entitlements to the contractual claims were not contested and their validity could be ascertained by other means. But speculating on 68 69 70 71

Ibid, 888. Fabiani (France v. Venezuela), Award of 30 December 1896; reproduced in JB Moore, History and Digest of the International Arbitration to which the United States Has Been a Party, vol. v (1898), 4877, at 4897–​4904. Ibid, 4910–​4913. Ibid, 4910.

282 Prislan a procedurally-​proper judicial outcome may equally be unnecessary where the injury is not solely attributable to judicial misconduct. The award in the Flughafen v. Venezuela case illustrates the point. In the circumstances of that case, the Tribunal concluded that claimant’s investment in a local airport was expropriated, following a decision of the Constitutional Chamber of Venezuela’s Supreme Court, which intervened in a pending dispute between the investor and the local authorities before administrative courts and ordered the transfer of control over the airport to the central Government. The Supreme Court’s decision was found to have amounted to a denial of justice on account of grave procedural irregularities and defects in the Supreme Court’s reasoning.72 But in determining the amount of compensation, the Tribunal did not need to speculate on the situation that would have existed had the Supreme Court reached a procedurally-​proper decision. Soon after the impugned judgment had been rendered, the central Government formalized and consolidated the seizure of the airport through executive decrees. Once the Government intervened, the question whether a law-​compliant Supreme Court could have lawfully transferred the airport to the central government had become irrelevant: due to the Government’s intervention, the applicable legal framework had significantly changed. The fact that the lower administrative courts still had to rule on the underlying dispute was equally irrelevant. For the Tribunal, it was unreasonable to think that the administrative judge could have decided, against the Supreme Court, that the management and control of the airport should revert to the Claimants.73 What follows from the Flughafen award is that speculating on a procedurally-​proper judicial outcome may thus also be unnecessary where, due to the wrongful conduct of other State organs, alternative judicial outcomes become unrealistic. Yet, international adjudicators may not always be able to circumvent the consideration of law-​compliant counterfactuals. In certain situations, a different approach has therefore been necessary. 4.2.2 Stepping into the Shoes of Domestic Courts In a handful of cases, international adjudicators did find it necessary –​and were also prepared –​to step into the shoes of a domestic court in determining the compensation to which the claimants were entitled. Interesting illustrations of such an approach can, on proper consideration, be already found in a few of the early awards in which claims of denial of 72 73

Flughafen Zurich ag v Venezuela (Award) (icsid Case No arb/​10/​19, 18 November 2014), paras 698–​706. Ibid., paras. 716–​719.

To Speculate or Not?

283

justice had been upheld. The first award of interest concerns the Idler case. In the circumstances of that case, claimant contracted with Venezuela’s agents for the provisions of arms and other military equipment, but a number of those deliveries remained substantially unpaid. Although the claimant eventually recovered from the Supreme Court of Justice a judgment against the treasury on his contractual claims, the State refused to pay. A few years later, a differently constituted Supreme Court reopened the case and annulled the decision. The Arbitral Tribunal found that the effect of the reinstituted proceedings amounted to a denial of justice, having established that the re-​ constituted Court, submissive to governmental pressure, acted on a improper legal basis and without hearing the claimant.74 The Tribunal awarded indemnities in the amount of the original judgment plus contractual interest. The Tribunal did so not before ascertaining that the original judgment was not “manifestly wrong”. The arbitrators namely recognized that “grave charges” were raised against Idler “which, if true, would disturb” that judgment’s basis, and therefore reconsidered those charges and other objections raised against the judgment, deeming it their “duty to look into them with care”.75 Upon careful re-​examination of all evidence, the arbitrators could not find a satisfactory reason for refusing to recognize the judgment in its entirety.76 Unlike the situation in the Cotesworth & Powell and Fabiani cases, where claimants’ contractual entitlements remained uncontested, the Tribunal in the Idler case could not thus avoid reconsidering the validity of the underlying contractual claims. The Tribunal essentially reconsidered whether the original judgment could be deemed to have been the product of a regular adjudicative process, thereby de facto emulating a law-​abiding court. Another illustration of such an approach can be found in the same Martini case already discussed above. In the circumstances of that case, the question also arose whether the Martini Company should have been indemnified for the cancellation of its concession contract that was terminated by the same judgment that was partially found to be contrary to Venezuela’s obligations under the Ralston Award, and partially found to be manifestly unjust (and amounting to a denial of justice). Acting on behalf of the Company, Italy took the position that if an illegal act on the part of the Court had not occurred, the concession would have remained in force. The Arbitral Tribunal disagreed, as 74 75 76

Jacob Idler v. Venezuela (No. 2), Award (1885); reproduced in JB Moore, History and Digest of the International Arbitration to which the United States Has Been a Party, vol. iv (1898), 3491, at 3515–​3517. Ibid, 3517. Ibid, 3517–​3533.

284 Prislan it did not consider that the cancellation of the contract would not have taken place had the judgment been founded entirely on the bases of law and of fact established in the case.77 In reaching that conclusion, the Arbitral Tribunal effectively stepped into the shoes of the same Court of Cassation, as it re-​ evaluated de novo the latter’s findings with respect to the Company’s defaulting on its contractual obligations. In the Tribunal’s assessment: “Assuming that the Martini Company had neglected without good reason […] to pay the rent for nine months, the decision of the Court of Caracas cancelling the contract was indubitably justified according to Venezuelan law, even if one were to set aside all the other considerations invoked in favor of the cancellation.”78 Further examples of international adjudicators stepping into the shoes of domestic courts can be found in more recent investment arbitrations. Best known in this respect is the decision on liability in the first arbitration brought by Chevron against Ecuador in relation to certain delays that Chevron’s subsidiary experienced in having its contract disputes with the Ecuadorian government adjudicated in the courts of Ecuador. This first Chevron v. Ecuador (Contract Claims) case, which happens to be one where Nico Schrijver also acted as one of the Legal Experts, is remarkable as the Arbitral Tribunal explicitly took the position that it had to step into the shoes of a “competent, fair, and impartial Ecuadorian court” to determine the contractual claims for which Claimants had failed to obtain proper consideration by Ecuadorean courts.79 The Tribunal found that compensation was due, insofar as the undue delays in judicial proceedings amounted to a breach of the “effective means” obligation under the applicable US-​Ecuador bit.80 To calculate the amount of compensation, the Tribunal saw no other means than to emulate Ecuadorean courts, explaining that the “loss due to an international wrong is to be measured by the comparison of the victim’s actual situation to that which would have prevailed had the illegal acts not been committed”.81 The same approach was later followed in White Industries v. India, a case that similarly arose out of judicial delays. In the circumstances of that case, the inability of the Indian judicial system to timely decide on the enforcement of Claimant’s commercial award was likewise found to constitute a breach of the “effective means” obligation under the applicable investment treaty.82 And 77 78 79 80 81 82

Martini case, supra note 27, at 584. Ibid., 584. Chevron v. Ecuador (i), supra note 7, paras. 375; also 377 and 379. Ibid., paras. 254–​262. Ibid., para. 374. White Industries, supra note 37, paras. 11.4.15 and 11.4.19, respectively.

To Speculate or Not?

285

also there, the Tribunal examined whether an “Indian court, acting reasonably and complying with India’s international obligations” would have concluded that the commercial award was enforceable in India.83 Such an inquiry was necessary, since Claimant was “entitled to be restored to the position it would have enjoyed had the breach of the bit not occurred”.84 Whilst the approach was similar to that followed in the Idler and Martini cases, the tribunals in Chevron (Contract Claims) and White Industries went arguably a step further in their counterfactual analysis. Faced with a situation where the wrongful acts were attributable to judicial inactivity, the tribunals did not have at their disposal any prior domestic decisions involving the respective claimants. In order to construe the hypothetical course of events, they had to wholly emulate the domestic adjudicative process, evaluating the facts and the law as if they were a domestic court. The Tribunal in Chevron (Contract Claims) considered that, in the circumstances where it was dealing with a completed breach of an international obligation on account of undue delays, the Tribunal “may” take into account a judgment issued after the critical date “as evidence of how a hypothetical honest, independent, and impartial Ecuadorian court would have decided”, but emphasized that it owed such a judgment “no deference.”85 In the end, the Tribunal largely refrained from seeking support in any judgments and eventually decided the underlying cases primarily on the basis of its own appreciation of the facts, assisted with interpretations of points of applicable Ecuadorean law provided by the parties’ legal experts.86 The White Industries Tribunal, too, determined points of applicable Indian law by reference to parties’ legal experts.87 While the Chevron (Contract Claims) and White Industries awards represent the most notable precedents in this line of jurisprudence, it is important to note that there are other cases, too, where arbitral tribunals contemplated the possibility of stepping into the shoes of domestic courts should that have been necessary to provide adequate redress for the judicial wrongs. In Saipem v. Bangladesh, an icsid Tribunal established that the Bangladeshi courts abused their supervisory jurisdiction over a local arbitration and thus wrongfully set aside a commercial award. In the circumstances of that case, the Tribunal considered the value of the original commercial award, rendered without the undue intervention of the court of Bangladesh, to constitute 83 84 85 86 87

Ibid., para. 14.3.6. Ibid., para. 14.3.3. Chevron v. Ecuador (i), supra note 7, para. 377. Ibid., paras. 389–​498. White Industries, supra note 37, para. 14.2.38.

286 Prislan the best evaluation of the compensation due. But this was only so, since Bangladesh failed in “substantiating” its contention that there were “other valid reasons for annulling the award or for refusing enforcement”.88 Last but not least, the Tribunal in the Philip Morris v. Uruguay case, another case where Nico Schrijver appeared as Legal Expert, firmly endorsed the proposition that “the question of what a bit-​compliant domestic court would have decided is an appropriate factor (and may be highly relevant) for the damages assessment”.89 In the circumstances of that case, the question concerned the remedies that the Tribunal would have to provide in the event that the claimants’ challenge of the regulatory measure before domestic courts were found to be vitiated by denial of justice. As no denial of justice could be established, the Tribunal ultimately did not have to answer that question. On the whole, it is especially adjudicators involved in ad hoc arbitrations that to date have appeared most inclined to speculate on the outcome of the domestic adjudicative process for the purpose of determining the appropriate means of redress for judicial misconduct. 4.2.3 Refusals to Speculate In between cases where a counterfactual analysis could be circumvented and cases where adjudicators went as far as stepping into the shoes of domestic courts, there is a much more diverse ensemble of cases where international adjudicators did not deem it appropriate to enter into speculations about law-​ compliant conduct. The cases differ predominantly in the solutions adopted by adjudicators in providing adequate reparation. On the one side of the spectrum, there is the approach of the icj, which has expressed a preference for “remanding” cases for reconsideration to domestic courts, deeming this to be the best way of remedying procedural irregularities occurring in the domestic adjudicative process. In the cases before the Court, the irregularities thus far considered concerned breaches of procedural provisions laid out in the Vienna Convention on Consular Relations (vccr), which had happened to occur in the context of criminal trials involving foreign nationals. While it was in the LaGrand case that the Court already indicated that reconsideration was the most appropriate way of dealing with procedural wrongs,90 it was in the Avena case that the Court provided the relevant context for its approach, while also ordering reconsideration as a means of reparation. In the circumstances of the Avena case, the Court took the view that 88 89 90

Saipem, supra note 37, paras. 202–​204. Philip Morris International, supra note 7, para. 575. LaGrand (Germany v. United States of America), Judgment, [2001] icj Rep 514, para. 125.

To Speculate or Not?

287

the internationally wrongful acts consisted in the failure of the United States authorities to inform the Mexican nationals involved in domestic criminal proceedings of their rights under the vccr, to notify Mexican consular posts, and to enable Mexico to provide consular assistance, as prescribed by Article 36 vccr. The Court reasoned that in those circumstances, it were not the convictions and sentences of Mexican nationals that were to be regarded as a violation of international law, but rather the breaches of the procedural obligations under the vccr that preceded them.91 According the Court, however, the question of whether those breaches “in the causal sequence of events” ultimately led to the convictions and severe penalties of Mexican nationals was not for itself to decide, but formed “an integral part of criminal proceedings before the courts of the United States” and was “for them to determine in the process of review and reconsideration.”92 Specifically, it was “for the courts of the United States to examine the facts, and in particular the prejudice and its causes, taking account of the violation of the rights set forth in the Convention.”93 The Court reiterated these considerations and followed the same approach in the Jadhav case.94 A similar approach can be observed in the practice of the European Court of Human Rights in awarding just satisfaction for violations of the fair trial guarantees under Article 6 of the European Convention on Human Rights (echr). Beginning with its judgment in the Piersack v. Belgium case, the Court has gradually come to consider a retrial or reopening of proceedings to represent, as a matter of principle, a measure that is as close to restitutio in integrum as possible.95 At the same time, the Court has reiterated that the specific remedial 91 Avena case, supra note 31, para. 123. 92 Ibid., para. 122. 93 Ibid. 94 Jadhav case, supra note 31, para. 138. 95 Case of Piersack, supra note 35, para.11. The ECtHR has held such a remedy to be appropriate as a means of redressing the domestic courts’ lack of independence and impartiality (see eg Gençel v. Turkey, Judgment (Merits and Just Satisfaction) of 23 October 2003, para. 27; Tahir Duran v. Turkey, Judgment (Merits and Just Satisfaction) of 29 January 2004, para. 23; or Ceylan v. Turkey (No. 2), Judgment (Merits and Just Satisfaction) of 11 October 2005, para. 38), impairments of an applicant’s right of access to court (eg Case of Cudak v. Lithuania, Judgment (Merits and Just Satisfaction) of 23 March 2010, para. 79), as well as instances where due process violations give rise to unfair trials (see eg Case of Somogyi v. Italy, Judgment (Merits and Just Satisfaction), 18 May 2004, para. 86; Case of Bracci v. Italy, Judgment (Merits and Just Satisfaction) of 13 October 2005, para. 75; or Case of Sejdovic v. Italy, Judgment (Merits and Just Satisfaction), 1 March 2006, para. 127). The Court’s Grand Chamber endorsed the general approach in the Case of Öcalan, supra note 35, para. 210. The Court’s growing preference for the remedy of retrial has followed Recommendation No. R(2000)2 of the Committee of Ministers “on the re-​examination or

288 Prislan measures must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment.96 Though considering in some cases that a finding of a violation itself constitutes sufficient just satisfaction,97 the Court often found it appropriate to award financial compensation for the fact that applicants had been deprived of the benefit of fair trial guarantees. Yet, the Court was generally ill-​disposed towards awarding compensation for pecuniary (material) damage resulting from defective judicial procedures. As the Court would frequently reiterate, it was not in the position to “speculate” as to the outcome of the domestic adjudicative process had the violation of the fair trial guarantees not occurred. The presence of such violations did not thus imply that criminal convictions were ill-​founded, or that criminal trials could have resulted in a different sentence.98 Nor did it imply that applicants would otherwise have succeeded in their adjudication of civil law claims,99 or in their administrative challenges of adverse regulatory measures.100 Instead, the Court deemed it more appropriate to award reopening of certain cases at domestic level following judgments of the European Court of Human Rights”, adopted on 19 January 2000, and available at . 96 Case of Öcalan, supra note 35, para. 210. 97 See eg Case of Somogyi, supra note 95, para. 85; Case of Malhous v. The Czech Republic, Judgment (Merits and Just Satisfaction) of 12 July 2001, para.71; or Case of Dvorski v. Croatia, Judgment (Merits and Just Satisfaction) of 20 October 2015, para. 117. 98 See eg Case of Colozza v. Italy, Judgment (Merits and Just Satisfaction) of 12 February 1985, para. 38; Case of Van Geyseghem v. Belgium, Judgment (Merits and Just Satisfaction) of 21 January 1999, para. 40; Case of Pélissier and Sassi v. France, Judgment (Merits and Just Satisfaction) of 25 March 1999, para. 80; Case of Sürek v. Turkey (No. 1), Judgment (Merits and Just Satisfaction) of 8 July 1999, para. 81; Case of Meftah and Others v. France, Judgment (Merits and Just Satisfaction) of 26 July 2002, para. 56; Case of Somogyi, supra note 95, paras. 82–​83; Case of Jalloh v. Germany, Judgment (Merits and Just Satisfaction) of 11 July 2006, para. 128; or Case of Dvorski, supra note 97, para. 117. See also Case of Svinarenko and Slyadnev v. Russia, Judgment (Merits and Just Satisfaction) of 17 July 2014, para. 149, rejecting compensation for consequential loses allegedly resulting from excessive length of criminal proceedings. 99 See eg Case of Incal v. Turkey, Judgment (Merits and Just Satisfaction) of 9 June 1998, para. 82; Case of Osman v. The United Kingdom, Judgment (Merits and Just Satisfaction) of 28 October 1998, para. 164; Case of Comingersoll S.A. v. Portugal, Judgment (Merits and Just Satisfaction) of 06 April 2000, para. 30; Case of Malhous, supra note 97, para. 68; Case of Martinie v. France, Judgment (Merits and Just Satisfaction) of 12 April 2006, para. 59; Case of Cudak, supra note 95, para. 79; Case of Sabeh El Leil v. France, Judgment (Merits and Just Satisfaction) of 29 June 2011, para. 72; or Case of Lupeni Greek Catholic Parish and Others v. Romania, Judgment (Merits and Just Satisfaction) of 29 November 2016, para. 181. 100 See e.g. Case of Tre Traktörer Aktiebolag v. Sweden, Judgment of 7 July 1989, para. 66; Case of Fredin v. Sweden (No. 1), Judgment of 18 February 1991, para. 65; Case of Credit and Industrial Bank v. The Czech Republic, Judgment of 21 October 2003, paras. 87–​88;

To Speculate or Not?

289

compensation for non-​pecuniary damage related to the fact that applicants had been “deprived of a real opportunity”.101 Since, in the Court’s view, the loss of such opportunity was not an element of damage that could lend itself to a process of calculation,102 the Court has been awarding indemnities on an equitable basis.103 The Court’s approach is largely in line with its understanding that it is not a “fourth instance” of appeal that could substitute itself for the domestic courts and that, in the absence of powers to intervene directly in the legal systems of the Contracting States, it must respect the latter’s autonomy.104 In awarding compensation for injuries related to the loss of chance itself, the ECtHR’s approach differs from that of the icj, which has generally considered a retrial to provide sufficient possibility to make good procedural defects in the domestic adjudicative process. At the same time, it aligns with the practice of certain pre-​w wii claims commissions, which likewise awarded compensation for the procedural impropriety itself, and not for the consequential losses resulting from judicial misconduct. Just as the judges on the ECtHR, the commissioners dealing with denial of justice claims in cases such as Chattin and Roberts were ill-​disposed –​and in fact, considered it not to be their proper task –​to re-​examine whether or not the accused were indeed guilty of the crime and whether a different judicial outcome would have been possible in the absence of procedural irregularities.105 In calculating the amount of compensation, the commissioners did not proceed on the premise that, had the irregularity not occurred, the accused would have been acquitted; the compensation was instead awarded for the procedural impropriety itself, such as an inordinately long pre-​trial detention.106

101 102 103 104 105 106

Case of Capital Bank ad v. Bulgaria, Judgment of 24 February 2006, para. 144; or Case of Kingsley v. The United Kingdom, Judgment (Merits and Just Satisfaction), of 28 May 2002, paras. 42–​43. See eg Case of Cudak, supra note 95, para 79; Case of Pélissier and Sassi, supra note 98, para. 80; as well as Case of Kingsley, supra note 100, para. 43 (referring to the loss of “procedural opportunity”). Case of Colozza, supra note 98, para. 38; Case of Pélissier and Sassi, supra note 98, para. 80; or Case of Cudak, supra note 95, para 79. Case of Jalloh, supra note 98, para. 130; Case of Lupeni Greek Catholic Parish and Others, supra note 99, para. 183; Case of Sabeh El Leil, supra note 99, para. 72; Case of Incal, supra note 99, para. 82; or Case of Cudak, supra note 95, para. 79. See e.g. Kemmache v. France (No. 3), Judgment of 24 November 1994, para. 44; or Nejdet Şahin and Perihan Şahin v. Turkey, Judgment of 20 October 2011, para, 88. B.E Chattin (U.S.A) v. United Mexican States, Award, 23 July 1927, iv unriaa 282, at paras. 24–​26; or Harry Roberts (U.S.A) v. United Mexican States, Award, 2 November 1926, iv unriaa 77, para. 7. Chattin case, ibid., para. 30; and Roberts case, ibid., para. 7.

290 Prislan Awarding compensation for the loss of chance to obtain a regular judgment might appear an elegant way to avoid speculating how a different decisionmaker would have adjudicated in the ideal circumstances. But it remains a discretionary exercise. The compensation awarded by the claims commissions, as well as by the ECtHR have not been based on any pre-​existing formulas, but calculated on an equitable basis.107 This may make the approach less appealing in other contexts. In investment arbitration, for example, calculating compensation exclusively on the basis of equitable considerations is not an accepted practice.108 It is precisely in the context of investment arbitration that one does find also an alternative solution to the problem of speculation: that of expressly refusing to conjecture on a procedurally-​proper outcome, presuming instead that no adverse judgment would have been rendered against the injured party. One can find this approach in Amco v. Indonesia. In the circumstances of that case, the Tribunal found that the revocation of the investor’s license amounted to a denial of justice, since it occurred through an administrative procedure tainted by grave irregularities.109 Indonesia maintained that the damage was caused to the investor, not by the procedural irregularities or the revocation of the license, but rather by the investor’s own wrongful actions which entitled the administrative organ to terminate the license.110 In determining damages, the Tribunal however expressly refused to construe a law-​compliant counterfactual. The Tribunal reasoned: To argue, as did Indonesia, that although there had been procedural irregularities, a ‘fair bkpm’ would still have revoked the licence, because of Amco’s own shortcomings, is to misaddress causality. The Tribunal cannot pronounce upon what a ‘fair bkpm’ would have done. This is both speculative, and not the issue before it. Rather, it is required to characterise the acts that bkpm did engage in and to see if those acts, if unlawful, caused damage to Amco. It is not required to see if, had it acted fairly, harm might then have rather been attributed to Amco’s own fault.111

107 On the unclear process of calculation of damages by the ECtHR, see in particular V Fikfak, ‘Non-​pecuniary damages before the European Court of Human Rights: Forget the victim; it’s all about the state’ (2020) 33 LJIL 335, at 336ff. 108 See Waelde and Sabahi, supra note 48, 1104ff. 109 Amco Asia Corporation and others v Republic of Indonesia (Award in Resubmitted Proceeding)(icsid Case No arb/​81/​1, 31 March 1990), paras. 70ff. 110 Ibid., para. 173. 111 Ibid., para. 174.

To Speculate or Not?

291

In calculating damages, the arbitrators presumed that, even in the absence of denial of justice, claimants’ ex ante juridical position would have remained unaltered and thus awarded compensation for the damages resulting from the licence’s revocation.112 One may of course wonder whether the Amco precedent really constitutes good law, given that the arbitrators seem to have conflated the question of the existence of a breach with the question of damages. Furthermore, the case itself is, strictly speaking, not one arising out of judicial misconduct, but one concerning a denial of justice incurred in administrative proceedings. Nevertheless, Amco does remain of interest as it illustrates a path that tribunals could be tempted to follow in awarding damages for injuries arising out of due process violations. Some commentators namely interpret the case as one possibly endorsing the concept of deterrence.113 By refusing to engage in speculations on alternative outcomes, the adjudicator is then simply attaching a price to the procedural irregularity itself. However, there is little support for such an approach in the contemporary Law of State Responsibility, which does not recognize the awarding of punitive damages.114 Compensation must correspond to the financially assessable damage suffered as a result of the injury. And in the case of defects in the process of adjudication, the injury lies in the loss of opportunity. 4.2.4 To Speculate or Not –​An Institutional Issue? As the foregoing discussion has demonstrated, a variety of options are thus available to international adjudicators in determining adequate reparations for procedural defects in the domestic adjudicative process. The option of “remanding” cases for reconsideration is one that accords greatest deference to domestic judicial systems. But it also one that commands considerable trust on the part of international adjudicators that their domestic counterparts will live up to the State’s international obligations when provided with a “second chance”. The practice of stepping into the shoes of domestic courts is, in contrast, much more intrusive and also prone to prompting questions of legitimacy. Is it really for international adjudicators to re-​adjudicate matters that were already considered by domestic courts? And if that is the case, how are adjudicators to actually emulate the domestic adjudicative process? These questions are beyond the scope of the present contribution. 1 12 Ibid., para. 170ff. 113 See in particular Paulsson, supra note 3, 225. 114 See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, supra note 11, at 99, para. 4.

292 Prislan Ultimately, the choice of an appropriate remedy may depend also on institutional constraints. It is not surprising that the practice of remanding cases for reconsideration has thus far only been followed by permanent international courts. In the context of arbitration, where the ad hoc nature of the dispute settlement process prevents sustained and meaningful interactions between domestic courts and international arbitrators, preference will more expectedly be given to one-​off solutions, the implementation of which does not require institutional supervision. Furthermore, where the primary purpose of the dispute settlement mechanism will be to remedy past wrongs by providing full financial compensation, as in the case of investment arbitration, one can expect adjudicators to do everything it takes to wipe out the consequences of the wrongful act –​including, if necessary, to step into the shoes of domestic courts. The problem, however, is that investment arbitrators cannot be considered solely as dispute settlers in the narrow sense. They are also bodies exercising public authority over States subject to their jurisdiction. As such, they cannot be oblivious about the question of their own democratic legitimacy and the relationship between their adjudicatory practices and domestic levels of decision-​making. Stepping into the shoes of domestic courts requires at any rate that appropriate deference is accorded to domestic judicial bodies, including through appropriately defined standards of review, or else investment tribunals run the risk of becoming a supranational instance of appeal.115 5

Conclusions

International courts and tribunals have been providing various forms of redress for wrongs occasioned by the domestic judiciary. Awards of compensation for damage suffered, orders of annulment of impugned judicial decisions, and even demands for reconsideration were among the most common forms of reparations granted by international adjudicators. The jurisprudence on judicial wrongs remains diverse. What makes judicial wrongs different from other types of injuries is that, in the process of determining the appropriate measure of reparation, international adjudicators may be required to step into the shoes of domestic courts –​that is, to speculate how law-​compliant courts would have decided the underlying case. This is not a task that international adjudicators were willing to take upon themselves with great a readiness. And 115 On this, see further A von Staden, ‘The democratic legitimacy of judicial review beyond the state: Normative subsidiarity and judicial standards of review’ (2012) 10 International Journal of Constitutional Law 1023.

To Speculate or Not?

293

probably rightly so: the legitimacy of international courts and tribunals also depends on how the substance of their decision-​making relates to decision-​ making at the domestic level. While it is not inconceivable for States to delegate to international adjudicators wide-​ranging decision-​making authority, stepping into the shoes of domestic courts necessitates proper justification, which international adjudicators may not always be able to provide. To speculate or not? Rather not, is probably the answer. However, as Nico Schrijver was surely able to note during his expert involvement in investment arbitrations, speculation may sometimes be unavoidable.

­c hapter 15

Human Rights Law and the Return of Stolen Assets Cecily Rose 1 Introduction* I remember well the summer in Cambridge when I first discovered Nico Schrijver’s book, Sovereignty over Natural Resources.1 I can practically recall pulling it off the library shelf with the satisfaction of having found such a wealth of knowledge about the topic I was researching at the time. I had the pleasure of returning to his book just a couple months ago, while researching the relationship between human rights law and the recovery of stolen assets, including public funds deriving from natural wealth and resources. I accessed Nico’s book online this time (and in the midst the pandemic), which was less satisfying than pulling it off the library shelf, though equally useful. The invitation to contribute a chapter to this Liber Amicorum has led me to reflect on the link between Nico’s work and my own research. Since the seed of my interest in corruption as a development issue was planted during the time I spent working in Sierra Leone, I have continued to return to the subject of corruption and human rights, sometimes with skepticism, and at other times with hope.2 Nico’s work, both an academic and as a member of the Committee on Economic, Social and Cultural Rights, has highlighted the importance and the promise of a human rights approach to development issues like corruption. This chapter explores the promise of a human rights approach to the recovery of stolen assets, which remains one of most challenging and contentious subjects in the anti-​corruption field. The last several decades are unfortunately replete with examples of government officials in developing * Cecily Rose is Assistant Professor, Grotius Centre for International Legal Studies, Leiden Law School. The research that informs this chapter was originally carried out by the author in her capacity as a Senior Consultant, United Nations Office of the High Commissioner for Human Rights. The opinions expressed in this piece are attributable to the author alone. 1 Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997). 2 Cecily Rose, ‘The Limitations of a Human Rights Approach to Corruption’ (2016) 65 International & Comparative Law Quarterly 405; United Nations Office of the High Commissioner for Human Rights, Draft Framework on a Human Rights Framework for Asset Recovery.

© Koninklijke Brill NV, Leiden, 2021 | D

Human Rights Law and the Return of Stolen Assets

295

countries embezzling or misappropriating public funds and hiding them abroad through shell companies and foreign bank accounts.3 An infamous, contemporary example involves Malaysia’s state-​owned investment fund, 1 Malaysia Development Berhad (1mdb). Between approximately 2009 and 2015, more than US $4.5 billion was misappropriated from 1mdb and then laundered through financial institutions in a number of foreign jurisdictions, namely the United States, Switzerland, Singapore and Luxembourg.4 The perpetrators were Malaysian government officials, including the former Prime Minister Najib Razak, as well as private businessmen connected to them.5 This scandal involved the misappropriation of public funds that were intended for promoting development in Malaysia, but were instead used for the purchase of high-​end real estate abroad, luxury items (e.g. a yacht, jet airplane, and artwork) as well as the financing of the 2013 film The Wolf of Wall Street. The legal consequences of this scandal will continue to unfold in Malaysia and in foreign jurisdictions for years to come. Noteworthy recent developments include the return by the United States of US $300 million to Malaysia in April 2020. The announcement by the United States Department of Justice gives no indication, however, of how the repatriated funds will be used and whether their use will be monitored.6 The 1mdb case is just one of many examples of corrupt conduct that negatively impacts the enjoyment of human rights, including social, economic and cultural rights, civil and political rights, and the right to development. The embezzlement or misappropriation of public property reduces public funds available for the fulfilment of the rights to education, health, as well as the right to a fair trial, to give just a few examples. When millions or billions in 3 For a historical example, see Michela Wrong, In the Footsteps of Mr Kurtz: Living on the Brink of Disaster in Mobutu’s Congo (Harper Collins 2002). For an overview of stolen asset cases involving Switzerland as the haven state, see Swiss Federal Department of Foreign Affairs, ‘No Dirty Money: The Swiss Experience in Returning Illicit Assets’ (2018) (discussing embezzlement or misappropriation by Jean-​Claude Duvalier (Haiti); Sani Abacha (Nigeria); and Vladimiro Montesinos (Peru); Ferdinand Marcos (Philippines), among others). 4 Stolen Asset Recovery Initiative, Asset Recovery Watch, Case No. arw-​254, 1 Malaysia Development Berhad (United States) (last updated 20 September 2019) . 5 On 28 July 2020, the former Prime Minister Najob Razak was convicted of abuse of power, breach of trust and money laundering. Richard C. Paddock, ‘Najib Razak, Malaysia’s Former Prime Minister, Found Guilty in Graft Trial’, The New York Times, 28 July 2020. 6 United States Department of Justice, ‘U.S. Repatriates $300 Million to Malaysia in Proceeds of Funds Misappropriated from 1MDB Investment Fund’ (14 April 2020) .

296 Rose government funds disappear abroad as a result of corruption, the capacity of the state to fulfill its human rights obligations necessarily suffers. In the best-​ case scenario, such stolen funds are subject to asset recovery, a term which refers to the process by which proceeds of corruption are traced, frozen, confiscated, and then finally returned by the ‘haven state’ to the ‘state of origin’ for final disposal. This chapter focuses on the last stage of this process, namely the point at which the haven state returns recovered funds to the state of origin (or some other entity), which then disposes of the funds. The return and disposal of stolen assets is contentious in part because of a long-​standing debate about whether haven states may impose conditions on the return of the stolen assets.7 This question arises, in particular, where concerns exist about the potential for returned assets to be embezzled or misappropriated once again by government officials in the state of origin. These concerns are especially acute with respect to states of origin that have high levels of corruption, lack freedom of the press and an independent civil society, and which are still ruled by the same regime under which the assets were originally stolen.8 In recent years some scholars have gone so far as to argue that in such circumstances the haven state, or even private litigators, should simply keep all or part of the confiscated assets.9 According to this school of thought, such a system would incentivize asset recovery, which is a difficult and costly process, and the confiscation itself would still serve the goal of depriving the criminal of his or her illicit proceeds, and thereby possibly deterring future theft. In other words, even if little or no money is returned to the state of origin, the goals of deterrence and accountability are served by the confiscation of proceeds of corruption. This chapter seeks to show that this line of argumentation is questionable or flawed from the perspectives of both international anti-​ corruption law, and human rights law.10 Such arguments overlook, or ignore entirely, the human rights obligations of states, as they relate to corruption and asset recovery.

7 8 9

10

See e.g. Robert Packer, ‘Is It Lawful under UNCAC to Attach Conditions to Asset Returns?’ The Global Anticorruption Blog, 25 February 2016. Richard Messick, ‘When Should Governments Keep Stolen Assets?’ The Global Anticorruption Blog, 30 March 2016. J.C. Sharman, The Despot’s Guide to Wealth Management: On the International Campaign against Grand Corruption (Cornell University Press 2017) pp194-​199; Anton Moiseienko, ‘The Ownership of Confiscated Proceeds of Corruption under the UN Convention against Corruption’ (2018) 67 International & Comparative Law Quarterly 669. While the policy implications of this line of argumentation are also untenable, this discussion lies beyond the scope of this chapter.

Human Rights Law and the Return of Stolen Assets

297

While this short chapter cannot resolve this rather intractable controversy, it can provide another, human rights perspective on this debate, which has been largely confined to anti-​corruption circles. This piece begins in Part 2 by setting out the international legal framework governing stolen asset recovery, in particular the relevant provisions of the 2003 United Nations Convention against Corruption (uncac).11 Part 3 examines the debate about the return of stolen assets from the perspective of human rights law, with a focus on the International Covenant on Economic, Social and Cultural Rights. 2

The International Legal Framework Governing the Return of Stolen Assets

Asset recovery was one of the most important and controversial issues during the negotiation of the UN Convention against Corruption between 2000 and 2003. On the one hand, developing countries stressed the need for treaty provisions that would require the prompt return of stolen assets to their country of origin, without ‘political conditionalities’ or the sharing of assets among states involved in the recovery process.12 Developing states opposed efforts by returning states to require the use of repatriated funds for specific purposes, or to monitor their use.13 Such conditions were characterized by developing states as detrimental to their sovereignty and as interventions in their internal affairs.14 They were also ‘insulted’ by attempts by haven states to seek a role in monitoring the use of repatriated funds, given that financial institutions in those haven states had facilitated the laundering of public funds in the first place.15 On the other hand, developed countries were concerned about the unconditional return of stolen assets, especially to highly corrupt countries.16

11 12

13 14 15 16

United Nations Convention against Corruption (adopted 9 December 2003, entered into force 14 December 2005) 2349 unts 41 (UNCAC). Ad Hoc Committee for the Negotiation of a Convention against Corruption, Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption on its sixth session, held in Vienna from 21 July to 8 August 2003, A/​a c.261/​22 (22 August 2003) paras. 10–​12. Phil Mason, ‘Twenty Years with Anti-​Corruption, Part 6, The End Game: Asset Recovery and Return: An Unfinished Agenda’, U4 Practitioner Experience Note 2020:6 (Chr. Michelsen Institute) p4. Dimitri Vlassis and Dorothee Gottwald, ‘Implementing the Asset Recovery Provisions on the UNCAC’ in Mark Pieth (ed) Recovering Stolen Assets (Peter Lang 2008) pp366-​367. Mason (n 13) p4. Ibid. p5.

298 Rose They supported the use of returned funds for development purposes, as well as procedural safeguards to ensure that returned funds were indeed put to good use.17 The negotiation of uncac’s chapter on asset recovery was also informed partly by the asset recovery provision contained in the 2000 United Nations Convention against Transnational Organized Crime (untoc).18 untoc provides that the disposal of confiscated proceeds of crime or property is governed by the domestic law of the confiscating state, and is thus left to its discretion.19 untoc also expressly permits asset sharing, meaning the distribution of confiscated proceeds or property among the states that were involved in the mutual legal assistance process.20 In limited circumstances, however, the state that has confiscated proceeds or property must give priority consideration to returning the proceeds or property to the requesting state for the purpose of compensating victims or returning the proceeds or property to legitimate owners. Such priority consideration is required only where permitted by domestic law and when specifically requested by another state party. uncac’s approach to asset recovery represents a clear departure from untoc, which is notable in light of the fact that the drafters of uncac otherwise replicated many of untoc’s substantive and procedural provisions. But a departure from untoc’s approach was necessary given that the proceeds or property derived from organized crime are not comparable to the proceeds derived from the embezzlement or misappropriation of public funds. Ordinarily, the proceeds of organized crime cannot be characterized as the property of the state in which they originated, whereas the state whose public funds have been embezzled or misappropriated does indeed have an ownership claim over those funds. In a departure from untoc, Article 57 of uncac therefore recognizes that states of origin (or ‘requesting states’ in the context of mutual legal assistance) have an ownership claim to certain assets confiscated in haven states (or ‘requested states’). Where an ownership claim exists, uncac imposes an unqualified obligation on requested states to return the

17 Ibid. 18 United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 29 September 2003) 2225 unts 209 (untoc). The negotiation of untoc gave rise to the decision by UN member states to negotiate a separate treaty on corruption, which would take the form of uncac. 19 untoc Art. 14(1). J.D. McClean, Transnational Organized Crime: A Commentary on the UN Convention and its Protocols (Oxford University Press 2007) pp160-​162. 20 untoc Art. 14(3)(b).

Human Rights Law and the Return of Stolen Assets

299

confiscated property to the requesting state, but only under certain limited circumstances, which will be explained in full below. According to Article 57, a requesting state has an ownership claim over its public funds that were embezzled or subject to money laundering.21 In addition, a requesting state can establish its prior ownership of confiscated property that derives from other forms of corruption, such as bribery, but only where the requesting state can ‘reasonably establish its prior ownership’.22 Where an ownership claim exists or can be established by the requesting state, the requested state party must return the confiscated property to the requesting state party, but only in certain circumstances. These circumstances exist ‘when confiscation was executed in accordance with Article 55 [on confiscation through international cooperation] and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party’.23 In situations where these circumstances do not exist, then the requested state does not have an obligation to return the confiscated property to the requesting state party, even where an ownership claim exists. Instead, the requested state party only has a duty to ‘give priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of crime’.24 Finally, Article 57 stipulates that states parties may conclude ad hoc agreements or arrangements for the final disposal of confiscated property. Such ad hoc agreements are possible regardless of whether the requesting state is entitled to the return of property confiscated in another state. In other words, ad hoc agreements or arrangements are always an option, regardless of whether the requesting state has an ownership claim over the confiscated property, or whether the confiscation was in accordance with Article 55 and on the basis of a final judgment. In practice, such agreements take the form of memoranda of understanding, as opposed to treaties, between the requested and requesting state, and they appear to be relatively common, if frequently inaccessible (many remain unpublished, which represents a significant transparency problem in the context of asset recovery). While Article 57 of uncac requires requested states to return confiscated property to requesting states, this obligation has a very limited scope of application. First, the obligation to return has a narrow scope because it typically applies only to proceeds derived from one particular form of corruption: the 21 22 23 24

uncac Arts. 57(3)(a); Arts. 17 (embezzlement) and 23 (money laundering). uncac Art. 57(3)(b). uncac Art. 57(3)(a), (b). uncac Art. 57(3)(c).

300 Rose embezzlement of public property.25 While Article 57 allows requesting states to establish an ownership claim over confiscated assets derived from bribery, or other forms of corruption (e.g. trading in influence or abuse of functions),26 in reality ownership claims in such instances will be rare. Proceeds derived from bribery, for example, represent an undue advantage illegally paid by a private actor to a government official.27 Such funds have their origins in the private sector, not in the coffers of the requesting state. Requesting states may be able to establish a claim for compensation for damage resulting from acts of bribery, but they are typically unable to claim ownership of the proceeds derived from bribery.28 Second, the duty to return confiscated property to requesting states has a narrow scope because it does not cover situations involving purely domestic asset recovery. If a haven state confiscates property through domestic asset recovery procedures29 that are not accompanied by a formal request for international cooperation by the state of origin under Article 55, then Article 57 does not apply.30 In other words, the state of origin must proactively request the return of confiscated property in order for Article 57 to apply. This limitation on the scope of Article 57 is significant because, historically speaking, developing countries have often lacked the technical capacity or political will necessary to successfully engage in international cooperation for the purpose of asset recovery.31 Finally, the duty to return confiscated property to requested states is narrow because of the need for a final judgment, which may not exist where, for example, the courts of the state of origin have not (yet) issued a final judgment or because only administrative action has been taken in the state of origin.32 In debates about the (un)conditional return of stolen assets, the narrowness of the obligation set out in Article 57 often seems to be underemphasized.33 25

United Nations Office on Drugs and Crime, ‘Legislative Guide for the Implementation of the United Nations Convention against Corruption’ (Second revised ed. 2012) pp225, 227. 26 uncac Arts. 18, 19. 27 uncac Arts. 15, 16. 28 Ibid. 29 See uncac Art. 31 on freezing, seizure and confiscation. 30 Pinar Ölçer, ‘Article 57: Return and Disposal of Assets’ in Cecily Rose, Michael Kubiciel and Oliver Landwehr (eds.) The United Nations Convention against Corruption: A Commentary (Oxford University Press 2019) pp577-​578. 31 See e.g. the examples of the Democratic Republic of Congo and Haiti. Swiss Federal Department of Foreign Affairs, ‘No Dirty Money: The Swiss Experience in Returning Illicit Assets’ (2018) 13–​14, 16–​17. 32 Ölçer (n 30) p572. 33 Moiseienko (n 9) 672.

Human Rights Law and the Return of Stolen Assets

301

Because many situations of asset recovery are not governed by Article 57’s mandatory provisions, policy considerations, as well as human rights law, have important roles to play in guiding this process. Due to its narrow scope, Article 57 must be viewed as a limited achievement, despite the Convention’s pronouncement that the return of assets is a fundamental principle of the Convention.34 Where states are not obliged to return assets under Article 57, their discretion is constrained insofar as they must give priority consideration to one of three possible recipients: the requesting state party; the prior legitimate owners of the confiscated assets; or the victims of the crime.35 But state parties need only consider giving priority consideration to one of these three possible recipients; they are not bound to return funds to these categories of recipients. In theory, then, in situations where haven states are not obliged to return confiscated assets under Article 57, uncac itself does not prohibit haven states from keeping the funds or unilaterally imposing conditions on the return of the assets. While this may be permissible in theory, in practice this is not only politically unwise, but also arguably in conflict with human rights law. In practice, a whole range of approaches to the return of assets can be observed and also subjected to critique. Where funds have been returned by requested states, they have been directed to the requesting state’s central budget, into a separate dedicated fund,36 or to a third party, such as a non-​ governmental organization.37 From an accountability perspective, the first option (direct transfer into the central budget of the requesting state) may be the least desirable alternative, especially in receiving states that do not manage their public finances in a manner that allows for the dispersal of the assets to be tracked. The other two options are potentially more amenable to ex ante mechanisms for tracking the use of returned funds.

34 35 36 37

uncac Art. 51. uncac Art. 57(3)(c). See e.g. fedadoi, a special national fund established in Peru for the return of assets in the Montesinos case. Switzerland and the United States reached an agreement with Kazakhstan which provided for the return of funds to the bota foundation in Kazakhstan, rather than to the government of Kazakhstan. Amended Memorandum of Understanding among the Governments of the United States of America, the Swiss Confederation, and the Republic of Kazakhstan (April 2008). See generally Gretta Fennder Zingernagel and Kodjo Attisso, ‘Returning Stolen Assets –​Learning from Past Practice: Selected Case Studies’ (International Centre for Asset Recovery 2013).

302 Rose 3

A Human Rights Perspective on the Return of Stolen Assets

The limitations of Article 57 have not gone unnoticed by states and by civil society, which, in recent years, have sought to fill the gaps left by Article 57’s narrow mandatory provisions. States and civil society, both jointly and separately, have formulated various sets of non-​binding instruments or documents on stolen asset recovery.38 In 2017, for example, the Global Forum on Asset Recovery (gfar) developed the gfar Principles for Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases. The gfar Principles, which were developed by states, international organizations and civil society, include normative statements about the importance of cooperation, in particular partnership, mutually agreed arrangements, and early dialogue between transferring and receiving countries.39 In addition, the gfar Principles call for accountability and transparency with respect to the return and disposition of recovered assets, as well as the inclusion of non-​government stakeholders, where appropriate and permitted by law.40 While these and other principles and guidelines on asset recovery certainly help to fill the gap left by Article 57, this chapter argues that human rights law also has an important role to play in framing decision-​making by states involved in asset recovery processes. In fact, human rights treaties provide a binding legal basis for many of the principles set out in these non-​binding instruments and documents. Article 57 must be understood in the context of the human rights obligations of the states parties to uncac. In keeping with the principle of the systemic integration of treaties, state parties’ obligations under uncac must be interpreted in light of their obligations under other relevant treaties,41 including international human rights treaties such as the International Covenant on Economic, Social and Cultural Rights (icescr) and the International Covenant

38

39 40 41

See e.g. Lausanne Guidelines for Efficient Recovery of Stolen Assets ; Global Forum on Asset Recovery (gfar), Principles for Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases; uncac Coalition Statement for the Global Forum on Asset Recovery; Civil Society for Accountable Asset Return; Transparency International France, ‘Le sort des biens mal acquis et autres avoirs illicites issus de la grande corruption’ (2017) pp14-​15 (ti France’s proposed 5 key principles that should govern the allocation of assets derived from grand corruption). See also United Kingdom, General Principles to Compensate Overseas Victims (including Affected States) in Bribery, Corruption and Economic Crime Cases. gfar Principles 1–​3. gfar Principles 4, 10. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 unts 331, Art. 31(3)(c) (vclt).

Human Rights Law and the Return of Stolen Assets

303

on Civil and Political Rights (iccpr).42 These instruments are of particular importance in this context because they are of nearly universal relevance, as they have been widely ratified by states. Nearly all of the 187 states parties to uncac are also parties to the iccpr (173 states parties) and the icescr (171 states parties). In situations where a requested state is not bound, under Article 57, to return funds to a requesting state or state of origin, it is not the case that the requested state is simply free to withhold all or a significant portion of the confiscated proceeds due to concerns, for example, about the rule of law or respect for fair trial rights in the state of origin. Requested states have a duty of cooperation under the icescr, and are therefore not at liberty to unilaterally impose conditions on requesting states or states of origin, or to refuse, outright, to return confiscated property. This means, in practice, that the duty to cooperate may come into tension with concerns about the enjoyment of human rights in the requesting state, which is, of course, bound by its own set of human rights obligations. Requesting states have obligations under the icescr to use recovered assets for the purpose of realizing human rights and under the iccpr to respect the fair trial rights of persons accused of corruption and to manage recovered funds in a transparent and participatory manner.43 The following focuses on the implications of the duty to provide international assistance and cooperation under Article 2 of the icescr, which provides that each state party to the Covenant: … undertakes to take steps, individually and through international assistance and co-​operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures (emphasis added).44 The embezzlement or misappropriation of public property is incompatible with this fundamental provision of the icescr. When public officials

42

43 44

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 933 unts 3 (icescr); International Covenant on Civil and Political Rights, (adopted 16 December 1966, entered into force 23 March 1976) 999 unts 171 (ICCPR). iccpr Art 14 (right to a fair trial); Art. 19 (including the right to seek and receive information); and iccpr Art. 25 (the right to participate in public affairs). icescr Art 2(1).

304 Rose embezzle or misappropriate public funds, this criminal conduct diminishes the public resources available for progressively achieving the social, economic and cultural rights set out in the Convention. The embezzlement of 1mdb funds, which was referenced in the introduction, is a clear example of corrupt conduct that resulted in the diversion of public funds that were intended for the fulfillment of Malaysia’s obligations under the Covenant. The phrase ‘international assistance and cooperation’ receives little attention in scholarship on the Covenant,45 but it has particular significance in the context of asset recovery, a process which depends on formal international cooperation, in the form of mutual legal assistance, as well as informal assistance and cooperation.46 Article 2(1) of the icescr is an obligation of conduct, which addresses the means by which states parties are required to achieve the goal of progressively realizing economic, social and cultural rights. Article 2(1) of the icescr may therefore be contrasted with the mandatory provisions of Article 57 of uncac, which impose an obligation of result, namely the return of confiscated property. In situations where haven states are not obliged, under Article 57 of uncac, to return confiscated property to the state of origin, all states involved are still obliged, under Article 2(1) icescr, to at least work towards that goal in good faith, so that states of origin can make maximal use of available resources. The duty to provide international assistance and cooperation generally entails negotiating in good faith, with a willingness to compromise. Neither the icescr nor other human rights instruments indicate what international assistance and cooperation specifically entails (i.e. what steps must be taken by states parties to provide assistance and cooperation).47 But in the asset recovery context, the technical, substantive content of the duty to provide international assistance

45 But see Tahmina Karimova, Human Rights and Development in International Law (Routledge 2016) pp129-​130. On international cooperation in international law generally, see Rüdiger Wolfrum, ‘International Law of Cooperation’, Max Planck Encyclopedia of Public International Law (Oxford University Press, last updated April 2010). 46 uncac Art. 46. 47 See e.g. United Nations Charter, Arts. 55–​56; Universal Declaration on Human Rights ga Res 217A(iii) (10 December 1948) Arts. 22, 28; Declaration on the Right to Development, Arts. 3(3), 4(2); Vienna Declaration and Programme of Action, UN Doc A/​c onf.157/​23 (25 June 1993) Arts. 1(2), 4, 10(4); Declaration on Principles of International Law, Friendly Relations and Co-​operation Among States in Accordance with the Charter of the United Nations, A/​r es/​2625(xxv) (24 October 1970) (Friendly Relations Declaration); Charter of Economic Rights and Duties of States, UN Doc A/​r es/​3281 (6 November 1974) Arts. 9, 17; Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) Arts. 4, 28(3).

Human Rights Law and the Return of Stolen Assets

305

and cooperation is effectively supplied by uncac’s extensive provisions on mutual legal assistance.48 The duty to provide international assistance and cooperation has a number of important implications in situations where Article 57 does not mandate the return of confiscated property to the requesting state. In such circumstances, the implications of Article 2(1) of the icescr extend to both requested and requesting states. The duty to provide international cooperation does not oblige requested states to return confiscated property to the state of origin, or to do so unconditionally. But requested states do have an obligation to work towards a mutually acceptable arrangement regarding the disposal of the confiscated property. This means, in practice, that requested states will fail to comply with the duty to cooperate where they insist, in an uncompromising manner, on certain conditions for the return of the assets. The duty to cooperate will also not be met where the requested state rejects or excludes the possibility, from the outset of negotiations, of returning the confiscated property to the requesting state. Likewise, requesting states will fail to comply with the duty to cooperate where they refuse to even consider putting in place procedural safeguards or accountability mechanisms to ensure that the returned funds will be used to further the realization of human rights. The duty to cooperate can be seen as supplementing Article 57(5) of uncac, which provides only that states parties may ‘give special consideration’ to concluding case-​by-​case agreements or arrangements for the final disposal of confiscated property. When coupled with the duty of cooperation under human rights law, states have a duty, not just an option, to try to reach such an agreement or arrangement. Neither treaty obliges states to return embezzled public property in all cases, but the icescr does require them to work towards that objective. The duty to provide international cooperation has further important implications for requesting states, which must make a reasonable, good faith attempt to provide the information necessary for the requested state to act on its request for mutual legal assistance. When, for example, a requesting state seeks to have assets restrained in a haven state, it must provide a statement of facts, a description of the actions requested, and ‘where available, a legally admissible copy of an order on which the request is based’.49 In Switzerland’s experience this has proved to be so problematic that its Foreign Illicit Assets Act now enables the Swiss government to provide states of origin with technical

48 49

uncac Arts. 46, Chapter v. uncac Art. 55(3)(c).

306 Rose assistance through legal training, legal advice, and even by seconding experts to the state of origin, to assist with the mutual legal assistance process.50 4

Conclusion

Some scholars have argued that because the asset recovery process is so costly, inefficient and risky (especially in states of origin that do not adhere to rule of law), haven states (or private actors) must be incentivized to engage in this process.51 In other words, haven states or private litigators should be permitted to retain some or all of the confiscated property in order to incentivize asset recovery in the first place. As the argument goes, even if confiscated property is not repatriated to states of origin, asset recovery will still have a deterrent effect, as corrupt actors will no longer be able to profit from their stolen wealth. While incentivizing asset recovery may indeed be an important practical problem that requires attention, from a human rights perspective, this line of argumentation is untenable. Article 2(1) of the icescr obliges haven states to provide international cooperation for the purpose of realizing economic, social and cultural rights. This means that haven states must, at the very least, work towards returning confiscated property to the state of origin so that it can make maximal use of its available resources. Scholarship that overlooks this point does not do justice to the human rights consequences of stolen assets. While human rights law provides an important legal backdrop for asset recovery, it admittedly does not solve the intractable cases, where, for example, requested and requesting states do not manage to reach any agreement about the use or monitoring of funds returned to states that do not adhere to the rule of law. The existing literature does not mention the possibility of requested and requesting states engaging mediators to resolve such impasses, but perhaps mediation could be a viable path towards ensuring responsible asset recovery in the future. In the meantime, human rights law can and should help to frame the debate about whether and how to return stolen assets. 50 Swiss fiaa Art. 11. 51 Sharman (n 9); Moiseienko (n 9).

­c hapter 16

Principles for the Sustainable Governance of Shared Natural Resources Nadia Sánchez Castillo-​Winckels Given that the land-​and the sea-​and the air-​spaces of the planet Earth are shared, and are not naturally distributed among the states of the world, and given that world-​transforming activities, especially economic activities, can have effects, directly or cumulatively, on large parts of the world environment, how can international law reconcile the inherent and fundamental independence of the states with the inherent and fundamental interdependence of the world environment?1

∵ 1 Introduction2 This chapter begins with a quote by Professor Philip Allott. He asks, ‘how can international law reconcile the inherent and fundamental independence of the states with the inherent and fundamental interdependence of the world environment?’ In his book Development without Destruction: the UN and Global Resource Management, Professor Nico Schrijver poses similar questions.3 In particular, he analyses the role of the UN system in ‘developing and consolidating universal values, principles of international law, and concepts of

1 P. Allott, Eunomia: A New Order for a New World (1990) 359, para. 17.52. 2 This chapter is based on the findings and conclusions of my doctoral dissertation titled Principles for the Sustainable Governance of Shared Natural Resources: A Principled Approach, concluded at Leiden University. I had the privilege of writing my dissertation under the supervision of Professor Nico Schrijver as principal supervisor. 3 N. Schrijver, Development without Destruction: The UN and Global Resource Management (2010) 5.

© Koninklijke Brill NV, Leiden, 2021 | D

308 

Sánchez Castillo-Winckels

international governance to promote sustainable development’.4 These are fundamental questions that point to the core of shared resource governance. This chapter reaches out to principles of international law in search for an answer to the question of how to reconcile state sovereignty with the interdependence of the global environment for inclusive sustainable development.5 Why principles? The role of principles has been described as ‘providing coherence and consistency to international environmental law; guiding governments in negotiating future international instruments; providing a framework for the interpretation and application of domestic environmental laws and policies; and assisting the integration of international environmental law with other international law fields’.6 Principles of general application, such as permanent sovereignty over natural resources, the responsibility not to cause transboundary environmental damage, and the principles of cooperation and sustainable development, ‘provide a framework that shapes the structure and development of international environmental law’.7 Principles ‘embody legal standards, but the standards they contain are more general than commitments and do not specify particular actions’.8 Principles may influence ‘the interpretation, application, and development of treaties in accordance with Article 31(3) of the 1969 of the Vienna Convention on the Law of Treaties’9 and derive their authority and legitimacy from the endorsement by states.10 Shared natural resources are regulated by resource-​specific legal regimes creating separate self-​contained rules. State practice through treaty bodies established for the governance of particular resources, such as those for the protection of the global climate system, is not necessarily coherent with state practice through bodies governing other resources –​as seen in the case of the international seabed and transboundary rivers. Fragmented regulation and 4 5

Ibid., at 1. The type of development envisioned by the 2030 Agenda for Sustainable Development is that it should not only be sustainable, but also inclusive. In the Agenda, states agree to foster peaceful, just and inclusive societies, declaring that this ‘is an agenda of the people, by the people and for the people –​and this, we believe, will ensure its success’. Transforming our world: the 2030 Agenda for Sustainable Development, UN Doc A/​r es/​ 70/​1, 21 October 2015 (‘2030 Agenda’), para. 52. 6 Final Report of the Expert Group Workshop on International Environmental Law Aiming at Sustainable Development, Washington DC, 30 September-​4 October 1996, UN Doc unep/​i el/​w s/​3/​2 (4 October 1996) Annex i para. 29. 7 P. Sands and J. Peel, Principles of International Environmental Law (2018) 392. 8 D. Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18 Yale Journal of International Law 501. 9 P. Birnie, A. Boyle and C. Redgwell, International Law & the Environment (2009) 28. 10 Ibid.

principles for shared resource governance

309

implementation does not signify absence of common governance challenges. Some challenges, such as reconciling the exercise of permanent sovereignty over natural resources (psnr) and the equitable use and conservation of shared resources as well as the participation of non-​state actors in governing processes, cut across resource-​specific governance systems. In a world facing transboundary as well as global environmental degradation with a fragmented system for shared resource governance, principles could offer a general framework to guide states in an integrated way regarding the equitable utilization and environmental protection of their shared resources, promoting coherence in state practice. An important terminological clarification is necessary before continuing. The term ‘shared natural resources’ refers in the narrow sense to resources shared by a limited number of states –​also known as transboundary resources–​ including international watercourses, aquifers, oil and gas reservoirs, and forests. In a wider sense, the term also includes global commons, such as biological diversity, the atmosphere and high seas fisheries.11 Transboundary resources form a single unit but are distributed over the territory of two or more states. Global resources are those beyond the limits of national jurisdiction. In this chapter, the term ‘shared natural resources’ is used in the broad sense referring to both transboundary and global resources. This terminological choice is based on two reasons. First, as mentioned above, shared resource governance presents challenges that are common to transboundary and global natural resources. Second, the ‘inherent and fundamental interdependence of the world environment’12 warrants searching for common solutions to common governance problems. In this regard, it has been submitted that fresh water ‘is no longer just an aggregated sum of local events, but rather it is becoming a resource of global concern and with potentially global implications’.13 The interdependence of the biosphere is becoming increasingly addressed in scholarly writings not only in the natural sciences but encouragingly also in the social sciences. This interdependence urges us to think in an integrated way and discuss environmental challenges comprehensively. Principles can facilitate such a thinking process and discussion. This chapter begins by presenting challenges common to the governance of transboundary waters, the atmosphere and the ocean global commons. Subsequently, it discusses how certain principles of international law could help address those challenges. Finally, the chapter addresses the interaction 11 Schrijver, supra note 3, at 5. 12 Allot, supra note 1. 13 E. Brown Weiss, International Law for a Water-​Scarce World (2013) 67.

310 

Sánchez Castillo-Winckels

between the principles and their role in promoting the sustainable governance of shared natural resources. 2

Governance Challenges

Shared natural resource governance presents challenges concerning whether and how certain principles of international law apply. It also presents challenges concerning the inclusion of non-​state actors in governing processes. Reconciling Sovereignty and the Equitable Use and Conservation of Shared Resources First and foremost, shared resource governance epitomizes the challenge of reconciling the exercise of psnr and the equitable use and conservation of resources that are shared by two or more states. In the context of transboundary aquifers, the main objections to the exercise of psnr are that it might discourage transboundary cooperation and be insufficient to protect the environment of shared freshwater resources.14 It has been argued that exercising psnr makes states less inclined to cooperate in determining their rights over shared waters because they perceive any interference with their rights over their natural resources as ‘an infringement of [their] sovereignty’.15 It has also

2.1

14 I have discussed this issue earlier in N. Sanchez Castillo ‘Differentiating between Sovereignty over Exclusive and Shared Resources in the Light of Future Discussions on the Law of Transboundary Aquifers’, (2015) 24 Review of European Comparative & International Environmental Law (RECIEL) 4. See also S. McCaffrey, ‘The International Law Commission Adopts Draft Articles on Transboundary Aquifers’, (2009) 103 American Journal of International Law 272, at 289; K Mechlem, ‘Past, Present and Future of the International Law of Transboundary Aquifers’, (2011) 13 International Community Law Review 209, at 219–​ 220; E. Brown Weiss, ‘The Evolution of International Water Law’, (2007) 331 Recueil de Cours 94; S.C. McCaffrey, The Law of International Watercourses (2007) 135–​147. 15 G.E. Eckstein, ‘Buried Treasure or Buried Hope? The Status of Mexico-​US Transboundary Aquifers under International Law’, (2011) 13 International Community Law Review 273, at 286 citing the Israeli/​Palestinian negotiations over the Jordan River and the Mountain Aquifer as an example in which negotiations over water rights hindered the development of cooperative water arrangements. See also M.J. Vick, ‘International Water Law and Sovereignty: A Discussion of the ILC Draft Articles on the Law of Transboundary Aquifers’, (2008) 21 Pacific McGeorge Global Business and Development Law Journal 191, at 213–​5. Vick suggests to transform Article 3 according to the principle of equitable apportionment as defined in 1907 by the United States Supreme Court in the Kansas v. Colorado case (also known as the ‘Arkansas River Disputes’). Here, the Court recognized the sovereign equality of each of the riparian states and the sovereign right of each state to assert jurisdiction over and regulate the use of their equitable share of the water contained in

principles for shared resource governance

311

been argued that although subject to the sic utere tuo ut alienum non laedas (‘use your own as not to harm that of another’) principle or ‘no-​harm’ rule, the theory of limited territorial sovereignty is insufficient to protect the environment of transboundary water resources.16 Limited territorial sovereignty would allow states to use (and abuse) the resource until the required threshold of significant harm to any of the other states concerned is reached and a resulting complaint is made by the affected state(s).17 Additionally, the no-​ harm rule seeks to balance conflicting sovereign rights and therefore focuses on the protection of states’ territorial interests rather than on the protection of the environment as such.18 This state-​centred approach to environmental protection would be contrary to the ecosystem-​centred approach necessary for the effective protection of the flora and fauna of international rivers per se –​that is, irrespective of whether harm is caused to other states.19 It has also been argued that psnr is no longer capable of providing ‘the primary basis for achieving and sustaining water security’ because its local character does not correlate with the global nature and interdependencies of the water cycle.20 Discussions on the International Law Commission (ilc)’s Draft Articles on the Law of Transboundary Aquifers (ilc Draft Articles)21 show that the recognition of psnr over transboundary aquifers is controversial and highly influenced by political concerns. States advocated including an explicit reference to the principle of psnr in the Draft Articles, ‘particularly [by] those delegations [at the unga] that are of the opinion that water resources belong to the States

16 17 18 19 20

21

transboundary aquifers. However, it determined that neither state had sovereignty over the water to the exclusion of the other. A. Tanzi and M. Arcari, The United Nations Convention on the Law of International Watercourses: A Framework for Sharing (2001) 19–​20. S.C. McCaffrey, ‘The Contribution of the UN Convention on the Law of the Non-​ navigational Uses of International Watercourses’, (2001) 1 International Journal of Global Environmental Issues 250, 254. J. Brunnée and S.J. Toope, ‘Environmental Security and Freshwater Resources: A Case for International Ecosystem Law’, (1994) 5 Yearbook of International Environmental Law 41, 53–​54. See also J. Brunnée and S.J. Toope, ‘Environmental Security and Freshwater Resources: Ecosystem Regime Building’, (1997) 91 American Journal of International Law 26, 37. D. Grey and D. Garrick, ‘Water Security, Perceptions and Politics: The Context for International Watercourse Negotiations’, in: L. Boisson de Chazournes, C. Leb and M. Tignino (eds.), International Law and Freshwater: The Multiple Challenges (2013) 37, 44–​45. Draft articles on the Law of Transboundary Aquifers, Report of the International Law Commission (ilc Report), Sixtieth session (2008) in Official Records of the General Assembly, Sixty-​third session, UN Doc. A/​63/​10, Supplement No. 10.

312 

Sánchez Castillo-Winckels

in which they are located and are subject to the exclusive sovereignty of those States’.22 Eventually, the preamble to the Draft Articles included express reference to unga Resolution 1803 (xvii) on psnr. 2.2 Legal Conceptualization of Common Interests and Concerns A second governance challenge concerns the legal conceptualization of the common interests and concerns that exist between states sharing natural resources. The legal conceptualization of these interests and concerns is insufficiently clear. In this regard, academic discussions as well as state practice on shared resources have centred on two principles: community of interests and common concern of humankind. However, the legal nature and consequences of these principles continue to be uncertain. Concerning the governance of transboundary waters, the legal nature of the principle of ‘community of interests’ and its role in the exercise of sovereignty over shared water resources remain unclear.23 It has been submitted that, in comparison with limited territorial sovereignty, community of interests has the advantage that it expresses more accurately both the relationship between riparian states and the normative consequences of the physical unity of shared watercourses, as well as that it implies collective or joint action.24 In addition, community of interests is based on territorial interdependence highlighting the interdependence of states and the fact they ‘cannot escape their membership in the community of riparian States because it is established by the nature of their territories’.25 The adoption of the ilc Draft Articles stirred up discussions in connection with the relationship between community of interests and limited territorial sovereignty. For instance, it was argued that ‘[t]‌he notion of “sovereignty” over the portion of shared freshwater resources situated in a state’s territory is incompatible with the principle of community of interests in those resources’.26 The reason for shared water resources being a ‘community of interests’ is ‘the exclusion of any preferential privilege of any one riparian State in relation to the others,’ which cannot be reconciled with 22 23 24 25 26

C. Yamada, Third Report on Shared Natural Resources: Transboundary Groundwaters, UN Doc. A/​c n.4/​551 (2005) para. 4. I have discussed this in depth in N. Sánchez Castillo, ‘Community of Interests: Furthering the Ecosystems Approach and the Rights of Riparian Populations’ (2015) 24 The Journal of International Water Law 62. S.C. McCaffrey, The law of international watercourses (2007) 165. This view is shared by O. McIntyre, Environmental Protection of International Watercourses (2007) 37. C. Leb, Cooperation in the Law of Transboundary Water Resources (2013) 52. S.C. McCaffrey, ‘The International Law Commission Adopts Draft Articles on the Law of Transboundary Aquifers’ (2009) 103 American Journal of International Law 272, 288.

principles for shared resource governance

313

the concept of sovereignty.27 In addition, recognising sovereignty over transboundary aquifers appears to be inconsistent with the principle of equitable and reasonable utilization, which ‘requires establishment of a “community of interests” approach, normally achieved by means of cooperative institutional machinery’.28 Furthermore, ‘the suggestion that water resources can be subject to a state’s sovereignty is contrary to the community of interests approach governing transboundary surface waters’.29 This second governance challenge is not limited to the sharing of freshwater resources. Concerning atmospheric governance, the legal conceptualization and consequences of the principle of ‘common concern of humankind’ continue to be uncertain. In 2015, the ilc removed from its Draft Guidelines on the Protection of the Atmosphere the concept that the degradation of atmospheric conditions is a ‘common concern of humankind’. The reason for the removal was that ‘the legal consequences of the concept of common concern of humankind remain unclear at the present stage of development of international law relating to the atmosphere’.30 Scholars also observe that the notion needs further conceptual elaboration.31 2.3 Inclusion of Non-​State Actors The third governance challenge concerns the inclusion of non-​state actors in governing processes relating to shared natural resources. With regard to the atmosphere, parties to the United Nations Framework Convention on Climate Change (unfccc) acknowledged the need to further enhance the effective engagement of observer organizations as the unfccc process moves towards implementation of the Paris Agreement. However, climate law does not stipulate how parties are to ensure effective observer participation. 27 28 29

30 31

Ibid. p. 289, quoting the River Oder case: Territorial Jurisdiction of the International Commission of the River Oder (United Kingdom, Czechoslovakia, Denmark, France, Germany, Sweden v. Poland) Judgment 1929 pcij, Series A No. 23, at 27. O. McIntyre, ‘International Water Resources Law and the International Law Commission Draft Articles on Transboundary Aquifers: A Missed Opportunity for Cross-​Fertilisation?’ (2011) 13 International Community Law Review 237, 249. G.E. Eckstein, ‘Managing Hidden Treasures Across Frontiers: The International Law of Transboundary Aquifers’, International Conference Transboundary Aquifers: Challenges and New Directions (isarm 2010) www.hispagua.cedex.es/​sites/​default/​files/​hispagua_​ documento/​documentacion/​documentos/​tesoros.pdf, 6. International Law Commission Report on the Work of its Sixty-​seventh Session, UN Doc. A/​70/​10 (2015) at 26–​27. I present this scholarly discussion in N. Sánchez Castillo-​Winckels, ‘Why “common concern of humankind” should return to the work of the International Law Commission on the atmosphere’, (2017) 29 Georgetown Environmental Law Review 131, 136.

314 

Sánchez Castillo-Winckels

Despite significant progress toward strengthening observer participation, challenges remain. For instance, unfccc parties close intergovernmental meetings to observers towards the end of each negotiation period, which has been criticized by many.32 Decisions on whether to open or close negotiations to observers are partly influenced ‘by standard operating practices, habits, and routines’33 and not necessarily because of high political stakes.34 It has been submitted that a large number of closed meetings could lead to unequal participation opportunities for non-​state actors, depending on their available resources, and to the further disenfranchisement of particular non-​ state actors.35 Concerning the ocean global commons, the existing conception of ocean commons governance primarily involves states and industry organizations and restricts access to civil society.36 It has been found that the high seas are ‘facing a cycle of declining ecosystem health and productivity’37 partly due to weak high seas governance in which ‘transparency, accountability and compliance-​ reporting are especially weak’,38 with ‘very little accountability at the global level’.39 Regional fisheries management organizations (rfmo s) –​the principal institutions entrusted with the conservation and management of high seas

32

I discuss this at length in N. Sánchez Castillo-​Winckels, ‘Observer participation in international climate change decision-​making: A complementary role for human rights?’, (2020) 31 Colorado Natural Resources, Energy, & Environmental Law Review 315, at 368–​9. See also S. Kravchenko, ‘Procedural Rights as a Crucial Tool to Combat Climate Change’ (2010) Georgia Journal of International and Comparative Law 613, 643–​4, referring to restricted access to observers and civil society during the last two-​days of cop 15 in Copenhagen; D.R. Fisher, ‘COP-​15 in Copenhagen: How the Merging of Movements Left Civil Society Out in the Cold’ (2010) 10 Global Environmental Politics 11, 14–​15; M. Doelle, ‘The Paris Agreement: Historic Breakthrough or High Stakes Experiment?’ (2016) 6 Climate Law 1, 7. 33 N. Nasiritousi and B. Linnér, ‘Open or closed meetings? Explaining nonstate actor involvement in the international climate change negotiations’ (2016) 16 International Environmental Agreements 127, 141. 34 Ibid, 140. 35 Ibid, 142. 36 I discuss this argument in ‘How the Sustainable Development Goals Promote a New Conception of Ocean Commons Governance’ published in D. French and L. Kotzé (eds.),Sustainable Development Goals: Law, Theory and Implementation(2018) 117–​146. 37 Global Ocean Commission, From Decline to Recovery: A Rescue Package for the Global Ocean (2014) www.some.ox.ac.uk/​research/​global-​ocean-​commission, 16. 38 Ibid. at 7, 16–​18. See also D. Bhomawat, ‘Shark-​finning: Damage to Global Commons’ (2016) Environmental Policy and Law 46, at 56, 61; S. Kopela, ‘Port-​State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’ (2016) Ocean Development and International Law 47, 89. 39 Ibid.

principles for shared resource governance

315

fisheries at the regional level–​40 have been found ‘largely unaccountable’41 and facing ‘substantial challenges’, including ‘lack of political commitment and comprehensive compliance by members’.42 In most rfmo s ngo s ‘struggle to have their views heard and discussed and are often frustrated that they are not taken seriously in the decision-​making process’.43 Some rfmo s request a participation fee from ngo s, which can reach up to 500 usd to attend each meeting.44 In addition, the International Seabed Authority (isa), whose mandate is to ensure the effective protection of the marine environment from harmful effects that may arise from exploration and exploitation activities,45 also presents challenges regarding public participation in decision making. One of the isa’s organs, the Legal and Technical Commission (ltc), plays a crucial role in implementing its mandate.46 However, the lack of transparency of the work of the ltc has been heavily criticized.47 The ltc rarely holds open meetings because it does not have procedures in place to determine which of the data provided by contractors is confidential and consequently, the contractor determines confidentiality.48 As a result, environmental data provided by contractors is unavailable to the public and meetings are held in private and closed to

40

rfmo s are regulated by the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 2167 unts 3, Part iii. 41 Global Ocean Commission, supra note 37, at 36. 42 Food and Agriculture Organization of the United Nations, The State of World Fisheries and Aquaculture 2016: Contributing to Food Security and Nutrition for All (2016) www.fao.org/​3/​ a-​i5555e.pdf, 95. 43 Report of the Independent Review, International Commission for the Conservation of Atlantic Tunas (iccat) ple-​106/​2008 (2008), at 71. 44 Report of the Independent Performance Review of iccat 2016, www.iccat.int/​ Documents/​Other/​0-​2nd_​PERFORMANCE_​REVIEW_​TRI.pdf, at 61. 45 1982 United Nations Convention on the Law of the Sea 1833 unts 3, Art. 145(a)(b); Annex iii, Art. 17(f); Art. 157(1); Arts. 160 para. 2(f)(ii) and 162 para. 2(o)(ii); Annex iii, Art. 17; 1994 Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982, 1836 unts 3, Annex, Section 1, para. 5(f). 46 unclos, ibid., Arts. 163 and 165. 47 Periodic Review of the International Seabed Authority pursuant to unclos Article 154, Final Report (2016) www.isa.org.jm/​files/​documents/​EN/​Art154/​Rep/​ISA154-​FinalRep-​ 30122016.pdf, at 2. 48 J.A. Ardron, ‘Transparency in the Operations of the International Seabed Authority: An Initial Assessment’, (2018) 95 Marine Policy 324. See also Co-​Chairs Report of Griffith Law School and the International Seabed Authority Workshop Environmental Assessment and Management for Exploitation of Minerals in the Area (2016) www.isa.org.jm/​files/​documents/​EN/​Pubs/​2016/​GLS-​ISA-​Rep.pdf, at 23.

316 

Sánchez Castillo-Winckels

observers.49 This contravenes unclos and the Exploration Regulations, which expressly provide that environmental data shall not be deemed confidential.50 3

Principles for the Sustainable Governance of Shared Resources

The previous section presented three challenges to the governance of shared natural resources. The current international context, framed by the Paris Agreement and the Sustainable Development Goals, urges global action for sustainable development in general and sustainable governance of shared resources in particular. This section discusses whether and how principles of international law could contribute to addressing the governance challenges previously described. 3.1 Sovereignty Concerning the first governance challenge –​reconciling psnr and the equitable use and conservation of resources that are shared by two or more states –​, I have argued elsewhere that sovereignty over exclusive resources and sovereignty over shared resources are conceptually different and constitute distinct legal regimes.51 There are three main differences between psnr and ‘sovereignty over shared natural resources’ (ssnr). First, psnr is exercised exclusively by one state over the natural resources located entirely within its national boundaries and in areas under its exclusive economic jurisdiction (exclusive economic zone and continental shelf), while ssnr is exercised jointly by two or more states over resources distributed over their respective territories and where utilization by one state affects utilization by the other(s). Second, the original purpose of psnr was to ensure political and economic self-​determination of peoples and economic independence of newly independent states, while that of ssnr was to regulate the benefit sharing from, and the environmental protection of, shared resources. Third, the essential and characteristic right under psnr to freely dispose of natural resources does not apply

49

Rules of Procedure of the Legal and Technical Commission, www.isa.org.jm/​files/​documents/​EN/​Regs/​ROP_​LTC.pdf, Rule 6. 50 unclos, supra note 45, Annex iii, Art. 14(2); Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, isba/​19/​C/​17 (2013), Regulation 36(2); Regulations on Prospecting and Exploration for Cobalt-​rich Ferromanganese Crusts in the Area, isba/​18/​A/​11 (2012), Regulation 38(2); Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, isba/​16/​A/​12/​Rev.1 (2010), Regulation 38(1). 51 Sánchez, supra note 14.

principles for shared resource governance

317

to resources that are shared, while the essential and characteristic duty under ssnr to cooperate does not apply to resources under exclusive jurisdiction. The nature of the resource (exclusive or shared) determines the applicable legal regime (psnr or ssnr), which confers distinguishing rights and duties. psnr confers to a state the distinguishing right to freely dispose of natural resources under its exclusive jurisdiction. This right is not conferred over shared resources because, based on their very nature, unilateral acts of disposition may affect the entitlements of the other state(s) sharing the resource and infringe the principle of equitable and reasonable utilisation. ssnr, in turn, requires states to comply with the distinguishing duty to cooperate in managing shared resources. The duty to cooperate does not apply to exclusive resources because they are managed to the exclusion of other states and cooperation only takes place if activities related to their utilization have transboundary impact. Understanding psnr and ssnr as distinct sets of rules could promote that shared resource governance continues to be increasingly focused on cooperation and environmental protection, and less and less oriented towards protecting states’ territorial interests. Such an understanding could contribute to reconciling psnr and the equitable use and conservation of shared resources as well as the inherent and fundamental independence of the states with the inherent and fundamental interdependence of the world environment. In addition, awareness of the differences between psnr and ssnr could make debates about the issue of sovereignty over transboundary aquifers more straightforward and negotiations easier, particularly in the light of the ongoing discussions on the law of transboundary aquifers at the unga.52 3.2 Community of Interests and Common Concern of Humankind Concerning the second governance challenge –​the legal conceptualization of the common interests and concerns existing between states sharing resources –​, two principles deserve attention: community of interests and common concern of humankind. As mentioned above, the legal nature and consequences of these principles continue to be insufficiently clear both in academic literature and state practice. Based on an analysis of water treaties explicitly referring to ‘community of interests’ or ‘common interests’ between riparian states, I have previously argued that the legal nature of the principle of community of interests could be articulated as follows:53 52

At its seventy-​fourth session (2019), the unga decided to include in the agenda of its seventy-​seventh session (2022) the topic of the law of transboundary aquifers. unga ‘The law of transboundary aquifers’ UN Doc/​A/​r es/​74/​193 (2019) para. 3. 53 Sánchez, supra note 23.

318 

Sánchez Castillo-Winckels

Community of interests is a principle that, when provided for in a treaty or subsequently interpreted as such, governs riparian states’ relations concerning the shared water resources. Its basic legal features are (1) the unity of the shared drainage basin; (2) riparian solidarity and cooperation; and (3) the harmonization of riparians’ national laws and policies on water governance. The principle of community of interests stems from the legal recognition of the unity of the shared drainage basin.54 The community of interests, created by the fact that riparian states share the whole drainage basin as a single unit and in its entirety, is the basis of riparian states’ common rights and duties. These include the right to an equitable and reasonable share, the duty to cooperate and the duty of environmental protection. The common rights and duties are part of a community of law among riparian states. Water treaties show that such a community of law is established mainly through the harmonization of riparian states’ national laws and policies on water governance.55 Riparian solidarity and cooperation are also elements of the community of interests.56 Regarding the role of the principle in the exercise of sovereignty over shared water resources, and because community of interests is not yet part of customary international water law,57 the principle is an element of sovereignty over shared waters only when included in treaty law or when the treaty is silent on the issue but has nevertheless been subsequently interpreted as establishing a community of interests.58 Consequently, when a water treaty sets forth −or is interpreted as setting forth− a community of interests between riparian states, the principle influences and qualifies the way sovereignty is exercised. It does so mainly through emphasizing the unity of the shared drainage basin and the resulting duty to cooperate, riparian solidarity and community of law. Two emerging trends shed light on the general direction in which the principle of community of interests is evolving. First, treaties referring to 54 Ibid. 55 Ibid. 56 Ibid. 57 All judicial decisions that have contributed to the evolution of the principle are based on the interpretation of one particular treaty or another and not on a rule of customary law. 58 E.g., such is the case of the 1975 Statute of the River Uruguay as interpreted by the icj in the Pulp Mills case. Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment, i.c.j. Reports 2010, para. 281. See also O. McIntyre, ‘The contribution of procedural rules to the environmental protection of transboundary rivers in light of recent icj case law’ in L. Boisson de Chazournes, C. Leb and M. Tignino (eds), International law and freshwater: The multiple challenges (2013) at 247–​8.

principles for shared resource governance

319

‘community of interests’ or ‘common interests’ between riparian states show a shift from the traditional approach to environmental protection based on the no-​harm rule to the protection of the environment per se, i.e., irrespective of whether harm is caused to other riparian states, shown by the adoption of the ecosystems approach.59 Second, these treaties suggest an emerging trend to include the basin populations as subjects of rights and duties, including the right to water and sanitation, and the right to public participation in decision-​ making processes concerning shared drainage basins. Through providing for public access to information and participation in decision-​making, the treaties involve populations not only in the use but also in the protection of the shared resource.60 Community of interests thus influences a change in the way sovereignty is exercised towards implementing the ecosystems approach and recognizing the rights and duties of the riparian populations. The second principle, common concern of humankind, applies to issues that affect human wellbeing and the environment and that require global cooperation to be effectively addressed. Based on an analysis of treaties and non-​binding −or ‘soft law’− international instruments that currently recognize issues of common concern,61 the following issues are of common concern: climate change and its adverse effects,62 the conservation of biological diversity,63 plant genetic resources for food and agriculture64 and the safeguarding of intangible cultural heritage.65 These are recognized as such essentially because they affect life on earth (human health, environmental integrity) or because they are otherwise considered essential to human wellbeing (plant

59 Sánchez, supra note 23, 69–​72. 60 Ibid. 61 Treaties: UN Framework Convention on Climate Change (unfccc) and its Paris Agreement; the Convention on Biological Diversity (cbd); the International Treaty on Plant Genetic Resources for Food and Agriculture (itpgrfa); Convention for the Safeguarding of the Intangible Cultural Heritage (cich). Other international legal instruments: the Earth Charter; the Langkawi Declaration on the Environment; the Hague Recommendations on International Environmental Law; the International Law Association (ila)’s New Delhi Declaration of Principles of International Law Relating to Sustainable Development; and the International Union for Conservation of Nature (iucn)’s Draft Covenant on Environment and Development. 62 1992 UN Framework Convention on Climate Change 1771 unts 107, Preamble, para. 1. 63 1992 Convention on Biological Diversity 1760 unts 79, Preamble, para. 3. 64 2001 International Treaty on Plant Genetic Resources for Food and Agriculture, 2400 unts 303, Preamble, para. 3. 65 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, 2368 unts 35, Preamble, para. 6.

320 

Sánchez Castillo-Winckels

genetic resources, intangible cultural heritage).66 Concerning the legal consequences of recognizing an issue as being of common concern, the treaties call on the parties to establish broad forms of international cooperation. The use of terms such as ‘the widest possible cooperation by all countries’,67 ‘global response’ or ‘global effort’,68 ‘global cooperation’,69 ‘global plan of action’70 and cooperation at the ‘bilateral, subregional, regional and international levels’71 indicates that parties’ efforts to address the issue of common concern are to be worldwide. In order to facilitate and concretize a form of international cooperation of global reach, parties have established global governance mechanisms, notably in the climate change and biodiversity regimes.72 In addition, such a global cooperation is guided by certain principles. According to the treaties, these are the principles of intergenerational equity, common but differentiated responsibilities, the precautionary principle, sustainable development, and cooperation.73 While the treaties recognize as common concerns specific issues, soft law instruments recognize as such the deterioration and preservation of the global environment in general, stressing in this way the unity of the biosphere and the interdependence of humanity and the environment. In essence, the reason why the deterioration and preservation of the global environment are

66

67 68 69 70 71 72

73

As stated in the treaties, the reasons that make these issues common concerns are: (1) climate change: the adverse effects of global warming on ecosystems and humankind; (2) the conservation of biological diversity: biological diversity’s intrinsic value; its ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values; and its importance for evolution and for maintaining life sustaining systems; (3) plant genetic resources for food and agriculture: that all countries depend greatly on plant genetic resources originated elsewhere; (4) the safeguarding of intangible cultural heritage: its invaluable role in bringing human beings closer together and ensuring exchange and understanding among them as well as its vulnerability to deterioration, disappearance and destruction. unfccc, supra note 62, Preamble para. 6. 2015 Paris Agreement fccc/​c p/​2015/​10/​Add.1, Arts. 2, 3, 7, 9 and 10. cbd, supra note 63, Preamble para. 14. itpgrfa, supra note 64, Art. 14. cich, supra note 65, Art. 19(2). See, e.g, P.H. Pattberg and F. Zelli (eds.), Encyclopedia of Global Environmental Governance and Politics (2015); F. Biermann and P. Pattberg (eds.), Global Environmental Governance Reconsidered (2012); K. Bosselmann, Earth Governance: Trusteeship of the Global Commons (2015); O.C. Ruppel, C. Roschmann and K. Ruppel-​Schlichting (eds.), Climate Change: International Law and Global Governance (2013); J. Gupta, The History of Global Climate Governance (2014). unfccc, supra note 62, Art. 3; Paris Agreement, supra note 68, Preamble, para. 3; cbd, supra note 63, Preamble, Arts. 1, 5, 6; itpgrfa, supra note 64, Preamble, Arts. 5–​8.

principles for shared resource governance

321

considered common concerns of humankind is, according to the non-​binding instruments examined, because the life and wellbeing of present and future generations depend on maintaining a healthy biosphere.74 Like the treaties examined, the soft law instruments call for global cooperation in addressing issues of common concern.75 The non-​binding instruments also refer to principles that govern states’ relations concerning the issue of common concern. These are the same principles found in the treaties, namely cooperation, intergenerational equity, common but differentiated responsibilities, sustainable development, and the precautionary principle.76 The principle of community of interests promotes riparian solidarity and cooperation as well as the formation of a community of law. It also advances the ecosystems approach and the rights of the riparian populations. The principle of common concern of humankind is characterized by the interest to protect humanity and the global environment from harm, and the need for international cooperation at a global scale to address the issue of common concern successfully. Both principles thus promote the sustainable governance of shared natural resources along with the reconcilement of the inherent and fundamental independence of the states with the inherent and fundamental global nature and interdependencies of the water cycle and atmospheric conditions. 3.3 Public Participation and Sustainable Development Concerning the third governance challenge –​the inclusion of non-​state actors –​the principles of public participation and sustainable development could guide states in enhancing observer participation in decision-​making 74

The Earth Charter Initiative, The Earth Charter (2000), www.earthcharterinaction.org/​ invent/​images/​uploads/​echarter_​english.pdf, Preamble; The Commonwealth, Langkawi Declaration on the Environment, ¶ 2 (1989), www.thecommonwealth.org/​sites/​default/​ files/​news-​items/​documents/​Langkawi-​declaration.pdf, Preamble; International Conference on Environmental Law, The Hague Recommendations, i.3f, ii (1991), as reprinted in 21 Environmental Policy and Law 242, 276, at ii; Int’l Union for Conservation of Nature (iucn), Draft International Covenant on Environment and Development. Fifth edition: Updated Text, at 44–​46 (2015), commentary to Art. 3, at 44; 70th Conference of the International Law Association, ila New Delhi Declaration of Principles of International Law Relating to Sustainable Development (2002), reprinted in (2202) 2 International Environmental Agreements: Politics, Law and Economics 211. 75 Ibid. 76 Earth Charter, supra note 74, Preamble and principles 4, 5, 6, 8, 11, 14, 16; Langkawi, supra note 74, paras. 1, 4, 5, 6; Hague Recommendations, supra note 74, at i.3.d.; New Delhi Declaration, supra note 74, Preamble and throughout its 7 Principles; iucn Draft Covenant, supra note 74, throughout the Covenant, see in particular Arts. 5, 7, 11 and 13.

322 

Sánchez Castillo-Winckels

processes relating to shared resources. Public access to information and participation in global environmental governance has led to increased transparency, accountability, effectiveness and legitimacy of decision-​making processes.77 Non-​state actor engagement in public interest decision making is desirable and actively promoted by the international community.78 From a human rights perspective, the right to participate in public affairs could contribute to enhancing observer participation because it requires states to adopt measures that ensure effective participation. Parties to relevant human rights treaties have the obligation to ensure effective public participation, including in decision-​making processes at the international level.79 According to the International Covenant on Civil and Political Rights (iccpr) and the American Convention on Human Rights (achr), including subsequent interpretations by the institutions that oversee their implementation, states must adopt measures that ensure effective opportunities to exercise the right to participate in public affairs.80 States party to the iccpr and the achr have the obligation to ensure effective non-​ state-​actor participation in the governance of shared natural resources such as transboundary waters (e.g. participation in procedures before river commissions), the atmosphere (e.g. participation in unfccc decision-​making processes) and the ocean commons (e.g. participation in procedures before the rfmo s or the isa), including at the international level.81 77

See, e.g., J. Ebbesson, ‘Principle 10: Public Participation’ in Jorge E. Viñuales (ed) The Rio Declaration on Environment and Development (2015); T. Kramarz and S. Park, ‘Accountability in Global Environmental Governance: A Meaningful Tool for Action?’ (2016) 16 Global Environmental Politics 6; T. Bernauer and R. Gampfer, ‘Effects of Civil Society Involvement on Popular Legitimacy of Global Environmental Governance’ (2013) Global Environmental Change 23, 439. 78 See, e.g., 1992 Rio Declaration on Environment and Development UN Doc. A/​c onf.151/​26 (Vol. i) Principle 10; Agenda 21: Programme of Action for Sustainable Development, UN Doc. A/​c onf.151/​26 (Vol. i), Chapter 23, para. 2; The Future We Want, UN Doc. A/​r es/​ 66/​288, para. 43; 1998 Aarhus Convention on Access to Information, Public Participation in Decision-​Making and Access to Justice in Environmental Matters 2161 unts 447; 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (open for signature on 27 September 2018, not in force) www.treaties.un.org/​doc/​Treaties/​2018/​03/​20180312%20 03–​04%20PM/​CTC-​XXVII-​18.pdf. 79 Sánchez, supra note 32. 80 1966 International Covenant on Civil and Political Rights 999 unts 171, Art. 25(a); Human Rights Committee ‘General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights’ UN Doc. ccpr/​C/​21/​Rev.1/​Add.7 (1996); 1969 American Convention on Human Rights 1144 unts 123, Art. 23(1)(a). 81 I have previously argued that states party to the iccpr and the achr must ensure effective observer participation in international unfccc decision-​making processes, Sánchez

principles for shared resource governance

323

The principle of sustainable development could also enhance observer participation in decision-​making processes. Specifically, the 2030 Agenda for Sustainable Development and its accompanying Sustainable Development Goals (sdg s) could guide institutions governing shared resources towards becoming more effective, accountable and inclusive. sdg 16 is to ‘promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels’.82 Three of the targets supporting the achievement of sdg 16 directly contribute to building strong institutions. Target 16.6 is to ‘develop effective, accountable and transparent institutions at all levels’; target 16.7 is to ‘ensure responsive, inclusive, participatory, and representative decision making at all levels’; and target 16.10 is to ‘ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements’.83 In this way, sdg 16 highlights the role that public participation plays in achieving the goal of strong institutions for sustainable governance. The goal is to build strong institutions at all levels of governance, therefore including institutions managing shared natural resources. 4

Conclusion

The principles discussed in this chapter could contribute to the sustainable governance of shared natural resources. The principles of community of interests and common concern of humankind promote the reconcilement of psnr and the common interests and concerns of states sharing natural resources. The principles of public participation and sustainable development promote the inclusion of non-​state actors in governing processes concerning shared resources. These principles are interrelated and should be interpreted in context. The overarching principles are psnr and sustainable development. Although not a principle in focus in this chapter, the principle of international cooperation appears throughout. The principle of community of interests relates to psnr because it influences and qualifies the way sovereignty over transboundary waters is exercised. It does so mainly through emphasizing the unity of the shared drainage basin and the resulting duty to cooperate, riparian

82 83

supra note 32. This argument is also applicable to international decision-​making processes concerning shared natural resources other than the atmosphere. 2030 Agenda for Sustainable Development, supra note 5, at 25. Ibid. 25–​26.

324 

Sánchez Castillo-Winckels

solidarity and community of law. Community of interests also relates to the principle of public participation by promoting the inclusion of the riparian populations as subjects of rights and duties, including the right to water and sanitation, and the right to public participation in decision-​making processes concerning shared drainage basins. Community of interests promotes the sustainable governance of shared water resources through furthering the protection of ecosystems –​ecosystems approach –​and the rights of the riparian populations. The principle of common concern of humankind applies to issues that transcend state boundaries and sovereignty, requiring collective action at the global level. It calls on states to establish broad forms of international cooperation and strike a balance between the competing demands of community interest and psnr. The principle of public participation relates to state sovereignty through promoting the inclusion of non-​state actors in the governance of shared natural resources. This interrelation suggests that the role of the principles discussed could be strengthened if interpreted in an integrated way. According to the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in context and in the light of its object and purpose.84 Together with the context, there shall be taken into account ‘any relevant rules of international law applicable in the relations between the parties’.85 The principles discussed –​which are contained in treaties –​must therefore be interpreted in context, considering all relevant principles and rules of international law relating to the sustainable governance of shared natural resources. From a broader perspective, the principles should also be interpreted in the light of the constant and progressive development of international law in the field of sustainable development, acknowledging that economic development, environmental protection and respect for human rights are interrelated and should be addressed in an integrated manner,86 also as regards shared natural resources. As mentioned in the Introduction, principles promote coherence and consistency in international law and provide a guiding framework for its implementation. They offer general guidance for states to act in an integrated way regarding the equitable utilization and environmental protection of their shared resources and encourage consistency of state practice. The principles discussed in this chapter could contribute to reconciling state sovereignty

84 85 86

1969 Vienna Convention on the Law of Treaties 1155 unts 331, Art. 31(1). Ibid. Art. 31(3)(c). New Delhi Declaration, supra note 74, Principle 7.

principles for shared resource governance

325

with the interdependence of the global environment, to promoting the inclusive and sustainable governance of shared natural resources and to achieving –​in the words of Professor Nico Schrijver –​development without destruction.

­c hapter 17

Economic, Social and Cultural Rights and Customary International Law William A. Schabas The treaties concluded at the end of the First World War declared that universal peace could only be established ‘if it is based upon social justice’.1 Alas, social justice was not delivered and the ceasefire in the great European war lasted only two decades. In January 1941, as much of Europe including the Netherlands endured brutal occupation, and when the United States was still officially neutral, Franklin D. Roosevelt invoked ‘freedom from want’ as one of the Four Freedoms in his January 1941 address to Congress.2 Later that year, the right to ‘social security’ was proclaimed by Roosevelt and Churchill in the Atlantic Charter.3 Three years later, Roosevelt developed ‘freedom from want’ into what has been called the ‘Second Bill of Rights’, explaining that ‘true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.’ Roosevelt listed several rights, including the right to a useful and remunerative job, to a decent home, to adequate medical care, to adequate protection from the economic fears of old age, sickness, accident, and unemployment, and the right to a good education.4 Economic, social, and cultural rights are recognised in articles 22 to 27 of the Universal Declaration of Human Rights, although several of the draft declarations that inspired the Declaration totally ignored them.5 In 1950, the Economic and Social Council asked the General Assembly to take a policy 1 Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’), (1919) ts 4, Part xiii, Preamble; Treaty of St Germain-​en-​Laye, [1919] ts 11, Part xiii, Preamble; Treaty of Neuilly, [1920] ts 5, Part xii, Preamble; Treaty of Trianon, (1919) 6 lnts 187, Part xiii, Preamble. 2 Congressional Record, 1941, Vol. 87, Pt. i, 6 January 1941. 3 Atlantic Charter, 14 August 1941, recital five. 4 Congressional Record, 1944, Vol. 90, Pt. ii, 11 January 1944. 5 Institut de droit international, ‘Declaration of the International Rights of Man’, (1935) 41 American Journal of International Law 663; ‘Basic Principles as formulated by the Legal Commission of the London International Assembly’, tna lnu 6/​7; Hersch Lauterpacht, An International Bill of the Rights of Man, New York: Columbia University Press, 1945, pp. 70–​71.

© Koninklijke Brill NV, Leiden, 2021 | D

Economic, Social and Cultural Rights

327

decision on the inclusion of economic, social, and cultural rights in the draft covenant, which was the unfinished component of the International Bill of Rights.6 The General Assembly confirmed that ‘the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent’, and that ‘when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the idea of the free man’.7 But in 1952, the General Assembly, by a vote of twenty-​seven in favour to twenty opposed, decided to sever the draft covenant into two components, one on civil and political rights and the other on economic, social, and cultural rights.8 The vote was not recorded, but immediately prior to its adoption a competing resolution to reaffirm the agreement on a single Covenant reached the previous year was rejected, by 25 in favour to 29 opposed, with the Netherlands among those voting against.9 Two Covenants were ultimately adopted by the General Assembly. At first glance, they look like twins. In reality, they are more like cousins. There is a lack of symmetry in the two Covenants implying that civil and political rights are somehow more fundamental than economic, social, and cultural rights. The Committee on Economic, Social and Cultural Rights is the primary United Nations expert body responsible for economic, social, and cultural rights. More specifically, it fulfils monitoring functions under the International Covenant on Economic, Social and Cultural Rights10 and its Optional Protocol.11 To be entirely precise, the Committee only resembles a treaty body although it has functions similar to those created by the main United Nations human rights conventions. That is because the International Covenant on Economic, Social and Cultural Rights does not contemplate such a body. This was a manifestation of the unequal status of the two Covenants. The International Covenant on Civil and Political Rights provides for the establishment of the Human Rights Committee. The Committee on Economic, Social and Cultural Rights was created several years after the Interntaional Covenant on Economic, Social and Cultural Rights entered into force by a resolution of the Economic

6 7 8 9 10 11

Report of the Commission on Human Rights, Sixth Session, E/​r es/​303 (xi), Part i. Draft International Covenant on Human Rights and measures of implementation: future work of the Commission on Human Rights, A/​r es/​421 E (v), preamble. Preparation of two Draft International Covenants on Human Rights A/​res/​543 (vi), para. 1. A/​PV.375. International Covenant on Economic, Social and Cultural Rights, (1976) 993 unts 3. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, A/​r es/​63/​117, Annex.

328 Schabas and Social Council.12 Nico Schrijver was twice elected to four-​year terms on the Committee, serving from 2008 to 2016. In parallel with the main human rights treaties there exists a body of customary international law. That important human rights obligations are recognised as customary law is not controversial. In 2012, for example, the International Court of Justice declared that torture was prohibited by customary international law.13 Although not frequent, there are a number of references to customary human rights in the case law of regional international human rights courts and in the materials generated by the various expert mechanisms. For example, the European Court of Human Rights has considered customary law with respect to the principle of legality.14 The African Court on Human and Peoples’ Rights has spoken of the customary right to life15 and the right to a nationality.16 The Inter-​ American Court of Human Rights generally avoids reference to custom and instead describes fundamental rights as peremptory or jus cogens norms. It has so qualified the prohibition of slavery17 and of enforced disappearance,18 for example. The Committee on the Elimination of Discrimination Against Women has declared that ‘the prohibition of gender-​based violence against women has evolved into a principle of customary international law’.19 Special procedures of the Human Rights Council have considered the customary law applicable to arbitrary detention,20 violence against women,21 the rights of indigenous 12 Review of the composition, organisation and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, E/​r es/​1985/​17. 13 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, icj Reports 2012, p. 422, para. 99. 14 Kononov v. Latvia [gc], no. 36376/​04, §§ 203, 211, 215, 221, 17 May 2010. 15 Ally Rajabu et al. v. Tanzania, No. 007/​2019, Judgment, 28 November 2019, para. 113, fn. 33. 16 Robert John Penessis v. Tanzania, No. 013/​2015, Judgment, 28 November 2019, paras. 85–​88. 17 Aloeboetoe et al. v. Suriname, Judgment (Reparations and costs), 10 September 1993, Series C, No. 15, para. 56. 18 García and family members v. Guatemala, Judgment (Merits, reparations, and costs), 29 November 2012. Series C, No. 258, para. 96; González Medina and family members v. Dominican Republic (Preliminary objections, merits, reparations, and costs), 27 February 2012, Series C, No. 240, para. 130; Osorio Rivera and Family Members v. Peru, Judgment (Preliminary objections, merits, reparations, and costs), 26 November 2013, Series C, No. 274, para. 112. 19 General recommendation 35 on gender-​based violence against women, updating general recommendation 19, cedaw/​C/​g c/​35, para. 2. 20 Report of the Working Group on Arbitrary Detention, A/​h rc/​22/​44, paras. 37–​75. 21 Missing and Murdered Indigenous Women in British Columbia, Canada, oea/​Ser.L/​v /​i i, Doc. 30/​14, para. 181; Claudina Isabel Velasquez Paiz et al v. Guatemala, Case 12.777, Report No. 53/​13, Merits, 4 November 2013, para. 90.

Economic, Social and Cultural Rights

329

peoples,22 and freedom of association.23 International criminal tribunals invoke custom with respect to the right to life,24 torture,25 cruel, inhuman or degrading treatment,26 and the prohibition of slavery.27 Nevertheless, economic, social, and cultural rights are never considered. Customary law, it seems, is reserved for civil and political rights. Writing in 2018 in the American Journal of International Law, B.S. Chimni claimed that ‘the historical role of [customary international law] has been to facilitate the functioning of global capitalist system by filling crucial gaps in the international legal system’.28 Chimni singled out international human rights law, saying that customary international law was ‘performing the function of sustaining its systemic interests through legitimising global capitalism’, although he did not provide useful examples.29 In the symposium published in ajil Unbound on Chimni’s controversial article, Andreas Paulus and Matthias Lippold insisted that ‘much of contemporary human rights law, including economic and social rights, attempts, with mixed success, to tame rather than to strengthen capitalism’.30 But Paulus and Lippold were also short on examples. Their observation was valid for treaty law but not with respect to custom. The neglect by scholars, commentators, and experts does not mean that there is no customary international law in the area of economic, social, and cultural rights. Customary law is created by the famous two elements, State practice and opinio juris. These can be identified using a range of sources. According to the International Law Commission, forms of State practice ‘include, but are not limited to: diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organisation or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct “on the ground”; legislative and 22 23 24 25 26 27 28 29 30

Report of the Special Rapporteur on the rights of indigenous peoples, A/​h rc/​33/​42, para. 14. Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/​71/​385, para. 56. Prosecutor v, Blaškić (it-​94/​14-​A), Judgment, 29 July 2004, para. 143; Prosecutor v. Kordić and Čerkez (it-​95-​14/​2-​A), Judgment, 17 December 2004, para. 106. Prosecutor v. Furundžija (it-​95-​17/​1), Judgment, 10 December 1998, para. 147. Prosecutor v, Blaškić (it-​94/​14-​A), Judgment, 29 July 2004, para. 143. Prosecutor v. Ntaganda (icc-​01/​04-​02/​06), Second decision on the Defence’s challenge to the jurisdiction of the Court in respect of Counts 6 and 9, 4 January 2017, para. 51. B.S. Chimni, ‘Customary International Law: A Third World Perspective’, (2018) 112 American Journal of International Law 1, at p. 4. Ibid., p. 5. Andreas Paulus and Matthias Lippold, ‘Customary Law in the `Postmodern World (dis) Order’, (2018) 112 AJIL Unbound 308, at p. 310.

330 Schabas administrative acts; and decisions of national courts’.31 Evidence of acceptance as law (opinio juris) may include, but is not limited to: ‘public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organisation or at an intergovernmental conference’.32 Let us take a closer look. The Universal Declaration of Human Rights states that everyone is entitled to realisation of the right to social security ‘through national effort and international co-​operation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’.33 Furthermore, everyone is entitled to the ‘right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’.34 Article 9 of the International Covenant on Economic, Social and Cultural Rights is more succinct: ‘The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance.’35 There is also a requirement that working mothers be accorded ‘paid leave or leave with adequate social security benefits’ during a reasonable period before and after childbirth.36 There are 171 States Parties to the International Covenant on Economic, Social and Cultural Rights. There are no reservations of any significance to article 9 of the International Covenant on Economic, Social and Cultural Rights that cast doubt on the recognition by States Parties of the principle of the right to social security.37 This is confirmed in the reports to the Committee on Economic, Social and Cultural Rights from the States with reservations to article 9.38

31 32 33 34 35 36 37

38

‘Text of the draft conclusions on identification of customary international law’, A/​73/​10, pp. 119–​122, Conclusion 6(2). Ibid., Conclusion 10(2). Universal Declaration of Human Rights, A/​r es/​217 (iii), art. 22. Ibid., art. 25. International Covenant on Economic, Social and Cultural Rights, (1976) 993 unts 3, art. 9. Ibid., art. 10(2). Reservations or declarations have been formulated by France, C.N.335.1980.treaties-​10 (‘… not to be interpreted as derogating from provisions governing the access of aliens to employment …’) and by Monaco, C.N.382.1997.treaties-​5/​9 (‘… should not be constituting an impediment to provisions governing access to work by foreigners …’). France, Fourth periodic report, E/​C.12/​f ra/​4, paras. 306–​333; Monaco, Initial report, E/​ 1990/​5/​Add.64, paras. 110–​157.

Economic, Social and Cultural Rights

331

States that have not ratified the International Covenant on Economic, Social and Cultural Rights consistently report to the Human Rights Council within the framework of the Universal Periodic Review on various social security schemes that they operate.39 One of them, Saint Lucia, actually cited article 23 of the Universal Declaration of Human Rights as the basis for its social security system.40 Essentially all of the States that are not parties to the International Covenant have recognised the right to social security in one of the specialised or regional treaties.41 The pattern of treaty ratification leaves no shortage of evidence of the opinio juris of all States. The reports to the Human Rights Council confirm the existence of State practice. A similar exercise can be undertaken that demonstrates the presence of both elements of customary international law with respect to essentially every State for the right to work, the right to just and favourable conditions of work, the right to rest and leisure, the right to food, to housing, to health, and to medical care. There may be no better case for recognition of a fundamental human right as a matter of customary international law than the right to education. Until relatively recently in human history, education was reserved for the wealthy, for elites. Although basic skills, such as literacy and numeracy, have existed for 5,000 years or more, it is estimated that by 1820 only 12% of the world’s population could read and write.42 In the twentieth century these abilities became 39

Andorra, National report, A/​h rc/​w g.6/​22/​a nd/​1, paras. 14–​15 and National report, A/​ hrc/​w g.6/​9/​a nd/​1, paras. 70–​78; Bhutan, National report, A/​h rc/​wg.6/​19/​b tn/​1, para. 117; Brunei Darussalam, National report, A/​h rc/​wg.6/​33/​b rn/​1, para. 94; St Kitts and Nevis, Report of the Working Group, A/​h rc/​17/​12, para. 34; Saudi Arabia, National report, A/​h rc/​w g.6/​4/​s au/​1, paras. 11, 47; Sudan, National report, A/​h rc/​18/​16/​Add.1, para. 30 and National report, A/​h rc/​w g.6/​11/​s dn/​1, paras. 51–​53; Singapore, National report, A/​ hrc/​w g.6/​11/​s gp/​1, paras. 59–​60 and Report of the Working Group, A/​h rc/​18/​11, para. 51; United Arab Emirates, National report, A/​h rc/​10/​75, para. 11 and National report, A/​h rc/​ wg.6/​3/​a re/​1, pp. 8, 12, 17, 24. 40 Saint Lucia, National report, A/​h rc/​w g.6/​10/​l ca/​1, para. 67. 41 International Convention on the Elimination of All Forms of Racial Discrimination, (1969) 660 unts 195, art. 5(e)(iv); Convention on the Elimination of All Forms of Discrimination against Women, (1981) 1249 unts 13, arts 11(1)(e) and 14(2)(c); Convention on the Rights of the Child, (1990) 1571 unts 3, art. 26(4); International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, (2003) 2220 unts 3, art. 27; Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, oasts 69, art. 9; European Social Charter, cets 35, arts. 12–​14; European Social Charter (revised), cets 163, arts. 12–​14; Arab Charter on Human Rights, art. 36. 42 Max Roser and Esteban Ortiz-​ Ospina (2016) –​“Literacy”. Published online at OurWorldInData.org. Retrieved from: ‘https://​ourworldindata.org/​literacy’ [Online Resource].

332 Schabas commonly available to the majority. unesco has reported that in 2016, 86% of the global adult population had basic reading and writing skills, and that the youth literacy rate was 91%.43 Literacy and numeracy are directly related to education from which much of the world’s population, historically, was excluded. It is believed that in 1870, only one person in four attended school.44 In its Millennium Development Goals, the United Nations General Assembly resolved that by 2015 ‘children everywhere, boys and girls alike, will be able to complete a full course of primary schooling and that girls and boys will have equal access to all levels of education’.45 Although that ambition was not achieved, there was some significant progress. ‘Everyone has the right to education’, proclaims article 26 of the Universal Declaration of Human Rights. ‘Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.’ The Universal Declaration goes on to specify that ‘[t]‌echnical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit’. The International Covenant on Economic, Social and Cultural Rights recognises the right, specifying that education ‘shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms’. Education is about much more than literacy and numeracy. It is to ‘enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace’. Exceptionally, the Covenant requires that at the primary level this be enforceable immediately, where it is to be both compulsory and free.46 Many other specialised and regional treaties affirm a right to education.47 First and foremost

43 Ibid. 44 Ibid. 45 United Nations Millennium Declaration, A/​r es/​55/​2, para. 19. 46 International Covenant on Economic, Social and Cultural Rights, (1976) 993 unts 3, arts. 13 and 14. 47 International Convention on the Elimination of All Forms of Racial Discrimination, (1969) 660 unts 195, art. 5(e)(v); Convention on the Elimination of All Forms of Discrimination Against Women, (1981) 1249 unts 13, art. 10; unesco Convention against Discrimination in Education, (1962) 429 unts 92, art. 4; African Charter on the Rights and Welfare of the Child, art. 13; Convention on the Rights of Persons with Disabilities, (2008) 2515 unts 3, art. 24; International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, (2003) 2220 unts 3, art. 30; Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, cets

Economic, Social and Cultural Rights

333

among them is the Convention on the Rights of the Child, with 196 States Parties.48 To the basic right to compulsory primary education free of charge, formulated in article 28(1)(a) of the Convention on the Rights of the Child, reservations or declarations have been formulated by Malaysia (since withdrawn),49 Samoa50 and Singapore.51 But in its most recent report to the Human Rights Council, Samoa indicated that education was now free at all government primary schools.52 Singapore’s reservation notes that ‘in practice virtually all children attend primary school’. There are several reservations to article 13 of the Covenant,53 but all of them by States that have made no reservation to the right to education in the Convention on the Rights of the Child. Consequently, despite reservations to the Covenant, they have accepted a legal norm requiring compulsory free primary education and the other components of the right set out in the Convention on the Rights of the Child. Moreover, none of the reservations to article 13 of the Covenant actually challenges the obligation to provide compulsory free primary education but rather they express difficulty with immediate implementation of the norm. There are only two reservations to certain aspects of the right to education provision of the Convention on the Rights of Persons with Disabilities,54 which has now been ratified by 182 States. The United States of America is the only Member State of the United Nations that is not a party to the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of Persons with Disabilities. It has confirmed recognition of a right to education in its reports to the Human Rights Council.55 9, art. 2; Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, oasts 69, art. 13; African Charter on Human and Peoples’ Rights, (1986) 1520 unts 217, art. 17(1); Arab Charter on Human Rights, art. 41; Charter of Fundamental Rights of the European Union, oj C 326/​391, art. 14. 48 Convention on the Rights of the Child, (1990) 1571 unts 3, art. 28. 49 C.N.58.1995.treaties-​1, C.N.474.2010.treaties-​4. 50 C.N.396.1994.treaties-​8. 51 C.N.370.1995.treaties-​9. 52 National report, Samoa, A/​h rc/​w g.6/​25/​w sm/​1, para. 68. 53 Algeria, C.N.247.1989.treaties-​1/​13/​3; Bangladesh, C.N.541.1998.treat1es-​1; Barbados, C.N.5.1973.treaties-​ 1; France, C.N.335.1980.treaties-​ 10; India, C.N.81.1979.trea­ ties-​ 2; Madagascar, C.N.54.1991.treaties-​ 2; Malta, C.N.304.1990.treaties-​4/​11/​4; Monaco, C.N.382.1997.treaties-​5/​9; South Africa, C.N.23.2015.treaties-​i v.3; Turkey C.N.1207.2003.treaties-​ 4; United Kingdom, C.N.193.1976.treaties-​6; Zambia, C.N.82.1984.treaties-​l/​5/​2. 54 Suriname, C.N.158.2017.treaties-​i v.15; United Kingdom, C.N.360.2009.treaties-​15. 55 United States of America, National report, A/​h rc/​wg.6/​9/​u sa/​1, paras. 47–​49.

334 Schabas The Universal Periodic Review materials do not indicate any concerns of other States about compliance by the United States with the obligation to provide compulsory and free primary education.56 In other words, even without any conventional source, the United States respects, protects and fulfils the right to free primary education and manifests its opinio juris by reporting to the Human Rights Council on its compliance. At its 2019 session, the International Law Commission adopted a draft list of norms of jus cogens. It is not uncommon to view jus cogens norms as a form of ‘super-​custom’. A recent judgment of the Supreme Court of Canada described jus cogens norms as a ‘subset’ of customary international law.57 The better view is that jus cogens norms have an autonomous existence and that ‘various sources of international law may give rise to the emergence of a peremptory norm of general international law’.58 Nevertheless, because peremptory norms ‘reflect and protect fundamental values of the international community’,59 they are of particular importance in the area of human rights law, where most of the relevant case law and other authorities have been generated.60 The Commission’s short enumeration of jus cogens norms included the prohibitions of genocide, crimes against humanity, racial discrimination and apartheid, slavery, and torture.61 Several other candidates were considered for inclusion, including the prohibition of enforced disappearance, the right to life and to fair trial, but none could remotely be described as falling under the rubric of economic, social, and cultural rights.62 In contemporary society, there is a consensus that certain entitlements, many of them codified in articles 22 to 26 of the Universal Declaration of Human Rights, in the International Covenant on Economic, Social and Cultural Rights, and a range of specialised and regional instruments, are as essential to modern life as the prohibitions of torture and slavery. The covid-​19 pandemic manifested a global understanding of the significance of public health 56 57 58 59 60 61 62

United States of America, Report of the Working Group, A/​h rc/​30/​12; United States of America, Compilation, A/​h rc/​w g.6/​36/​u sa/​2, paras. 62–​64. Nevsun Resources Ltd. v. Araya, 2020 scc 5, para. 83. Report of the International Law Commission, Seventy-​first session (29 April–​7 June and 8 July–​9 August 2019), A/​74/​10, p. 159. Ibid., p. 142. Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’, (2008) 19 European Journal of International Law 491, at p. 491. Report of the International Law Commission, Seventy-​first session (29 April–​7 June and 8 July–​9 August 2019), A/​74/​10, p. 203. Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur, A/​c n.4/​727.

Economic, Social and Cultural Rights

335

and of the right to a certain minimal level of medical care and other measures intended to ensure our collective well-​being. The right to education, at least at the primary level, is acknowledged universally as something that is not subject to derogation and that all States aspire to respect, protect and fulfil, without exception. Some States remain unable to ensure universal primary education but this is a consequence of resource limitations. None of them would contend that the situation is acceptable or satisfactory, and nobody would challenge the fact that any shortcomings could easily be addressed through international cooperation and more generous assistance than is currently the case. Surely the right to universal free primary education is as much a ‘fundamental value of the international community’ as the prohibition of torture and racial discrimination. The debate about the place of economic, social, and cultural rights has taken different forms over the decades. Today, there is no question that the Committee on Economic, Social and Cultural Rights is equal in all respects to the other treaty bodies, despite its anomalous origins. In 2013, the Optional Protocol to the Covenant authorising individual petitions entered into force. Yet the unequal status remains in other forms. One of them is the continuing exclusion of economic, social, and cultural rights from consideration as norms of customary law, and indeed of jus cogens.

­c hapter 18

World Law’s Modern Master Builders Otto Spijkers 1 Introduction* In the fight against the corona virus and in rebuilding the world in the post-​ corona era, we must choose global solidarity over nationalist isolationism. On this, most scholars1 and states agree.2 Despite this rough consensus on the way forward, experts constantly warn us that we are, in fact, heading in the wrong direction. Some even begin to talk about a new Cold War.3 The search for the appropriate (legal) terminology to talk about –​and make sense of –​the current corona crisis, makes one thing abundantly clear: how important it is to choose one’s words carefully.4 When all we hear is doom and gloom, let us try and look on the bright side. John Ikenberry wrote that it ‘is precisely at a moment of global crisis that great debates about world order open up and new possibilities emerge’.5 In our search for the right words to use in the current debate, we can draw inspiration from discourses and traditions of the past. In times of and * Otto Spijkers is Professor of International Law at the China Institute of Boundary and Ocean Studies (cibos), and at the Research Institute of Environmental Law (RIEL) and founding staff member of the International Water Law Academy (IWLA) of Wuhan University, China. All translations from Dutch, French, and German original sources are provided by the author. Correspondence: [email protected]. 1 See e.g., S. Chesterman, ‘Covid-​19 And the Global Legal Disorder’, Straits Times, 1 May 2020; Y. N. Harari, ‘The World after Coronavirus’, Financial Times, 20 March 2020. 2 UN General Assembly, Global Solidarity to Fight the Coronavirus Disease 2019 (covid-​19), UN Doc. A/​r es/​74/​270 (2020). See also L. Xiaoming, ‘China Has Valuable Lessons for the World in How to Fight Covid-​19’, Financial Times, 29 April 2020; and S. Blok (Netherlands Minister of Foreign Affairs), ‘Appreciation US-​China Tensions Since the Corona Outbreak’, Letter of 19 June 2020 to the House of Representatives of the States-​General, available at https://​www.tweedekamer.nl/​kamerstukken/​. 3 See e.g., J. Kynge, K. Manson and J. Politi, ‘US and China: Edging Towards A New Type of Cold War?’, Financial Times, 8 May 2020; M. Crowley, E. Wong and L. Jakes, ‘Confrontation Is Winning Out Over Cooperation in Face of a Pandemic’, New York Times, 23 March 2020. 4 V. Lerch, ‘Choosing Our Words with Care’, Rights!, 9 May 2020, at https://​rightsblog.net/​2020/​ 05/​08/​choosing-​our-​words-​with-​care/​. 5 J. Ikenberry, ‘The Next Liberal Order: The Age of Contagion Demands More Internationalism, Not Less’, July/​August 2020 Foreign Affairs 133.

© Koninklijke Brill NV, Leiden, 2021 | D

World Law’s Modern Master Builders

337

immediately following earlier crises, the term world law was often invoked, both as a rhetorical tool (to give people hope), and to call for institutional reform. What did world law mean to people then, and what can it mean to us, today? To answer that question, this book chapter describes how the term world law was used in British/​American (Section 2), Dutch (3), Japanese (4), German (5), and French (6) popular, political and academic debates.6 In most cases, world law emerged and flourished in response to a particular (global) crisis. The British/​American world law tradition was an attempt to bring and hold the world together immediately after the Second World War, and it came to fruition at the height of the Cold War. The Dutch wereldrecht tradition attempted to bring the world back together in the period immediately following the First World War (the ‘roaring 1920s’) and attempted to keep people hopeful in the crisis years of the 1930s. The sekai-​hō tradition began as a protest against the rise of fascism and nationalism in the 1930s, particularly in Japan, but also in other parts of the world; and later became a liberating force for the international judge. The German Weltrecht tradition had a more academic flavour from its beginning. The French droit mondial was a bit of a late-​comer and was part of a humanist movement of the 1960s. As we shall see below, in more recent times, all of these traditions distanced themselves somewhat from their reactionary or revolutionary roots and took on a more academic shape. The concluding section contains several general reflections on the potential value of the world law traditions in today’s debate (Section 7). The world law traditions are situated within a more general scholarly discourse on world order and the role or rule of law in the global community. An in-​depth analysis of world law’s relationship with theories such as the international law of co-​progressiveness,7 transnational law,8 global administrative law,9 global

6 For China, see e.g., L. Zucca, ‘Two Conceptions of Global Order’, in G. Martinico and X. Wu (eds.), A Legal Analysis of the Belt and Road Initiative: Towards A New Silk Road? (2020) 25. See also Q. Kong and M. Du, ‘Is The ‘Belt and Road’ Initiative the Chinese Vision of Global Governance?’, in the same book, at 5; M. A. Carrai, ‘Historiographies of International Law from a Chinese Perspective’, (2020) 18 CLIO@THEMIS; J. Stern, Naturrecht und Weltrecht im Lichte der Rechtsentwicklung Japans und Chinas (1927). 7 S. Yee, ‘The International Law of Co-​Progressiveness: The Descriptive Observation, the Normative Position and Some Core Principles’, (2014) 13 Chinese Journal of International Law 485. 8 H. H. Koh, ‘Why Transnational Law Matters’, (2006) 24 Penn State International Law Review 745. 9 B. Kingsbury, N. Krisch, and R. Stewart, ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15.

338 Spijkers law,10 global governance,11 international constitutional law;12 or with movements, such as global federalism or the world peace movement;13 is beyond the scope of this book chapter. Beyond its scope is also to provide a comprehensive new theory of world law. The aim of this chapter is modest: to demonstrate the comforting and inspirational power the various world law traditions have had in the past, and thereby to demonstrate their potential as a positive force in current discussions on rebuilding the world in the post-​corona era, and strengthening solidarity in the world community. There is a long scholarly practice of applying the concept of solidarity, generally defined as ‘relations and ties in society that bind people together’, at the global or transnational level; and often law is seen as the glue that holds us together.14 The world law traditions might help constitute an epistemic community15 –​ or invisible college16 –​of globally recognised experts, able to inspire and advise policy makers on how law can best be used as an instrument to promote global solidarity,17 rather than as an instrument of global lawfare sometimes coupled with the spreading of disinformation and conspiracy theories.18 All over the world, virologists and economists constantly appear on television, providing 10 11 12

13 14 15 16 17

18

R. Domingo, The New Global Law (2010); Neil Walker, Intimations of Global Law (2014); G. Z. Capaldo, The Pillars of Global Law (2016). F. Zelli, ‘Global Governance’, in G. W. Brown, I. McLean, and A. McMillan (eds.), A Concise Oxford Dictionary of Politics and International Relations (2018). Th. M. Franck, ‘Is the UN Charter a Constitution?’, in T. Eitel and J. Frowein (eds.), Verhandeln für den Frieden: Liber Amicorum Tono Eitel (2003), 95; D. van den Meerssche, ‘Exploring Constitutional Pluralism(S): An Ontological Roadmap’, in C. Corradetti and G. Sartor (eds.), Global Constitutionalism Without Global Democracy (?): EUI Law Working Paper (2016), 39. See e.g., J. P. Baratta, The Politics of World Federation (Vol. 1): The United Nations, UN Reform, Atomic Control (2004), and J. P. Baratta, The Politics of World Federation (Vol. 2): From World Federalism to Global Governance (2004). For an overview, see H. Krunke (ed.), Transnational Solidarity: Concept, Challenges and Opportunities (2020). A. Bianchi, ‘Epistemic Communities’, in J. d’Aspremont and S. Singh (eds.), Concepts for International Law: Contributions to Disciplinary Thought (2019), 251. O. Schachter, ‘Invisible College of International Lawyers’, (1977) 72 Northwestern University Law Review, 217. On global solidary as legal principle, see R. Wolfrum, ‘Concluding Remarks’, in R. Wolfrum and Ch. Kojima (eds.), Solidarity: A Structural Principle of International Law (2010); V. Dandan (Independent Expert on Human Rights and International Solidarity), Draft Declaration on the Right to International Solidarity, UN Doc. A/​h rc/​35/​35, Ann. (2017). On the internet, there is a lot of talk about instituting legal proceedings to establish responsibility for the corona virus outbreak. That might not be the best way to use international law as an instrument to promote global solidarity. See e.g., S. de Herdt, ‘A Reference to the ICJ for an Advisory Opinion over COVID-​19 Pandemic’, Ejil: Talk!, 20 May 2020, at https://​www. ejiltalk.org/​a-​reference-​to-​the-​icj-​for-​an-​advisory-​opinion-​over-​covid-​19-​pandemic/​; J. A.

World Law’s Modern Master Builders

339

us with both solicited and unsolicited advice on how to combat the corona virus and rebuild our post-​corona future. Why can international lawyers not provide a similar service to the world, and advise on how best to keep the world together? We now have an opportunity to design the future, rather than wait for it to happen; and academia, situated at the intersection of power and ideas, has a unique responsibility in this endeavour. In the 1920s, just after the First World War and the Spanish flu pandemic, a period began characterised by globalization, individualization (with its celebrity culture), emancipation (women’s suffrage), cultural and technological innovation (television, radio, first flight over Atlantic etc.), creativity (Hollywood, Broadway, jazz), and economic prosperity. The young generation took the lead. The same period was also the heyday of nationalism; it was a time in which people escaped into fantasy worlds (science fiction, horror), a time in which there was a strong belief that we were approaching the end of the world (dystopia), an increasing fear and suspicion of ‘the other’ (conspiracy theories were popular in those days). If we compare the 2020s with the ‘roaring 1920s’, there is reason for optimism, but also to be cautious. It would be a little naïve to hope for a new decade of economic prosperity; but let us all try to make our own modest contribution to the building of a new world law. 2

World Law

This section provides some inspirational examples of ways in which world law gave people in the United Kingdom (UK) and the United States of America (US) hope in times of crisis. It also shows how difficult it was to persuade those in power to embrace the term. In 1943, a young American soldier, fighting on the European battlefields, wrote a letter to his father, asking: ‘We are going to win this war, make no mistake about that; but what· are those who run the country going to do to really give us peace?’. His father passed his son’s question on to US Congress, urging Congress to take the lead in setting up ‘a world organization that will accept responsibility for world law and peace’.19 ‘I am counting upon you’, Virgil Hayes wrote at the darkest hour of the war to his Representative in US Congress, ‘to support and vote for those measures that

19

Lorenzo, ‘To Sue Or Not to Sue: Enforcing the Obligation to Notify Under the International Health Regulations’, Völkerrechtsblog, 4 June 2020, at https://​voelkerrechtsblog.org/​to-​ sue-​or-​not-​to-​sue/​; and so on. Letter from S. W. Downey, 22 October 1943, in the US, Congressional Records, 1943, at 9012. These records can be consulted online at https://​www.govinfo.gov.

340 Spijkers will enable our country to co-​operate with the other nations in the forming of such international organization as may be necessary to establish world law and order based upon justice and brotherhood’.20 These are just two examples of pleas, made during times of crisis and despair, by ordinary folks in the US, for a new world order based on world law. Across the Atlantic, some prominent politicians supported the plea for world law. The most famous example is probably the address of British Foreign Secretary Ernest Bevin to the House of Commons in November 1945. Bevin proposed to establish a world parliament, mandated to make world law.21 Unfortunately, Bevin never really followed-​up on this famous speech. Instead, he focused his attention on Britain’s role in the North Atlantic Treaty Organization (nato), which was created around that time (April 1949).22 The attitude of Clement Attlee towards world law was just as ambivalent. When still a Member of Parliament, he called for world law;23 but when he actually became the head of the Government, he focused on other things.24 Many people saw in the nuclear build-​up the beginning of the next global crisis and believed world law was needed to curtail it. In 1947, a resolution was tabled in the US Senate and House of Representatives, to authorise the United Nations to enact, interpret, and enforce world law to prevent a new war.25 The proposal came with an impressive collection of support letters from prominent people, polls, declarations, and so on.26 Celebrity scientist Albert Einstein gave his support.27 In 1948, the first ‘world citizen’ Garry Davis attempted to deliver a speech at the UN General Assembly, calling for a world parliament; but before he could address the world, he was arrested by the police.28 In the United Kingdom, world law was advocated primarily by the World Federalist Movement, and a considerable number of politicians aligned themselves with this movement.29 The response from the United Kingdom 20 US, Congressional Records, 1944, at 2186–​2187. 21 UK, House of Commons Debate, 23 November 1945, Vol. 416, Columns 759–​846. These records can be consulted online at https://​hansard.parliament.uk/​. 22 See also J. P. Baratta, The Politics of World Federation: United Nations, UN Reform, Atomic Control, Vol. 1 (2004), at 156 and 164–​170. 23 UK, House of Commons Debate, 14 March 1934, Vol. 287, Columns 367–​485. 24 US, Congressional Records, Senate, Vol. 113, Part 7, 14 April 1967, at 9631. 25 US, Congressional Records, 1947, at 8506 and 8554. 26 ibid. 27 See e.g., A. Einstein, ‘Open Letter to the General Assembly of the United Nations’, (1947) 13–​14 United Nations World. 28 ‘Een Wereldburger Eruit Gegooid’, Leeuwarder Courant, 20 November 1948. 29 H. Usborne, an active contributor to the British World Federalist Movement, is an example. See UK, House of Commons Debate, 28 July 1950, Vol. 478, Columns 913–​44.

World Law’s Modern Master Builders

341

Government was somewhat lacking in enthusiasm. When Lord Merthyr suggested that the United Nations should be developed into a World Federation with the authority to make and enforce world law, he was told by the United Kingdom Government that a single day spent inside the UK Foreign Office would make him realise that this was never going to happen.30 World law was most often invoked at the height of the Cold War, especially at the time of the Berlin and Cuban missile crises (early 1960s). The most influential blueprint for a reformed UN, capable of creating and enforcing world law, was World Peace through World Law, published in 1958 by Grenville Clark and Louis Sohn.31 This plan, a unique mix of a call to action and academic theory, got neutral reviews,32 praise,33 and criticism. Andrews, who labelled himself as belonging to the ‘unconverted’ –​thereby suggesting that world law was a kind of religious movement –​felt that he had been offered ‘an academic panacea for the faults of the modern world, a health preparation which is useless because there is no possible method of injection’.34 In her daily newspaper column ‘My Day’, Eleanor Roosevelt called on all world citizens to bring world law to the attention of their political representatives.35 Many people in the US did so, and the Clark-​Sohn world law plan attracted support from US senators, Supreme Court justices, and other prominent figures and people in power.36 US President Johnson even proclaimed a World Law Day.37

30 UK, House of Lords Debate, 7 May 1953, Vol. 182, Columns 348–​85. 31 G. Clark and L. B. Sohn, World Peace Through World Law (1958). 32 Ch. G. Fenwick, ‘Review of World Peace Through World Law by Grenville Clark and Louis B. Sohn’, (1958) 121(3) World Affairs 89; E. Turlington, ‘Review of World Peace through World Law by Grenville Clark and Louis B. Sohn’, (1959) 53 American Journal of International Law 203. 33 H. Lauterpacht, ‘Review of World Peace Through World Law by Grenville Clark and Louis B. Sohn’, (1958) 34 International Affairs 502. 34 J. A. Andrews, ‘Review of World Peace Through World Law by Grenville Clark and Louis B. Sohn’, (1962) 25(2) Modern Law Review 264. 35 E. Roosevelt, ‘My Day’, 20 December 1961. 36 See e.g., ‘World Peace Through World Law: Comments by National Leaders’, US, Congressional Records 1958, at 6468–​6470. ‘World Law Resolution’, US, Congressional Records 1959, at 5470–​5471; and US, Congressional Records 1959, at 6587–​6590; ‘World Law-​ The Bridge Between the Danger and the Dream’, US, Congressional Records 1959, at 5868–​ 5870. ‘World Law Mail Survey Reveals Support By ‘Who’s Who’ Listees For UN Charter Revision’, US, Congressional Records 1960, at 9818–​9. 37 US President Lyndon Baines Johnson signed a proclamation on 8 July 1965, and gave a statement on that occasion, US, Congressional Records, 1965, at 18879. See also ‘World Peace Through Law’, US, Congressional Records, 1965, at 23397–​8.

342 Spijkers The Clark-​Sohn plan was also picked up by the American Bar Association (aba). But soon thereafter, the aba began to distance itself from the plan, and from world law. Instead, the focus was on strengthening the international rule of law. To downplay the importance of this change in terminology, aba President Charles Rhyne stressed that the ideal of both approaches was basically the same.38 To develop Rhyne’s plan further, a Special Committee on World Peace Through Law was appointed,39 followed by the World Peace Through Law Centre.40 Under the auspices of this Centre, various regional and world conferences were organised, all focusing on promoting the international rule of law, and not world law;41 although we do find occasional references to world law here and there.42 Around the same time, a World Law Fund was established, to publish teaching materials on world law for university and college use, and to set-​up teacher training programs.43 The teaching materials took world order as key term, and distanced themselves more and more from world law and the Clark-​Sohn plan, regarding the latter as not ‘sacrosanct; there are other ways to conceive of a warless world’.44 38 39 40

41

42

43 44

Ch. S. Rhyne, ‘World Peace through Law: The President’s Annual Address’, (1958) 44 American Bar Association Journal 937 at 998; see also ibid., at 999–​1000. ‘Progress toward World Peace through Law’, (1960) 5 Section of International and Comparative Law Bulletin 10. Rhyne directed the Committee. L. M. Jr. Tondel, ‘The Washington World Conference on World Peace through Law’, (1965) 51 American Bar Association Journal 1033. World law was referred to only occasionally. See e.g., N. H. Thompson, ‘A Look after One Year at the World Peace through Law Center’, (1965) 51 American Bar Association Journal 68. The first conference was held in June 1961 in San Jose, Costa Rica; the second in September 1961 in Tokyo, Japan; the third in Lagos, Nigeria, in December 1961. For the declarations, see US, Congressional Records, 1962, at 885–​890; for reports, see J. C. Satterfield, ‘The San Jose Conference on World Peach through Law’, (1961) 47 American Bar Association Journal 993; and Th. Reid and J. F. Sams, ‘Conferences on World Peace through Law Held at Tokyo, Japan, and Lagos, Nigeria’, (1962) 48 American Bar Association Journal 649. See e.g., ‘Declaration of Faith in World Order under Law’, adopted in Washington, D.C., 18 September 1965, reproduced in (1965) 51 American Bar Association Journal 1046; A. L. Springer, ‘Report from Bangkok’, (1969) 55 American Bar Association Journal 1165; W. S. Thompson, ‘The Belgrade World Peace through Law Conference’, (1971) 57 American Bar Association Journal 1121; ‘World Peace through Law Conference Held in Washington in October’, (1975) 61 American Bar Association Journal 1518; and ‘Tenth Conference on the Law of the World Held in Brazil’, (1982) 68 American Bar Association Journal 66. ‘Realism and World Order’, A talk given by H. Hollins, at the Institute for Religious and Social Studies on 10 January 1967, US, Congressional Records 1967, at 9858–​9860. R. A. Falk and S. H. Mendlovitz, eds, The Strategy of World Order (Vol.1, 2, 3 & 4) (1966). See esp. Vol. 2: International Law, at 5–​6.

World Law’s Modern Master Builders

343

The influence of world law on US foreign policy was rather limited. When US Senator Dick Clark wanted a meeting with the US Secretary of State to sell the plan to him, the latter was told by his advisors to listen politely, and then kindly inform the senator that there was no chance that this plan would gain the broad international acceptance to make it effective.45 Illustrative is also the reaction to a suggestion that the legal aspects of the dispute between the US and the Soviet Union on the status of Berlin be settled by the World Court46 on the basis of world law.47 Advising the United States Government against such a course of action, Dean Acheson, then acting as adviser to the United States Government, wrote that ‘[m]‌any Americans are in the grip of the illusion inherent in the American Bar Association slogan “World peace through world law” [but] no one else is; and we really do not believe it, either.’48 Something similar happened in the United Kingdom. The Clark-​Sohn plan had its influence on the political debates across the Atlantic, but ultimately failed to persuade the government itself.49 Remarkably, even United Nations Secretary-​General Dag Hammarskjöld was unpersuaded by the world law plan. He felt that ‘the political realities with which we live, rooted as they are deep in the disparate histories and cultures of many peoples, make this course impracticable for the foreseeable future’.50 In the 1990s, an attempt was made to revive world law. This time, it was not so much motivated by a crisis, but more by academic curiosity, and the opportunities for change that resulted from the end of the Cold War. In 1995, Harold Berman, American professor at Harvard Law School, predicted a great future for world law.51 His world law was more of an academic project, rather than a call for a world parliament empowered to legislate on behalf of all the world’s

45 46 47 48 49 50 51

‘Memorandum from the Assistant Secretary of State for International Organization Affairs (Wilcox) to the Secretary of State’, 12 October 1959, Foreign Relations of The United States, 1958–​1960, Vol. ii, United Nations and General International Matters, Document 99. In the world law tradition, the International Court of Justice (icj) is generally referred to as the ‘World Court’. Ch. S. Rhyne, ‘Appeal to World Law’, US, Congressional Records, 1961, at 19899. Report by D. Acheson (undated), Foreign Relations of the United States, 1961–​1963, Vol. XIV, Berlin Crisis, 1961–​1962, Document 89. See e.g., UK, House of Lords Debate, 22 July 1959, Vol. 218, Columns 389–​435. UN Secretary-​General Dag Hammarskjöld, Address to a Meeting of Members of Both Houses of Parliament under the Auspices of the British Group of Inter-​Parliamentary Union, UN Doc. sg/​668 (1958). H. J. Berman, ‘World Law’, (1995) 18 Fordham International Law Journal 1617. See also Th. Murray, ‘World Law and the World Law Institute’, (2008) 22(1) Emory International Law Review 7.

344 Spijkers citizens.52 Unfortunately, Berman’s project did not have the same mobilizing force as that of the earlier effort, ignited by the world law of Clark and Sohn.53 3

Wereldrecht

Let us now turn to popular, political, and academic debates on wereldrecht in the Netherlands. We start, not with a period of crisis, but with a period in which the world was recovering from one of the biggest crises it had ever experienced. The ‘roaring 1920s’, which immediately followed the devastation of the First World War, were the heydays of Dutch wereldrecht.54 After proceeding with some remarks on wereldrecht as language of hope in the 1930s, this section ends with a brief description of what the wereldrecht tradition’s role is in present-​day debates on world order in the Netherlands, with a focus on the part played therein by wereldrecht’s principal modern master builder, Nico Schrijver. Shortly after the First World War, United States President Wilson’s plan to create the League of Nations was recognised as a major leap forward in the evolution of wereldrecht, which was said to have begun in earnest with the Hague Peace Conferences of 1899 and 1907.55 In an attempt to persuade the members of Dutch Parliament to vote in favour of League membership, then Minister of Foreign Affairs Karnebeek used the term wereldrecht to describe the League system. ‘If the Netherlands does not appreciate participating in this new wereldrecht’, the Minister argued, ‘we will be branded as an outlaw’.56 This, he presumed, would not be a good thing for the country of Hugo de Groot (Grotius). The term was picked up. In 1922, a summary of a lecture by Member of Parliament Joseph Limburg on the establishment of the Permanent Court of International Justice (pcij), was published in the Fabrieksbode, a magazine circulated among the workers of a Dutch yeast and spirit factory. Limburg 52

ibid. See also H. J. Berman, ‘Introduction to the World Law Institute’, (2008) 22(1) Emory International Law Review 1. 53 In a book that gives a complete overview of the current academic debate on the globalization of law, the term world law is conspicuously absent: J. L. Fabra-​Zamora (ed.), Jurisprudence in a Globalized World (2020). 54 The term wereldrecht first appeared already much earlier, in the late 19th century. See e.g., ‘Beginselen van een Algemeen Wereldrecht’, Vlaardingsche Courant, 19 September 1877. 55 See e.g., F. Smit Kleine, ‘De Bouwmeesters van het Wereldrecht’, (1906) De Tijdspiegel 121. The title of this book chapter is a variation of Smit Kleine’s famous article of 1906. 56 Netherlands, Parliamentary Debates, 19 February 1920, at 1382. These records can be consulted online at https://​repository.overheid.nl/​.

World Law’s Modern Master Builders

345

referred to the establishment of the League, and the creation of the pcij, as crucial steps in the evolution of wereldrecht. ‘The legal scholars of the last century, who could only dream of wereldrecht and world order, would shout with joy’, he exclaimed, ‘if only they could have witnessed the creation of the League of Nations! A wereldrecht all states have to submit to, it seemed to them an illusion’.57 Limburg felt that the Dutch people should be proud that the seat of the pcij was established in the Dutch city of The Hague (Peace Palace).58 This same message, i.e. that the Netherlands had a prominent role in the evolution of wereldrecht, we already find in a proposal of 1878 for the erection of a statue of the founding father of wereldrecht, Grotius, in the city of Delft.59 Twenty-​one women’s associations, of various ‘political color’, but with a common ‘desire for world peace and wereldrecht’, together came up with the idea of preparing a lowly priced brochure, introducing the League of Nations to ordinary people in simple, clear language.60 Everyone had a duty, the associations felt, to promote world peace and wereldrecht by informing family, friends, and colleagues of the League, and such a brochure could do the job.61 When a new war seemed inevitable, and eventually broke out, enthusiasm for wereldrecht diminished. But reference was still made to it occasionally. Some saw in wereldrecht an indispensable remedy against the rise of totalitarian states. The very last words of a book by Dutch economist and politician Jacob van Gelderen, published in 1939, read as follows: The growing world economy demands the construction of wereldrecht, because both are the indispensable foundations for a true community of nations. As long as this ideal does not perish in the Western world, may we also remain confident that this wild and feverish lust for power of the totalitarian states will pass like an evil dream.62 Others looked upon wereldrecht as foundation for a post-​war world. In an attempt to keep spirits up in the dark 1930s, Marinus van der Goes van Naters 57

‘Het Permanent Intern. Gerechtshof (The Permanent Court of International Justice)’, Fabrieksbode, 17 June 1922. 58 ibid. See also Speech by Minister of Foreign Affairs Karnebeek, held at the inaugural session of the Permanent Court of International Justice in the Peace Palace in The Hague, Telegraaf, 16 February 1922. 59 See e.g., Het Nieuws van den Dag, 15 April 1878; and Weekblad van het Regt, 11 April 1878. 60 A. van Blommestein-​van Nieuwkuyk, ‘Het Statuut van den Volkenbond (The Statute of the League of Nations)’, Gildeblad, April 1925. 61 ibid. 62 J. van Gelderen, De Totalitaire Staten contra de Wereldhuishouding (1939).

346 Spijkers shared his initial ideas for a post-​war world with his fellow Members of Dutch Parliament. ‘It is perhaps too early to sketch a new international legal order, a wereldrecht’, he said in November of 1939, but he went ahead to provide such a sketch anyway.63 ‘A truly supranational legal relationship must be forged’, he continued, with a new kind of world league, authorised to make wereldrecht with primacy over domestic law.64 He suggested that the Netherlands should take the lead in building this world order based on wereldrecht.65 There are other examples, but from the above we already get a sense of how the term wereldrecht was used in the Netherlands to give hope to people in times of post-​crisis reconstruction (‘roaring 1920s’), and in times of actual global crisis (1930s). Let us now turn to more recent times. The focus is on the contributions of Nico Schrijver, to whom this book chapter is dedicated. Let us look first at his role as a teacher of wereldrecht. The first time that the optional course on wereldrecht was offered at the Leiden Law School, was in the academic year 2005–​2006.66 The course syllabus introduced the course’s theme as follows: International law provides an indispensable framework for peace, security, stability and sustainable development in international society. Over time, this body of law has evolved tremendously: from the law of nations, through public international law, to wereldrecht, which aims to bind the entire world community to fundamental values and norms that undergird efforts to achieve peace, respect for human values and sustainable development. In this elective course, we will seek to find out to what extent this wereldrecht has already taken shape, and which bottlenecks still need to be identified and eliminated.67 Let us now turn to his writings on wereldrecht. In 2010, a special issue on wereldrecht was published by the Nederlands Juristenblad, with Leiden University professors Nico Schrijver and Janneke Gerards as guest editors.68 In short, the 63 Netherlands, Parliamentary Debates, 8 November 1939, at 292. 64 ibid. 65 ibid. 66 In my time as PhD Candidate at the Grotius Centre for International Legal Studies of Leiden University, I had the privilege and pleasure to set-​up and teach this course together with Prof. Nico Schrijver and other colleagues, including Lennert Breuker, Sander Dikker Hupkes, Daniëlla Dam-​de Jong, and Emilie Kuijt (2006–​2011). 67 N. Schrijver, L. Breuker, and O. Spijkers, Wereldrecht Syllabus 2005–​2006. 68 J. Gerards and N. Schrijver, ‘Tot Zover de Aarde Strekt: Een Inleiding bij 65 Jaar Wereldrecht’, (2010) 85 Nederlands Juristenblad 2. See also N. Schrijver, Internationaal Publiekrecht als

World Law’s Modern Master Builders

347

concept of wereldrecht was said to refer to a limited set of fundamental principles and norms of public international law, based on global values, accepted and recognised by the international community as a whole, the observance of which was regarded as a legal interest of that international community.69 Global values ​​referred to were peace and security, social progress and sustainable development, human dignity, and self-​determination.70 This wereldrecht, based on these globally shared values and ​​ interests, was meant to operate within the already existing framework of the UN Charter and the basic rules contained therein, i.e. the principle of sovereign equality and territorial integrity of all states, the prohibition on the use of force, the principle of non-​ interference in the internal affairs of other states, and a general aspiration for equality and mutual benefit, and peaceful coexistence.71 A year later (2011), Nico Schrijver published the book Internationaal Publiekrecht als Wereldrecht.72 This was the textbook for above-​mentioned elective course offered at Leiden University. Principles and rules of public international law could, according to Schrijver, be qualified as wereldrecht if they ‘apply throughout the world and are accepted by the international community as a whole’.73 Moreover, the legal concept of obligationes erga omnes (obligations towards all) indicated the existence of wereldrecht,74 as did the plethora of multilateral treaties ratified by (almost) all States in the world.75 Other characteristics of wereldrecht included their worldwide scope of application, their link with global norms and values, and the major role of the United Nations and world conferences in their formation.76

Wereldrecht: Een Inleiding (2011). This book was used as textbook for an elective course on world law, which was offered at Leiden University, and taught by Nico Schrijver and me. 69 O. Spijkers, ‘De Notie van Wereldrecht Vóór, Tijdens en Na De Oprichting Van De Verenigde Naties’, (2010) 85 Nederlandsch Juristenblad 12. 70 O. Spijkers, The United Nations and the Evolution of Global Values (2011). 71 These principles were first proclaimed in an agreement between India and China, signed at Peking, on 29 April 1954, United Nations Treaty Series, Vol. 299, at 57. For a reconfirmation, see e.g., W. Jiabao (Premier of the State Council of the People’s Republic of China), ‘Carrying Forward the Five Principles of Peaceful Coexistence in the Promotion of Peace and Development’ (speech to celebrate the 50th anniversary of the Five Principles), delivered on 28 June 2004; and ‘China and the United Nations’, Position Paper of the People’s Republic of China for the 74th session of the United Nations General Assembly, 18 September 2019. 72 N. Schrijver, Internationaal Publiekrecht als Wereldrecht (2011, first edition). 73 N. Schrijver, Internationaal Publiekrecht als Wereldrecht (2018, third edition), at 9. 74 Ibid, at 180. 75 Ibid, at 181. 76 Ibid.

348 Spijkers Contrary to the UK/​US world law tradition, the Dutch wereldrecht does not propose a world parliament, or anything of that sort. Dutch wereldrecht was more modest in its ambitions, and thus more realistic. Ideally, wereldrecht is made and applied multilaterally. But what if this proves to be difficult? In a recent publication, Ceric Ryngaert looked at ways in which states can unilaterally promote value-​based principles of international law, i.e. through ‘selfless intervention’.77 Provided that a ‘value-​based international community is proven to exist’, he wrote, ‘one may venture to pose a next question: can states, as individual members of this community, also unilaterally further community values when other members fail to act jointly or separately?’78 Essentially, Ryngaert believed the challenge for the international lawyers of today was to investigate how the rules on jurisdiction –​with their solid grounding in state sovereignty –​could be ‘reinterpreted to serve cosmopolitan or “selfless” ends, alongside parochial, national interest-​based ends’.79 Even though Ryngaert did not use the term wereldrecht, his efforts to marry sovereignty with cosmopolitanism place him clearly within this tradition. 4

Sekai-​hō80

Let us now travel to Japan. Between 1932 and 1934, Japanese lawyer Kōtarō Tanaka published his theory of sekai-​hō.81 His theory was rooted in natural law, as an alternative for legal positivism, which was popular in a time of fascism and Japanese nationalism.82 Tanaka’s main argument was that the law came directly from society, and was not the product of ​​the state or the (ethnic) nation. He also argued that the emergence of a world society, especially in an economic sense, implied the existence of sekai-​hō.83 Some decades later, he 77 78 79 80 81 82 83

C. Ryngaert, Selfless Intervention: The Exercise of Jurisdiction in the Common Interest (2020), esp. Chapter 6. Ibid, at 1. Ibid, at 210. Since I am not fluent in the Japanese language myself, I have gratefully benefitted from the assistance and suggestions provided to me by Machiko Kanetake, Hirofumi Oguri, Mari Takeuchi, and Shin Kawagishi. K. Tanaka, Sekai-​Hō No Riron, Vol. 1 (1932), Vol. 2 (1933), and Vol. 3 (1934). K. Yokota, ‘Regret at the Passing of Chief Justice Kōtarō Tanaka’, (1974) 18 Japanese Annual of International Law iv. For a summary of Tanaka’s theory, see K. Takeshita, ‘Sadajiro Atobe and Kōtarō Tanaka: The Universal Private International Law School of Thought in Japan’, (2013) 56 Japanese Yearbook of International Law 229; K. M. Doak, Tanaka Kōtarō and World Law: Rethinking the Natural Law Outside the West (2019), at 41–​62.

World Law’s Modern Master Builders

349

presented his ideas also in Europe, for example in France,84 where they clearly had their influence.85 In 1963, the World Association of World Federalists met in Tokyo, Japan. The Preamble of the Tokyo Declaration, adopted at this conference, welcomed ‘the dynamic effort for world peace through world law in Japan, which has experienced the horror of nuclear war’.86 ‘The world cannot survive without enforceable world laws, world police and world courts’, the Declaration proclaimed, ‘[i]‌n the nuclear age world law is realism: the present international anarchy is wholly unrealistic’.87 And thus, ‘the United Nations should be transformed into a world federation’.88 Shigejirō Tabata, professor of international law at Kyoto University and strong supporter of a world federation,89 realised that these proposals would be difficult to sell to politicians and people in power, but he insisted that they ‘cannot be dismissed as purely utopian proposals’.90 The way forward was to further refine the proposals, and ‘make them appealing to the people of the world’.91 It was therefore ‘desired that international jurists and scholars of international politics participate more actively in such discussions’.92 To facilitate these, Shigejirō Tabata established the Sekaiho Kenkyukai (Study Group on World Law) in 1965, which later turned into the Sekaiho Gakkai (the Japanese Association of World Law), which still exists today.93 Around the same time, Tanaka was appointed a judge of the World Court (from 1961 to 1970). He used some of his dissenting and separate opinions to 84

K. Tanaka, ‘Une Esquisse d’une Théorie du Droit Mondial’, (1938) 3 Annales de l’Institut de Droit Comparé de l’Université de Paris 303. 85 K. Tanaka, Natural Law and World Law: Essays to Commemorate the Sixtieth Birthday of Kōtarō Tanaka (1954), with contributions from, among others, Hans Kelsen. 86 ‘Tokyo Declaration’, adopted at the Tokyo Conference on World Federation, annexed to Shigejiro Tabata, ‘World Federation: The Eleventh World Conference of the World Association of World Federalists, Tokyo 1963’, (1964) 8 Japanese Annual of International Law 37. 87 ibid. 88 ibid. 89 See his early work, esp. S. Tabata, Sekai Seifu No Shisō (1950), which contained a preliminary draft of a world constitution. 90 Shigejiro Tabata, ‘World Federation: The Eleventh World Conference of the World Association of World Federalists, Tokyo 1963’, (1964) 8 Japanese Annual of International Law 37, at 36. 91 ibid. 92 ibid. 93 Y. Ishimoto, ‘Dr. Shigejirō Tabata (1911–​ 2001)’, (2001) 44 Japanese Annual of International Law 2.

350 Spijkers introduce sekai-​hō to the world.94 Shortly after he retired from the World Court, he further developed the sekai-​hō theory he began to advocate in the 1930s. He regarded the influence of general principles of law on the jurisprudence of the World Court as a sign of sekai-​hō. Indeed, unlike treaties and customary law, these general principles of international law were binding on states, regardless of whether they had consented to them or not. These principles gave the judges a certain freedom of interpretation, a certain autonomy from the sovereign states.95 Tanaka himself admitted that he has not fully developed his sekai-​hō theory. He saw this as a task for the next generation.96 In 1984 Yasuhiko Saito published an article building on the work of Tanaka. Saito defined sekai-​hō as ‘the ensemble of laws of the world community, which covers not only traditional legal relations between states, but also embraces all the multifarious traffic across national frontiers of the millions of individuals who compose the populations of states’.97 Saito paid particular attention to concepts such as jus cogens, obligations erga omnes, and actio popularis, as elements of sekai-​hō. Like Tanaka, Saito argued for more freedom for judges when interpreting international law. Judges should prefer a free, elastic and teleological approach over the rigid and formalistic method, Saito argued, which stems from an exaggerated respect for the absolute sovereignty of states.98 The Japanese sekai-​hō tradition combined activism with scholarly debate. In the early days (1930s), the focus was on the former, and in the latter days, the focus was more on the latter. Can Japanese sekai-​hō play a role in today’s debates? The Japanese Association of World Law does not really distinguish anymore between sekai-​hō and traditional public international law. Over time, the Association has become more academic, and detached itself somewhat 94

95 96

97

98

See Dissenting Opinion of Judge Tanaka to International Court of Justice, South West Africa (Ethiopia/​Liberia v. South Africa), Judgment of 18 July 1966, at 296–​298; and Dissenting Opinion of Judge Tanaka to International Court of Justice, North Sea Continental Shelf (Federal Republic of Germany/​Denmark/​Netherlands), Judgment of 20 February 1969, at 178 and 196. K. Tanaka, ‘The Character of World Law in the International Court of Justice’, (1971) 15 Japanese Annual of International Law 1. H. Oguri, ‘Conceptions of International Law in Tanaka Kōtarō’s Theory of World Law: Their Natural Law Basis and the Roles of General Principles of Law’, (2020) 39 Yearbook of World Law 64. This article is in Japanese, but the author kindly provided me with an English summary. Y. Saito, ‘International Law as a Law of The World Community: World Law as Reality and Methodology’, in United Nations Institute for Training and Research (ed.), The Spirit of Uppsala: Joint UNITAR-​Uppsala University Seminar on International Law and Organization for a New World Order (1984), 233. ibid., at 246.

World Law’s Modern Master Builders

351

from the activism and the starry-​eyed idealism of the world federalist and peace movement. But we might see a revival. It is striking to see that very recently an in-​depth study of Tanaka’s sekai-​hō theory came out, and that the next generation of Japanese international law scholars are revisiting and building on his work.99 5

Weltrecht

In 1896, the pacifist Moritz Adler argued that it was in all states’ own interest to strive towards a universal prohibition of war. He saw this prohibition on the use of aggressive inter-​state military force as the ‘root’ of Weltrecht, and predicted the tree would rise more and more majestically, its branches overshadowing the entire world. And from these branches would drop norms and principles of Weltrecht, falling to the ground like flowers and fruits.100 In the Weltrecht literature, an interesting debate developed on how to understand and appreciate this growth of the tree of Weltrecht. In this section, we will zoom in on that debate. Basically, the discussion danced round the European origins of Weltrecht, and whether its global dissemination should be seen as a European project –​or not. At the end of this section, we will also look at present-​day approaches to Weltrecht. Weltrecht was seen as an attempt of the European –​and Christian –​powers to impose their values and legal traditions upon the rest of the world, and scholars differed on whether this was a good or a bad thing.101 In 1906, Ferdinand von Martitz, one of the first German scholars to specialize in international law, wrote that European international law was ‘constantly expanding its geographical scope, and has the potential of becoming Weltrecht’.102 Seven years later (1913), in the revised edition of his textbook on public international law, he changed the wording into: ‘European international law, constantly expanding 99

K. M. Doak, Tanaka Kōtarō and World Law: Rethinking the Natural Law Outside the West (2019). 100 M. Adler, ‘Das Recht des Stärkeren als Recht des Schwächeren’, (1896) 5 Die Waffen Nieder! 100, at 104; J. ter Meulen, Der Gedanke der Internationalen Organisation in Seiner Entwicklung (1940), at 354–​358. 1 01 Opitz, ‘Welches Ist das Verhältnis der Bisherigen Machtpolitik zu den Forderungen der Zeit zu den Fortschritten der Humanität und zu den Bedürfnissen des Völkerverkehres’, (1899) 8 Die Waffen Nieder! 380. This debate is often traced back to the work of Immanuel Kant, and his criticism of colonialism. See S. Muthu, Enlightenment against Empire (2003), esp. Chapter Five: Kant’s Anti-​imperialism: Cultural Agency and Cosmopolitan Right. 102 F. von Martitz, Völkerrecht (1906), at 427.

352 Spijkers in scope, has at present become a Weltrecht’.103 Apparently, the mission had already been accomplished in less than ten years! Rudolf Stammler, a German philosopher of law, wrote in 1925 that it was a mistake to see Weltrecht as referring to one gigantic tree overshadowing the entire world, or in less metaphorical terms: as a single legal culture or system uniting all people in this world. It was obvious to Sammler that no such global legal culture existed. At the same time, wherever there were people, there was law. And from all the world’s different local legal systems, Weltrecht could be deduced, as a kind of minimal global rule of law.104 Stammler’s was thus a much thinner version of Weltrecht than the versions advocated in the earlier writings, and more bottom-​up than the top-​down tree of Weltrecht. Arguing explicitly against the idea of Weltrecht as a European project, the lawyer Jacques Stern gave a lecture in 1927 at the Japanese-​German Institute for Culture in Tokyo (Japan). His essential proposition was that, only through a genuine cross-​fertilization between the legal ideas of Europe and the legal cultures of China and Japan, a true Weltrecht could come to fruition. In Stern’s view, the goal of Weltrecht was not to limit the sovereignty of the individual states, nor the creation of a world state, but the unification of all the world’s peoples into one great common legal culture.105 After the end of the Second World War, the debate on the European origins of Weltrecht re-​emerged. In 1948, the German professor of international law Walter Schätzel wrote that The originally Christian-​European international law has gradually conquered the whole world, and also included within its scope of application the many states in other parts of the world that were not involved in its creation. It has become a Weltrecht which, according to the general view, has binding force for all states in the world, and from which there is no longer any escape.106 103 F. von Martitz, Völkerrecht (1913), at 470. See also H. Wehberg, ‘Universales oder Europäisches Völkerrecht? Eine Auseinandersetzung mit Professor Carl Schmitt’, (1941) 41(4) Die Friedens-​Warte 165. 104 R. Stammler, Rechtsphilosophische Abhandlungen und Vortrage, Vol. i (1925), at 369–​ 374; A. Wegner, ‘Stammlers Rechtsphilosophie und die Überlieferung der Christlichen Völkergemeinschaft’, (1936) 29 Archiv für Rechts-​und Sozialphilosophie 320, at 330–​332. 105 J. Stern, Naturrecht und Weltrecht im Lichte der Rechtsentwicklung Japans und Chinas (1927). 106 W. Schätzel, ‘Vom Völkerbund zu den Vereinten Nationen’, (1948) 1(1) Archiv des Völkerrechts 3.

World Law’s Modern Master Builders

353

This Weltrecht, Schätzel believed, was the product primarily of the Hague Peace Conferences of 1899 and 1907. For the UN to serve as the new focal point, universal membership was a necessary condition.107 In a publication of 1953, Verdross made the argument that international law, although originating in Europe, was based on global values that applied to all human beings, and could develop into a true Weltrecht.108 In other words, the debate just kept on trucking, and does so even today.109 In the 2000s, there has been renewed attention to Weltrecht.110 In January 2003, an interdisciplinary (sociology and law) conference on Weltrecht took place at Bielefeld University, and the papers presented there were published in a special issue of Rechtstheorie in 2008. The work of the German sociologist Niklas Luhmann, particularly his analysis of world society as a social system, was used as point of departure, even though Luhmann himself never used Weltrecht as a concept.111 The conference’s central question was whether one could speak of Weltrecht, as ‘the glue that holds the world (society) together’.112 Jost Halfmann noticed a tension between the formal authority of states to develop Weltrecht which retained its primacy, and the way in which various non-​state actors in practice contributed to this development.113 Udo di Fabio spread out a patchwork quilt of legal cultures, all interacting and overlapping in various ways. These were sewed together by a Weltrechtsordnung, an emerging legal system of world society, which was becoming increasingly powerful beyond national boundaries.114 Klaus Ziegert emphasized law’s Ortsgebundenheit: he believed that legal cultures are generally tied to a particular place, and Weltrecht was devoid of such place. His conclusion was thus 1 07 ibid. at 5–​7. 108 A. Verdross, ‘Die Wertgrundlagen des Völkerrechts’, (1953) 4(2) Archiv des Völkerrechts 129, at 130. 109 See e.g., B. Fassbender, A. Peters, and S. Peter (eds.), The Oxford Handbook of the History of International Law (2012). 110 The term Weltrechtsprinzip is commonly used to refer to universal jurisdiction. See e.g., A. Fischer-​Lescano, ‘Weltrecht als Prinzip: Die Strafanzeige in Deutschland gegen Donald Rumsfeld wegen der Folterungen in Abu Ghraib’, (2005) 38(1) Kritische Justiz 72. 111 N. Luhmann, ‘The World Society as a Social System’, (1982) 8(3) International Journal of General Systems, at 131–​138. 112 M. Schulte, ‘Weltrecht in der Weltgesellschaft: Prolegomena zu einer Selbst-​und Fremdbeschreibung des Rechtssystems als Weltrechtssystem’, (2008) 39(2/​3) Rechtstheorie 143, at 145. 113 J. Halfmann, ‘Nationalstaat und Recht der Weltgesellschaft’, (2008) 39(2/​3) Rechtstheorie 279, at 279–​300. 114 U. di Fabio, ‘Verfassungsstaat und Weltrecht’, (2008) 39(2/​3) Rechtstheorie 399, at 413, footnote 36.

354 Spijkers that Weltrecht should instead be understood as a Netzwerkkarte, connecting all the different local legal cultures in this world.115 Rudiger Voigt questioned whether, in addition to the national and international legal order, a third legal order had emerged: Weltrecht.116 Before an affirmative answer to that question could be given, first of all there had to be clarity about the content of this Weltrecht (the material sources); a world legislator needed to be identified (the formal source); the legislative power of this world legislator had to be legitimised in some way; there had to be a way for this Weltrecht to be enforced; and the formal relationship between Weltrecht and the national and international legal order had to be sufficiently clear.117 Voigt came to the conclusion that a Weltrecht, as a true third legal order, was at best only beginning to emerge. It was thus not only worthwhile, Voigt said, but even urgently needed for scholars to continue to follow this development.118 There was also a sceptic in the room at Bielefeld University. ‘The wish is father to the thought’, remarked Werner Krawietz, when this so-​called Weltrechtssystem is presented, primarily by scholars, as a comprehensive, uniform legal system encompassing the entire (world) society, capable of solving all the world’s emerging legal questions.119 Even if the term Weltrecht is only used for rhetorical effect, argued Krawietz, such strategically used ‘conceptual fuzziness’ should be avoided.120 ‘No dream is more deceptive than that of a world community or a world state’, concluded Krawietz, and ‘the same could be said of Weltrecht!’121 6

Droit Mondial

Let us travel, finally, to France. The Association pour le développement du droit mondial was founded in 1963 by a group of lawyers and sociologists, at the initiative of René Cassin. This association set itself the goal of distilling common 115 K. A. Ziegert, ‘Weltrecht und Regionale Differenzierung’, (2008) 39(2/​3) Rechtstheorie 453, at 453–​475. 116 R. Voigt, ‘Weltrecht –​Entsteht eine Dritte Rechtsordnung’, (2008) 39(2/​3) Rechtstheorie 357, at 357–​382. 117 ibid., at 359. 118 ibid., at 377. 119 W. Krawietz, ‘Weltrechtssystem oder Globalisierung des Rechts? Konstruktion und Rekonstruktion der Modernen Welt des Rechts in Kommunikations-​und Systemtheoretischer Perspektive’, (2008) 39(2/​3) Rechtstheorie 419, at 419–​51. 120 ibid., at 440. 121 ibid., at 445.

World Law’s Modern Master Builders

355

principles from the domestic legal systems of all states. Those principles were to constitute the basis for droit mondial.122 According to its own statute, the association’s ultimate aim was to promote a ‘universal humanism’.123 The French droit mondial is of a rather philosophical and academic nature. It can best be understood as a fundamental criticism of the assumption that state sovereignty is the ultimate source of all international law, and a critique of states as the dominant subjects of the international legal order. In 1989, French professor Mireille Delmas-​Marty referred to international human rights law as an example of droit mondial, as it elevated the role of individuals in the international legal order from object to subject.124 The lawyer Hervé Guettard saw in global values, global citizenship, and a global democracy, elements that may provide the foundations of an emerging droit mondial.125 In 2006, a debate on droit mondial took place in Paris between Brice Couturier, Chantal Delsol, Benoît Frydman, and François Gaudu. The speakers agreed that current international law was made by and for sovereign states, and they all called for a somewhat looser relationship to state sovereignty.126 In 2007, professor and human rights activist Monique Chemillier-​Gendreau proposed a droit mondial founded on a new approach to sovereignty that was no longer attached to a particular subject –​the state –​but took on a more abstract and content-​dependent meaning. In her own words, ‘[l]‌a souveraineté doit alors être définie, non pas par un sujet, mais comme une fonction (mise en relations entre plusieurs phénomènes)’.127 Essentially, the aim of this droit mondial was the protection of ‘l’intérêt public universel’.128 It thus operated for ‘la protection des biens vitaux, le partage des ressources, l’effectivité des droits fondamentaux, les garanties de la dignité, un véritable désarmement général, etc.’129 122 ‘L’Association pour le Développement du Droit Mondial’, (1963) 15(2) Revue Internationale de Droit Comparé 377. 123 ibid., at 378. 124 M. Delmas-​Marty, Trois Défis pour un Droit Mondial (1998). 125 H. Guettard, ‘Une Utopie d’Aujourd’hui : Le Rêve d’un Droit Mondial’, (2003) 79 Vingtième Siècle : Revue d’Histoire 117. 126 B. Couturier, ‘Va-​t-​on vers un Droit Mondial ?’, in A. Bauer, B. Couturier, B. Frydman, O. Godard and Y. Jadot (eds.), Comprendre la Mondialisation iii (2014). 127 M. Chemillier-​Gendreau, ‘Droit International ou Droit Mondial ?’, in P. R. Baduel (ed.), Construire un Monde ? Mondialisation, Pluralisme et Universalisme (2007), at 159–​173. 128 ibid. 129 ibid.

356 Spijkers What conclusions can be drawn from this brief and sketchy excursion into French droit mondial? It leaves one with the impression that it is a bit of a pastime of academics, and that it did not really manage to inspire the common folks or give them hope in times of crisis. And politicians rarely referred to it. 7

Conclusion and Some Reflections

In the above sections, an attempt was made to bring to light the comforting and inspirational power of world law, in different traditions from all around the world, and to demonstrate how the term can be used to mobilize people and promote global solidarity in times of crisis and post-​crisis reconstruction. We can see in the facts of the current world the beginnings of a new Cold War. Or we can see in the very same facts of the current world the dawning of a new international legal order based on global solidarity and think of ways to use international law to further encourage that development. The choice is ours.130 Understanding the world, how it is run, and who is running it, is a team-​sport; if all of us believe in world law, then it is the easiest thing to do. But if you are the only believer in a world inhabited by the resolutely unconverted, then life can be quite tough. What conclusions, or lessons for the future, can we draw from the above? One lesson is that world law scholarship and blueprints have proved most helpful when they were not too obsessed with radical institutional reform, such as the formation of world government. Here, we can learn from the sobriety and down-​to-​earthiness of the Dutch wereldrecht tradition, of which Nico Schrijver is the master builder. It might be best to see world law as a legal technique, functioning within the existing international legal order of strong and stable sovereign states, providing subtle ways to preserve the unity of international law, by recognizing the shared interest of all states in the protection of a limited set of value-​based norms and principles.131 Strong and stable states are still the best vehicle for providing opportunities for human and communal flourishing. Indeed, it is remarkable that strong states –​i.e., states with a ‘competent state apparatus, a government that citizens trust and listen to, and 130 A.-​M. Bos, ‘Wereldrecht, Hoe Bestaat Het!’, in G. Drosterij (ed.), Behulpzaam bij het Creëren van Orde en Vrede (Niet Gerechtigheid): Opstellen voor Liesbeth Huppes-​Cluysenaer (2012), at 154. 131 See also P.-​M. Dupuy, ‘2000–​2020: Twenty Years Later, Where Are We in Terms of the Unity of International Law?’, (2020) 9(1) Cambridge International Law Journal 6.

World Law’s Modern Master Builders

357

effective leaders’ –​are most successful in fighting the coronavirus.132 At the same time, it is important to realise that sovereignty is –​and always will be –​a controversial and essentially contested concept. It is essential to think about what sovereignty means in today’s world, and whether there are –​or ought to be –​conditions attached to having and/​or exercising sovereignty, such as legitimacy, rule of law, self-​determination, accountability, etc.133 What is the role of the epistemic community of international lawyers to move world law forward? Specialists on international relations and politics inform us of the gloom and doom of the present state of affairs, and philosophers paint enlightened pictures of an ideal world. The international lawyers’ task is then to tell us how we get from the former to the latter. Indeed, ‘the giraffe is the patron symbol of the international lawyer’, wrote Thomas M. Franck, because this animal ‘demonstrates that it is perfectly possible to have one’s head in the clouds while keeping one’s feet firmly planted on the ground’.134 Demonstrable results could be regarded as justification for an epistemic community’s very existence. There have certainly been results. International courts and tribunals have sprung up like mushrooms, the World Court is more active and relevant than ever before, and we have produced lots of world law –​ i.e., value-​based multilateral treaties that are widely ratified. However, because world law itself constantly changes, the job is never done. World law does not describe some kind of grand, benevolent utopian scheme, some fixed end goal. We are not slowly progressing from a primitive state of nature, in a dialectical way, towards an organised global society ruled by world law and supranational institutions. Instead, we are muddling through the various unanticipated crises the world throws at us –​terrorism, collapsing global economy, corona, climate change, and so on. And so, if world law is the carrot, urging the world (donkey) to move forward, then we constantly need to reassure ourselves that the carrot is guiding the donkey in the right direction and not into the abyss. How exactly are international lawyers supposed to keep the donkey on the right track? Well, there exist clubs like the Academic Council on the United Nations System (acuns), established to promote the international rule of 132 F. Fukuyama, ‘The Pandemic and Political Order: It Takes a State’, July/​August 2020 Foreign Affairs 26. 133 See also R. Paris, ‘The Right to Dominate: How Old Ideas About Sovereignty Pose New Challenges for World Order,’ (2020) 74 International Organization 453. 134 Th. M. Franck, ‘Tribute to Louis B. Sohn’, (2007) 48(1) Harvard International Law Journal 23, at 24.

358 Spijkers law and strengthening of the UN. One might consider becoming a member. Nico Schrijver was Chair of acuns from 2000 to 2002. In 2003, he devoted his John W. Holmes Memorial Lecture to ‘The Use of Force under the UN Charter: Restrictions and Loopholes’.135 Speaking specifically on the use of force in and against Iraq in 2003 –​the hot topic of those days –​Schrijver reminded his audience that ‘it can never be the case that new rules are made by a few militarily powerful states and their allies and then forced down the throats of other nations’. Instead, he argued, ‘[a]‌cceptance demands negotiations and final decision-​making in the political nerve centre of the UN, imperfect as that may be’.136 Emphasis on inclusiveness, and on the central role of the UN, are both elements of the world law tradition. Moreover, Schrijver believed ‘the acuns community has here a particular role to play, in advocating a clear vision on the interplay between peace and security, sustainable development and human rights’.137 This emphasis on the responsibility of the epistemic community of world lawyers is again an important feature of the world law tradition. Of course, there exist many other academic thinktanks like acuns that one may choose to join. From the above analysis, we can draw another valuable and sobering lesson for the future: that even a considerable consensus within academia –​assuming such a consensus actually exists –​does not necessarily persuade those in power to alter their policies. One may wonder: if scientific knowledge is objective, and produced by people of undisputed expertise applying an established methodology, then why does science not always carry the day? Well, scientists often disagree amongst each other. For example, we saw that many of those scholars sympathetic to the Clark-​Sohn plan, refused to actually use the term world law. And there have been fundamental paradigm shifts in the past. International law scholars have particular moral or political beliefs, like all human beings, and those beliefs influence their research. They themselves are often guilty of blending their science with advocacy. For these and other reasons, there appears to be a growing distrust in experts. Experts are accused of claiming a certain political space as their exclusive domain, thereby taking it out of the political realm, out of public debate. This in turn fuels populist sentiments, out of which grow populist political movements.138 Instead of relying

135 N. Schrijver, ‘The Use of Force under the UN Charter: Restrictions and Loopholes’, ACUNS 2003 John W. Holmes Memorial Lecture, available at https://​acuns.org/​wp-​content/​ uploads/​2012/​09/​WebPageSchrijver_​UseofForce.pdf. 136 ibid. 137 ibid. 138 M. Koskenniemi, ‘Enchanted by the Tools? An Enlightenment Perspective’, (2020) 35(3) American University International Law Review 397, at 406–​411.

World Law’s Modern Master Builders

359

on their authority as expert, scientists are compelled to climb into the boxing ring of public opinion. Hopefully, in their efforts to win the fight, world law might be of some assistance. What about world law’s ability to offer hope to ordinary folks? Well, to find comfort in world law, you do not have to travel all around the world. Take Samuel van der Vijgh, a writer, and ‘a young and forgotten talent’.139 He was born 25 May 1876 in Dutch Brabant. He was quite sickly, so he spent most of his days in his room. He once explained to a friend how he spent his time there: That little room […] where my thoughts come, no world can give me such pleasure. I am deeply unhappy each time I have to leave it; in delight I think back to that room. That room! There, I wept and sobbed about world suffering; there, I felt a passion grow in me for world law; my little room!140 Cosmopolitan legal scholars, locked down in their little improvised home offices, unable to freely travel the world like they used to do because of the coronavirus, are instead slogging away at their new theory of world law, wereldrecht, sekai-​hō, Weltrecht or droit mondial. They might sympathize with Samuel. 139 E. De Bom, ‘Sam. G. Van Der Vijgh, een jong en vergeten talent’, (1940) Verslagen en Mededeelingen der Koninklijke Vlaamsche Academie voor Taal-​en Letterkunde 329. 140 H. Dekking, ‘Inleiding’, in S.G. van der Vijgh, Werkers (1900) (published shortly after the writer died), at 8–​9 (translated from Dutch original).

­c hapter 19

The World in Disarray. Great-​Power Competition and the Decline of Multilateralism Alfred van Staden 1 Introduction* One of the conspicuous features of present-​day world politics is the return to great-​power rivalry. Today’s great powers, the United States, China and the Russian Federation, are seeking to enhance influence and pursuing interests at each other’s expense. These powers show a proclivity to dividing the world into competing spheres of influence while playing an ill-​fated zero-​sum game, with one player’s gain being another’s loss. Hope has faded that, with the Cold War gone, the scourge of power politics could be exorcised or at least tamed by strong international institutions, expanding international norms and the spirit of co-​operative internationalism in general. This outcome will not come as a surprise to those who are convinced that competition among the larger countries has been the intrinsic characteristic of international relations ever since the Westphalian state-​system was established in the seventeenth century. According to realist theory, great powers are under pressure to maximise their national strength vis-​à-​vis each other in view of the security dilemma they are faced to. This dilemma is believed to arise in a world where no international authority reigns above states and self-​help is the only way to national survival. In his seminal book The Tragedy of Great Power Politics (2001), John J. Mearsheimer suggests this fundamental condition is so overwhelming that it renders the nature of governments’ intentions –​good or evil –​relatively irrelevant in threat assessments. Successive generations of scholars have been preoccupied with the recurring question as to what extent international law might constrain power plays and application of force. Alternatively, where legal norms proved too weak, they recognised that bids for hegemony on the part of emerging powers could be countered by coalitions of states willing to defend the status-​quo,

* The author is emeritus professor of international relations at Leiden University and a former director of the Clingendael Institute in The Hague.

© Koninklijke Brill NV, Leiden, 2021 | D

The World in Disarray

361

in accordance with the right to self-​defence. However, the general picture of international politics as an ongoing struggle for mastery must be nuanced, with forms of collaboration occasionally developing. An important example is the nineteenth century Concert of Europe which was based on consensus among the great powers at the time about informal rules of international behaviour as well as on active diplomacy. The Concert is widely regarded as the precursor of twentieth century multilateralism, and remains a source of inspiration in the contemporary debate about international order.1 Throughout history, the views on the relationship between law and power have shifted. Before the First World War, the balance of power as an equilibrium between the great powers was not seen as antithetical to international law, but as ‘an indispensable condition of the very existence of International Law’.2 Following the ‘Great War’ the concept was wholly discredited, being held responsible for its outbreak. Subsequently, the first attempt was made to practise the principle of collective security as embodied by the League of Nations. In the post-​1945 era, the balance of power made a remarkable come-​ back in the form of the balance of terror, aimed at war-​prevention on the basis of nuclear deterrence. This turn of history ran counter to the aspiration of many international lawyers that multilateral institutions established after the Second World War, first and foremost the United Nations, would be strong enough to ensure peace. Lawyers and others may concurrently take comfort from the fact that institutions grounded in the principle of sovereign equality have tended to level off, at least to some degree, power disparities between bigger and smaller states. The focus of this chapter will be on the three above-​mentioned countries: the US, China and Russia. The selection of the first two is self-​evident, whilst the inclusion of Russia needs some explanation. The country is not playing in the same league as the two real superpowers, owing largely to its relative economic weakness. The US has been a global power for many decades while China, too, is increasingly acquiring global reach. Despite this, Russia remains part of the analysis since it commands the full spectrum of military capabilities, being roughly at par with the US in the domain of strategic weaponry. Moreover, it has demonstrated the ability to intervene effectively in adjacent 1 See, e.g., H. Muller and C. Rauch (eds.), Great Power Multilateralism and the Prevention of War. Debating a 21st Century Concert of Powers (2018). 2 L. Oppenheim, International Law. A Treatise i (1920), 228. Oppenheim argued that ‘[if] the States could not keep one another in check, all Law of Nations would soon disappear, as, naturally, an over-​powerful State would tend to act according to discretion instead of according to law’.

362 Staden territories by means of hybrid warfare and in the Middle East by air power. Russia now is also steadily expanding its military influence in African countries by increasing arms sales, training programs, and sending mercenaries. By contrast, the European Union will not be under consideration. Despite the stated ambition to be more than a normative power, a power that derives influence from the exemplary effect of its rules and institution-​building, the Union is not yet geopolitical player. The EU’s external policies are fragmented, save for foreign trade, and are still mainly conducted by individual member states. The Union lacks strategic unity and military clout, and so the challenges facing the EU are not to be squeezed in the competition of the ‘big-​three’. In the first section of this chapter, the causes and background of the recent return to great-​power competition are analysed. As will be shown, these causes are complex and manifold. They vary from the redistribution of global power relations to shifting domestic conditions and the vagaries of leaders’ idiosyncrasies in the nations involved. In the next section, the implications of the revival of great-​power rivalry for multilateralism are discussed. As will be described, multilateral institutions have gradually turned into poor shape. In the concluding part, possibilities for revamping multilateralism in the future will be explored. Is there a new lease of life on the horizon? Multilateralism is loosely defined here as patterns of relationships among more than two states for the purpose of co-​ordinating mutual behaviour and solving common problems. It may be institutionalised into formal international organisations. 2

Causes of the Rise of Great-​Power Politics

As noted above, the causes of the rise of great-​power rivalry are complex and manifold. Any attempt to come to grips with the problem must begin with a consideration of the transformation in the global power structure that has occurred over the past twenty years or so, notably the relative decline of the United States and the rise of China. Clearly, the world is no longer dominated by the West under American leadership. The power-​transition theory explains why the interaction between established and emerging powers tends to be a source of tension and conflict, with historically speaking a high likelihood of escalation to war.3 The established (or ruling) powers are inclined to actively defend the privileges enjoyed at the pinnacle of the international hierarchy, whereas the rising power is demanding for greater political voice and higher 3 See G. Allison, Destined for War. Can America and China Escape Thucydides’s Trap? (2017).

The World in Disarray

363

status. The current transformation of the power relationship between the US and China has given rise to conflicting expectations about the rebuilding of international order. For quite some time, the US was hoping that China could be persuaded to play by the rules that it had mainly defined after the Second World War. Americans speculated that the country might be reconciled and integrated with particularly the international economic order, which was based on open markets and free trade.4 Since the beginning of the past decade, the notion of ‘responsible stakeholder’ gained wide currency in American policy circles.5 China was supposed to be willing to assume global responsibilities and take its fair share in providing global public goods in return for a place at the High Table of international consultations and negotiations. However, the speculation that China could be satisfied because it benefited from the western-​designed system turned out to be a grave error. In the same vein, the assumption proved false that increased prosperity and stronger ties would lead to China’s democratisation. Under the leadership of Xi Jinping,6 who was to accumulate more personal power than any Chinese leader since Mao Zedong, China took a different direction than was anticipated in the West. The country cast aside Deng Xiaoping’s ‘hide and bide’ strategy, which entailed keeping a low diplomatic profile and avoidance of conflict with the great powers, the United States in particular. The heirs of the Chinese empire, rooted in a civilization of at least 5,000 years, demanded weight and influence in the international councils commensurate with China’s enhanced economic power. In practical terms, this has meant that they were fighting for greater control of the Bretton Woods Institutions and other UN-​related organisations and agencies. By stressing the significance of its own value system, as reflected in a non-​pluralistic authoritarian style of governance and a special version of state-​controlled capitalism, China sought to dethrone liberal democracy as the dominant political model of the twenty-​first century. Rather than following western economic rules, Chinese leaders tried to gain support for rules of their own making, allowing for the preservation of national sovereignty and state intervention in foreign trade at the same time.

4 One of the leading academics who embraced this view is G. John Ikenberry. See his book Liberal Leviathan. The Origins, Crisis and Transformation of the American World Order (2012). 5 The phrase was first used in 2005 by the then US assistant secretary of state Robert Zoellick. 6 He was elected as secretary-​general of the Chinese Communist Party in November 2012 and a few months later as president of the People’s Republic of China. He also became chairman of the powerful Central Military Commission.

364 Staden Beijing’s efforts to be recognised as a full-​fledged great power have not remained limited to economic global governance, they also made themselves felt in the security realm. According to a view widely endorsed by conservative groups in the US, China is seeking hegemony in the Indo-​Pacific region and global pre-​eminence thereafter.7 This view seems to be rather controversial, also from the perspective of western countries. However, one can hardly deny that the Chinese leadership took an aggressive stance in upholding territorial claims, especially in the South China Sea. By building islands in contested international waters, it rejected the ruling on this matter (12 July 2016) by an Arbitral Tribunal established under the 1982 United Nations Convention on the Law of the Sea.8 Washington’s response to assert freedom of navigation in the region by flying military aircraft and deploying ships near some of the islands exemplifies the leading theme of this essay, i.e., great-​power competition. Beijing’s commitment to the abidance of international agreements was furthermore called into question by another important event, the imposition mid-​2020 of a new national security law on Hong Kong.9 The law was clearly in violation of the 1984 Sino-​British Joint Declaration. Moreover, China had started to devote massive investments to the expansion of Chinese armed forces10 while stepping-​up pressures on Taiwan in order to suppress any tendency towards lasting separation of this so-​called renegade province from the Chinese homeland. Meanwhile, following the election of Donald Trump as President of the United States in November 2016, Washington was to lose its interest in global co-​operation. By embarking on a course of belligerent unilateralism, the Trump administration broke with the traditional American line of supporting multilateral approaches. Indeed, the US had played a leading part in establishing the post-​war multilateral system in its full breadth and diversity. Successive American presidents were convinced that the sacrifices the American people were asked to make in the interest of international peace and prosperity had been very much in the American interest. It was widely believed in the American foreign-​policy establishment that, being a global power with large 7 8 9 10

See, e.g., E.A. Colby and A.W. Mitchell, ‘The Age of Great-​Power Competition’, 2020 (July/​ August) Foreign Affairs, 99 (1), at 118–​130. For other views, see D. Shambough (ed.), China and the World (2020). The Permanent Court of Arbitration served as the registry for this Tribunal. Official name: the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong special Administrative Region. China has built a blue-​water navy. At present, the country deploys more surface ships and submarines than the American counterpart. It has also launched an extensive cyber-​ warfare program.

The World in Disarray

365

strategic and economic interests, the US more than any other country benefited from conditions of security and stability that were to prevail throughout the world. Enlightened self-​interest was the name of the game. As Josef Joffe aptly put it in this context: ‘Do good for others, in order to do well for yourself.’11 President Trump turned his back on the multilateral system as it had grown over the past decades. Embracing a narrow definition of the American interest he articulated the radical view of ‘America First’. He held that the US-​ sponsored international order, with a pivotal role for multilateral institutions like the United Nations, had brought the US far more disadvantages than benefits.12 Allies and friendly states were accused of abusing the American role of security guarantor or world-​policeman by indulging in free-​riding behaviour. Trump complained that the billions America had spent to give cheap protection to ungrateful allies enabled them to modernise their economies and sustain generous welfare-​state provisions. He also targeted his criticism at the international trade rules as enshrined by the World Trade Organisation (wto). Those rules were supposed to be instrumental in the rise of China and to damage American interests. After its entry into the wto (2001), China allegedly was offered plentiful opportunities to sell its cheap products on the American home-​markets while forcing US companies to transfer advanced technologies to the country by joint ventures with Chinese partners. At the same time, the US was committed to accept putative hostile rulings by wto tribunals, that failed to give protection against the theft of intellectual property. To underscore its negative attitude towards multilateral agreements and arrangements the Trump administration decided to withdraw from the Paris agreement on climate change and the Iran nuclear deal (the so-​called Joint Comprehensive Plan of Action). It also threatened to leave the open-​skies treaty and kill the comprehensive nuclear test-​ban treaty.13 Additionally, the prolongation of the New start Treaty (due to expire early 2021) was held in limbo for quite some time because of the American demand to make China part of the agreement. Not only did the US turn its back on multilateral agreements, it also withdrew its support from parts of the United Nations Organisation. Thus,

11 12 13

J. Joffe, ‘How America does it’, 1997 (July/​August) Foreign Affairs, 76 (6), at 27. For a penetrating analysis on the subject, see I.H. Daalder and J.M. Lindsay, The Empty Throne: America’s Abdication of Leadership (2018). It also dealt blows to two important American-​Russian deals in the field of arms control. Washington abrogated the Treaty on Intermediate-​Range Nuclear Forces (1987), which raised great concerns in Western Europa, and –​as already said above –​its position was not very constructive in prolonging the New Start Treaty (2010), which set limits on strategic weapons.

366 Staden for example, in 2018 it left the UN Human Rights Council and by the end of the same year unesco. Both bodies were accused of ‘chronic bias against Israel’. Two years later, at the height of the corona crisis, Washington terminated its relationship with the World Health Organisation (who) to be followed by the notification of its withdrawal, because the organisation was supposed to be ‘too China-​centric’. By cutting funds to the who Washington actively undermined a co-​ordinated international response. Furthermore, having defined China as America’s principal opponent the US also unilaterally took punitive trade sanctions against China in order to redress its trade deficit with the country. On top of this, the administration imposed restrictive policies on Chinese companies (such as Huawei) that tried to penetrate into American and other western markets. It became increasingly clear that by waging a trade war with China, the US wielded all tools at its disposal to prevent it being overtaken by that country. Indeed, the anxiety about China growing into the strongest power in the world and being the prime national-​ security challenge had become an important, perhaps the most important, driving force in American foreign policy. It would be too simplistic to attribute the reversals in Washington’s policy to the beliefs and whims of the current American president only. For one thing, under Trump’s predecessor, president Barack Obama, US priorities had already begun to shift. By calling for nation-​building at home rather than abroad, Obama had already set narrow limits to new international commitments. However, he remained attached to working within multilateral frameworks, on the understanding that American leadership of military alliances like nato had to be shared with European allies (partnership in leadership as it was called). For another thing, the policy reversals referred to reflected to a high degree the changing mood in American society. Large sections of the American public had become frustrated over ‘the burdens of empire’, that is to say the cost ensuing from US readiness to underwrite international peace and promote the spread of liberal democracy and human rights. Enthusiasm among American voters for military intervention as justified by humanitarian purposes waned in the aftermath of expensive and unsuccessful wars in Iraq and Afghanistan. Consequently, the notion of the US being the ‘indispensable nation’ of world order lost much of its attraction and popularity. And so did the American reputation of creating an open economic order where also lesser powers could prosper and compete. International trade and globalisation in general was more and more seen as the source of domestic problems, particularly of growing unemployment among large numbers of skilled and unskilled American workers. China was accused of stealing American jobs by engaging in dumping

The World in Disarray

367

practices and maintaining poor working conditions. The president was cleverly exploiting the anti-​internationalist sentiments that had taken root in American society. One may venture the thought he accelerated policy changes already under way rather than inventing them altogether. What about Russia? As suggested before, Russia cannot match the scope of the power resources available to both the US and China. It is a one-​dimensional power, that is to say its international weight fully relies on its military strength. Russia’s economic product is just about the size of Spain or the combined product of the benelux countries. Traditionally, Russian foreign policy has been conditioned by a sense of insecurity regarding Russia’s external borders, sentiments of inferiority towards western countries, and a streak of pan Slavism. After his accession to power in 200014 Vladimir Putin set his personal marks on the direction of this policy. His autocratic style leadership was in conformity with the Russian tradition of strong leaders considering themselves the incarnation of the Russian nation and eastern orthodoxy. Putin’s beliefs of international order were based on nineteenth century realpolitik, permeated by great-​power thinking about exclusive spheres of influence that neglected the interests of smaller countries. There was a lot of resentment and humiliation on his part, leading to policy impulses of revanchism and irredentism.15 After the breakdown of the Soviet Union Russian territory had been contracted to about one half of its former size; especially the separation of Ukraine from the Russian motherland was seen as a deadly blow to national identity. Subsequently, nato’s expansion towards Russia’s doorstep provoked much outrage, also beyond Mr. Putin’s inner circle. The membership of the Western Alliance of countries that had belonged to the Soviet orbit collided with Putin’s belief that Russia could claim some natural right of interference in ‘the near abroad’. The year 2014 marked a turning point in Russia’s relations with western countries. After destabilising the Donbass region in Eastern Ukraine Russia decided, in breach of several international agreements, to seize the Crimea peninsula. Comprehensive western sanctions followed. Apparently, in order to demonstrate Russia being more than a mere regional power Putin also, in September 2015, moved to intervene firstly in the Syrian civil war in support of the regime of Bashar al-​Assad and afterward in Libya to back up the rebel forces of commander Khlalifa Haftar. Those and other events should be seen against the backdrop of Moscow’s dissatisfaction with the world as it had 14 15

In that year he was elected as president for the first time, after briefly serving as prime minister and acting president. See A. Stent, Putin’s World: Russia against the West and with the Rest (2019).

368 Staden evolved under American predominance. Like the other ‘sovereignist’ power, China, it felt disenfranchised in the international order that had grown under US tutelage since the collapse of the Soviet empire. It was urging a more balanced distribution of influence in global institutions. Besides, it feared that its domestic regime had become under threat by the spread of advancing western institutions and norms in its neighbourhood. Developments in one of the three great powers cannot be taken in isolation from each other. It is the interaction of these developments in juxtaposition with the national responses to profound changes of the global power structure that account for the return of great-​power competition. 3

The Current State of the Multilateral System

The post-​war multilateral system, despite many flaws, can be credited with some unmistakable achievements. It did contribute to greater stability and more prosperity in many parts of the world. Thus, multilateral treaties and agreements brokered through various bodies have helped avoid chaotic arms races and uncontrolled nuclear proliferation. International financial institutions were conducive to boosting trade and helped the global economy stabilise during crises. Presumably, largely due to the peacekeeping efforts made by the UN the overall levels of war-​related violence had declined significantly since 1990.16 As for the fight against poverty, an extraordinary decline in the proportion of people in extreme poverty has occurred, from 43 per cent of the world population in 1980 to 10 per cent in 2015.17 UN agencies have offered humanitarian assistance and relief when emergencies broke out. The cause of human rights was promoted by setting up independent supervisory treaty bodies, and acceptance of the doctrine of universal jurisdiction regarding the prosecution of war crimes. Undeniably, the multilateral system has become under serious strain as the result of trends and developments as analysed above. Over the past years, multilateral institutions have developed into battleground for great powers’ confrontations. Also because of the rising tide of populism and the retreat of democracy in many countries, co-​operative internationalism made way for competitive nationalism. It is no longer taken for granted that an international 16 17

See, e.g., J.S. Goldstein, Winning the War on War. The Decline of Armed Conflict Worldwide (2011). World Bank Group, Poverty and Shared Prosperity. Piecing together the poverty puzzle (2018), 2.

The World in Disarray

369

rules-​based system is in the interest of all nations. These rather depressing statements will be elaborated below. To start with the state of affairs in the main body of the United Nations, the Security Council, the following observations can be made. The inclusion in the 2005 UN World Summit Outcome Document of the Responsibility to Protect (R2P) principle18 raised expectations that the Council had found a common understanding to authorise enforcement measures to be taken for civilian protection should individual governments be unable or unwilling to protect their own populations. Four cases were identified where R2P might apply: genocide, war crimes, ethnic cleansing and crimes against humanity. After some fruitless efforts to translate the principle into practice (amongst others during the crisis in Darfur) R2P was put to a real test when civil war erupted in Libya. In February 2011, the Security Council responded to violence in the country by unanimously passing resolution 1970, which explicitly mentioned R2P. The resolution demanded an immediate cessation of violence, called for a political process aimed at domestic pacification, imposed targeted sanctions, and referred the situation to the International Criminal Court. When Libya’s political leader at the time, Moammar al-​Qadhafi, refused to comply, the Council took, by adopting resolution 1973 in following March, the unprecedented step of authorising all necessary measures (including the use of force) to protect civilians from imminent danger. Simultaneously, the world body enforced a no-​fly zone and an arms embargo.19 Scholars and practitioners alike have not failed to recognise the unique character of the event: for the first time in its history the Council had authorised the use of force against a functioning member state for human protection purposes.20 Resolution 1973 paved the way for military action carried out by a coalition of western and pro-​western Arabic states, which –​intentionally or not –​eventually led to the downfall of the Libyan dictator. The intervention caused deep divisions in the Security Council. Russia and China (and also India) chided the US and other western powers for going beyond the mandate of the resolution by pursuing, as it was put, a hidden agenda of changing regimes they did not approve. R2P was said to serve as a fig leave for the purpose of setting aside national sovereignty. Nevertheless, thereafter the principle emerged in a series 18 19 20

The Document was later unanimously adopted as a General Assembly Resolution and the R2P reaffirmed by the Security Council in 2006 (resolution 1674). For a detailed account, see K. Wester, Promise and Pitfalls of the Responsibility to Protect and Lessons to be learned from the case of Libya (2016), ­chapter 5. A J. Bellamy and N.J. Wheeler, ‘Humanitarian intervention in world politics’, in J. Baylis et al. (eds.), The Globalization of World Politics (2017), 524.

370 Staden of resolutions concerning the crisis in Syria. One of these (resolution 2165) was aimed at providing humanitarian assistance without the consent of the Syrian government. However, conflicting geopolitical interests among the permanent members explain why R2P had failed to meet the crucial test of being instrumental in stopping the mass killings by the Bashar al-​Assad regime. And so it did as regards the forced exodus of Rohingya people from Myanmar and the brutal hostilities in the Yemen war. Paralysis is an over-​used word to qualify the failure of the UN Security Council to raise to the occasion in those cases when it was much needed. But the word is by no means an overstatement when it comes to describe the Council’s months-​long struggle to take any action during the Covid-​19 crisis in 2020. The antagonism between the US and China played a major part in this sorry state of affairs; both countries had started a blame-​game on the origins of the corona virus. As the virus spread around the world it took the Council until April 9 to convene its first virtual meeting. Nine of its ten non-​permanent members, so not the US or China, had taken the initiative for this meeting. Earlier in March, when the country held the Council’s rotating presidency, China had resisted calls to declare the pandemic a threat to international peace and security under chapter vii of the UN Charter. Apparently, China attempted to minimise its own responsibility for the outbreak of the health crisis. It is helpful to recall that during the Ebola crisis in West Africa (2014) the Council had used a declaration with reference to the same chapter to justify a forceful response. China’s non-​co-​operative attitude on this issue was matched by the US in relation to a French-​Tunisian draft resolution calling for a 90-​day humanitarian pause in all armed conflicts in the world in support of the bigger battle against Covid-​19. (An exception was made for military operations against isis, Al-​Qaida and other UN-​designated terrorist groups.) Despite an urgent appeal by the UN Secretary-​General, António Guterres, the resolution was torpedoed by the US because president Trump refused to allow any reference in the resolution to the who. As mentioned above, he decided to suspend American funding to the who and terminate the American relationship with the organisation.21 Ultimately, both the US and China apparently came to the conclusion they could no longer defy the wrath of international public opinion. A compromise was struck: a new version of the French-​Tunisian resolution made no reference to either the who or to the demand for transparency. The US had 21

This paragraph on the Covid-​19 crisis is based on T.R. Pickering’s and A.M. Trivedi’s article ‘The International Order Didn’t Fail the Pandemic Alone. The United States and China Are Its Crucial Pillars’, 2020 (14 May) Foreign Affairs, Weekly Newsletter (online).

The World in Disarray

371

pressed for the latter in order to hold China accountable for the spread of the virus. On the first of July 2020, resolution 2532 was unanimously passed, no less than 111 days after the who had declared covid-​19 to be a global pandemic. The sobering episode had prompted the UN Secretary-​General to say that ‘the relationship between the three biggest powers, America, China and Russia, has never been as dysfunctional as it is today.’22 To put it in other words, covid-​19 revealed a blatant absence of global leadership. The troublesome co-​operation in the Security Council in general was reflected in the increased veto use. In the past five years Russia has wielded 14 vetoes, China five and the US two.23 One astute UN observer concluded that ‘[t]‌he security regime institutionalized in the UN Security Council has returned to its Cold War blockage, specifically in the name of the principle of non-​intervention into state affairs that ensconces all anarchy …’24 Against the backdrop of the poor performance of the UN’s watchdog the world organisation celebrated its 75th birthday in a rather sombre mood, prompting calls for the UN to reinvent itself. Similarly, the G20 demonstrated impotence to promptly react to the pandemic. Pretending to be the world’s premier forum of economic governance, it should have been at the centre of making basic decisions on the global economic recovery. It was not. As was observed early June, the G20 went absent with no plan to convene, online or otherwise, at any point in the next six months.25 The only achievement of the group was agreement in the Spring of 2020 about suspension of bilateral debt-​service payments for the world’s 73 poorest countries. However, fearing to jeopardize hard-​earned access to international capital markets many of these countries hesitated to actually request assistance. Almost needless to say that the G7 did not fare any better on the corona issue. Characteristically, in March 2020 G7 foreign ministers were not even able to issue a statement because the US secretary of state, Mike Pompeo, insisted to use the phrase ‘Wuhan virus’ in the reference to Covid-​19. A main reason for G7 ineffectiveness was disagreement about president Trump’s suggestion to readmit Russia to the club.26

22 23 24 25 26

Interview on bbc’s HARDtalk, 26 March 2020 (online). Special report ‘The new world order’, The Economist, 20 June 2020, at 10. The UK and France have refrained from using veto power since 1989. I.W. Zartman, ‘Structuring in a Vacuum: Negotiating in the Current World Disorder’, 2020 International Negotiation, 25, at 5. G. Brown, ‘The G20 should be leading the world out of the coronavirus –​but it’s gone awol’, The Guardian, 2 June 2020 (online). See the article ‘Groping for the right grouping’, The Economist, 6 June 2020, at 33.

372 Staden To complete this gloomy account of global governance, one cannot fail to overlook that at this juncture the wto is in a deep hole. The multilateral trade talks that started under the auspices of this organisation in 2001, the so-​ called Doha-​round, has been declared dead many times over. No new trade round aimed at slashing tariffs and other trade obstacles could be launched. Meanwhile, regional trade agreements started blossoming on the side-​lines, eroding multilateralism on a global scale.27 This development seems to be in line with recent tendencies towards deglobalisation, cutting off dependencies on distant regions and countries. Already before the outbreak of the pandemic crisis the integration of supply lines throughout the world had become under scrutiny. On top of this, the Trump administration dealt a severe blow to the functioning of wto by blocking the appointment of judges to the organisation’s Appellate Body. In doing so, he actually put this important mechanism at a standstill. A final note is in order on another important branch of the multilateral system, the International Criminal Court (icc). The icc, founded to serve the cause of world justice by prosecuting and trying individual war criminals, has become subject to attack from different quarters. The Court was blamed for an anti-​African bias and lack of effectiveness of its operations, unable to generate ‘significant convictions’. The decision by icc judges to open an investigation into war crimes in Afghanistan led to a new confrontation with the US. In June 2020, Washington announced to impose visa restrictions on the icc officials involved in the investigation and their families. The American reaction, which had to be taken as a gross insult to the court, was typical of the great powers’ negative attitude to the icc. Not only the US but also China and Russia had refused to ratify the Statute of Rome, the court’s basic treaty. It should be understood that for the icc to be successful backing by all permanent members of the Security Council is essential. icc cannot dispense with the Council’s referrals of suspected war criminals. Therefore, the increased reluctance of the P5 to endorse referrals to the court is one of the reasons why the record of icc is so disappointing.28 In sum, the deterioration in relations between the great powers has caused much damage to the fabric of multilateralism over the past 10–​15 years. Clearly, the multilateral system has not followed, of late, a linear path towards more co-​operation. Profound changes in the global balance of power, great-​power 27 28

On the relationship between wto rules and new rules developed by regional trade agreements, see R. Acharya (ed.), Regional Trade Agreements and the Multilateral Trading System (2016). On the icc, see C. Stahn, The Law and Practice of the International Criminal Court (2015).

The World in Disarray

373

revisionism as well as the rise of authoritarian political leaders did adversely affect its potential to meet the needs of world citizens. The new constellation does not augur well for the chances of effectively dealing with the existential threat of global warming and, most recently, pandemics. 4

The Future

In looking for possibilities of rekindling multilateralism in the future, for a new lease of life so to speak, it is tempting to rely on American re-​engagement with global institutions in view of Mr. Trump’s defeat at the presidential election of November 2020.29 Indeed, the Biden administration presumably will try to reverse the trend in US foreign policy from unilateral nationalism to multilateral internationalism. But there at least two reasons to be cautious in raising expectations about any resulting revival of global multilateralism. Firstly, it is doubtful whether president Biden will be able to heal the wounds of internal divisions and bridge the current polarisation in American society. National consensus translated into bipartisan foreign policy has been, and still is, a pre-​condition for a constructive American role in the world. It is no coincidence that all major initiatives the US has taken after the Second World War to strengthen the multilateral system were supported by the two main political parties. At any rate, Trumpism does not seem a spent force in American politics. Secondly, Mr. Trump’s departure from office did not remove other causes of deterioration in great-​power relations. China will not stop its assertive behaviour and its quest for affirmation as a global power. The cultivation of the glorious past of the Chinese empire has become, perhaps paradoxically, an important source of legitimacy of the communist regime. Nor should one count on Mr. Putin’s conversion from revanchist nationalism to the position of defender of the territorial status-​quo in Europe. In Russia, too, the preservation of domestic power is closely connected with the perception of success in the conduct of foreign policy. Raising the banner of nationalism is an important instrument for autocratic rule. One can only hope that the leaders of the countries concerned will overcome their short-​term interests by realising that their fates are too deeply intertwined to continue the game of great-​power rivalries without impunity.

29

It would appear that at the time of finishing this chapter (mid-​November 2020) Mr. Trump’s attempts at challenging the outcome of the election were bound to fail.

374 Staden The shadow of the future is looming, that is to say the common survival of all nations is at stake. Security, economic, environmental and health challenges are affecting great powers and small powers alike. A positive-​sum vision of foreign policy is required which substitutes narrow definitions of the national interest for one which includes long-​range common interests. New initiatives such as the Alliance for Multilateralism, launched in April 2019 by France and Germany, may serve as an antidote to great power chauvinism. This informal network, focused on specific projects, unite dozens of UN member states, amongst them many middle powers like Canada, Mexico, South Africa and Japan, that share the conviction that today’s major challenges cannot be dealt with separately but must be addressed jointly. For the revitalisation of the multilateral system another two conditions have to be met at least. The first one is obvious: to take account of the changed power relations in the world. As widely recognised, the institutions in existence today must be revised and adapted in order to enhance their representativeness and, with it, their legitimacy. Not only does it mean a more inclusive UN Security Council, but also a Council which should work together with the principal international economic institutions to make sure that actions in the security domain will be co-​ordinated with those in other fields. Indeed, the need for better co-​ordination makes itself felt in the whole family of global multilateral organisations, as noticed by the present UN Secretary-​General.30 In calling for a so-​called networked multilateralism Mr Guterres advocated strengthening co-​ordination among all multilateral organisations, including regional ones that may be able to make vital contributions. The UN chief’s plea deserves strong support as does his making the case for a multi-​stakeholder approach, which also involves non-​governmental organisations, corporations, regional and local authorities, and other stakeholders.31 In addition, the voting rights of China (and other emerging countries) in the imf and the World Bank should be further increased. In those institutions, the role of the US (and the European countries for that matter) inevitably will be less predominant. The establishment of the Asian Infrastructure Investment Bank (2015), on the initiative of China, must be taken as a warning sign for the risk of the emergence of parallel international institutions that may duplicate or hinder the operations of existing ones. This risk will become real if the

30 31

See his Message on the International Day of Multilateralism and Diplomacy (24 April 2020). UN Secretary-​General, ‘How multistakeholder platforms can strengthen our multilateral system’, Speech for World Economic Forum (24 January 2019).

The World in Disarray

375

present mismatch between China’s economic power and its lagging influence in world governance is not to be remedied.32 The second condition concerns the diversity of value systems and the differences of forms of government based on them. In a pluralistic world, one has to accept the co-​existence of democratic and non-​democratic systems as political reality, how appalling the behaviour of brutal dictatorships may be. The same reality also tells us that the vast majority of non-​western states are staunch defenders of the principles of national sovereignty and non-​intervention, the twin pillars of the Westphalian order. Short of UN authorisation (which has become more problematic), regime change should not be imposed by outside political forces. Rather, it is the historic mission of domestic political movements to create the conditions for democratic transition and, consequently, throw the rascals out. Any other scenario might, apart from the likelihood of failing democratic experiments, risk the outbreak of armed conflicts, involving –​directly or indirectly –​the great powers. This observation has important implications for the role of international law. For international law to be relevant a realistic assessment of possibilities and limitations is required. Given the present danger of great-​power competition escalate to war, particularly between the US and China, the role of law has to be more modest and traditional than many who believe in its progressive development wish for. Next to the protection of the global commons (the environment and climate), the emphasis in international law should be laid on the prevention of war and stabilizing interstate relations rather than on the internal reform of states. If the search for a thick legal order that sets high standards of western democracy and human rights for all countries is being blocked by the changed correlation of forces in the world, then western governments are well-​advised to lower the level of their ambition. They need to recognise that only a thinner order is attainable. That is to say, an order that is mainly directed at maintaining the prohibition of armed force, confidence-​building and arms control (including containing the risk of cyber warfare).33 It follows that a prudent course should be taken as to human-​rights promotion. To be sure, the advancement of human rights remains a moral imperative. Moreover, systematic violations of human rights lie at the root of many 32

33

Especially at the imf China remains underrepresented with a quota and voting share of only 6%. On the other hand, China’s diplomats now head four of the 15 UN’s specialized agencies. China currently pays 12% of the UN budget compared with 1% in 2000. America’s share is still at 22%. For a similar view, see A. Dworkin and M. Leonard, Can Europe save the world order? (2018).

376 Staden domestic conflicts. It is also true that those conflicts may spill over into confrontations between states. But this argument ignores the difficulty that, as far as the dealings of western countries with big powers such as China and Russia are concerned, the championing of human rights is bound to cause tensions when it is done more forcefully than the pursuance of dialogue and quiet diplomacy. Confrontations in this domain are likely to be counter-​productive. They may even lead to war preparation if incriminated leaders, being subjected to international censure, feel their own political future is under threat. Obviously, such an approach is not serving the cause of world peace. Keeping the peace between the great powers is and should be the overriding objective of world order. For the rest, whatever the importance in world politics of impersonal forces like structures of international power and historic legacies, human agents do matter. And however strong the force of circumstance, it cannot eliminate the significance of political choices statesmen as well as concerned citizens make. So, we will need the enduring commitment of practical idealists such as Nico Schrijver to transform the world into a better place.

­c hapter 20

How Can We Justify International Criminal Justice? Carsten Stahn 1 Introduction* Nico Schrijver’s research and scholarship has been inspired by Bert Röling, former Judge at the Tokyo Tribunal and Professor of International Law and Peace Research, at Groningen. Following Röling’s footsteps, Nico has approached international criminal justice as a project which is grounded in broader rationales than judgment and punishment. Much like Röling, he regards, ‘peace as the ultimate value and the superior legal norm to which, if necessary, other laudable norms [have] to be subordinated’.1 From this perspective, international criminal law should not only be backward-​looking, i.e. geared towards the past, but future-​oriented, taking into account crimes against future generations. This vision has marked his approach towards peace,2 justice,3 and the Grotius Centre more generally, which he led for more than a decade. He built the Centre as a generalist Centre, geared at bridging gaps between theory and practice and developing responses to the major challenges of our time. In his scholarship and practice regarding sustainable development and socio-​ economic and cultural rights, he has promoted a thicker vision of justice in international relations.4 This contribution is written in this spirit. It seeks to re-​think the idea of international criminal justice as a peace and justice project and to develop

* Carsten Stahn is Professor of International Criminal Law and Global Justice, Leiden Law School and Queen’s University Belfast. This contribution is derived from the author’s habilitation thesis at Humboldt University, entitled Justice as Message: Expressivist Foundations of International Criminal Justice (oup 2020). I am grateful to Darryl Robinson for invaluable comments on this contribution. 1 N. Schrijver, ‘B.V.A. Röling: A Pioneer in the Pursuit of Justice and Peace in an Expanded World’ (2010) 8 JICJ 1071, 1088. 2 S. van Hoogstraten, N. Schrijver, O. Spijkers, and A. de Jong (eds.), The Art of Making Peace (2016). 3 D. Heerdt, W. van Genugten, N. Schrijver (eds.), Discover international law: With special attention for The Hague, city of peace and justice (2017). 4 See also his review of Ratner’s thin justice, N. Schrijver, ‘Reviewed Work(s): The Thin Justice of International Law: A Moral Reckoning of the Law of Nations’ (2016) 110 AJIL 834–​838.

© Koninklijke Brill NV, Leiden, 2021 | D

378 Stahn contemporary foundations of punishment. It follows Nico’s interest in the sociological foundations of international law, which he regarded as one of Röling’s striking qualities. It argues that international criminal justice is in essence a relational project which engages multiple subjects in the performance of justice, solicits responses to international crimes, promotes answerability and constantly justifies itself through such relations. It starts with a brief intellectual history and existential doctrinal dilemmas, including the tension between realist and cosmopolitan approaches. It then develops a relational theory. Traditionally, international criminal justice is justified based on three main schools of thought: consent-​based models (e.g., delegation, social contract), procedural and consequentialist arguments, and expressivist theories. Each of these theories raise difficult justificatory problems, in light of the paradoxes of international criminal law. This contribution suggests that none of these three school suffices to provide a justification for international criminal justice. They must rather be read in a relational way. Each of them operates in relation to different stakeholders and constituencies. 2

International Criminal Justice –​A Brief Intellectual History

Historically, the justification of international criminal justice has a close nexus to the idea of peace.5 Originally, it was mainly a jurisdiction-​driven concept.6 However, the idea to view international criminal institutions as part of an effort to create peace is in particular reflected in the post-​war settlements of the first half of 20th century.7 The Treaty of Versailles marked a revival of ‘just peace’ traditions inherent in just war theory, by combining peace and punishment.8 It sought to attribute guilt through the prosecution of the German Emperor for

5 F. Mégret, ‘International Criminal Justice as a Peace Project’ (2018) 29 EJIL 835–​858. On justification and punishment theories, see F. Jessberger and J. Geneuss, Why Punish Perpetrators of Mass Atrocities? (2020). 6 Various treaties of the 19th century authorized States to punish persons engaged in the slave trade as pirates. On the origins of piracy, see M. Chadwick, Piracy and the Origins of Universal Jurisdiction: On Stranger Tides? (2018). 7 The Hague Peace Conferences of 1899 and 1907 failed to criminalize violations of the laws of war. On the role of lawyers in creating international crimes, see A. Holthoefer, ‘Constructing International Crime: Lawyers, States, and the Origin of International Criminal Prosecution in the Interwar Period’ (2017) 42 Law & Social Inquiry 711–​743; P. Sands, East West Street: On the Origins of ‘Genocide’ and ‘Crimes Against Humanity’ (2016). 8 R. Lesaffer, ‘Peace treaties and the formation of international law’, in B. Fassbender & A. Peters (eds.), The Oxford Handbook of the History of International Law (2012), 71–​94.

How Can We Justify International Criminal Justice?

379

a ‘supreme offence against international morality and the sanctity of treaties’.9 The Nuremberg and Tokyo tribunals focused to a large extent on responsibility for ‘crimes against peace’.10 They marked an attempt to frame criminal adjudication as an alternative to vengeance and vigilante justice.11 After the end of the Cold War, international criminal jurisdiction was inherently linked to peacemaking strategies and international human rights discourse. It was implied that trials and punishment serve to protect global interests, such as peace, security and human rights. International criminal law was seen as a humanitarian endeavor, namely as an instrument to strengthen the enforcement of human rights and international humanitarian law,12 and to create peace within and among societies. The limits and dilemmas of international criminal law, including its inherent tensions, were partly overshadowed by the moral appeal of the enterprise and a sense of institutional pioneering. It was assumed that justice comes with the establishment of law and authority over spaces, events or persons. More systemic analysis of the ‘justice’ of international criminal justice, including its effects, constituencies (i.e. ‘justice for whom’) and critiques, has only started with the growing number of investigations and prosecutions, empirical studies of the social, historical and political effects of norms and institutions, and emerging globalization critiques.13 They have revealed a stark discrepancy between ambition and reality. The turn to rights and institutions has strengthened procedural dimensions of justice, such as access to justice, adjudication and due process, and the protection of global interests in the name of humanity. Broader material notions of the ‘justice’ of international criminal adjudication (e.g., its retributive, restorative or distributive dimensions), and the conditions under which it may contribute to societal peace remain disputed. International criminal justice remains strongly grounded in

9

10 11 12 13

Art. 227 Treaty of Versailles. See W. A. Schabas, The Trial of the Kaiser (2018); K. Sellars, ‘The First World War, Wilhelm II and Article 227: The Origin of the Idea of ‘Aggression’ in International Criminal Law’, in C. Kreß and S. Barriga (eds.), The Crime of Aggression: A Commentary (2017), 21–​48. For a study, see K. Sellars, Crimes against Peace in International Law (2013). See L. May and S. Fyfe, ‘The Legitimacy of International Criminal Tribunals’, in N. Hayashi and C. Bailliet (eds.), The Legitimacy of International Criminal Tribunals (2017), 25–​ 40, 28–​32. T. Buergenthal, ‘The Contemporary Significance of International Human Rights Law’ (2009) 22 LJIL 217–​223. F. Mégret, ‘What Sort of Global Justice is ‘International Criminal Justice?’ (2015) 13 JICJ 77–​96; S. Ratner, The Thin Justice of International Law: A Moral Reckoning (2015).

380 Stahn pragmatism and faith. Each institution and situation is, to some extent, seen as an experiment of its own.14 International criminal law has been marked by contradictions since its inception. Classical scholars, such as Hugo Grotius and Immanuel Kant, have shaped the moral foundations of the right to punish.15 The notion of international criminal law16 may be traced back to the end of the 19th17 and the beginning of the 20th century.18 It emerged at the intersection between domestic and international law. Like public international law itself, it has witnessed a remarkable metamorphosis from a law of dispute settlement to a framework for the protection of individual rights and common goods. 2.1 Early Concepts of International Penal Law At the beginning of the 20th century, it was heavily disputed by scholars whether international criminal law is grounded in domestic law,19 international law20 or a discipline of its own.21 There was a prevailing conception that the authority to punish is reserved to the state. International criminal law was initially understood as a body of law that regulates conflicts of law between jurisdictions. Early works associated the idea of international criminal law with the exercise of jurisdiction by States over foreign crimes or domestic crimes committed by foreigners.22 This focus was captured by the term ‘international penal law’ (‘Internationales Strafrecht’). It is reflected the scope of 14

On pragmatism, see J. Snyder and L. Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’ (2003/​2004) 28 International Security 5–​44. 15 The ‘aut dedere aut judicare’ principle can be traced back to Hugo Grotius. See Hugo Grotius, De Jure Belli ac Pacis, Book ii, chapter xxi, section iv, translated by F. W. Kelsey (1925), 527–​529. On Kant, see Thomas E. Hill, ‘Kant on Wrongdoing, Desert, and Punishment’ (1999) 18 Law & Philosophy 407–​441. 16 See L. Gardocki, ‘Über den Begriff des Internationalen Strafrechts’ (1986) 98 ZStW 703; M. Köhler ‘Zum Begriff des Völkerstrafrechts’ (2003) 11 Jahrbuch für Recht und Ethik 435–​467. 17 Carl Ludwig von Bar used the German equivalent in 1862. See C. L. von Bar, Das internationale Privat-​und Strafrecht (1862). See also W. von Rohland, Das Internationale Strafrecht (1877). 18 In earlier works, problems of jurisdictions were treated under the broader label of conflicts of laws. 19 Ernst Beling, Die strafrechtliche Behandlung der Extraterritorialität (1896) 41. 20 Franz von Liszt, Lehrbuch des Deutschen Strafrechts (Berlin: J. Guttentag Verlagsbuchhandlung, 1905) 100. 21 Friedrich Meili, Lehrbuch des internationalen Strafrechts und Strafprozessrechts (Zürich: O. Füssli, 1910). 22 Edward Wise, ‘Prolegomenon to the Principles of International Criminal Law’ (1970) 16 New York Law Forum 562–​575.

How Can We Justify International Criminal Justice?

381

application of domestic criminal jurisdiction (Lotus case),23 piracy, and certain other forms of ‘universal criminality, such as trafficking of slaves, women and children, or use of explosives.24 It captured ‘the counterpart on the criminal side of the questions dealt with in civil cases under the heading “conflict of laws” or “private international law” ’.25 It was in a situation of legal limbo. Public international law set limits to the competence of domestic criminal jurisdictions. But national law determined what judges ought to do. In light of this, some scholars disputed whether ‘international penal law’ was fully distinct from private international law.26 Several writers started to defend the distinct nature of international criminal law, in contrast to private international law. Criminal law was considered as public law, but it did not neatly fit into existing rubrics. The notion emerged out of necessity. As Wise notes: The distinction between public and private law was too great to admit of any possibility of crossing-​over and, in consequence, International Criminal Law came to be fashioned, as it were, by a process of elimination.27 Early Modernism 2.2 International criminal law in the modern sense (‘Völkerstrafrecht’) was at best at an early stage. It captured certain international elements, such as immunity exceptions from domestic criminal jurisdiction and forms of international cooperation, such as extradition.28 However, concepts of international crimes and institutional dimensions were underdeveloped. There were fears that jurisdiction over atrocity offences would politicize international criminal law. For instance, Jesse Reeves argued at the Annual Meeting of the American Society of International Law in 1921 that punishment of war crimes ‘is part of a generally romantic attitude toward the world, which seeks to provide a rule

23 See pcij, S.S. ‘Lotus’ (France v Turkey), Judgment, pcij Series A No 10 (1927), 28. 24 D. de Vabres, ‘The System of Universal Jurisdiction’ (2011) 9 JICJ 906–​930, 926, originally published as ‘Le système de la repression universelle: Ses origines historiques –​Ses forms contemporaines’ (1922–​1923) 18 Revue critique de droit international privé 533–​564. 25 E. Wise, ‘Terrorism and the Problems of an International Criminal Law’ (1986–​1987) 19 Connecticut Law Review 799–​830, 802. 26 William E. Beckett, ‘What is Private International Law?’ (1926) 7 British Yearbook of International Law 73–​96, 92–​93. 27 Wise, supra note 22, 563. 28 Wise, supra note 25, 803.

382 Stahn of action based upon the theory that the defeated party to a war is he who unjustly brought it on, and that he alone commits atrocities during it’.29 In the interwar period, the League of Nations examined proposals for an international court of justice with jurisdiction to try crimes ‘against international public order and the universal law of nations.’ Ultimately, the Advisory Committee of Jurists appointed by the League came to the conclusion that the idea of a permanent international criminal jurisdiction would be premature.30 The idea to emancipate international criminal law from the domestic realm and develop its universal foundations was mainly pursued by scholars and professional bodies. For instance, Donnedieu de Vabres defended a ‘system of universal jurisdiction’ over certain categories of offences, based on ‘universality of the right to punish’.31 The International Law Association,32 the Inter-​Parliamentary Union,33 and the International Association of Penal Law34 began to advocate for an international criminal court.35 Marked by the experience of the Paris Peace Conference and the Leipzig trials, the Permanent International Criminal Court Committee of the ila argued in 1926 that trials of war crimes by domestic courts, whether by the victors or the vanquished, have proved to be unsatisfactory, caused suspicion of national bias and opened risks of inconsistent penalties.36 Hersch Lauterpacht supported the creation of an International Criminal Court in 1937. He regarded international criminal justice as a potential means to strip away the sovereign veil of the State and to establish international criminal responsibility of individuals.37 However, the concept of international criminal law struggled to gain recognition in international law. Many problems 29

J. Reeves, ‘International Criminal Jurisdiction’ (1921) 16 Proceedings of the American Society of International Law at Its Annual Meeting 62–​69, 64. 30 UN, Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/​ cn.4/​7/​Rev.1 (1949), 12. 31 De Vabres, supra note 24, 929. 32 International Law Association, ‘Report of the permanent International Criminal Court Committee’, Report of the Thirty-​fourth Conference, Vienna, 1926 (1927), 109. 33 V. Pella, ‘La criminalité de la guerre d’agression et l’organisation d’une répression internationale’, report presented to the Twenty-​third Conference of the Inter-​Parliamentary Union, Compte rendu de la xxiiie Conférence (Geneva, Librairie Payot, 1926), reprinted in (2015) 86 Revue internationale de droit pénal 851–​892. 34 UN, Historical Survey of the Question of International Criminal Jurisdiction, supra note 30, 75–​88. 35 Ibid., 12–​13. 36 Ibid.,13. 37 See M. Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’ (2004) 2 JICJ 810–​825.

How Can We Justify International Criminal Justice?

383

were still deemed to belong to the realm of domestic law, or thought to be more a private, rather than a public law character. States remained reluctant to accept jurisdiction over political offences.38 The relatively narrow content provided an obstacle to its recognition as part of public international law. The idea that international criminal law would be a law applicable by international courts and tribunals was still a hypothetical idea.39 The 1937 Convention of the League of Nations on the Prevention and Punishment of Terrorism foresaw the option of international criminal jurisdiction.40 In the end, the Convention failed to get the necessary ratifications to enter into force. 2.3 Struggles of Emancipation Modern understandings of international criminal law emerged in the second half of the 20th century.41 This development is heavily grounded in moral thought and the extraordinary nature of criminality. 2.3.1 Translating Morality into Law Early proposals for the establishment of international criminal jurisdiction were made by the ‘Wartime United Nations’.42 In October 1943, the London International Assembly established a statute for an international criminal court under the chairmanship of Belgian lawyer Marcel de Baer.43 This idea was taken up by the United Nations War Commission (unwcc).44 In 1944, the 38 De Vabres, supra note 24, 928. 39 Wise, supra note 25, 806. 40 League of Nations, Convention for the Creation of an International Criminal Court, League of Nations oj Spec. Supp. No. 156 (1936), ln Doc. C.547(i).M.384(i). 41 See generally F. Neubacher Kriminologische Grundlagen einer internationalen Strafgerichtsbarkeit (2005). 42 On the wartime history of the UN, see D. Plesch, America, Hitler and the UN: How the Allies Won World War II and Forged Peace (2011); D. Plesch and T. G. Weiss, Wartime History and the Future United Nations: Past as Prelude? (2014). 43 London International Assembly, The Punishment of War Criminals, Recommendations of the London International Assembly, Appendix ii, Draft Convention for the Creation of an International Criminal Court (1943), 18–​29. 44 See unwcc, Sub-​Committee on Enforcement, Draft Convention of an International Criminal Court Submitted to the London International Assembly, sc ii/​2 (14 February 1944). See generally E. Schwelb, ‘The United Nations War Crimes Commission’ (1946) 23 BYIL 363–​376; M. E. Bathurst, ‘The UN War Crimes Commission’ (1945) 39 AJIL 565–​570; A. J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (1998), 130 et seq., D. Plesch and S. Sattler, ‘Changing the Paradigm of International Criminal Law’ (2013) 15 International Community Law Review 203–​223; C. Stahn, ‘Complementarity and Cooperative Justice Ahead of Their Time? The UN War Crimes Commission and the Treatment of Facts and Evidence’ (2014) 25 Criminal Law Forum 223–​260.

384 Stahn Chairman of the Enforcement Committee of the unwcc argued vividly in favor of combining prosecution with the establishment of a new jurisdiction to try offences against peace and security. He argued that the establishment of an International Criminal Court is of the greatest importance for the future, as it cannot be done without in the post-​ war World-​ Organisation. Any organisation for the maintenance of International Order and Peace is in my opinion not complete if it does not possess an International Criminal Court before which those persons who disturb or threaten to disturb international order or peace can be summoned, and by which they can, if need be, be punished or eliminated. Indeed, the real significance of the punishment of war criminals, is only made clear when it is viewed in conjunction with the construction of a new International Order proposed.45 The Commission adopted a Statute for the United Nations War Crimes Court.46 However, at the Yalta Conference in 1945, US President Roosevelt expressed a preference to try ‘prime leaders by an international military commission or military court, established by Executive Agreement of the heads of State of the interested United Nations’.47 This led to a principled choice for an establishment of ad hoc jurisdiction in the London Charter, rather than a world order court. In post-​World War ii trials, moral arguments and natural law justifications were used to justify the authority of the law.48 This justification is reflected in the opening lines by Robert Jackson at Nuremberg: The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot

45 46

47 48

unwcc, Report on the Constitution of and the Jurisdiction to be conferred on an International Criminal Court, sc ii/​3 (25 February 1944) 4. Draft Convention for the Establishment of a United Nations War Crimes Court and Recommendation for the Establishment by Supreme Military Commanders of Mixed Military Tribunals for the Trial of War Criminals, C.60 (6 October 1944). See W. Schabas, ‘The United Nations War Crimes Commission’s Proposal For An International Criminal Court’ (2014) 25 Criminal Law Forum 171–​189, 185. Memorandum to President Roosevelt from the Secretaries of State and War and the Attorney General (22 January 1945) in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (1949) 4. For an excellent survey, see D. Rogers, Chief amongst the angels? International Prosecutors and the Moralist Project, PhD Thesis, University of Waikato, July 2016, 131–​152, at https://​ pdfs.semanticscholar.org/​a7b1/​c0212cb39b758029ab489b83ed194e9ee6a3.pdf.

How Can We Justify International Criminal Justice?

385

tolerate their being ignored, because it cannot survive their being repeated.49 Practice navigated between naturalism and positivism.50 As Christian Tomuschat has noted, Nuremberg was not ‘a tale of glory and shining justice’, but rather the beginning of ‘new page of universal history’.51 The Nuremberg judgment marked an attempt to ground the authority of the law in legal positivism. But the judgment is replete with references to naturalistic concepts and morality. The tribunal held that the nullum crimen sine lege principle was not binding law, but merely a principle of justice.52 In a famous statement, the judgment observed: The maxim ‘nullum crimen sine lege’ is not a limitation of sovereignty but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.53 The Tokyo judgment, issued in 1948, was more divisive. The majority followed the approach adopted by the Nuremberg judgment. It could rely on the finding of the General Assembly in 1946 which had reaffirmed the customary nature of the Nuremberg Charter at its first session.54 The separate and dissenting opinions, however, revealed divergences and strong critiques.55 Several judges

49 Nuremberg Trials, ‘Opening Address for the United States’, Robert Jackson, Nazi Conspiracy & Aggression, Volume i, Chapter vii, Office of the United States Chief Counsel for Prosecution of Axis Criminality (1946), 115. 50 See R. Cryer, ‘The Philosophy of International Criminal Law’, in A. Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law (2011), 232–​268, 239. 51 See C. Tomuschat, ‘The Legacy of Nuremberg’ (2006) 4 JICJ 830, 837. 52 Tomuschat speaks of a ‘Progressive Reduction in the Scope of the Nullum Crimen Principle’. Ibid., 836. 53 Trial of the Major War Criminals before the International Military Tribunal, 14 November 1945-​1 October 1946, Vol. i (1946) Nuremberg Judgment, 219. For a discussion, see T. Weigend, ‘‘In general a principle of justice’: The Debate on the ‘Crime against Peace’ in the Wake of the Nuremberg Judgment’ (2012) 10 JICJ 41–​58. 54 See General Assembly Resolution 95 (i) ‘Affirmation of the Principles of International Law recognized by the Charter of the Nurnberg Tribunal’, 11 December 1946. 55 For a discussion, see K. Sellars, ‘The Legacy of the Tokyo Dissents on Crimes against Peace’ in C. Kreß and S. Barriga, The Crime of Aggression –​A Commentary (2017), 113–​141.

386 Stahn rejected the claim that crimes against peace had a positivist basis in law before 1945. Tokyo Chief Prosecutor Joseph Keenan later argued that the Tokyo and Nuremberg trials are ‘manifestations of an intellectual and moral revolution’ and that ‘any attempt to isolate such law from morals is a symptom of judicial schizophrenia’.56 International criminal law was thus a means to translate morality into law and pursue political interests. This argument provided a weak doctrinal justification for international criminal justice.57 As Robert Cryer has convincingly noted: It is one thing to ‘assert moral superiority’, and another one to claim that immoral conduct is criminal.58 Judge Pal highlighted the dilemma of the argument in his dissent in Tokyo. He noted: [N]‌o particular group of nations can claim to be the custodian of the ‘common good’. International life is not yet organized into a community under the rule of law. A community life has not even been agreed upon yet. Such an agreement is essential before the so-​called natural law may be allowed to function in the manner suggested.59 2.3.2 Existential Doctrinal Dilemmas The existential question, namely whether international criminal law exists, continued to divide international lawyers beyond the experiences of Nuremberg and Tokyo. Scholars, like Philip Jessup, have defended international criminal law as a specific type of national or transnational jurisdiction in the 1950s.60 Others pointed out the conceptual difficulties of international criminal law.61 Hans Jeschek distinguished domestic criminal law with an international element from a more embryonic international criminal law under the law of nations.62 Georg Schwarzenberger argued that international criminal law did 56 57 58 59 60 61 62

J. Keenan and B. Brown, Crimes against International Law (1950), v-​vi. Judith Shklar highlighted the risks of relying on natural law in international criminal justice, based on the Tokyo experience. See J. Shklar, Legalism: Law, Morals, and Political Trials (1986), 128. R. Cryer, ‘The Doctrinal Foundations of International Criminalization’ in C. Bassiouni (ed.), International Criminal Law (2008), 107–​128, 112. Tokyo Tribunal, Judgment of The Honorable Justice Pal, Member from India, 151, in N. Boister and R. Cryer (eds.), Documents on the Tokyo International Military Tribunal (2008), 873. P. Jessup, Transnational Law (1956), 35–​71. G. Dahm, Zur Problematik des Völkerstrafrechts (1956). H. Jeschek, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht (1952).

How Can We Justify International Criminal Justice?

387

not exist ‘in any true sense’ since it ‘requires an international authority that is superior to states’.63 In his seminal essay on ‘The problem of an international criminal law’,64 Schwarzenberger argued that an international criminal law cannot exist without a corresponding international society. He formulated two principal objections: the absence of rules with a prohibitive nature and a penal character under international law, and the lack of central authority to apply such rules.65 Dutch historian of international law, Johan Hendrik Willem Verzijl argued that a ‘collective notion of “international criminal law” either has no definable content at all, or is only an aggregate of barely interrelated rules and institutions which does not deserve dressing under one title’.66 Several authorities claimed there could be no system of international criminal law because of the lack of a corresponding doctrinal system (Dogmatik).67 The rejection of an international criminal system was grounded on analogies to domestic legal system,68 namely the lack of a state-​like legal order at the international level and missing enforcement powers. Again others contended that an international criminal law was a new order in the making.69 The debate between agnostics and constructivists endured well into the 1980s.70 It cut across internationalists and penalists.71 Defenders of the existence of international criminal law argued that like international law itself, international criminal law does not need to fully converge with domestic law, and that it is governed by paradoxes.72 63

G. Schwarzenberger, ‘The Problem of an International Criminal Law’ (1950) 3 Current Legal Problems 263–​296, 295. 64 Id., 295–​96. For a critique, see A. Erasmus, ‘Revisiting Schwarzenberger today: The problem of an international criminal law’ (2003) 16 South African Journal of Criminal Justice 393–​414. 65 Schwarzenberger, supra note 63, 273–​274; 296. 66 J. Verzijl, International Law in Historical Perspective (1972), 270. 67 For an engagement with this claim, see G. Fletcher, ‘The Theory of Criminal Liability and International Criminal Law’ (2012) 10 JICJ 1029–​1044. 68 See R. A. Friedlander, ‘The Foundations of International Criminal Law: A Present-​Day Inquiry’ (1983) 15 Case Western Reserve Journal of International Law 13–​25, 17. 69 See V. Pella, ‘Towards an International Criminal Court’ (1950) 44 AJIL 37–​ 68, 44; Friedlander, supra note 68, 14. 70 Leslie C. Green, ‘Is There an International Criminal Law?’ (1983) 21 Alberta Law Review 251–​ 261; Gerhard O.W. Mueller, ‘International Criminal Law: Civitas Maxima-​An Overview’ (1983) 15 Case Western Reserve Journal of International Law 1–​7, 2. 71 One early defender is Otto Triffterer, see O. Triffterer, Dogmatische Untersuchungen zur Entwicklung des materiellen Völkerstrafrechts seit Nürnberg (1966) 34. 72 Mueller, supra note 70, 6. Hannah Arendt noted in her Eichmann in Jerusalem: ‘an altogether different order is broken and an altogether different community is violated’. See Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1977) 272.

388 Stahn 2.4 Beyond the Domestic Analogy The idea of a system crystallized with the growing codification of norms and principles and the practice of institutions. It was more commonly accepted that the inability of states to agree on a central enforcement agency should not serve as an obstacle to the recognition of international criminal law. The emergence of international criminal law was justified inductively, i.e., by reference to existing laws and practices.73 Scholars pointed to the fact that international law sets certain standards for domestic jurisdictions that states are required to enforce through the principle of aut dedere, aut judicare principle. Cherif Bassiouni highlighted the expansion of substantive criminal law through treaty instruments and UN practice.74 Edward Wise has grounded the idea of international criminal law as a separate field of international law in the development of a ‘distinct set of principles’.75 Quincy Wright offered a conceptual basis for international criminal law as a body of law, based on the idea of crimes against international law and principles of liability. He argued that international criminal law is grounded in three fundamental precepts, namely (1) that international law recognizes individuals, not merely as objects, but as subjects with rights and duties which it defines; (2) that it defines certain crimes for which individuals are liable; and (3) that it distinguishes this criminal liability from the civil responsibility of states under international law.76 This justification was highly formalist. It defined international criminal law by distinction and failed to engage with its normative justification. However, it attenuated critiques that international criminal law is solely grounded in international morality. One of its merits is that it dissociated the emergence of an ‘international criminal system’ partly from ‘analogies to domestic legal systems and […] to domestic rules and procedures’.77 It paved the way for its gradual transformation in international law.

73

See I. Haenen, ‘Classifying acts as crimes against humanity in the Rome Statute of the International Criminal Court’ (2014) 14 German Law Journal 796–​822, 800. 74 See C. Bassiouni, ‘The Penal Characteristics of Conventional International Criminal Law’ (1983) 15 Case Western Reserve Journal of International Law 27–​37. Ibid., at 28. 75 Wise, supra note 22, 572. 76 See Q. Wright, ‘The Scope of International Criminal Law: A Conceptual Framework’ (1975) 15 Virginia Journal of International Law 561–​578, 565. 77 Friedlander, supra note 68, 17.

How Can We Justify International Criminal Justice?

389

International criminal law is essentially a ‘criminal law without a state’.78 This makes it difficult to explain its identity. As David Luban noted: In domestic law, it is the connection between the state, the legal norms it promulgates and the community whose values those norms express that makes the state a legitimate party in interest when those norms are transgressed.79 This link is missing in the international arena. Unlike domestic criminal law, international criminal law is not grounded in the powers of one central sovereign institution. It is related to the existence of an existing normative order that transcends the authority of individual states. This order is more blurred, disputed and decentralized than state authority.80 The idea that international criminal law exists as a partly autonomous system was reinforced by modern theorizations of international law which accepted that a normative system may exist even without a monopoly of power at the international level or the existence of a universal legislator or judicial body.81 According to modern theories, international criminal law is sui generis system with a dual foundation. As Cherif Bassiouni put: It is a product of the ‘convergence of two different legal disciplines’, the ‘international aspects of national criminal law’, and the ‘criminal aspects of international law’.82 It borrows certain elements, such as the idea of punishment and sanction and certain general principles from domestic legal systems. But the core crimes (genocide, crimes against humanity, war crimes and aggression) are grounded in various areas of international law and the responsibility of individuals arises directly under public international law.83 The effort to integrate

78

See K. Ambos, ‘Punishment without a Sovereign? The Ius Puniendi Issue of International Criminal Law’ (2013) 33 Oxford Journal of Legal Studies 293–​315; M. Dubber, ‘Common Civility: The Culture of Alegality in International Criminal Law’ (2011) 24 LJIL 923–​ 936, 928. 79 D. Luban, ‘A Theory of Crimes against Humanity’(2004) 29 Yale Journal of International Law 85–​167, 127. 80 N. Luhmann, Das Recht der Gesellschaft (1997), 574. On Luhmann, see C. Mattheis, ‘The System Theory of Niklas Luhmann and the Constitutionalization of the World Society’ (2012) 4 GoJIL 625–​647. 81 K. Ambos, ‘Ius Puniendi and Individual Criminal Responsibility in International Criminal Law’, in R. Mulgrew and D. Abels (eds.), Research Handbook on the International Penal System (2016) 57–​79, 66. 82 Bassiouni, supra note 74, 27. 83 See also Ambos, supra note 78, 297.

390 Stahn these ‘two worlds’ into one common system poses tensions.84 International criminal law draws on national systems, but it presents the same fundamental challenges to state sovereignty, by imposing constraints on domestic authority. 2.5 Realist vs. Cosmopolitan Visions The inductive approach used by early modernists serves to explain the existence of international criminal law as special a body of law. But it failed to articulate a full-​fledged theoretical foundation. There are different conceptions of international criminal law. It can be defined in three ways: (i) crime-​based, that is by reference to crimes that involve direct individual criminal responsibility or a duty of states to investigate and punish;85 (ii) jurisdiction-​based, that is by reference to the way in which it is enforced, internationally (through international actors) or transnationally (by states);86 (iii) and value-​based, that is by reference to the interests and values that is seeks to protect, such as ‘concerns’ affecting ‘the international community as a whole’.87 There is, in particular, a continuing clash between realist and cosmopolitan visions of international criminal law.88 It is widely agreed that international criminal law derives its justification from the defence of community interests.89 However, views on the grounding of international criminal law and the nature of that community differ. 2.5.1 Realist Conceptions Realists argue that international criminal law is grounded in a state-​centered international order. According to this view, international criminal law is grounded essentially in State consent, cooperation and coordination, shared interests and mutual trust among nations, as reflected in the context of regional organizations. The starting point is that the power to punish belongs to the state since it is best placed to decide who ought to be punished.90 International 84

E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003) 4. 85 Wise, supra note 25, 811. 86 R. Cryer, H. Friman, D. Robinson and E. Wilmshurst, An Introduction to International Criminal Law and Procedure (2014) 4–​5. 87 Id., 6–​8. 88 S. C. Roach (ed.), Governance, Order, and the International Criminal Court: Between Realpolitik and a Cosmopolitan Court (2009). 89 Wise, supra note 25, 817–​818. 90 See J. Locke, Two treaties of government: second treaty, § 13 (1690), ed. C.B. Macpherson (1980).

How Can We Justify International Criminal Justice?

391

criminal law defends interests that states share in common, either as guardian of the public interests of their citizens, or collectively as members of the community of states, such as peace, security, repression of crimes, etc.91 This view is rooted in skepticism about the idea of international community as international society. It is represented by Hedley Bull’s famous dictum that states ‘substitute’ the absence of a world government on the international plane by ‘close collaboration among themselves and by close adherence to the constitutional principles of the international legal order to which they have given their assent’.92 According to this view, the raison d’être of international criminal law is to punish violations that states should punish, but that they fail to punish. This approach helps to explain the emergence of international criminal law as a set of norms, institutions and procedures, including its link to obligations erga omnes. It treats crimes as a public wrong. It provides a justification for the exercise of jurisdiction by domestic courts and international institutions. Where specific domestic jurisdictions fail to comply with their obligations under international law, other states or entities may exercise these functions, in line with their powers and functions under international law, such delegated powers. But the realist approach also has certain drawbacks. A major critique is that it focuses on the harm to the ‘public’ rather than the harm to individuals. Critics claim that crime should not be punished primarily because of the harm caused to a collective public, such as the community of states, but because of the damage to individuals. As Antony Duff put it, ‘a rapist should be condemned and punished, not for the social volatility or loss of trust that he caused, … but for the wrong that he did to the person whom he raped’.93 The realist approach fails to take into account the ever-​broadening constituencies of international law. It mediates individual interests through the role of the state and collective entities, rather than focusing on the harm done to individuals. International criminal law is essentially defined by default, namely through failures of state authority.

91 92 93

On international community, see C. Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Recueil des Cours de l’Académie de Droit International 1–​281, 237. H. Bull, The Anarchical Society: A Study of World Order (1st ed. 1977) 230. A. Duff, ‘Authority and Responsibility in International Criminal Law’, in S. Besson & J. Tasioulas (eds.), Philosophy of International Law (2010) 589–​604, 600.

392 Stahn 2.5.2 Cosmopolitan Accounts Others claim that international criminal justice is grounded in a human-​ centred order that places groups or individuals at the centre of international society.94 According to this view, all humans belong to a single community.95 The state enjoys merely derivative significance. International criminal law exists not only in the interests of a broader community of states, but for the protection of certain values that mark international society as a community of humanity or civitas maxima.96 The obligation not to commit crimes does not derive from the existence of state structures or prohibition of conduct under legal or social rules, but from obligations owed to humanity as a civic community. This idea goes back to Kant’s vision of international society as an order that is built on relations between individuals (‘Weltbürgerrecht’).97 International criminal law is thus founded on an idea of world order that is distinct from state-​based forms of international organizations, and to ‘which notions of frontiers and extradition rules arising therefrom are completely foreign’.98 It is grounded in the protection of basic rights of all persons, including human dignity, which explains why human beings can be said to have human rights.99 This cosmopolitan account assumes that there is a minimum degree of commonality that allows humans to form a kind of moral community. It relies on three premises: (i) The fundamental role of the individual as a subject of international law, (ii) the equal status of all individuals as global citizens, and (iii) a minimally universalist aspiration of international law which regulates the condition of human beings in all states.100 According to this

94

See R. Teitel, Humanity’s Law (2011); A. Peters, Beyond Human Rights: The Legal Status of the Individual in Public International Law (2016). 95 On cosmopolitanism, see D. Moellendorf, Cosmopolitan Justice (2002). 96 On civitas maxima, see Mueller, supra note 70, 1. 97 Siehe K. Gierhake, Begründung des Völkerstrafrechts auf der Grundlage der Kantischen Rechtslehre (2005). 98 Cour de Cassation (Criminal Law Chamber), Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v Barbie, Case No. 83-​93194, Judgment, 6 October 1983 in (1985) 78 ILR 125, 130. 99 Duff, supra note 93, 603. 100 See P. Hayden, ‘Cosmopolitanism and the Need for Transnational Criminal Justice: The Case of the International Criminal Court’ (2004) 104 Theoria: A Journal of Social and Political Theory 69–​95, 70–​71; G. Wallace Brown, ‘State Sovereignty, Federation and Kantian Cosmopolitanism’ (2005) 11 European Journal of International Relations 495–​ 522, 502.

How Can We Justify International Criminal Justice?

393

view, individual acts threaten international values or interests that concern anyone.101 Justifications for this approach, and in particular approaches towards otherness, have evolved over time. Originally, the idea of international criminal law was tied to protection against ‘enemies of humanity’ (hostis humanis generis). Pirates were qualified as outlaws, i.e., persons that are outside the protection of the law. Such ‘friend/​enemy’ clusters have re-​emerged in the context of terrorism, and justifications of punishment based on an enemy-​based criminal law (‘Feindstrafrecht’).102 Today such theorizations are seen with skepticism. According to modern understandings, the function of international criminal law is not to brand perpetrators as enemies or threats that can be targeted outside the international legal system, but rather as members of a normative community that are asked to account for their crimes.103 The protection of humanity is linked to the idea that the commission of international crimes triggers a jus puniendi, i.e., a right to punish by affected constituencies. This right is grounded in responsibility towards the society of world citizens (ubi societas ibi ius puniendi)104 that goes beyond specific laws existing in domestic jurisdictions. 2.6 Conceptual Justifications of a Humanity-​Based Approach Scholars have developed different justifications to defend the humanity-​based reading of international criminal law. 2.6.1 Larry May’s Security and Harm Principles Larry May has argued that the right to prosecute and punish crimes for the protection of humanity can be grounded in two meta-​principles: The security principle and the harm principle.105 The security principle breaks the exclusive jurisdiction of the State. It is based on the idea that sovereignty should not serve as a shield by a State against the exercise of criminal jurisdiction in cases where a State cannot guarantee the security and subsistence of rights of citizens on its territory. As May put it: 101 According to Gierhake, international criminal law sanctions the material injustice caused by crimes in inter personal relations, and infringements of universal law and peace in international relations. See Gierhake, supra note 97, 165–​166, 297, 299. 102 G. Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht‘ (2004) 5 Höchstrichterliche Rechtsprechung zum Strafrecht 88–​95. 103 See A. Duff, ‘Responsibility, Citizenship and Criminal Law’, in A. Duff and S. P. Green, Philosophical Foundations of Criminal Law (2011), 125–​148, 143. 104 See Ambos, supra note 78, 313. 105 L. May, Crimes against humanity (2005).

394 Stahn If a state deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence, (a) then that state has no right to prevent international bodies from ‘crossing borders’ in order to protect those subjects or remedy their harms; (b) and then international bodies may be justified in ‘crossing the borders’ of a sovereign state when genuinely acting to protect those subjects.106 The second principle, the so-​called harm principle, provides a justification for the right of others to exercise jurisdiction on behalf of humanity. According to May, humanity as such is only harmed if the crimes concerned affect not only individuals but are ‘group-​based’. May has argued that humanity may be harmed in two circumstances, namely where the crimes are systematic, i.e., perpetrated by group-​based entities, such as state agents or state-​like entities, or where they harm a large group of victims.107 Such ‘group-​based’ harms are of interest to the international community since they affect the common humanity of victims and are likely to cross borders. The harm to humanity results from the fact that victims are attacked as members or representatives of certain groups or collective entities, rather than on the basis of their own individuality. As May explains, [h]‌umanity is implicated, and in a sense victimized, when the sufferer merely stands in for larger segments of the population, who are not treated according to individual differences among fellow humans, but only according to group characteristics.108 May’s harm principle rests thus on the proposition that individuals have a right to be treated as fellow humans, rather than according to characteristics which exceed their control, and therefore their autonomous agency. This approach provides a foundation for the jus puniendi principle. But it has several problems. The first problem is the requirement of ‘group-​based’ harm. Some crimes, like genocide, are group-​based. But not all international crimes may be explained by the fact that they are directed against individuals because of some group characteristics that exceed their control or agency. This requirement struggles to capture crimes that are committed without discriminatory intent or in the absence of a group-​based strategy. In certain cases, criminality 1 06 May, supra note 105, 68. 107 Id., at 83. 108 Id., 85–​86.

How Can We Justify International Criminal Justice?

395

may be explained by the actual impact of crimes on individuals, rather than the collective nature of the victim’s identity. As noted by Massimo Renzo, crimes may constitute an attack on humanity if they deny victims the status of human being.109 Nor is it fully understandable why victims are denied their individuality when they are attacked by multiple perpetrators. The ‘harm’ principle struggles to explain harm to humanity in cases where ‘it is the perpetrator of the crime, rather than the victim’s harm, that is group-​based’.110 The second problem of the harm principle is that harm to humanity is an abstract and partially fictive concept.111 Humanity is an abstract community. As Kai Ambos has argued, humanity as such ‘can hardly be harmed’.112 There is ‘no such people as “humanity” ’.113 The material harm as such is caused to concrete persons. It is questionable whether the concept of ‘harm’ is necessary to establish a right to punish. 2.6.2 Relational Responsibility In many systems, criminalization is not only tied to the consequences of the action but related to spheres of responsibility. Critics of the harm principle have argued that the justification may lie in the responsibility of wrongdoers towards a broader community, rather than the harm caused to that community.114 This approach (the ‘accountability’ approach) is linked to a different conception of crimes as public wrong. It relies on the function of criminal law to punish wrongs that citizens are accountable for. According to this view, perpetrators have to account for crimes as a public wrong, not only if they harm the public, but if they ‘concern’ the public.115 The right to punish is not only grounded in the harm of the wrong to the individual victim, but in the responsibility of the agent towards a broader community. This approach takes into account the multifaceted nature of responsibilities of individuals, namely

109 M. Renzo, ‘Crimes against humanity and the Limits of international Criminal Law’ (2012) 31 Law and Philosophy 443–​476, 460. 110 M. Renzo, ‘A Criticism of the International Harm Principle’ (2010) 4 Criminal Law and Philosophy 267–​282, 275. 111 See A. Altman, ‘The persistent fiction of harm to humanity’ (2006) 20 Ethics and International Affairs 367–​372. 112 K. Ambos, ‘The Overall Function of International Criminal Law: Striking the Right Balance between the Rechtsgut and the Harm Principles’ (2015) 9 Criminal Law and Philosophy 301–​329, 321. 113 Luban, supra note 79, 126. 114 Renzo, supra note 110, 276. 115 See A. Duff, Answering for crime: Responsibility and liability in the criminal law (2007), 140–​146.

396 Stahn their responsibility as fellow citizens in their domestic community and as members of humanity as a broader civic community.116 International criminal law requires thus a dual foundation, namely an individual and a collective component. It protects certain protected interests (Rechtsgüter)117 of the international order, and the fundamental rights of individuals.118 Its justification is related to the nature of crime as public wrong, and the accountability of perpetrators towards a shared collectivity.119 Unlike in domestic systems, there is no central sovereign. The protected interests are in flux. There is a certain ‘dédoublement fonctionnel’. International criminal law is a framework to prevent and constrain social harm, and at the same time, a means to frame the very interests that it is deemed to protect.120 3

Normative Justifications

The broader understanding of international criminal law as a field, and its emerging critiques raise novel challenges about its normative justification. Existing positions on justification differ among fields and authors. In 2002, Immi Tallgren has argued that the international criminal justice system ‘has no proper justifications of its own, so far’.121 But there is a range of different propositions. The most radical claim is that international criminal justice requires no formal legitimation since it pursues globally accepted interests, such as peace, welfare or an ordered society. This position has been taken by Markus Dubber. He has compared international criminal justice to a global ‘penal police regime’ that does not need formal justification since it pursues ends that ‘require no justification’, and because it ‘asserts, represents and exercises no power’.122 This argument relies on the premise that international criminal justice is ‘a 1 16 Renzo, supra note 109, 456. 117 For an early enunciation of protected interests as ‘object of universal penal protection’, see De Fabres, supra note 24, 925–​926. 118 See W. Hassemer, ‘The Harm Principle and the Protection of ‘Legal Goods’ (Rechtsgüterschutz): a German Perspective’, in A. P Simester, A. du Bois-​ Pedain, U. Neumann (eds.), Liberal Criminal Theory: Essays for Andreas von Hirsch (2016), 187–​204; R. Atadjanov, Humanness as a Protected Legal Interest of Crimes Against Humanity (2019). 119 Ambos, supra note 122, 319–​320. 120 See Ambos, supra note 112, 324 (‘’universal legal consciousness’). 121 I. Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 EJIL 561–​ 595, 565. 122 Dubber, supra note 78, 935.

How Can We Justify International Criminal Justice?

397

system for the administrative elimination of wrongdoers’ that sanctions violations of the norms of the moral community of all humanity.123 This view is over-​simplistic. As previously explained, international criminal justice combines elements of public and criminal authority. Dubber’s analogy overstates the normative appeal of international criminal justice and underestimates the concrete impact and factual authority of international criminal law on affected states and individuals, such as its diverse forms of productive power, and its contestations. Other positions acknowledge the need for normative justification but focus on selective aspects. For instance, criminal lawyers and criminologists often seek to justify international criminal justice through the lens of punishment. Public international lawyers rely on theories of consent or delegation. Both approaches are in need of re-​thinking. Standard justifications of punishment, such as retribution, general and special deterrence, incapacitation or rehabilitation, place the focus on the individual and neglect the global governance dimensions of international criminal justice. Public international law doctrines theorize international criminal justice too narrowly through the lens of state or sovereignty interests. The weakness of these approaches is that they remain entrenched in strict disciplinary clusters. It is more promising to distinguish different macro-​types of justifications. There are, at least, three main schools of thought: consent-​based theories, process and consequentialist theories, and expressivist accounts. These theories are not necessarily ‘rival theories’, but address partly different elements. For instance, consent-​based theories justify legal authority, while consequentialist and expressivist theories are more linked to moral justification. Consent-​Based Theories 3.1 Consent-​based justifications have a long tradition. They can be divided into different strands: delegation of authority, and social contract theories. According to the first view, international criminal justice is grounded in state authority and consent.124 It relies on the premise that penal power is an essential feature of sovereignty that needs to be legitimized through some form of consent when it is exercised beyond the state. The problem of this argument is that it strongly focused on formal legal authority and the mediatisation of the relationship between perpetrators and victims through state authority. Social contract theories provide a broader societal justification. They argue that 1 23 Dubber, supra note 78, 936. 124 Cassese frames this as ‘consent legitimacy’. See A. Cassese, ‘The Legitimacy of International Courts and Tribunals and Their Current Prospects’ (2012) 25 LJIL 491–​501, 492.

398 Stahn international criminal justice is grounded in the protection of the autonomy, free will, and liberty of individuals. 3.1.1 Delegation Theory The idea of delegated authority plays an important role in the justification of international criminal justice, in particular, its institutional dimensions.125 It explains the turn to entrust public institutions with penal authority. Punishment involves a relationship between three actors: the perpetrator, the victim and the state. In a domestic setting, the responsibility to blame and punish perpetrators is transferred to public institutions, in order to avoid personal vengeance or an escalation of violence.126 In an international setting, state authorities have the primary responsibility to investigate and prosecute international crimes. State consent provides a gateway to explain the institutional structure of international criminal justice. States may establish and mandate justice institutions to act as their agents, and delegate authority. This can occur in different forms. In some cases, authority is delegated directly, for instance through a treaty or legal act of a state. In other cases, delegation occurs more indirectly, namely through multiple layers of consent. For instance, the authority of the ad hoc tribunals or the Special Tribunal for Lebanon, relies on a dual foundation: state consent to the powers of the Security Council under the UN Charter, and a subsequent authorization by the Council. This claim is problematic in several ways. In many cases, it is unclear who is the principal, and who is the agent. The act of delegation confers powers. But instruments of delegation often involve structural ambiguities. As Larry Helfer has argued, authority is grounded in ‘constrained independence’ which involves a degree of autonomy in decision-​making (‘bounded discretion’).127 Karen Alter has compared judges to trustees.128 However, even this analogy has limits. The relevant institutions may act as agents or enjoy various forms of political or de facto authority that are not directly reflected in the act of

125 P. Dixon and C. Tenove, ‘International Criminal Justice as a Transnational Field: Rules, Authority and Victims’ (2013) 7 International Journal of Transitional Justice 393–​412, 403. 126 M. Minow, Between Vengeance and Forgiveness: Facing History After Genocide and. Mass Violence (1998), 11–​12. 127 L. R. Helfer, ‘Why States Create International Tribunals: A Theory of Constrained Independence’, in S. Voigt, M. Albert and D. Schmidtchen (eds.), International Conflict Resolution (2006), 255–​276. 128 K. Alter, ‘Agent or Trustees?: International Courts in their Political Context’ (2008) 14 European Journal of International Relations 33–​63.

How Can We Justify International Criminal Justice?

399

delegation. They may use their mandate to require states to take actions that go beyond their original intent, or issue decisions in the name of collective interests that privilege some states over others. Second, the delegation theory derives justification from the idea that institutions are answerable to their founding authorities. This relationship is often under strain. International criminal law differs from the traditional premise of the 18th and 19th century (e.g., Cesare Beccaria,129 John Stuart Mill)130 that the sovereign state is best equipped to exercise penal authority. The very justification for the exercise of international criminal justice may arise from the fact that state consent cannot be expected or trusted. In some cases, the very need for international criminal justice results from the inability or the failure of a state to provide consent. Authority is thus based on the idea of substitution, rather than delegation. As highlighted earlier, defenders of the harm principle, argue that a state may lose its authority to punish if it harms its own citizens.131 The consequence is that a state may have to allow others to exercise this authority or accept assistance (forfeiture of exclusive jurisdiction).132 This idea of substitution is inter alia reflected in the concept of universal jurisdiction. Finally, one recurring paradox of international criminal justice is the ambivalence of consent,133 and its potential conflict with political strategies. Even where formal consent is provided, it does not necessarily coincide with support for the project of international criminal justice. As Jelena Subotić has shown in her work on ‘Hijacked Justice’, states may consent to international criminal justice, but for reasons that are very different from the original objectives of the project, namely to silence domestic political opposition, to appease coercion, or to achieve local political agendas that are only remotely connected to accountability.134 Consent may thus provide an appearance of acceptance, but pursue contradictory rationales.

129 C. Beccaria, On Crimes and Punishments (1764), ed. Richard Bellamy, trans. Richard Davies (1995). 130 John Stuart Mill argued in his essay ‘On Liberty’ that the ‘only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’. 131 See above 2.6.1. 132 W. Lee, ‘International Crimes and Universal Jurisdiction’, in L. May and Z. Hoskins (eds.), International Criminal Law and Philosophy (2010), 15–​38, 18–​19. 133 See generally N. Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 AJIL 1–​40. 134 J. Subotić, Hijacked Justice: Dealing with the Past in the Balkans 19–​37, 183–​192.

400 Stahn 3.1.2 Social Contract A variation of the consent theory is the social contract theory. This approach its origins in the political theories of Thomas Hobbes,135 John Locke136 and Jean-​Jacques Rousseau.137 It was developed as a foundation of justice in John Rawls’ theory of justice.138 It starts from the idea that international society is constituted of free and equal human beings who have no right to exercise power over each other, except based on mutual consent. This premise has repercussions on the justification of governance. It implies that legitimate government is not grounded in force, but in a ‘social contract’ between persons (and states). As Phil Clark has noted, international crimes committed by a government against its own population ‘violate the social contract between states and their citizens’ and carry a particular gravity: ‘We expect rebels to commit crimes against us because that’s what rebels do. But we don’t expect our own government to commit crimes against us.’139 This theory has been extended to the justification of punishment. Some scholars have argued that a criminal act marks a breach of this social contract and justifies punishment. Modern approaches have extended the idea of a social contract from the relationship between an individual and the state to the relations between the offender and the victim. For instance, Antony Duff has argued that the authority of criminal justice stems from the fact that ‘defendants are answerable to their fellow citizens (in whose names the courts act) for public wrongs that they commit, in virtue of their shared membership of the political community’.140 Carlos Santiago Nino has defended a similar approach in his reflections on the trial of the military dictatorship in Argentina (‘Radical Evil on Trial’). He has claimed that an individual is deemed to consent to punishment, if he or

135 In his famous Leviathan (1651), Hobbes argued that compliance of the social contract between individuals requires the coercive power of a sovereign. For a study, see J. Hampton, Hobbes and the Social Contract Theory (1988). 136 On Locke’s theory, see J. Simmons, ‘Locke on the Social Contract’ in M. Stuart (ed.), Companion to Locke (2015) 413–​432. 137 On Jean-​Jacques Rousseau’s Social Contract (1762), see J. B. Noone, ‘The Social Contract and the Idea of Sovereignty in Rousseau’ (1970) 32 The Journal of Politics 696–​708. 138 J. Rawls, A Theory of Justice (1971). 139 See Phil Clark, ‘Complete Structural Change’ Needed to Improve ICC Performance: Part I of Interview with Phil Clark’, 27 March 2019, at https://​www.ijmonitor.org/​2019/​03/​ complete-​structural-​change-​needed-​to-​improve-​icc-​performance-​part-​i-​of-​interview-​ with-​phil-​clark/​. 140 Duff, supra note 93, 595.

How Can We Justify International Criminal Justice?

401

she voluntarily commits a crime in knowledge the consequences, irrespective of whether that person accepted the law on which punishment is founded.141 Cherif Bassiouni has applied this argument to the justification of international criminal justice. He has argued that an individual has the duty to obey international norms ‘in exchange for the international community’s duty to provide security for its inhabitants by exacting a punishment from those who transgress its norms’.142 He has thus founded an international jus puniendi on the idea of a social contract between the individual and the international community. This ‘social contract’ approach is innovative. It suggests that duties exist beyond the boundaries of the nation-​state, and that individuals have obligations that reach beyond their fellow nationals. But it has several weaknesses.143 The social contract argument is hypothetical. It is difficult to base the foundations of international criminal justice on a contractual exchange between individuals. It refers to an imagined condition under which an offender would accept to be bound by international criminal justice, in exchange for protection. The reciprocity-​based element underlying social contract theory faces challenges in light of the diffuse structure of the international legal order. The theory implies that the hypothetical contract creates duties of justice, rather merely duties of charity or humanity. In international relations, the idea of a shared community, with mutual rights and obligations is less developed than in domestic systems.144 There may be a jus puniendi (i.e., in the sense of a right). But the idea of a common legal responsibility to protect and punish (i.e., in the sense of an obligation) is still incomplete.145 141 Carlos Santiago Nino, Radical Evil on Trial (1996). He argued that ‘trials for massive human rights violations can be justified on preventionist grounds provided the trials will counter those cultural patterns and the social trends that provide fertile ground for radical evil’. Ibid.,146. 142 M. Cherif Bassiouni, Introduction to International Criminal Law (2012), 926. 143 For a rejection, see R. Sloane, ‘Expressive Capacity of International Punishment’ (2007) 43 Stanford Journal of International Law 39, 53. 144 A. Greenawalt, ‘International Criminal Law for Retributivists’ (2014) 35 University of Pennsylvania Journal of International Law 969, 990. 145 Article 41 of the ilc Articles on State Responsibility requires states to cooperate to end a serious breach of a jus cogens norms. Article 5(2) of the Convention against Torture and Article 9(2) of the Convention on Enforced Disappearance include a duty to establish jurisdiction irrespective of a territorial or nationality-​based nexus. Duties to extradite or prosecute exist under specific treaty regimes. However, the conditions differ. The customary law status of the obligation to extradite or prosecute remains disputed, see ilc, ‘The obligation to extradite or prosecute (aut dedere aut judicare)’, Final Report of the International Law Commision, 7 August 2014, 16.

402 Stahn 3.2 Process-​Based and Consequentialist Justifications A second school of thought derives the justification of international criminal justice from some of its features and projected social outcomes. This view takes into account that international criminal law comes into play in conditions of high social instability and insecurity. It accepts that the authority of international criminal justice may not always be grounded in formal consent or universal acquiescence. The basic premise is that justification is tied to agency. An institution that successfully delivers justice acquires legitimation through its action.146 3.2.1 Process-​Based Justifications Process-​based theories judge legitimation through adherence to certain principles of conduct, such as fairness and due process. This argument has a long tradition in criminal justice. It is at the heart of a liberal conception of criminal law. It has gained significant prominence in legal theory and theorization of justice. For instance, sociologist Niklas Luhmann, who is most well-​known for his work on systems theory, has made the claim that legitimation may under certain conditions may occur ‘through procedure’, namely through the participation of agents in an open process which makes them accept the outcome.147 He argued that judicial systems legitimize themselves in society through the performance of court proceedings, even in relation to persons who do not follow proceedings.148 Legitimation occurs thus through a process of institutionalization which entails societal recognition. The communicative and deliberative features of legal processes may draw audiences in and generate acceptance of outcomes by parties or groups who were initially opposed to them. In this way, even institutions that were contested at the outset may gain legitimation over time, similar to the way in which violations of law may create new law. John Rawls has related his idea of justice to fairness.149 He grounded justice in ideas of freedom and equality underpinning a liberal society, including fair equality of opportunity. The idea of justifying justice through procedures has gained an important role in international criminal law. International criminal courts and tribunals 146 See generally S. Vasiliev, ‘Between International Criminal Justice and Injustice: Theorising Legitimacy’ in N. Hayashi and C. Bailliet, The Legitimacy of International Criminal Tribunals (2019) 66–​91. 147 Luhmann, Legitimation durch Verfahren (2001). 148 Id. 121–​128. 149 J. Rawls, ‘Justice as Fairness: Political not Metaphysical’ (1985) 14 Philosophy and Public Affairs 223–​251.

How Can We Justify International Criminal Justice?

403

are often entrusted with authority because they are deemed to be independent of outside influence. It is contested to what extent process-​based considerations offer a positive justification or a ‘side-​constraint’, i.e., a factor that may constrain legitimacy.150 David Luban has prominently argued that ‘the legitimacy of international tribunals comes not from the shaky political authority that creates them, but from the manifested fairness of their procedures and punishments’.151 According to him, tribunals ‘bootstrap themselves into legitimacy by the quality of justice they deliver, their rightness depends on their fairness’.152 Antonio Cassese has used the term ‘performance legitimacy’ to capture this idea. He has argued that international criminal justice derives justification from the demonstration of justice. He claims that a criminal justice institution gains legitimacy ‘by showing that it is independent of any state or other authority or political grouping and that it strictly and scrupulously adheres to fundamental principles of international justice, namely fair trials and full respect for the rights of both the accused and the victims’.153 In contemporary discourse, the argument of fairness is one of the most important considerations advanced in support of international criminal justice.154 Most international criminal courts and tribunals have defined fairness as hallmarks of judicial activity. Procedural fairness has become part of the ‘demonstration effect’ that such institutions require in order to defend their own existence. For instance, the creation of the Nuremberg and Tokyo tribunals was essentially guided by the idea that justice and fairness are too precious to be traded off against vengeance and effective sanction.155 Richard Goldstone, the first icty prosecutor, famously argued that the success of international courts

1 50 On moral side constraints, see R. Nozick, Anarchy, State, and Utopia (1974), 32. 151 D. Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’, in Besson and Tasioulas, supra note 93, 569–​588, 579. 152 Ibid. 153 Cassese, supra note 124, 498. 154 See generally Y. McDermott, Fairness in International Criminal Trials (2016). 155 See R. H. Jackson, ‘Opening Statement for the United States of America’, imt, 21 November 1945, 4, at https://​digitalcommons.law.uga.edu/​imt/​11. See also B. Ferencz, Opening Statement of the Prosecution in the Einsatzgruppen Trial, 29 September 1947 (‘Vengeance is not our goal, nor do we seek merely a just retribution. We ask this court to affirm by international penal action man’s right to live in peace and dignity regardless of his race or creed. The case we present is a plea of humanity to law’).

404 Stahn should not be measured by the number of convictions, but by the fairness of the trials.156 The strength of this theory lies in the fact that it explains how international criminal justice may gradually gain acceptance through legal processes, even by actors who may not have consented to its exercise at the start. A key element is that such processes are perceived to be fair, transparent and impartial.157 International criminal justice has developed significantly in this respect. It has adopted some of the most advanced and sophisticated due-​process and fair-​trial protections available to defendants in domestic systems.158 The list of guarantees enshrined in judicial documents not only represents a ‘minimum degree’ of protection but also subscribes to the highest available standards, based on international human rights instruments. In past decades, process-​based arguments have moved beyond the idea of due process. International criminal trials have increasingly focused on the role of victims and survivors in the legal process, in addition to considerations of public morality and fairness towards defendants. International criminal justice navigates between a retributive conception of justice which emphasizes the vindication of social norms and rules, procedural fairness, and punishment, and a more restorative vision of justice which devotes broader attention to the needs of victims, offenders, and affected communities. For instance, the icc has formulated several process-​related indicators for the assessment of its performance, including (i) expeditiousness, fairness and transparency of proceedings; (ii) and adequate access of victims to the Court.159 One challenge of these process-​based understandings is that they involve conflicting interests. International criminal justice is torn between different constituencies, such as the rights of the Defence, the interests of the Prosecution, victims and affected states, and different goals of the justice

156 See R. Goldstone, ‘South-​East Asia and International Criminal Law’, (2011) 2 FICHL Occasional Paper Series 1, 13. 157 See also F. Mégret and M. Giles Samson, ‘Defiance, Defence, Repentance and What Lies Between’ (2019) 17 JICJ 151–​177, 171. 158 See M. Damaška, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10 JICJ 611–​620. 159 Report of the Court on the development of performance indicators for the International Criminal Court, 12 November 2015, at https://​iccforum.com/​media/​background/​performance/​2016-​11-​11_​ICC-​Second_​Report_​on_​Performance_​Indicators.pdf. For a discussion, see Carsten Stahn, ‘Is ICC Justice Measurable? Re-​Thinking Means and Methods of Assessing the Court’s Practice’, icc Forum, 10 July 2017, at https://​iccforum.com/​performance#Stahn.Sloane.

How Can We Justify International Criminal Justice?

405

process. The underlying interests do not necessarily coincide. Fairness becomes predominantly a normative judgment, i.e., fairness towards whom. 3.2.2 Outcome Related Justifications Other authorities relate justifications to consequentialist arguments, such as the realization of goals and outcomes. Consequentialism judges action by its consequences in the world, rather than its rules of conduct. It comes in many different variations. Some scholars have claimed that it is justified to hold holding persons responsible based upon the impacts that praise and blame have on moral agency in society.160 For instance, Antonio Cassese has argued that domestic or international bodies may acquire legitimacy through the fact that they pursue ‘general goals that are broadly shared and approved by the institution’s constituency’.161 He has used the term ‘purposive legitimacy’ to describe this approach.162 The problem of this approach is that there is a wide degree of ambiguity in relation to the goals of international criminal justice, and no consensus on expected outcomes. In domestic settings, crime control has been the major model to justify criminal law. International criminal justice is more ambiguous. The concepts of prevention, deterrence or retribution function in different ways than in domestic justice.163 There is no certainty of punishment. Classical criminal goals are complemented by broader objectives, such as historical clarification, stabilization, reconciliation or combat of ‘impunity’ more broadly. The relevant goals remain contested.164 For instance, some suggest that the mandate of international courts should remain restricted to classical criminal justice aims.165 Others concede that there should be space for broader ‘transformative’ goals that go beyond crime control. International criminal courts and tribunals frequently invoke the suffering and improvements of the conditions of victims as a key rationale to validate their actions. Some theorists, like Mark Findlay, have argued that global justice should place greater emphasis on social transformation: 1 60 M. Vargas, Building Better Beings (2013). 161 Cassese, supra note 124, 492. 162 Id., 492. 163 See also Sloane, supra note 143, 89. 164 On ‘goal ambiguity’ as a problem, see Yuval Shany, ‘Assessing the Effectiveness of International Courts: A Goal-​Based Approach’ (2012) 106 AJIL 225–​270. 165 See e.g. O-​Gon Kwon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’ (2007) 7 JICJ 360, 372–​373; Iain Bonomy, ‘The Reality of Conducting a War Crimes Trial’, (2007) 7 JICJ 348, 353.

406 Stahn Put simply, we suggest replacing the unproductive debate about the normative components of justice for a very general outcome consistent with a new justice constituency; justice in icj needs to produce good outcomes for victims and their communities.166 Others relate the goals of international criminal justice to the broader rule of law considerations, such as rights enforcement, strengthening domestic justice or facilitating a discourse that allows a society to come to terms with its past. Consequentialist models provide a means to explain how international criminal justice may gain justification. But they have many weaknesses.167 Goals are often formulated as ideals. Not all of them are realistically achievable. It is difficult to determine the correlation between goal and effect. Some effects (e.g., deterrence, incapacitation, ‘rule of law’) only materialize over time or are difficult to quantify. For instance, the functioning of deterrence is even harder to establish in relation to international criminal justice than in domestic contexts, due to the collective nature of crimes168 and the limits of rational cost-​benefit analysis in situations of conflict. As Meijers and Glasius have argued: Members of groups that perpetrate war crimes or crimes against humanity are more likely to be influenced by pressure from peers or superiors at that time and place than by mild and nebulous judicial threats.169 Consequentialism may reduce the complexity of international criminal justice. It provides an incentive to assess validity in terms measurable outcomes or technical criteria, such as economic cost-​benefit analysis and rational resource allocation. But not all effects of international criminal justice are measurable in such terms. Moreover, consequentialism struggles to deal with the problem of ‘unintended effects’. In practice, international criminal justice has produced a wide range of effects that go beyond the projected goals. Some of them are foreseeable, others are unintended. For instance, the icc has produced a number

166 M. Findlay, International and Comparative Criminal Justice: A critical introduction (2013), 126. 167 See also B. Wringe, ‘Why Punish War Crimes?’ (2006) 25 Law and Philosophy 159–​191, 172. 168 See generally A. Vetlesen, Evil and Human Agency: Understanding Collective Evildoing (2005). 169 T. Meijers and M. Glasius, ‘Trials as Messages of Justice’ (2016) 30 Ethics and International Affairs 429–​447, 431.

How Can We Justify International Criminal Justice?

407

of unintended effects on the domestic politics of situation countries that are difficult to assess in consequentialist terms. icc action has produced some unintended positive effective effects that are in line with the goals of the Rome Statute, such as the forging alliances among civil society in situation countries to strengthen domestic accountability.170 But it has also triggered a number of unintended effects that go against its goals, such as the marginalization of certain ethnic groups (drc), the outsourcing of mass atrocity crimes to the icc, or the use of international criminal justice as a tool by domestic political elite to advance their own political agendas.171 3.3 Expressivist Accounts Expressivism is a third theory to legitimate international criminal justice. Expressivist accounts have synergies with consequentialist approaches but look beyond the immediate legal meaning of the law or its function to control behaviour.172 They derive justification from the ability of international criminal justice to convey social meaning. Expressivism relies on the premise that law may express messages about moral or legal wrongdoing and thus serve to alter behaviour and attitudes.173 It suggests that rational expression and persuasion are an integral part of the legal process and fundamental to its ends. For expressivists, international criminal justice is justified because it serves as ‘an articulation of the appropriate reaction to criminal act on the part of a society’.174 As Larry May and Shannon Fyfe have noted: The imposition of punishment ‘says something, or communicates emotions, such as anger, resentment, or frustration to the criminals themselves and to a broader community. The result … is, for the expressivist, the garnering of respect for the laws themselves’.175 Expressivist theories play an important role in international criminal justice. International courts and tribunals have a strong impact beyond the courtroom. 170 G. Dancy and F. Montal, ‘Unintended Positive Complementarity: Why International Criminal Court Investigations May Increase Domestic Human Rights Prosecutions’ (2017) 111 AJIL 689–​723. 171 S. M. Nouwen, Complementarity in the Line of Fire: (2013), 413; A. Branch, ‘Uganda’s Civil War and the Politics of ICC Intervention’ (2007) 21 Ethics & International Affairs 179–​198. 172 C. Sunstein, ‘On the Expressive Function of Law’ (1995) 144 University of Pennsylvania Law Review 2021, 2024. 173 Meijers and Glasius, supra note 169, 432–​433. 174 See L. May and S. Fyfe, International Criminal Tribunals: A Normative Defense (2017) 51. 175 Ibid.

408 Stahn They embed narratives of accountability and justice in law176 and limit choices through normative proscription or insistence on formal rules and legal processes. They affirm normative belief in the value and application of the law, provide authoritative reference points for practice and introduce checks on domestic authority.177 Expressivist theories embrace a different type of consequentialism than other theories.178 They do not focus on the role of criminal justice as a deterrent factor for individuals or as a tool for incapacitating defendants but place emphasis on public acknowledgment of wrongdoing, educational rationales, prevention and the process of conveying messages. As Mark Drumbl put it: The expressivist punishes to strengthen faith in rule of law among the general public, as opposed to punishing simply because the perpetrator deserves it or because potential perpetrators will be deterred by it. Expressivism also transcends retribution and deterrence in claiming as a central goal the crafting of historical narratives, their authentication as truths, and their pedagogical dissemination to the public.179 Expressivist theories thereby avoid some of the problems of classical retributive justifications.180 They view criminal justice as a means to prevent wrongdoing through the affirmation of punishment and didactic means which are meant to provide the broader public and offenders with grounds not to commit crimes. The quantity of offenders or crimes prosecuted is less central to expressivist accounts. Expressivism has both, retrospective and prospective, dimensions. A core element is its denunciatory181 or alert function. It relates to the disapproval of past criminal conduct, the reaffirmation of the validity of norms and the perception of collective guilt.182 It communicates the message that the offender 176 M. Barnett, ‘Humanitarianism as a Scholarly Vision’ in Michael Barnett and Thomas G. Weiss (eds.), Humanitarianism in Question: Politics, Power, Ethics (2008) 235–​263, 247. 177 See A. von Bogdandy and I. Venzke, ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’ (2013) 26 LJIL 49–​72, 50 and 54–​59. 178 G. M. Gilchrist, ‘The Expressive Cost of Corporate Immunity’ (2012) 64 Hastings Law Journal 1–​57, 48. 179 M. Drumbl, Atocity, Punishment and International Law (2007) 173. See also Meijers and Glasius, supra note 169, 437–​438. 180 See also B. Sander, ‘Justifying International Criminal Punishment’ in M. Bergsmo and E. J. Buis (eds.), Philosophical Foundations of International Criminal Law (2019) 167, 192–​223. 181 See B. Wringe, ‘Rethinking expressive theories of punishment: why denunciation is a better than communication or pure expression’ (2017) 174 Philosophical Studies 681–​708. 182 Sloane, supra note 143, 89.

How Can We Justify International Criminal Justice?

409

has committed a particular crime, and thus has acted wrongly. It draws on the pressures of agents to be perceived as legitimate actors. A second dimension is more ‘aspirational’. It relates to the normative appeal that is associated with norms and procedures. It acknowledges that atrocity trials may express ‘a commitment to a certain ideal of justice’.183 It relates aspirations to an ‘idealized national system that cannot be localized anywhere’.184 It relies on the assumption that a broader public may learn from the expressive function of international criminal justice. One virtue of expressivism is that it helps to explain the weaknesses and paradoxes of international criminal justice. For instance, expressivists claim that law can have an important ‘expressive effect’, even when it is not fully enforced. The test is whether people act in accordance with understood messages.185 Expressivism may justify criminal justice trials for atrocities, despite their limited ability to produce a holistic truth. For example, scholars like Mark Osiel or Carlos Santiago Nino have defended the virtue of criminal trials based on their discursive features. They have argued that even divisive trials have virtue since they may encourage citizens to deliberate.186 Expressivist theory poses several dilemmas.187 The first one is its partial circularity. There is a fine line between expressivism and neo-​punitivism. Expressivism is self-​referential.188 It seeks to reflect an international moral community. But in practice, it often marks an attempt to constitute such authority. Expressivism contributes thus to some extent to a continuing process of production and justification of international criminal justice. It illustrates how international criminal justice as a field ‘is constantly seeking to uphold itself as a distinct form of practice, constructing its force in the process of becoming itself’.189 Second, it remains a challenge to reconcile expressive aims with the classical focus of criminal justice on individuals. Expressivism nurtures fears of instrumentalization. It places more emphasis on the reception of law and the 1 83 Wringe, supra note 167, 181. 184 Tallgren, supra note 121, 566–​567. 185 See D. Amann, ‘Group Mentality, Expressivism, and Genocide’ (2002) 2 International Criminal Law Review 93–​143, 122. 186 On trials as a catalyst for public debate, see Nino, supra note 141; M. Osiel, Mass atrocity, collective memory and the law (1997). 187 See also May and Fyfe, supra note 175, 63. 188 On the ‘temptation of institutional self-​perpetuation’, see P. Akhavan, ‘The Rise and Fall, and Rise, of International Criminal Justice’ (2013) 11 JICJ 527–​536, 527. 189 F. Mégret, ‘International Criminal Justice as a Juridical Field’ (2016) 13 Champ pénal/​Penal field 3.

410 Stahn legal process than the defendant. One prominent objection to expressivism it may treat defendants as symbols, and proceedings as theater, for purposes of sending a moral message.190 Third, expressivism relies on a proper medium to communicate messages. It depends on its ability to convey meaning. International criminal justice is deficient in this regard. Trials are remote and lengthy. International criminal justice is focused on the establishment of a judicial, rather than historical truth. Legal semantics reduce complex political events to the language of guilt and innocence. Messages are heavily encrypted, and often directed more at international audiences,191 than affected societies.192 Their reception varies among states, societies, cultures. 3.4 Towards a Relational Account All three existing schools of thought approach justification from a different perspective. Consent based theories focus on the source of authority and the answerability of justice agents. They provide legal authority. Process and outcome-​based justifications link justification to agency of justice actors and its effects. Expressivist accounts legitimize international criminal justice through norm expression and its discursive impacts. None of the three theories provide a full justification of international criminal justice on their own. They must be seen in conjunction with each other. Consent is only a partial factor. For instance, international criminal norms and institutions are often grounded in some form of consent. But they remain contested if they are not at the same time perceived as fair, impartial and objective. ‘Thin consent’ is not necessarily an obstacle to justification. History has shown that justice projects that are contested at the start may gain acceptance over time. For example, Nuremberg and Tokyo were originally grounded in comparatively thin layers of consent but acquired a relatively high degree of acceptance in the aftermath of their creation through subsequent action. Procedural and consequentialist models are useful, but incomplete. International criminal justice may aspire to comply with the highest standards of fairness, the noblest objectives and the most demanding standards of effectiveness. But the question as to whether such elements provide a normative justification is a normative judgment which is difficult to answer in the

190 See also B. Leebaw, Judging State-​ Sponsored Violence, Imagining Political Change (2011), 178. 191 See Sloane, supra note 143, 55. 192 Meijers and Glasius, supra note 169, 441–​442.

How Can We Justify International Criminal Justice?

411

abstract. It requires an arbiter and an addressee. This observational perspective is often marginalized or left unspecified in reasoning. There are competing visions of fairness in criminal proceedings. For instance, what is fair towards the Defence is not necessarily perceived as fair by the Prosecution or victims. The benefits of punishment invoked by consequentialist accounts may be appealing in theory, but are hard to establish empirically. Reality is often more complex and diffuse than articulated. Expressivism serves to explain processes of norm affirmation and internalization. It takes into account that normativity is inter-​subjective and created through language. But it relies on a proper medium of expression and a certain openness towards communication and reception. Different justifications may operate simultaneously for different stakeholders. For instance, political decision-​makers may justify the establishment of an international criminal tribunal as a step to maintain international peace and security, whilst others –​including victims –​may welcome that decision on purely retributive grounds. It is thus somewhat artificial to ground justification in abstract categories, such as consent legitimacy, value legitimacy or purpose-​legitimacy. In light of its inherent tensions and contradictions, international criminal justice is never likely to enjoy full universal consent or societal acceptance. A certain degree of contestation and friction might even be a constructive tension. In light of this, it might be more feasible to develop a more modest account towards justification. Instead of justifying international criminal justice through alleged advantages over other justice models or promotion of universal standards, it might be more helpful to take a relational approach. Relational approaches have roots in domestic criminal law. Domestic theories suggests that the value of domestic criminal law derives partly from the relationships that it produces or reaffirms, i.e., the ‘virtue of relationships in which people stand’.193 For instance, some scholars have argued that criminal law acquires justification through the ‘egalitarian social relations’ it creates which ‘break down barriers of status and rank’194 and make individuals independent from the power of others, or through its contribution to the formation of a political community.195 This argument also applies to the international

193 James Edwards, ‘Theories of Criminal Law’, The Stanford Encyclopedia of Philosophy (Fall 2018 Edition), at https://​plato.stanford.edu/​entries/​criminal-​law/​. 194 Ibid. 195 A. Duff and S. Marshall, ‘Public and Private Wrongs’ in J. Chalmers, F. Leverick & L. Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010), 70–​85, 83–​84.

412 Stahn context. Accountability emerges in and through relations between different stakeholders (e.g., through listening, speaking, engaging). Such relations may create a transnational political community beyond the state, provide reassurance and reaffirmation of international criminal law’s values (e.g., the need for prevention of crimes or response to moral wrongdoing) or help alter social morality. A relational account starts from the premise that international criminal justice cannot automatically draw on the legitimacy of state authority in relation to punishment. It takes into account the unique features of international criminal justice. It accepts that justification extends beyond the relationship between the perpetrator, the victim and the State. It operates on the premise that international criminal justice is an accountability project which needs to justify itself on a continuing basis in different relations. For instance, Nesam McMillan has correctly defined international criminal justice in a relational sense, namely as ‘a space of relations’ related to ‘injury, affect and responsibility’.196 Under such a model, justification occurs through interrelation. It emerges in and through relations. It is shaped by the multiple roles and identities that agents take, balancing of competing interests (e.g., crime control v. due process, collective vs. individual responsibility) and processes of rationalization, communication, and internalization by stakeholders. The elements of justification offered by the three schools of thought offer a useful starting point for a relational perspective. For example, it is reasonable to argue that justification as a process is informed by different elements, such as ‘input’ in relation to the procedural and substantive elements underlying norms and institutions (e.g., consent, inclusiveness), fairness of procedures, output (i.e. visible, fair and objective outcome), or their reception. But these parameters need to be placed into perspective. The relational approach offers a more holistic perspective than existing theories197 by examining justifications more closely through different agent-​stakeholder relationships. The offender, victims, states, affected communities and global society are all stakeholders of international criminal justice. They have different expectations and relations to international criminal justice as a project. Their perceptions and approaches towards justifications differ. This broader perspective is necessary to understand how international criminal justice develops as a field. A relational account is better equipped to 1 96 McMillan, ‘Imagining the International’ (2016) 25 Social & Legal Studies 163–​180 170. 197 On a relational approach towards transitional justice, see C. Murphy, Conceptual Foundations of Transitional Justice (2017).

How Can We Justify International Criminal Justice?

413

reflect this diversity and to explain apparent contradictions of international criminal justice. It also helps to explain how justifications develop over time. It takes into account even more than other approaches that the justification of legal norms and institutions is inherently linked to the social milieu and dynamics in which they evolve.

­c hapter 21

China’s Perception of State Sovereignty in International Dispute Settlement Linlin Sun 1 Introduction* It would not be an exaggeration to say there is no international case related to China that has garnered attention more than the South China Sea arbitration (2013–​16).1 The ‘non-​ participation, non-​ acceptance, and non-​ recognition’2 attitude adopted by China made this case a striking one. Now, several years have passed, and public attention over the case is declining. However, crucial questions are still to be explored: Why was China offended by the very fact of being sued before an international tribunal in the first place? What caused China to decide not to participate? Why did China spare no effort to disparage the arbitral tribunal and the subsequent awards? Ultimately, what contributed to China’s perception of the action, and consequently its particular attitude? Moreover, what are the possible impacts of the case on China’s attitude to international adjudication and arbitration in the long run? To a large extent, answers to the above questions hinge on one fundamental question: What is China’s perception of state sovereignty? This chapter discusses this fundamental question and offers explanations for the somewhat * Linlin Sun is Assistant Professor, Zhongnan University of Economics and Law (Wuhan, China); Email: [email protected]. The author would like to express deep gratitude to Dr Vid Prislan for his insightful comments and suggestions for improvement of this chapter. 1 The Philippines instituted arbitral proceedings in accordance with Ann. vii to the unclos on 22 January 2013, the Annex vii Arbitral Tribunal decided on jurisdiction and admissibility on 29 October 2015 and delivered the award on merits on 12 July 2016. The case was administered by the Permanent Court of Arbitration (pca), case documents are available at pca website. 2 ‘The Chinese Government has decided not to accept or participate in the present arbitration, … this position of China will not change.’ See ‘Position Paper of the Government of the People’ s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines’, 7 December 2014, para. 85. (hereinafter the ‘2014 Position Paper of China’) ‘The award is null and void and has no binding force. China neither accepts nor recognizes it.’ See the ‘Statement of China’s Foreign Ministry on Award of South China Sea Arbitration’, 13 July 2016, para. 1.

© Koninklijke Brill NV, Leiden, 2021 | D

China’s Perception of State Sovereignty

415

mysterious concept of state sovereignty from the perspective of China on two levels. The first level is a general demonstration of how China’s perception of state sovereignty has evolved since 1842. The second is to find out how the state practice of China in a specific area –​international dispute settlement –​reflects its perception of state sovereignty. Through investigation at these two levels, the rationale underlying China’s attitude in the South China Sea arbitration will be revealed in part. 2

China’s Perception of State Sovereignty: A General Account

It is widely acknowledged that the Peace of Westphalia of 1648 created an international system of independent and equal sovereign states –​the Westphalian system based on the principle of sovereign equality.3 It has also been affirmed that the 1648 Peace of Westphalia marks the starting point of modern international law.4 Correspondingly, state sovereignty constitutes the cornerstone upon which the edifice of modern international law is built. Yet, neither international law nor the concept of state sovereignty is static. Vertically, the development of international law since 1648 has imposed various qualifications on state sovereignty; the nature of state sovereignty has been changing over the past nearly four centuries.5 Horizontally, international law and the concept of state sovereignty originated in Europe and then became universalized; states experience international law and perceive state sovereignty differently.6

3 L. Gross, ‘The Peace of Westphalia 1648–​1948’, (1948) 42(1) AJIL 20. This article of Gross is very influential in making ‘the 1648 Peace of Westphalia creating state system’ a mainstream opinion. Yet, the mainstream opinion is not agreed by all. For instance, Osiander considers the significance of the so-​called Westphalia system is given later by the great nineteenth-​ and twentieth-​century international lawyers; Westphalia system is nothing but a myth. See A. Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55(2) International Organization 251, at 281. Challenges to the mainstream opinion can also be found in the writing of international law historians, see for example, K. Akashi, The Peace of Westphalia: Its Myth and Truth (Tokyo: Keio Gijuku University Press 2009) [in Japanese]. Nevertheless, Schrijver argues that ‘there is justification for regarding 1648 as the birth year of the sovereign state.’ See N. Schrijver, ‘The Changing Nature of State Sovereignty’ (2000) 70(1) BYIL 65, at 68–​9. 4 See Gross, supra note 3, at 37. 5 See Schrijver, supra note 3. 6 For a general account of China’s perception of state sovereignty, see M. Carrai, Sovereignty in China: A Genealogy of a Concept since 1840 (cup 2019).

416 Sun International law is exogenous for China, and so is the concept of state sovereignty. Although Chinese international lawyers disagree on the specific time international law was first introduced to China, they converge on regarding the 1842 Nanking Treaty as being of historic significance in China’s relationship with international law.7 The 1842 Nanking Treaty, being imposed upon China by the British as a direct consequence of the first Opium war (1839-​40), ushered into what would become known as the ‘Unequal Treaties Era’ or the ‘Century of Humiliation’.8 This historical bad encounter with international law contributes to a collective mentality amongst the Chinese that is negative towards international law, and, in particular, sensitive to situations of ‘being forced’ and ‘inequality’ in international relations. History matters, factually, psychologically, and epistemically. The following paragraphs demonstrate how the mentality emerged in the historical background and have been changed over the course. Since the 1842 Nanking Treaty, international law had increasingly gained influence in China. In the first stage of the encounter with international law, there was an effort on China’s part to become familiar with international law as a Western knowledge. Albeit with some resistance and doubt in the outset, the 1860s witnessed the first climax of China’s effort to improve its relations with Western powers, of which the study of international law was an 7 See P. Chen, ‘Investigation into Western International Law’s Initial Introduction into China’, (1989) 5 Bei Jing Da Xue Xue Bao (Zhe Xue She Hui Ke Xue Ban) 107; Z. Yang, ‘On the Introduction of Modern International Law into China and its implication’, (1999) 3 Fa Xue Yan Jiu 122; and T. Zeng, ‘Modern China’s Encounter with International Law’, (2008) 5 Zhong Guo Zheng Fa Da Xue Xue Bao 103. [all the three articles are in Chinese, titles presented here are translated by the author of this chapter]. 8 Unequal terms in the treaties such as tariffs and extraterritorial jurisdiction passed unnoticed by Qing officials at the time. See A. Lorca, Mestizo International Law: A Global Intellectual History 1842–​1933 (cup 2014), at 5. On the Republic of China’s making and using of the term of ‘unequal treaties’, see P. Hsieh, ‘The Discipline of International Law in Republican China and Contemporary Taiwan’, (2015) 14 Washington University Global Studies Law Review 87. See also H. Chiu, ‘Comparison of the Nationalist and Communist Chinese Views of Unequal Treaties’ in J. Cohen (ed.), China’s Practice of International Law: Some Case Studies (Harvard University Press 1972). On the employment of the narrative of ‘Century of Humiliation’, see Z. Zheng, Century of Humiliation of China (Liao Ning Jiao Yu Chu Ban She 1993). [in Chinese, title presented here are translated by the author of this chapter] The Century of Humiliation covers a period spanning from 1839 to 1949, it tells ‘the tale of loss and redemption, in which modern China was forged out of a crucible of suffering and shame at the hands of foreign powers’. see A. Kaufman, ‘The “Century of Humiliation” and China’s National Narratives’ (testimony before U.S.-​China Economic and Security Review Commission, hearing on ‘China’s Narratives Regarding National Security Policy’), available at https://​www.uscc.gov/​sites/​ default/​files/​3.10.11Kaufman.pdf. (accessed 2 October 2020).

China’s Perception of State Sovereignty

417

important part.9 In 1861, the imperial government of the Qing dynasty established Zongli Yamen, the very first office of foreign affairs in China. In 1862, Tongwen Guan, the foreign language school attached to Zongli Yamen, was founded. At around that time, foreign diplomatic missions came and settled in Beijing; the first permanent diplomatic missions of China were established in capitals of main powers.10 In 1864, a Chinese version of Henry Wheaton’s Elements of International Law was formally published under the auspice of the imperial government.11 During the following decades of Qing dynasty, the Chinese became more familiar with international law through translated Western international law textbooks. This way of studying international law was known as the ‘Western-​statement and Chinese-​translation’ mode.12 As noted by Svarverud, ‘William Martin and the staff at the Tongwen Guan left a deep imprint on the Chinese process of translating texts on Western law, and on international law in particular’.13 The translation work of John Fryer of Jiangnan Arsenal in Shanghai, albeit less known, also contributed to introducing international law into China.14 For the first five decades, international law was taken by China as a useful tool for dealing with foreigner nations, and the study of international law was instrumental to its aspiration of being recognized as a member of the ‘family of nations’. Although the concept of sovereignty was first used by Prince Gong in a conflict with Prussia in 1864,15 it was not until the first decade of the twentieth century that this core concept of international law was fully explored by China. The complete and fast defeat of Qing dynasty in the first Sino-​Japanese War of 1894–​95 marked a turning point. In the aftermath of the first Sino-​Japanese War, a large number of young students introduced international law from Japan to China with great enthusiasm, which soon made the translation work of Martin, the staff of Tongwen Guan and Fryer subject to the rapid Japanese influx around 1902–​03.16 In the meantime, China’s crisis was deepening: foreign 9 10 11 12 13 14 15 16

Entry of ‘China’s foreign relations in the 1860s’ in Britannica Encyclopedia, available at https://​www.britannica.com/​place/​China/​Foreign-​relations-​in-​the-​1860s. (accessed 2 October 2020). I. Hsü, China’s Entrance into the Family of Nations: The Diplomatic Phase (1858–​1880) (Harvard University Press 1960). This book became influential because it was used by the custom officials of Qing dynasty. See Zeng, supra note 7. R. Svarverud, International Law as World Order in Later Imperial China: Translation, Reception and Discourse, 1847–​1911 (Brill 2007), at 87–​112. ibid, at 112–​127. See Carrai, supra note 6, at 65. See Svarverud, supra note 13, at 184.

418 Sun colonial powers divided the territory of China among themselves. Against this background, there emerged a first wave of intellectual reflection on the focus and purpose of China’s study of international law. Upon reflection, international law was not taken as a sheer tool anymore; instead, it was considered as the framework of a new world order within which China is an inescapable but an unfortunate subordinate player. On the basis of such an understanding, the sovereignty of China as an equal and independent state in the world system was set as the goal for the study of international law and its application.17 Despite the dramatic change of the political regime, the Republic of China (the roc, 1912–​49)18 retained the understanding of international law as it emerged in the last decade of Qing dynasty. For the roc, as for Qing dynasty of the last decade, the goal of achieving state sovereignty served as the incessant driving force for practicing international law; in turn, the study of international law and its application was an integral part of the process in which China strived to earn state sovereignty. Both the Beiyang Government (1912–​28) and the Nanking Government (1928–​49) of the roc made persistent efforts to obtain and uphold the independence and equality of China. With the first generation of professional diplomats and international lawyers, the roc actively participated in international organizations. It became the founding member state of the League of Nations (LoN) and the United Nations (UN), and had judges on the benches of the Permanent Court of International Justice (pcij) and the International Court of Justice (icj). The roc also adopted an internationalist as well as legalist approach towards international law. For example, it appealed to the LoN for resolving the dispute between China and Japan caused by the latter’s invasion in the former’s territory in 1931 (the ‘Manchuria situation’), in light of the 1919 Covenant of the League of Nations, the 1922 Nine-​Power Pact and the 1928 Kellogg-​Briand Pact. It attempted to abrogate the unequal treaties by proposing their revision based on the doctrine of rebus sic stantibus. It 17

18

In the observation of Svarverud, ‘the early discourse on China’s place in the international family of states are only taking international law as a set of structural principles, deliberating the possible effects on China’s strength in international relations, but not addressing the implications for China of the procedural rules inherent in this system’. (p. 163) While in the last decade of Qing, Chinese scholars concentrated on ‘the procedural application of international law in order to enter into stable relations recognizing China and her sovereign rights’. (p. 265). A very good book to get familiar with China’s diplomatic and international law practice during the entire period of roc, see, Memoir of Wellington Koo (Oral History Project of Columbia University 1963–​70). All the historical events mentioned below in this paragraph are recorded in the book. The account of some stories, such as China’s interaction with the League of Nations concerning the Manchuria situation, is very detailed.

China’s Perception of State Sovereignty

419

defended a case before the Permanent Court of Arbitration (pca).19 Although in severely difficult circumstances,20 the roc had made remarkable achievements through diplomacy and the practice of international law. Specifically, first, China restored tariff autonomy in 1925. Second, China abolished unequal treaties in 1943, which at the same time put an end to regimes of extraterritoriality. Third, China reclaimed most of the territory that was leased or occupied by foreign powers,21 and managed to maintain control, at least nominally, over the frontier areas of its territory.22 With these accomplishments, the goal of China’s state sovereignty was all but achieved. It should be noted, however, that there was no place for international law in Chinese traditional culture. Although, during a period of about a hundred years (1842–​1949), international law had been studied, accepted and practiced, within a small circle of scholars or at the governmental level; little progress was made in cultivating a culture for respecting international law at the societal level. This may partially account for the disregard of international law without much resistance in the first thirty years of the People’s Republic China (the prc). The chaotic internal and hostile international environments at the time might be another reason.23 During the prc era (1949-​the present), state sovereignty transitioned from a ‘goal’ into a ‘shield’. The coming to power of the Chinese Communist Party in 1949 abruptly changed the political environment in China, which, unlike the substitute of the roc for Qing dynasty, brought a sharp turning point in China’s relation with international law. For the first thirty years from 1949 to 1978, the prc essentially negated the idea of rule of law. What guided China’s international relations were primarily, the Five Principles of Peaceful Coexistence24 19 20

21 22 23 24

Radio Corporation of America v. China (case No. 1934-​1), The case was administered by pca, available at https://​pca-​cpa.org/​en/​cases/​16/​ (accessed 2 October 2020). ‘The fifty years from 1900 to 1949 were marked by revolution, civil war, and foreign invasion but also witnessed change and progress in China’s relations with the outside world.’ see D. Wang, ‘China and the World, 1900–​1949’ in Oxford bibliographies, available at https://​www.oxfordbibliographies.com/​view/​document/​obo-​9780199920082/​obo-​ 9780199920082-​0048.xml. (accessed 2 October 2020). For a historical background of early modern China, see I. Hsu, The Rise of Modern China (oup 1970). The last two parts of leased territory, Hong Kong and Macau, were finally reclaimed by the prc from the UK in 1997 and from Portugal in 1999 respectively. The frontier areas include primarily Mongolia, Xinjiang and Tibet. The chaotic internal environment refers to the serials of class struggle movements which was cumulated in the Great Cultural Revolution (1966–​76); while the hostile international environment refers to the Cold War of the world. The principle was advocated jointly by China, India and Burma during the 1955 Bandung Asia-​African Conference.

420 Sun which attached the highest importance to state sovereignty, secondly, the socialist ideology founded on class theory, and thirdly, the common sentiment among the states of the so-​called Third World who have shared colonial experience in history. In short, the prc of the first thirty years understood state sovereignty in an absolute sense. It adopted an ideological approach and the Third World approach towards international law, and the idea of rule of law was placed in antagonism with state sovereignty. The situation has changed since 1979, when China started to implement the national policy of ‘reform and open-​up’. As China began to interact more intensively with the world, the prc, like its predecessor the roc, has actively participated in international law. But the prc is in a different time now. In the era of globalization, China has integrated into the world order at all levels. The need of international law as a normative system is felt by not only the Chinese government, but also Chinese society. This is the critical difference concerning international law practice between the roc and the prc since 1979. In the observation of Jia, the international law practice of the prc has now arrived at such a point as ‘a synthesis of the notion of sovereignty and the ideal of the rule of law’.25 However, as will be demonstrated in the next section, the South China Sea arbitration appears to provide a rebuttal to Jia’s argument. To sum up, the three successive political regimes of China since 1842 (Qing dynasty, the roc and the prc) all prioritized state sovereignty. Xue is of the opinion that, ‘China’s experience since the first Opium War was not merely a piece of history, but more significantly, it explains why China always attaches such importance to the principle of sovereign equality in international affairs.’26 Indeed, the colonial hangover is a determining factor for China’s perception of state sovereignty. Furthermore, a key to understanding this changing perception is the question of how state sovereignty is related to international law as a normative framework. China’s perception of State sovereignty in the process of China’s acceptance of international law can be roughly divided into four phases: (i) The initial encounter with international law to the first Sino-​Japanese War (1842–​95). In this phase, China had focused on learning international law as a knowledge, the concept of state sovereignty caught little attention in China. (ii) The time after the first Sino-​Japanese War and throughout the entire period of the roc (1895–​1949). In this period, the sovereignty of 25 26

B. Jia, ‘A Synthesis of the Notion of Sovereignty and the Ideal of the Rule of Law: Reflections on the Contemporary Chinese Approach to International Law’ (2010) 53 German Yearbook of International Law 11. H. Xue, Chinese Contemporary Perspectives on International Law: History, Culture and International Law (Martinus Nijhoff 2012), at 28.

China’s Perception of State Sovereignty

421

China as an independent and equal state in the international system had been set as a goal which was finally achieved. Moreover, achieving state sovereignty and practicing international law were integrated into one process. (iii) During the third phase, the first thirty years of the prc (1949–​79), China had negated the idea of rule of law and understood state sovereignty in an absolute sense. Also, it had little involvement in the practice of international law. (iv) The latest four decades since 1979 are regarded as the fourth phase when China has shifted to a positive attitude towards international law which in most circumstances synthesizes the notion of state sovereignty and the ideal of rule of law. 3

China’s Perception of State Sovereignty in International Dispute Settlement

As indicated in the previous section, the key to understanding China’s perception of state sovereignty is to see how China understands the relationship between state sovereignty and international law as a normative framework. This section considers two questions: (i) whether the notions of sovereignty and international rule of law are in antagonism or synergism with each other?; and (ii) to what extent is China prepared to accept qualifications of its sovereignty by international law? This section dwells on these questions with respect to one specific area –​international dispute settlement. A corollary of ‘state sovereignty’ is that a state assumes obligations on its own will. Namely, state consent is the binding source for international obligations.27 With respect to international dispute settlement, state sovereignty means that both parties are free to decide whether, when and how to settle a dispute, neither party to a dispute can decide unilaterally and imposes its will on the other party; only the way mutually agreed by parties can be employed. This is the principle of consent. On the other hand, however, there are international rules which impose restrictions on the free will of state. Most importantly, under general international law, states are obliged to settle disputes in peaceful means. Additionally, the freedom of choice could also be qualified by specific treaties. For instance, some conventions embody compulsory dispute settlement mechanisms. Article 33 of UN Charter depicts an authoritative list of the peaceful means available to parties to settle a dispute. Those means could be categorized as political vis-​à-​vis legal means or bilateral vis-​à-​vis third-​party means. Political 27

This is a core idea of positivist understanding of international law.

422 Sun and bilateral means are often employed in private where international law is not necessarily formally involved. On the contrary, legal means, including adjudication, entail the involvement of an independent third-​party and are employed on the basis of international law. This section focuses on international dispute settlement by legal means, as therein the tension between the ideas of state sovereignty and international rule of law is more easily observed. More precisely, the tension is clearly reflected in the debate over the issue of jurisdiction of international courts and tribunals. Consent is the cornerstone of international adjudication. As the pcij stated in the Eastern Carelia Advisory Opinion, It is well established in international law that no state can, without its consent, be compelled to submit its disputes with other states either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent can be given once and for all in the form of an obligation freely undertaken, but it can, on the contrary, also be given in a special case apart from any existing obligation.28 Whether a state is willing to express consent to accept the jurisdiction of international courts or tribunals reflects its conception of state sovereignty. Consent is equally indispensable in the case of compulsory jurisdiction, which can be expressed in different ways. The Statute of the icj, for examples, leaves it entirely to the states to decide on whether to accept the compulsory jurisdiction of the Court, unconditionally or otherwise. In the case of declarations under Article 36(2) of the icj Statute, the compulsory jurisdiction is thus ‘optional’. Similar examples of such ‘opting into’ a ‘compulsory’ dispute settlement mechanism can also be found in the Optional Protocol concerning Compulsory Settlement of Disputes to the 1961 Vienna Convention on Diplomatic Relations and that to the 1963 Vienna Convention on Consular Relations. By contrast, under the multilateral legal frameworks applicable to the seas and the world trade, compulsory dispute settlement mechanisms –​i.e., those provided for under Part xv of the 1982 unclos and Annex ii to the 1995 wto Agreement, respectively –​form an integral part of the legal regime. States can either accept the conventions as ‘package deals’ or not to become party to them at all. Since joining those multilateral legal frameworks is of the extreme importance for most states, it is practically impossible for states’ not to accept 28

pcij, Status of Eastern Carelia, Advisory Opinion of 23 July 1923, Series B, No 05, at 27.

China’s Perception of State Sovereignty

423

those compulsory mechanisms. A distinction can therefore be made between situations where states retain discretion in consenting to compulsory dispute settlement (3.1) and those where they cannot (3.2). The discussion will proceed in line with this distinction. Optional Adherence to Compulsory Jurisdiction 3.1 3.1.1 China’s Participation in pcij and icj China’s attitude towards international arbitration and adjudication has changed over time. The imperial government of Qing Dynasty participated in the two Hague Peace Conferences and became a contracting party to the 1899 Convention and the 1907 Convention which formed the founding conventions for the first ever permanent international dispute settlement institution, the pca.29 Yet, during the Qing period, the imperial government never concerned itself with international judicial or arbitral proceedings. This is understandable when seen in the context of international dispute settlement then still being at a very nascent stage of development. From that moment on, a growing number of international dispute settlement mechanisms has been developed and with increasing importance. The two subsequent political regimes of China, the roc and the prc, however, have held different attitudes towards this discernible trend. The roc was willing to consent to the jurisdiction of international courts and tribunals. It made the unilateral declaration to accept the compulsory jurisdiction of the pcij. On this basis, Belgium instituted proceedings against the roc before the pcij concerning the Denunciation of the Treaty of 2 November 1865 between China and Belgium in 1926.30 Although the case was discontinued in 1929 because the parties settled the dispute through negotiations, it was the first international case China was involved in. The fact of being sued before an international court did not change the roc’s positive attitude toward international adjudication. In 1934, the roc was sued again in a contract-​based arbitral case launched by a private investor –​Radio Corporation of America.31 The roc participated actively in the proceedings administered by the pca and won the case. With the establishment of the icj, the roc also made a unilateral declaration to accept the compulsory jurisdiction of the Court, like it did with the pcij. On 26 January 1949, the roc submitted a Written Statement in 29 30 31

China ratified the 1899 Convention on 21 November 1904 and the 1907 Convention on 26 January 1910. pcij Case Serials A08. The roc did not appear at the phase of provisional measures due mainly to the transition from Beiyang government to Nanking government. see supra note 19.

424 Sun the advisory proceedings on the Reparation for Injuries Suffered in the Service of the United Nations.32 In contrast to the roc, the prc ‘shuns against international adjudication’ and prefers ‘negotiation’, as attested to by its ‘lack of participation in international courts and tribunals’.33 With respect to the jurisdiction of the icj, the prc has refrained from consenting to it in any form. In 1972, not long after Beijing government taking over the seat in the UN, the prc revoked the unilateral declaration made by the previous government in accordance with article 36(2) of the Statute of the icj. Also, China never signed a special agreement with a party to a dispute for the purpose of submitting the dispute to the icj for settlement, or accepted the jurisdiction of the icj by way of forum prorogatum. Additionally, the prc has normally expressed reservations to ‘jurisdictional clauses’ in treaties and conventions that empower the icj to settle disputes concerning their interpretation or application. Jurisdictional clauses may refer to the icj in different manners. Sometimes, a jurisdictional clause in a convention incorporates the dispute settlement mechanism of the icj in its entirety. Namely, the clause respects the consensual nature of the jurisdiction of the icj. An example to the point can be found in Article 75 of the Constitution of the World Health Organization (who Constitution), which describes that: Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.34 From the phrase ‘in conformity with the Statute of the Court’, it is clear that China cannot be brought before the icj for any alleged breach of the who Constitution as China has not given consent to the jurisdiction of the icj in any forms. Therefore, it is just impossible to invoke the responsibility of China for the Coronavirus pandemic before the icj on the basis of the who Constitution, as some propose.35 32 33 34 35

Article 66(2) of the Statute of the icj. Case file concerning written statements, at 13. Available at https://​www.icj-​cij.org/​files/​case-​related/​4/​11707.pdf (accessed 2 October 2020). J. Ku, ‘China and the Future of International Adjudication’ (2012) 27(1) Maryland Journal of International Law 154, at 155. Article 75 of the Constitution of the World Health Organization. P. Tzeng, ‘Taking China to the International Court of Justice over Covid-​19’, EJIL: talk, post on 2 April 2020. https://​www.ejiltalk.org/​taking-​china-​to-​the-​international-​court-​of-​ justice-​over-​covid-​19/​ (accessed 2 October 2020).

China’s Perception of State Sovereignty

425

In practice, China has so far participated in no contentious case before the icj.36 There is, however, a positive trend in recent years: the prc has participated in two advisory proceedings. On 16 April 2009, the prc submitted a Written Statement in the case concerning the Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo; on 7 December 2009, it made an Oral Statement in the same case. As Xue, the Chinese representative, indicated, ‘this is the first time for the People’s Republic of China to participate in the proceedings of the Court’.37 Indeed, it was a milestone in the prc’s participation in the icj; it could be considered as a gesture of trust to, and good expectation of the icj. On 1 March 2018, the prc submitted a Written Statement in a second case: The Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. In an advisory case, the question of consent plays less of a role, as giving an advisory opinion is to clarify the applicability of certain rules of international law in relation to a situation, but not to apply rules to settle a dispute.38 Nevertheless, China made avail of the opportunity to reaffirm its position. It contended that: Under international law, every State is free to choose the means of dispute settlement. The jurisdiction of any international dispute settlement mechanism over a dispute between States depends on the prior consent of the parties to the dispute. This is known as the principle of consent, born of the fundamental principle of sovereign equality under international law, enshrined in the Charter of the United Nations and the Statute of the Court, and confirmed in numerous international instruments, including the aforementioned Declaration on Principles of International Law concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the UN, and the Manila Declaration on the Peaceful

36

37 38

From 22 May 1947 when the icj started to operate to 11 November 2019, the icj had accepted 178 cases. Source from icj website and Report of the icj (1 August 2018–​31 July 2019) https://​www.icj-​cij.org/​files/​annual-​reports/​2018-​2019-​en.pdf (accessed 2 October 2020). icj cr 2009/​29, at 28. Although the question of consent is not as such relevant for the question of advisory jurisdiction, sometimes the Court’s advisory jurisdiction is used as a tool to settle legal questions related to an actual dispute. see E. de Brabandere, ‘The Kosovo Advisory Proceedings and the Court’s Advisory Jurisdiction as a Method of Dispute Settlement’, The Hague Justice Portal, available at: http://​www.haguejusticeportal.net/​Docs/​Commentaries%20 PDF/​De%20Brabandere_​Kosovo_​EN.pdf. (accessed 2 October 2020).

426 Sun Settlement of International Disputes as contained in General Assembly resolution 37/​10 of 15 November 1982.39 China further emphasized that ‘the icj still always takes a cautious attitude in order not to trespass the ground of sovereignty’.40 It can be seen from this Written Statement that China holds a firm standing with respect to the concept of state sovereignty and the principle of consent as its corollary. The making of such statement in 2018 may also be a response to the awards of South China Sea arbitration. China’s core argument in the South China Sea arbitration was exactly the principle of consent and the subject matter scope of the compulsory jurisdiction, which will be further examined in the next subsection. 3.1.2 China’s Stance on Investor-​State Arbitration The attitude of China towards investor-​state arbitration is not as straightforward as inter-​state adjudication before the icj. Not only did China experience a change of national policy from being conservative to being liberal on international investment, but there are also significant ‘gaps’ or ‘lags’ in investment arbitration practice in comparison with its international investment agreements.41 Like any form of arbitration, investment arbitration is based on consent.42 China has been a contracting party to the icsid Convention since 1993.43 It has primarily consented to icsid arbitration, and other forms of investor-​state arbitration, through dispute settlement clauses in bilateral investment treaties (bit s). Since concluding its first bit with Sweden in 1982, China has so far signed 145 bit s.44 These bit s have experienced generational changes, reflecting the changing Chinese investment policy.45 Early bit s 39 Written Statement of China submitted to the icj on 1 March 2018, para. 15. 40 Ibid. 41 L. Nottage and J. Weeramantry, ‘Investment Arbitration in Asia: Five Perspectives on Law and Practice’ (2012) 28(1) Arbitration International 19. 42 C. Schreuer, ‘Consent to Arbitration’ in Peter Muchlinski, Federico Ortino, and Christoph Schreuer (eds.), The Oxford Handbook of International Investment Law (oup 2008), at 831. 43 China signed the icsid Convention on 9 February 1990, the Convention has become effective to China since 6 February 1993. 44 UN Conference on Trade and Development (unctad) investment policy hub, available at https://​investmentpolicy.unctad.org/​international-​investment-​agreements/​countries/​ 42/​china (accessed 29 July 2020). 45 Each [bit] is different and has been negotiated in its own political, economic, and temporal context. But if generalizations have to be made, Chinese bit s may be categorized into three generations: (1) the bit s concluded approximately during 1982–​89, contained restrictive investor-​state arbitration provisions or none at all; (2) from roughly 1990–​97, provided for restrictive investor-​state arbitration but also began to enable such limited arbitrations to be dealt with under the icsid regime; (3) from 1998 onwards, is marked

China’s Perception of State Sovereignty

427

limited the coverage of arbitration only to disputes relating ‘the amount of compensation for expropriation’.46 Following the 1998 Chinese Model bit, the coverage of arbitration was expanded to ‘any investment disputes’. The expansion of scope coincided with a shift of China’s status in international investment market. During 1980s and 1990s, China had mainly been a recipient of inbound foreign direct investment (fdi); by 2019, it has turned into a country with a top ranking in both fdi inflows and outflows.47 Despite the great number of bit s and the expanding availability of arbitration under China’s bit s since 1998, China has so far participated in only 9 cases (3 as respondent state, and 6 as the home state of the claimant) out of 1023 known arbitrations based on investment treaties.48 The striking contrast between the number of China’s bit s and cases it has been involved in is somehow a puzzle.49 Today, in the context of the China’s ‘Belt and Road Initiative’ (bri), it is expected that China’s outbound fdi would continue to grow in an unprecedented scale.50 Naturally, the need to protect Chinese investment abroad is

46 47 48

49

50

by China’s acceptance of comprehensive investor-​state dispute resolution provision. See J. Weeramantry, ‘Investor-​State Dispute Settlement Provisions in China’s Investment Treaties’ (2012) 27(1) ICSID Review-​Foreign Investment Law Journal 192, at 192. In an article written in 2015, Berger contended that China’s international investment policy can be divided into four distinct phases, the periodization of first three phases are consistent with Weeramantry’s. While the fourth phase started in 2008, Berger considered this phase as a ‘partial nafta-​ization’ of Chinese investment treaties, from that time China has gradually switched to a more balanced type of investment treaty. He also speculated that China was about to enter into a fifth phase by accepting the entire 2012 U.S. Model bit. see A. Berger, ‘Hesitant Embrace: China’s Recent Approach to International Investment Rule-​making’ (2015) 16 Journal of World Investment and Trade 843, at 845–​46. L. Trakman, ‘China and Investor-​State Arbitration’ (2012) unsw Law Research Paper No. 2012–​48, at 30. ‘World Investment Report 2020’, published by unctad, available at https://​unctad.org/​ en/​PublicationsLibrary/​wir2020_​en.pdf; and fdi in futures published by oecd, available at http://​www.oecd.org/​investment/​FDI-​in-​Figures-​October-​2019.pdf. information from the database maintained by unctad, available at https://​investmentpolicy.unctad.org/​investment-​dispute-​settlement. (accessed 2 October 2020). The number of cases participated by China is very small especially in comparison with other states. Argentina participated as respondent state in 62 cases, Spain 52, Venezuela 51, Czech 40, and Egypt 37; the USA participated as home state of the claimant in 183 cases, Netherlands 111, the UK 86, Germany 69 and Spain 57. Nottage and Weeramantry attempted to account for such a significant ‘gaps’ or persistent ‘lags’ in investor-​state arbitration law and practice in Asia (including China) in legal sociology. See Nottage and Weeramantry, supra note 47. Others, such as Berger, provided legal or extra-​legal explanations too. The Asian Infrastructure Investment Bank (aiib) was established to facilitate investment under the bri. For general introduction of bri see the official website of bri under the auspice of the State Council of China: http://​english.www.gov.cn/​beltAndRoad/​; see also

428 Sun increasingly felt; this would serve as an impetus for both Chinese government and Chinese investors to be engaged more actively in investor-​state arbitration. A recent trend detected is the creation of new mechanisms, tailor-​made to satisfy needs of China. Chen identifies three such innovative mechanisms:51 First, China is expanding the jurisdiction of its existing arbitral institutions, namely, the Shenzhen Court of International Arbitration and the China International Economic Trade Arbitration Commission, to encompass foreign investment disputes. Second, China is establishing new international commercial courts52 which permit jurisdiction over cases arising out of contracts between investors and a host government. Third, China is building joint arbitration centers to resolve investor-​state and commercial disputes with other regions, especially those in which China is investing heavily. A typical example in this case is the China-​Africa Joint Arbitration Center established in 2015. Simultaneously, there is growing international concern about investor-​state dispute settlement (isds) reform; proposals have been under consideration of the uncitral Working Group iii since July 2017.53 According to the observation of Roberts, discussions of the isds reform have been governments-​ led, yet opinions of governments are divided; there are ‘incrementalists’, ‘systemic reformers’, ‘paradigmatic shifters’ and those belonging to the undecided camp.54 Roberts argues that ‘China could well become a semi-​systemic reformer, seeking to retain investment treaty arbitration with incremental improvements but subject to an appellate body’.55 Indeed, China in general supports the existing regime but at the same time welcomes its reform. In a brief introduction of bri at the World Bank website: https://​www.worldbank.org/​en/​ topic/​regional-​integration/​brief/​belt-​and-​road-​initiative. 51 H. Chen, ‘China’s Innovative ISDS Mechanisms and Their Implications’ (2018) 112 AJIL Unbound 207. 52 See the establishment of two China International Commercial Courts (ciccs) on 1 July 2018. cicc s operate under the auspice of the Supreme Court of China, the official website is available at http://​cicc.court.gov.cn/​html/​1/​219/​193/​195/​index.html. Additionally, the International Commercial Chamber has started the operation of the Belt and Road Commission (‘icc-​b ri Commission’) since 2017. It is reported that ‘since the operation of the bri Commission in 2017, the Court’s caseload involving Chinese parties increased by more than 50% compared with the Court’s average caseload involving Chinese parties over the past 10 years.’ News on 20 March 2020: ‘icc announces new Belt and Road Commission Co-​Chairs’, source from https://​iccwbo.org/​media-​wall/​news-​speeches/​icc-​ announces-​new-​belt-​and-​road-​commission-​co-​chairs/​(accessed 2 October 2020). 53 All related materials are available at https://​uncitral.un.org/​en/​working_​groups/​3/​ investor-​state (accessed 2 October 2020). 54 A. Roberts, ‘Incremental, Systemic, and Paradigmatic Reform of Investor-​State Arbitration’ (2018) 112(3) AJIL 410. 55 ibid, p. 422.

China’s Perception of State Sovereignty

429

accordance with the official document submitted to the uncitral Working Group iii on 18 July 2019,56 China is mainly concerned with: (i) the lack of ‘appropriate error-​correcting mechanism’ and ‘stability and predictability’ of arbitral awards; (ii) the inadequacy of ‘arbitrators’ professionalism and independence’; (iii) the efficiency and affordability of the arbitral service; and (iv) the problem of ‘third-​party funding’. In response, first, it proposed to include a ‘permanent appellate mechanism’ in international investment agreements. Secondly, it emphasized the necessity to retain the ‘right of parties to appoint arbitrators’ but proposed to have more detailed rules concerning arbitrator qualifications, conflicts of interest, selection and disqualification, and codes of conduct. Thirdly, it suggested to disclose information about funding on a continuous basis to avoid conflicts of interest between arbitrators and third-​ party funders. Additionally, in light of oriental traditions and practice, China also attached importance to alternative dispute resolution measures such as conciliation and consultation in the isds. The position of China on isds reform is somewhere in the middle ground, which puts it in a position to compromise with all camps. In the meantime, considering the increasing importance of China in the international investment market, and the divided positions in the West (primarily between the EU and the US) on the issue of isds reform, the strength of China’s voice may come to the fore in the making of any future isds regime. In the event of China shifting from an international rule-​taker to rule-​maker, one could expect that it would be more willing to participate in investor-​state dispute settlement at the international level. Correspondingly, its insistence on respecting state sovereignty in the field of investment would be further lessened. Compulsory Dispute Settlement Mechanisms 3.2 Part xv of the 1982 unclos57 and Annex ii to the 1995 wto Agreement58 have introduced compulsory dispute settlement mechanisms. The inclusion of ‘compulsory’ denotes that states parties to the 1982 unclos or the 1995 wto Agreement must accept the jurisdiction of the mechanisms provided 56

‘Possible reform of investor-​ State dispute settlement (isds)’, submission from the Government of China on 18 July 2019, A/​c n.9/​w g.iii/​w p.177. 57 Part xv of the 1982 unclos is generally considered as ‘one of the most innovative features of the Convention’. 58 Annex ii to the 1995 wto Agreement: The Understanding on Rules and Procedures Governing the Settlement of Disputes. ‘The wto has one of the most active international dispute settlement mechanisms in the world. Since 1995, 596 disputes have been brought to the wto and over 350 rulings have been issued.’ Information from: https://​www.wto. org/​english/​tratop_​e/​dispu_​e/​dispu_​e.htm (accessed 2 October 2020).

430 Sun for under the Convention or the Agreement, and that separate consent is not required. Compulsory jurisdiction qualifies state sovereignty. Nevertheless, the compulsory dispute settlement mechanism under the 1982 unclos differs significantly from that under the 1995 wto Agreement, leaving China’s attitudes towards these two mechanisms squarely distinct. 3.2.1

China’s Participation in the Dispute Settlement Mechanisms of unclos The prc has been reluctant to participate in the unclos dispute settlement mechanism, and cautious about the compulsory procedures provided thereunder. Since the entry into force of the 1982 unclos in 1994, around 44 law of the sea cases have been heard.59 Since becoming a Party to unclos in 1996, China has so far participated in no contentious cases, but submitted Written Statements to the itlos in two advisory proceedings –​Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area and Request for an advisory opinion submitted by the Sub-​Regional Fisheries Commission (srfc).60 The prc’s caution about compulsory jurisdiction was clearly manifested in a speech of the Chinese delegate to the third UN Law of the Sea Conference, Mr Lai. He said in 1976 that, If a sovereign State were asked to accept unconditionally the compulsory jurisdiction of an international judicial organ, that would amount to placing that organ above the sovereign State, which was contrary to the principle of State sovereignty.61 59

60

61

Pursuant to Article 287 of the unclos, parties to a dispute could choose to submit a dispute before the icj, itlos, ad hoc arbitral tribunal or ad hoc special arbitral tribunals. In practice, no such cases have so far been submitted to the icj and Annex viii tribunal. While the number of cases submitted before the itlos is clear, the number of Annex vii cases is not, as Annex vii cases could be registered at different institutions. Thus, the number of cases presented here might not be accurate, omission is possible. China submitted the Written Statement concerning Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Seabed Dispute Chamber, No. 17 case) on 18 August 2010, concerning Request for an advisory opinion submitted by the Sub-​Regional Fisheries Commission (srfc) (No. 21 case) on 26 November 2013. China also presented at the public sittings of the No. 17 case but did not make oral statements during the oral proceedings. itlos/​p v.2011/​Rev.2. Official Records of the Third United National Conference on the Law of the Sea, Volume v (Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Fourth Session) the 60th meeting, 6 April 1976, A/​ conf.62/​s r.60, para. 27.

China’s Perception of State Sovereignty

431

This view was neither fully accepted nor categorically rejected during the Conference; the structure and contents of Part xv of the 1982 unclos reflect a compromise between respecting state sovereignty and upholding international authority in the settlement of law of the sea disputes. The application of compulsory procedures (section 2) are preconditioned by the prior employment of voluntary settlement of disputes between parties (section 1) and are subject to limitations (article 297, section 3) and optional exceptions (article 298, section 3).62 Disputes arising out of mining activities in the seabed area beyond national jurisdiction (Deep Seabed Mining –​dsm), however, are treated in a different way. They are subject to the compulsory procedures prescribed in section 5 of Part xi, which permit no limitations or exceptions. Except for dsm, the unclos provides for a ‘limited compulsory’ dispute settlement mechanism. This makes the mechanism a complex issue, as the scope of compulsory jurisdiction can be subject of contestation.63 The South China Sea arbitration exemplifies this complexity. In this case, the two parties differed in characterizing the dispute, which led to divergent interpretations of the scope of compulsory jurisdiction. The Philippines characterized the dispute as one pertaining to disagreements with the interpretation of a few technical terms, thus framing it as one falling within the scope of the compulsory procedures.64 China, on the other hand, regarded 62

63 64

Article 286 of the 1982 unclos prescribes that: ‘Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.’ For general reference in this topic, see N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (cup 2005). The Philippines’ Memorial submitted to the Annex vii Tribunal on 30 March 2014. The Tribunal sided with the Philippines. A survey of scholarly literature on the jurisdictional issue of the case shows however a criticism towards the approach of the Tribunal. For instances, Talmon was of a strong opinion that the Tribunal should not entertain the case because of an apparent lack of jurisdiction. See S. Talmon, ‘The South China Sea Arbitration: Is There a Case to Answer?’, Bonn Research Papers on Public International Law (Paper No. 2/​2014), 9 February 2014. Pemmaraju considered that ‘the Tribunal failed to properly assess the real and actual dispute’. See S. Pemmaraju, ‘The South China Sea Arbitration (the Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility’ (2016) 15(2) Chinese jil 265, at. 306. Parlett criticized that the Tribunal characterized the dispute depending not on ‘the real issue in the case’ and ‘the object of the claim’, but on how the issues are formulated. She was also critical about the Tribunal’s decoupling of the existence of entitlement from the identity of the beneficiary of those entitlements. see Kate Parlett, ‘Jurisdiction of the Arbitral Tribunal in Philippines v. China under UNCLOS and the Absence of China’ (2016) 110 AJIL Unbound 266, at 270. Klein said that ‘I find that the arguments of the Philippines in this regard run against the

432 Sun the essence of the dispute as territorial sovereignty over maritime features and considered it falling outside the sphere of unclos;65 it characterized some claims of the Philippines as those concerning maritime boundary delimitation which falls within the scope of the declaration that China made in accordance with Article 298.66 This Declaration expressly excluded ‘all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.’67 The point of contention related to Paragraph 1(a) of Article 298 of the Convention, which refers to ‘disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations’. For China, Article 298 is a concrete manifestation of the respect of state sovereignty. The combined effect of Paragraph 1(a) of Article 298 and China’s Declaration might be tantamount to a ‘reservation’ with respect to section 2, Part xv of the unclos, insofar as the subject matter of ‘maritime boundary delimitation’ is concerned. If the scope of the ‘reservation’ is interpreted too narrowly, it would counteract at least, or cancel out at best, that effect, which would lead to a breach of the principle of sovereignty. Indeed, it was on the basis of the ‘principle of sovereignty’ and its corollary the ‘principle of consent’ that China sought to defend itself against the exercise of compulsory jurisdiction of the Annex vii arbitral Tribunal.68 Simultaneously, the insistence on the principle of state sovereignty also contributed in part to China’s negative attitude toward the case. This attitude can be presented schematically in the following way.69

65 66 67 68 69

fundamental nature of maritime space [the principle that land dominates the sea]’ (p. 15) and that ‘… it is evident that the undetermined sovereignty is a critical issue and that maritime entitlements cannot (or should not) be articulated when there is uncertainty as to which state those entitlements accrue.’ (p. 18). She further implied that by exercising jurisdiction over this case, the Tribunal fell into the temptation of ‘judicial enthusiasm’, which was not beneficial to ultimate resolution of the highly complex and sensitive South China Sea situation, and that the Tribunal should have not entertained the case [‘let’s call the whole thing off’, she said.]. See N. Klein, ‘The Vicissitudes of Dispute Settlement under the Law of the Sea Convention’ (2017) 32(2) The International Journal of Marine and Coastal Law 332. Additionally, Chinese international law lawyers overwhelmingly supported the opinion of the Chinese government. see supra note 2, the 2014 Position Paper of China, Part ii. ibid, Part iv. The declaration was made on 25 August 2006, reference to website of UN Treaty Collection. See supra note 2, the 2014 Position Paper of China, paras. 76 and 80. The table is prepared by the author on the basis of Part v of the 2014 Position Paper of China and the contents of unclos, including in particular Annex vii.

433

China’s Perception of State Sovereignty

Points Rules of (Annex vii of) the unclos 1 Art. 1 of Annex vii: institution of proceedings 2

3

4

The Philippines’ actions

The Philippines’s institution of proceedings by a written notification addressed to China Art. 3 of Annex Appointment of vii: constitution members of the Tribunal by the of arbitral Philippines and the tribunal; Art. 9 of Annex President of the itlos; submission vii: default of of written appearance memorials and appearance before the Tribunal Acceptance of Art. 288(4) of the Award on the unclos: jurisdiction jurisdiction; Art. 11 of Annex vii: finality of award Art. 11 of Annex Acceptance of the Award on merits vii: finality of award

Tribunal’s actions

China’s attitude

[no action Non-​ because the acceptance Tribunal was to be established] Presiding the Non-​ written and oral participation proceedings

Exercise of Non-​ power to decide acceptance on the issue of jurisdiction and issuing the Award Issuing Award on the merits

Non-​ recognition & Non-​ acceptance

In relation to the first point, the Philippines initiated the arbitration pursuant to Article 1 of Annex vii. China opposed this by accusing the Philippines of lacking good faith and abusing rights (contrary to Article 300 of the unclos), which however did not stop the proceedings. As to the second point, due to China’s deciding not to appoint members, the Philippines and the President of the itlos appointed members of the Tribunal in accordance with Article 3 of Annex vii; China’s inactivity did not obstruct the constitution of the Tribunal. Once appointed, the Tribunal heard the case with only the Philippines’ appearance; pursuant to Article 9 of Annex vii, the non-​appearance of China could

434 Sun not affect either the written or the oral proceedings.70 As for the third point, according to Article 288(4) of the unclos, it is within the competence of the Tribunal to decide whether it has jurisdiction over the case; China did not oppose to the power in itself but it called for a modest and restrained exercise of this power by the Tribunal.71 Upon the Tribunal’s issuing of the Award on jurisdiction, China declared that the Award is ‘null and void’; the same happened when the Award on merits was issued by the Tribunal (as for the fourth point). Yet, in accordance with Article 11 of Annex vii, decisions of the Tribunal are final and binding on both the Philippines and China.72

70

71

72

The phenomenon of non-​appearance is not unusual. For the icj, the non-​appearance had been a virulent problem during the period of 1972–​81. Prominently, the U.S. defaulted in part of the proceedings in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), icj judgment of 1986. Discussions on this issue, see H.W.A. Thirlway, Non-​Appearance Before the International Court of Justice (cup 1985); H.W.A. Thirlway, ‘ “Normative Surrender” and the “duty” to Appear Before the International Court of Justice: A Reply’, (1990) 11(3) Michigan Journal of International Law 912; G. Arangio-​Ruiz, ‘Non-​Appearance Before the International Court of Justice’, the report of the Institute of International Law (idi) in 1991; and M. Goldmann, ‘International Courts and Tribunals, Non-​Appearance’, mpepil, last updated: August 2006. For the itlos, Russia did not appear in The Arctic Sunrise case (Kingdom of the Netherlands v. Russian Federation), provisional measures (Case No. 22) and Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), provisional measures (Case No. 26). ‘Since international arbitration requires an ad hoc compromise in each case, non-​appearance in arbitration between states is quite rare.’ However, arbitration pursuant to Annex vii of unclos is exceptional because of the compulsory jurisdiction issue. Except for China’s default in the South China Sea case, there are other examples. For instance, Russia’s non-​appearance in The Arctic Sunrise Arbitration (Netherlands v. Russia), initiated on 4 October 2013, concluded on 10 July 2017, pca Case No. 2014-​02. ‘Non-​appearance was usually justified by asserting an evident lack of jurisdiction.’ ‘China respects that competence of judicial or arbitral bodies under the Convention. Equally important, China would like to emphasize, the exercise of judicial or arbitral power shall not derogate from the right of the States Parties to choose the means of settlement of their own accord, or from the principle of consent which must be followed in international adjudication and arbitration. China holds that this is the constraint that the Arbitral Tribunal must abide by when considering whether or not to apply Article 288(4) in determining its jurisdiction in the present arbitration.’ see supra note 2, the 2014 Position Paper of China, para. 83. H. D. Phan and L. N. Nguyen, ‘The South China Sea Arbitration: Bindingness, Finality, and Compliance with unclos Dispute Settlement Decisions’ (2018) 8(1) Asian Journal of International Law 36. Phan and Nguyen consider that ‘the fact that China has not, and potentially will not, fully comply with the arbitral awards does not negate the significance of the South China Sea arbitration’ (p. 49). See also D. Desierto, ‘Enforcement Options and Paths to Compliance: Disputants and Global Stakeholders in Philippines v. China’ (2018)

China’s Perception of State Sovereignty

435

From a legalist point of view, once it was initiated, it was difficult for China to dodge the case. Yet, China sought refuge in the notion of state sovereignty. Following its own understanding of state sovereignty, it adopted a passive case-​dealing strategy which proved to be disastrous. The reality is that, in the absence of China, the Annex vii Tribunal decided the case –​in relation to both issues of jurisdiction and merits –​and delivered Awards overwhelmingly in favour of the Philippines. Thereafter, the Awards have provided a source of authority for the opponents of China’s claims in the South China Sea. A most recent example can be found in The U.S. Position on Maritime Claims in the South China Sea,73 which states that ‘today we are aligning the U.S. position on the prc’s maritime claims in the [South China Sea] scs with the Tribunal’s decision.’74 As an explanatory note, a distinction should be made between the issue of the Tribunal’s jurisdiction and the rules of procedure before the Tribunal. The former concerns the scope of compulsory jurisdiction; while the latter is about the procedure governing the constitution of the Tribunal, the times limits of actions, the issuance of the outcome, and so on. A party to a dispute may have different views about the Tribunal’s jurisdiction. It should however express its views in the way prescribed by the procedural rules. This is an inherent requirement of international rule of law. By referring to the notion of state sovereignty to justify its noncompliance with the Rules of Procedure, China seemed to place the notion of state sovereignty in antagonism with the ideal of the international rule of law in the South China Sea arbitration. 3.2.2 China’s Participation in wto Dispute Settlement Very differently from the field of the law of the sea, China participates actively in the wto compulsory dispute settlement mechanism. Since its becoming a contracting party to the 1995 wto Agreement in 2001, China has so far participated in 246 wto cases in total,75 including as complainant in 23

73 74 75

8 Asian Journal of International Law 64. Desierto considers the Award as a ‘source of international law’ (p. 64). They hold the view that, legally speaking, China’s non-​recognition or non-​acceptance cannot change the finality and validity of the awards. Press statement by the Secretary of State Mr Pompeo on July 13 2020, available at https://​ www.state.gov/​u-​s-​position-​on-​maritime-​claims-​in-​the-​south-​china-​sea/​ (accessed 2 October 2020). Ibid, para. 5. Source from: wto statistics concerning ‘dispute by country’ https://​www.wto.org/​english/​ tratop_​e/​dispu_​e/​dispu_​by_​country_​e.htm (accessed 2 October 2020).

436 Sun cases,76 as respondent in 44 cases,77 and as a third party in 179 cases. China ranks third with respect to the number of cases it participates in either as a complainant or as a respondent.78 These figures provide strong evidence of China’s active participation. Additionally, China has consistently adhered to the outcomes of the dispute settlement process even when the outcomes were not in its favor. In a word, China adopts a positive attitude towards the wto compulsory dispute settlement mechanism. China has particularly positive experiences with the Appellate Body; this was the practical reason for its proposal of an appealing mechanism for isds reform in the field of investment. Recently, facing the wto Appellate Body crisis,79 China has been working actively to revive the wto Appellate Body in alliance with other wto members, by making joint election proposals80 and arriving at multi-​party interim appeal arbitration arrangement.81 The question arises: Why does China accept the compulsory dispute settlement mechanism under the wto Agreement but contests that of the unclos? Technically, it is because limitations and exceptions to the compulsory jurisdiction are allowed under the unclos but not in the wto Agreement. To put it more bluntly, it is because there is no possibility for states to partially opt out from the wto mechanism. On the contrary, the broad leeway left for states makes the unclos mechanism vulnerable for contestation; this inherent weakness of the unclos mechanism was deliberately made so by its founding fathers –​the states. Fundamentally, this reflects the fact that states, including China, are less willing to accept restrictions on its sovereignty in the field of the

76

77 78 79 80 81

Ibid. China instituted 5 cases against EU (formerly ec), 1 against Greece, 1 against Italy and 16 against the U.S. In 2002, China complained against U.S. steel safeguard measures, this was the first time in Chinese history that a Chinese government has initiated an international dispute resolution proceeding. Ibid. China was sued by Brazil in 1 case, by Canada in 4, by EU (formerly ec) in 9, by Guatemala in 1, by Japan in 2; by Mexico in 4; by the U.S. in 23. Ibid. China (67 cases) is preceded by the US (279) and EU (190) and is followed by Canada (63), India (56), Brazil (49), Japan (42), Republic of Korea (40) and others. That is, the blockage of the election of Appellate Body members by the US which eventually led to the suspension of the wto Appellate Body as of 11 December 2019. ‘Joint proposals on the Appellate Body reform’, wt/​g c/​W/​752/​Rev.2 and wt/​g c/​W/​753/​ Rev.1. dated on 23 November 2018. ‘China’s Proposal on wto Reform’ Communication from China dated on 13 May 2019, wt/​g c/​W/​773. ‘China, EU and other wto members decided to establish a multi-​party interim appeal arbitration arrangement’, available at ‘Delegation of the European Union to China’ https://​ e eas.europa.eu/ ​ d elegations/ ​ c hina_ ​ e n/ ​ 7 6788/ ​ C hina,%20EU%20and%20 other%20WTO%20members%20decided%20to%20establish%20a%20Multi-​party%20 Interim%20Appeal%20Arbitration%20Arrangement (accessed 2 October 2020).

China’s Perception of State Sovereignty

437

law of the sea than in the field of wto law. From this point, it may be inferred that China’s conception of state sovereignty varies with respect to different subject matters. In summary, international dispute settlement is governed by the principle of consent which is a corollary of the principle of sovereign equality. In light of these principles, an international court or tribunal can exercise jurisdiction only if a state gives its consent. The extent to which a state is willing to give its consent is a strong indicator of its perception of state sovereignty. In the case of China, the roc was very willing to give its consent to international adjudication and actively participated in such procedures; on the contrary, the prc refrains from doing so. Since the 1990s, the negative attitude of the prc has begun to change. This is mostly reflected in the fields of wto law and international investment law. Despite this change, China is said to still follow ‘a policy of strictly limiting its exposure to international adjudicatory mechanisms’.82 The South China Sea arbitration clearly shows the prc’s reluctance. There might be practical reasons, like, political expediency, or international litigation capacities, or simply miscalculation, for China’s negative attitude in this case. Yet, the deep psychological reason is arguably its perception of state sovereignty. In the prc’s understanding, without the consent of China, the Philippines failed to respect the state sovereignty of China by submitting a dispute unilaterally, and the Tribunal failed to do so by interpreting the scope of compulsory jurisdiction too broadly. While China has actively participated in the wto compulsory dispute settlement mechanism, it has not done so in the of law of the sea context. China has apparently does not intend to submit disputes involving sensitive issues, like territorial sovereignty and maritime entitlements or sovereign rights, to international adjudication or arbitration. Perhaps the situation in the South China Sea arbitration has revived a collective memory of ‘being forced’ in its semi-​colonial past. The fact of ‘being forced’ into the case may be the reason why China was offended and chose not to cooperate. This resistant behavior, however, jeopardizes the ideal of international rule of law. 4

Conclusions

This chapter does not aim to criticize nor to defend China’s attitude in the South China Sea arbitration. The purpose of this discussion has been to unravel 82

See Ku, supra note 40.

438 Sun the underlying reason for that attitude by presenting and reflecting on China’s perception of state sovereignty from its initial encounter with international law until the present, in particular in the field of international dispute settlement. It is shown that China has always attached importance to state sovereignty; yet, its perception thereof has evolved since 1842. In general, the change has manifested itself in China from regarding state sovereignty as a goal to considering it as a shield. In the field of international dispute settlement, the roc had been willing to give consent to international adjudication while the prc has been reluctant. Specifically, it has so far not participated in any contentious cases before the icj; it got involved in only nine treaty-​based investment arbitration cases; it has never appeared before the itlos and not participated in any law of the sea arbitrations; and it vehemently abhorred the South China Sea arbitration. On the other hand, however, positive signs can be detected. Currently, China is becoming actively involved in the international debate of the isds reform. Since acceding to the wto, the prc has so far participated in 246 wto cases. Also, the prc submitted Written Statements to the icj and the itlos in four advisory cases. Generally, there has been a very positive trend in China’s participation in international law since 1979.83 Simultaneously, its rigid perception of state sovereignty has been softened. In this context, The South China Sea arbitration looks like an abrupt setback. How then should the South China Sea arbitration be viewed? The prc experienced a fast and complete loss in a decisive battle of lawfare concerning the South China Sea claims. This failure, although difficult to accept, is hoped to create a critical moment of intellectual reflection on China’s understanding of the core concept of ‘state sovereignty’ and international law as a normative system. The significance of this case must not be minimized. Looking into the future, the importance of state sovereignty is not expected to diminish in the foreseeable future. The author would like to concur with the opinion of Professor Schrijver: It is argued that national sovereignty in 2000 does indeed differ greatly from the concept held in the mid-​seventeenth century, and that it has been qualified in various ways in the intervening period. But to sound the death-​knell from this principle of law [the principle of sovereign 83

B. Ling, ‘China’s Attitude to the International Legal Order in the Xi Era: The Case of South China Sea’, ‘Indo-​Pacific Focus’ Policy Brief No. 4, 2018, available at http://​www2.jiia.or.jp/​ en/​article_​page_​pr.php?id=7 (accessed 2 October 2020). Ling regards the South China Sea arbitration as an exceptional event.

China’s Perception of State Sovereignty

439

equality], let alone to announce the withering-​away of the nation-​State, is premature, to say the least.84 The above argument, made in 2000, remains valid in 2020, and will likely remain so for quite a long time to come, as long as a better way to organize societies than the form of nation-​state is not found. But what will be China’s attitude towards state sovereignty? Carrai, after a genealogical study of the concept of sovereignty in China, concludes that China adopts a ‘pragmatic approach’ towards state sovereignty and international law; and for that reason, she considers that its future attitude is unpredictable.85 Xue contends that the attitude towards the sovereignty debate ‘reveals one’s perception of the world change and its vision for the future order.’86 Thus, it seems that China’s attitude towards state sovereignty in the future will depend on its answer to the question of what future world order China would like to support. This chapter calls for a true integration of the notion of state sovereignty and the ideal of international rule of law in the future of China’s relation with international law. 84 85 86

See Schrijver, supra note 3, at 65. contents in the bracket are inserted by the author of this chapter. See Carrai, supra note 6, at 223. See Xue, supra note 26, at 82.

­c hapter 22

Public Administration and Ordinary Virtues The Venice Principles on the Ombudsman Institution Luc Verhey 1

Introduction

Once started as a Scandinavian phenomenon, the institution of the Ombudsman has become popular all over the world as a public official who controls and redresses misconduct by administrative authorities. As there are different models of ombudsmen institutions with varying legal mandates and powers, it is difficult to characterize from a constitutional perspective. It has at times been qualified as an extra check on the public administration, as ‘a kind of auxiliary component to the checks and balances between state powers’.1 In other cases, the Ombudsman is situated as ‘a fourth power … vis-​à-​vis the legislature, the executive and the judiciary’.2 Reality will often be somewhere in between. In many States, the Ombudsman has gradually become a full-​grown autonomous institution, playing a key role in strengthening democracy, the rule of law, good governance and the protection of human rights. As a result, the Ombudsman can be characterized as a state institution in its own right, with his own functions and characteristics; it is a constitutional organ sui generis. In comparison with the courts, legal doctrine pays relatively little attention to the Ombudsman. The Ombudsman is considered a non-​judicial remedy which produces non-​binding decisions and reports (‘soft law’). This perhaps explains why the Ombudsman is still a rather undiscovered niche in the professional field of lawyers. This is no longer justifiable. In present time where controversy and discomfort under citizens seem to be growing, and

1 Alberto Castro, Principles of Good Governance and the Ombudsman. A comparative study on the normative functions of the institution in a modern constitutional state with a focus on Peru, Intersentia Cambridge –​Antwerp (2019), 58. 2 Henk Addink, ‘The Ombudsman as the fourth power. On the foundations of ombudsman law from a comparative perspective’, in F. Stroink & E. van der Linden (eds.), Judicial Lawmaking and Administrative Law, (2005), 255. Addink situates the Ombudsman as a fourth power from the perspective of the Dutch Constitution.

© Koninklijke Brill NV, Leiden, 2021 | D

Public Administration and Ordinary Virtues

441

the authority of state institutions ought not to be taken for granted, institutions like the Ombudsman and similar bodies seem to be more important than ever. The Ombudsman has the legal instruments and the room to maneuver to try to bridge the gap between the state and its citizens, more so than courts. In this respect, the functions of the courts and the Ombudsman are fundamentally different, having a significant effect on our legal order. Next to the courts, the Ombudsman in many countries has become an essential part of the constitutional system of checks and balances. This also influences the law in a more practical sense. Although the Ombudsman essentially is and must remain a non-​judicial remedy, its activities can have indirect legal effect in individual cases and procedures. Many jurists still seem to underestimate the importance of this development. That is why legal doctrine should pay more attention to the role of the Ombudsman from a legal perspective. In this chapter, I discuss its relatively limited role in international law in the first place (par. 2). The exception to this is the work of the European Commission for Democracy through Law (the Venice Commission). After a brief description of the relevant international law in general, I will discuss the recently adopted Principles on the Protection and Promotion of the Ombudsman Institution (‘the Venice Principles’) in its various aspects (par. 3). This part will not be exhaustive and oftentimes descriptive, with more research in the area, the legal and practical meaning of these Principles required generally. The main goal of this article is to draw attention to the Venice Principles and to the growing legal importance of the Ombudsman institution more general. 2

International Law on the Ombudsman

Ombudsmen play a modest role in international law, particularly in the context of international and European treaties on human rights. Article 14 of the International Covenant on Civil and Political Rights (iccpr) and article 6 of the European Convention on Human Rights (echr) stipulate the right to a fair and public hearing by a competent, independent and impartial tribunal. Not being a ‘tribunal’, the Ombudsman does not meet the requirements of these provisions. In the context of the echr, a national ombudsman could perhaps have additional value in the context of Article 13, whereby persons whose rights under the echr are violated are entitled to an effective remedy before a national authority. However according to the case-​law of the Strasbourg Court the Ombudsman as such is not an ‘effective’ remedy because he cannot

442 Verhey take legally binding decisions.3 Parallel to this, the right to complain to the Ombudsman is among lawyers often still seen as only an addition to the right of access to justice through the courts.4 The above does not mean that international law has not paid any attention to the role of the Ombudsman. Several soft law instruments have been established in the past concerning the Ombudsman or related national institutions. One can refer to the Recommendations of the Committee of Ministers of the Council of Europe on the institution of the Ombudsman,5 and on the establishment of independent national institutions for the protection of human rights.6 Similar instruments have been established within the United Nations (UN), such as the General Assembly Resolution on the principles relating to the status of national institutions for the promotion and protection of human rights (‘the Paris Principles’)7 and more recently Resolutions on the role of the Ombudsman, mediator and other national human rights institutions in the promotion and protection of human rights.8 Although these instruments have been useful and worthwhile, their content is concise and vague. The activities of the Venice Commission can be viewed as the exception. Throughout the past two decades, the Venice Commission has adopted several opinions, reports and studies relating to the Ombudsman institution. Although these documents pertain to national or local situations and therefore are specific in nature, they seek to present general standards for all member and observer states of the Venice Commission.9 The recommendations which have been made in these reports might therefore be of a more general application. Although it perhaps goes too far to speak of a ‘doctrine’ on the role of the Ombudsman institution, it is arguable that case-​by-​case, the Venice Commission has developed useful guidelines on all sorts of aspects, such as the election of the Ombudsman, the status of the Ombudsman of the institution,

3 Leander v. Sweden, decision of 26 March 1987 nr. [1987] echr 9248/​81 par. 82; Ananyev and others v, Russia decision of 10 January 2012, [2012] echr, nrs. 42525/​07 and 60800/​08, par. 106. 4 See for example the Preamble of the Principles on the Protection and Promotion of the Ombudsman Institution (the Venice Principles), Strasbourg, 3 May 2019, cdl-​a d(2019)005. 5 R (85)13. 6 R (97)14. 7 Resolution 48/​134 of 20 December 1993. 8 Resolution 69/​168 of 18 December 2014 and Resolution 72/​186 of 19 December 2017. 9 The Commission has 62 member states: the 47 Council of Europe member states and 15 other countries (Algeria, Brazil, Canada, Chile, Costa Rica, Israel, Kazakhstan, the Republic of Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the USA).

Public Administration and Ordinary Virtues

443

its relation with other state and local bodies, the features of the Ombudsman’s term of office and the competences and powers of the Ombudsman.10 As a next step in strengthening these standards, the Venice Commission in 2019 adopted the Principles on the Protection and Promotion of the Ombudsman Institution, the so-​called ‘Venice Principles’.11 These principles have been established against the background of controversy and instability in, and between, national jurisdictions globally. The Venice Commission has underlined the role of the Ombudsman ‘being of utmost importance especially during periods of hardship and conflicts in society’. Even though there are presently Ombudsman institutions in more than 140 States at different levels and with different competences, the Ombudsman institution is not a firmly established institution everywhere. Based on recent experiences in some Council of Europe Member States, the Venice Commission expressed ‘serious concern that the Ombudsman Institution is at times under different forms of attacks and threats, such as physical or mental coercion, legal actions threatening immunity, suppression reprisal, budgetary cuts and a limitation of its mandate’. These threats stress the importance of safeguarding and monitoring general standards as recently laid down in the 25 Venice Principles. The Venice Commission adopted the principles after having consulted relevant organs and officials of the United Nations, the Council of Europe and the European Union as well as institutional stakeholders like the International Ombudsman Institute and the European Network of National Human Rights Institutions.12 After their adoption the Principles were endorsed by the Council of Ministers13 and by the Parliamentary Assembly of the Council of Europe.14 In addition the Parliamentary Assembly15 and the Council of

10 11 12 13 14 15

See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001. It is stated that this document will be updated regularly. Principles on the Protection and Promotion of the Ombudsman Institution (the Venice Principles), Strasbourg, 3 May 2019, cdl-​a d(2019)005. See Preamble, European Commission for Democracy Through Law (‘Venice Commission’), Principles on te Protection and Promotion of the Ombudsman Institution (‘the Venice Principles’), March 2019. Decisions 1345th meeting of the Ministers’ Deputies, 2 May 2019, cm/​Del/​Dec (2019) 1345/​ 10.5. Resolution 2301 (2019) Parliamentary Assembly of the Council of Europe, 2 October 2019 (31th Sitting). Recommendation 2163 (2019) Parliamentary Assembly of the Council of Europe, 2 October 2019 (31th Sitting).

444 Verhey Ministers16 adopted recommendations on the development of the Ombudsman institution.17 The Parliamentary Assembly recommended that the Committee of Ministers ‘consider establishing a mechanism of appropriate composition and mandate to which the Council of Europe member states could regularly report on the situation and the activities of their ombudsman institutions, including the state of implementation of the Venice Principles’.18 In his recommendation the Council of Ministers did not yet mention a reporting mechanism but indeed recommended that the governments of member States examine, within the Committee of Ministers, the implementation of its recommendation (including the endorsement of the Venice Principles) no later than five years after its adoption. I will now go into its highlights, on a few points raising questions and pointing to what could be considered difficulties or shortcomings. 3

The Venice Principles

Role of the Ombudsman 3.1 The Venice Principles do not precisely define the role of the Ombudsman. In general, they provide that the Ombudsman has an important role to play in strengthening democracy, the rule of law, good administration and the protection and promotion of human rights and fundamental freedoms.19 This does only mention the general values the Ombudsman should promote; while the principles expressly establish that the envisaged role of the Ombudsman in this context is important, they do not make clear what this role should exactly entail. It has only been recognized expressis verbis that there is no standardized model across Council of Europe Member States. As the Preamble of the Venice Principles says the principles of the Ombudsman Institution may be achieved through a variety of different models. It is understandable that the Venice Commission has not to chosen one of the existing Ombudsman models, with the variance of models between the states being significant. This does however not mean that the Principles 16 Recommendation cm/​Rec (2019)6 of the Committee of Ministers to member States on the development of the Ombudsman institution, 16 October 2019. 17 See also Venice Commission, Opinion No. 897/​2019, cdl-​a d(2019)035, Strasbourg, 10 December 2019. 18 Recommendation 2163 (2019), par. 1.2. See also Recommendation cm/​Rec (2019)6, par. 4. 19 Principle 1.

Public Administration and Ordinary Virtues

445

sufficiently take into account this variety. In the context of specific principles, the Venice Commission has not had a clear view on the different options that already exist in the Council of Europe Member States. On the one hand, the Principles seem to have left aside the ‘mixed’ or ‘dual’ ombudsman model in which the Ombudsman has wide powers to enhance the legitimacy of government,20 on the other hand a preference for the human rights ombudsman model is implied at some point. In so far the Venice Principles sometimes implicitly choose for one specific model and therefore seem inconsistent at points. What is lacking in the first place is a definition of an Ombudsman; this means a description of its core task, of what the Ombudsman is essentially all about. Such definition would make more clear to what extent the Ombudsman differs from other public officials and public bodies. On early occasions the Venice Commission itself described the Ombudsman institution as: an independent official having the primary role of acting as intermediary between the people and the state and local administration, and being able in that capacity to monitor the activities of the administration through powers of inquiry and access to information and to address the administration by the issue of recommendations on the basis of law and equity in a broad sense, in order to counter and remedy human rights violations and instances of maladministration.21 If required, the Commission could have chosen a more concise description. A good example can be found in the recent dissertation of Castro who, inspired by an old resolution22 of the International Bar Association,23 reminds us of ‘the most widely accepted definition’ of the Ombudsman as an ‘office who receives

20 21 22

23

See Castro, supra note 1, at 83. Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 4. Ombudsman Committee, International Bar Association Resolution, Vancouver 1974. The complete definition in this resolution is: ‘an office provided for by the constitution or by action of the legislature or parliament and headed by an independent high-​level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports.’ See further International Bar Association, Standards for the Establishment and Operation of Ombudsman Offices, 2001; and J. Beqiraj, S. Garahan and K. Shuttleworth, Ombudsman schemes and effective access to justice: A study of international practices and trends, 2018.

446 Verhey complaints from aggrieved persons against government agencies, officials and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue report.’24 This description has the advantage that it defines, and to a certain extent delimits, the task of the Ombudsman institution while at the same time leaving enough room for flexibility. Flexibility is indeed a main feature of the Ombudsman institution. History shows the Ombudsman has adapted to political and societal circumstances over time, with different waves of development.25 Denmark is the benchmark of the ‘classical’ ombudsman, which is considered as a mechanism for controlling the legality, fairness and efficiency of the administrative activities of the government. This model is aimed at improving the performance of state administration and enhancing government accountability to the public. At a later stage, a more ‘hybrid’ ombudsman has been introduced in other States. In most of these cases, the Ombudsman is more focused on the protection and promotion of human rights. This type of Ombudsman is referred to as the ‘human rights ombudsman model’.26 Although the principles formulate a broad mandate of the Ombudsman which shall cover both prevention and correction of maladministration and the protection and promotion of human rights,27 the Venice Commission has left open which model should be preferable. This does not mean that one should stop thinking about the conceptual framework of the Ombudsman institution. The Ombudsman cannot do everything. Presumably difficult choices cannot be avoided to obtain a legal mandate that is clear enough to determine what the Ombudsman should do and not do, and to prevent the task will overlapping too much with the mandates of other public bodies. More specifically, there is a risk that the Ombudsman will become a modernized variant of legal redress and as a result will interfere with the mandate of the courts. The question is whether the Venice Principles offer sufficient guidance to conceptualize the role and mandate of the Ombudsman in the context of its relation to other state bodies.

24 25

26 27

See Castro, supra note 1, at 54. Milan Remáč, Coordinating Ombudsmen and the Judiciary. A comparative view on the relations between the ombudsmen and the judiciary in the Netherlands, England and the European Union, 2014 at 3. See also Marten Oosting, ‘The Ombudsman and his environment: a global view’, in: Linda C. Reif (ed.), The International Ombudsman Anthology (1999). See Linda C. Reif, The ombudsman, good governance and the international human rights system, 2004 at 2–​12; Castro, supra note 1, 51, at 54. Principle 12.

Public Administration and Ordinary Virtues

447

Legal Mandate 3.2 As the Venice Principles do not make a clear choice for one specific model, the mandate of the Ombudsman has been defined broadly. It shall cover prevention and correction of maladministration as well as the protection and promotion of human rights and fundamental freedoms.28 This suggests that States should combine the two models mentioned above, the classical Danish model and the human rights ombudsman model. Presumably however, the Venice Principles leave States a wide margin of appreciation to emphasize specific aspects or functions appropriate to the particular features of their legal order.29 Moreover, the differences between the models may be less pronounced in practice. In many States with a classic ombudsman, its mandate includes the protection of human rights.30 Good governance implies that human rights are respected in the first place. Leaving much room here, the Principles do not elaborate the assessment standards the Ombudsman should use. They do not define the concept of ‘maladministration’31 in any way, nor do they provide for any indication on which criteria maladministration or –​to put in a positive way –​good administration32 should be tested. One reason for this could have been that these concepts, as Rémac has concluded, are not always as clear as they could be and that ombudsmen do use different assessment criteria.33 Perhaps the Venice Commission could not reach consensus on what should be the common ground in this field. Further research could help to make progress in developing further standard setting. 28 29 30 31 32

33

Principle 12. The Preamble of the Venice Principles recognize explicitly that the principles ‘may be achieved through a variety of models’. In addition Principle 1 underlines that ‘there is no standardized model across Council of Europe Member States’. Gabriele Kucsko-​Stadlmayer (eds.), European Ombudsman Institutions. A comparative legal analysis regarding the multifaceted realisation of an idea, 2008, at 3 and 36–​9. See also Castro, supra note 1, at 78. The concept of ‘maladministration’ is also used in the context of Article 228 tfeu by the European Ombudsman. See Castro, supra note 1, at 74–​5. Article 41 of the Charter of Fundamental Rights of the European Union guarantees the right to good administration. This means that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. This has been worked out in Article 41 in more detail by mentioning specific rights. Milan Remáč, ‘Standards of Ombudsman Assessment: A New Normative Concept?’ (2013) 9(3) Utrecht Law Review 77. See also Addink, supra note 2, at 266–​271; Kucsko-​Stadlmayer, supra note 30, at 32–​6; and Castro, supra note 1, at 71–​9. See about the Dutch Ombudsman Nicole Niessen, ‘Lawmaking by the National Ombudsman?’ in: F. Stroink & E. van der Linden (eds.), Judicial Lawmaking and Administrative Law, 2005, at 285–​310.

448 Verhey The Venice Principles establish that the institutional competence of the Ombudsman shall cover ‘public administration at all levels’. This is interpreted broadly where the Principles clarify the Ombudsman mandate shall cover ‘all general interest and public services provided to the public, whether delivered by the State, by the municipalities, by State bodies or by private entities.’34 Including private entities within its mandate could potentially render the Ombudsman competent to investigate activities of private organizations that fulfil a public role or perform certain tasks by virtue of a concession or an administrative authorization. As Castro pointed out the competence of the Ombudsman should be seen from a functional perspective; the concept of ‘administration’ should include acts of state authority, irrespective of the responsible legal entity.35 From a functional perspective the competence of the Ombudsman could not only imply administrative acts in the classical sense but also the provision of public services like for instance energy supply, telecommunication or railways. In many countries the Ombudsman is single head. The strength of a single head office could be the visibility and the accountability of the one and only post holder. However, as appears from the definition of the mandate as cited above this does not mean that within a State the Ombudsman should be single head nor that there could only be one Ombudsman. The Venice Principles expressly state that the choice of a single or plural Ombudsman ‘depends on the State organization, its particularities and needs.’ The Ombudsman Institution may be organized at different levels with different competences.36 An important issue is the relationship between the Ombudsman and the judiciary.37 The Venice Principles make clear that the Ombudsman may not evaluate the judgments of the courts. The competence of the Ombudsman relating to the judiciary shall be confined to ensuring ‘procedural efficiency and administrative functioning of that system’.38 Moreover, the Principles 34

Principle 13. See also Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 25. Earlier the Venice Commission advised to include private bodies in the jurisdiction of the Ombudsman ‘only to the extent that these agencies are entrusted with a public service mission or, where applicable, co-​financed by the state.’ 35 See Castro, supra note 1, at 64. 36 Principle 4. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 34–​6. 37 See Remáč, supra note 25. 38 Principle 13. The Venice Commission earlier recommended with reference to Recommendation 1615 (2003) that ‘ombudsmen should have at most strictly limited powers of supervision over the courts. If circumstances require any such role, it should be confined to ensuring the procedural efficiency and administrative property of the judicial

Public Administration and Ordinary Virtues

449

provide that the Ombudsman shall investigate cases ‘with due regard to available administrative remedies’.39 This clause evidently includes procedures before the administrative judiciary, but what this means is unclear. The phrase ‘with due regard’ leaves open to what extent the Ombudsman is competent to intervene in cases which are pending before the courts or where parties still have access to a court proceeding. The Principles only determine the official filing of a request to the Ombudsman ‘may’ have suspensive effect on time-​ limits to apply to the court, according to the law. This only regards an optional coordinating mechanism. The Venice Principles establish that the Ombudsman Institution, including its mandate, shall be based on a ‘firm legal foundation’. A foundation at constitutional level is not obligatory but preferable.40 The characteristics and functions may be further elaborated at the statutory level.41 The Ombudsman shall report to Parliament on its activities at least once a year. In this report the Ombudsman may inform Parliament on lack of compliance by the public administration and on all other issues as the Ombudsman sees appropriate. The Ombudsman’s reports shall be made public and be duly taken into account by the authorities.42 The Principles guarantee that the Ombudsman shall not be given nor follow any instruction from any authorities.43 Although a constitutional foundation would be appropriate these provisions should sufficiently guarantee a firm legal position within the national system of checks and balances. 3.3 Functions and Powers Vital for the effective functioning of the Ombudsman are his investigative powers.44 The Venice Principles provide that the Ombudsman shall have discretionary power to investigate cases on its own initiative or as a result of a complaint. In the context of its investigations, the Ombudsman shall be entitled to request the co-​operation of any individuals or organizations who may be able to assist: co-​operation is not optional. The Ombudsman shall have ‘a legally

39 40 41 42 43 44

system’. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 28. Principle 16. In 2008 ombudsman institutions were constitutionally enshrined in 32 European countries. See Kucsko-​Stadlmayer, supra note 30, at 7 and 456. Principle 2. Principle 20. Principle 14. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 25–​7.

450 Verhey enforceable right’ to unrestricted access to all relevant documents, databases and materials, ‘including those which might otherwise be legally privileged or confidential’. This enforceable right includes the right to ‘unhindered access’ to buildings, institutions and persons, including those deprived of their liberty.45 Moreover the Ombudsman shall have the power to interview or demand written explanations of officials and authorities and shall give particular attention and protection to whistle-​blowers in the public sector. However, the Principles do not say whether this power is legally enforceable as well. Regarding what the Ombudsman should do with its findings, the Venice Principles are ambivalent. The Venice Commission presumably has had different Ombudsman models and functions46 in mind. In the first place, the Ombudsman shall have the power to address ‘individual recommendations’ to any bodies or institutions within his competence. Concerning these recommendations, the Ombudsman has the legally enforceable power to demand that officials and authorities respond.47 In the second place, the Ombudsman shall have the power ‘to present, in public, recommendations to Parliament or the Executive, including to amend legislation or to adopt new legislation’. This power concerns general recommendations but is explicitly limited to the monitoring of the implementation at the national level of ratified human rights treaties.48 These provisions clearly reflect the classification mentioned above which distinguishes between the classical Danish Ombudsman aimed at the enhancement of good administration and the human rights Ombudsman which focuses on the implementation of human rights by the State.49 The aforementioned provisions also seem to reflect Heede’s distinction between the ‘redress’ and ‘control’ functions of the Ombudsman. With the redress function, Heede aims at the process which can have a certain effect of remedying the position of an individual;50 the obligation to respond to individual recommendations clearly expresses this function. The control function is, according to Heede, 45 46 47 48 49 50

Principle 16. Remáč distinguishes five possible functions of the Ombudsman: the control function, the protection and dispute resolution function, the remedial or redress function, the normative function and the potential educative function. See Remáč, supra note 25, at 4–​8. Principle 18. See likewise Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 27. Principle 19. See also Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 25. See Reif, supra note 26, at 2–​12. Katja Heede, ‘European Ombudsman: Redress and control at Union level’, in Kluwer (ed.) Law International, 2000, at 91. See also Castro, supra note 1, at 69–​71.

Public Administration and Ordinary Virtues

451

the ‘process through which the administrative behavior is investigated and hopefully influenced with the purpose of improvement’;51 this function has been recognized in the Principle that regards the power to the Ombudsman to present recommendations to Parliament and the Executive in the field of human rights. What the Venice Principles do not reflect is what Castro has called the ‘mixed’ or ‘dual’ ombudsman model.52 In this model, the Ombudsman has a wide mandate ‘to address general distrust of the state on the part of the citizens, thereby enhancing the legitimacy of government’. In Heede’s terms, this Ombudsman function is control oriented. The mandate may include monitoring administrative activities of state authorities in a broad sense (including the judiciary). Although it also may include individual acts, it will focus on general acts of the State. This model goes beyond the field of human rights to which, according to the Venice Principles, the power of the Ombudsman to issue general recommendations should be limited. Perhaps there are good reasons for this limitation, but it does not seem to be fully in conformity with the suggestion also laid down in the Principles elsewhere that states may freely choose the Ombudsman model that fits best within their specific legal order. In conjunction with the last point, it is worth noting that the Venice Principles recommend the Ombudsman shall ‘preferably’ have the power to challenge the constitutionality of laws and regulations or general administrative acts and shall ‘preferably’ have the power to intervene before relevant adjudicatory bodies and courts.53 Unlike the Principles on the power to present general recommendations, this provision seems to fit in the wide ranged Ombudsman model mentioned above. As a result, these principles do not seem fully in accordance with each other. Moreover, these provisions read together express a preference for a legally oriented Ombudsman model. Although the powers to challenge laws and to intervene in legal procedures before the courts are ‘preferable’, they are not self-​evident. They bring about the risk of an Ombudsman who is too much oriented on legal issues and with limited focus on the non-​legal dimensions of good governance. 3.4 Institutional and Organizational Aspects Seen from a lawyer’s perspective, perhaps less spectacular but extremely important are the institutional and organizational aspects of the Ombudsman. This regards amongst others the criteria for and terms of office, the election 51 52 53

See Heede, supra note 50, at 94. See Castro, supra note 1, at 83. Principle 19.

452 Verhey and removal of the Ombudsman, its legal status (including rank and salary), budgetary resources and staff. The advisory work of the Venice Commission so far has often concerned specific state regulations and practices in this field.54 If States intended to hamper the effective functioning of the Ombudsman, they would probably do this by taking institutional or organizational measures. The intention to hinder the Ombudsman’s activities is difficult to prove, while at the same time such measures can have serious detrimental effects. In this field one must look and monitor actions very closely and carefully: the devil is in the details. Against the background of recent experiences in some states already mentioned above55 the Venice Principles prescribe that states shall refrain from taking any action aiming at or resulting in the suppression of the Ombudsman Institution or in any hurdles to its effective functioning, and shall effectively protect it from any such threats. This provision implies both negative and positive obligations: the State must abstain from suppressing the Ombudsman as well as actively protect it from any attacks by others. However, such general provision is not enough to be effective. Concrete state action is needed. Therefore the Venice Principle contain important institutional and organizational guarantees in order to make the effective functioning of the Ombudsman Institution possible in daily practice. The Venice Principles prescribe that the Ombudsman shall be elected or appointed according to procedures strengthening to ‘the highest possible extent the authority, impartiality, independence and legitimacy of the Institution.’ Election by Parliament by an appropriate qualified majority is preferable.56 The procedure for selection of candidates shall include a public call and be ‘public, transparent, merit based, objective and provided for by the law.’57 The essential criteria for being appointed Ombudsman are high moral character, integrity and appropriate professional expertise and experience, including in the field of human rights and fundamental freedoms.58 The 54 55 56 57

58

See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001. See par. 2. Principle 6. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 8–​12. Principle 7. In the view of the Venice Commission the selection of candidates by a parliamentary commission does not seem problematic provided that the composition of the commission includes representatives of all parliamentary parties and the selection is based on merit. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 10. Principle 8.

Public Administration and Ordinary Virtues

453

criteria should however not be too restrictive. A university degree in law and a long experience in legal practice are in the view of the Venice Commission are not necessary requirements; the Ombudsman is not a judicial body.59 The Venice Principles also say that the term of the Ombudsman’s office shall preferably be limited to a single term. This recommendation is in conformity with earlier opinions of the Venice Commission. In the view of the Commission, a renewable mandate brings about a great risk ‘that the independent action of the person holding the post is compromised by considerations of future re-​election.’60 The single term shall preferably not be stipulated below seven years. At the same time, the Commission recognizes that there is no hard standard on this matter; the final choice as to whether or not the mandate should be renewable is to the States. At any rate, the Ombudsman’s mandate shall be renewable only once.61 There is no European standard either as to the constitutional or legal status of the Ombudsman. In any case they shall be given ‘an appropriately high rank’. This should also be reflected in the remuneration of the Ombudsman and in the retirement compensation.62 On earlier occasions, the Venice Commission has defined the high rank as ‘one of the essential factors that guarantee the Ombudsman’s independence from political interference; it enables the Ombudsman ‘to function effectively and efficiently.’63 To pursue the same goal, the Venice Principles guarantee functional immunity: the Ombudsman as well as their deputies and decision-​making staff ‘shall be immune from legal process in respect of activities and words, spoken or written, carried out in their official capacity for the Institution.’64 The other side of the coin of these essential guarantees is that the Ombudsman has weighty responsibilities. The Venice Principles provide that the Ombudsman shall not, during their term of office engage in political, administrative or professional activities ‘incompatible with his or her independence or impartiality’. In this respect the Ombudsman and his or her staff 59 60 61 62 63 64

See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 7. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 18. Principle 10. Principle 3. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 13. Principle 23. Such functional immunity shall also apply after the Ombudsman leaves his office. See further Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 14–​7.

454 Verhey shall be bound by self-​regulatory codes of ethics.65 On an earlier occasion the Venice Commission recommended that this comprehensive provision is preferable to a list of public offices which cannot be held by the Ombudsman.66 In any case such list should not be exhaustive. The Venice Principles contain an extensive provision on the budget of the Ombudsman.67 According to this provision, the law shall provide that the budgetary allocation of funds to the Ombudsman Institution must be ‘adequate to the need to ensure full, independent and effective discharge of its responsibilities and functions’. In this regard, the Ombudsman himself has a leading role. The Ombudsman shall not only be consulted but also be asked to present a draft budget for the coming financial year. The independent financial audit of the Ombudsman’s budget shall consider the legality of financial proceedings only, not the choice of priorities in the execution of the mandate. Finally, the Venice Principles set out that the Ombudsman shall have enough staff, with the recruitment of staff left to the Ombudsman.68 4

Conclusion: Ordinary Virtues

In many countries, the Ombudsman has become an established autonomous institution with its own functions and characteristics. Gradually, the institution has obtained a key role in strengthening democracy, the rule of law, good governance and the protection of human rights. For this reason, jurists must pay (and sometimes indeed have paid) attention to the constitutional and legal aspects of the Ombudsman Institute. The fact that the Ombudsman offers a non-​judicial remedy which only produces non-​binding decisions and reports is not decisive in this regard. On the contrary, besides the fact that they can have indirect legal effect, the strength of the Ombudsman institution is precisely its non-​judicial capacity. As the Venice Commission has pointed out ‘the key to the success of the Ombudsman institution among the nations lies in his/​her power to convince by reasoning on the basis of law and equity, rather than the power to hand down orders or directives’.69

65 66 67 68 69

Principle 9. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 8. Principle 21. Principle 22. See Compilation of Venice Commission Opinions concerning the Ombudsman institution, Strasbourg, 5 February 2016, cdl-​p i(2016)001, at 29.

Public Administration and Ordinary Virtues

455

Noting the key role of the Ombudsman in modern times and the serious concerns surrounding the fact that the Ombudsman is at times under different forms of attacks and threats, the Venice Principles should be welcomed. It represents an important next step in the advisory work on standard setting by the Venice Commission over the last few decades. These 25 Principles give clear and useful guidance to States to undertake all necessary action within their national legal order to strengthen the Ombudsman and make him/​her more effective. In this respect, one must keep in mind that the Ombudsman is a highly personalized state office. This shows once more that putting constitutional and legal provisions in place to guarantee his/​her authority, impartiality, independence and legitimacy is of vital importance. To this end, the Venice Principles can make a great contribution. Practice in states worldwide shows that there is a rich variety of Ombudsman models. The Venice Principles have left open which model is preferable. This does not mean that the conceptual framework of the Ombudsman institution ought to be forgotten. The Ombudsman cannot do everything. Presumably hard choices cannot be avoided to obtain a legal mandate that is clear enough to determine what the Ombudsman should do and not do and to prevent that his task will overlap too much with the mandates of other public bodies. More particularly, there is a risk that the Ombudsman will become a modernized variant of legal redress and as a result will interfere with the mandate of the courts. The question is whether the Venice Principles offer sufficient guidance to conceptualize the role and mandate of the Ombudsman in the context of its relationship to other state bodies. Blurring of the concept of Ombudsman as defined above must be avoided.70 After a three-​year journey to eight countries all over the world, Michael Ignatieff presented in ‘Ordinary Virtues’71 his discoveries and interpretation of what globalization is doing to our conscience and our moral understanding. He found that while human rights may be the language of states and liberal elites, the moral language that resonates with most people is that of everyday virtues: tolerance, forgiveness, trust and resilience. Ordinary virtues depend on public evocation and on public cultivation: ‘They may be local and personal, but they are dependent on public choice, on whether leaders appeal to the best, rather than the worst, whether public leaders practice generosity instead of preying fear’.72

70 71 72

See the definition of the role of the Ombudsman in 3.1 above. M. Ignatieff, The Ordinary Virtues: Moral Order in a Divided World, 2017. See Ignatieff, ibid, at 217.

456 Verhey For these reasons, ordinary virtues in private life are dependent on trustworthy public institutions. Where institutions function, where officials do their jobs, ordinary virtues can revive because public institutions also display resilience and public officials shoulder duties of care.73 Enhancing good public institutions from the perspective of ordinary virtues is exactly what the core business of the Ombudsman is all about. One should always keep this key element in mind when thinking about the future of this important institution. Ordinary virtues have been the core business of the life and work of my dear colleague Nico Schrijver as well. A stable characteristic of his impressive national and international career of already more than forty years is his sympathetic and mild personality. Tolerance, forgiveness, resilience and –​last but not least –​trust in human beings wherever they come from or whatever their political, social or cultural background, have been the moral values which Nico has persistently upheld in his entire professional life. At the same time, he has strong convictions on issues which are dear to him in the field of human rights, sustainable development and other international law topics. Topics at which he tirelessly and undauntedly has worked on for all these years and in the context of which he sometimes can charmingly but too easily, underestimate other interests. But perhaps the most important reason why at the end of the day he is so successful and effective is, apart from all his other professional qualities, the kindness and –​not to be underestimated –​the sense of humor by which he enters into and maintains human relationships. Hopefully society can still take advantage of Nico’s work for many years to come. 73

See Ignatieff, supra note 71, at 220.

­c hapter 23

The Right to Marry as a Right to Equality

About Same-​Sex Couples, the Phrase “men and women”, and the Travaux Préparatoires of the Universal Declaration Kees Waaldijk 1

Marriage between Sovereignty and Rights1

There can be tension between national sovereignty and international human rights. One of the challenges to national sovereignty lies in the fact that human rights apply to everyone, or in the terminology of the Sustainable Development Goals, that no one should be left behind. The right to marry and especially the quest for same-​sex marriage demonstrate this tension clearly. In this chapter I aim to demonstrate that the words ‘men and women’ in the phrasing of the right to marry in international human rights instruments were never intended to exclude same-​sex couples, and that from the start these three words have been there to affirm the non-​discriminatory and gender-​ neutral character of this right. A right for same-​sex couples to marry was first claimed in national courts and legislatures in the late twentieth century, but international human rights have already been invoked early on. The first legislative recognition of same-​sex 1 Kees Waaldijk is professor at the Grotius Centre of Leiden Law School (http://​www.law.leidenuniv.nl/​waaldijk), holding Leiden University’s chair in comparative sexual orientation law, which is sponsored by the Betsy Brouwer Fund at the Leiden University Fund. He is grateful to Nico Schrijver for welcoming and facilitating the establishment of this chair at the Grotius Centre in 2011, and for serving many years on the Curatorium of the Betsy Brouwer Fund. The author is indebted to many people who helped to inspire this chapter, and in particular to a former student from China who first alerted him to the history of the words ‘men and women’ in Art. 16 udhr, and to two former researchers at the Grotius Centre for International Legal Studies, Giuseppe Zago and Daniel Damonzé, who assisted in studying the travaux préparatoires of Art. 16 udhr and Art. 23 iccpr respectively. Parts of this chapter are also part of the author’s draft-​chapter (‘The gender-​neutrality of the international right to marry: Same-​sex couples may still be excluded from marriage, but their exclusion –​and their foreign marriages –​must be recognised’) for the forthcoming handbook on International lgbti Law edited by A. R. Ziegler; the 2018 version of that draft-​chapter is available at https://​ ssrn.com/​abstract=3218308.

© Koninklijke Brill NV, Leiden, 2021 | D

458 Waaldijk marriage came in 2001 (Netherlands),2 and the first lasting judicial recognition in 2003 (Ontario, Canada).3 The first ruling of an international human rights body on the issue of same-​sex marriage came in 2002, when the UN Human Rights Committee (unhrc) denied Joslin et al. the right to marry their same-​ sex partners in New Zealand.4 In 2010, the European Court of Human Rights ruled on its first case of a same-​sex couple wanting to marry, and denied Schalk and Kopf the right to marry each other in Austria.5 In its 2017 Advisory Opinion, the Inter-​American Court of Human Rights (IACtHR) concluded that States should work towards ensuring same-​sex couples access to marriage.6 In the meantime, same-​sex couples have achieved the right to marry in more than 30 countries on all continents of the world,7 with some of the rights and benefits traditionally associated with marriage becoming available to same-​sex couples in a growing number of other countries.8 The drafters of some human rights treaties have attempted to reduce the general tension between the international right to marry and national sovereignty, by explicitly including a wide margin of appreciation for the countries concerned. Thus Article 12 of the European Convention on Human Rights includes the phrase ‘according to the national laws governing the exercise of this right’, while Article 17(2) of the American Convention on Human Rights (achr) speaks of ‘the conditions required by domestic law’.9 However, such clauses are absent in Article 23 of the International Covenant on Civil and Political Rights (iccpr) and in Article 16 of the Universal Declaration of Human Rights (udhr). This makes same-​sex marriage claims under these

2 Act on the Opening up of Marriage (Netherlands) (Act of 21 December 2000, Staatsblad 2001, nr. 9). 3 Halpern v. Canada (Attorney General), Court of Appeal for Ontario, Judgment of 10 June 2003, 65 O.R. (3d) 161. 4 Joslin et al. v. New Zealand, Views of 17 July 2002, unhrc, UN Doc. ccpr/​C/​75/​D/​902/​1999. 5 Schalk and Kopf v. Austria, Judgment of 24 June 2010, no. 30141/​04, [2010] echr. 6 IACtHR, Gender Identity, and Equality and Non-​Discrimination of Same-​Sex Couples, Advisory Opinion of 24 November 2017, oc-​24/​17. 7 See L. R. Mendos, State-​Sponsored Homophobia –​Global Legislation Overview Update (December 2020), at 277-​290 (see also the annual updates of this report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association –​ilga World). 8 See K. Waaldijk, ‘Same-​Sex Partnership, International Protection’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (online, update 2020, forthcoming); and K. Waaldijk, ‘What First, What Later? Patterns in the Legal Recognition of Same-​Sex Partners in European Countries’, in M. Digoix (ed.), Same-​Sex Families and Legal Recognition in Europe (2020), 11. 9 In art. 17(2) achr the scope of this clause is limited by the words ‘insofar as such conditions do not affect the principle of equality established in this convention’.

The Right to Marry as a Right to Equality

459

global human rights instruments extra interesting: Is the exclusion in most countries of the world of same-​sex couples from marriage, compatible with the international right to marry? With the proclamation of the udhr in 1948, the right to marry first gained the status of international human right. Article 16 of the udhr begins with the words ‘men and women’, which were later also used in the marriage articles of several human rights treaties. These words have often –​wrongly as we will see –​been interpreted as signalling the heterosexual character of marriage.10 Therefore, it is important to take a closer look at the travaux préparatoires of the udhr to trace the textual history of this first international articulation of the right to marry. In the first udhr draft, the word ‘everyone’ was used in the right to marry. This word however was not considered strong enough to ensure full and equal marriage rights for women. Therefore, as we will see below, ‘everyone’ was replaced by ‘men and women’, and their equality of rights was underlined. 2

When ‘everyone’ Is Not Enough –​The Conception of the Right to Marry in 1947/​1948

The textual history of the right to marry in the udhr, as revealed by its travaux préparatoires, is presented in the table below. The most convincing conclusion drawn from this textual history is that the words ‘men and women’ are used in Article 16 of the udhr to affirm the equality of men and women as regards marriage.11 Although this Universal Declaration already provides general equality clauses in its Articles 1, 2 and 7, the mention of equality of rights in Article 16 is not strange, because in this Declaration other specific rights are also phrased with an additional guarantee of equality (see Articles 10, 21, 23, 25 and 26). Furthermore, nothing in the preparatory texts indicates that the drafters of the udhr were thinking about same-​sex partners or about a wish 10 11

For example in the Joslin case, supra note 4. The same conclusion has been drawn by W. A. Schabas (‘Gay Marriage, the Universal Declaration and a Cardinal’, 2012 PhD in human rights, http://​humanrightsdoctorate.blogspot.nl/​2012/​03/​gay-​marriage-​universal-​declaration-​and.html); by P. Gerber, K. Tay and A. Sifris (‘Marriage: A Human Rights for All?’, (2014) 36 Sydney Law Review 643, at 647); by P. Johnson (‘ “The choice of wording must be regarded as deliberate”: same-​sex marriage and Article 12 of the European Convention on Human Rights’, (2015) 40 European Law Review 207, at 214); and by K. Waaldijk (supra note 1; and ‘Vijftien jaar openstelling huwelijk –​Naar een huwelijksrecht ongeacht gerichtheid en geslacht’, (2016) 65 Ars Aequi 237, at 238–​239).

460 Waaldijk to codify the heterosexual exclusivity of marriage.12 It would have been very surprising indeed if the drafters had been selecting specific words in the 1940s to deal with an issue (recognition of same-​sex relationships) that would only enter public discussion in the 1970s.13 The overview in Table 23.1 indicates that the words ‘men and women’ were inserted in the article to make it explicit that women should have the ‘same freedom’ as men to contract a marriage. When it was decided that the equality of men and women should also be guaranteed regarding dissolution of marriage, the words ‘same freedom’ were replaced by ‘equal rights’. After the equal rights ‘to contract or dissolve marriage’ had been merged into the blander words ‘equal rights as to marriage’ (because there was some opposition against mentioning dissolution explicitly), it was felt that the ‘right to marry’ should be mentioned separately again. Although this separate ‘right to marry’ was then phrased without an explicit reference to equality, the wording of this separate right still used the words ‘men and women’. This can be seen as a drafting mistake, because linguistically the words ‘men and women’ made sense in relation to ‘equal rights’, but less so in the absence of the word ‘equal’. This mistake became even more confusing when at the very last stage of drafting the ‘equal rights as to marriage’ were put in a separate second sentence. This meant that the opening sentence of Article 16 now speaks of ‘men and women’ having the right to marry and to found a family. That men and women are mentioned here to underline their equality only becomes apparent when you also look at the second sentence, beginning with ‘They are entitled to equal rights …’. Therefore, it is not surprising that people who only look at the first sentence of 12 13

See all pages containing the word ‘marry’ or ‘marriage’ of the travaux préparatoires of the udhr (as presented in W. A. Schabas (ed.), The Universal Declaration of Human Rights –​ The Travaux Préparatoires (2013), three volumes). For accounts of early discussions in Scandinavia, see J. Rydström (Odd Couples –​A History of Gay Marriage in Scandinavia (2011)) and J. M. Lorenzo Villaverde (‘Legal Recogniton of Same-​Sex Couples in Denmark: from the First Debates to the Enactment of the Registered Partnership Act of 1989’, in H. Petersen, J. M. Lorenzo Villaverde and I. Lund-​Andersen (eds.), Contemporary gender relations and changes in legal cultures (2013), 147). For Asia, see D. Sanders (‘Same-​Sex Marriage: An Old and New Issue in Asia’, in Petersen et al., supra in this note, 211). For accounts of early discussions in the Netherlands, see K. Waaldijk (‘Partnerschapsregistratie en huwelijk: toenemende rechtsgelijkheid voor geslachtsgelijke partners en hun kinderen’, in H. Lenters et al., De Familie Geregeld? (2000), 121 at 126; and ‘Beantwoording Rechtsvraag Homohuwelijk’, (1987) 36 Ars Aequi 644). It seems that one of the very first journal articles on same-​sex marriage was written by A. J. Silverstein (‘Constitutional Aspects of the Homosexual’s Right to a Marriage License’, (1972–​1973) 12 Journal of Family Law 607), following the earliest USA case law on the topic (on this see also W. N. Eskridge, ‘A History of Same Sex Marriage’, (1993) 79 Virginia Law Review 1419).

The Right to Marry as a Right to Equality461 table 23.1 Chronology of the articulation in 1947/​1948 of the right to marry, as found in the travaux préparatoires of the udhr

Text proposed for article on marriage

Changes to previous text proposal

Division of Human Rights suggested in June 1947: ‘Everyone has the right to contract marriage in accordance with the laws of the State.’a Working Group adopted in December 1947: ‘Men and women shall have the same freedom to contract marriage in accordance with the law. Marriage and the family shall be protected by the State and society.’b

Addition of ‘same freedom’ of ‘men and women’.c Addition of protection clause.d

Commission on the Status of Women proposed amendment in January 1948: ‘Men and women shall have equal rights to contract or dissolve marriage in accordance with the law.’e

Addition of dissolution.f And –​presumably as a consequence of that addition –​ change from ‘same freedom’ to ‘equal rights’.

Drafting Committee adopted in May 1948: ‘1. Men and women shall have equal rights as to marriage in accordance with the law. Marriage may not be contracted without the full consent of both intending spouses and before the age of puberty. 2. Marriage and the family shall be protected by the State and Society.’g

Merging ‘to contract or dissolve marriage’ into the words ‘as to marriage’.h Addition of clauses on consent and age.i

Commission on Human Rights adopted in June 1948: ‘1. Men and women of full age have the right to marry and to found a family and are entitled to equal rights as to marriage. 2. Marriage shall be entered into only with the full consent of both intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection.’j

Reinstatement of ‘right to marry’.k Addition of the right to ‘found a family’,l and of a ‘unit of society’ clause.m Equality of ‘men and women’ is only made explicit for (other?) ‘rights as to marriage’.n Deletion of the clause ‘in accordance with the law’.o

462 Waaldijk table 23.1 (cont.)

Text proposed for article on marriage

Changes to previous text proposal

Third Committee adopted in November 1948: ‘1. Without any limitation due to race, nationality or religion, men and women of full age have the right to marry and to found a family and are entitled to equal rights as to marriage. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. Men and women shall enjoy equal rights both during marriage and at its dissolution. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the state.’p

Addition of a clause on discrimination because of race, nationality or religion.q Addition of equal rights of men and women ‘during marriage’, and reinstatement of such equality at dissolution.r

Third Committee adopted in December 1948: ‘1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. 2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’s

Rearrangement of the sentences in the first two paragraphs.t The result is that the first sentence of Article 16 starts with ‘men and women’, but also that this first sentence no longer mentions their equality explicitly. The second sentence now provides such equality ‘as to marriage, during marriage and at its dissolution’.

On 10 December 1948 the General Assembly proclaimed the last text as Article 16 of the Universal Declaration of Human Rights.u

The Right to Marry as a Right to Equality463 table 23.1 (cont.) a  Draft Outline of International Bill of Rights (prepared by the Division of Human Rights of the UN Secretariat), UN Doc. E/​c n.4/​a c.1/​3 (4 June 1947), as reproduced in Schabas, supra note 12, at 283. b  Summary Record of the Sixth Meeting of the Working Group on the Declaration of Human Rights, UN Doc. E/​c n.4/​a c.2/​s r.6 (9 December 1947), as reproduced in Schabas, supra note 12, at 1202–​1205. c  As proposed by Mrs. Roosevelt (USA), ibid. d  As proposed by Mr. Stepanenko (Byelorussian ssr), ibid. e  Draft Report of the Commission on the Status of Women to the Economic and Social Council, UN Doc. E/​c n.6/​74 (15 January 1948), as reproduced in Schabas, supra note 12, at 1363. f  As proposed by Mrs. Street (Australia); see Summary Record of the Ninth Meeting of the Commission on the Status of Women, UN Doc. E/​c n.6/​s r.28 (9 January 1948), as reproduced in Schabas, supra note 12, at 1358–​1359. g  Report of the Drafting Committee to the Commission on Human Rights, Annex A, UN Doc. E/​ cn.4/​95 (21 May 1948), as reproduced in Schabas, supra note 12, at 1608. h  As proposed by the USA; see Summary Record of the Thirty-​Eighth Meeting of the Drafting Committee, Second Session, UN Doc. E/​c n.4/​a c.1/​s r.38 (18 May 1948), as reproduced in Schabas, supra note 12, at 1563. i  As proposed by the UK; see Comments from Governments on the Draft International Declaration on Human Rights –​Communication Received from the United Kingdom, UN Doc. E/​c n.4/​82/​Add.9 (10 May 1948), as reproduced in Schabas, supra note 12, at 1513. j  Summary Record of the Sixty-​Second Meeting of the Commission on Human Rights, UN Doc. E/​ cn.4/​s r.62 (7 June 1948), as reproduced in Schabas, supra note 12, at 1787–​1788. k  As proposed by Mr. Cassin (France); see Summary Record of the Fifty-​Eighth Meeting of the Commission on Human Rights, UN Doc. E/​c n.4/​s r.58 (3 June 1948), as reproduced in Schabas, supra note 12, at 1749. l  As first proposed by Belgium; see Belgium: Amendment to Article 13 of the Draft Declaration of Human Rights, UN Doc. E/​c n.4/​103 (27 May 1948), as reproduced in Schabas, supra note 12, at 1656. m  As first proposed by Dr. Malik (Lebanon); see Summary Record of the Thirty-​Seventh Meeting of the Commission on Human Rights, UN Doc. E/​c n.4/​s r.37 (13 December 1947), as reproduced in Schabas, supra note 12, at 1283. n  As proposed by Mr. Wilson (UK); see Summary Record of the Sixty-​Second Meeting of the Commission on Human Rights, UN Doc. E/​c n.4/​s r.62 (7 June 1948), as reproduced in Schabas, supra note 12, at 1787. o  As first proposed by India and the UK; see India and the United Kingdom: Proposed Amendments to the Draft Declaration on Human Rights, UN Doc. E/​c n.4/​99 (24 May 1948), as reproduced in Schabas, supra note 12, at 1620. p  Text as adopted by the Committee for articles 12 to 14 of the draft Declaration (E/​800), UN Doc. A/​C.3/​326 (8 November 1948), as reproduced in Schabas, supra note 12, at 2487. q  As first proposed by Mr. Stepanenko (Byelorussian ssr); see Summary Record of the Sixth Meeting of the Working Group on the Declaration of Human Rights, UN Doc. E/​c n.4/​a c.2/​ sr.6 (9 December 1947), as reproduced in Schabas, supra note 12, at 1202.

464 Waaldijk table 23.1 (cont.) r  As proposed by the ussr; see Report of the Third Session of the Commission on Human Rights (Appendix: Statement Made by the Delegation of the Union of Soviet Socialist Republics, on 18 June 1948, in the Commission on Human Rights on the Results of the Commission’s Work), UN Doc. E/​800 (28 June 1948), as reproduced in Schabas, supra note 12, at 1979. s  Draft International Declaration of Human Rights Report of the Third Committee, UN Doc. A/​ 777 (7 December 1948), as reproduced in Schabas, supra note 12, at 3007. t  As proposed –​for technical reasons –​by Sub-​Committee 4; see Draft Report of Sub-​Committee 4 of the Third Committee, UN Doc. A/​C.3/​400 (4 December 1948), as reproduced in Schabas, supra note 12, at 2944–​2945 and 2951. u  International Bill of Human Rights, Part A: Universal Declaration of Human Rights, UN Doc. A/​r es/​217(iii) (10 December 1948), as reproduced in Schabas, supra note 12, at 3094.

Article 16 (and not at its second sentence or at its textual history), may think of heterosexual exclusivity.14 Nevertheless, the combination of the two sentences, and even more so their textual history, make it abundantly clear that the words ‘men and women’ are used in order to make it possible to speak of ‘equal rights’ for men and women. The textual history of the right to marry in the udhr also demonstrates how various elements were added during the process of drafting and adopting this right: clauses on full age, on free and full consent, on a right to found a family, on the family as a ‘natural and fundamental group unit of society’, on the protection of the family, and on discrimination due to race, nationality or religion (see Table 23.1). The fact that the latter clause on non-​discrimination does not include the word ‘sex’, is further proof that the drafters were aware that sex discrimination was already specifically prohibited by the words ‘equal rights’ for ‘men and women’. At the same time, many aspects of marriage have not been explicitly included in the text of the right to marry: parental consent to marriage, role of religion in regulating marriage, role of religion in celebrating marriage, legal consequences of marriage, possibility of prenuptial contracts, of polygamy, of divorce, of remarriage, and so on. It seems that the drafters of this right were aware of the great many differences between the marriage laws of different countries. Article 16 uses the term ‘marriage’ without giving a definition, and without stipulating what variations in marriage law are permissible, and without listing all aspects of marriage to which individuals are entitled. 14

This seems to have happened in the Joslin case, supra note 4.

The Right to Marry as a Right to Equality

465

It seems fair to say that heterosexual exclusivity of marriage (i.e. its gender composition) is also something that has not been specified in the Universal Declaration. All this means that the word ‘marriage’ is used in a wide and flexible sense,15 and that countries have a wide discretion in regulating marriage.16 Article 16 may not provide a right to gender-​neutral marriage, but it can and should be read as providing a gender-​neutral right to marriage. This international human right simply does not specify to what sort of marriage everyone of full age is entitled, with the word ‘everyone’ not considered strong enough. Article 16 therefore speaks of ‘men and women’, requires their equal treatment regarding marriage, and also prohibits marriage discrimination on grounds of race, nationality and religion. From the start, the right to marry was conceived as a right to equality. 3

Application of the International Right to Marry in Same-​Sex Cases

The phrasing in the udhr of the right to marry as a right of ‘men and women’ has served as a model for three human rights treaties: –​ Art. 12 of the European Convention on Human Rights (1950): ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’ –​ Art. 23(2) of the iccpr (1966): ‘The right of men and women of marriageable age to marry and to found a family shall be recognized.’17 –​ Art. 17(2) of the achr (1969): ‘The right of men and women of marriageable age to marry and to raise a family shall be recognized, if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of non-​discrimination established in this Convention.’18

15 16 17 18

See also M. Langford ‘Same-​sex marriage in polarized times: revisiting Joslin v New Zealand (HRC)’, in E. Brems and E. Desmet (eds.), Integrated Human Rights in Practice –​Rewriting Human Rights Decisions (2017), 119 at 130–​131. It therefore seems that the words ‘in accordance with the law’ (that were dropped during the drafting process, see Table 23.1) are implied in the words ‘to marry’. According to art. 23(4) iccpr, States Parties ‘shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution’. According to art. 17(4) of the American Convention, States Parties ‘shall take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution’.

466 Waaldijk The travaux préparatoires of the European Convention,19 the iccpr,20 and the achr,21 do not seem to include any indication that these or any other words were specifically intended to exclude same-​sex couples from the right to marry (or to include them). Other (mostly younger) human rights treaties either only contain provisions on ‘family’,22 or they mention the right to marry without calling it a right of ‘men and women’: –​ Art. 5(d)(iv) of the International Convention on the Elimination of All Forms of Racial Discrimination (1965): ‘The right to marriage and choice of spouse’. –​ Art. 16(1)(a) of the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw, 1979): ‘States Parties … shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage’.23 –​ Art. 9 of the Charter of Fundamental Rights of the European Union (EU Charter, 2000): ‘The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’24 –​ Art. 23(1)(a) of the Convention on the Rights of Persons with Disabilities (2006): ‘The right of all persons with disabilities who are of marriageable age to marry …’. The unhrc in 2002 was the first international human rights body having to decide on a same-​sex marriage claim (the Joslin case), and did so as follows:

19 20 21

22

23 24

See the detailed analysis of the travaux préparatoires by Johnson, supra note 11, at 217–​222. See the documents presented by M.J. Bossuyt, Guide to the ‘travaux préparatoires’ of the International Covenant on Civil and Political Rights (1987), at 441–​454. See the documents of the Conferencia Especializada Interamericana sobre Derechos Humanos (San José, Costa Rica 7–​22 November 1969), published by Secretariat General oas, Washington DC, oea/​Ser.K/​x vi/​1.2, available at http://​www.oas.org/​es/​cidh/​mandato/​Basicos/​Actas-​Conferencia-​Interamericana-​Derechos-​Humanos-​1969.pdf. African Charter of Human and Peoples’s Rights (Art. 18); European Social Charter (Art. i(16) and ii(16)); International Covenant on Economic, Social and Cultural Rights (Art. 10); Convention on the Rights of the Child (various articles). For a discussion of the potential of the latter two treaties in regard to the heterosexual exclusivity of marriage, see Gerber et al. (supra note 11), as well as K. L. Walker (‘United Nations Human Rights Law and Same-​Sex Relationships: Where to from Here?’ in R. Wintemute and M. Andenaes (eds.), Legal Recognition of Same-​Sex Partnerships –​A Study of National, European and International Law (2001), 743) who also discusses the potential of the cedaw. In the cedaw, marriage is also mentioned in Arts. 9 and 11, and in the remainder of Art. 16. This EU Charter is legally binding since 2009.

The Right to Marry as a Right to Equality





467

8.2 … The Committee notes that article 23, paragraph 2, of the Covenant expressly addresses the issue of the right to marry. Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part iii of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. 8.3 In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant.25

This rejection of the same-​sex marriage claim was ‘perhaps more of a disappointment than a surprise’.26 One of the disappointing aspects is that the unhrc only advanced one argument for its rejection: the supposedly consistent and uniform understanding of the words ‘men and women’ as limiting the scope of the right to marry to ‘a man and a woman’. This understanding of the words ‘men and women’ was, however, not shared by the people responsible for drafting and adopting udhr and iccpr (as I have demonstrated above). The words ‘men and women’ were introduced into this article with a very different intention: ensuring equality between women and men. It is possible that in later years (when same-​sex marriage became a topic of debate) the words ‘men and women’ came to be a read as indicating the exclusively heterosexual character of Article 23 of the iccpr, but it is clearly incorrect to say that this had been ‘consistently and uniformly understood’. The European Court of Human Rights first fully dealt with the issue of same-​sex marriage in 2010 in the case of Schalk and Kopf.27 In this case the Court embraced a contextual approach to the interpretation of Article 12 of 25 Joslin case, supra note 4. 26 Langford, supra note 36, at 119. 27 Schalk and Kopf case, supra note 5.

468 Waaldijk the European Convention on Human Rights. Having conceded that ‘looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women’, the Court invoked the ‘historical context in which the Convention was adopted’ and that in ‘the 1950s marriage was clearly understood in the traditional sense of being a union between partners of different sex’.28 But that is not the end of the Court’s analysis:







58. … Although … the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-​sex marriage. At present no more than six out of forty-​seven Convention States allow same-​sex marriage. … 60. Turning to the comparison between Article 12 of the Convention and Article 9 of the Charter of Fundamental Rights of the European Union (the Charter), the Court has already noted that the latter has deliberately dropped the reference to men and women. … By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-​sex marriage to the States. … 61. Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-​sex marriage is left to regulation by the national law of the Contracting State. 62. In that connection the Court observes that marriage has deep-​ rooted social and cultural connotations which may differ largely from one society to another. …29

In this case, the Court found that there was no violation of Article 12, but using phrases such as ‘at present’ and ‘as matters stand’,30 it pointed to several contextual elements that have started to change (absence of ‘men and women’ in the EU provision; six countries that had opened up marriage) and might lead to a different outcome in future cases. Most remarkably, it conceded that the right to marry ‘no longer’ must be seen as ‘in all circumstances’ limited to 28 29 30

Ibid., para. 55. Ibid., paras. 58–​62. Ibid., paras. 58 and 61 respectively.

The Right to Marry as a Right to Equality

469

persons of the opposite sex.31 In line with this contextual approach the Court did not base its final conclusion on the traditional meaning of the word ‘marry’ (let alone on the words ‘men and women’), but on the wide discretion offered by the words ‘according to the national laws governing the exercise of this right’ in Article 12. The Court’s approach is contextual, because it uses the deliberate absence of ‘men and women’ in Article 9 of the EU charter to interpret Article 12 of the European Convention as (somewhat) applicable to same-​sex couples. This approach has been analysed by Pustorino as ‘evolutive interpretation’, because the Court ‘overruled its previous interpretation’ by considering Article 12 no longer inapplicable to the situation of a same-​sex couple, and because this ‘is likely to be taken up and developed in future cases’.32 Interestingly, the Court also used the Schalk and Kopf case to distance itself from its earlier case law regarding the right to respect for family life. The Court now ‘considers it artificial to maintain the view that, in contrast to a different-​sex couple, a same-​sex couple cannot enjoy “family life” for the purposes of Article 8’.33 This very probably means that the word ‘family’ in Article 12 (right ‘to found a family’) should also be read as including same-​sex couples.34 And such an interpretation of the right to found a family in turn would reinforce what the Court has said about the other right in Article 12: the right to marry is not (always) ‘inapplicable’ to same-​sex couples.35 Compared to this half empty interpretation of the right to marry by the European Court of Human Rights in Schalk and Kopf, the recent interpretation

31 32

33 34 35

Ibid., para. 61. P. Pustorino, ‘Same-​Sex Couples Before the ECtHR: The Right to Marriage’, in D. Gallo, L. Paladini and P. Pustorino (eds.), Same-​Sex Couples before National, Supranational and International Jurisdictions (2014), 399 at 402–​403. For a similar analysis, see L. Hodson, ‘A Marriage by Any Other Name? Schalk and Kopf v Austria’, (2011) 11 Human Rights Law Review 170; and S. Davis, Conflicts of Law and the Mutual Recognition of Same-​Sex Unions in the EU (2015, PhD thesis, University of Reading, http://​centaur.reading.ac.uk/​58783/​1/​ 19026795_​Davis_​thesis.pdf), at 240–​243. In a much more critical analysis, Johnson (supra note 11, at 222) calls the Court’s interpretation ‘textual’. However, the latter qualification only seems fitting for one of the arguments the Court used (i.e. the indeed incorrect argument that considers it relevant that Art. 12 is the only provision that speaks of ‘men and women’), and misses the point that the Court changed its interpretation because of a changing context. Schalk and Kopf case, supra note 5, para. 94. See also Atala Riffo and daughters v. Chile, Judgment of 24 February 2012, IACtHR, paras. 174–​177 (about the interpretation of the word ‘family’ in Arts. 11 and 17 of the achr). Schalk and Kopf case, supra note 5, para. 61.

470 Waaldijk given by the Inter-​American Court of Human Rigths seems half full. Not in a binding judgment in a concrete case, but in an Advisory Opinion,36 the latter Court concludes that: States must ensure full access to all the mechanisms that exist in their domestic laws, including the right to marriage, to ensure the protection of the rights of families formed by same-​sex couples, without discrimination in relation to those that are formed by heterosexual couples …37 To support its conclusion the IACtHR refers to several articles of the achr, including Article 17 in general, but not specifically to the right to marry provided in Article 17(2).38 In fact, the Court suggests that Article 17(2) only applies to the ‘specific model’ of marriage between a man and a woman.39 Instead, the Court derives the right for same-​sex couples to get access to marriage mainly from the rights to respect for and protection of family (Articles 11 and 17) and from the rights to non-​discrimination (Articles 1 and 24). Relying on the right to non-​discrimination, ‘the Court deems inadmissible the existence of two types of formal unions to legally constitute the heterosexual and homosexual cohabiting community’.40 Despite the Inter-​American Court’s emphasis on full marriage equality for same-​sex couples, it nuances its conclusion by stating that it: cannot ignore the possibility that some States must overcome institutional difficulties to adapt their domestic law and extend the right of access to the institution of marriage to same-​sex couples, especially when there are rigorous procedures for legislative reform, which may demand a process that is politically complex and requires time. … States that do not yet ensure the right of access to marriage to same-​sex couples are obliged not to violate the provisions that prohibit discriminating against them and must, consequently, ensure them the same rights derived from marriage in the understanding that this is a transitional situation.41

36

It is not quite clear from Art. 64 of the achr if this Advisory Opinion is binding, but the Court emphasises its own role as ‘ultimate interpreter of the American Convention’. IACtHR Advisory Opinion, supra note 6, para. 16. 37 Ibid., para. 229, point 8. 38 Ibid. 39 Ibid., paras. 181–​182. 40 Ibid., para. 224. 41 Ibid., paras. 226–​227.

The Right to Marry as a Right to Equality

471

This seems to indicate that also under the achr, countries still have a certain margin of appreciation –​but only as regards their decision as to when to open up marriage to same-​sex couples. 4

A Gender-​Neutral Right to Marry that Demands Equality

The conclusion from the previous paragraphs has to be that there is no international human rights instrument that excludes same-​sex couples from the right to marry. This is clear in the text of this right in the International Convention on the Elimination of All Forms of Racial Discrimination, in the Convention on the Rights of Persons with Disabilities, in the cedaw, and in the EU Charter. It is also clear in the travaux préparatoires of the udhr, of the iccpr and of the European and American conventions on human rights. In particular, the preparatory documents to the Universal Declaration of Human Rights show that the words ‘men and women’ in the right to marry were not inserted in order to exclude same-​sex marriages, but in order to emphasize the equality of women and men. The European Court of Human Rights has indicated that the right to marry is not (always) inapplicable to same-​sex couples.42 Furthermore, the Inter-​American Court of Human Rights has acknowledged an obligation of countries to work towards ensuring same-​ sex couples access to marriage.43 The above analysis of the text and textual history of the international human right to marry, and of the emerging international case law on same-​sex marriage, suggests that the international human right to marry is gender-​neutral: it does not exclude same-​sex couples, and it specifically prohibits discrimination between women and men. However, it also became clear that, according to current interpretations of international human rights law, countries are still free to continue excluding same-​sex couples from marriage –​although in the Americas only ‘on a transitional basis’.44 It may still take quite some time, before there will be more international consensus that the international right to marry also applies to same-​sex couples. It should be noted, however, that in the meantime already a new international rule is emerging both in international human rights law and in international staff law. This new rule acknowledges the existence of same-​sex marriages and requires transnational legal recognition –​in a growing number of contexts –​of 42 43 44

Schalk and Kopf case, supra note 5, para. 61. IACtHR Advisory Opinion, supra note 6, paras. 217–​228. Ibid., para. 229.

472 Waaldijk same-​sex marriages from countries where they have been made possible.45 And in several ways international staff law and international human rights law now also acknowledge that in many countries same-​sex partners do not have access to marriage, and that this fact must be legally compensated to some degree.46 Further developments towards marriage equality for same-​sex couples can of course be based on the right (contained in every major human rights instrument) not to be discriminated in the enjoyment of any human right. This has played an important role in the ground breaking Advisory Opinion of the IACtHR (see above), and has been recommended as a useful avenue by several authors.47 However, the gender-​neutral and non-​discriminatory character of the right to marry can also play an important role on its own. In the first place, a correct and historically sound reading of the treaty texts of the right to marry (as advanced above), means that it is no longer possible to deny a same-​sex marriage claim by simply referring to the use of the words ‘men and women’ in the treaty text. Secondly, the prohibition of sex discrimination in the wording of the right to marry,48 makes it possible to use the argument, already accepted in 1994 by the unhrc,49 and in 2020 also embraced by the USA Supreme Court,50 that sexual orientation discrimination is a form of sex discrimination. On that basis it can more readily be argued that the complete exclusion of same-​sex partners from the right to marry amounts to a violation of the right to marry. 45

46 47

48 49 50

The leading cases are: C v. Australia, Views of 28 March 2017, unhrc, UN Doc. ccpr/​ C/​119/​D/​2216/​2012; Orlandi and Others v. Italy, Judgment of 14 December 2017, no. 26431/​12, [2017] echr; and Case C-​673/​16, Coman and Others, Judgment of 5 June 2018, ecli:eu:C:2018:385. See also G. Biagioni, ‘On Recognition of Foreign Same-​Sex Marriages and Partnerships’, in Gallo et al., supra note 54, 359; D. Gallo, ‘International Administrative Tribunals and their Non-​Originalist Jurisprudence on Same-​Sex Couples: “Spouse” and “Marriage” in Context, Between Social Changes and the Doctrine of Renvoi’, in Gallo et al., supra note 54, 511; and see Waaldijk, supra notes 1 and 8. Oliari and Others v. Italy, Judgment of 21 July 2015, nos. 18766/​11 and 36030/​11, [2015] echr; Taddeucci and McCall v. Italy, Judgment of 30 June 2016, no. 51362/​09, [2016] echr; and see Waaldijk, supra note 1. L. R. Helfer, ‘Will the United Nations Human Rights Committee Require Recognition of Same-​Sex Marriage?’, in Wintemute and Andenaes, supra note 43, 733 at 737–​739; G. Zukaite, ‘Does the Prohibition of Same-​Sex Marriages Violate Fundamental Human Rights and Freedoms’, (2005) 2(4) International Journal of Baltic Law 1. See also M. Y. K. Lee, Equality, dignity, and same-​sex marriage: a rights disagreement in democratic societies (2010). As shown above, this prohibition is explicit in the text of Art. 16 udhr and Art. 16 cedaw, and implicit in the texts of Art. 23 iccpr, Art. 17 achr, and Art. 12 of the European Convention. Toonen v. Austalia, Views of 31 March 1994, unhrc, UN Doc. ccpr/​C/​50/​D/​488/​1992, para. 8.7. Bostock v. Clayton County, 590 U.S._​_​_​(Sup.Ct. 2020).