German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 56 (2013) [1 ed.] 9783428544806, 9783428144808

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VOLUME 56 · 2013

DUNCK ER & HUMBLO T · BERLIN

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 56 · 2013

PEER REVIEW BOARD OBIJIOFOR AGINAM • The United Nations University KAI AMBOS • University of Göttingen JEAN D’ ASPREMONT • University of Manchester MOHAMED ELEWA BADAR • Northumbria University RICHARD BARNES • University of Hull EYAL BENVENISTI • Tel-Aviv University ALAN BOYLE • University of Edinburgh MARTEN BREUER • University of Konstanz JUTTA BRUNNÉE • University of Toronto TONY CARTY • University of Hong Kong LEI CHEN • City University of Hong Kong CHRISTINE CHINKIN • London School of Economics BARNALI CHOUDHURY • University of London CLAUS DIETER CLASSEN • University of Greifswald THOMAS COTTIER • University of Bern JAMES CRAWFORD • University of Cambridge PHILIPPE CULLET • University of London ASTRID EPINEY • University of Freiburg BARDO FASSBENDER • University of St. Gallen NIELS FRENZEN • University of Southern California Gould School of Law ANDREA GATTINI • University of Padua GEOFF GILBERT • University of Essex DOUGLAS GUILFOYLE • University College London COLIN HARVEY • Queen’s University Belfast GINA HEATHCOTE • University of London WOLFF HEINTSCHEL VON HEINEGG • European University Viadrina Frankfurt (Oder) ELLEN HEY • University of Rotterdam CHRISTOPH HERRMANN • University of Passau PETER HILPOLD • University of Innsbruck STEPHAN HOBE • University of Cologne RAINER HOFMANN • University of Frankfurt STEPHEN HUMPHREYS • London School of Economics UWE JENISCH • University of Kiel BING BING JIA • Tsinghua University STEFAN KADELBACH • University of Frankfurt JÖRN AXEL KÄMMERER • Bucerius Law School, Hamburg HELEN KELLER • European Court of Human Rights, Strasbourg ECKART KLEIN • University of Potsdam ERIK V. KOPPE • University of Leiden MARKUS KOTZUR • University of Hamburg MARKUS KRAJEWSKI • University of Erlangen-Nürnberg CLAUS KREß • University of Cologne CHRISTINE LANGENFELD • University of Göttingen JANE MCADAM • University of New South Wales FRANZ MERLI • University of Graz

FRED L. MORRISON • University of Minnesota GEORG NOLTE • Humboldt University of Berlin MATH NOORTMANN • Oxford Brookes University ANGELIKA NUßBERGER • University of Cologne MARCO ODELLO • Aberystwyth University KARIN OELLERS-FRAHM • Max Planck Institute for Comparative Public Law and International Law, Heidelberg ROGER O’KEEFE • University of Cambridge ALEXANDER ORAKHELASHVILI • University of Birmingham ANNE PETERS • Max Planck Institute for Comparative Public Law and International Law, Heidelberg ALEXANDER PROELß • University of Trier ANDREAS RAHMATIAN • University of Glasgow ROSEMARY RAYFUSE • University of New South Wales AUGUST REINISCH • University of Vienna EIBE RIEDEL • Geneva Academy of International Humanitarian Law and Human Rights MARCO ROSCINI • University of Westminster MATTHIAS RUFFERT • University of Jena STEFANIE SCHMAHL • University of Würzburg KIRSTEN SCHMALENBACH • University of Salzburg ANDREW SERDY • University of Southampton BRUNO SIMMA • University of Michigan ACHILLES SKORDAS • University of Bristol PETER-TOBIAS STOLL • University of Göttingen STEFAN TALMON • University of Bonn CHRISTIAN TAMS • University of Glasgow DANIEL THYM • University of Konstanz CHRISTIAN TIETJE • University of Halle CHRISTIAN TOMUSCHAT • Humboldt University of Berlin ANTONIOS TZANAKOPOULOS • St Anne’s College, University of Oxford ROBERT UERPMANN-WITTZACK • University of Regensburg ERICH VRANES • University of Vienna CHRISTIAN WALTER • University of Munich THOMAS WEIGEND • University of Cologne NORMAN WEIß • University of Potsdam RÜDIGER WOLFRUM • Max Planck Foundation for International Peace and the Rule of Law, Heidelberg ALEXANDRA XANTHAKI • Brunel University

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 56 · 2013

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: KERSTIN ODENDAHL / NELE MATZ-LÜCK / ANDREAS VON ARNAULD Honorary Editor: JOST DELBRÜCK Assistant Editors: SYLVIA NWAMARAIHE / WIEBKE STAFF Editorial Assistants: SASKIA HOFFMANN / BENJAMIN MAASS Layout and Production: MIRIAM DÖRING / ANDREA NEISIUS

ADVISORY BOARD OF THE WALTHER SCHÜCKING INSTITUTE CHRISTINE CHINKIN London School of Economics JAMES CRAWFORD University of Cambridge LORI F. DAMROSCH Columbia University VERA GOWLLAND-DEBBAS University of Geneva RAINER HOFMANN University of Frankfurt FRED L. MORRISON University of Minnesota

EIBE H. RIEDEL Geneva Academy of International Humanitarian Law and Human Rights ALLAN ROSAS Court of Justice of the European Union, Luxemburg BRUNO SIMMA University of Michigan DANIEL THÜRER University of Zürich CHRISTIAN TOMUSCHAT Humboldt University of Berlin RÜDIGER WOLFRUM Max Planck Foundation for International Peace and the Rule of Law, Heidelberg

The views presented in the German Yearbook of International Law are those of the contributors and do not reflect or represent the views of the Walther Schücking Institute or the editors, assistant editors, members of the advisory board or the peer review board. Walther Schücking Institute for International Law, University of Kiel Westring 400, D-24098 Kiel, Germany Internet: www.gyil.org

All rights reserved. No part of this book may be reproduced, translated, or utilised in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2014 Duncker & Humblot GmbH, Berlin Printed by AZ Druck und Datentechnik, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-14480-8 (Print) ISBN 978-3-428-54480-6 (E-Book) ISBN 978-3-428-84480-7 (Print & E-Book)

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Printed on no aging resistant (non-acid) paper according to ISO 9706 ∞ Internet: http://www.duncker-humblot.de

TABLE OF CONTENTS FORUM

CONFLICTS IN THE SOUTH CHINA SEA ZOU KEYUAN : China and the South China Sea Conundrum: Any Prospective Solution in Future? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

TED L. MCDORMAN: The South China Sea: The U-Shaped Line, Islands and the Philippine-China Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33

FOCUS

INTERNATIONAL ENERGY LAW SERGEI VINOGRADOV AND GOKCE METE: Cross-Border Oil and Gas Pipelines in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65

TARA DAVENPORT: The Installation of Submarine Power Cables under UNCLOS: Legal and Policy Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 KAJ HOBÉR AND JOEL DAHLQUIST: International Investment Protection Regimes in the Energy Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 ANDREY KONOPLYANIK: Russia and the Energy Charter: Long, Thorny and Winding Way to Each Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 PATRICK REYNERS: The International Nuclear Energy Law Framework: An Outlook

227

PETER KAYODE ONIEMOLA: International Law on Renewable Energy: The Need For a Worldwide Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 ALEXANDRA XANTHAKI: Rights of Indigenous Peoples under the Light of Energy Exploitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315

6

TABLE OF CONTENTS

GENERAL ARTICLES ULF LINDERFALK: All the Things That You Can Do with Jus Cogens – A Pragmatic Approach to Legal Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 MARTIN BOROWSKI: Absolute Rights and Proportionality . . . . . . . . . . . . . . . . . . . . . . . .

385

JASMINE COPPENS: Interception of Seaborne Migrants: The Applicability of the NonRefoulement Principle at Sea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425 DAGMAR RICHTER AND PATRICK UHRMEISTER: Returning ‘Politically Exposed Persons’ Illicit Assets from Switzerland – International Law in the Force Field of Complexity and Conditionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457

GERMAN PRACTICE CHRISTOPHE EICK: The German-Gabonese Initiative on Poaching and Illegal Wildlife Trafficking: Is There a Role for the UN Security Council? . . . . . . . . . . . . . . . . . . . . . . 503 BERENIKE SCHRIEWER: Shining a Light on the Human Rights Situation in Germany – The Human Rights Council’s Report on Germany in the Second Cycle of the Universal Periodic Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 MARLITT BRANDES: Germany’s Secret Arms Deals: Compliance of German Arms Export Licensing with International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 NICHOLAS ENGLISH AND TIM RAUSCHNING: The Procurement and Use of Armed UAVs by the German Military in International and German Law . . . . . . . . . . . . . . . 539 JULE SIEGFRIED AND MARIEKE LÜDECKE: 50th Anniversary of the Élysée Treaty . . . .

557

KATRIN KOHOUTEK: The Swiss-German Treaty on the Effects of the Operation of Zurich Airport on German Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573 JULIA MÜLLER: The Hamburg Piracy Trial – A Contribution to the International Aim of Combating Piracy? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 ANDREA MEYER: The 2011 EU Directive on Preventing and Combating Trafficking: Non-Implementation by Germany? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595

TABLE OF CONTENTS

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BOOK REVIEWS Bardo Fassbender/Anne Peters (eds.): The Oxford Handbook of the History of International Law (ZIEGLER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 Maurizio Ragazzi: Responsibility of International Organizations (KRZAN) . . . . . . . . .

616

Duncan B. Hollis: The Oxford Guide to Treaties (SCHLADEBACH) . . . . . . . . . . . . . . . . .

619

Francesco Francioni/James Gordley (eds.): Enforcing International Cultural Heritage Law (FITZMAURICE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621 Mohamed Elewa Badar: The Concept of Mens Rea in International Criminal Law – The Case for a Unified Approach (Orakhelashvili) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624 Yvonne Dutton: Rules, Politics, and the International Criminal Court - Committing to the Court (NWAMARAIHE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 626 Anne-Marie de Brouwer/Charlotte Ku/Renée Römkens/Larissa van den Herik (eds.): Sexual Violence as an International Crime: Interdisciplinary Approaches (TOLEDO ESCOBAR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Stefan Talmon: Über Grenzen; and Matthias C. Kettemann: Grenzen im Völkerrecht (MATZ-LÜCK) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631 Paparinskis, Martins: The International Minimum Standard and Fair and Equitable Treatment (HILLIER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 Eleanor M. Fox/Michael J. Trebilcock (eds.): The Design of Competition Law Institutions – Global Norms, Local Choices (SCHLADEBACH) . . . . . . . . . . . . . . . . . . . . . . . . 637 Jeffrey L. Dunoff/Mark A. Pollack (eds.): Interdisciplinary Perspectives on International Law and International Relations – The State of the Art (ORAKHELASHVILI) . . . . . 639 Kevin E. Davis/Angelina Fisher/Benedict Kingsbury/Sally Engle Merry (eds.): Governance by Indicators: Global Power through Quantifications and Rankings (MUIR WATT) 641

BOOKS RECEIVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

645

FORUM CONFLICTS IN THE SOUTH CHINA SEA

Stein Tønnesson, China and the South China Sea: A Peace Proposal, Security Dialogue 31 (2000), 307, 308

China and the South China Sea Conundrum: Any Prospective Solution in Future? ZOU KEYUAN(

ABSTRACT: The disputes in the South China Sea have attracted serious concerns in the world community and if not well managed, would become a source of conflict and instability in the region. As a key player in curbing and finally solving such disputes, China’s role is indispensable. Without China’s collaboration and involvement, any resolution to any South China Sea dispute is just an empty word. This article attempts to discuss the recent developments in the South China Sea and the responses of China to them. Significant issues concerning the law of the sea will be analytically discussed and include particularly China’s U-shaped line claim and historic rights in international law, China’s practice in and position on islands and baselines, and military activities in the EEZ. By looking at these developments in East Asia, possible means for the settlement of the disputes in the South China Sea will be explored. KEYWORDS: China, South China Sea, Law of the Sea, UN Convention on the Law of the Sea (UNCLOS), Islands, Exclusive Economic Zone (EEZ)

I. Introduction The disputes in the South China Sea have attracted serious concerns in the world community including the academic world. The South China Sea is a semi-enclosed sea, as defined by the 1982 United Nations Convention on the Law of the Sea (UNCLOS).1 There are hundreds of small islands in the South China Sea, namely

( 1

Harris Professor of International Law, University of Central Lancashire, United Kingdom.

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). The UNCLOS was adopted at the Third United Nations Conference on the Law of the Sea on 10 December 1982 and entered into force on 16 November 1994. As of October 2013, it had 166 parties including the European Union. Art. 122 UNCLOS defines “enclosed or semi-enclosed sea” as “a gulf, basin, or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States”.

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uninhabited islets, shoals, reefs, banks, sands, cays and rocks.2 They are scattered widely throughout the South China Sea in the form of four groups of islands and underwater features, i.e., the Pratas Islands (Dongsha Qundao), the Paracel Islands (Xisha Qundao), the Macclesfield Banks (Zhongsha Qundao),3 and the Spratly Islands (Nansha Qundao). The political situation in the South China Sea is complicated, as it contains potential conflicts with different national interests and claims. The Pratas Islands are under the firm control of Taiwan in the name of the Republic of China (ROC). No competing claims exist there under the current concept of ‘one China.’ For the Macclesfield Banks, the only claimant is ‘China,’ including both the People’s Republic of China (PRC) and Taiwan. Nevertheless, the Scarborough Reef, part of the Macclesfield Banks, has also been claimed by the Philippines. The Paracel Islands are under the PRC’s control, but contested by Vietnam. The most complicated dispute is over the Spratly Islands as it has been lingering on for a long time and involves as many as six parties representing five States, i.e., Brunei, China (PRC and Taiwan), Malaysia, the Philippines, and Vietnam. It is unusual in international history and relations that so many countries make claims over so small islets, in whole or in part, of the Spratly Islands and their surrounding waters. Generally speaking, there are three layers of disputes in the South China Sea. The first and most fundamental is that of overlapping claims of sovereignty over the geographic features between/among littoral states, the second is that of overlapping claims to the maritime zones generating either from the islands or from the coasts of the littoral states basically in terms of sovereign rights and jurisdiction as stipulated under the UNCLOS, and the third one is that of disputes in relation to the use of the oceans including conflicting uses of marine resources and development between/ among littoral states, the use of sea lanes and the conduct of military activities in the name of the freedom of navigation between littoral states and user states. These disputes are entangled with one another, thus rendering the South China Sea situation one of the most complicated of all territorial and maritime disputes in the world. 2

According to Hungdah Chiu, there are 127 islands in the South China Sea based upon a survey conducted in 1946–1947 sponsored by the then Chinese Ministry of Internal Affairs, see Hungdah Chiu, South China Sea Islands: Implications for Delimiting the Seabed and Future Shipping Routes, China Quarterly 72 (1977), 756. 3

This author uses the term ‘Macclesfield Banks’ to refer to the Chinese terminology Zhongsha Qundao which includes not only the Macclesfield Bank itself but also other dozens of surrounding shoals and banks, such as the Scarborough Reef (Huangyan Island in Chinese).

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As a key player in curbing and finally solving such disputes, China’s role is indispensable. Without China’s collaboration and involvement, resolution to any South China Sea dispute is simply an empty word. This article attempts to discuss the recent developments in the South China Sea and China’s responses to them. Significant issues concerning the law of the sea will be analytically discussed and include particularly China’s U-shaped line claim and historic rights in international law, China’s practice in and position on islands and baselines, foreign military activities in the exclusive economic zone (EEZ), and also the implementation of the 2002 Declaration of the Conduct of Parties in the South China Sea (DOC).4 It is recalled that during the Third United Nations Conference on the Law of the Sea (1973–1982) China supported the drafting of the UNCLOS. Due to the fact that the PRC was not involved in the negotiations of the four 1958 Geneva Conventions on the law of the sea, it regarded them as the so-called ‘old law of the sea;’ and treated the UNCLOS as the representative of the ‘new law of the sea.’ China signed the Convention on the day it was opened to signature in 1982 and finally ratified it in 1996. Based on the UNCLOS, China enacted two basic ocean laws: the 1992 Law on the Territorial Sea and the Contiguous Zone5 and the 1998 Law on the Exclusive Economic Zone and the Continental Shelf.6 The 1992 Law on the Territorial Sea and the Contiguous Zone has improved the territorial sea regime established under the 1958 Declaration on the Territorial Sea.7 China has set its territorial sea at a breadth of 12 nautical miles (nm) and the contiguous zone at 24 nm, measuring from its baselines. Merchant ships enjoy the right of innocent passage through China’s territorial sea but foreign warships are subject to 4

ASEAN/China, Declaration on the Conduct of Parties in the South China Sea (DOC), 4 November 2002, available at: http://www.asean.org/asean/external-relations/china/item/declaration-on-theconduct-of-parties-in-the-south-china-sea (accessed on 11 October 2013). 5

Law on the Territorial Sea and the Contiguous Zone, 25 February 1992, reprinted in: Zou Keyuan, China’s Marine Legal System and the Law of the Sea (2005), 338 et seq., also available at: http://www. un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992_Law.pdf (accessed on 12 October 2013). 6

Law on the Exclusive Economic Zone and the Continental Shelf, 26 January 1998, reprinted in: Zou Keyuan (note 5), 342 et seq., also available at: http://www.un.org/depts/los/LEGISLATIONAND TREATIES/PDFFILES/chn_1998_eez_act.pdf (accessed on 12 October 2013). 7

Declaration on China’s Territorial Sea, 4 September 1958, reprinted in: Office of Policy, Law and Regulation, State Oceanic Administration (ed.), Collection of the Sea Laws and Regulations of the People’s Republic of China (3rd ed. 2001), 197, also available at: http://www.law.fsu.edu/library/ collection/limitsinseas/ls043.pdf (accessed on 12 October 2013).

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the requirement of prior permission. China uses the method of straight baselines to define the limits of its territorial sea. In addition to the above fundamental stipulations, the law provides that all international organisations, foreign organisations or individuals should obtain approval from China for carrying out scientific research, marine operations or other activities in China’s territorial sea and comply with relevant Chinese laws and regulations. The Chinese competent authorities may, when they have good reasons to believe that a foreign ship has committed violations, exercise the right of hot pursuit against the foreign ship. This law applies to all of China, including Taiwan and various islands located in China’s adjacent seas. China reiterated in the 1992 Law that the Dongsha Islands (Pratas Islands), the Xisha Islands (Paracel Islands), the Zhongsha Islands (Macclesfield Banks), and the Nansha Islands (Spratly Islands) are Chinese territory.8 The 1998 Law on the Exclusive Economic Zone and the Continental Shelf is designed to guarantee China’s exercise of sovereign rights and jurisdiction over its EEZ and continental shelf, and to safeguard China’s national maritime rights and interests. According to this law, China’s EEZ is the area beyond and adjacent to China’s territorial sea, extending up to 200 nm from the baselines from which the breadth of the territorial sea is measured. The legal regime of the continental shelf is closely related to that of the EEZ, though different under the UNCLOS. For the purpose of natural resource development, the former is more concerned with non-living resources and the latter with living resources. That is why in State practice the two regimes are found together in legislation, as exemplified in the above Chinese law. In addition to enjoying the same rights and jurisdiction as in the EEZ regime, coastal States like China enjoy the exclusive right to authorise and regulate drilling on the continental shelf for all purposes.9 The continental shelf of China comprises the sea-bed and subsoil of the submarine areas that extend beyond China’s territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nm from the baselines where the outer edge of the continental margin does not extend up to that distance. It is interesting to note that although the above provisions defining the EEZ and the continental shelf are just a copy of the relevant provision of the 8 9

See Art. 2 Law on the Territorial Sea and the Contiguous Zone.

See Art. 4 Law on the Exclusive Economic Zone and the Continental Shelf. The text is borrowed from Art. 81 UNCLOS.

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UNCLOS, Chinese practice has shown that regarding the continental shelf, China put more emphasis on the natural prolongation criterion, which bears strong implications for the delimitation of the continental shelf in the East China Sea, as indicated in China’s Submission to the Commission of the Continental Shelf in December 2012.10

II. China’s U-shaped Line and Historic Rights The boundary named ‘U-shaped line’ is a traditional maritime boundary line in China and refers to the line with nine segments off the Chinese coast on the South China Sea. Despite its existence in Chinese maps for more than six decades, the Ushaped line has never received a wide recognition in the world community, much less with the other claimants to the South China Sea. Though related issues have been discussed in the past, the U-shaped line still remains a legal conundrum not only for China but also for the world community, particularly after a map with the U-shaped line, together with China’s note verbale against the claims to the outer continental shelves made by Malaysia and Vietnam in the South China Sea, was submitted to the UN Commission on the Limits of Continental Shelf in May 2009.11 What is the legal nature of that line? What has China claimed within the line? Do historic rights exist within the line? The U-shaped line was first officially published by the Chinese Government in 1948 when the ROC still controlled the whole country. According to the then official explanation, the basis for drawing the line was that [t]he southernmost limit of the South China Sea territory should be at the James Shoal. This limit was followed by our governmental departments, schools and publishers before the anti-Japanese war, and it was also recorded on file in the Ministry of Interior. Accordingly it should remain unchanged.12 10

Submission by the People’s Republic of China Concerning the Outer Limits of the Continental Shelf beyond 200 Nautical Miles in Part of the East China Sea, Executive Summary, 14 December 2012, available at: http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/executive%20 summary_EN.pdf (accessed on 11 November 2013). 11 For details on the line and its legal implications, see Zou Keyuan, The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands, International Journal of Marine and Coastal Law (IJMCL) 14 (1999), 27. 12

See Han Zhenhua (ed.), A Compilation of Historical Materials on China’s South China Sea Islands (1988), 181–184 (in Chinese).

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Though the publication of the map was clearly influenced by the Truman Proclamation,13 the explanation above does not offer much to answer the question concerning the legal status of the line: is it a maritime boundary line like land border lines or a line only indicating that the islands, not the waters, within the line belong to China? While there is no official clarification from the Chinese government, the President of the National Institute for South China Sea Studies, a Chinese think tank specifically focusing on South China Sea issues, at a recent interview with the Observer Research Foundation, expressed his view that the U-shaped line […] is based on the theory of ‘sovereignty + UNCLOS + historic rights.’ According to this theory, China enjoys sovereignty over all the features within this line, and enjoys sovereign right and jurisdiction, defined by the UNCLOS, for instance, EEZ and continental shelf when the certain features fulfill the legal definition of Island Regime under Article 121 of UNCLOS. In addition to that, China enjoys certain historic rights within this line, such as fishing rights, navigation rights and priority rights of resource development.14

Ironically, China has to find a legal basis in the ‘old law of the sea’ (instead of the UNCLOS, the ‘new law of the sea’ in China’s view) in supporting its historic claims in the South China Sea as the concept of ‘historic rights’ does not clearly exist in the UNCLOS. As for historic rights, it is generally recognised that there are two types: one is exclusive with full sovereignty, such as historic waters and historic bays; and the other is non-exclusive without full sovereignty, such as historic fishing rights on the high seas. When China promulgated the Law on the Exclusive Economic Zone and the Continental Shelf in 1998, it created a unique clause which provides that “the provisions of this Law shall not affect the historic rights enjoyed by the People’s Republic of China.”15 The sea area that China could possibly enjoy historic rights in, is the South China Sea as indicated in the views expressed by the President of the National Institute for South China Sea Studies above. China’s claim, however, is unique in the sense that it is not only a right to fisheries on the high seas, but goes in fact far beyond 13

US Presidential Proclamation No. 2267, Policy of the United States with Respect to the Natural Resources of the Subsoil of the Sea Bed and the Continental Shelf, 28 September 1945 (Truman Proclamation), available at: http://cil.nus.edu.sg/rp/il/pdf/1945%20US%20Presidential%20 Proclamation%20No.%202667-pdf.pdf (accessed on 11 October 2013). 14 Observer Research Foundation, ORF South China Sea Interview with Wu Shicun, President of the National Institute for South China Sea Studies, South China Sea Monitor 2 (1) (2013), 9, available at: http://www.orfonline.org/cms/sites/orfonline/modules/southchina/attachments/issue1-2013_ 1357907409226.pdf (accessed on 11 October 2013). 15

Art. 14 Law on the Exclusive Economic Zone and the Continental Shelf.

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this, and it seems that China has made a precedent in international law relating to the concept of historic rights. It is not clear whether China’s practice could establish a rule in international law, but it is clear that it has already been influencing the development of the concept of historic rights.16 As early as 1984, Goldie asked the question whether the doctrine of historic bays and historic waters had become obsolete with the development of new alternative concepts of national maritime expansion, such as the EEZ and the continental shelf.17 Notwithstanding this, recent State practice, including China’s, has demonstrated that the concept of historic rights is far from obsolete; on the contrary, it still exists with vitality.18 However, on the other hand, China’s claims in the South China Sea have been challenged by its contestants who rely more upon the relevant provisions of the UNCLOS. This can be seen by the Philippines v. China arbitration case in accordance with the UNCLOS where the Philippines requests the arbitral tribunal to declare that China’s U-shaped line in the South China Sea is illegal and invalid.19 It is thus that the legal phenomenon of ‘conventional rights’ based on the UNCLOS versus ‘historic rights’ based on customary international law in the South China Sea has triggered a worthy research topic in international law.

III. Islands and Reefs in the South China Sea Recently, China expressed its position on the status of Japan’s Okinotorishima by stating that it is a rock rather than an island, thus without ensuing EEZ and continen16 For details, see Zou Keyuan, Historic Rights in International Law and in China’s Practice, Ocean Development and International Law (ODIL) 32 (2001), 149. 17 Louis Frederick Edward Goldie, Historic Bays in International Law: An Impressionistic Overview, Syracuse Journal of International Law and Commerce 11 (1984), 211, 271–272. 18 In addition to China, Tonga reiterated its historic title and rights in its Submission to the Commission on the Limits of the Continental Shelf in May 2009. See Executive Summary: A Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Kingdom of Tonga Pursuant to part VI and Annex II to the United Nations Convention on the Law of the Sea, 11 May 2009, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/ton46_09/ton 2009executive_summary.pdf (accessed on 12 October 2013). 19

See Republic of the Philippines, Department of Foreign Affairs, Diplomatic Note and Notification and Statement of Claim, 22 January 2013, available at: http://www.gov.ph/downloads/2013/ 01jan/20130122-Notification-and-Statement-of-Claim-on-West-Philippine-Sea.pdf (accessed on 10 October 2013).

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tal shelf. China even proposed to discuss this issue at the Third United Nations Conference on the Law of the Sea. There are hundreds of natural features in the South China Sea including islands/islets, atolls, reefs, and banks. One source indicates that there are about 170 features in the South China Sea among which only about 36 tiny islands are above water at high tide.20 What about the legal status of the islands and reefs in the South China Sea? Will China claim an EEZ and a continental shelf from these islands and reefs? According to the UNCLOS, an “island is a naturally formed area of land, surrounded by water, which is above water at high tide.”21 This definition contains a number of essential factors: a piece of land; naturally formed; surrounded by water; and above the sea surface at high tide. But the Convention does not explain to what extent a piece of land surrounded by water and above water at high tide can be regarded as an island. In order to consolidate and expand their claims in the South China Sea, the claimant States made a large scale of artificial installations and constructions of permanent nature on natural rocks and reefs. China has occupied several reefs in the Spratlys since 1988 and for the purpose of military stationing or other purposes, it built artificial structures on these reefs (the Johnson South Reef (Chigua), the Subi Reef (Zhubi), the Gaven Reef (Nanxun), the Cuarteron Reef (Huayang), the Hughes Reef (Dongmen), and the Mischief Reef (Meiji)). Some of them have been later expanded to become more like artificial islands, such as the one established on the Fiery Cross Reef (Yongshu). The Swallow Reef (Terumbu Layang Layang in Malay) occupied by Malaysia has been massively reclaimed and has a fishing port, a 15-room diving resort and a 1.5 km airstrip. In this sense, it is acknowledged that due to artificial installations, for many of the islands, “it has become difficult to distinguish what is the natural feature and what is man-made.”22 The question as how to define this type of half-natural-half-artificial geographic features proves to be a legal di-

20

Daniel J. Dzurek, The Spratly Islands Dispute: Who’s on First?, International Boundaries Research Unit (IBRU), Maritime Briefing 2 (1) (1996). 21 22

See Art. 121 UNCLOS.

Robert W. Smith, Maritime Delimitation in the South China Sea: Potentiality and Challenges, ODIL 41 (2010), 214, 223.

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lemma.23 If it is defined as a natural feature, it is mixed with artificial installations and structures; if it is defined as an artificial island, it is not artificially fixed to the sea bed, rather supported by a natural base such as a reef whether above water at high tide or not. Apparently, there is no regulation in international law governing such kind of natural/artificial combinations. The maritime areas, if they are not excessively claimed and possessed by coastal States, are part of the international seabed area and/or part of the high seas. In that sense, China expressed its concerns that the recognition of Japan’s claim to the continental shelf from Okinotorishima “will set a precedent which may lead to encroachment upon the high seas and the Area on a larger scale.”24 China’s position is concurred by a number of other countries. What is not clear is whether such a claim as Okinotorishima infringes upon the principle of common heritage of mankind as embodied in the UNCLOS since the principle has been fundamentally compromised through the adoption of the 1994 Agreement concerning the implementation of Part XI of the Convention.25 As we recall, China attempted to put a supplementary item on the interpretation of this article to the agenda of the Nineteenth Meeting of States Parties to the UNCLOS in 2009. As China states, the Meeting should “consider the issue of claiming extended continental shelf with a rock as base point and its legal implication under Article 121 of the Convention.”26 Unfortunately, China’s attempt was not successful. The question here is: when China regards Okinotorishima as a rock, how can China treat similar rocks under its claims in the South China Sea as ‘islands’? There is a suspicion of the possible exercise of a ‘double standard.’ It is recalled in the Chinese note verbale dated 14 April 2011, China’s “Nansha Islands is 23

For relevant discussions, see Zou Keyuan, How Coastal States Claim Maritime Geographic Features: Legal Clarity or Conundrum?, Chinese Journal of International Law 11 (2012), 749, in particular 758–761. 24

See Permanent Mission of China to the United Nations, Proposal for the inclusion of a supplementary item in the agenda of the nineteenth Meeting of States Parties, Note verbale addressed to the Secretary-General, 22 May 2009, UNCLOS Doc. SPLOS/196, available at: http://daccess-ddsny.un.org/doc/UNDOC/GEN/N09/346/61/PDF/N0934661.pdf?OpenElement (accessed on 13 October 2013). 25 See Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, 28 July 1994, ILM 33, 1309. For discussions on this topic, see Erik Franckx, The International Seabed Authority and the Common Heritage of Mankind: The Need for States to Establish the Outer Limits of Their Continental Shelf, IJMCL 25 (2010), 543. 26

See Proposal for the inclusion of a supplementary item in the agenda of the nineteenth Meeting of States Parties (note 24).

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fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.”27

IV. Straight Baselines in the South China Sea China publicised in 1996 part of its baselines to measure its maritime zones along its mainland coast, circling Hainan Island and the Paracel Islands. The straight baselines for the Paracel Islands comprise 28 base points encircling these islands. As China is not a mid-ocean archipelagic State, is this practice consistent with the UNCLOS? Baselines are critical for the measurement of maritime zones under national jurisdiction as well as for maritime boundary delimitation between neighbouring coastal States. Thus problematic baselines will definitely cause problems in the above two areas. When a maritime zone is designated by a coastal State with problematic baselines, then it will become controversial under international law and challengeable by other countries. Potential maritime disputes or conflicts would then arise. According to the UNCLOS, straight baselines can be used when the coastal lines meet either of the following conditions: 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.28 The Convention further provides that “[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.”29 It can be seen that the use of the straight baselines is limited subject to the above two conditions. In other words, this method is a supplement to the use of normal baselines. China uses the method of straight baselines to define the limits of its territorial sea. As for the PRC, the 1958 Declaration on China’s Territorial Sea declared that

27

See Permanent Mission of China to the United Nations, Note verbale addressed to the SecretaryGeneral, 14 April 2011, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/ mysvnm33_09/chn_2011_re_phl_e.pdf (accessed on 12 October 2013). 28

Art. 7 (1) UNCLOS.

29

Ibid.

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(1)

The breadth of the territorial sea of China should be 12 nm, which applies to all territories of China, including the Chinese mainland and its coastal islands, as well as all other islands belonging to China; and

(2)

China’s territorial sea would take, as its baseline, the line composed of the straight lines connecting basepoints on the mainland coast and on the outermost of the islands; the water area extending 12 nm outward from the baseline would be China’s territorial sea, and the water areas inside the baseline would be China’s inland waters, including the Bohai Sea and the Chiungchow Strait.30

But at that time the PRC government did not publicise any geographical coordinates. Only in May 1996 was part of such baselines around the mainland and the Paracel Islands publicised.31 The baselines are divided into two sets: one comprising 49 base points along features on, and adjacent to, its mainland coast and on Hainan Island beginning at point 1 (shandong gaojiao) on the eastern tip of the Shandong peninsula situated to the southeast of Bohai, south to point 49 situated on the west coast of Hainan Island; and the other comprising 28 base points encompassing the Paracel Islands in the northern part of the South China Sea. However, parts of the baselines have been criticised for not being consistent with the criteria set forth in the UNCLOS. The United States takes the view that [m]uch of China’s coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines. And, for the most part, the waters enclosed by the new straight baseline system do not have the close relationship with the land, but rather reflect the characteristics of high seas or territorial sea.32

Further analysis provides details on how China’s straight baselines deviate from the UNCLOS criteria. For example, the coastline from the Shandong peninsula to the area of Shanghai (point 1 to point 11) is essentially smooth with no fringing islands and few indentations. Thus, it is argued, the straight baseline method should not apply.33 The 30

See Declaration on China’s Territorial Sea (note 7), paras. 1, 2.

31

Declaration on the Baseline of the Territorial Sea of the People’s Republic of China, 15 May 1996, reprinted in: Office of Policy, Law and Regulation (note 7), 206, also available at: http://www. state.gov/documents/organization/57692.pdf (accessed on 12 October 2013). 32 United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas No. 117, Straight Baseline Claim: China, 9 July 1996, 3, available at: http://www.state.gov/documents/organization/57692.pdf (accessed on 12 October 2013). 33

See ibid., 5.

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other criticism of China’s straight baselines is that the archipelagic straight baselines encircling the Paracel Islands should not be used because the PRC is not a mid-ocean archipelagic State.34 However, China may argue that these baselines are straight baselines, not archipelagic baselines. It is recalled that during the negotiation of the maritime boundary delimitation in the Gulf of Tonkin between China and Vietnam, the straight baselines of both sides were disregarded and the boundary was determined from the low-water lines along the coasts of the two sides.35 As commented, “the proportionality test in the Gulf of Tonkin demonstrates that the line of delimitation in the Tonkin Gulf constitutes an equitable and acceptable solution.”36 Finally, it is worth mentioning that in September 2012 China announced the baselines for the Senkaku/Diaoyu Islands (disputed between China and Japan) which are delimited in accordance with 17 base points of China’s territorial sea selected from these islands. Unlike the straight baselines encircling the whole Paracel Islands, China uses two sets of baselines to encircle Diaoyu Island and its adjacent islands (12 base points) and Chiwei Yu (5 base points).37 It is wondered whether these two sets of straight baselines are more in conformity with the UNCLOS than the single set of baselines for the whole Paracel Islands.

V. Foreign Military Activities in the EEZ The Impeccable incident in the South China Sea in 2009 triggered a new round of discussion on foreign military activities in the EEZs of coastal States. China opposes 34

See ibid., 8. For further reference, see Hyun-Soo Kim, The 1992 Chinese Territorial Sea Law in the Light of the UN Convention, International and Comparative Law Quarterly 43 (1994), 894, 896–899; Daniel J. Dzurek, The People’s Republic of China Straight Baseline Claim, IBRU Boundary and Security Bulletin (Summer 1996), 77, available via: https://www.dur.ac.uk/ibru/publications/ view/?id=92 (accessed on 13 October 2013). 35 For details, see Zou Keyuan, Sino-Vietnamese Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin, ODIL 36 (2005), 13; Nguyen Hong Thao, Maritime Delimitation and Fishery Management in the Tonkin Gulf, ODIL 36 (2005), 25. 36 Nguyen Hong Thao, Vietnam and Maritime Delimitation, in: Ramses Amer/Keyuan Zou (eds.), Conflict Management and Dispute Settlement in East Asia (2011), 171, 179. 37 Statement of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of Diaoyu Dao and its Affiliated Islands, 10 September 2012, available at: http://www.un.org/ Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/chn_mzn89_2012_e.pdf (accessed on 11 October 2013) (English translation).

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such activities and this opposition has been concurred by other developing countries. As we know, there is a controversy on whether the conduct of military activities in the EEZ of another country is legitimate. Some States may invoke Article 58 (1) UNCLOS to justify their military activities in other countries’ EEZs. The provision reads [i]n 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 of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

Freedoms of the high seas provided in Article 87 are thus applicable to the EEZ as long as they are not contrary to other provisions of the UNCLOS. According to maritime powers such as the United States, the wording freedoms “associated with the operation of ships, aircraft” implies the legality of naval maneuvers in a foreign EEZ.38 One view even considers military exercises, aerial reconnaissance and all other activities of military aircraft freedoms of the high seas if due regard is paid to the rights and interests of third States.39 As advocated, since the UNCLOS mainly provides the rights of navigation and overflight, while keeping silent on the rights of military activities, a maritime superpower must defend and enforce such rights for its security interests,40 and the United States should preserve its right to conduct military activities in China’s EEZ.41 The question is whether military use constitutes an ‘internationally lawful use’ of the ocean. The UNCLOS does not mention military use so that it becomes a grey area which leads to different interpretations. This omission is criticised as one of the major defects in the Convention.42 Nevertheless, according to a fundamental legal principle, nothing is illegal if there is no law to make it so. Military use is not prohibited since 38

See Boleslaw Adam Boczek, Peacetime Military Activities in the Exclusive Economic Zone of Third Countries, ODIL 19 (1988), 445, 450. 39

Kay Hailbronner, Freedom of the Air and the Convention on the Law of the Sea, American Journal of International Law 77 (1983), 490, 503. 40 See Charles E. Pirtle, Military Uses of Ocean Space and the Law of the Sea in the New Millennium, ODIL 31 (2000), 7, 8–9. 41 See Raul (Pete) Pedrozo, Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone, Chinese Journal of International Law 9 (2010), 9. 42

Shao Jin, Legal Problems Concerning Military Use of Exclusive Economic Zones and Continental Shelves, Chinese Yearbook of International Law (1985), 183 (in Chinese).

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there is no such prohibition in the UNCLOS. Second, the UNCLOS affirms that matters which are not regulated under it should be continually governed by general international law including customary law. If it is traced back, historically military activities were consistently allowed under customary international law, though in the implied form, on the high seas. But on the other hand, allowing military activities on the high seas under international law does not mean that they can be conducted in the EEZ without any regulation. It should be borne in mind that the circumstances now are fundamentally different from those in the past. There was and still is no controversy regarding military activities conducted on the high seas which was and is open to all. The EEZ is different from the high seas in that it is an area under national jurisdiction. While military activities are allowed there, the factor of national jurisdiction must be taken into account. There should be some kind of check-and-balance mechanism for foreign military activities in the EEZ. Furthermore, even if military use is an internationally lawful use, it can be argued that according to the UNCLOS it is limited to navigation and overflight, and other rights as provided in Article 87 UNCLOS. In practice, coastal States including Bangladesh, Brazil, Cape Verde, India, Malaysia, Pakistan, and Uruguay43 explicitly restrict unapproved military exercises or activities in or over their EEZs conducted by other countries. There is a discrepancy regarding the concept of the EEZ between the legal term and the operational term. The US Navy divides the ocean into two categories: national waters and international waters, for operational and mobility purposes.44 The EEZ is accordingly categorised as international waters. However, it must be pointed out that it is only an expression for operational purposes, thus in no way affecting the legal nature of the EEZ as a maritime zone within national jurisdiction under the UNCLOS. Even some American legal scholars suggest that “the United States should cease to use the term ‘international waters’ when referring to its lawful military activities in the EEZ.”45 43 The respective statements are available via: http://treaties.un.org/Pages/ViewDetailsIII.aspx?& src=TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (accessed on 11 October 2013). 44 National waters include internal waters, territorial seas and archipelagic waters, and international waters include contiguous zones, EEZ and high seas. See Department of the Navy, The Commander’s Handbook on the Law of Naval Operations (July 2007), para. 1.5, available at: http://www.usnwc. edu/getattachment/a9b8e92d-2c8d-4779-9925-0defea93325c/ (accessed on 23 October 2013). 45

See Pedrozo (note 41), 19.

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It is worth mentioning that the East-West Center once organised several workshops on “military and intelligence gathering activities in the EEZ.” The launch of this serial of workshops was triggered by the EP-3 Incident in the South China Sea between China and the United States in 2001. The first one was held in Bali, Indonesia, in June 2002, which focused on identifying disagreements and contrasting positions as well as on areas of possible mutual understanding and agreement.46 Through these efforts, the guidelines for military activities have been prepared.47 It is hoped that some consensus can be reached in the world community regarding military and intelligence gathering activities in the EEZ, in particular in connection to a possible review of the UNCLOS ten years after its entry into force. Another grey area, which is related to military activities in the EEZ, is hydrographic surveying, particularly when it is undertaken for military purposes. The International Hydrographic Bureau defines ‘hydrographic surveying’ as a survey having for its principal purpose the determination of data relating to bodies of water. A hydrographic surveying may consist of the determination of one or several of the following classes of data: depth of water, configuration and nature of the bottom; directions and force of currents; heights and times of tides and water stages; and location of topographic features and fixed objects for survey and navigation purposes.48

Although some wordings like ‘survey activities’ and ‘hydrographic survey’ appear in the UNCLOS, the Convention does not contain any provision specifically governing this kind of marine activity. The grey and ambiguous area is further widened in the context of the relevant provisions of the UNCLOS regarding marine scientific research (MSR). The UNCLOS has one chapter governing MSR (part XIII), but no clear definition of it. The ambiguity concerning the MSR definition may cause problems for researching States, but has little adverse impact on costal States since they have a great discretionary power to decide on what is an MSR activity and whether a specific MSR

46

For details, see East-West Center, Military and Intelligence Gathering Activities in Exclusive Economic Zones: Consensus and Disagreement: A Summary of the Bali Dialogue (2002). 47 Ocean Policy Research Foundation, Guidelines for Navigation and Overflight in the Exclusive Economic Zone (EEZ Group 21), 16 September 2005, available at: http://www.sof.or.jp/en/report/ pdf/200509_20051205_e.pdf (accessed on 11 October 2013). 48

See definition as cited by Sam Bateman, Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research, Marine Policy 29 (2005), 163, 167, footnote 9.

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activity is acceptable under Article 246 UNCLOS. It is acknowledged that MSR and hydrographic surveying overlap to some extent in law and State practice.49 China holds the view that hydrographic surveying is part of MSR and has specific laws governing both MSR and hydrographic surveying. In 2001, the USNS Bowditch, an American military surveillance vessel, entered into China’s EEZ in the Yellow Sea three times to carry out hydrographic surveying and was confronted by Chinese Ocean Surveillance vessels.50 The Chinese side sent monitoring vessels to follow the American ship and attempted to disrupt its operations. At one time, a Chinese warship even forced the Bowditch to leave the Chinese EEZ.51 After the Bowditch incident, China has tightened its control of hydrographic surveying in the maritime zones within its national jurisdiction. One move in legislation is the revision of the 1992 Law of Surveying and Mapping which took place in 2002. The original provision governing foreign surveying activities was revised as follows: Foreign organizations or individuals that wish to conduct surveying and mapping in the territorial air, land or waters, as well as other sea areas under the jurisdiction of the People’s Republic of China shall be subject to approval by the administrative department for surveying and mapping under the State Council and the competent department for surveying and mapping of the army, and they shall observe the provisions of relevant laws and administrative rules and regulations of the People’s Republic of China. Foreign organizations or individuals that wish to conduct surveying and mapping in the territorial air, land or waters of the People’s Republic of China shall, as required by law, join hands with the relevant departments or units of the People’s Republic of China in the form of Chinese-foreign equity joint venture or Chinese-foreign contractual joint venture and such surveying and mapping may not involve State secrets or endanger State security.52

49

Ibid., 172.

50

For details, see You Zhiyong/Zhang Youfeng, Case Analysis of Foreign-Related Marine Law Enforcement in the East China Sea Zone, in: Xiamen University Ocean Law Centre (ed.), Collected Papers of the Symposium in Commemorating the 20th Anniversary of the Adoption of the UN Convention on the Law of the Sea (2002), 81 (in Chinese). 51

See John Leicester, Chinese Chase US Ship; Jet Crash Part of Spy Game, Herald Sun, 4 April 2001, 32, cited in: George V. Galdorisi/Alan G. Kaufman, Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict, California Western International Law Journal 32 (2002), 253, 294. 52 Art. 7 Law of Surveying and Mapping, 29 August 2002 (entered into force on 1 December 2002), available at: http://www.china.org.cn/china/LegislationsForm2001-2010/2011-02/14/content_ 21916711.htm (accessed on 12 October 2013).

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The revised provision contains some changes in comparison with the old one: (1) originally, such activity was only subject to the approval of the competent department of surveying and mapping administration under the State Council but now the approval is made by this department together with its counterpart in the Army; and (2) originally foreign organisations or individuals might conduct surveying and mapping alone within China’s territory, but now such activity must be conducted in cooperation with the Chinese counterpart. Clearly, in China’s eye, hydrographic surveying is not something that the freedom of the high seas should apply to. The revision of the Surveying and Mapping Law is also connected to the implementation of the 1996 Regulations on the Management of the Foreign-Related Marine Scientific Research, which came into force on 1 October 1996.53 The Regulations apply to the conduct of survey activities by international organisations, or organisations and individuals of any foreign country within sea areas under China’s jurisdiction. It is recalled that in the Bowditch incident, the Chinese side asked the Bowditch to stop its illegal activities without China’s approval under the above Regulations, but the American vessel only replied that it was doing military hydrographic surveying in international waters.54 When China addressed the issue with the American side through diplomatic channels, the United States responded that military surveying was not MSR so that it was not subject to the UNCLOS and to the approval of the coastal State.55 Clearly, China learnt a lesson from this incident that the 1996 regulations governing MSR alone did not work well in practice with the Americans when they carried out military hydrographic surveying in China’s jurisdictional waters. As long as the grey area exists, problems regarding military survey activities in the EEZ between the coastal State and the conducting State will continue to arise. If hydrographic surveying can be regarded as part of MSR, military surveying could be 53 Regulations on the Management of the Foreign-Related Marine Scientific Research, 19 October 1996, reprinted in: Gazette of the State Council of the People’s Republic of China (1996) (in Chinese), and reprinted in: Office of Law, Policy and Regulation (note 7), 328 (in English). 54 See Su Tao/Lin Fangzhong, Discussion on the Law Governing Military Survey Activities of a Third State in the Sea Areas under the Jurisdiction of the Coastal State, in: Li Yongqi/Luo Shouben (eds.), Studies on Basic Issues in the Management of Sea Uses (2002), 208 (in Chinese). 55

You/Zhang (note 50), 84–85. The differences between China and the United States are well recorded in: Moritaka Hayashi, Military Activities in the Exclusive Economic Zone of Foreign Coastal States, IJMCL 27 (2012), 795.

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then considered an abuse of maritime rights in the law of the sea. It is interesting to note that two Chinese maritime law enforcement officers revealed in their article that the Bowditch had applied to the Chinese authority for hydrographic surveying but due to some reasons its application was not approved.56 It is recalled that on 19 January 1998 China and the United States signed the Agreement on Establishing a Consultation Mechanism on Strengthening Military Maritime Safety57 and the two countries can continue their dialogue on maritime safety issues including the issues concerning the military uses of the EEZ and it is hoped that through their dialogue, both sides could reach a consensus in the end.

VI. From DOC to COC The disputes in the South China Sea have become at least a regional issue if it is not an international issue. Because of this, a regional arrangement was made in 2002 through the Declaration on the Conduct of Parties in the South China Sea signed between China and ten members of the Association of Southeast Asian Nations (ASEAN).58 The Parties reaffirm their commitment to the purposes and principles of the Charter of the United Nations […], the Treaty of Amity and Cooperation in Southeast Asia […], and other universally recognized principles of international law which shall serve as the basic norms governing state-to-state relations; [and agree] to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations […] in accordance with universally recognized principles of international law. [Pending the settlement of the disputes, t]he Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability. [Further, they agree to] explore or undertake cooperative activities [including] marine environmental protection, marine scientific research, safety of navigation and communication at sea, search and rescue operation; and combating transnational crime [such as sea] piracy.59

After the signing of the 2002 DOC, the ASEAN and China established two mechanisms in 2005 for the purpose of implementing the Declaration: one is the 56

You/Zhang (note 50), 85.

57

Agreement on Establishing a Consultation Mechanism on Strengthening Military Maritime Safety, 19 January 1998, available at: http://www.fas.org/nuke/control/sea/text/us-china.pdf (accessed on 11 October 2013). 58

Declaration on the Conduct of Parties in the South China Sea (DOC) (note 4).

59

Paras. 1, 4–6 DOC.

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ASEAN-China Senior Officials Meeting on the Implementation of the DOC, and the other one the ASEAN-China Joint Working Group on the Implementation of the DOC. While the first, which is ad hoc, will review the progress of the implementation of the DOC and discuss principles and methods thereof, the second, which gathers twice a year, will function under the direction of the ASEAN-China Senior Officials Meeting. In July 2011, the two sides signed the Guidelines for the Implementation of the DOC with regard to possible joint cooperative activities, measures and projects.60 Following this, the two sides held a workshop on the 10th Anniversary of the DOC on 1–2 November 2012 in Phnom Penh and stressed the significance of the strategic partnership to continue their constructive engagement, to keep the momentum of the progress of dialogue and consultation with the view to further promoting the ASEAN-China Strategic Partnership in the implementation of and moving forward towards eventual adoption of the COC based on consensus.61

This is a positive development. The 2002 DOC also clearly states that “[t]he Parties concerned reaffirm that the adoption of a code of conduct in the South China Sea would further promote peace and stability in the region and agree to work, on the basis of consensus, towards the eventual attainment of this objective.”62 In order to implement the DOC, China and ASEAN countries began to hold consultations on how to adopt a legally binding Code of Conduct in the South China Sea (COC). While the ASEAN members are anxious to adopt the COC as early as possible, China takes a more cautious approach towards the process. While China supports the DOC, it has clearly expressed that the DOC is only a mechanism for functional cooperation and crisis management, but not a mechanism for the resolution to sovereignty and maritime disputes. In early August 2013, Wang Yi, Chinese Minister of Foreign Affairs made four points in Hanoi (during his visit to Vietnam) regarding the adoption of the COC: First, reasonable expectations. Some countries are talking about ‘quick fix,’ like reaching consensus on COC within one day. It is an attitude neither realistic nor serious. COC 60 Guidelines for the Implementation of the DOC, 20 July 2011, available at: http://id.chinaembassy.org/eng/sgdt/t844905.htm (accessed on 10 October 2013). 61 See ASEAN, Workshop on 10th Anniversary of the Declaration on the Conduct of Parties in the South China Sea (DOC), available at: http://www.asean.org/news/asean-secretariat-news/item/work shop-on-10th-anniversary-of-the-declaration-on-the-conduct-of-parties-in-the-south-china-sea-doc (accessed on 12 October 2013). 62

See para. 10 DOC.

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involves multilateral interests from different parties, and its formulation is a process of sophisticated and complex coordination. Second, consensus through negotiations. We should refer to the experience of reaching DOC to move forward COC. To seek consensus as broadly as possible and to keep the comfort of all parties in mind. Wills of individual country or of a few countries should not be imposed on other countries, as an old Chinese saying, nothing forcibly done is going to be agreeable. Third, elimination of interference. China and ASEAN countries tried several times to discuss on COC before, but got stuck due to some interferences. All parties concerned should do more to help moving forward the process of COC, and create the necessary conditions and atmosphere, not going the opposite way. Fourth, step-by-step approach. The formulation of COC is stipulated in DOC. COC is not to replace DOC, much less to ignore DOC and go its own way. The top priority now is to continue to implement DOC, especially promoting maritime cooperation. In this process, we should formulate the road map for COC through consultations, and push it forward in a step-by-step approach.63

It is reported that between 11 and 12 September 2013, the two sides held the Sixth Senior Officials’ Meeting and the Ninth Joint Working Group’s Meeting on the Implementation of the Declaration on the Conduct of Parties in the South China Sea in Suzhou, China. It is noted that this was the first official meeting on the consultation of the COC in the South China Sea. According to the Chinese mass media, the meeting received positive feedbacks from the participating countries.64 However, China’s cautious approach may delay the process of adopting the COC as the ASEAN member States have expected. VII. Final Remarks With the entry into force of the UNCLOS, the maritime enclosure movement around the world has been further intensified. The disputes in the South China Sea exactly reflect the intensified claims of the littoral States to maritime spaces and marine resources. It has to be kept in mind that all the countries adjacent to the South China 63

Ministry of Foreign Affairs of the People’s Republic of China, Foreign Minister Wang Yi On Process of “Code of Conduct in the South China Sea,” 5 August 2013, available at: http://www.fmprc. gov.cn/eng/zxxx/t1064869.shtml (accessed on 10 October 2013). 64 See CCTV, 6th Senior Officials’ Meeting on Implementation of DOC held in Suzhou, 15 September 2013, available at: http://english.cntv.cn/program/newsupdate/20130915/103210.shtml (accessed on 11 October 2013).

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Sea are developing countries, and that with their economic development they inevitably demand more energy resources from the ocean. As an illustration, with the decrease of energy resources on its land China has turned its efforts to the ocean and its seabed. Due to overlapping maritime claims in the South China Sea, tensions and even conflicts between China and its neighbouring countries concerning marine resource exploration and development are reported from time to time in the mass media.65 It is predicted that the South China Sea will not be quiet in the years to come as the disputes there are entangled with various national interests of the littoral States and involved with external powers that influence the discourse of the disputes settlement. It is reported recently that China had declared that the South China Sea was within the ‘core interests’ of the nation, equivalent to Taiwan and Tibet.66 This claim has been further confirmed by a recent speech made by the Head of China’s State Oceanic Administration. According to him, the strategic position of the South China Sea is very important and the assured safeguarding of China’s rights and interests in the South China Sea concerns the ‘core interests’ of China.67 It seems that a richer China becomes more assertive in dealing with international affairs while internally it is more benevolent towards its people. The new Chinese leadership has expressed its intention to get more involved in global affairs. According to Xi Jinping, the successor of Hu Jintao, newly appointed President, China should not only be a voting country, but should become an initiative country in dealing with international affairs.68 While China’s changed attitude to get more involved in global governance is welcome, it is expected that China can be a responsible stakeholder for world peace and security. The recent strong but inflexible assertion in the South China Sea may not help China turn the South China Sea into a sea of peace, cooperation and harmony. It is a challenging task for China to exercise smart power rather than hard power to win the hearts of its neighbouring countries adjacent to the South China Sea. 65

Keyuan Zou, China’s Ocean Policymaking: Practice and Lessons, Coastal Management 40 (2012), 147.

66

Boxun, China declares a red line for its national interest in the South China Sea, 9 July 2010, available at: http://news.boxun.com/forum/201007/boxun2010/137815.shtml (accessed on 9 July 2010) (in Chinese). 67 Liu Shigui, Assured safeguarding of China’s rights and interests in the South China Sea concerns the core interests of China, 26 October 2012, available at: http://military.people.com.cn/n/2012/ 1026/c1011-19400557.html (accessed on 10 October 2013) (in Chinese). 68 Wenxuecity, Put aside the diplomatic thoughts of Mao Zedong and Deng Xiaoping, Xi Jinping for the first time systematically expressed China’s diplomatic outlook, 30 January 2013, available at: http:// www.wenxuecity.com/news/2013/01/30/2206448.html (accessed on 30 January 2013) (in Chinese).

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China’s reluctance to invoke international dispute settlement mechanisms is also a negative factor concerning China’s image in the world. Except for the World Trade Organization’s dispute settlement mechanisms and economic arbitration, China does not accept the compulsory jurisdiction of the International Court of Justice (ICJ) nor compulsory settlement mechanisms under the UNCLOS for the disputes concerning maritime boundary delimitation, historic bays and titles or military activities.69 It is interesting to note that on 22 January 2013, the Philippine government officially notified the Chinese government that it had decided to bring China to the arbitral proceedings under Article 287 and Annex VII UNCLOS concerning the sovereign rights and jurisdiction of the Philippines over its maritime entitlement in the West Philippine Sea (South China Sea).70 However, China clearly expressed its position that it would not participate in the arbitration and accused the Philippines of complicating the issue.71 While it is acknowledged that Annex VII UNCLOS mechanism may not be a proper forum for the settlement of sovereignty disputes, it is suggested that China and the Philippines could learn from their neighbours like Indonesia, Malaysia and Singapore to bring their disputes to the ICJ for settlement. Finally, it is pointed out that the issues identified and discussed in this article are actually some of the controversial and unresolved issues under the UNCLOS. State practice shows the differences and contradictions in implementing the UNCLOS as well as general international law of the sea, in particular concerning the ‘island or rock?’ controversy, historic title and rights, straight baselines and military uses of the EEZ. It is perceived that with the development of State practice, academic discussion will continue to go on. It is hoped that some issues could be resolved in the possible review conferences of the UNCLOS in the near future. As the UNCLOS is a package deal with tremendous ambiguities and compromises, it is wondered whether the State parties are courageous enough and also well prepared to open this Pandora’s Box in the years to come. 69

In August 2006, China made a declaration to exclude the categories of disputes set forth in Art. 298 UNCLOS. China’s declaration is available via: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src= TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (accessed on 10 October 2013). 70

Republic of the Philippines, Department of Foreign Affairs, Diplomatic Note and Notification and Statement of Claim, 22 January 2013, available at: http://www.gov.ph/downloads/2013/01jan/20130122Notification-and-Statement-of-Claim-on-West-Philippine-Sea.pdf (accessed on 10 October 2013). 71 See ABS/CBN News, China: No to UN arbitration on sea row, 1 February 2013, available at: http://www.abs-cbnnews.com/nation/02/01/13/china-no-un-arbitration-sea-row (accessed on 12 October 2013).

The South China Sea: The U-Shaped Line, Islands and the Philippine-China Arbitration TED L. MCDORMAN(

ABSTRACT: Conflicting claims over islet sovereignty and waters involving Brunei, China (the People’s Republic of China (China) and the Republic of China (Taiwan)), Malaysia, the Philippines, and Vietnam has been a centre of attention and concern, both within the region and beyond, since the 1970s. Serious confrontations involving navies, fishers and those engaged in hydrocarbon activities of the various littoral States have been common over the last 40 years. These continuing issues and China’s U-shaped line led in 2013 to the commencement of arbitration proceedings against China by the Philippines. The focus of this paper is on the Ushaped line and, more generally, on the legal aspects of the Philippines-China arbitration. KEYWORDS: South China Sea, Sovereignty, U-shaped line, Philippines-China Arbitration, UNCLOS Annex VII Arbitration

I. Introduction The strategic importance of the South China Sea in terms of potential oil and gas resources, freedom of navigation and ocean commerce, has caused regional and global geo-political claims to be made by the States concerned.1 Behind the strategic and international issues lies the importance of the South China Sea in terms of the domestic politics, histories and perceptions within each of the players which often explains governmental posturing, action and inaction.

( 1

Professor Ted L. McDorman, Faculty of Law, University of Victoria, British Columbia, Canada.

For a recent overview, see Yann-huei Song/Stein Tonnesson, The Impact of the Law of the Sea Convention on Conflict and Conflict Management in the South China Sea, Ocean Development & International Law 44 (ODIL) (2013), 235, 235. The literature on the South China Sea is voluminous, see, e.g., Sam Bateman/Ralf Emmers (eds.), Security and International Politics in the South China Sea (2009); Ralf Emmers, Geopolitics and Maritime Territorial Disputes in East Asia (2010); and Mark J. Valencia/Jon M. Van Dyke/Noel A. Ludwig, Sharing the Resources of the South China Sea (1997).

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The ‘golden era’ of calm and a degree of accommodation amongst the principal players can now be seen as being from the late 1990s to 2009. In the late 1990s the Member States of the Association of Southeast Asian States (ASEAN) and China worked towards and finalised the 2002 Declaration on the Conduct of Parties in the South China Sea (2002 Declaration or DOC).2 Further, in 2000 China and Vietnam reached agreements on a maritime boundary and fishing within the Gulf of Tonkin.3 The maritime boundary agreement is to date the only such accord entered into by China with a neighbouring State. In 2009, Malaysia and Vietnam made submissions of their proposed outer limits of their continental shelves in the South China Sea to the Commission on the Limits of the Continental Shelf.4 The submissions were in conformity with the procedural aspects of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which is binding on all of the South China Sea players, but Taiwan. China responded to the submissions of Malaysia and Vietnam indicating that they were unacceptable and in making its formal objections China appended to its notes verbale a map showing the U-shaped line.5 Subsequently, much 2 Declaration on the Conduct of Parties in the South China Sea, 4 November 2002, available at: http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-thesouth-china-sea (accessed on 20 December 2013); and as an appendix to Nguyen Hong Thao, The 2002 Declaration on the Conduct of Parties in the South China Sea: A Note, ODIL 34 (2003), 279, 282–285. 3

Agreement between China and Viet Nam on the Delimitation of the Territorial Seas, the Exclusive Economic Zones and Continental Shelves in Beibu Bay/Bac Bo Gulf, 25 December 2000, Law of the Sea Bulletin 56 (2004), 137 and the Agreement on Fishery Cooperation in Tonkin Gulf between China and Vietnam, 25 December 2000, for a translated version, see Zou Keyuan, Law of the Sea in East Asia: Issues and Prospects (2005), 181–189 and Nguyen Hong Thao, Maritime Delimitation and Fishery Cooperation in the Gulf of Tonkin, ODIL 36 (2005), 25, 35–41. 4 The Commission of the Limits of the Continental Shelf was established by Annex II UN Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 397 (UNCLOS); see generally the website of the Commission, available at: www.un.org/Depts/los/clcs_new/clcs_home.htm (accessed on 20 December 2013); Malaysia – Vietnam Joint Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in respect of the Southern Part of the South China Sea, Executive Summary, May 2009, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutive summary.pdf (accessed on 12 March 2014) and Vietnam’s Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982, Partial Submission in Respect of Vietnam’s Extended Continental Shelf: North Area (VNM-N), Executive Summary, April 2009, available at: http://www.un.org/Depts/los/clcs_new/ submissions_files/vnm37_09/vnm2009n_executivesummary.pdf (accessed on 12 March 2014). 5

China, Note Verbale, 7 May 2009, Doc. CML/17/2009, available at: http://www.un. org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf (accessed on 12 March 2014); Note Verbale, 7 May 2009, Doc. CML/18/2009 available at: see the Vietnam Submission – http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf (accessed on 17 March 2014).

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attention has been given to the U-shaped line both within China, the region and globally. There has been a renewed series of incidents involving China and the other States, some directly related to the U-shaped line, with the most highly publicised being those around Scarborough Shoal between China and the Philippines.6 In January 2013, the Philippines commenced arbitration proceedings against China pursuant to UNCLOS focused, in part, on the question whether the U-shaped line is contrary to UNCLOS.7 The Philippines has indicated that it had formally invited China to bring the issues to a dispute settlement mechanism, and verbally invited China to jointly bring the matters to the International Tribunal for the Law of the Sea (ITLOS).8 The result of the commencement of the arbitration has brought even more global attention on the South China Sea and the inevitable questions about the ‘law-based’ resolution of disputes, the utility of UNCLOS and the effect of China’s decision not to participate in the arbitral proceedings.9

A. The 2002 Declaration: Subsequent Developments

The 2002 Declaration is a political rather than a legally binding document and it has been noted that the Declaration “serves as a moral restraint on the parties”10 and 6

See generally Robert Beckman, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, American Journal of International Law (AJIL) 107 (2013), 142, 156–158; Song/Tonnesson (note 1), 254–258. See also Li Jianwei, Managing Tension in the South China Sea: Comparing the China – Vietnam and the China – Philippines Approaches, paper presented at the 5th International Workshop – The South China Sea: Cooperation for Regional Security and Development, Hanoi, 11–12 November 2013. 7 Philippines, Notification and Statement of Claim, 22 January 2013, para. 31, point 2, attached to the document of the Press Release Statement by Secretary of Foreign Affairs, Albert del Rosario, on the UNCLOS Arbitral Proceedings against China to Achieve a Peaceful and Durable Solution to the Dispute in the WPS, available at: www.gov.ph/2013/01/22/statement-the-secretary-of-foreign-affairson-the-unclos-arbitral-proceedings-against-china-january-22-2013/ (accessed on 11 March 2014). 8

Ibid., para. 29; see also Philippines, Response of the DFA Spokesperson to the Recent Statement of the Chinese Ministry of Foreign Affairs on the West Philippine Sea Issue, 15 July 2013, available at: https://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/332-response-of-the-dfaspokesperson-to-the-recent-statement-of-the-chinese-ministry-of-foreign-affairs-on-the-westphilippine-sea-issue (accessed on 12 March 2014). 9 China, Spokesperson Hong Lei’s Regular Press Conference on 19 February 2013, available at: http://www.fmprc.gov.cn/eng/xwfw/s2510/t1015317.shtml (accessed on 12 March 2014). 10

Li Mingjang, China’s South China Sea Dilemma: Balancing Sovereignty, Development, and Security, in: Bateman/Emmers (eds.) (note 1), 140, 142.

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as a “formal […] framework for understanding and cooperation” functioning as a “safety valve to prevent […] further unilateral actions […] in the disputed waters and area.”11 Two of the key provisions of the 2002 Declaration direct that the parties undertake to resolve their territorial and jurisdiction disputes using peaceful means; and that self-restraint is to be exercised by the parties in conducting activities that might complicate or escalate the existing disputes including refraining from occupying uninhabited features.12 As a follow-up to the 2002 Declaration, a Joint Working Group on the Implementation of the Declaration was established.13 In 2006, the Working Group identified, amongst other things, six projects dealing with search and rescue and regional oceanographic exchanges,14 all apparent attempts to encourage oceanic regional cooperation. However, little progress on these or similar projects were made. Moreover, what might have been a key aspect for the future of the Declaration “regular consultations on the observance” of the Declaration15 did not occur. Reinvigoration has taken place. In July 2011, the ASEAN Member States and China agreed upon “Guidelines for the Implementation of the DOC,”16 proclaimed as being important for “actively implementing” the DOC and “promoting pragmatic cooperation […] to maintain peace and stability in the South China Sea.”17 Subsequent to this, in September 2013, China and the ASEAN Member States held talks 11

Gao Zhiguo, South China Sea: Turning Suspicion into Mutual Understanding and Cooperation, in: Saw Swee-Hock/Sheng Lijun/Chin Kin Wah (eds.), ASEAN – China Relations: Realities and Prospects (2005), 329, 340; Mingjang (note 10), 142, comments that: “China’s signing of the DOC [Declaration] demonstrated to some extent its acceptance of norms to regulate issues concerning the South China Sea, no matter how primitive and informal those norms are”. 12

Declaration on the Conduct of Parties, (note 2) paras. 4–5.

13

Association of Southeast Asian Countries (ASEAN), Terms of Reference of the ASEAN – China Joint Working Group on the Implementation of the Declaration on the Conduct of the Parties in the South China Sea, available at: http://www.asean.org/news/item/terms-of-reference-of-the-asean-chinajoint-working-group-on-the-implementation-of-the-declaration-on-the-conduct-of-parties-in-thesouth-china-sea (accessed on 12 March 2014). 14 Nguyen Hong Thao, The Declaration on the Conduct of Parties in the South China Sea: A Vietnamese Perspective, 2002–2007, in: Bateman/Emmers (eds.) (note 1), 207, 215. 15

Declaration on the Conduct of Parties, (note 2) para. 8.

16

Guidelines for the Implementation of the DOC, available on the ASEAN website via: www. asean.org (accessed on 20 December 2013). 17 China, The Senior Officials Meeting for the Implementation of ‘the Declaration on Conduct of Parties in the South China Sea’ Reaches an Agreement on the Guideline, 20 July 2011, available at: http://www.mfa.gov.cn/eng/wjdt/wshd/t841727.htm (accessed on 12 March 2014).

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on a possible legally-binding Code of Conduct to either replace the 2002 Declaration or be a further implementation step for the DOC. Both China and the Philippines indicated that further consultations on an ASEAN-China Code of Conduct would take place.18

B. Legal Questions

Embedded in the above narrative are many complex international legal and political questions. The two principal international legal questions concern (1) the sovereignty over the insular features in the South China Sea and (2) whether any or all of the insular features are legally capable of generating a 12 nautical mile (nm) territorial sea and a 200 nm exclusive economic zone (EEZ) and, where possible, a continental shelf area beyond 200 nms. The first issue is not an ocean law matter as it deals with land and the complex legal questions and historical evidence of determining ownership of land. The second matter is a law of sea question as it involves, amongst other things, the interpretation and application of Article 121 UNCLOS. The latter, together with questions about the U-shaped line, are the principal issues raised by the Philippines in the arbitration. The focus herein is not on the international legal questions per se, but rather on the U-shaped line and, more generally, legal aspects of the Philippines-China arbitration.

18 China, Ministry Spokesperson Hong Lei’s Regular Press Conference on September 16, 2013, available at: http://www.fmprc.gov.cn/eng/xwfw/s2510/t1077263.shtml (accessed on 12 March 2014); Philippines, ASEAN and China Launch Official Consultations on Code of Conduct in South China Sea; Phl Calls for Deliberate Rules-Based Process in Moving Forward, 16 September 2013, available at: https://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfa-releases/783-asean-and-china-launchofficial-consultations-on-code-of-conduct-in-south-china-sea-phl-calls-for-deliberate-and-rules-basedprocess-in-moving-forward (accessed on 12 March 2014). See generally Carlyle A. Thayer, New Commitment to a Code of Conduct in the South China Sea?, The National Bureau of Asian Research, 9 October 2013, available at: http://www.nbr.org/research/activity.aspx?id=360#.Ut1utPu1LGg (accessed on 20 December 2013).

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II. The U-shaped Line19 Maps depicting the U-shaped line prepared and issued by China were known long before 2009;20 however, the U-shaped line took on enhanced significance for China’s neighbours in 2009. The submissions to the Commission by Malaysia and Vietnam of their proposed outer limits of the continental shelf area beyond 200 nms in the South China Sea indicated for the first time where these two States located their 200 nm zones and shelf areas beyond 200 nms.21 The attachment of the map to China’s notes verbal in response to the above submissions made it clear for the first time that there is an area of overlap of the U-shaped line and the 200 nm zones and continental shelves beyond 200 nms formally asserted by Malaysia and Vietnam. The Philippines has not proclaimed the precise location in the South China Sea of either its 200 nm zone or the outer limits of any continental shelf area that may exist beyond the 200 nm limit. However, in the Malaysia-Vietnam Joint Submission a 200 nm limit of the Philippines was depicted. The Philippines formal objection to the Joint Submission was non-specific with no comment made regarding the depicted Philippine 200 nm limit.22 There is an area of overlap of the U-shaped line and the depicted 200 nm zone of the Philippines. More directly, in the January 2013 Statement of Claim, the Philippines asserts that the U-shaped line “cuts through – and cuts off – the Philippines’ 200 M exclusive economic zone and continental shelf” and that “China has interfered with the exercise by the Philippines of its rights […] in its exclusive economic zone and continental shelf.”23 The U-shaped line also overlaps with the EEZ of Indonesia originating from Natuna Island. In 2003 Indonesia and Vietnam entered into a maritime boundary 19 Parts of this section have been taken, with modification, from: Ted L. McDorman, Rights and Jurisdiction over Resources in the South China Sea (UNCLOS and the ‘U-shaped Line’), prepared for the June 2013 conference hosted by the National University of Singapore Centre for International Law to be published in the proceedings. 20

Li Jinming/Li Dexia, The Dotted Line on the Chinese Map of the South China Sea: A Note, ODIL 34 (2003), 287–296; Zhiguo Gao/Bing Bing Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, AJIL 107 (2013), 98, 100–105. 21

See the Malaysia-Vietnam Joint Submission and Vietnam Submission (note 4).

22

Philippines, Note Verbale, 4 August 2009, Doc. No. 000818, available at: http://www.un.org/Depts/ los/clcs_new/submissions_files/mysvnm33_09/clcs_33_2009_los_phl.pdf (accessed on 12 March 2014). 23

Philippines, Notification and Statement of Claim (note 7), para. 12.

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agreement respecting the area to the west and north of Natuna Island.24 The 2003 Agreement line ends in close proximity to the delimitation line in the 1969 MalaysiaIndonesia Agreement25 with the lines in both accords overlapping an area within the U-shaped line. There is no public record of a Chinese protest or comment with respect to either of the two Agreements.26 Questions have been raised about the international legal significance of the Ushaped line respecting rights and jurisdiction over maritime space and resources. In the May 2009 notes verbale China stated that it: […] has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).27

In a subsequent April 2011 note verbale, in response to a Philippine note verbale,28 China repeated the above without referencing the map pointing out that: (1) “China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence;” (2) “Since the 1930s, the Chinese Government has given publicity several times [to] the geographical scope of China’s Nansha Islands;” and (3) “China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.”29 While the U-shaped line has been at the forefront of the Philippines case under UNCLOS, with the Philippine Secretary of Foreign Affairs stating that the Philip-

24 Agreement between Vietnam and Indonesia concerning the Delimitation of the Continental Shelf Boundary, 26 June 2003, Law of the Sea Bulletin 67 (2008), 39. 25 Agreement between Malaysia and Indonesia on the Delimitation of the Continental Shelf, 27 October 1969, ILM 9, 1173. 26 See Ted L. McDorman, Indonesia – Vietnam, in: David A. Colson/Robert W. Smith (eds.), International Maritime Boundaries vol. 6 (2011), 4301, 4305–4306. 27

China, Note Verbale (note 5).

28

Philippines, Note Verbale, 5 April 2011, Doc. No. 000228, available at: http://www.un.org/Depts/ los/clcs_new/submissions_files/mysvnm33_09/phl_re_chn_2011.pdf (accessed on 12 March 2014). 29

China, Note Verbale, 14 April 2011, Doc. No. CML/8/2011, available at: http://www.un.org/Depts/ los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf (accessed on 12 March 2014).

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pines are challenging the “validity of China’s nine-dash line claim;”30 in all the publicly available official responses to the Philippines action by China, no reference has been made to the U-shaped line. This has been consistent since 2009 as China, in all publicly available official communications in English, has not referred to the Ushaped line and, not surprisingly, has also chosen not to comment in public on the effect in international law, if any, of the U-shaped line or the legal arguments and evidence supporting a legal effect. The apparent lack of explanation led Indonesia in 2010 to say “[t]hus far, there is no clear explanation as to the legal basis, the method of drawing, and the status” of the U-shaped line.31 As States ‘hold their cards close to their chest’ regarding detailed articulation of positions and actions and their international legal justifications is the widespread practice, thus the lack of clarification from China is not surprising. This has, however, led to a certain degree of ‘reading of tea leaves’ respecting the U-shaped line, although the Philippines expressed its view in their Statement of Claim that within the line “China has asserted a claim to ‘sovereignty’ and ‘sovereign rights’ over a vast maritime area lying within the nine dashed line.”32 Numerous Chinese writers have provided views that invoke or tie the U-shaped line to historic rights and or historic title.33 Moreover, Article 14 of the 1998 Exclusive Economic Zone and Continental Shelf Act (China 1998 Act), which contains the core aspects of China’s rights and jurisdiction over resources from UNCLOS, provides that “[t]he provisions of this Act shall not affect the historical rights of the People's Republic of China.”34 Zou Keyuan surmised that it is commonly acknowl-

30

Statement by Secretary of Foreign Affairs Albert del Rosario (note 7).

31

Indonesia, Note Verbale, 8 July 2010, Doc. No. 480/POL-703/VII/10, available at: http://www. un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/idn_2010re_mys_vnm_e.pdf (accessed on 12 March 2014). 32

Philippines, Notification and Statement of Claim (note 7), paras. 2, 11 and 27.

33

For an overview, see Florian Dupuy/Pierre-Marie Dupuy, A Legal Analysis of China’s Historic Rights Claim in the South China Sea, AJIL 107 (2013), 124, 135–136; Peter A. Dutton, An Analysis of China’s Claim to Historic Rights in the South China Sea, in: Yann-huei Song/Zou Keyuan (eds.), Major Law and Policy Issues in the South China Sea: European and American Perspectives (2014), 57 et seq. 34 Art. 14 Exclusive Economic Zone and Continental Shelf Act, 26 June 1998, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/chn_1998_eez_act.pdf (accessed on 20 December 2013).

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edged that this section of the China 1998 Act is connected to China’s claim in the South China Sea with respect to the U-shaped line.35 A recent article distilled the ‘Chinese literature’ and official statements to three possible legal interpretations of the China’s U-shaped line: (1) “The maritime zones within the nine-dashed line are part of China’s historic waters;” (2) “China has sovereign historic rights over the islands in the South China Sea;” and (3) “Historical evidence shows that China is the natural sovereign in the South China Sea.”36 Florian Dupuy and Pierre-Marie Dupuy concede that other interpretations are available, giving as an example historic rights respecting fisheries, but dismiss these given “China’s assertive conduct.”37 Zhiguo Gao and Bing Bing Jia38 have provided a rich analysis of the relationship of the U-shaped line with history. They conclude that: the nine-dash line can best be defined, […] as a line to preserve both [China’s] title to territory and its historic rights. It has three meanings. First, it represents the title to the island groups it encloses. In other words, within the nine-dash line in the South China Sea, China has sovereignty over the islands and other insular features, and has sovereignty, sovereign rights, and jurisdiction – in accordance with UNCLOS – over the waters and seabed and subsoil adjacent to those islands and insular features. Second, it preserves Chinese historic rights in fishing and navigation, and such other marine activities as oil and gas developments in the waters and on the continental shelf surrounded by the line. Third, it is likely to allow for such residual functionality as to serve as potential maritime delimitation lines.39

The first of the three meanings put forward by Gao and Jia deals with insular features and historic title to territory. The second meaning is associated with ‘historic

35

Zou Keyuan, China’s U-Shaped Line in the South China Sea Revisited, ODIL 43 (2012), 18, 21.

36

Dupuy/Dupuy (note 33), 138–140.

37

Ibid., 138.

38

For an updated view by Dupuy/Dupuy (note 33), taking into account the Gao/Jia article (note 20), see Pierre-Marie Dupuy/Florian Dupuy, Legal Analysis of China’s Historic Rights Claim in the South China Sea as Combined with the Nine-Dash Line, paper presented at the 5th International Workshop (note 6). 39

Gao/Jia (note 20), 123–124.

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rights’, which Gao and Jia explain as being separate from historic title.40 They draw on statements in the Eritrea/Yemen (First Stage) Arbitration that historic rights are rights that fall short of territorial sovereignty.41 Historic waters, not referenced in the above decision, are associated by the authors with internal waters and they note that this is not what they consider as being within the U-shaped line.42 Examining the above arguments and focusing on rights and jurisdiction over ocean resources, rather than sovereignty over land territory, there are a limited number of possibilities respecting the interaction of the insular features, the UNCLOS resource regimes and historic claims to waters within the U-shaped line. First, is the situation where the insular features in the South China Sea enclosed within the U-shaped line are not under the sovereignty of China, in which case the resources within the line could be subject to China’s jurisdiction on the basis of a historic claim to the waters. Second, is the situation where some or all of the insular features enclosed by the Ushaped line are under the sovereignty of China in which case the ocean resources within the U-shaped line could be subject to China’s jurisdiction as a result of the applicable resource regime(s) of UNCLOS in combination with a historic claim to waters where, as a result of the island or rock situation and distance, the UNCLOS regime will not extend fully to the outer limit of the U-shaped line. Hence, a historic claim to waters by China would be a fall-back position. This understanding appears to be consistent with China’s April 2011 communication in which emphasis was placed on the insular features being entitled to 200 nm zones43 and Article 14 China 1998 Act, which places ‘historical rights’ in a residual position. This scenario is also important since the debate over historic claims to waters then becomes primarily a matter for bilateral delimitation with its neighbours as opposed to a historic claim to waters with a tentative connection to an adjacent coast. Dupuy and Dupuy, in a recently published article, dismiss the international legal validity of a Chinese historic claim to the waters and insular features in the South

40

Ibid., 121–122.

41

Permanent Court of Arbitration (PCA), Award of the Arbitral Tribunal in the First Stage of Proceedings (Territorial Souvereingty and Scope of the Dispute) (Eritrea, Yemen), 3 October 1998, reprinted in: ILM 40, 900, para. 126. 42

Gao/Jia (note 20), 109.

43

China, Note Verbale (note 29).

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China Sea associated with the U-shaped line.44 Peter Dutton, is somewhat less categorical, concluding that China’s historic claims to sovereignty or jurisdiction over waters within the U-shaped line is on weak footing, while as regards title to the insular features there is “strength in light of the relevant law.”45 Gao and Jia conclude that the U-shaped line has “a foundation in international law;”46 and that “[i]n the case of the South China Sea as enclosed by the nine-dash line, China’s historic title and rights have a continuing role to play.”47 The uncertainty of what is precisely being claimed within the U-shaped line by China, the experience that it is unlikely that all the evidence for and against a possible Chinese historic claim to the waters within the line is available for scrutiny, and the complexity of the application of the factors understood as being critical in making an evaluation of any historic claim to waters (as either historic waters or historic rights)48 leads to an unwillingness to make an evaluation.

III. Islands, Rocks and Low-tide Elevations49 There is a sharp distinction between contested sovereignty over a land formation surrounded by water (insular formation) and contested sovereignty over the water adjacent to the feature. It is the land that generates the offshore zone, thus the ‘ownership’ of an insular formation is paramount. There have been a series of international adjudications respecting contested ‘ownership’ over insular features. One such case was that before International Court 44

Dupuy/Dupuy (note 33), 138–141; and see Dupuy/Dupuy (note 38).

45

Dutton (note 33).

46

Gao/Jia (note 20), 98 and 123.

47

Ibid., 123.

48

See Juridical Regime of Historic Waters, Including Historic Bays, 9 March 1962, UN Doc. A/CN.4/143, reprinted in: Yearbook of the International Law Commission vol. II, 1962 (1964), 1; Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-appraisal (2008). 49

Parts of this section have been taken, with modification, from: Ted L. McDorman, The South China Sea after 2009: Clarity of Claims and Enhanced Prospects for Regional Cooperation?, Ocean Yearbook 24 (2010), 507, 511–512; Id., A Note on the 2009 Legal and Political Developments Concerning the Continental Shelf in the South China Sea, prepared for a May 2010 conference hosted by the National Institute for South China Sea Studies to be published in the proceedings.

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of Justice (ICJ) between Singapore and Malaysia.50 What these cases show is that there is a developing legal framework used by third-party adjudicative tribunals with the complexity of sorting out the facts of a situation at the heart of most disputes.51 Beyond the issue of territorial sovereignty, not all insular formations are equally capable of generating offshore ocean zones. With respect to insular features that are always above high tide, UNCLOS draws a distinction between: those that can legally generate a 12 nm territorial sea, a 200 nm EEZ and, where possible, a continental shelf area beyond 200 nms; and those features that are rocks that can legally generate only a 12 nm territorial sea.52 While some direction is provided in UNCLOS regarding how to differentiate between an island and rock, this is an area of significant uncertainty and debate.53 Low-tide elevations are distinct from insular features though they share the common characteristic of being naturally formed land and surrounded by water. Article 13 UNCLOS describes a low-tide elevation as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.”54 International adjudication indicates that it has not been established in law that low-tide elevations can be acquired or be subject to sovereignty in the same manner as islands or other land territory.55 Adjudications have ascribed sovereignty over a low-tide elevation based upon the territorial sea within which the feature exists.56 As made clear 50

International Court of Justice (ICJ), Case Concerning Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and Southern Ledge (Malaysia v. Singapore), Merits, Judgment of 23 May 2008, ICJ Reports 2008, 12. 51

For a review, see Jon Markham Van Dyke, Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary, ODIL 38 (2007), 157, 159–165; Junwu Pan, Toward a New Framework for Peaceful Settlement of China’s Territorial and Boundary Disputes (2009), 176–184. 52

Art. 121 UNCLOS.

53

The literature is vast, see e.g., Jon Markham Van Dyke/Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, ODIL 12 (1983), 265–284; Marius Gjetnes, The Spratlys: Are They Rocks or Islands?, ODIL 32 (2001), 191–204; and Victor Prescott/Clive Schofield, The Maritime Political Boundaries of the World (2nd ed. 2005), 57–91. 54

Art. 13 (1) UNCLOS.

55

ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment of 16 March 2001, ICJ Reports 2001, 40, paras. 205–206; ICJ Pedra Branca Case (note 50), paras. 295–296. 56

ICJ Pedra Branca Case (note 50), para. 297; and ICJ, (id.) Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, 624, paras. 182–183.

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in Article 13 (2) UNCLOS, not being an Article 121 UNCLOS feature, a low-tide elevation is not entitled to its own territorial sea, unless it is wholly or partially within 12 nms of a coast, in which case, a low-tide elevation may be used as a base point for the construction of the 12 nm territorial sea.57 Malaysia and Vietnam made clear its views in their 2009 submissions to the Commission that the relevant insular features within the Spratlys were either Article 121 UNCLOS rocks or low-tide elevations as none of the features were utilized in either the construction of the two State’s EEZ or outer limits of the continental shelf.58 The concurrent view of the Philippines can be gleaned from its Statement of Claim.59 In a 2010 note verbale, Indonesia commented on China’s U-shaped map and pointed to a number of statements made by Chinese delegates that small island features, i.e., rocks, are not entitled to zones beyond 12 nms, and that Indonesia was in agreement with these observations.60 The April 2011 response of China to the Philippines’ note verbale stated that “China’s Nansha [Spratly] Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.”61 It has been observed that: “This sentence […] states publicly for the first time the Chinese official position on the status of the Nansha Islands” that they “meet the requirements of Article 121 to have their own EEZ and continental shelf” and is “an indirect response” to Indonesia’s note.62 In its note verbale, China does not, however, distinguish among the various features that compose the Nansha Islands.

57 Art. 13 (2) UNCLOS; see also the ICJ Territorial and Maritime Dispute (note 56), para. 183, whether the International Court ascribed neither sovereignty nor an adjacent water area to low-tide elevations located beyond Colombia’s 12 nautical mile territorial sea. 58

Malaysia – Vietnam Joint Submission and Vietnam Submission (note 4).

59

Philippines, Notification and Statement of Claim (note 7), paras. 4, 10, 14, 20 and 24.

60

Indonesia, Note Verbale (note 31), para. 3.

61

China, Note Verbale (note 29), para.4.

62

Nguyen-Dang Thang/Nguyen Hong Thao, China’s Nine-Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes of the Philippines and China, ODIL 43 (2012), 35, 45.

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China’s position on islands and rocks also arose following Japan’s 2009 submission to the Commission63 as regards the legal status of Okinotorishima.64 China stated that Okinotorishima “is in fact a rock” and that it “cannot sustain human habitation or economic life” with the result that, pursuant to Article 121 (3) UNCLOS, no 200 nm EEZ or continental shelf beyond 200 nms can emanate from it.65 The Commission made it clear that it has “no role on matters relating to the legal interpretation of [A]rticle 121 of the Convention.”66 In 2012, the Commission by vote decided not to provide recommendations to Japan for the area in its submission relating to Okinotorishima.67

IV. Dispute Settlement under UNCLOS68 One of the major achievements of UNCLOS is its dispute settlement procedures and the provisions regarding compulsory adjudication for the resolution of disputes. While the negotiators of the Convention had hoped to entrench compulsory judicial

63

Japan’s Submission to the Commission on the Limits of the Continental Shelf, Executive Summary, November 2008, available at: http://www.un.org/depts/los/clcs_new/submissions_files/ jpn08/jpn_execsummary.pdf (accessed on 13 March 2014). 64 For an overview of the Okinotorishima controversy, see Yann-huei Song, Okinotorishima: A ‘Rock’ or an ‘Island’? Recent Maritime Boundary Controversy between Japan and Taiwan/China, in: Seoung-Yong Hong/Jon Markham Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (2009), 151–176. 65

China, Note Verbale, 6 February 2009, Doc. CML/2/2009, paras. 3–4, available at: http://www. un.org/depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf (accessed on 13 March 2014). 66

Commission on the Limits of the Continental Shelf (CLCS), Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, 20 April 2009, Doc. CLCS/62, para. 59, available at: http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/N09/307/58/PDF/N0930758.pdf?OpenElement (accessed on 13 March 2014). 67 CLCS, Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, 30 April 2012, Doc. CLCS/74, para. 19, available at: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N12/326/32/PDF/N1232632.pdf?OpenElement (accessed on 13 March 2014); id., CLCS, Summary of Recommendations of the Commission on the Limits on the Continental Shelf in regard to the Submission made by Japan on 2 November 2008, 19 April 2012, paras. 6, 15–20, available at: http://www.un.org/depts/los/clcs_new/submissions_ files/jpn08/com_sumrec_jpn_fin.pdf (accessed on 13 March 2014). 68 Parts of this section have been taken, with modification, from: Ted L. McDorman, Global Ocean Governance and International Adjudicative Dispute Resolution, Ocean & Coastal Management 43 (2000), 255, 259–260.

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settlement of oceans disputes into the Treaty, this proved to be unacceptable.69 What emerged is a system of alternative compulsory dispute resolution processes coupled with a number of explicit exemptions of certain types of disputes from compulsory dispute settlement procedures. ‘Flexibility’ and ‘options’ are good descriptive phrases for the dispute settlement process within UNCLOS. Indicative of the flexibility and options is Article 280 which provides that parties can agree to utilise which ever peaceful means they wish to resolve a dispute thereby avoiding the dispute settlement mechanisms under UNCLOS. Where avoidance is not desired, UNCLOS provides that a third-party adjudicative body, such as the ICJ, ITLOS, an Annex VII arbitral tribunal or an Annex VIII special arbitral tribunal can be employed.70 By means of a declaration, a State can pre-select which body it wishes to utilise or, when a dispute arises, the parties can agree on the appropriate body. Article 287 (5) UNCLOS directs that where parties cannot agree on the appropriate adjudicative body to resolve a dispute, arbitration is to be used. Subject to Article 280, compulsory adjudication using one of the above bodies is to be used by disputing States unless the issue in dispute is one explicitly excluded by Article 297 or the category of the dispute falls within Article 298 where a State can elect to exclude that category of dispute from compulsory adjudication.

A. The China/Philippines Arbitration: Establishing the Tribunal

Consistent with its rights under UNCLOS, including the Annex VII arbitration, the Philippines presented to China on 22 January 2013 a notification and Statement of Claim formally commencing the arbitral process.71 As neither State had availed themselves of the right under Article 297 UNCLOS to choose a specific procedure 69 The negotiation of the UNCLOS dispute settlement procedures is set out in detail by Andronico O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987); and see also Shabtai Rosenne/Louis B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V, (1989), 3–164 and 309–451; for a detailed analysis of the UNCLOS dispute settlement regime, see Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005). 70

Art. 287 (1) UNCLOS.

71

Philippines, Notification and Statement of Claim (note 7).

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for the settlement of disputes, the default procedure is the Annex VII arbitration.72 China’s initial response, amongst other things, referred to the contents of the 2002 Declaration respecting the acceptance by China and the ASEAN Member States that the relevant disputes were to be resolved through negotiation and that the parties were to refrain from taking actions that would complicate and aggravate the South China Sea issues.73 On 19 February 2013, China’s Ambassador to the Philippines formally “rejected and returned the Philippines’ Note Verbale and the attached notification” and indicated that the Philippines action ran counter to the 2002 Declaration and also contained “many grave errors both in fact and in law, and includes many false accusations against China.”74 Pursuant to the relevant provisions of Annex VII, the Philippines announced its arbitrator. As a result of China not naming an arbitrator, the Philippines requested the President of ITLOS do so, which occurred. This was followed by a further request to the ITLOS President to appoint the remaining arbitrators and the chair of the Tribunal.75 The Tribunal met in July 2013, and the Permanent Court of Arbitration was selected as the registry; and prepared draft rules of procedure. China indicated in a note verbale that “it does not accept the arbitration initiated by the Philippines” and that it would not participate in the proceedings.76 The Annex VII arbitration procedure has been activated twelve times.77 In three of these cases, the President of ITLOS 72

Art. 287 (5) UNCLOS.

73

China, Press Conference (note 9); and see the Declaration on the Conduct of Parties, (note 2) para. 5. 74

China, Press Conference (note 9).

75

Arbitrators Appointed in the Arbitral Proceedings Instituted by the Republic of the Philippines against the People’s Republic of China, ITLOS Press Release/191, 25 April 2013, available at: https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_191_E.pdf (accessed on 12 March 2014). 76

China’s Note Verbale is cited in: PCA Press Release, Arbitration between the Republic of the Philippines and the People’s Republic of China: Arbitral Tribunal Establishes Rules of Procedure and Initial Timetable, 27 August 2013, available via: http://www.pca-cpa.org/shownews.asp?ac=view&pag_ id=1261&nws_id=384 (accessed on 11 March 2014). 77 ITLOS, The M/V Saiga Case (Saint Vincent and the Grenadines v. Guinea), Prompt Release, Judgment of 4 December 1997, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/ case_no_1/judgment_041297_eng.pdf (accessed on 12 March 2014); id., Southern Bluefin Tuna Case (Australia/New Zealand v. Japan), Provisional Measures, 27 August 1999, available at: https://www. itlos.org/index.php?id=62 (accessed on 13 March 2014); see Arbitral Tribunal constituted under Annex VII of the UNCLOS, Southern Bluefin Tuna Case (Australia/New Zealand v. Japan), Award on Jurisdiction and Admissibility, 4 August 2000, available at: https://icsid.worldbank.org/ICSID/

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was involved in the appointment of arbitrators: the dispute between Bangladesh and India;78 the dispute between Argentine and Ghana;79 and the dispute between Mauritius and the United Kingdom.80

B. The China/Philippines Arbitration: Non-Appearance As noted above, China has indicated that it will not participate in the arbitration initiated by the Philippines. UNCLOS, Annex VII, Article 9, which is based upon

FrontServlet?requestType=ICSIDPublicationsRH&actionVal=ViewAnnouncePDF&Announceme ntType=archive&AnnounceNo=7_10.pdf (accessed on 13 March 2014); ITLOS, Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Union), 18 December 2000, available at: http://www.itlos.org/index.php?id=99 (accessed on 13 March 2014); PCA, MOX Plant Case (Ireland v. United Kingdom), 25 October 2001; id., Land Reclamation by Singapore in and around the Strait of Johor (Malaysia v. Singapore), Award on Agreed Terms, 1 September 2005; id., Barbados and Trinidad and Tobago (Barbados, Trinidad and Tobago), Arbitral Award of 11 April 2006; id., Guyana and Suriname (Guyana v. Suriname), Arbitral Award of 17 September 2007; id., Case concerning the Delimitation of the Maritime Boundary in the Bay of Bengal between Bangladesh and India (Bangladesh v. India), 8 October 2009; id., ARA Libertad Case between Argentina and Ghana (Argentina v. Ghana), 29 October 2012; id., Case concerning the Establishment by the United Kingdom of a Marine Protected Area around the Chagos Archipelago between Mauritius and United Kingdom (Mauritius v. United Kingdom), Procedural Order No. 2, 15 January 2013; ITLOS, Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment of 14 March 2012, available at: http://www.itlos.org/fileadmin/itlos/documents/ cases/case_no_16/1-C16_Judgment_14_02_2012.pdf (accessed on 12 March 2014); and id., The “Arctic Sunrise” Case (Netherlands v. Russian Federation), Provisional Measures, Order of 22 November 2013, available at: http://www.itlos.org/fileadmin/itlos/documents/cases/case_no.22/Order/C22_ Ord_22_11_2013_orig_Eng.pdf (accessed on 12 March 2014). 78

President of the Tribunal Appoints Three Arbitrators in the Arbitral Proceedings Instituted to Settle the Maritime Boundary Dispute between Bangladesh and India in the Bay of Bengal, ITLOS Press Release/143 of 8 March 2010, available at: http://www.itlos.org/fileadmin/itlos/documents/ press_releases_english/PR_143_E.pdf (accessed on 12 March 2014). 79

Three Arbitrators Appointed in the Arbitral Proceedings Instituted by the Argentine Republic Against the Republic of Ghana in Respect of a Dispute Concerning the Vessel ARA Libertad (emphasis in the original), ITLOS Press Release/189 of 5 February 2013, available at: http://www.itlos.org/ fileadmin/itlos/documents/press_releases_english/PR_189_E.pdf (accessed on 12 March 2014). 80 Three Arbitrators Appointed by the President of the Tribunal in the Arbitral Proceedings Instituted by Mauritius Against the United Kingdom in Respect of the Dispute Concerning the Marine Protected Area Related to the Chagos Archipelago, ITLOS Press Release/164 of 25 March 2011, available at: https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/press_164_eng.pdf (accessed on 12 March 2014).

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Article 53 Statute of the International Court of Justice (ICJ Statute),81 is clear that if a party to a dispute “does not appear before the arbitral tribunal or fails to defend its case,” the Tribunal may proceed if requested to do so by the other party. While there has been no situation of a State not appearing in previous Annex VII arbitrations, there are numerous examples of States not appearing either for procedural parts of a case (e.g. interim measures, jurisdiction, merits, compensation) or from all parts of the proceedings in cases before the ICJ. Three situations where the respondent State did not appear at all in the proceedings were: Iceland, in the Fisheries Jurisdiction Cases;82 France, in the Nuclear Tests Cases;83 and Iran, in the United States Diplomatic and Consular Staff Case.84 It has been noted that “informal submissions were made in each case.”85 While the United States did appear in the jurisdictional phase of the Military and Paramilitary Activities in and against Nicaragua Case, it did not appear in the merits phase.86 It has been stated about the Fisheries Cases that Iceland “set a precedent for the rash of non-appearances that followed.”87 In light of the announcement by the Russian Federation regarding the Annex VII Arbitration commenced in October 2013 (The Arctic Sunrise Case) that it “does not accept the arbitration procedure under Annex 81 Rosenne/Sohn (eds.) (note 69), 433; Statute of the International Court of Justice (annexed to the Charter of the United Nations), 26 June 1945, UNCIO 15, 355 (ICJ Statute). 82

ICJ, Fisheries Jurisdiction Case (Germany v. Iceland), Jurisdiction, Judgment of 2 February 1973, ICJ Reports 1973, 49, and Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3, 175; id., Fisheries Jurisdiction Case (United Kingdom v. Iceland), Jurisdiction, Judgment of 2 February 1973, ICJ Reports 1973, 3, and Merits, Judgment of 25 July 1974, ICJ Reports 1974, 3. For a succinct review of this aspect of these cases, see Jerome B. Elkind, Non-Appearance Before the International Court of Justice: Functional and Comparative Analysis (1984), 53–58. 83

ICJ, Nuclear Test Case (Australia v. France), Judgment of 20 December 1974, ICJ Reports 1974, 253 and id., Nuclear Test Case (New Zealand v. France), Judgment of 20 December 1974, ICJ Reports 1974, 457. For a succinct review of this aspect of these cases, see Elkind (note 82), 58–62. 84

ICJ, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment of 24 May 1980, ICJ Reports 1980, 3. 85 Mathias Goldman, International Courts and Tribunals, Non-Appearance, Max Planck Encyclopedia of Public International Law (2006), para. 6, available via: http://mpepil.com (accessed on 4 January 2014). For a succinct review of this aspect of these cases, see Elkind (note 82), 73–77. 86

ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. United States), Jurisdiction, ICJ Reports 1984, 392, and Merits, ICJ Reports 1986, 14. 87

Elkind (note 82), 57.

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VII” and will not participate in the ITLOS provisional measures proceedings,88 China’s stated non-appearance may also be a precedent for a ‘rash’ on subsequent nonappearances. In the context of non-appearance before the ICJ, the prevailing view is that a nonappearing State is a party to the case and, as such, is bound by the findings of the ICJ.89 The same situation would seem to exist respecting the Annex VII process, though the relevant wording in the Court’s Statute and Annex VII is different.90 A key part of Annex VII is in the last sentence of Article 9 which reads: “[b]efore making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” Again the wording carefully follows Article 53 (2) ICJ Statute. Unquestionably, a central question in the China-Philippines Arbitration is whether or not the tribunal has jurisdiction to hear the merits of the case. Of note is that in the Southern Bluefin Tuna Case, the Tribunal decided that it was without jurisdiction to deal with the merits.91 Jurisdiction is clearly a key issue in the Mauritius-United Kingdom Chagos Archipelago Case92 and potentially as well in The “Arctic Sunrise” Case.93

C. The Philippine Claim

In its Statement of Claim the Philippines has asked the Arbitral Tribunal to: 88 Russian Federation, Note Verbale, No. 11945, 22 October 2013, delivered to the Netherlands, which states that “the Russian Side does not accept the arbitration procedure under Annex VII […] initiated by the Netherlands […] and does not intend to participate in the proceedings before the International Tribunal for the Law of the Sea in respect of the request of […] the Netherlands for the prescription of provisional measures.” The Note Verbale is available at: http://www.itlos.org/fileadmin/ itlos/documents/cases/case_no.22/Note_verbale_Russian_Federation_eng.pdf (accessed on 12 March 2014); see further ITLOS, The “Arctic Sunrise” Case (note 77). 89

Stanimir A. Alexandrov, Non-Appearance before the International Court of Justice, Columbia Journal of Transnational Law 33 (1995), 41, 60–67. 90

Annex VII, Art. 11 UNCLOS, and Art. 59 ICJ-Statute; in the context of provisional measures under the UNCLOS, see The “Arctic Sunrise” Case (note 77), paras. 51–52, which also takes this view. 91

Southern Bluefin Tuna Case (note 77).

92

PCA, Case concerning the Establishment by the United Kingdom of a Marine Protected Area around the Chagos Archipelago (note 77). 93

ITLOS, The “Arctic Sunrise” Case, (note 77), paras. 39–45.

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(1) declare that the rights of both China and the Philippines to maritime areas are those set out in UNCLOS; (2) declare “that China’s maritime claims in the South China Sea based on its so-called ‘nine dash line’ are contrary to UNCLOS and invalid;” (3) require China to bring its domestic law into conformity with UNCLOS; (4) declare that Mischief Reef and McKennan Reef are submerged features that form part of the Philippines continental shelf and that China’s occupation of these features violates the sovereign rights of the Philippines and that China end its occupation of these features; (5) declare that Gaven Reef and Subi Reef are submerged features and not islands as defined in UNCLOS, are not located on China’s continental shelf, that China’s occupation of these features is unlawful and that China should terminate its occupation; (6) declare that Scarborough Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef are rocks as understood in Article 121 (3) UNCLOS and thus are only entitled to a 12 nm territorial sea and that China has unlawfully claimed maritime entitlements beyond 12 nms from these features; (7) require that China refrain from preventing Philippine fishing and other activities adjacent to or in the vicinity of Scarborough Shoal and Johnson Reef; (8) declare that the Philippines is entitled to a 12 nm territorial sea, 200 nm EEZ and continental shelf measured from its archipelagic baselines; (9) declare that China has unlawfully exploited resources within the EEZ and continental shelf of the Philippines and unlawfully prevented the Philippines from exploiting such resources within its EEZ and shelf; (10) declare that China has unlawfully interfered with the Philippines rights of navigation and other rights within and beyond 200 nm from the Philippines archipelagic baselines; and (11) require that China desist from the above noted unlawful activities.94

94

Philippines, Notification and Statement of Claim (note 7), para. 31.

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The Philippines asserts that all of the above involve the interpretation and application of UNCLOS and as a result that all the assertions are within the jurisdiction of the Tribunal to decide.95 Without unduly simplifying the requests of the Philippines, the Statement of Claim involves four primary questions: (1) are the only maritime rights available to a State those set out in UNCLOS with the consequence that the U-shaped line is without validity as a basis of a maritime claim; (2) are Mischief, McKennan, Gaven and Subi Reefs “submerged features” (lowtide elevations) on the continental shelf of the Philippines (in the case of Mischief and McKennan Reefs) or not on the continental shelf of China (in the case of Gaven Reef and Subi Reef); (3) how does Article 121 apply to Scarborough Shoal, Johnson, Cuarteon and Fiery Cross Reefs; and (4) is China exercising authority in areas that are solely within the Philippines 200 nm EEZ?

D. Jurisdiction

1. Exhaustion of Negotiations As part of its Statement of Claim the Philippines indicated that attempts had been made to resolve the disputes through negotiation but had failed and that the obligation in Article 283 of UNCLOS to exchange views had been met.96 In July 2013, the two sides engaged in a back-and-forth on whether negotiations had indeed been exhausted; with the Philippines presenting eight detailed points of the failed attempts

95

Ibid., para. 39.

96

Ibid., paras. 29–30.

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to resolve or manage the disputes,97 and China responding with its understanding of events including pointing out the cooperative activities that had taken place.98 The obligation to exchange views is not usually perceived as a major threshold to overcome. In past cases, where a party has raised the argument that there has been a refusal to continue negotiations, adjudicative bodies have indicated that the parties are not obligated to continue discussions or negotiations when a party concludes that the possibilities of settlement have been exhausted.99 The talks in September 2013 on the possibility of a legally binding ASEAN-China Code of Conduct are expected to continue, and may become relevant in the application of the Article 283 obligation and the exercise of jurisdiction by the Tribunal. The Philippine President echoing an earlier statement by the Foreign Affairs Secretary,100 referred to the conclusion of a Code of Conduct and the Arbitration with China as “a two-track complementary approach” to the resolution of the disputes in the South China Sea.101

2. Prior Agreed Dispute Settlement Process Article 281 (1) UNCLOS indicates that if an agreement exists between two parties that a matter should be resolved pursuant to that agreement, the dispute settlement procedures of UNCLOS are not available. The Tribunal in the Southern Bluefin Tuna Case based its decision that it lacked jurisdiction on this provision as a result of 97

Philippines, Response of the DFA Spokesperson (note 8).

98

China, Foreign Ministry Spokesperson Hau Chunying’s Remarks on the Philippines Statement on the South China Sea, 16 July 2013, available at: http://www.fmprc.gov.cn/eng/xwfw/s2510/t105 9343.shtml (accessed on 12 March 2014). 99 Klein (note 69), 62–64; and see also Igor V. Karaman, Dispute Resolution in the Law of the Sea (2012), 126–130. 100

Philippines, Secretary Del Rosario Says Phl Recourse to Arbitration a Friendly Attempt for Durable Solution to South China Sea Tension, 2 July 2013, available at: https://www.dfa.gov.ph/index.php/201306-27-21-50-36/dfa-releases/217-secretary-del-rosario-says-phl-recourse-to-arbitration-a-friendlyattempt-for-durable-solution-to-south-china-sea-tension (accessed on 12 March 2014). 101

Philippines, President Aquino Calls for Adherence to Rule of Law to Ensure Peace and Stability in the South China Sea, 10 October 2013, available at: http://www.gov.ph/2013/10/09/presidentaquino-calls-for-adherence-to-rule-of-law-to-ensure-peace-and-stability-in-the-south-china-sea/ (accessed on 12 March 2014).

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Article 16 of the tri-party 1993 Convention on the Conservation of Southern Bluefin Tuna.102 The Tribunal took the view that the existence of a process for dispute settlement in an agreement that dealt with the particular subject matter in dispute, even if that process did not involve compulsory adjudication and did not explicitly exclude recourse under UNCLOS, removed the subject matter from the compulsory adjudication procedures of UNCLOS.103 It is to be noted that in the Southern Bluefin Tuna Case, Japan vigorously objected to the jurisdiction of the Tribunal arguing that the 1993 Convention was both a specialised treaty and had been entered into subsequent to the finalisation of UNCLOS. It has been suggested104 that the 2002 Declaration could be an agreement that meets the meaning of Article 281 (1) UNCLOS and that paragraph 4 of the 2002 Declaration accomplishes the same result as Article 16 of the Southern Bluefin Tuna Convention: The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.105

This argument has not been directly raised by China although, as noted above, in statements about the Arbitration, Chinese spokespersons constantly refer to the contents of the DOC as indicative of the appropriate way for dealing with the dispute with the Philippines. 102 Art. 16 Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993, UNTS 1819, 359, reads: (1) If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. (2) Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. (3) In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention. 103

Klein (note 69), 35–43.

104

Yu Mincai, China’s Responses to the Compulsory Arbitration on the South China Sea Dispute: Legal Effects and Choice of Policy, ODIL 45 (2014), 1, 9. 105

Declaration on the Conduct of the Parties, (note 2) para. 4.

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3. Land Sovereignty China’s principal legal rebuttal to the Philippines has been that the claims and issues raised “are essentially concerned with maritime delimitation” and “inevitably involve sovereignty over certain relevant islands and reefs,” therefore “such issues of territorial sovereignty are not ones concerning the interpretation or application” of UNCLOS.106 In its Statement of Claim the Philippines expressly disclaim that they are seeking “a determination of which Party enjoys sovereignty over the islands claimed by both of them,”107 taking the view that the questions before the Tribunal are essentially abstract issues concerning the interpretation and application of UNCLOS as a whole; especially in the case of the relationship with the U-shaped line, Article 121 as regards the insular features, Article 13 concerning low-tide elevations, and alleged infringement by China with Philippine activities within its EEZ. As regards Article 121 UNCLOS, neither the ICJ nor an arbitral tribunal has ever been asked to deal with the application of Article 121 to a feature claimed by two (or more) States without first settling the issue of sovereignty. Moreover, the ICJ and arbitral tribunals have carefully avoided providing any direct guidance on the interpretation and application of Article 121.108 The wording in Article 121 defining rocks as a subset of islands was clearly a product of compromise and deliberate ambiguity.109 State practice has yet to coalesce around a particular understanding of Article 121, although there is well-developed case law on the impact of small insular features in maritime boundary delimitation.110 Whether or not an insular feature is a rock, is 106

China, Foreign Ministry Spokesperson Hua Chunying’s Remarks on the Philippines’ Efforts in Pushing for the Establishment of the Arbitral Tribunal in Relation to the Disputes between China and the Philippines in the South China Sea, 26 April 2013, available at: http://www.fmprc.gov.cn/eng/ xwfw/s2510/t1035577.shtml (accessed on 12 March 2014). 107

Philippines, Notification and Statement of Claim (note 7), para. 7.

108

In the Territorial and Maritime Dispute (note 56), para. 180, the ICJ, referring to an earlier decision, commented that: “[i]n the present case, the Court similarly concludes that it is not necessary to determine the precise status of the smaller islands, since any entitlement to maritime spaces which they might generate within the relevant area (outside the territorial sea) would entirely overlap with the entitlement to a continental shelf and exclusive economic zone”. 109 110

Van Dyke/Brooks (note 53); Gjetnes (note 53) and Prescott/Schofield (note 53).

See generally Victor Prescott/Gillian Triggs, Islands and Rocks and their Role in Maritime Delimitation, in: David A. Colson/Robert W. Smith (eds.), International Maritime Boundaries, vol. 5 (2005), 3245.

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not solely a factor of geography since Article 121 (3) defines a rock as being a feature “which cannot sustain human habitation or economic life of its own.” This wording may suggest the value of an analysis of the history of the use of the feature, thus involving an economic and or political dimension. One can surmise that the ICJ and tribunals have been reluctant to tread where States themselves have differing views. Regarding low-tide elevations, as noted above, Article 13 provides a physical definition as a feature only being above water at low tide. In the 2012 NicaraguaColombia Case the ICJ had to decide on whether certain features were a low-tide elevation or an Article 121 feature. Both States presented competing models and evidence. The Court said that it “has to make sure it has before it evidence sufficient to satisfy it that a maritime feature meets the test of being above water at high tide.”111 The Court accepted that only one feature was above high tide based on the evidence provided by the two States112 and commented that Colombia had “failed to prove” that any of the other features purported to be Article 121 islands were above high tide and thus they were regarded as low-tide elevations.113

4. China’s Article 298 UNCLOS Declaration As part of the flexibility and options that characterise UNCLOS dispute settlement regime are the optional exemptions from compulsory adjudication regarding certain categories of disputes that are set out in Article 298 (1).114 The optional exemptions may be exercised by a State through a declaration made at the time of signing, ratifying, and acceding to UNCLOS or at any time thereafter.115 The three categories of disputes are:

111

ICJ, Territorial and Maritime Dispute (note 56), para. 36.

112

Ibid., para. 37.

113

Ibid., para. 38.

114

Rosenne/Sohn (eds.) (note 69), 107–146; Klein (note 69), 121–123 and 227–315.

115

Art. 298 (1) UNCLOS.

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(1) “disputes concerning the interpretation or application of [A]rticles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles;”116 (2) “disputes concerning military activities […] disputes concerning law enforcement activities regarding the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under [A]rticle 297, paragraph 2 or 3;”117 and (3) “disputes in respect of which the Security Council […] is exercising the functions assigned to it by the Charter.”118 In August 2006, several months after China ratified UNCLOS, it submitted the following declaration: The Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a)(b) and (c) of Article 298 of the Convention.119

Over 25 other State parties to UNCLOS have made similar declarations under Article 298 including: Argentina, Australia, Belarus, Canada, Cape Verde, Cuba, Denmark, Equatorial Guinea, France, Ghana, Iceland, Norway, Korea, Palau, the Russian Federation, Thailand, and the United Kingdom.120 The Philippines in their Statement of Claim states that the issues in dispute are: whether the assertion by China of rights and jurisdiction within the U-shaped line are inconsistent with the provisions of UNCLOS concerning the territorial sea, EEZ and continental shelf; whether the named maritime features are rocks, islands or lowtide elevations which involves interpretation of Article 121; and whether China has violated Philippine rights of navigation and fishing in the EEZ of the Philippines.121

116

Art. 298 (1)(a)(i) UNCLOS.

117

Art.298 (1)(a)(ii) UNCLOS.

118

Art. 298 (1)(a)(iii) UNCLOS.

119

China, Declaration of 25 August 2006, available at: http://www.un.org/depts/los/convention_ agreements/convention_declarations.htm#China%20Upon%20ratification (accessed on 13 March 2014). 120 All the declarations are available at: http://www.un.org/depts/los/convention_agreements/ convention_declarations.htm#China%20Upon%20ratification (accessed on 12 March 2014). 121

Philippines, Notification and Statement of Claim (note 7), para. 39.

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As such, the Philippines concluded that none of its claims fall within China’s Article 298 Declaration.122 China has infrequently referred to its Article 298 Declaration in its communications. However, in 2013, China stated that the Article 298 Declaration was in addition to the land sovereignty issue claim referred to above (supra IV, D, 3) as being a basis for the arbitral panel being without jurisdiction.123 Natalie Klein has commented that: A State may try to raise the specific question of whether a particular feature is a rock or an island under Article 121 without asking a tribunal or court to be involved in the actual delimitation. […] Article 298 does not prima facie exclude disputes over the interpretation or application of Article 121 from compulsory procedures […]. However, a challenge to the jurisdiction of the tribunal or court would certainly be warranted on the basis that the question is inherently related to maritime delimitation and should be excluded due to the optional exception of one (or both) of the disputant States. […] To isolate one particular question pertaining to maritime delimitation for mandatory adjudication or arbitration deprives States from reaching agreement on their own accord. A decision by a court or tribunal on this specific issue denies States the full benefit of a right granted under the Convention.124

How should the interpretation of Article 298 (1)(a)(i), an exception, be approached – strictly, thus limiting the exception; or broadly, not unduly limiting the exception? A discourse on this matter and on the interpretative provisions (Articles 31 and 32) of the 1969 Vienna Convention on the Law of Treaties,125 taken to be the “rules of customary international law applicable to all treaties,”126 is beyond the scope of this article. It is worth noting, however, that the principal reason for the Article 298 exceptions was to protect State vital interests and that some States viewed this provision as so critical that without it the Convention was unacceptable.127

122

Ibid., para. 40.

123

China, Foreign Ministry Remarks (note 106).

124

Klein (note 69), 276. This situation described by Klein is further complicated if there is a sovereignty dispute respecting the insular feature in question. 125

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331.

126

Richard Gardiner, The Vienna Convention Rules on Treaty Interpretation, in: Duncan B. Hollis (ed.), The Oxford Guide to Treaties (2012), 475, 493. 127

Klein (note 69), 256.

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ITLOS commented briefly128 in The “Arctic Sunrise” Provisional Measures Case that Article 298 (1)(b), concerning law enforcement, “prima facie applies only” to disputes respecting law enforcement activities concerning marine scientific research and fisheries within a State’s EEZ, thus agreeing with the Netherlands view that the dispute in the Arctic Sunrise Case was not captured by Article 298.129

5. The U-Shaped Line and UNCLOS As stated earlier, the Philippines in its Statement of Claim asserts that “China’s maritime claims in the South China Sea based on its so-called ‘nine dashed line’ are contrary to UNCLOS and invalid.”130 Indonesia also commented in 2010 that “[t]he so-called ‘nine-dotted-lines map’ […] clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.”131 China has made no recent public comments on the U-shaped line and has not responded directly to the Philippines assertion of the relationship between UNCLOS and the U-shaped line. However, a spokesperson from the Chinese Ministry of Foreign Affairs on 15 September 2011 stated that: The UN Convention on the Law of the Sea does not entitle any country to extend its exclusive economic zone or continental shelf to the territory of another, and it does not restrain or deny a country’s right which is formed in history and abidingly upheld.132

Gao and Jia commented that: “the nine-dash line does not contradict the obligations undertaken by China under UNCLOS; rather, it supplements what is provided for in the Convention.”133 Furthermore, historic claims to waters, whether they be claims to historic waters and the exclusivity of rights attached thereto or claims to

128

Although it has limited relevance here, this is noteworthy.

129

ITLOS, The “Arctic Sunrise” Case (note 77), para. 45 and see also para. 43.

130

Philippines, Notification and Statement of Claim (note 7), para. 31, point 2.

131

Indonesia, Note Verbale (note 31).

132

China, Foreign Ministry Spokesperson Jian Yu’s Regular Press Conference, 15 September 2011, available at: http://www.fmprc.gov.cn/eng/xwfw/s2510/t860126.htm (accessed on 12 March 2014). 133

Gao/Jia (note 20), 99 and 123.

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historic rights as regards, for example, fishing, exist in the international law of the sea and are, in part, outside the scope of UNCLOS.134 Assessing the international legality of the U-shaped line is dependent upon what the line is designed to claim and this is uncertain. However, if the U-shaped line involves some type of historic claim to waters, the issue may not be whether UNCLOS precludes such a claim but whether there is sufficient evidence and practice to support the claim, it being understood that the burden of proof is on the claiming State and as such the burden is significant.135

V. Conclusion

It has long been recognised that if the numerous maritime features in the South China Sea could be categorised as submerged features, low-tide elevations, rocks or islands capable of generating 200 nm zones, then there would be clarity for the adjacent States respecting the areas of overlap between the mainland coasts and the insular features, irrespective of the ownership of the features. Malaysia and Vietnam made clear its views in their 2009 submissions to the Commission that the relevant features are Article 121 rocks or low-tide elevations. The concurrent view of the Philippines is apparent in its Statement of Claim. This leaves China; with the added complication of the U-shaped line. Unilaterally commencing the arbitration is obviously part of the Philippine strategy which may or may not be in conjunction with the other ASEAN Member States.136 This is not the place to speculate on what that strategy may be. It is worth noting that a commencement of discussions on a possibly binding Code of Conduct involving the ASEAN Member States and China has begun and that this occurred subsequent to the initiation of the arbitration. It remains to be seen whether the arbitration will result in a lessening of on-the-water tensions between China and the Philippines. The Arbitral Tribunal has fixed 30 March 2014 as the date of submission for the Memorial of the Philippines.137 The Philippines have been directed to address the 134

McDorman (note 19).

135

Ibid., 134. See also Clive Symmons, Rights and Jurisdiction over Resources and Obligations of Coastal States: Validity of Historic Rights Claims, paper presented at the 5th International Workshop (note 6). 136 See Ralf Emmers, ASEAN Neutrality and Unity over the South China Sea Disputes, paper presented at the 5th International Workshop (note 6). 137

Arbitration between the Philippines and the People’s Republic of China (note 76).

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jurisdiction of the Tribunal, the admissibility of the Philippines’ claim and the merits of the dispute. China has not indicated any intention to participate in the arbitration. The non-appearance of China can be decried as an undermining of the UNCLOS, compulsory third-party adjudication and the rule of law. At least one author has recommended that China should review its options and engage in the proceedings given that author’s analysis that China will be successful in arguing that the Tribunal is without jurisdiction.138 Indeed, it is difficult to suggest that China’s involvement in the arbitration would be anything but a positive for third party dispute settlement pursuant to UNCLOS. Nevertheless, based on past precedents, the international dispute resolution process, UNCLOS and the rule of law will survive China’s non-appearance in the arbitration. This is principally because, outside of the area of international trade, international adjudication is most effective when the States directly involved consent to the adjudication of the matter in dispute. Unilateral commencement of international adjudication, even if done pursuant to a treaty such as UNCLOS which allows for it, often creates significant resentment amongst the parties, may do little to resolve the underlying dispute and in the process brings into question the legitimacy of international adjudication;139 which occurs whether or not a respondent State appears. As regards the course of the Arbitration, it is axiomatic that the outcomes from international adjudication are difficult to predict. Unpredictability is a reason why States are reluctant to submit to such panels matters that are seen by a State as of critical political or economic importance. This was unquestionably the reasoning behind Iceland’s non-appearance in the 1970s Fisheries Cases. Unpredictability provides relief from any desire to assess the potential arguments respecting either jurisdiction or the merits that may arise in the arbitration. It can be expected that the Tribunal will be mindful of the factual backdrop respecting what the Philippines has requested and thus not be overly dazzled by how the requests have been framed and of the realities of the precarious nature of the legitimacy of international adjudication. As with all cases, the Tribunal will also undoubtedly take into account the implications of its work on future situations.

138 139

Mincai (note 104).

Interestingly, the Foreign Minister of the Philippines has referred to the Arbitration as a “friendly attempt to find a durable solution to the increasing tension in the South China Sea.” See Philippines, Secretary Says Recourse to Arbitration a Friendly Attempt for Durable Solution (note 100).

FOCUS INTERNATIONAL ENERGY LAW

Cross-Border Oil and Gas Pipelines in International Law SERGEI VINOGRADOV( AND GOKCE METE((

ABSTRACT: The paper provides an overview of different legal regimes and regulatory approaches related to the construction and operation of cross-border oil and gas pipelines. First, it analyses regional multilateral framework instruments and arrangements which determine the international legal regime of cross-border pipelines. Then some general legal principles, rules and enforcement mechanisms contained in multilateral agreements such as the United Nations Convention on the Law of the Sea and the Energy Charter Treaty are discussed. Relevant legal instruments of the European Union, which offer a set of norms applicable to cross-border petroleum transport, transit and infrastructure, will also be considered, as well as relevant environmental regulations and some human rights related instruments, which may affect crossborder pipeline projects. Although each cross-border pipeline project has its own legal regime, some typical models will be identified on the basis of pertinent State practice. It can be said that international law governing cross-border pipelines is becoming increasingly complex and diverse. This paper will emphasise the important role public international law is destined to play in the context of constructing more harmonised and coherent legal regimes governing cross-border pipeline construction and operation. KEYWORDS: UNCLOS, Energy Charter Treaty, Third Energy Package, General Agreements on Tariffs and Trade, Energy Community Treaty, Host Government Agreements, South-Stream Pipeline, North-Stream Pipeline, BTC Pipeline, CPC Pipeline

I. Introduction The law governing cross-border energy transport, transit or infrastructures is a complex combination of national, regional and international norms and principles. There are numerous international agreements between States, as well as between host ( Dr Sergei Vinogradov (LLB, PhD Moscow State University), is a Senior Lecturer at the Centre for Energy Petroleum and Mineral Law and Policy, University of Dundee, and Director of the LLM programme. ((

Attn. Gokce Mete (LLM Queen Mary, University of London), is a PhD Candidate at the Centre for Energy Petroleum and Mineral Law and Policy, University of Dundee.

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countries and private companies, concluded to facilitate individual cross-border pipeline projects. The terms and conditions of these arrangements vary greatly. As a rule, each pipeline project has its own unique legal regime, based on certain principles and rules of general international law, applicable regional instruments, norms of bilateral pipeline agreements, and provisions of commercial contracts between various private parties. This paper intends to provide a synopsis of some common principles which form the foundation of the patchwork of legal regimes and to present some typical legal approaches to regulating rights and obligations of different actors, primarily States, involved in cross-border pipeline projects.

II. International Legal Frameworks for Cross-Border Pipelines: An Overview A. Special International Agreements on Pipelines

There are various multilateral and bilateral instruments specifically concluded for or dealing with different aspects of cross-border petroleum transport and transit via pipelines.1 Most of these agreements are relatively recent, coinciding with the largescale offshore gas production in the North Sea, as well as significant increase in transmission of oil and gas across international boundaries generally. However, some of the pipeline agreements date back to the 1930s and 1940s. Among such early agreements is the one between Brazil and Bolivia concluded in 1938;2 another, a multilateral convention, was concluded by Argentina, Bolivia, Brazil, Paraguay and Uruguay in 1941.3 Their main purpose was to promote cross-border trade of petroleum via pipelines by creating a favourable taxation and investment regime.4 However, the cross-border pipelines built in the 1930s to 1950s in the Middle East were governed by agreements concluded between private companies and the respective 1

Sergei Vinogradov, Cross-Border Pipelines in International Law, Natural Resources and Environment 14 (1999–2000), 75, 76. 2 Agreement between the Governments of Brazil and Bolivia on the Exportation and Use of Bolivian Petroleum, 25 February 1938, UNTS 51, 256. 3 Convention on Construction of Oil Pipelines, 6 February 1941, reprinted in: Revista argentino de derecho internacional 4 (1941), 274. 4

Vinogradov (note 1), 76.

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governments.5 These arrangements were not always pipeline-specific as they addressed both the production and transportation of petroleum. Compared to these instruments, the first agreements between States were essentially declarations of intent, rather than functional legal frameworks for cross-border petroleum infrastructures. However, with the passage of time intergovernmental treaties became more concrete and detailed responding to the complexity of the legal and jurisdictional issues they had to address.6 Starting from the early 1970s a large number of agreements where concluded by States interested in developing pipeline projects, primarily in the North Sea region, the Middle East and North America. There are different types of modern intergovernmental pipeline-related agreements. Most of them are pipeline-specific, i.e. adopted in order to implement a particular cross-border project, such as a crude oil pipeline from Kirkuk (Iraq) to Ceyhan (Turkey)7 or a gas transportation system from Alaska and Northern Canada to the United States.8 The situation in the North Sea could serve as a good example of interstate legal arrangements with respect to construction and operation of submarine pipelines. Gas production on the continental shelf of the North Sea, which began in the early 1970s, required an extensive network of submarine pipelines, both for gathering and bringing it onshore. Most of these submarine pipelines, which originate in the Norwegian sector of the North Sea, are used for export of gas and cross international boundaries or delimitation lines of the continental shelves of different States.9 5

These agreements include e.g. “Transit Agreement between Iraq Petroleum Co. Ltd. (IPC) and the Syrian Government, dated 25 March 1931, and supplementary agreement dated 29 November 1955; Petroleum Agreement concluded between the Government of Saudi Arabia and Pacific Western Oil Corporation, dated 20 February 1949; Agreement and Convention signed by Trans-Arabian Pipeline Co. (TAPLINE) with the Government of Saudi Arabia, […] dated 24 October 1949 […]; with the Government of Trans-Jordan, dated 9 August 1946; with the British High Commissioner for Palestine, dated 7 January 1946,” UN Economic Commission for Europe, The Legal Status of International Gas Pipelines, UN Doc. ST/ECE/GAS/21 (1967), 2 footnote 1. 6

Vinogradov (note 1), 76.

7

Crude Oil Pipeline Agreement between the Government of the Turkish Republic and the Government of the Iraqi Republic, 27 August 1973, T.C. Resmi Gazete (Official Journal of the Republic of Turkey), 17 June 1975. 8 Agreement on Principles Applicable to a Northern Natural Gas Pipeline (with annexes), 20 September 1977, United States of America-Canada, UNTS 1230, 311; Exchange of Notes constituting an Agreement between the United States of America and Canada amending the Agreement of 20 September 1977 on Principles Applicable to Northern Natural Gas Pipeline, 6 June 1978, UNTS 1230, 340. 9

Vinogradov (note 1), 76.

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The number of international agreements related to cross-border gas pipelines in the North Sea is quite considerable. These agreements have much in common.10 They are predominantly bilateral, involving State producers of gas (Norway and the United Kingdom (UK)) and State consumers (Germany, Belgium, France). They contain in many respects similar provisions dealing with the issues of jurisdiction, pipeline ownership, operation, tariffs and taxation, and so forth.11 Alongside project-specific agreements, there are some broad ‘framework treaties,’ both bilateral and multilateral, which establish general principles and obligations of the parties with regard to all transboundary pipelines between them.12 Such agreements were concluded between the USA and Canada regarding transit pipelines,13 and between the UK and Norway relating to the laying, operation, and jurisdiction of interconnecting submarine pipelines.14

B. Regional Framework Arrangements

There have been several attempts to develop regional framework arrangements for cross-border pipelines and transit. One such agreement was concluded in 1996 by the former republics of the Soviet Union in order to attain a common approach to the transit regime of natural gas.15 However, this agreement is all but forgotten as it failed to achieve its declared main objective to ensure freedom of transit and to prevent 10

Ibid.

11

See e.g. Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Transmission of Petroleum by Pipeline from the Ekofisk Field and Neighbouring Areas to the United Kingdom, 22 May 1973, UNTS 885, 63; Agreement between the Government of the Kingdom of Norway and the Government of the Kingdom of Belgium relating to the Transmission of Gas from the Norwegian Continental Shelf and from other areas by Pipeline to the Kingdom of Belgium, 14 April 1988, Stortingsproposisjon (St.prp.) Nr. 148, 187–188. 12

Vinogradov (note 1), 76.

13

Agreement concerning Transit Pipelines, 28 January 1977, United States of America-Canada, UNTS 1086, 343. 14

Framework Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Laying, Operation and Jurisdiction of Inter-Connecting Submarine Pipelines, 25 August 1998, UNTS 2225, 171. 15 Agreement on the Implementation of Coordinated Policies in Natural Gas Transit, 12 April 1996, available at: http://cis.minsk.by/reestr/ru/index.html#reestr/view/text?doc=579 (accessed on 26 March 2014) (in Russian).

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unauthorised off-taking of gas. About the same time the European Commission (EC) under its Interstate Oil and Gas Transport to Europe (INOGATE) programme16 attempted to establish a similar regional legal framework for transport of hydrocarbons in the former Soviet countries but without Russia and bypassing it. As a result an Umbrella Agreement17 was concluded to support the construction, rehabilitation and effective operation of interstate oil and gas transportation systems in the region. Although in force since 2001, it remains mostly on paper. These unsuccessful efforts prompted another attempt to create a set of rules governing pipeline-related transit within the Commonwealth of Independent States (CIS).18

C. Multilateral Agreements

Finally, there are some truly multilateral legal instruments which address various aspects of cross-border energy transmission infrastructure, including pipelines. Among the most important such instruments is the 1982 UN Convention on the Law of the Sea (UNCLOS),19 which establishes the legal regime of submarine pipelines and rules on transit of land-locked States. The 1994 Energy Charter Treaty (ECT)20 governs international energy cooperation and, in particular, transit of energy materials and products. The ECT was launched as a pan-European cooperative framework but is gradually expanding to other regions.21 It is noteworthy that the countries of West Africa adopted their own agreement in this area, the 2003 Eco-

16

Interstate Oil and Gas Transport to Europe (INOGATE) Programme, information available at: http://www.inogate.org/ (accessed on 26 March 2014). 17 Umbrella Agreement on the Institutional Framework for the Establishment of Interstate Oil and Gas Transportation Systems, 22 July 1999, available at: http://www2.inogate.org/html/umbrellagr/ umbragr9.htm (accessed on 26 March 2014). 18

At the proposal of Armenia some Commonwealth of Independent States (CIS) Member States agreed to create a working group with a view to consider its draft agreement on transit via pipeline transport. See CIS, Press Release, available at: http://www.cis.minsk.by/news.php?id=1062 (accessed on 26 March 2014). The first meeting of the working group took place on 22 November 2013. 19

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). See infra, III.A.2. and III.B.4. 20 21

Energy Charter Treaty, 17 December 1994, UNTS 2080, 95. (ECT). See infra, IV.

See e.g. Energy Charter Secretariat, Energy Transit: The Multilateral Challenge (1998), available at: http://www.encharter.org/fileadmin/user_upload/document/Transit_-_Multilateral_Challenge_-_ 1998_-_ENG.pdf (accessed on 7 April 2014).

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nomic Community of West African States (ECOWAS) Energy Protocol, which is practically identical to the ECT.22 There exist other multilateral instruments which are relevant to cross-border petroleum infrastructures and must be complied with or taken into account in any related activities, such as multilateral environmental agreements (MEAs) and various ‘soft law’ documents of international organisations, such as recommendations and guidelines.23 Some of the key legal principles and norms governing the construction and operation of cross-border pipelines will be discussed next, followed by an illustration of the recent State practice.

III. General Legal Principles Applicable to Cross-Border Pipelines Among various issues relevant to the construction and operation of cross-border pipelines that require regulatory response, there are two areas where general international law has sufficiently evolved to provide a coherent set of legal principles and norms. These areas include the legal regime of submarine pipelines and the freedom of transit which has become particularly important in the context of pipelines that cross more than one international border and involve more than two States. These issues will be discussed in the following sub-sections.

A. The Freedom to Lay Submarine Pipelines

There are different types of submarine pipelines,24 whose legal regimes vary depending on their function and, in particular, their location. However, the focus of international law has always been on long-distance large-diameter pipelines which either carry petroleum, mostly gas, from offshore fields to onshore terminals in 22 See Economic Community of West African States (ECOWAS), ECOWAS Energy Protocol, 31 January 2003, Doc. A/P4/1/03, available at: http://www.comm.ecowas.int/sec/en/protocoles/WA_ EC_Protocol_English-_DEFINITIF.pdf (accessed on 26 March 2014). 23 24

Vinogradov (note 1), 75.

Id., Challenges of Nord Stream: Streamlining International Legal Frameworks and Regimes for Submarine Pipelines, German Yearbook of International Law 52 (2009), 241.

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another country, or are used to connect transmission infrastructures in different States separated by the sea.

1. The Geneva Conventions on the Law of the Sea The Geneva Conference on the Law of the Sea codified the “freedom to lay submarine cables and pipelines” as an important right of all States, “recognized by the general principles of international law” (Article 2 (3) High Seas Convention).25 Articles 26–29 High Seas Convention included other provisions mostly concerning protection of pipelines from breaking or injury. The Geneva Continental Shelf Convention26 in its turn provides for the right of all States to lay submarine pipelines on the continental shelf subject to the right of the coastal State to “take reasonable measures” for the exploration and exploitation of the continental shelf and its natural resources.27 Both conventions were replaced by the UNCLOS,28 adopted in 1982.

2. The UN Convention on the Law of the Sea The UNCLOS is an ‘umbrella treaty’ providing an all-embracing regulatory framework for the use of the oceans and their resources. As of September 2013, 166 countries and the European Union have joined in the Convention.29 The UNCLOS introduces numerous provisions applicable to both submarine and on-land pipelines. The legal regime of submarine pipelines depends on the status of the area within which they are located.30

25

Geneva Convention on the High Seas, 29 April 1958, UNTS 450, 11 (High Seas Convention).

26

Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311 (Continental Shelf Convention). 27

Art. 4 Continental Shelf Convention.

28

See Vinogradov (note 24).

29

See the current status of the UNCLOS (2014), available at: http://www.un.org/depts/los/ reference_files/status2010.pdf (accessed on 25 March 2014). 30

See Vinogradov (note 24); see also Rainer Lagoni, Pipelines, MPEPIL, available via: http://www. mpepil.com (accessed on 26 March 2014).

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Part II of the UNCLOS establishes the legal status and regime of the territorial sea, which falls under the coastal State’s sovereignty and its full control over pipelines entering its territory or territorial sea. The construction and operation of submarine pipelines in the territorial sea are subject to explicit consent of the coastal State and its domestic regulations. The legal regime of the high seas is determined by the provisions of Part VII and is based on the “freedom of the high seas” principle that entails free use of the high seas, including the right of all States to lay submarine pipelines and cables.31 Freedom of the high seas can only be exercised subject to the obligation of ‘due regard,’ aimed at protecting the interests of other States and legitimate uses of the sea.32 In case of submarine pipelines, this obligation primarily requires consideration of activities of other States related to the exploration and exploitation of mineral resources on the deep seabed, or the Area, that is “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction.”33 States must have “due regard to cables or pipelines already in position” and they shall not distort the possibility of repairing them.34 The contracting States’ rights and duties with respect to activities on the continental shelf (CS) and within the exclusive economic zone (EEZ) are defined in two separate parts of the UNCLOS: Parts VI and V, respectively. Nevertheless, crossborder submarine pipelines located in the EEZ are subject to the legal regime established for the CS.35 The norms regulating the CS include a general right of all States to lay submarine pipelines and conduct associated activities such as pipeline surveys or the maintenance and repair of pipelines.36 While laying the submarine pipeline on the CS of another State ‘due regard’ must be given to “cables or pipelines already in position.”37 The coastal State may not impede the laying or maintenance of such submarine pipelines. However, it has a right to take ‘reasonable measures’ with respect to the exploration and exploitation of its CS and protection of the marine environment.38 31

Art. 87 (1)(c) UNCLOS.

32

Art. 87 (2) UNCLOS.

33

Arts. 87 (2) and 1 (1)(1) UNCLOS.

34

Art. 79 (5) UNCLOS.

35

Art. 56 (3) UNCLOS.

36

Art. 79 (1) UNCLOS.

37

Art. 79 (5) UNCLOS.

38

Art. 79 (2) UNCLOS.

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At present, activities related to pipeline construction and operation take place mostly within the EEZ of coastal States, as in the case of the North Sea, Black Sea, Mediterranean and Baltic pipelines, including Nord Stream39 and South Stream.40 All States have a right to lay submarine pipelines across the EEZ of a coastal State provided that such pipelines are not part of the offshore operations or installations under the coastal State’s jurisdiction.41 The coastal State must exercise its rights and obligations in the EEZ with “due regard to the rights and duties of other States” and the provisions of the UNCLOS.42 At the same time, the States laying submarine pipelines in the EEZ shall ensure compliance “with the laws and regulations adopted by the coastal State in accordance with the Convention and other rules of international law.”43 An important limitation on the freedom to lay submarine pipelines is imposed by Article 79 (3) UNCLOS, according to which “the delineation of the course [...] on the continental shelf [within or outside the EEZ] is subject to the consent of the coastal State.” But while exercising its rights over the continental shelf, the coastal State may not infringe or unreasonably interfere with the rights and freedoms of other States.44 The requirement to obtain consent on the delineation of the pipeline route may be abused or made conditional on serious political or economic concessions. Importantly, Article 300 UNCLOS prohibits any abuse of rights and freedoms and requires from coastal States to fulfil their obligations in ‘good faith.’ Hence, where a coastal State obstructs the laying of submarine pipelines by imposing excessive conditions for the delineation of the course of the pipeline, the dispute settlement mechanisms of the UNCLOS might be invoked. The dispute settlement mechanisms provided for in Part XV include, among other means, international adjudication, arbitration, and special arbitration. Disputes arising in connection with the construction and operation of submarine pipelines fall within the binding compulsory procedures provided for in Section 2 of Part XV. 39

Factual information relating to the Nord Stream project is available at: http://www.nord-stream. com/en (accessed on 26 March 2014). 40

Factual information regarding the South Stream project is available at: http://www.south-stream. info/en/ (accessed on 26 March 2014). 41

Arts. 56 (1) and 58 (1) UNCLOS.

42

Art. 56 (2) UNCLOS.

43

Art. 58 (3) UNCLOS.

44

Art. 78 (2) UNCLOS.

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Certain exemptions from the compulsory settlement of disputes relating to the exercise by a coastal State of its sovereign rights and jurisdiction in the EEZ and CS are allowed in Article 297 UNCLOS. However, such exemptions explicitly exclude situations when “it is alleged that a coastal State has acted in contravention of the provisions” of the UNCLOS in regard to the freedoms and rights related, inter alia, to the laying of submarine pipelines or other internationally lawful uses of the sea.45 While the freedom to lay submarine pipelines on the high seas and across other States’ continental shelves is a well-established legal principle, an interesting issue arises where a pipeline is to traverse an undelimited maritime area claimed by two States. In the event alternative routes do not exist, and the disputing States choose to exercise their right to determine the delineation on the course, this might have considerable impact on the project. However, the options and remedies available to the State laying the pipeline remain untested.

B. The Freedom of Transit

1. Emergence of the Concept There are certain general legal rules that evolved over time, mostly as part of the international lex mercatoria, but also applicable to cross-border energy infrastructures. The 1919 Covenant of the League of Nations for the first time introduced two main principles with relevance to our subject matter – the principles of ‘freedom of transit’ and ‘equal treatment’ (or non-discrimination).46 Article 23 was aimed at securing and maintaining the “freedom of communications and of transit and equitable treatment for the commerce of all Members of the League.” The import of the right of free transit was further reiterated in the Barcelona Convention and Statute on Freedom of Transit (Barcelona Convention),47 which endorsed the rule of ‘non-discrimination’ and ‘reasonable transit tariffs’ and the parties’ obligation to facilitate transit.48 Al45

Art. 297 (1)(a) UNCLOS.

46

The Covenant of the League of Nations, 28 June 1919, reprinted in American Journal of International Law 13 (1919) Suppl., 128. 47 Preamble Barcelona Convention and Statute on Freedom of Transit, 20 April 1921, LNTS 7 (Barcelona Convention). 48

Arts. 2, 3 and 4 Barcelona Convention.

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though the Barcelona Convention did not apply to cross-border pipelines, which simply did not exist in the early 20th century, it may be asserted that its principal provisions have acquired the status of customary international law applicable to any transit-related activities.49

2. The General Agreement on Tariffs and Trade The general right of transit (applicable to all States) was later confirmed in Article V General Agreement on Tariffs and Trade (GATT 1947), a multilateral agreement regulating international trade.50 Half a century later the provisions of the GATT 1947 were incorporated into the GATT 1994 as a component of the World Trade Organization (WTO) Agreement with few alterations.51 The transit provisions, however, remained the same. The GATT 1994 does not differentiate between trade in energy and other goods. As such, Article V applies to the ‘transit of goods.’ Notwithstanding conflicting interpretations of its application to matters specific to energy transit (especially through fixed infrastructures),52 most authorities agree that it applies to transit of energy products, such as oil and gas, including network-bound petroleum.53 Article V GATT 1994 applies to ‘traffic in transit,’ which is defined in Article V (1) as “transit across the territory of a contracting party when the passage across such territory […] is only a portion of a complete journey beginning and terminating beyond the frontier of the contracting party across whose territory the traffic passes.” Although 49

Vinogradov (note 1), 25; Sir Elihu Lauterpacht, Freedom of Transit in International Law, Transactions of the Grotius Society 44 (1958), 313, 326, 329, 345–346; Christopher Hare/Jarrod Wong, A Passage Through India (and Beyond) or A Case of Love Thy Neighbour?, Leiden Journal of International Law 8 (1995), 315. 50

General Agreement on Tariffs and Trade, 30 October 1947, UNTS 55, 194 (GATT 1947).

51

General Agreement on Tariffs and Trade, 15 April 1994, UNTS 1867, 187 (GATT 1994); Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, UNTS 1867, 154. 52

See e.g. the speech of the former WTO Director-General Pascal Lamy at the 20th World Energy Congress, 15 November 2007, available at: http://www.wto.org/english/news_e/sppl_e/sppl80_e.htm (accessed on 26 March 2014). 53

Martha Roggenkamp, Transit of Network-Bound Energy: The European Experience, in: Thomas Wälde (ed.), The Energy Charter Treaty: An East-West Gateway for Investment and Trade (1997), 499, 506; Yulia Selivanova, Challenges for Multilateral Energy Trade Regulation: WTO And Energy Charter, Society of International Economic Law (SIEL), Second Biennial Global Conference, 8–10 July 2010, available via: http://www.sielnet.org (accessed on 1 April 2014).

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Article V establishes a general rule of freedom of transit, its scope is limited to “routes most convenient for international transit.”54 Nonetheless, there is no guidance on how to determine the ‘convenient routes;’ it is unclear who has a right to determine and whether this term refers to geographic convenience. This limitation also suggests that the GATT 1994 does not oblige its parties to construct or allow the construction of new energy infrastructure, as the freedom of transit is to be ensured only on existing routes. With respect to grid-bound energy transport, ‘available capacity’ in an already existing energy transmission line is the first thing to come to mind, in an attempt to interpret the term ‘convenience’ referred to in Article V GATT 1994.55 Article V (5) GATT 1994 reiterates the transit States’ obligations regarding nondiscrimination. It requires that “[n]o distinction shall be made which is based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport.”56 Traffic in transit shall not be subject to “unnecessary delays or restrictions.”57 “All charges and regulations imposed” by transit States must be “reasonable, having regard to the conditions of the transit.”58 Additionally, Article V (5) and (6) incorporates a ‘most-favoured-nation treatment’ (MFN) clause “with respect to all charges, regulations and formalities in connection with transit,” as well as with respect “to products which have been in transit through the territory of any contracting party.” The GATT/WTO transit provisions were designed to apply to its Member States, thus they do not introduce mandatory rules for non-State actors. Cross-border pipelines, however, are normally owned and operated by national or private companies. These companies tend to be powerful monopolies and they often have significant influence on pipeline operations. Although arguably (by analogy to Article XVII GATT 1994 on State-trading enterprises and Article VIII General Agreement on Trade in Services (GATS)59 on monopolies and exclusive suppliers) respective governments must ensure that companies observe the GATT rules with regard to interna54

Art. V (2) GATT 1994.

55

Danae Azaria, Energy Transit under the Energy Charter Treaty and the General Agreement on Tariffs and Trade, Journal of Energy and Natural Resources Law 27 (2009), 559, 571. 56

Art. V (2) GATT 1994.

57

Art. V (3) GATT 1994.

58

Art. V (4) GATT 1994.

59

General Agreement on Trade in Services, 15 April 1994, UNTS 1869, 183.

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tional trade of energy products through ‘fixed infrastructure,’ it is asserted that the GATT/WTO rules are silent on how non-compliance with its principles by such nonState participants could be effectively prevented.60 Transit issues arise and are being discussed under the WTO Accession Negotiations and are under consideration in the Doha Development Agenda.61 However, in its current state, the WTO and in particular its Article V GATT dealing with transit do not regulate pipeline-specific issues such as interruption of transit, hindrance of construction of new infrastructure and regulation of access to available capacity.62 Despite this, together with the Barcelona Convention, it remains the principal source of international law concerning general transit rights.63

3. The Convention on Transit Trade of Land-Locked States The 1965 Convention on Transit Trade of Land-Locked States (Transit Convention)64 was devoted exclusively to the special transit problems of land-locked States (LLS). “[T]he need of land-locked countries for adequate transit facilities in promoting international trade” is acknowledged in its preamble. Although the Convention does not directly refer to pipelines, the parties concerned may agree to include pipelines and gas lines, “when they are used for traffic in transit.”65 It is also emphasised 60 Mireille Cossy, Energy Trade and WTO Rules: Reflexions on Sovereignty over Natural Resources, Export Restrictions and Freedom of Transit, European Yearbook of International Economic Law 3 (2012), 281; see Selivanova (note 53). 61 For Doha Round deliberations see Communication from the European Communities, WTO Trade Facilitation – Strengthening WTO Rules on GATT Article V on Freedom of Transit, 30 September 2002, G/C/W/422; Proposal by The Former Yugoslav Republic of Macedonia, Mongolia, Switzerland and Swaziland, Transit – Third Revision of Textual Proposal, 26 June 2009, TN/TF/W/133/Rev.3; Communication from Egypt and Turkey, WTO Trade Facilitation – Discussion Paper on the Inclusion of the Goods Moved via Fixed Infrastructure Into the Definition of Traffic in Transit, 4 June 2012, TN/TF/W/179. For transit-related discussions at the WTO Accession Negotiations see Report of the Working Party on the Accession of Ukraine to the World Trade Organization, 25 January 2008, WT/ACC/UKR/152, para. 367; Ukraine – Schedule of Specific Commitments, 10 March 2008, GATS/SC/144. 62

See Vinogradov (note 24).

63

Id., Cross-Border Oil and Gas Pipelines: International Legal and Regulatory Regimes, Association of International Petroleum Negotiators (AIPN) Study Series (2001), 25. 64 Convention on Transit Trade of Land-Locked States, 8 July 1965, UNTS 597, 3 (Transit Convention). 65

Art. 1 (d)(iii) Transit Convention.

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that the Transit Convention does not provide a right to construct any infrastructure for the transit.66 As can be expected the key provisions of the Transit Convention are ‘freedom of transit,’67 ‘non-discrimination’68 and non-interruption except in cases of force majeure.69 In addition, administrative and customs measures must be adopted to ensure “free, uninterrupted and continuous traffic in transit.”70 The Transit Convention allows for certain important exceptions “on grounds of public health, security, and protection of intellectual property”71 and “in case of emergency endangering [the Parties’] political existence or [...] safety.”72 The application of the MFN clause is explicitly excluded, and the Convention’s implementation is based on reciprocity, a condition criticised by many land-locked States.73

4. The UN Convention on the Law of the Sea The UNCLOS (Part X) also deals with the issue of transit in the context of access of LLS to and from the sea. These provisions reflect the principles of the 1921 Barcelona Convention and the 1965 Transit Convention. Although Part X does not apply directly to pipelines, LLS and transit States may incorporate pipelines and gas lines as means of transport by an agreement between them.74

IV. The Energy Charter Treaty and the Draft Transit Protocol The Energy Charter Treaty (ECT)75 is the only multilateral treaty which creates a comprehensive general legal framework for long-term cooperation in the energy field, 66

Art. 1 (b) Transit Convention.

67

Art. 2 Transit Convention.

68

Arts. 2 (1) and 3 Transit Convention.

69

Art. 7 Transit Convention.

70

Art. 5 (1) Transit Convention.

71

Art. 11 (1) Transit Convention.

72

Art. 12 Transit Convention.

73

Art. 10 Transit Convention. See Vinogradov (note 63).

74

Art. 124 (2) UNCLOS.

75

Information on the ECT is available at: http://www.encharter.org/ (accessed on 26 March 2014).

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encompassing investment, trade, transit and environmental aspects of energy materials and products.76 The ECT was signed by 53 countries and the European Community, and was ratified by 47 “countries situated along the Central Asian, European and Trans-Caucasian energy transport routes,”77 including not only producer and consumer countries, but also transit States.78 Some States that are not yet WTO members are also among the ECT signatories.79 The ECT is the first multilateral instrument establishing detailed rules for secure and unimpeded transport of energy products and materials through pipelines, grids, and other means of transportation.80 The transit-related provisions of the ECT that are found primarily in Article 7 apply to the “Energy Transport Facilities” (ETF). ETF are defined as “high-pressure gas transmission pipelines, high-voltage electricity transmission grids and lines, crude oil transmission pipelines, coal slurry pipelines, oil product pipelines, and other fixed facilities specifically for handling Energy Materials and Products” (EMP).81 Article 7 deals with ‘through-transit’ involving two or more States. Although transit traditionally involves at least three States, relevant “provisions [of the ECT] apply even if only two states – the ‘transit State’ and either the state of origin or the state of destination – is a contracting party.”82 The definition of transit also includes those situations where the State of origin is also the State of destination.83

76 Vinogradov (note 1), 78; T. Elijah Ngurare, Legal and Institutional Implications of Cross-Border Water Pipelines in International Law: The Congo Cross-Border Water Pipeline Project (CWPP) Case Study, Centre for Energy, Petroleum and Mineral Law and Policy Annual Review 5 (2002), para. 3.3, available at: http://www.dundee.ac.uk/cepmlp/gateway/?news=27970 (accessed on 4 April 2014). 77

Ngurare (note 76), para. 3.3.

78

The Russian Federation signed the ECT and was applying it provisionally until 18 October 2009 inclusive when an official decision was made to withdraw from it. See ECT, FAQ: What is Russia’s status with the Energy Charter?, available at: http://www.encharter.org/index.php?id=18 (accessed on 26 March 2014). 79 As of March 2013, Azerbaijan, Belarus, Bosnia and Herzegovina, Kazakhstan, Turkmenistan and Uzbekistan are members of the ECT, but not of the WTO. With the exception of Turkmenistan, they are all observer governments to the WTO, though. The WTO member list is available at: http://www. wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (accessed on 27 March 2014). The ECT contracting parties list is available at: http://www.encharter.org/index.php?id=61 (accessed on 27 March 2014). 80

Vinogradov (note 1), 78.

81

Art. 7 (10)(b) ECT.

82

Ngurare (note 76), para. 3.3. See also Art. 7 (10)(a)(i), (ii) ECT.

83

Ngurare (note 76), para. 3.3. See also Art. 7 (10)(a)(ii) ECT.

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The transit provisions of the ECT apply to both on-land and offshore pipelines within the contracting parties’ jurisdiction,84 provided, however, that the rights and obligations stemming from customary international law and from existing agreements are respected.85 Transit-related provisions of the ECT are built on the fundamental provisions of Article V GATT. Its principles of freedom of transit, non-discrimination and reasonableness are embodied in Article 7. The ECT additionally adopts a national treatment principle, which requires EMP in transit to be treated no less favourably than EMP originating in or destined for the transit country itself,86 unless existing applicable international agreements provide otherwise. Article 7 obliges the contracting States to ‘facilitate the transit’ and to “secure established flows of [EMP].”87 Furthermore, the ECT parties have to ‘encourage relevant entities,’ such as companies operating transit networks, to co-operate in modernising ETF, in the development and operation of such facilities, in measures to mitigate the effects of interruptions in energy supply and in facilitating the interconnection of ETF.88 Freedom of transit is associated with both non-discriminatory use of existing infrastructure and the option to create additional transit capacity. According to Article 7 (4), States are required to not obstruct the creation of new capacity where carriage of EMP through existing infrastructure is unrealistic on commercial terms, unless the proposed activity is contrary to the applicable national legislation of a transit State. Such legislation may “include provisions on environmental protection, land use, safety, or technical standards,” provided that it is consistent with the principles of freedom of transit and non-discrimination.89 Although the parties are expected not to refuse the construction (or modification) of ETF or new or additional transit through existing ETF, there is an important exception to this requirement if the transit State can demonstrate that such activity would endanger either the security, or

84

Arts. 7 (10)(a)(i) and 7 (8) ECT.

85

Art. 7 (8) ECT.

86

Art. 7 (3) ECT.

87

Arts. 7 (1) and 7 (5) ECT.

88

Art. 7 (2)(a)–(d) ECT.

89

See ECT, Understanding 8, with respect to Art. 7 (4) ECT, in: Final Act of the European Energy Charter Conference, 16–17 December 1994, Understandings, para. 8, reprinted in: ECT Secretariat, The Energy Charter Treaty and Related Documents (2004), 24, 27, available at: http://www.encharter. org/fileadmin/user_upload/document/EN.pdf (accessed on 27 March 2014).

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efficiency, of its own energy systems.90 It must be noted that the ECT does not impose a mandatory third-party access to energy infrastructure, as the general obligation to secure established transit flows, ‘facilitate the transit’ and to ‘encourage’ cooperation between relevant entities do not amount to asserting unrestricted access to ETF.91 Transit countries are also under an obligation not to interrupt or reduce existing transit flows, even if there is a dispute with another country, until a special conciliation procedure for transit disputes provided by Article 7 (7) has been exhausted, or unless such a possibility is specifically envisaged in the contract governing such transit.92 Since different types of disputes may arise in connection with transit, the ECT provides for a range of mechanisms capable of resolving such disputes. Firstly, disputes between contracting parties concerning the application and interpretation of transit-related provisions (Article 7), including requests for new or additional transit, may be resolved in accordance with Article 27. In order to initiate this procedure the State which is a party to a dispute must first try to settle it through ‘diplomatic channels’ within a “reasonable period of time.”93 The unresolved dispute can be submitted to an ad hoc arbitration.94 Transit disputes between a contracting State and a foreign investor could be settled under Article 26. This provision is limited to breaches of legal obligations contained in Part III of the ECT regarding “Investment Promotion and Protection.”95 However, Article 7 is included in Part II ECT (‘Commerce’) and as such is not automatically covered by the dispute settlement procedure under Article 26. Nevertheless, a transit related dispute may at the same time constitute an investment dispute, as the term ‘investment’ applies to legal and contractual rights, permits or licences granted to undertake any economic activity in the energy sector including “land transport, transmission, distribution […] of energy materials and products.”96 According to Article 26 (1) disputes must be settled, if possible, amicably within a period of three months. 90

Art. 7 (5) ECT.

91

ECT, Understandings (note 89), para. 1 (b)(i).

92

Art. 7 (6) ECT.

93

Art. 27 (1), (2) ECT.

94

Art. 27 (2) ECT.

95

Art. 26 (1) ECT.

96

See Arts. 1 (6)(f) and 1 (5) ECT and the ECT Understanding in regard to Art. 1 (5) ECT (note 89), para. 2 (b)(iii).

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If consultations fail, the foreign investor may submit it to a domestic court or administrative tribunal of the host State. Alternatively, an investor can go directly to contractual or international arbitration. There are four options available: institutional arbitration under the International Centre for Settlement of Investment Disputes (ICSID) Convention,97 the ICSID Additional Facility Rules,98 the Arbitration Institute of Stockholm Chamber of Commerce (SCC) rules,99 and ad hoc arbitration under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules.100 The dispute must be decided in accordance with the provisions of the ECT and the rules and principles of international law.101 Finally, disputes between contracting parties over any matter arising from ‘existing transit’ can be resolved under the special ‘compulsory’ conciliation procedure in accordance with Article 7 (7). This procedure can be invoked unilaterally by a State party by notifying the Secretary-General of the ECT of the matter in dispute having exhausted all relevant contractual or other previously agreed dispute resolution remedies. The Secretary-General appoints a conciliator who seeks a resolution of the dispute or an agreement on a procedure to achieve such resolution. If it is unable to do so, the conciliator has a right to recommend a solution or the procedure to be adopted to find a resolution and could establish interim tariffs. These must be observed by the parties to the dispute for a period of twelve months or until the dispute is resolved, whichever is earlier. In practical terms, this procedure is aimed at preventing the transit State from interrupting or reducing the energy flow through its territory for a period of up to sixteen months. However, if the dispute is not settled by then, there is nothing in the ECT to prevent transit interruptions, other than triggering the conciliation procedure again by the aggrieved contracting party, provided that the 97 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, UNTS 575, 159 (ICSID Convention). 98 International Centre for Settlement of Investment Disputes (ICSID) Additional Facility Rules (2006), available at: https://icsid.worldbank.org/ICSID/StaticFiles/facility/AFR_English-final.pdf (accessed on 27 March 2014). 99 Arbitration Institute at the Stockholm Chamber of Commerce (SCC), Arbitration Rules (2010), available at: http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng%20 ARB%20TRYCK_1_100927.pdf (accessed on 27 March 2014). 100

UNCITRAL Rules on Arbitration (as revised in 2010), published in GA Res 65/22 of 6 December 2010, also available at: http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arbrules-revised-2010-e.pdf (accessed on 27 March 2014). 101

Art. 27 (3)(g) ECT.

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Secretary-General agrees to do so. It must be noted that the aggrieved contracting party involved in a transit dispute has a right to resort to the dispute settlement procedures under Articles 26 and 27, instead of using the conciliation procedure under Article 7. Although the latter offers a shorter and more expedient alternative to traditional arbitration, it has not been tested to date. Following the entry into force of the ECT, its parties, in view of the importance of energy transit, decided to develop a separate ‘multilateral transit framework’ as an additional agreement to the ECT. The aim was to establish an effective regime for secure flow of energy via existing and future cross-border transit infrastructure, including pipelines. By 2003 the drafting and negation process was concluded on almost all provisions of the future agreement and the Draft Transit Protocol (DTP) was practically finalised.102 The unresolved issues included the regulation of the auction-based procedure for booking long-term capacity, the establishment of new infrastructure, the calculation of tariffs and the Regional Economic Integration Organization (REIO) clause limiting the application of the Transit Protocol within the boundaries of the EU.103 The negotiation process, which was suspended in 2003, resumed in 2009 in response to new developments surrounding the unresolved uses. As a result, a modified version of the DTP emerged in 2010.104 The DTP primarily underscores the binding nature of obligations resulting from transit agreements. The States’ domestic legislation must provide effective and nondiscriminatory means for the assertion of claims and the enforcement of rights with respect to all types of transit agreements.105 No interruption, reduction or stoppage of established flows of EMP in transit should be allowed.106 Any unlawful taking of such

102 Final Act of the Energy Charter Conference with Respect to the Energy Charter Protocol on Transit, Draft Version, 31 October 2003 (DTP), available at: http://www.encharter.org/fileadmin/ user_upload/document/CC251.pdf (accessed on 26 March 2014). 103 According to Art. 20 DTP, provisions of the Transit Protocol are not applicable for transit through a single Member State but through the EU, a regional economic integration organisation, as a whole, whereas ‘transit’ within the meaning of Art. 7 ECT covers transit through each Member State, as well as through the EU. 104 Final Act of the Energy Charter Conference with Respect to the Energy Charter Protocol on Transit, Preliminary Draft, 22 January 2010, available at: http://www.encharter.org/fileadmin/user_ upload/document/TTG_87_ENG.pdf (accessed on 26 March 2014). 105

Art. 5 (1) and 5 (3) DTP.

106

Art. 6 (1) DTP.

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materials is also prohibited.107 The parties must take necessary measures to prevent and eliminate any such risks of accidental interruption, reduction or stoppage of transit and must assist the owners and/or operators in restoring proper conditions of transit.108 They are to immediately notify other contracting parties concerned of any such emergency.109 The formal Draft Protocol of 2003 provided for negotiated third party access to available capacity. It is an obligation to ensure that negotiations on requested access to available capacity are performed in good faith by owners and/or operators of ETF.110 The DTP provides that the existing user whose contract has expired “shall be given the first opportunity to accept the conditions offered for any such new request for that available capacity.”111 All charges imposed on transit through the parties’ areas shall be reasonable and in conformity with the principles of Article V GATT 1994.112 The requirement for transit tariffs shall not be discriminatory, and not affected by market distortions, in particular those resulting from abuse of a dominant position by any owner or operator of ETF used for transit.113 Thus, transit tariffs should be “objective, reasonable, transparent,” and cost-based, “including a reasonable rate of return.”114 The contracting parties are required to facilitate the construction, modification and operation of ETF if transit of EMP cannot be achieved on commercial terms by means of existing pipelines.115 International construction, operation and maintenance and other technical standards for ETF including relevant standards concerning the environment, health, safety and social aspects of such activities must apply.116 Nota107

Arts. 6 (2) and 16 DTP.

108

Art. 16 DTP.

109

Art. 16 (2) DTP.

110

Art. 8 (4) DPT.

111

Ibid. See Andrey Konoplyanik, Transit Provisions of the Energy Charter Treaty and draft Transit Protocol, Energy Charter Secretariat’s Conference on Energy Transit in Eurasia: Challenges and Perspectives, 19–20 October 2004, available at: http://www.encharter.org/fileadmin/user_upload/ Conferences/2004_Oct/Konoplyanik.pdf (accessed on 14 April 2014). 112

Art. 11 DTP.

113

Art. 10 (2) DTP.

114

Art. 10 (1)–(3) DTP.

115

Art. 9 DTP.

116

Art. 12 DTP.

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bly, the DTP establishes far-reaching implementation and compliance mechanisms including reporting to the Secretariat on all laws, regulations and other measures relevant for the implementation of the DTP.117 It is asserted that the DTP will help to remove the risks inherent in transit, increase the effectiveness of the international energy trade, and generally improve the security of demand, supply and infrastructure.118 However, in 2011 the Charter Conference, influenced by the EU position, decided to cancel the 2009 negotiation mandate.119 Presently, the ECT Secretariat is investigating the stakeholders’ views with regard to the prospect of the Transit Protocol, together with issues to be further addressed.120 In order to facilitate and improve the effectiveness of cross-border pipeline regimes the ECT Secretariat developed a number of non-binding Model Agreements. The first version of the Model Agreements for Cross-Border Pipelines, an Intergovernmental Agreement (IGA) and a Host Governmental Agreement (HGA), which were published in 2004,121 assisted Kazakhstan and Azerbaijan on the trans-Caspian Aktau-Baku transport system.122 The Model Agreements were further reviewed and updated in 2008.123 It is expected that the Model Agreements, when applied in practice, would provide an appropriate level of legal and fiscal stability (both in contract and law) needed to secure project investment in the shorter term and ensure the efficient performance of transit operations.

117

Arts. 18 (2) and (3) DTP.

118

Konoplyanik (note 111).

119

ECT Secretariat, Transit Protocol, available at: http://www.encharter.org/index.php?id=37 (accessed on 15 April 2014). 120

The ECT Secretariat’s strategy and its activities can be followed at the ECT homepage, available at: http://www.encharter.org/index.php?id=270 (accessed on 27 March 2014). 121

ECT, Intergovernmental and Host Government Agreements for Cross-Border Pipelines (2nd ed. 2008), available at: http://www.encharter.org/fileadmin/user_upload/document/ma-en.pdf (accessed on 27 March 2014). The original 2003 edition is no longer available at the ECT homepage. 122 ECT Secretariat, Energy Charter Model Agreements, available at: http://www.encharter.org/ index.php?id=38 (accessed on 27 March 2014). 123

ECT, Intergovernmental and Host Government Agreements (note 121).

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V. Applicable EU Law A. The Third Energy Package

Some legal instruments of the European Union apply to and increasingly influence cross-border pipeline construction and operation. They include, inter alia, the Gas Directive,124 which sets common rules for the internal market in natural gas, the Gas Regulation,125 which establishes conditions for access to the natural gas transmission networks, and the Regulation on the establishment of the Agency for the Cooperation of Energy Regulators.126 Together they constitute the Third Energy Package (TEP). Its stated objective is to improve the transparency of network operations and supplies, promote cross-border investment and energy trade, separate network operation of gas from supply activities, strengthen the independence of national regulators, increase competition and create a single market within the EU.127 The Gas Directive and Regulation, inter alia, apply to high pressure pipelines and the definition of ‘transmission’ incorporates transit pipelines.128 They establish common rules for the transmission, distribution, supply and storage of natural gas. The application of the TEP rules to cross-border pipelines, especially those which start outside the EU area, raises some serious legal and economic issues. On the one hand, the fact that pipelines are natural monopolies and that there are few entities that own and operate existing networks, makes pipelines vulnerable to abusive behaviour of such companies. Therefore, in order to enhance competition it was important for the EU to achieve independence and accessibility of energy transmission networks, as well as to ensure that allocation of capacity and congestion mechanisms are effectively managed. On the other hand, pipelines have large economies of scale (the bigger the capacity of a pipeline, the lower average total costs of moving petroleum) and the capital costs are significant. Thus, it is essential for a pipeline to utilise fully its throughput capacity and to guarantee security of supply. Pipeline companies, espe124

EC Directive 2009/73 of 13 July 2009, OJ 2009 L 211, 94 (Gas Directive).

125

EC Regulation 715/2009 of 13 July 2009, OJ 2009 L 211, 36 (Gas Regulation).

126

EC Regulation 713/2009 of 13 July 2009, OJ 2009 L 211, 1.

127

See the preambles of the Gas Regulation and the Gas Directive as well as Art 1 (a) Gas Regulation and Art. 40 (b) and (c) Gas Directive. 128

Art. 2 (1)(1) Gas Regulation and Art. 2 (3) Gas Directive.

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cially when embarking on a new project, need to plan for the volumes of supply contracts in advance and on a long-term basis. The lenders would be reluctant to invest in pipelines with significant spare capacity and uncertain resource base. One important provision of the Gas Directive affecting participants from third countries is Article 32, which imposes mandatory third party access (TPA) to the transmission systems and compels the EU Member States to implement TPA applicable to all eligible customers. However, mandatory TPA could be detrimental to the interests of non-EU States and their companies; this may inhibit their investment decisions or prolong the already extensive investment repayment period. The EU gas market legal regime is still evolving. At present all the pipelines crossing EU territory, including export pipelines destined for the European markets, have to comply with the TEP rules.129 However, exemptions from the application of the unbundling (Article 9 Gas Directive), regulated tariffs (Articles 41 (8) and (10) Gas Directive) and TPA (Article 32 Gas Directive) obligations of the Gas Directive may be allowed in respect of major new gas infrastructure (such as interconnectors, and liquid natural gas and storage facilities).130 Exemptions are also possible in the event of significant increases of capacity in existing infrastructure and its modifications which enable the development of new sources of gas supply.131 The exemptions must not be detrimental to competition.132 They are given for a defined period of time and could be settled as full or partial.133

129 See the answers given by Mr Oettinger on behalf of the Commission to the Parliamentary questions of 14 November 2013, available at: http://www.europarl.europa.eu/sides/getAllAnswers.do? reference=E-2013-010819&language=EN (accessed on 26 March 2014). See also Darya Korsunskaya, Update 1: Russia says South Stream pipeline agreements trump EU rules, 10 December 2013, available at: http://www.reuters.com/article/2013/12/10/russia-europe-gas-idUSL6N0JP2I120131210 (accessed on 26 March 2014). 130

Art. 36 Gas Directive.

131

Art. 36 (2) Gas Directive.

132

Art. 36 (1)(e) Gas Directive.

133

Art. 36 (1) Gas Directive.

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B. The Treaty Establishing the Energy Community

The Treaty Establishing the Energy Community (TEEC)134 was concluded between the EU and a number of countries in South-Eastern Europe. Its objective was to create an integrated legal mechanism for energy cooperation and to extend the acquis communautaire to the territories of some non-EU States.135 The acquis of the Energy Community incorporates the core EU legislation in the area of electricity, gas, environment, competition and renewables. By signing the TEEC the parties agreed to implement these rules and to establish a single mechanism for the ‘Network Energy.’136 The latter includes, inter alia, cross-border transmission and/or transportation of gas and electricity as well as transmission of crude oil and petroleum products.137 Since the Treaty embraces relevant EU rules, any violations of the latter, including the Gas Directive and Regulation, will be treated as a breach of the TEEC. This applies to such issues as ownership unbundling and TPA (to be effective from 1 January 2015) to the pipeline’s capacity.138

VI. Environmental Aspects of Cross-Border Pipelines Long-distance cross-border pipelines construction, either terrestrial or submarine, is usually a large-scale project associated with a magnitude of environmental and social impacts.139 Often pipelines have to be built trough sensitive areas, such as the Arctic, rain forest, or protected habitats. It is not surprising that this issue has become one of 134

Treaty Establishing the Energy Community, 25 October 2005, OJ 2005 L 198, 18 (TEEC).

135

Further details regarding the membership structure and the functioning of the Energy Community is available via: http://www.energy-community.org/ (accessed on 26 March 2014). 136

Art. 2 (2) TEEC. See also Decision No. 2008/03/MG-EnC of the Ministerial Council of the Energy Community concerning the implementation to the oil sector of certain provisions of the Treaty and the creation of an Energy Community Oil Forum, 1 December 2008, available at: http://www. energy-community.org/pls/portal/docs/296196.PDF (accessed on 26 March 2014). 137

Art. 3 (a) and (b) TEEC.

138

1 January 2015 is the general deadline for the implementation of the Third Energy Package in the Energy Community. See Art. 3 Decision D/2011/02/MC-EnC of the Ministerial Council of the Energy Community, 6 October 2011, available at: http://www.energy-community.org/pls/portal/ docs/1146182.PDF (accessed on 26 March 2014). 139

See e.g. Robert Goodland (ed.), Oil and Gas Pipelines, Social and Environmental Impact Assessment: State of the Art (2005).

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the key concerns and often a matter of increased public attention as demonstrated by the Nord Stream or the Chad-Cameroon oil pipeline projects.140 Thus, cross-border pipeline projects are not only subject to national environmental legal frameworks, but must take into account applicable international regulations, global and regional. Some environment-related provisions of the UNCLOS (Part XII) apply to the construction and operation of submarine pipelines. But this is not the only multilateral instrument relevant to this activity. There are numerous other global and regional MEAs. These environmental regimes, which include binding norms, soft-law obligations, conservation strategies, programmes and networks, may affect a pipeline project’s design and operation. For example, the 1992 Convention on Biological Diversity,141 the 1972 UN Educational, Scientific and Cultural Organisation (UNESCO) Convention for the Protection of the World Cultural and Natural Heritage,142 and the 1971 Ramsar Convention on Wetlands of International Importance143 taken together may impose restrictions on the choice of route or pipeline design. These conventions establish a system of protected areas and create institutional mechanisms for their preservation. Thus, it is reasonable to expect more stringent environmental requirements for pipeline projects seeking to operate within or traverse through such environmentally sensitive areas. Regional environmental conventions and related protocols contain more customised and comprehensive provisions applicable within a particular geographical area, such as the Baltic, Black or North seas. More than 143 countries participate in the UN Environment Programme (UNEP) Regional Seas Programme,144 which covers most of the maritime regions where submarine pipelines are located or planned. Although some of the regional maritime conventions, such as the Black Sea Convention,145 are silent on the issue of submarine pipelines, their general principles, such as 140

Rosa Orellana, The Chad-Cameroon Oil Pipeline, in: ibid., 17.

141

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79 (CBD).

142

Convention for the Protection of the World Cultural and Natural Heritage, 16 November 1972, UNTS 1037, 151. 143

Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, UNTS 996, 245 (Ramsar Convention). 144

Detailed information on the UN Environment Programme (UNEP) Regional Seas Programme is available at: http://www.unep.org/regionalseas (accessed on 26 March 2014). 145

Convention on the Protection of the Black Sea against Pollution, 21 April 1992, UNTS 1764, 3. The contracting parties are Bulgaria, Georgia, Romania, the Russian Federation, Turkey, and Ukraine.

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an obligation to take all necessary measures to protect the marine environment,146 undoubtedly apply to this activity as well. There are other regional regimes outside the UNEP Programme, such as the 1992 Helsinki Baltic Sea Convention (Helsinki Convention).147 It establishes a comprehensive environmental regime supported by an institutional mechanism in the form of the Helsinki Commission (HELCOM). The coastal States must apply the precautionary principle, Best Environmental Practice (BEP) and Best Available Technology (BAT).148 The provisions of the Framework Convention for the Caspian Sea (Tehran Convention)149 will have to be taken into consideration in any project to build a Trans-Caspian pipeline which has been debated during the last two decades. To summarise, these and other regional environmental regimes embrace wellestablished legal principles providing for the application of the precautionary approach, environmental impact assessments (EIAs) in a transboundary context, the ‘polluter pays’ principle, and public access to relevant information and participation in decision-making, which are of relevance to oil and gas pipeline projects. While these MEAs establish general legal frameworks which affect these activities indirectly, there are two regional protocols that apply to submarine pipelines, but only in the context of offshore petroleum exploration and production.150 However, one regional instrument the Espoo Convention on Environmental Impact Assessment in a Transboundary Context151 includes within its scope of application large-diameter transmission pipelines, both terrestrial and offshore. The 146

Art. V (2) Black Sea Convention.

147

Convention on the Protection of the Marine Environment of the Baltic Sea Area, 9 April 1992 (Helsinki Convention), available at: http://www.helcom.fi/Documents/About%20us/Convention% 20and%20commitments/Helsinki%20Convention/1992_Convention_1108.pdf (accessed on 26 March 2014). 148

Art. 3 (2) and (3) Helsinki Convention.

149

Framework Convention for the Protection of the Marine Environment of the Caspian Sea, 4 November 2003 (Tehran Convention), available at: http://www.tehranconvention.org/IMG/pdf/ Tehran_Convention_text_final_pdf.pdf (accessed on 26 March 2014). 150 Kuwait Protocol concerning Marine Pollution Resulting from Exploration and Exploitation of the Continental Shelf, 23 March 1989, UNTS 2065, 91; Madrid Protocol for the Protection of the Mediterranean Sea against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil, 14 October 1994, available at: http://195.97.36.231/dbases/ webdocs/BCP/ProtocolOffshore94_eng.pdf (accessed on 26 March 2014). 151

UN Economic Commission for Europe (UNECE) Convention on Environmental Impact Assessment in a Transboundary Context, 10 September 1992, UNTS 1989, 309 (Espoo Convention).

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Espoo Convention adopted under the auspices of the UN Economic Commission for Europe requires its parties to undertake an EIA, notify and effectively consult each other on all proposed projects that are likely to have a significant adverse environmental impact beyond the borders of the State under whose jurisdiction a proposed activity is envisaged to take place.152 The Espoo Convention also provides for a compulsory procedure through an ad hoc ‘inquiry commission’ on any issue where the concerned parties cannot agree on the probability of such significant adverse transboundary impact.153 In addition to that, in the European region cross-border pipelines may be subject to other constraints and requirements imposed by EU law, such as the Habitats Directive,154 the Birds Directive,155 and the Marine Strategy Framework Directive.156 The latter applies to the entire European region, as well as its sub-regions (North East Atlantic, Baltic, Mediterranean, and Black seas).157 The Environmental Liability Directive158 also contains requirements with respect to any pipeline project intended to operate within the EU. Similarly, the Environmental Impact Assessment Directive makes any project likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location subject to prior approval and EIA.159 Alongside traditional legal instruments, a considerable variety of standards and norms, such as technical guidelines of international organisations and financial institutions, apply to the construction and operation of cross-border pipelines. For instance, to ensure that the project meets most stringent environmental and social requirements, the South Stream company developed an Environmental and Social Impact Assessment Plan (ESIA) and an Environmental and Social Management Plan (ESMP) consistent with pertinent standards of the International Finance Corpora-

152

Arts. 3 and 5 Espoo Convention.

153

Appendix IV Espoo Convention.

154

EC Directive 92/43 of 21 May 1992, OJ 1992 L 206, 7.

155

EC Directive 2009/147 of 30 November 2009, OJ 2010 L 20, 7.

156

EC Directive 2008/56 of 17 June 2008, OJ 2008 L 164, 19 (Marine Strategy Framework Directive). 157

Art. 4 Marine Strategy Framework Directive.

158

EC Directive 2004/35 of 21 April 2004, OJ 2004 L 143, 56.

159

Art. 1 EC Directive 97/11 of 3 March 1997, OJ 1997 L 73, 5.

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tion (IFC).160 Environmental standards and guidelines developed by financial institutions were used in the Chad-Cameroon pipeline project. The World Bank’s (WB) support of the project was made conditional upon its compliance with the WB policies, including a mandatory environmental assessment.161

VII. Issues of Human Rights A cross-border pipeline project may be put under pressure in view of the host State’s obligations under human rights treaties. For instance, the Baku-Tbilisi-Ceyhan (BTC)162 oil pipeline in the Caucasus163 encountered strong opposition from some non-governmental organisations (NGOs) due to the project’s potential impact on “mechanisms for protecting human rights.”164 The criticism was focused in particular on the ‘stabilisation clause’ contained in the project agreements that allegedly put the rights of investors over human rights standards and discouraged the governments from taking action to improve the environmental and human rights of their citizens.165 The BTC consortium, together with the governments of Azerbaijan, Georgia and Turkey, issued a Joint Statement166 responding to these concerns. The Joint Statement 160 South Stream Transport B.V., White Paper: South Stream Offshore Pipeline: Russian Sector (2013), available at: http://www.south-stream-offshore.com/media/documents/pdf/en/2013/05/ ssttbv_white-paper-the-south-stream-offshore-pipeline-russian-sector_53_en_20130530_1.pdf (accessed on 26 March 2014). 161

Mohammed A. Bekhechi, The Chad-Cameroon Pipeline Project: Some Thoughts about the Legal Challenges and Lessons Learned from a World Bank-Financed Large Infrastructure Project, in: Lila Barrera-Hernández et al. (eds.), Energy Networks and the Law: Innovative Solutions in Changing Markets (2012), 78. 162 Factual information regarding the Baku-Tbilisi-Ceyhan project is available at: www.bp.com/ caspian (accessed on 26 March 2014). 163 Bede O. N. Nwete, Human Rights and the International Natural Resources Industry: Multinational Corporations and the BTC Pipeline Project: Any Hope for Human Rights and Sustainable Development?, Centre for Energy, Petroleum and Mineral Law and Policy Annual Review 8 (2004), available via: http://www.dundee.ac.uk/cepmlp/gateway/index.php?news=28014 (accessed on 15 April 2014). 164

Amnesty International, Human Rights on the Line: The Baku-Tbilisi-Ceyhan Pipeline Project, May 2003, 4, available at: http://www.amnesty.it/flex/cm/pages/ServeAttachment.php/L/IT/D/ D.0b96ce441f58e605741b/P/BLOB%3AID%3D59 (accessed on 26 March 2014). 165

Ibid. The process of public consultation, disclosure of project documents and States’ commitments regarding safety of the project facilities and employees were among other issues criticised by the NGOs. 166

BTC Implementation Commission, Joint Statement on BTC Pipeline Project, 16 May 2003, available at: http://subsites.bp.com/caspian/Joint%20Statement.pdf (accessed on 26 March 2014).

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assured the BTC’s observance of standards and principles established by the Universal Declaration of Human Rights,167 the European Convention on Human Rights,168 the Organisation for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises,169 and the Constitution of the International Labour Organisation.170 The Joint Statement formed part of the project legal framework. Furthermore, BP, the major shareholder in the project, adopted a voluntary Human Rights Undertaking, a legally binding document that, inter alia, contains a partial waiver of its right to receive compensation based on the economic equilibrium clause, with respect to host governments “actions required under human rights, labour rights and health and environmental treaties.”171 In a similar case, the Chad-Cameroon oil pipeline project172 was criticised by many NGOs on the grounds that the project undermines international human rights.173 In particular, the NGOs emphasised the discrepancy between the governments’ commitments under existing human rights treaties, including the 1981 African Charter on Human and Peoples’ Rights,174 and their obligations stemming from the stabilisation clause under project agreements.175 Although the consortium did not explicitly

167

Universal Declaration of Human Rights, GA Res. 217A (III) of 10 December 1948.

168

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5. 169 Organisation for Economic Cooperation and Development (OECD), OECD Guidelines for Multinational Enterprises, 27 June 2000, reprinted in: ILM 40, 237; the updated 2011 edition is available at: http://www.oecd.org/daf/inv/mne/48004323.pdf (accessed on 26 March 2014). 170 International Labour Organization (ILO), Constitution of the ILO, 1 April 1919, available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:62:0::NO:62:P62_LIST_ENTRIE_ID:2453907:NO (accessed on 15 April 2014). 171 Baku-Tbilisi-Ceyhan Pipeline Company, BTC Human Rights Undertaking, 22 September 2003, available at: http://subsites.bp.com/caspian/Human%20Rights%20Undertaking.pdf (accessed on 26 March 2014). 172 Factual information regarding the Chad-Cameroon oil pipeline project is available at: http:// web.worldbank.org/archive/website01210/WEB/0__MENUP.HTM (accessed on 26 March 2014). 173 Amnesty International, Contracting out of Human Rights: The Chad-Cameroon Pipeline Project, September 2005, available at: http://www.amnesty.org/en/library/asset/POL34/012/2005/ en/76f5b921-d4bf-11dd-8a23-d58a49c0d652/pol340122005en.pdf (accessed on 26 March 2014). 174

African Charter on Human and Peoples’ Rights, 27 June 1981, UNTS 1520, 217.

175

Amnesty International (note 173), 21–22.

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respond to this criticism, the IFC loan imposed stringent conditions on the observance of international environmental, safety, health and labour standards.176

VIII. Models of Cross-Border Pipeline Regimes While analysing various regulatory frameworks and regimes governing crossborder pipeline construction and operation, one can conclude that these regimes are becoming increasingly elaborate and sophisticated, owing to the complexity of legal and jurisdictional issues involved. Nevertheless, there is no single legal model which would invariably apply to different cross-border pipelines. These regimes differ depending on their location (terrestrial or submarine), the number of countries involved, and other factors. From the international legal perspective two most common models of cross-border pipeline arrangements can be identified: the connected national pipelines model and the integrated pipeline model.177

A. Connected National Pipelines Model

This model treats each ‘national’ section of the cross-border infrastructure as a distinct asset under the territorial jurisdiction of a respective State and mostly governed by its domestic law.178 Trans-national issues are regulated by agreements between the government, which is sponsoring the project, and the respective governments along the pipeline route as well as by contracts concluded between owners or operators of national sections.179 Each section of connected domestic pipelines are often owned and operated by that State or its entity, often jointly with foreign partners. Thus the operation of such pipeline will be “subject to a patchwork of national regulatory

176 “ExxonMobil said it could not comment on [the allegations of human right abuses], but it did say in a statement that it condemned human rights violations in any form,” BBC News Channel, Rights Fear over Giant Oil Scheme, 7 September 2005, available at: http://news.bbc.co.uk/1/hi/uk/4219804.stm (accessed on 13 May 2014). 177

Ngurare (note 76), para. 3.1; Vinogradov (note 1), 75.

178

Ngurare (note 76), para. 3.1; Vinogradov (note 1), 75.

179

Ngurare (note 76), para. 3.1; Vinogradov (note 1), 75.

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regimes”180 which may differ in many respects. Consequently, the connected national pipeline model may contribute to the uncertainty of the long-term success of the project, especially in countries with less developed legislative and contractual frameworks and high political risks.181

B. Integrated Pipelines Model

In this setting, a pipeline project that is developed and operates as a single unit may become a better option. This model usually requires “a system of interrelated agreements.”182 An intergovernmental treaty between all countries involved in the pipeline will be supplemented by agreements between a pipeline company and each individual country (the HGA), contracts between different companies within the pipeline project, as well as agreements between a pipeline company and commercial contractors involved. Although the legal regime of the integrated pipeline project is truly ‘international,’ it is typically a blend of international law instruments, commercial contracts and domestic laws,183 with the key elements being applied harmoniously in the entire system. These pipelines are often controlled by a single operator, a joint venture or a consortium. As a rule, an umbrella IGA aimed at creating a single, enforceable, project-specific legal regime along the entire pipeline lays down general rights and obligations of the respective States. The IGA is usually concluded for a specific pipeline, however, these project-specific agreements have to be consistent with general framework agreements, where they exist, applicable to all cross-border pipelines between the parties. The IGAs are supplemented by agreements signed between the host States and the project company.184 The HGA is designed to ensure that the commitments and obligations of the host governments contained in the IGA are enforceable by the pipeline entities. In most cases they are aimed at giving confidence to the investors and enabling them to acquire the rights necessary for the development, construction 180

Ngurare (note 76), para. 3.1; Vinogradov (note 1), 75.

181

Ngurare (note 76), para. 3.1.

182

Ibid., para. 3.2; Vinogradov (note 1), 75.

183

Ngurara (note 76), para. 3.2.

184

See ECT Model Host Governmental Agreement (note 121).

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and operation of the pipeline infrastructure. This is particularly true for projects developed within less advanced regulatory systems.185 Most IGAs and HGAs address similar issues including, inter alia, the project ownership, transport terms (tariffs and transit fees), the securing of right-of-way, the granting of permits and licenses, pipeline capacity allocation, the notification and mitigation of the effects of major interruptions, technical standards (including environmental and safety standards), taxation, metering and measuring and dispute settlement mechanisms.186 They may in some cases also contain provisions on abandonment and decommissioning.187 In an integrated pipeline model, the throughput capacity is commonly dedicated to owners of the pipeline (proportionally) which tend to be the producers of oil and gas. While there is an increasing trend to treat cross-border pipelines as a legal and factual unitary whole through the use of the integrated pipelines model,188 the connected national pipelines model is also employed, especially where a pipeline traverses a large number of States. It would be worthwhile here to illustrate some of the main elements of the existing and emerging cross-border pipelines’ legal regimes and their regulatory frameworks.

C. The Baku-Tbilisi-Ceyhan Pipeline

The BTC pipeline is a typical integrated pipeline model. Its legal structure consists of a trilateral IGA between Azerbaijan, Turkey, and Georgia,189 and separate bilateral 185 Paul Griffin, Transnational Gas Projects and Their Agreements, in: Martyn R. David (ed.), Natural Gas Agreements (2001), 87. 186

Ibid., 87–90; see also Michael Dulaney/Robert Merrick, Legal Issues in Cross-Border Oil and Gas Pipelines, Journal of Energy & Natural Resources Law 23 (2005), 247. 187

See, e.g., Art. 16 Framework Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway relating to the Laying, Operation and Jurisdiction of Inter-Connecting Submarine Pipelines; Arts. 3.14, 3.15 Host Government Agreement between and among the Government of the Azerbaijan Republic and [MEP Participants], 17 October 2000, available at: http://subsites.bp.com/caspian/BTC/Eng/agmt1/ agmt1.PDF (accessed on 29 March 2014); Art. 12 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Belgium relating to the Transmission of Natural Gas through a Pipeline between the United Kingdom of Great Britain and Northern Ireland Kingdom of Belgium, 10 December 1997, UNTS 2196, 32. 188 189

Lagoni (note 30), para. 3.

Agreement Among the Azerbaijan Republic, Georgia and the Republic of Turkey Relating to the Transportation of Petroleum via the Territories of the Azerbaijan Republic, Georgia and the Republic

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HGAs between a project company (BTC Co) and the respective governments.190 The IGA was ratified by the parliaments of each State and became part of their domestic law.191 The three HGAs have almost identical provisions and are all linked to the IGA, comprising an integral part of it. This means that any breach by a pipeline State of its obligations under the respective HGA may raise the question of its international responsibility under the IGA.192 The IGA contains mutual guarantees and assurances with respect to the implementation of the project. It endorses the key principles of international trade and investment treaties including freedom of transit and noninterruption of the flow of petroleum through the transport infrastructure.193 The States commit themselves to employ international safety and environmental standards and measures (not less stringent than those applied in the EU). A transparent and predictable taxation system must be established. In any cross-border pipeline project, taxation is a matter that requires adequate regulation. This is especially true for a single pipeline traversing two or more countries, as their economic feasibility can be disrupted by significant tax variations. The IGA established a special institutional mechanism, a commission consisting of two representatives from each party.194 Possible disputes between the parties may initially of Turkey through the Baku-Tbilisi-Ceyhan Main Export Pipeline, 18 November 1999 (BTC IGA), available at: http://subsites.bp.com/caspian/BTC/Eng/agmt4/agmt4.PDF (accessed on 27 March 2014). 190 Host Government Agreement between and among the Government of the Republic of Turkey and the State Oil Company of the Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd., Statoil BTC Caspian a.s., Ramco Hazar Energy Limited, Turkiye Petrolleri A.O., Unocal BTC Pipeline, Ltd., Itochu Oil Exploration (Azerbaijan) Inc., Delta Hess (BTC) Limited [MEP Participants], 19 October 2000, available at: http://www.foe.co.uk/sites/default/files/downloads/turkey_btc_agreement.pdf (accessed on 29 March 2014); Host Government Agreement between and among the Government of Georgia and the State Oil Company of the Azerbaijan Republic, BP Exploration (Caspian Sea) Ltd., Totalfinaelf E&P Caucasian Gas SA, LUKAgip N.V., Statoil Azerbaijan a.s., Naftiran Intertrade Co.(Nico) Limited, Turkish Petroleum Overseas Company Limited, 17 April 2002, available at: http://subsites.bp. com/caspian/SHA/Eng/HGA/Host%20Government%20Agreement%20Georgia%20(English).pdf (accessed on 29 March 2014); Host Government Agreement between and among the Government of the Azerbaijan Republic and [MEP Participants], 17 October 2000, available at: http://subsites.bp. com/caspian/BTC/Eng/agmt1/agmt1.PDF (accessed on 29 March 2014). 191 A. F. Munir Maniruzzaman, The Pursuit of Stability in International Energy Investment Contracts: A Critical Appraisal of the Emerging Trends, Journal of World Energy Law and Business 1 (2008), 121. 192

Ibid.

193

Art II (4)(iii) and Preamble, para. 3 BTC IGA.

194

Art. VI BTC IGA.

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be referred to the commission or be settled through diplomatic channels. Otherwise a binding and final ad hoc arbitration will be used by analogy to the provisions of Article 27 (3) ECT.195 The IGA also provides for an arbitral procedure for any investorState dispute that may arise in connection with the BTC project agreements.196

D. The Caspian Pipeline Consortium

Another example of a truly integrated cross-border pipeline system is the Caspian Pipeline Consortium (CPC). It was created in June 1992 by an IGA between Kazakhstan and Oman to build an export pipeline.197 It is noteworthy, that one party – Oman – was an investor rather than a pipeline State. Russia, a transit country, joined this agreement a month later by concluding an additional protocol.198 However, as a result of inadequate financing the CPC was reorganised in 1996 by a new agreement between the participating governments and eight international oil companies (IOCs), which arranged to finance the entire project.199 The CPC agreement is a unique legal instrument: It is neither a truly intergovernmental treaty, nor a commercial contract. It is a single document titled simply as “The Shareholder’s Restructuring Agreement.” This is a multifaceted legal document, which combines some elements of an IGA, a HGA and an international commercial contract, and even a company charter. It covers almost all principal issues normally addressed in a series of interrelated legal documents, both public and private. The 1996 CPC Agreement provides government assurances and guarantees necessary to ensure its successful implementation. The governments of Russia and Kazakhstan assured non-interference with the ability of the CPC to 195

Art. VIII (2) BTC IGA.

196

Art. VIII (3) BTC IGA.

197

Pipeline Consortium Agreement among the Government of the Republic of Kazakhstan and the Government of the Sultanate of Oman, 17 June 1992 (on file with the authors). 198 The Russian government agreed to join the project in July 1992 (ON 7/27/92), Platts Oilgram News, 15 July 1993. 199

Agreement on the Establishment of Closed Joint Stock Company “Caspian Pipeline Consortium-R” and Closed Joint Stock Company “Caspian Pipeline Consortium-K” and Caspian Pipeline Consortium Restructuring and Shareholders’ Agreement among the Government of the Russian Federation, the Government of the Republic of Kazakhstan, the Government of the Sultanate of Oman, Oman Oil Company Ltd. and Chevron Overseas Petroleum Inc., Open Joint Stock Oil Company Lukoil, Mobil Corporation, Open Joint Stock Oil Company Rosneft, Agip SPA, British Gas Exploration and Production Ltd., State Holding Company Munaigaz, Oryx Energy Company and Caspian Pipeline Consortium Ltd., 6 December 1996 (CPC Agreement) (on file with the authors).

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conduct its business and exercise its rights, either by them or their respective federal, regional and local bodies and government-owned entities, within the limits of their authority.200 The 1996 CPC Agreement, inter alia, tackles such issues as designation of IOCs, government shareholders and issuance of shares, State and producer companies’ obligations, tariffs, taxation and transportation services, access, construction and expansion, line fill obligations, commitment to use line for available volumes and terms, default and liability, waiver of immunity, dispute resolution, and so forth. Furthermore, two closed joint-stock companies, the Caspian Pipeline Consortium-K (CPC-K) and the Caspian Pipeline Consortium-R (CPC-R) were established replacing the initial project company Caspian Pipeline Consortium. The ‘economic equilibrium clause’ of the 1996 Agreement addresses the situation of possible changes in the taxation regime, currency conversion rights, or other legislative or executive actions.201 In such an event, the governments of Russia and Kazakhstan must discuss measures and take all possible steps within the limits of their authority under applicable legislation “to restore the previous economic situation” with respect to the CPC project. There is also a ‘stabilisation clause’ which guarantees the stability of “all fundamental and economic terms” including the rights related to use of land, taxes and environmental repercussions.202 The governments of both Kazakhstan and Russia issued decrees that approved the project and the establishment of CPC-K and CPC-R. The pipeline consortium was granted the exclusive rights to design, construct, own and operate the pipeline, as well as to set and collect tariffs. Two different sets of tariffs for the shareholders (and their affiliated shippers) and third parties were established. Each IOC member of the consortium is granted a preferential right to capacity for its equity production. Thus, the project is envisaged as a dedicated export pipeline, reserved for the exclusive use of its shareholders.203 The excess capacity (that is not nominated by equity shareholders in a given month) must be offered to other shareholders first and if none take it up within the waiting period, it may then be offered to third parties, at a different, but cost-reflective tariff. The 1996 CPC Agreement 200

Art. 7 (4)(2) CPC Agreement.

201

Art. 7 (4)(3) CPC Agreement.

202

Art. 7 (3)(1) CPC Agreement.

203

Art. 8 (2) CPC Agreement.

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provides that all the disputes, not resolved through negotiations, even those involving the two governments, will be referred to the arbitration procedure.204 Thus, the CPC is governed by a rather unique project-specific legal framework that will hardly be replicated in a different regulatory environment. The CPC has undergone some changes in its structure and regulation as a consequence of its capacity expansion. At some point its shareholders even considered some alternative options.205 However, all essential points of the expansion schedule were agreed upon in 2009. This resulted in substantial changes in the CPC structure, including adjustments to the shareholders agreements.206 In connection with the expansion project, the CPC consortium also signed cooperation agreements with the host regions in Russia traversed by the pipeline.207 The cooperation agreements primarily cover observance of environmental law and environmental mitigation with respect to the potential impact of the expansion. The regional governments in turn agreed to facilitate its implementation.208 Despite the unity of the regime, there may be differences in each country of the project, and even within one country, in regulatory structures and permit conditions. Predictability of national norms and potential obstacles, as well as forward planning of such local arrangements is essential, in particular for projects such as the CPC crossing several territories under the administrative power of regional authorities.

E. The Chad-Cameroon Pipeline

Similar to the BTC pipeline, the Chad-Cameroon pipeline is based on a bilateral IGA between Chad and Cameroon209 and the respective HGAs signed between each 204

Art. 11 (8) CPC Agreement.

205

Taipei Times, Interview: Tengiz oil placing hopes on expanded pipeline through Russia, spurning U.S.-backed alternative, 28 March 2004, available at: http://www.taipeitimes.com/News/biz/archives/ 2004/03/28/2003108099 (accessed on 26 March 2014). 206 Adrian Dellecker, Caspian Pipeline Consortium, Bellwether of Russia’s Investment Climate? (2008), 13, available via: http://www.ifri.org/?page=contribution-detail&id=5066&id_provenance=97 (accessed on 26 March 2014). 207 CPC Signs Cooperation Agreements with Regions before Expansion, 20 September 2010, available at: http://www.cpc.ru/EN/news/press/2010/Pages/10100920.aspx (accessed on 16 April 2014). 208 209

Ibid.

Bilateral Agreement between the Republic of Chad and Cameroon on the Construction and Use of a system of Transportation of Hydrocarbons, 8 February 1996, see Art. 1 (e) Loan Agreement

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government and their respective oil transportation companies (rather than one pipeline company).210 The IGA reaffirms the principle of freedom of transit, as it refers to the GATT, the Transit Convention and the UNCLOS in its preamble.211 The IGA provided the legal ground for the HGAs in the form of concession agreements. The HGAs regulate the rights and obligations of the participating governments and the companies regarding the construction, operation, and maintenance of the pipeline infrastructure through provisions on land use rights, tax regime, and employment of foreign personnel, applicable law and dispute settlement.212 The HGAs were approved by the parliaments of both countries.

F. The South Stream Pipeline

The South Stream project is the most recent example of a connected national pipelines model. It consists of an offshore section across the Black Sea and a series of connected terrestrial pipelines which traverse several countries in South-Eastern Europe. The offshore section runs through the EEZs of Russia, Turkey, and Bulgaria and is developed by an international consortium, the South Stream Transport B.V. Two separate agreements to build the submarine section were signed by Russia with Turkey and Bulgaria.213 The construction proceeds in compliance with applicable Turkish legislation. In 2013, a draft EIA report was submitted in accordance with the

(Petroleum Development and Pipeline Project) between Republic of Chad and International Bank for Reconstruction and Development (Loan Agreement), 29 March 2001, available at: http://web. worldbank.org/archive/website01210/WEB/IMAGES/TD_LA_EN.PDF (accessed on 16 April 2014). 210 COTCO Convention of Establishment concluded between COTCO and the Republic of Cameroon, 20 March 1998, see Art. 1 (n) Loan Agreement; TOTCO Convention of Establishment signed between the Republic of Chad and TOTCO, 10 July 1998, see Art. 1 (ddd) Loan Agreement. 211

Bekhechi (note 161).

212

Ibid., 82.

213

See South Stream, South Stream Offshore Pipeline: Turkish Sector Scoping Report, 17 July 2013, 10, available at: http://www.south-stream-offshore.com/media/documents/pdf/en/2013/ 07/ssttbv_scoping-report-turkish-sector_56_en_20130717.pdf (accessed on 16 April 2014); See South Stream, Bulgaria, Russia and Bulgaria signed the Intergovernmental Agreement of Cooperation within construction of a transit gas pipeline via Bulgaria, 18 January 2008, available via: http://www.southstream.info/en/partners/bulgaria/ (accessed on 16 April 2014).

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permitting procedures under Turkish law.214 The Russian and the Bulgarian EIA approving the investment proposal for the pipeline project published in 2014.215 The onshore section will cross Bulgaria, Serbia, Hungary, Slovenia, and Italy, with gas branches going to Croatia and the Republika Srpska. A set of bilateral IGAs between Russia and the respective countries were signed between 2008 and 2010.216 These are supplemented by agreements on cooperation between Gazprom and authorised national companies.217 Several joint companies based on essentially equal shares were established by Gazprom with local partners for every on-land section.218 These companies are registered in and incorporated under the applicable legislation of each State. Gazprom and Austrian OMV will also set up a similar joint project company, for the design, financing, construction and operation of a spur to Austria.219 The typical legal issues such as tariffs and transit fees, land use rights and access regime will be governed by national regulations of the State traversed by the pipeline.

214 Gazprom Export, South Stream Offshore pipeline in Turkish waters will have no negative environmental impact, 25 December 2013, available at: http://www.gazpromexport.com/en/press center/news/1185/ (accessed on 27 March 2014). 215

South Stream, Bulgarian Environmental Impact Assessment (EIA) approved for the South Stream Offshore Pipeline, 10 February 2014, available at: http://www.south-stream-offshore.com/news/pressreleases/bulgarian-environmental-impact-assessment-eia-approved-for-the-south-stream-offshorepipeline-37/ (accessed on 27 March 2014); id., Russian EIA for the South Stream Offshore Pipeline Approved, 17 March 2014, available at: http://www.south-stream-offshore.com/news/press-releases/ russian-eia-for-the-south-stream-offshore-pipeline-approved-46/ (accessed on 16 April 2014). 216 Intergovernmental agreements on the project implementation were signed with Austria, Bulgaria, Croatia, Greece, Hungary, Serbia and Slovenia, see South Stream, Project History, available via: http://www.south-stream.info/en/pipeline/history/ (accessed on 16 April 2014). 217 Gazprom signed bilateral agreements on cooperation within the project with the authorised national companies: Serbian Srbijagas, Hungarian Development Bank MFB, Bulgarian Energy Holding, Greek gas transmission system operator DESFA, and Austrian OMV, see South Stream, Project History, available via: http://www.south-stream.info/en/pipeline/history/ (accessed on 16 April 2014). 218 The following joint project companies were incorporated: South Stream Serbia (51 % owned by Gazprom, 49 % by Srbijagas), South Stream Hungary (Gazprom and Hungarian Development Bank MFB 50 % each), South Stream Greece (Gazprom and DESFA 50 % each) and South Stream Bulgaria (Gazprom and Bulgarian Energy Holding 50 % each) to implement the project in Serbia, Hungary, Greece and Bulgaria respectively, see South Stream, Project History, available via: http://www.southstream.info/en/pipeline/history/ (accessed on 16 April 2014). 219

Relevant information regarding the project’s structure is available at: http://www.south-stream. info/en/ (accessed on 27 March 2014).

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G. The Nord Stream Pipeline

One interesting example of a cross-border pipeline which is quite different from the mainstream State practice is Nord Stream, a submarine pipeline which crosses the Baltic Sea. Although the project was supported by the two most interested countries, Russia and Germany, no international treaty between them was concluded. Rather, the legal foundation of Nord Stream is formed by the private law contractual framework.220 The pipeline owner and operator, the international consortium Nord Stream AG, has applied and will continue to comply with relevant international legal principles, including provisions of the UNCLOS, some regional MEAs and EU law, as well as applicable national legislation.221

IX. Conclusion International law governing cross-border pipeline construction and operation is still evolving and becoming more complex and somewhat diverse. Although there is a great variety of instruments, mechanisms, and regimes, it can be asserted that some general legal principles, such as the freedom to lay submarine pipelines and the freedom of transit, have crystallised into customary international law. This does not of course eliminate certain ambiguity in terms of their interpretation and application. For example, the requirement of the coastal States’ consent in determining the pipeline route is susceptible to manipulation. Similarly, there is no common understanding of the freedom of transit as applied to cross-border energy infrastructure. While one may claim that this principle does govern energy products in transit through existing pipelines under agreements in force, there is no convincing evidence that the principle entails TPA to cross-border infrastructure. It is even more doubtful that the freedom of transit may provide legal grounds to insist on the expansion of the existing and construction of new transit capacity. 220 221

See Vinogradov (note 63).

“The planning, construction and operation of the pipeline will be carried out by Nord Stream AG under strict compliance with all applicable national and international legal regulations,” Dirk von Ameln, Preserving The Environment: Nord Stream-Pipeline Across the Baltic Sea, 29 January 2008, available at: http://www.victorbostinaru.ro/resurse/Preserving%20The%20Enviroment-Nord%20 Stream%20Pipeline%20Across%20The%20Baltic%20Sea.pdf (accessed on 16 April 2014).

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In view of the growing concerns over international energy trade and transport security, stability, and predictability, there is a need for a more coherent and comprehensive set of legal rules unequivocally interpreted and universally applied. Although the existing multilateral treaties such as the UNCLOS and the ECT provide some essential rules and enforcement mechanisms which apply to cross-border pipelines and transit, their effectiveness remains questionable at best. The transit-related provisions of the ECT are somewhat ambiguous, and the adoption of the Transit Protocol, intended as a means to enhance the transit regime, is highly unlikely in the near future. The relevant regulations of the EU and its Energy Community initiative have a serious but somewhat controversial impact on cross-border energy transport and transit. Some of its requirements, especially mandatory TPA and ownership unbundling, as applied to cross-border infrastructure originating outside the EU, may create unnecessary obstacles to new pipeline projects. There are potential legal controversies which may arise if TEP rules inflexibly apply to existing international pipeline agreements. Conventional international environmental regimes, to some extent, serve to minimise adverse environmental impacts of grid-bound transport of petroleum. However, there are some obvious gaps in existing framework environmental agreements, especially in treaties that protect maritime regions, where petroleum transportation activities increasingly take place. Most of them are inadequate in dealing with environmental problems associated with cross-border pipelines. Technical, health, and safety requirements are also not harmonised, and would most successfully serve their purpose if applied consistently. In this respect, uniform guidelines or codes of conduct should be developed under the auspices of a competent organisation. This practice would also entail widespread compliance with human rights principles and standards. There is a growing number of pipeline projects already completed or being implemented at present. Each project has its own distinct legal regime. In this regard, the ECT Model Agreements could help to standardise pipeline project arrangements, reduce negotiating risks and costs, create regulatory consistency, and thereby minimise problems associated with jurisdictional differences. In any event, every project legal framework, regardless whether it involves State or non-State entities, should be carefully drafted, taking into account the nature of the project and the level of development of the States involved. They should elaborate respective rights and obliga-

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tions of all stakeholders. Contracting parties should benefit from relevant legal instruments already in place (such as the UNCLOS and the ECT) by integrating their principles into project agreements. In order to increase feasibility and efficiency of these large-scale pipeline projects, stakeholders must ensure that best available environmental and technical standards are employed and observed for the entire life of the pipeline. There is an evident trend towards increased predictability, transparency, and security of cross-border energy flows, and public international law will continue to play a crucial role in the evolution of international legal regimes of crossborder pipelines.

The Installation of Submarine Power Cables under UNCLOS: Legal and Policy Issues TARA DAVENPORT(

ABSTRACT: The shift towards liberalisation in the world’s power markets, coupled with the power outages in North America and Europe in 2003 and growing demand in China and India have created a robust market for high-voltage direct current technology provided by submarine power cables. Further, submarine power cables are essential infrastructure for both offshore oil and gas platforms and renewable energy installations. This article examines the international law governing the installation of power cables and explores the legal and policy challenges that arise in the governance of such cables. It argues that some States have adopted regulations which are arguably contrary to international law and which can impede the development of this increasingly critical energy infrastructure. It advocates that many of these legal and policy challenges can be ameliorated through enhanced co-operation and dialogue between relevant stakeholders. KEYWORDS: Submarine Power Cables, Law of the Sea, Environment, Competing Uses, Wind Farms

I. Introduction There are two main types of submarine cables: submarine communications cables (communications cables) made out of fibre optics used to transmit data and submarine power cables (power cables) used to transmit electrical power from one location to another. Both are designed for underwater use and are usually laid on or buried under the seabed. However, power cables have often been described as “the unknown cousins” of communications cables.1 There is some truth to this statement. For (

Tara Davenport is a Global Associate at the Centre for International Law at the National University of Singapore, and is presently a graduate student at Yale Law School. The author would like to thank Joska Ferencz for his advice on this article. 1

Thomas Worzyk, Submarine Power Cables: Design, Installation, Repair, Environmental Aspects (2009), v.

108 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

example, it is estimated that over 95 % of the world’s telecommunications are provided by submarine fibre optic cables.2 The global cable network is composed of an estimated 213 independent cable systems amounting to approximately 877,122 kilometres (km) of fibre optic cables.3 The majority of countries now rely on submarine cables for their communications needs and as of mid-2012, and only 21 nations and territories remain unconnected to the fibre network with several of them having projects underway.4 It is therefore unsurprising that the United Nations (UN) has described such fibre optic cables as “critical communications infrastructure”5 which are “vitally important to the global economy and the national security of all States.”6 Submarine power cables, on the other hand, have developed at a slower rate, are not as widely used, and have historically been confined to certain regions. It is still a “niche market with few purchasers and even fewer manufacturers and installers.”7 However, recent developments may change this. The shift towards liberalisation in the world’s power markets, coupled with the power outages in North America and Europe in 2003 and growing demand in China and India “are converging to create a strong, diverse and growing market for high-voltage direct current technology.”8 Further, submarine power cables are also being used as the backbone for both renewable energy and offshore energy sectors. Indeed, it has been estimated that more than 1,100 new submarine electricity cable systems are planned from 2012 to 2020.9 2 Douglas Burnett/Tara Davenport/Robert Beckman, Introduction: Why Submarine Cables?, in: Douglas Burnett/Robert Beckman/Tara Davenport (eds.), Submarine Cables: The Handbook of Law and Policy (2014), 1, 2. 3

Ibid.

4

Ibid.

5

GA Res. 65/37A of 7 December 2010, para. 121.

6

Ibid., Preamble, para. 22.

7

Navigant Research, Submarine Electricity Transmission – HVDC and HVAC Submarine Power Cables: Supply Constraints, Demand Drivers, Technology Issues, Prominent Projects, Key Industry Players and Global Market (2013)(Navigant Research Report), available at: http://www.navigant research.com/research/submarine-electricity-transmission (accessed on 25 February 2014). 8 Amanda Hoel, HVDC Systems Gotland: the HVDC Pioneer, Power Engineering International, 1 July 2004, available at: http://www.powerengineeringint.com/articles/print/volume-12/issue-7/ features/hvdc-systems-gotland-the-hvdc-pioneer.html (accessed on 5 December 2013). 9

Transmission and Distribution World Magazine, More than 1,100 New Submarine Electricity Cable Systems Are Planned from 2012 to 2020, 26 December 2012, available at: http://tdworld.com/ underground-tampd/more-1100-new-submarine-electricity-cable-systems-are-planned-2012-2020 (accessed on 5 December 2013).

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Submarine power cables are emerging as critical infrastructure rapidly gaining an importance that is on par with its more well-known counterpart, the submarine communications cable. The 1982 United Nations Convention on the Law of the Sea (UNCLOS)10 sets out the legal framework governing submarine power cables, and provides the foundation for regulatory decisions made by States. However, the intensification of uses of oceans, coupled with an increasing awareness of the importance of the marine environment has created unique legal and policy challenges for the governance of submarine power cables. This has invariably tested the framework set out in UNCLOS. While challenges for the governance of power cables arise in all maritime zones, the more significant challenges occur in the Exclusive Economic Zone (EEZ) and continental shelf due to the sui generis nature of these zones in that the coastal State does not have sovereignty but sovereign rights. In this regard, this article will examine the legal and policy issues facing the installation of power cables in the EEZ and continental shelf. It will argue that many regulatory decisions taken in relation to power cables are inconsistent with UNCLOS and primarily stem from a lack of understanding and awareness on the nature and importance of power cables. The first step to addressing this is increased co-operation and dialogue between the cable industry and regulatory officials, which as this article will argue, is mandated by UNCLOS. Part II will give an overview of submarine power cables on the basis that a proper understanding of these cables is necessary before regulatory action can be taken. Part III will give a brief overview of the legal regime governing power cables, which will be followed by a discussion of the legal and policy challenges facing power cables not under the jurisdiction of coastal States (Part IV) and submarine power cables under the jurisdiction of coastal States (Part V). Finally, Part VI will conclude with some recommendations on how these challenges can be addressed.

10

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS).

110 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

II. An Overview of Submarine Power Cables A. Development and Uses of Submarine Power Cables

The genesis of the submarine cable can be traced to the early part of the 19th century and the development of the electric cable which used electricity to transmit and receive information over significant distances.11 In 1850, the first submarine telegraph cable, consisting of copper wires and gutta-percha, was laid between Dover and Calais.12 This began the era of the submarine communications cable, which evolved over time from the submarine telegraph cable, to the telephone cable and finally the fibre optic cable.13 The power cable has also had a long and varied history. The following sections trace the development and various uses of power cables.

1. Early Uses: Short-Haul Crossings The first electrically insulated cable was laid in 1811 across the Isar River in Bavaria, Germany.14 Historically, submarine power cables have been used to transport power over short distances across rivers, channels, straits, fjords or bays.15 Such cables are generally preferred to overhead cables because they are laid on the seabed and do not have a visual impact.16

11

Stewart Ash, The Development of Submarine Cables, in: Burnett/Beckman/Davenport (eds.) (note 2), 19, 20. 12

Ibid.

13

For a comprehensive discussion on the development of the submarine communications cable, also see ibid. 14 Malcolm Eccles/Joska Ferencz/Douglas Burnett, Submarine Power Cables, in: Burnett/Beckman/ Davenport (eds.) (note 2), 302. 15 International Cable Protection Committee (ICPC), About Submarine Power Cables, November 2011, available at: http://www.iscpc.org/publications/About_SubPower_Cables_2011.pdf (accessed on 5 December 2013). 16

Worzyk (note 1), 6.

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2. 1950s: Supply to Offshore Islands After the first power cable was laid in 1811 in the Isar River, the telegraph cable (the predecessor to the communications cable) dominated the industry. However, in 1950, high energy prices on the Swedish island of Gotland affected the local economy leading to depopulation and unemployment.17 Accordingly, in order to bolster the island’s industrial sector, the Swedish government commissioned the world’s first commercial high voltage direct current (HVDC) cable. In 1954, this cable, consisting of coaxial copper, and operating at 100 kilovolts (kV), was installed by the Swedish State Power Board to link Vastervik on the Swedish mainland over a distance of 98 km with Ygne on the island of Gotland.18 Power cables continue to be used to supply electrical power to offshore islands reducing reliance on diesel power generators located on the island. States with many interconnected islands such as Norway, the Philippines and Japan have traditionally used power cables to supply power to their islands.19

3. 1960s Onwards: Connection of Autonomous Grids In the 1960s, power cables began to be used to connect electrical grids of different countries.20 In 1961, a submarine HVDC power cable was constructed between France and England.21 In 1965, another international HVDC cable was laid between Sweden and Denmark.22 Since then, many national grids have been interconnected.23 The connection of autonomous grids has several advantages. For example, it enables power to be transferred in either direction to meet peak demand. By joining two markets together, surplus energy can be traded, thereby providing consumers with an 17

Hoel (note 8). For a more complete history of HVDC technology, see Owen Peake, The History of High Voltage Direct Current Transmission, 3rd Australian Engineering Heritage Conference 2009, available at: http://www.ipenz.org.nz/heritage/conference/papers/Peake_O.pdf (accessed on 5 December 2013). 18

Rainer Lagoni, Aspects of Submarine High Voltage Direct Current (HVDC) Cables (1998), 2.

19

Worzyk (note 1), 1.

20

Ibid., 3.

21

Peake (note 17), 4.

22

Lagoni (note 18), 2.

23

Worzyk (note 1), 3.

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efficient option as generation outputs can be optimised across the two markets.24 It also enables a grid relying on fossil and nuclear power to also use hydropower (i.e. facilitating the trading of ‘green power’ across borders).25

4. 1990s Onwards: Offshore Energy26 Submarine power cables are now also used to power offshore oil and gas platforms. Such platforms require a significant amount of power for a variety of activities relating to extraction.27 Because onboard power production is expensive, a number of platform operators utilise submarine power cables to supply power to offshore platforms.28 Similarly, renewable energy installations such as wind farms also use power cables.29 Wind turbines are connected to an electric service platform by a power cable which then transports the electricity to an onshore substation where the power is integrated into the grid.30

B. Types and Design of Submarine Power Cables

1. Types of Submarine Power Cables There are two types of submarine power cables, alternating current (AC) and direct current (DC) cables, although both are capable of carrying high voltage (HV) energy.31 The main distinction between AC and DC systems is the direction of the current – 24

Eccles/Ferencz/Burnett (note 14), 301.

25

Ibid.

26

See generally Wayne Nielsen/Tara Davenport, Submarine Cables and Offshore Energy, in: Burnett/Beckman/Davenport (eds.) (note 2), 351. 27

Worzyk (note 1), 5.

28

Ibid.

29

Bureau of Ocean Energy Management (BOEM), Offshore Wind Energy, available at: http:// www.boem.gov/Renewable-Energy-Program/Renewable-Energy-Guide/Offshore-Wind-Energy.aspx (accessed on 5 December 2013). 30

Ibid.

31

Eccles/Ferencz/Burnett (note 14), 307.

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in AC systems, the flow of electricity changes periodically whereas in DC systems, it only goes in one direction.32 Whether an AC system or DC system is used for power cables will depend largely on the distance to be crossed. DC systems are more efficient for long distances as compared to AC systems as “larger volumes of energy can be transported long distances with significantly fewer losses.”33 While AC power cables are more commonly used, DC cable systems have become more frequently installed between power grids or as transmission lines from distant offshore wind facilities to mainland grids, attributable to their “ability to carry power over long distances using only two cables (AC cable systems require three cables) with lower power losses.”34

2. Design There are a variety of different designs of power cables and the choice of design will depend on the business need and ultimate route selected.35 For example, environmental and seabed considerations are factors that may have a considerable impact on design.36 Unlike communications cables that have standard parts, each power cable system is unique and custom made to the required specifications.37 A power cable consists of a conductor made out of copper or aluminium, the insulation, the waterblocking sheath and armour.38 There are four basic types of insulation for power cables: (1) oil (2) butyl rubber (3) mass impregnated paper insulation and (4) plastic insulation, either cross-linked polyethylene (XLPE) or ethylene-propylene rubber (EPR).39 Oil filled cables were phased out in the 1990s due to environmental con-

32

Ibid., 305.

33

Ibid., 307.

34

Timothy Tricas/Andrew Gill, Effects of EMFs from Undersea Power Cables on Elasmobranchs and Other Marine Species, Study funded by the US Department of Interior, BOEM, Regulation and Enforcement, Pacific OCS Region (2011)(BOEM Report), 39, para. 4.1.2.3, available via: http://www. boem.gov/ (accessed on 5 December 2013). 35

Eccles/Ferencz/Burnett (note 14), 308–309.

36

Ibid.

37

Ibid., 301.

38

Worzyk (note 1), 9–48.

39

Eccles/Ferencz/Burnett (note 14), 302.

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cerns related to possible leakage if the cable was damaged.40 Today, mass impregnated paper or XLPE are most commonly used.41 The diameter of a power cable can go up to 300 mm depending on the current carrying capacity and the amount of armour protection and can weigh up to 140 kg per metre depending on the type of cable.42 In contrast, communications cables are much smaller, ranging between 17–50 millimetre (mm) wide and weighing up to 0.7 kg/m to 4.8 kg/m.43 Modern power cables have voltages up to 500 kVs or 500,000 volts and this currently represents the maximum voltage ceiling.44 Technological developments have enabled longer power cables. For example, the first HVDC power cable laid in 1954 between the Swedish mainland and the island of Gotland was 98 km.45 In 2008, the NordNed power cable between Norway and the Netherlands was installed at a length of 580 km.46

C. Installation of Submarine Power Cables

There are three main components to cable operations in ocean spaces, namely the surveying of cable routes, the laying of cables and the repair and or maintenance of cables. First, the surveying of the cable route is critical in the planning and preparation of a submarine power cable project.47 This consists of both a Desk-Top Study (DTS) and a Marine Route Survey.48 The DTS examines existing literature and publicly available information to determine the optimum route to be surveyed, taking into account 40

Ibid., 312.

41

Ibid.

42

ICPC (note 15).

43

Ibid.

44

Eccles/Ferencz/Burnett (note 14), 305.

45

Ibid., 303.

46

Swissinfo.ch, Record-breaking cable laid, 12 September 2008, available at: http://www.swissinfo. ch/eng/business/Record-breaking_cable_laid.html?cid=6918544 (accessed on 5 December 2013). 47 48

Worzyk (note 1), 152.

For a more comprehensive description of these processes, see Graham Evans/Monique Page, The Planning and Surveying of Submarine Cable Routes, in: Burnett/Beckman/Davenport (eds.) (note 2), 93.

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various factors including landing sites, seabed bathymetry and geology, fishing and anchoring uses, cable and pipeline crossings, permitting requirements of coastal States and boundaries.49 This is followed by an actual survey by specialised cable ships to “accurately determine the best route for the cable that minimizes hazards.”50 The second stage is cable-laying. The laying of power cables along a designated route is done by specially trained crew-members on custom built power cable laying vessels with large cable carousels that spool out the cable out of cable holds.51 There are approximately three to five power cable laying vessels in the world (compared to the approximately 42 cableships available for the laying and repair of fibre optic cables) and chartering such vessels must be done well in advance.52 For purposes of protecting the power cable, the installation may also involve burial of the cable underneath the seabed, or rock trenching or the use of articulated pipes as protective covering where necessary.53 The costs of installation of power cables are significant. For example, the installation of a HVDC cable linking Connecticut and Long Island in the United States (US) was estimated to be US$120 million dollars.54 Similarly, it was estimated that the cost of installing a HVDC system between Limestone and Glenbrook in New Zealand would be NZ$ 365 million.55 The third stage is repair and maintenance. Submarine power cables are vulnerable to a variety of threats from shipping, fishing and resource exploration or exploitation activities. The repair of such cables after damage is a highly specialised and demanding process.56 It generally involves mobilising the repair vessel (which are short in supply) and equipment, determining and identifying the location of the fault, recovering the faulted cable, repairing and testing it, followed by re-commissioning the cable in 49 Tara Davenport, Submarine Communications Cables and Law of the Sea: Problems in Law and Practice, Ocean Development and International Law 43 (3) (2012), 201, 203. 50

Eccles/Ferencz/Burnett (note 14), 309.

51

See generally Worzyk (note 1), 161–194; Eccles/Ferencz/Burnett (note 14), 312–314.

52

Ibid., 313.

53

Ibid., 314.

54

See Contact Energy New Zealand, Subsea Cable Preliminary Study, 8 January 2008, 14, available at: http://www.contactenergy.co.nz/web/pdf/our_projects/waikatowindfarm/june2008/R02_HMR_ Transmission_System_Consideration_of_Alternative_Appendix8.pdf (accessed on 4 March 2014). 55

Ibid.

56

Worzyk (note 1), 222–224; Eccles/Ferencz/Burnett (note 14), 315–320.

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service.57 In many ways, it is more complicated than repairs of communications cables, as each power cable is unique and requires a unique joint, in contrast to communications cables which can utilise a Universal Joint Kit.58 The importance of timely repairs cannot be underestimated. First, repairing a power cable has been estimated to cost approximately US$ 30 million or more.59 Second, power cables often connect islands to mainland electricity networks, or are used between countries. Repairs can sometimes take months and unlike communications cables, “restoration of service by other oceanic power cables is not available in the case of monopole HVDC and AC cables.”60 This could potentially leave whole communities without electrical power for several months.61

III. An Overview of the Legal Regime Governing Submarine Power Cables The international law governing submarine power cables is set out in four conventions. These are: (1) the 1884 Convention for the Protection of Submarine Telegraph Cables (1884 Cable Convention);62 (2) the 1958 Geneva Convention on the High Seas (High Seas Convention);63 (3) the 1958 Convention on Continental Shelf;64 and (4) UNCLOS. The 1884 Cable Convention only addresses the protection of submarine telegraph cables. In contrast, the 1958 Geneva Conventions on the High Seas and the Continental Shelf (the 1958 Geneva Conventions) and UNCLOS are wide-ranging trea57

Ibid., 317.

58

Ibid.

59

Transpower, Cook Strait Submarine Cable Protection Zone: An information brochure on the Submarine Cable Protection Zone across Cook Strait and how it affects mariners, fishers, divers and the public, February 2011, available at: https://www.transpower.co.nz/sites/default/files/publications/ resources/cook-strait-booklet-2011.pdf (accessed on 5 December 2013). 60

Eccles/Ferencz/Burnett (note 14), 312.

61

Ibid.

62

Convention for the Protection of Submarine Telegraph Cables, 14 March 1884, TS 380 (1884 Cable Convention). 63 64

Convention on the High Seas, 29 April 1958, UNTS 450, 11 (High Seas Convention).

Convention on the Continental Shelf, 29 April 1958, UNTS 499, 311 (Continental Shelf Convention).

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ties that deal with a whole gamut of law of the sea issues. These conventions cover both the protection of submarine cables (based on specific provisions in the 1884 Cable Convention)65 and the freedom to lay, repair and maintain such cables66 (this article will only address the latter). With regard to the type of submarine cables covered by these four conventions, it should be noted that the 1884 Cable Convention only applies to submarine communications cables used for communications and not submarine power cables.67 In contrast, the 1958 Geneva Conventions and UNCLOS apply to both types of cables. An examination of the drafting history of the 1956 Draft Articles on the Law of the Sea by the International Law Commission (ILC), which formed the basis of the 1958 Geneva Conventions and consequently UNCLOS, is instructive.68 The ILC, which met eight times in the five years before it produced the 1956 Draft Articles, viewed the legal regime governing submarine cables to be confined to submarine telegraph or telephone cables up until 1955.69 However, as mentioned above, the first submarine HVDC cable was installed by Sweden between its mainland and the island of Gotland in 1954.70 In 1956, Sweden, Norway and the United Kingdom (UK) pointed out to the ILC that “with modern technical resources, it is also possible to transmit electric power under the sea by high tension cables.”71 It was therefore proposed that the words “high tension power cable” be added to the draft articles on submarine cables. In the 1956 Draft Articles, Article 61 (1) accordingly stated that “All States shall be entitled to lay telegraph, telephone or high-voltage power cables

65

Arts. II, IV and V 1884 Cable Convention were incorporated into Arts. 27, 28 and 29 High Seas Convention and Arts. 113, 114 and 115 UNCLOS. 66

Davenport (note 49), 203.

67

The title of the 1884 Cable Convention explicitly mentions “submarine telegraph cables” (emphasis added) and there is no mention of “high voltage cables”. 68 For a more detailed description of the International Law Commission (ILC) and its role in the development of the law on submarine cables, see Davenport (note 49), 203–204. 69

A review of the records of the ILC’s second, third, fifth and seventh sessions confirms this.

70

Lagoni (note 18), 2.

71

See ILC, Summary of Replies from Governments and Conclusions of the Special Rapporteur, 1 May 1956, UN Doc. A/CN.4/Ser.A/1956/Add.1, in: Yearbook of the International Law Commission (1956), vol. II, 13, 21, para. 180, available at: http://legal.un.org/ilc/publications/yearbooks/ Ybkvolumes(e)/ILC_1956_v2_e.pdf (accessed on 5 December 2013).

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and pipelines on the bed of the high seas [emphasis added].”72 The Commentary stated: The Commission has enunciated in the present article certain principles which, in its view, reflect existing international law. It thought that the regulations concerning telegraph and telephone cables could be extended to include high-voltage cables and pipelines beneath the high seas.73

At the 1958 Geneva Conference on the Law of the Sea which led to the adoption of the 1958 Geneva Conventions, the US proposal to remove the reference to highvoltage power cables and use the more general term ‘submarine cables’ in most of the provisions was accepted,74 except for Article 27 High Seas Convention. In UNCLOS, this practice was continued, and submarine cables include both submarine communications cables and submarine power cables.75 While the generic term ‘submarine cable’ is used in most of the relevant provisions of these conventions, there is a reference to the breaking or injury of a submarine cable in such a manner as to interrupt or obstruct “telegraphic or telephonic communications” as well as the breaking or injury of a “high voltage power cable.”76 For present purposes, UNCLOS is assumed to be the applicable legal regime governing both submarine communications cables and submarine power cables.77 The rights and obligations of States in relation to the installation of power cables and the rights and obligations of States to regulate such cables will depend on which maritime zone the installation takes place. In this regard, the author has comprehensively addressed the different rights and obligations in relation to submarine cables elsewhere. For present purposes and as mentioned above, the most significant challenges 72 ILC, Report of the International Law Commission covering the work of its eighth session, 23 April–4 July 1956, UN Doc. A/3159, in: ibid., 253, 293–294. 73

Ibid., Commentary to Art. 61, para. 2.

74

US Proposal, 3 April 1958, UN Doc. A/CONF.13/C.2/L.108, in: Official Records of the United Nations Conference on the Law of the Sea, vol. IV, Second Committee (High Seas: General Regime), Summary records of meetings and Annexes, UN Doc. A/CONF/13/40 (1958), 146, available at: http://legal.un.org/diplomaticconferences/lawofthesea-1958/vol/english/2nd_Cttee_vol_IV_e.pdf (accessed on 5 December 2013). 75

Lagoni (note 18), 11.

76

See Art. 27 High Seas Convention; Art. 113 UNCLOS.

77

The UNCLOS has received widespread acceptance and presently has 166 Parties, see United Nations Treaty Collection, available at: http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src= TREATY&mtdsg_no=XXI~6&chapter=21&Temp=mtdsg3&lang=en (accessed on 5 December 2013).

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for the governance of submarine power cables occur in the EEZ and continental shelf due to the sui generis nature of these regimes (i.e. coastal States do not have sovereignty over these areas but specifically allocated rights and jurisdiction). In the EEZ, there are two categories of submarine power cables: (1) power cables not under the jurisdiction of the coastal State and (2) power cables under the jurisdiction of the coastal State, each of which will be dealt with below.

IV. Submarine Power Cables not Under the Jurisdiction of the Coastal State A. The Law

Since the laying of the first submarine cable in 1850, the freedom to lay submarine cables in the high seas has been unchallenged.78 In 1927, the Institut de Droit Internationale acknowledged that high seas freedoms include the freedom to lay submarine cables79 and in 1950, the ILC recognised that all States were entitled to lay submarine cables on the high seas.80 As mentioned above, while this was at the time confined to communications cables, by the time of the adoption of the 1958 High Seas Convention, it was recognised that this freedom extended to submarine power cables. Article 87 (1) UNCLOS confirms that the freedom to lay cables is a freedom of the high seas. Article 112 (1) UNCLOS further provides that all States are entitled to lay submarine cables on the bed of the high seas beyond the continental shelf, otherwise

78 Indeed, the 1884 Cable Convention did not address the freedom to lay cables because at that time, “it was evident that freedom of use was conceded by all and that the real concern was to adopt measures for protecting cables from other, sometimes physically incompatible uses of the ocean,” see Myres S. McDougal/William T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962), 781. 79 80

See Lagoni (note 18), 10.

See Report of the International Law Commission on its Second Session, GAOR, 5th Sess., Suppl. 12 (A/13/16), UN Doc. No. A/CN.4/34 (1950), 384. Indeed, when it was first discussed in the ILC, it was remarked that since the right to lay submarine cables had never been questioned, there was no need to explicitly mention it in any convention on the topic. Ultimately, the ILC decided that whilst such a right had never been challenged, it was important to include it in any convention on the issue. See Comments of Judge Hudson and Mr. Spiropolous, in: Yearbook of the International Law Commission, vol. I, UN Doc. A/CN.4/Ser.A/1950 (1950), 199.

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known as the Area.81 The right to lay submarine cables includes the right to repair and maintain them82 as well as to conduct survey activities.83 During the negotiations of UNCLOS, the long-recognised freedom to lay submarine cables on the high seas had to be adapted to take into account the interests of the coastal State in the continental shelf and the EEZ. Both these maritime zones are areas in which the coastal State did not have sovereignty but instead had sovereign rights to resources that could impact the freedom to lay cables and vice versa. Under the continental shelf regime in Part VI UNCLOS, a coastal State has sovereign rights for the purpose of exploring the continental shelf and exploiting its natural resources84 which include “mineral resources and other-non-living resources of the seabed and subsoil.” A coastal State has a continental shelf either up to a distance of 200 nautical miles (nms) or if it meets certain geophysical criteria,85 it can claim an extended continental shelf beyond 200 nms up to the outer edge of its continental margin.86 Under the EEZ regime in Part V UNCLOS, the coastal State can claim a 200 nms EEZ in which it has sovereign rights for the exploration and exploitation of both living and non-living resources of “the waters superjacent to the seabed and of the seabed and subsoil.”87 A coastal State also has jurisdiction as provided for in UNCLOS over artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment in its EEZ.88 Both the EEZ and the continental shelf regime give the coastal State two distinct legal bases for coastal State rights over the seabed within 200 nms. However, the 81

The Area is governed by Part XI UNCLOS.

82

Art. 112 (2) UNCLOS cross-references Art. 79 (5) UNCLOS which states that “[w]hen laying submarine cables or pipelines, States shall have due regard to cables or pipelines already in position. In particular, possibilities of repairing existing cables or pipelines shall not be prejudiced” (emphasis added). 83 Survey activities are generally considered a freedom of the high seas even though it is not explicitly mentioned in Art. 87 UNCLOS, see J. Ashley Roach/Robert W. Smith, Excessive Maritime Claims (3rd ed. 2012), 419. 84

Art. 77 (1) UNCLOS.

85

Art. 76 (4) UNCLOS.

86

Art. 76 UNCLOS.

87

Art. 56 (1)(a) UNCLOS.

88

Art. 56 (1)(b) UNCLOS.

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negotiators of UNCLOS recognised the need to harmonise the content of the legal interest within two separate regimes that geographically overlapped.89 Accordingly, Article 56 (3) UNCLOS provides that the rights set out in the EEZ with respect to the seabed and subsoil are to be exercised in accordance with Part VI on the continental shelf [emphasis added]. The provisions on submarine cables in Part V and Part VI, while not drafted in identical terms, essentially result in the same rights and obligations with respect to submarine cables, at least in areas within 200 nms of the coast. In situations where a coastal State has an entitlement to a continental shelf beyond 200 nms (i.e. an extended continental shelf), the continental shelf regime solely applies.90

1. Freedom to Lay Submarine Cables in the EEZ and Continental Shelf under UNCLOS UNCLOS affirms that all States have the freedom to lay submarine cables in the EEZ and continental shelf. In the EEZ, Article 58 (1) provides: 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 [A]rticle 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention [emphasis added].

As mentioned above, Article 87 provides that freedoms of the high seas include the “freedom to lay submarine cables and pipelines, subject to Part VI [on the continental shelf].”91 Part VI also reinforces this right on the continental shelf by providing in Article 79 (1) that “all States are entitled to lay submarine cables and pipelines on the continental shelf in accordance with the provisions of this article.” 89

Malcolm Evans, Relevant Circumstances and Maritime Delimitation (1989), 36.

90

The waters above the outer continental shelf are high seas, but Art. 87 (1)(c) UNCLOS recognises that the freedom to lay cables in the high seas is subject to Part VI UNCLOS on the continental shelf. 91 The Virginia Commentary on UNCLOS notes that the high sea freedoms exercised in the Exclusive Economic Zone (EEZ) by other States are the same as those incorporated from Art. 87, provided that they are compatible with the other provisions of UNCLOS. The difference is that these freedoms are subject to measures related to the sovereign rights of the coastal State in the EEZ and they are not subject to such measures or those rights beyond that zone: See Myron Nordquist/Satya Nandan/ Shabtai Rosenne, (eds.), The United Nations Convention on the Law of the Sea 1982: A Commentary, vol. II (1993), 565.

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The laying of submarine cables also includes the right to repair and maintain them as these activities would be considered “other internationally lawful uses of the sea related to these freedoms […] such as those associated with the operation of […] submarine cables”92 in the EEZ. On the continental shelf, Article 79 (1) does not expressly refer to repair or maintenance of cables, however, other provisions of Article 79 imply that the right to lay submarine cables includes the right to maintain and repair them.93 Similarly, cable route surveys would also be an “internationally lawful use of the sea related to […] the operation of […] submarine cables”94 as they are essential to the laying of cables.95 It warrants note that UNCLOS gives ‘All States’96 the right to lay cables in the high seas or deep seabed, when in actual fact it is usually private companies that own and operate power cables, and carry out the laying and repair of cables. The seminal Virginia Commentary on UNCLOS provides that ‘All States’ in Article 79 should not be read restrictively as in practice many submarine cables and pipelines are privately owned and are laid by corporations or other private entities. The term therefore refers to the right of States or their nationals to lay cables and pipelines.97

Professor Rainer Lagoni has argued, however, that under the law of treaties, “the private cable owner is entitled or obliged under such provisions of the law of the sea only if they are self-executing.”98 He goes on to state: As the mentioned [A]rticle 26 (1) of the 1958 Convention on the High Seas and Article 112 UNCLOS are addressing the States instead of private entities, they are non-selfexecuting provisions of international law. This means, they do not directly apply to the cable owners. As a consequence, the cable owners lay, maintain and operate their cables on the high seas on the basis of and in accordance with their domestic law.99

92

Art. 58 (1) UNCLOS.

93

Art. 79 (2) UNCLOS refers to the “laying or maintenance” of submarine cables and Art. 79 (5) refers to ‘repairing’ existing cables. See also Davenport (note 49), 209. 94

Art. 58 (1) UNCLOS.

95

Davenport (note 49), 209.

96

Art. 79 (1) UNCLOS.

97

Myron Nordquist et al. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. III (1995), 264. 98

Lagoni (note 18), 13.

99

Ibid.

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However, and as acknowledged by Lagoni,100 in practice, private companies exercise their right to install cables even when there is no corresponding right recognised in national legislation. The right to lay submarine cables (and associated rights) is not unlimited. First, States (or companies) conducting cable operations in the EEZ and continental shelf must have due regard to the cables or pipelines already in position and must not prejudice the possibilities of repairing existing cables or pipelines.101 Second, such States (and/or companies) must have due regard to the rights and duties of the coastal State in the EEZ102 and in the continental shelf, to the extent the latter overlaps with the EEZ. The rights and duties of the coastal State refer to the rights and duties enumerated in Article 56 and elaborated on in other UNCLOS provisions. Third, States conducting cable operations “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.”103 The question is: to what extent can a coastal State regulate cable operations in the EEZ and continental shelf?

2. Coastal States’ Rights to Regulate Cable Operations in the EEZ and Continental Shelf under UNCLOS UNCLOS has substantive provisions on the type of regulations coastal States may adopt as well as procedural obligations that must be complied with if such regulations are adopted.104 First, Article 79 (2) UNCLOS states: Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines. 100

Ibid.

101

Art. 79 (5) UNCLOS.

102

Art. 58 (3) UNCLOS.

103

Art. 58 (3) UNCLOS.

104

Davenport (note 49), 201.

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Article 79 (2) differentiates between submarine cables and pipelines.105 It is only in respect of pipelines that a coastal State is permitted to impose reasonable measures for (1) the exploration of the continental shelf; (2) the exploitation of its natural resources and; (3) the prevention, reduction and control of pollution from pipelines.106 For submarine cables, a coastal State can only subject it to reasonable measures for the (1) exploration of the continental shelf and (2) the exploitation of its natural resources. Second, Article 79 (3) states that the “delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.” Interestingly, in the 1956 ILC Draft Articles, the equivalent article stated: The coastal State is required to permit the laying of submarine cables on the seabed of its continental shelf but in order to avoid unjustified interference with the exploitation of the natural resources of the seabed and subsoil, it may impose conditions concerning the route to be followed.107

During the 1958 Geneva Conferences, a Venezuelan amendment for Article 70 would have expressly provided the coastal State with the right to regulate with respect to the cable routes to be followed, but it was rejected on the basis that it failed to provide any standards for the regulations to be made.108 At the third UN Conference on the Law of the Sea which led to the adoption of UNCLOS, China also proposed that delineation of the course for laying submarine cables on the continental shelf by a foreign State be subject to the consent of the coastal State, but this proposal was eventually rejected.109 The clear implication is that the delineation of the course for submarine cables is not subject to the consent of the coastal State. However, it has been argued that the coastal State can still impose conditions for the delineation of the cable route pursuant to the right to impose ‘reasonable measures’ for the exploration of the continental shelf and the exploitation of its natural resources as set out in

105

Ibid., 210.

106

The provision for prevention, reduction and control of pollution from pipelines did not exist in the equivalent article (Art. 4) of the 1958 Continental Shelf Convention, and was added during the negotiations of UNCLOS III. See Nordquist et al. (eds.) (note 97), 912. 107

Art. 70 ILC Draft Articles concerning the law of the sea, with commentaries, in: Yearbook of the International Law Commission, vol. II, UN Doc A/3159 (1956), 265, 299. 108

Marjorie Whiteman, Conference on the Law of the Sea: Convention on the Continental Shelf, American Journal of International Law (AJIL) 52 (1958), 643. 109

Nordquist et al. (note 97), 911.

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Article 79 (3).110 For example, the coastal State could require that the route avoid areas in which offshore exploration or exploitation is taking place or areas which are intensively fished. Third, Article 79 (4) provides that nothing in Part VI “affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea.” This reflects the fact that in its territorial sea and land territory, coastal States have sovereignty over submarine cables and can impose conditions for their operation within these areas.111 The purpose of this provision is to ensure that: The restrictions in [A]rticle 79 on the right of a coastal State to regulate cables on the continental shelf (where it has sovereign rights but not sovereignty) do not affect the more extensive rights of the coastal State to impose additional conditions on cables which enter its territory or territorial sea (where it has sovereignty).112

It has been argued that Article 79 (4) allows coastal States to impose additional conditions on its continental shelf if such cables enter its territorial sea, i.e., on nontransiting cables. In other words, the freedom to lay cables only applies to cables which transit the continental shelf and cables that land in the coastal State, and therefore require the coastal State’s permission to enter the territorial sea, can be subject to conditions the coastal State may impose for allowing the cable to enter its territory. These conditions may thus cover the entire segment of the cable located on the continental shelf of the coastal State involved (or even area beyond).113

The counter-argument to this is that such an interpretation would defeat the purpose of allowing the coastal State the freedom to lay cables on the continental shelf that can only be subject to ‘reasonable measures’ for the exploration or exploitation of the continental shelf.

110

Lagoni (note 18), 20.

111

See Davenport (note 49), 205–206.

112

Robert Beckman, Submarine Cables – A Critically Important but Neglected Area of the Law of the Sea, Paper presented at the 7th International Conference of the International Society of International Law on Legal Regimes of Sea, Air, Space and Antarctica, New Delhi, 15–17 January 2010, 7 available at: cil.nus.edu.sg/wp/wp-content/uploads/2010/01/Beckman-PDF-ISIL-Submarine-Cablesrev-8-Jan-10.pdf (accessed on 5 December 2013). 113

Lionel Carter/Alfred H.A Soons, Marine Scientific Research Cables, in: Burnett/Beckman/ Davenport (eds.) (note 2), 323, 335.

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Apart from the above substantive rights, UNCLOS also imposes certain procedural obligations on coastal States when regulating submarine cables. First, these measures must be ‘reasonable’ as required in Article 79 (2). It is not clear what is meant by ‘reasonable’ as “no more definite criterion than that of reasonableness could be established for the measures which coastal [S]tates may take, for the reason that it was impossible to foresee all situations that might arise in the application of this article.”114 Second, in the EEZ (and in the continental shelf to the extent it overlaps with the EEZ), a coastal State must have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of UNCLOS.115 Third, on the continental shelf (and in the EEZ to the extent it overlaps with the continental shelf), a coastal State must not exercise its rights in a manner that will infringe or result in “any unjustifiable interference” with navigation and other rights and freedoms of other States provided for in UNCLOS.116

B. Submarine Power Cables and the Marine Environment

Generally speaking, coastal States have adopted a wide range of laws and regulations for submarine cables,117 which often do not distinguish between submarine communications cables and submarine power cables in their EEZ and continental shelf. Some of these laws and regulations, are arguably inconsistent with UNCLOS, and this has been addressed comprehensively elsewhere.118 It suffices to say for present purposes that some coastal States have imposed lengthy and opaque permit requirements for cable activities in the EEZ and continental shelf, contrary to the freedom to lay cables in these maritime zones.119 The more significant challenge for power cables is the fact that they are increasingly perceived as posing a threat to the marine envi-

114

Statement by the US Representative during the Eight Session of the ILC, cited in: Whiteman (note 108), 642. 115

Art. 56 (2) UNCLOS. See also Davenport (note 49) 211.

116

Art. 78 (2) UNCLOS. See also Davenport (note 49), 211.

117

Ibid., 211–214.

118

See Keith Ford-Ramsden/Tara Davenport, The Laying of Submarine Cables, in: Burnett/Beckman/Davenport (eds.) (note 2), 146–153; Davenport (note 49), 211–214. 119

Ibid.

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ronment.120 This section will first examine (1) the potential impact of submarine power cables on the marine environment and (2) the right of coastal States to impose environmental regulations on power cables under UNCLOS. It will then look at specific examples of environmental regulations (Marine Spatial Planning and Marine Protected Areas, Environmental Impact Assessments and the Guidelines on Best Practices for the Laying of Cables issued by the OSPAR Commission) and examine their consistency with UNCLOS.

1. The Potential Impact of Submarine Power Cables on the Marine Environment There are several possible impacts on the environment caused by the installation, repair, maintenance and removal of submarine power cables, not all of which have been substantiated by empirical and scientific research. The first is seabed disturbance. The OSPAR Commission,121 which carried out an assessment on the impact of cables on the environment in 2009,122 found that “the laying of cables leads to seabed disturbance and associated impacts (damage, displacement or disturbance) on flora and fauna, increased turbidity, remobilization of contaminants from sediments and

120 Lionel Carter/Douglas Burnett/Tara Davenport, The Relationship between Submarine Cables and the Marine Environment, in: Burnett/Beckman/Davenport (eds.) (note 2), 179. 121 The OSPAR Commission was established to administer and implement the Convention for the Protection of the Marine Environment of the North-East Atlantic, 22 September 1992, UNTS 2354, 67 (OSPAR Convention). The OSPAR Convention is a mechanism by which fifteen European governments, together with the European Community, cooperate to protect the marine environment of the North-East Atlantic, see OSPAR Commission, About OSPAR, available at: http://www.ospar.org/content/content.asp?menu=00010100000000_000000_000000 (accessed on 5 December 2013). In 2009, the OSPAR Commission carried out an environmental assessment of the impact of submarine cables in the Greater North Sea, Celtic Sea and wider Atlantic where approximately 300 cables cross from Scandinavia to North America. See Kristin Masters, Submarine Cabling as a Tool of Globalization, Power Source Online, 1 December 2009, available at: http://www.power sourceonline.com/magazine/2009/12/submarine-cabling (accessed on 5 December 2013). In 2012, the OSPAR Commission issued its Guidelines on Best Environmental Practice in Cable Laying and Operation, Agreement 2012-2, OSPAR Doc. 12/22/1, Annex 14 (2012) (OSPAR BEP Guidelines), available via: http://www.ospar.org/v_measures/browse.asp?menu=00750302120125_000002_000000 (accessed on 5 December 2013). 122 Thomas Merck, Assessment of the Environmental Impacts of Cables, Report for the OSPAR Commission (2009) (OSPAR Assessment), 8, available at: http://qsr2010.ospar.org/media/assessments/ p00437_Cables.pdf (accessed on 5 December 2013).

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alteration of sediments,”123 particularly for power cables which are buried for purposes of protection (most submarine power cables are buried).124 It is true that burial will stir up a significant amount of sediment, disrupt seafloor vegetation and disturb benthos organisms.125 That said, seafloors, particularly soft seafloors, start to regenerate quickly after burial and in most cases, the cable route is indistinguishable within a year after burial.126 As noted by a report produced jointly by the International Cable Protection Committee (ICPC),127 an industry-based organisation, and the United Nations Environment Programme (UNEP): Disturbances and impacts caused by cable laying and repairs must be viewed in the context of the frequency and extent of these activities. Clearance of debris from a path proposed for cable burial is usually followed within days to weeks by actual burial. Unless a cable fault develops, the seabed may not be disturbed again within the system’s design life. Furthermore, the one-off disturbance associated with cable placement is restricted mainly to a strip of seabed less than 5–8 m wide.128

Indeed, a study conducted on the SwePol Link power cable between Sweden and Poland shows no visible changes to the surface of the sea-bottom.129 Even the Guidelines on Best Environmental Practice in Cable Laying and Operation issued by the OSPAR Commission (OSPAR BEP Guidelines) acknowledge that the effects of such activities are generally temporary and their spatial extent is limited to the cable corridor.130 The second concern is underwater noise resulting from installation operations particularly to marine mammals.131 However, it has been acknowledged that there has been little study done on the noise impact of installation and removal of cables. Consequently, there are no clear indications that noise impacts related to the installa123

OSPAR BEP Guidelines (note 121), para. 3.2.

124

Worzyk (note 1), 257.

125

Ibid., 256.

126

Ibid.

127

See ICPC, information available at: http://www.iscpc.org (accessed on 17 February 2014).

128

Lionel Carter et al., Submarine Cables and the Oceans – Connecting the World, UNEPWCMC Biodiversity Series No. 31 (2009), 34, available at: http://www.iscpc.org/publications/ICPCUNEP_Report.pdf (accessed on 5 December 2013). 129

See generally Eugeniusz Andrulewicz/Dorota Napierska/Zbigniew Otremba, The Environmental Effect of Installation and Functioning of the Submarine SwePol Link HVDC Transmission Line: A Case Study of the Polish Marine Area of the Baltic Sea, Journal of Sea Research 49 (2003) 337. 130

OSPAR BEP Guidelines (note 121), para. 3.2.

131

Ibid., para. 3.3; Worzyk (note 1), 257.

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tion (or removal) and operation of subsea cables pose a high risk for harming marine fauna.132 There is also concern relating to the possible adverse environmental impact from the operation of power cables. According to the OSPAR Commission’s 2009 Assessment of the Environmental Impact of Cables (OSPAR Assessment) power cables have a thermal impact as “when electricity is transported, a certain amount gets lost as heat, leading to an increased temperature of the cable surface and subsequent warming of the surrounding environment.”133 This temperature change could change the metabolism and reproductive behaviour of the benthos organisms that live near or on the seafloor134 as “there is evidence that various marine organisms react sensitively to an even minor increase in the ambient temperature.”135 However, cable industry experts have argued that this is not a serious concern as power cables are designed to eliminate excessive losses and temperature decreases with the distance to the cable.136 Further, as acknowledged by the OSPAR Assessment, the lack of field studies on operational power cables has meant that there is no scientific data which establishes a correlation between temperature increase and power transmitted.137 It is therefore difficult to determine the “effects of artificially increased temperature on benthos.”138 On the contrary, studies such as the one done on the cable between Sweden and Poland have “revealed no change in the composition, biomass and abundance of benthic animals preceding and following deployment of a power cable.”139 Indeed, because cables provide a firm substrate, they can also become sites of marine encrustation140 and that power cables are “similar to artificial reefs made by OWP foundations or sunken ships, constitute new habitats in otherwise featureless seafloors.”141

132

Ibid.

133

Ibid.

134

Ibid., 259; OSPAR BEP Guidelines (note 121), para. 3.4.

135

OSPAR Assessment (note 122), 10.

136

Worzyk (note 1), 258.

137

OSPAR Assessment (note 122), 10 –11.

138

Ibid.

139

Carter/Burnett/Davenport (note 120), 183.

140

Ibid.

141

Worzyk (note 1), 258.

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Another issue has been the potential generation of electromagnetic fields (EMF). Both DC and AC submarine cables produce EMF fields, the intensity of which is directly related to the applied voltage.142 Generally speaking, HVDC cables produce a stronger EMF than AC cables.143 Because “marine fish use the earth’s magnetic field and field anomalies for orientation especially when migrating […] magnetic fields generated by cables may impair the orientation of fish and marine mammals and affect migratory behaviour.”144 Biological literature shows that there is a range of marine organisms that are potentially sensitive to magnetic, electric or combined fields.145 That said, field trials with cables have not as yet been undertaken.146 A report commissioned in 2009 by the US Bureau of Ocean Energy Management, Regulations and Enforcement noted that there were “substantial gaps in our knowledge of animal behaviour in the presence of EMF, especially relating to actual field studies involving power cables.”147 Further, “behavioural responses to electro or magnetic fields are known for some species but extrapolation to impacts resulting from exposure to undersea power cables is speculative.”148 It concludes modeling indicates that the electromagnetic fields emitted by undersea power cables are limited spatially (both vertically and horizontally). This spatial limitation must be considered in any impact assessment as it reduces the risk that organisms will be exposed.149

In any event, there are several mitigating mechanisms that can reduce the EMF effect of power cables, including the use of AC cables which have lower magnetic fields than DC cables for the same voltage, cable burial, and changing the conductivity and permeability of the cable sheathing or serving.150 Lastly, there is also an issue of contaminants or chemical impact if a power cable is damaged, which may be unfounded. Generally, modern power cables do not release 142

Carter/Burnett/Davenport (note 120), 194.

143

OSPAR Assessment (note 122), 10.

144

Ibid.

145

Carter/Burnett/Davenport (note 120), 194.

146

Ibid.

147

Ibid., 195.

148

BOEM Report (note 34), 143.

149

Ibid.

150

Carter/Burnett/Davenport (note 120), 195.

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chemicals, consumables or other agents to the environment as the materials are designed to be stable in seawater for decades.151 Cables are filled with solid insulation (XLPE, EPR and mass-impregnated) and therefore cannot leak in the event of a rupture.152 Previously, power cables with low-viscosity insulation oil were utilised but these cables were abandoned in the 1990s due to environmental and maintenance concerns.153

2. Coastal States’ Rights to Impose Environmental Regulations on Submarine Power Cables under UNCLOS In the EEZ, the coastal State has “jurisdiction as provided for in the relevant provisions of this Convention [emphasis added]” with regard to “the protection and preservation of the marine environment.”154 The first four Sections of Part XII UNCLOS contain general principles “upon which the basic obligations of [S]tates and international organizations in this respect are formulated.”155 This is followed by the specific measures necessary to prevent, reduce, and control marine pollution, which are divided into legislative measures156 and enforcement measures157 addressing different sources of marine pollution from land-based sources, seabed activities, the Area, ship-source pollution and pollution from the atmosphere. The first point to note is that there is no express provision granting coastal States jurisdiction to impose regulations on cable operations or cables in the EEZ and continental shelf apart from ship-source pollution measures applicable to all cable ships.158 In other words, submarine cable operations are not an explicit source of pollution under UNCLOS. The question is whether there are any other provisions which would give the coastal State the jurisdiction to regulate cable operations, which 151

Worzyk (note 1), 266.

152

Ibid.

153

Eccles/Ferencz/Burnett (note 14), 312.

154

Art. 56 (1)(b)(iii) UNCLOS.

155

Barbara Kwiatkowska, The 200-Mile Exclusive Economic Zone in the New Law of the Sea (1989), 162. 156

See Sections 5 and 8 Part XII UNCLOS.

157

See Sections 6 and 7 Part XII UNCLOS.

158

Art. 211 UNCLOS.

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are a recognised freedom in the EEZ and continental shelf, for purposes of protecting the marine environment. One could argue that this competence is found in Article 192 “protect and preserve the marine environment” and Article 194 (1) which provides: States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection [emphasis added].

The measures referred to in Article 194 (1) are further elaborated on in Article 194 (3) and include measures designed to minimise to the fullest extent: pollution from other installations and devices operating in the marine environment, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.159

The above provisions are wide160 and would appear to cover pollution from any source, and not just the sources of pollution expressly identified in Part XII (i.e. shipsource, land-based, atmospheric, etc.). The critical question, however, is whether power cable deployment and operations would fall within the definition of “pollution of the marine environment” defined in Article 1 (4) as: the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.

The definition of marine pollution is deliberately broad so as to accommodate any type of pollution where it results in deleterious or harmful effects. While arguably the deployment and operation of power cables is an “introduction by man, directly or indirectly, of substances or energy into the marine environment,” it still has to cross

159 160

Art. 194 (3)(d) UNCLOS.

As noted by the Virginia Commentary, “the scope of this provision is wide” and “no indication is given to explain the meaning of necessary in relation to the measures that are to be taken.” See Nordquist et al. (eds.) (note 97), 64.

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the threshold of resulting or being likely to result in “such deleterious effects.”161 The problem is that the adverse environmental impact of power cables described above is highly speculative with no concrete scientific data to substantiate an argument that it is harmful. Arguably, it would not even warrant the use of the ‘precautionary principle’ which mandates that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”162 Apart from the general provisions described above, it could also be argued that Article 208 on pollution from seabed activities provides a general competence to coastal States to impose environmental regulations on power cables.163 It provides: Coastal States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction, pursuant to [A]rticles 60 and 80 [emphasis added].

However, it is debatable whether submarine cables and cable operations constitute ‘pollution’ under UNCLOS. Furthermore, cables and cable operations in the EEZ and continental shelf are not ‘seabed activities’ under the ‘jurisdiction’ of the coastal State, but rather are one of the freedoms that other States are permitted in the EEZ and continental shelf of the coastal State.164 Another argument supporting the proposition that coastal States have a limited power to impose environmental regulations on cable-laying operations is the fact that UNCLOS expressly states that a coastal State may not impede the laying or maintenance of such cables other than reasonable measures related to the exploration and exploitation of the continental shelf.165 As argued above, the implication of Article 79 (2) UNCLOS is that only pipelines may be subject to measures for prevent-

161

Art. 1 (4) UNCLOS.

162

Principle 15 Rio Declaration on Environment and Development, 14 June 1992, UN Doc. A/ Conf.151/5/Rev. 1, reprinted in: ILM 31, 874. 163

See Davenport (note 49), 213; Carter/Burnett/Davenport (note 120), 198.

164

Carter/Burnett/Davenport (note 120), 198.

165

Davenport (note 49), 213.

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ing, reducing and controlling pollution (see discussion above).166 Lagoni, on the other hand, has argued that: Article 79 (2) of UNCLOS relates for obvious reasons only to pollution by pipelines. If nevertheless pollution or similar environmental effects can be expected from a submarine HVDC cable, a respective power for the coastal State can be assumed by analogy. For almost nothing was known about such effects of HVDC cables, when article 79 (2) UNCLOS was adopted, so that the provision obviously is unintentionally silent on this matter.167

In the present writer’s view, this would be a strained interpretation of Article 79 (2) and would have serious implications for the carefully negotiated regime established under UNCLOS. It is true that the drafters of UNCLOS did not foresee that submarine power cables would have an environmental impact (assuming that they do). That said, this is true for many issues that confront ocean governance today. UNCLOS was negotiated in the 1970s and with scientific and technological advances comes greater awareness – there will inevitably be issues that were not foreseen by the drafters. If coastal States ‘assumed by analogy’ the power to regulate issues that are not expressly granted by UNCLOS, the whole objective of UNCLOS, which was to carefully balance the rights of coastal States vis-à-vis other States, would be undermined. UNCLOS created special mechanisms to address issues which were not explicitly or comprehensively covered by the Convention,168 including Article 59, which addresses matters not specifically attributed to the coastal State or other States in the EEZ, as well as the dispute settlement mechanism in UNCLOS Part XV. Indeed, Article 59 reinforces the idea that if there are rights not attributed to the coastal State or other States, there is no presumption in favour of either.169 States or companies exercising the right to lay and repair cables must, of course, have due regard to the rights and duties of the coastal States, including those rights

166

Ibid.

167

Lagoni (note 18), 20.

168

For a more detailed discussion of these mechanisms, see Robert Beckman/Tara Davenport, The EEZ Regime: Reflections After 30 Years, Paper from the Law of the Sea Institute, UC Berkley-Korea Institute of Ocean Science and Technology Conference on Securing the Ocean for the Next Generation (2012), 12–15, available at: http://www.law.berkeley.edu/files/Beckman-Davenport-final.pdf (accessed on 5 December 2013). 169 Art. 59 UNCLOS provides that conflicts about unattributed rights should be “resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole”.

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and duties related to the marine environment.170 However, this is an obligation on other States undertaking activities in the EEZ to take into consideration the coastal State’s rights and duties with regard the protection and preservation of the marine environment (something which is arguably done during the survey phase of cable operations when efforts are made to avoid environmentally sensitive areas). This does not translate into coastal State authority to impose environmental measures on cable operations in the EEZ and continental shelf. Lastly, the obligation in Article 194 (4) should be borne in mind when imposing anti-pollution measures: In taking measures to prevent, reduce or control pollution of the marine environment, States shall refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights and in pursuance of their duties in conformity with this Convention [emphasis added].

3. Marine Protected Areas and Marine Spatial Planning A recent trend which may restrict the freedom to lay cables in the EEZ and continental shelf is the emergence of ‘area-based management’ to protect the marine environment. Area-based management encompasses a range of tools, which can have a wide variety of objectives, such as the conservation and management of species or protection of fragile habitats and are “designed to achieve these objectives by managing human activities within a spatially defined area.”171 Such tools include Marine Protected Areas (MPAs) and Marine Spatial Planning (MSP). An MPA has been defined as any area of intertidal or subtidal terrain together with their overlying waters and associated flora and fauna, historical and cultural features which has been reserved by law or other effective means to protect all or part of the enclosed environment.172 170

Art. 58 (3) UNCLOS.

171

Julian Roberts/Aldo Chircop/Sian Prior, Area-Based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Sea Area Concept, International Journal of Marine and Coastal Law 25 (4) (2010), 483, 484. 172

World Conservation Union, Resolution 17.38 of the 17th General Assembly of the International Union for Conservation of Nature and Natural Resources (IUCN) on the protection of the coastal and marine environment, in: Proceedings of the 17th Session of the General Assembly of IUCN and 17th Technical Meeting (1988), 104–106.

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MSP, on the other hand, “is a public process of analysing and allocating the spatial and temporal distribution of human activities in marine areas to achieve ecological, economic, and social objectives that usually have been specified through a political process.”173 Coastal States are increasingly adopting both MPAs174 and MSP in the EEZ and continental shelf which has ramifications for submarine cables. For example, some MPAs have prohibited cable activities altogether175 or permit cable deployment.176 Similarly, MSP frameworks designate specific areas where cables should be laid and specific requirements for routeing.177 Both MPAs and MSP are prima facie permitted in the EEZ under UNCLOS. With regard to the former, UNCLOS provides that States can take measures to “protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life,” and such measures would include MPAs.178 Whilst this is a “separate and independent legal obligation” distinguishable from the obligation to prevent pollution, it is not a jurisdictional rule which creates jurisdiction of the coastal State with regard to its EEZ.179 With respect 173

UNESCO Marine Spatial Planning Initiative, information available at: http://www.unesco-iocmarinesp.be/marine_spatial_planning_msp (accessed on 5 December 2013). 174 For example, as of 2012, the total area of ocean space under a marine protected area (MPA) amounted to 11,254,389 square kilometres. See Marine Reserves Coalition, information available via: http://www.marinereservescoalition.org (accessed on 5 December 2013). 175

For example, the United Kingdom (UK) sought to control the routing of a new cable system initially planned to enter Special Areas of Conservation outside its territorial waters: See United Kingdom Marine Conservation (Natural Habitats) Regulation 2007, No. 1842, available at: http:// www.legislation.gov.uk/uksi/2007/1842/pdfs/uksi_20071842_en.pdf (accessed on 5 December 2013). For a more detailed discussion, see Carter/Burnett/Davenport (note 120), 206. 176

Australia, for example, permits cable deployment in their MPAs that are designated as Multiple Purpose Zones: See Carter/Burnett/Davenport (note 120), 206–207. 177 See, for example, Federal Maritime and Hydrographic Agency of Germany (Bundesamt für Seeschifffahrt und Hydrographie), Spatial Plan for the German Exclusive Economic Zone in the North Sea, 21 September 2009, 12–14, available at: http://www.bsh.de/en/Marine_uses/Spatial_Planning_ in_the_German_EEZ/documents2/Spatial_Plan_North_Sea.pdf (accessed on 5 December 2013); id., Spatial Plan for the German Exclusive Economic Zone in the Baltic Sea, 21 September 2009, 9–10, available at: http://www.bsh.de/en/Marine_uses/Spatial_Planning_in_the_German_EEZ/documents2/ Spatial_Plan_Baltic_Sea.pdf (accessed on 5 December 2013). 178 179

Art. 194 (5) UNCLOS.

Rainer Lagoni, Marine Protected Areas in the Exclusive Economic Zone, in: Andree Kirchner (ed.), International Marine Environmental Law: Institutions, Implementation and Innovations (2003), 157, 160.

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to MSP, there is nothing in UNCLOS which excludes the adoption of MSP frameworks per se.180 That said, coastal States can only use these tools to regulate activities over which they are given sovereign rights and jurisdiction under UNCLOS such as fishing and seabed resources. The ability of coastal States to restrict recognised freedoms such as navigation and cable laying within MPAs is limited.181 The same would apply for areas designated pursuant to MSP. The International Maritime Organization (IMO), as the competent international organisation responsible for shipping, is the only body that can control navigation through the EEZ.182 There is no equivalent international body for submarine cables. It can be argued that as with navigation, coastal States do not have the authority to prohibit cable operations within such areas, nor impose routeing measures unless they can be shown to be reasonable resource-related measures.

4. Environmental Impact Assessments Environmental Impact Assessments (EIAs) are routinely required in Europe, Australasia, North America and parts of Asia and Africa before a permit is provided to lay either a power or communications cable on the seabed.183 The degree of information required can vary from State to State. It can involve: (i) a brief review of environmental conditions and potential impacts; or (ii) an appropriate technical assessment accompanied by a statement of compliance with environmental accreditation; or (iii) a comprehensive analysis that requires additional research, e.g. field measurements, computer modelling and formal consultation with government, other seabed users and the public.184 180 Frank Maes, The International Legal Framework for Marine Spatial Planning, Marine Policy 32 (2008), 797, 801–802. 181 Edward J. Goodwin, International Environmental Law and the Conservation of Coral Reefs (2011), 52. 182

Ibid., 53.

183

Carter et al. (note 128), 29.

184

Carter/Burnett/Davenport (note 120), 200.

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Depending on the information required, EIAs can take a few weeks to a year or more, significantly delaying a submarine cable project.185 For example, the OSPAR BEP Guidelines issued by the OSPAR Commission imposes rather onerous EIA requirements on cable laying and operation. The Guidelines suggest that the following data should be provided as a minimum for an EIA: data on sediment and habitat structure, benthic communities, habitat structure relevant for fish fauna, occurrence of breeding and resting birds in the landfall areas, occurrence of marine birds and mammals in coastal areas as well as offshore areas, occurrence of hazardous waste and cultural heritage sites.186 It also requires monitoring to be carried out “to evaluate the predicted environmental impacts of the construction and operation of a cable.”187 The Guidelines do not state where they are applicable, i.e. in territorial waters or in the EEZ of OSPAR States. Neither do they make clear whether the Guidelines only apply to cables used for the exploration and exploitation of the continental shelf (i.e. for wind farms or oil and gas platforms) pursuant to Article 79 (4) UNCLOS or whether they also apply to cables laid pursuant to Article 79 (1) UNCLOS. If they do indeed apply in the EEZ and to cables laid pursuant to Article 79 (1), it raises issues of whether coastal States have the authority to impose an EIA requirement on cablelaying and operations in the EEZ or continental shelf. Under general international law, it is now considered obligatory to carry out an EIA where there is a risk that a proposed activity may cause considerable transboundary environmental effects.188 For activities that do not have transboundary effects there is wide consensus that there is also an obligation to carry out an EIA if the activity is likely to have an impact on the environment and the impact is significant.189 Article 206 UNCLOS itself states that: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall as far as practicable, assess the potential 185

Ibid.

186

See OSPAR BEP Guidelines (note 121), para. 6.1.

187

Ibid., para. 6.2.

188

See International Court of Justice (ICJ), Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, para. 203. 189

See generally Astrid Epiney, Environmental Impact Assessment, Max Planck Encyclopedia of Public International Law (MPEPIL) III (2012), 587–589.

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effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in [A]rticle 205.

However, neither general international law nor UNCLOS specifies the precise scope and content of an EIA and there is no formulation under international law on the manner and procedure to be applied when requesting an EIA.190 There is a strong case for arguing that within the EEZ and continental shelf, the coastal State does not have authority to request an EIA for cable deployment or operation. First, as noted above, the right of coastal States to impose environmental regulations on cables appears to be limited. Second, Article 206 provides that States shall conduct an EIA when they have “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment” (emphasis added). Cable operations in the EEZ and continental shelf are not “under the jurisdiction or control” of the coastal State but rather are one of the freedoms allocated to other States. Also, as argued above, neither do they cause substantial pollution or harmful changes to the marine environment.

5. OSPAR BEP Guidelines The OSPAR BEP Guidelines have recommended other actions which have been questioned by the cable industry. The cable industry argues that the assumptions on the environmental impacts of submarine cables that underpin the recommendations are flawed.191 This has likewise produced flawed regulatory policies. The Guidelines acknowledge that there are knowledge gaps on the impact of EMF on fish and marine mammals, the regeneration period of sensitive habitats, the impact of noise levels and the heat impact on benthic species.192 Yet, it concludes that “there is sufficient evidence that placement and operation of submarine cables may affect the marine environment,” and therefore the precautionary principle should be applied. The precautionary principle is still evolving and its status in customary international law

190

ICJ, Pulp Mills on the River Uruguay (note 188), para. 205.

191

Carter/Burnett/Davenport (note 120), 208–212.

192

OSPAR BEP Guidelines (note 121), para. 7.

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is less than certain.193 In Europe, it has received broad support and there is a “strong argument that it has now achieved the status of regional customary international law”194 and of course, the OSPAR Convention mandates the use of the precautionary principle.195 That said, the precautionary principle has faced criticism in recent years.196 These criticisms are directed at its definitional uncertainties,197 and at its ambiguity and arbitrariness: Proponents of the precautionary principle see power in its ambiguity. It gives regulators and courts unlimited discretion, and its ambiguity undermines transparency, accountability and fundamental principles of jurisprudence. Inevitably, the precautionary principle provides a shaky foundation for Europe’s legal decision-making.198

It has also been criticised for being a “barrier to technological development and economic growth”199 as it is “applied disproportionately to new products and technologies.”200 Regardless of the legality and validity of the precautionary principle, the most important point is that the BEP Guidelines have met with opposition from an important stakeholder, namely the cable industry. Indeed, it is said that the Guide193

For a description of the debate on the status of the precautionary principle, please refer to Meinhard Schröder, Precautionary Approach/Principle, MPEPIL VIII (2012), 400–405. 194

Ibid., 402.

195

Art. 2 (2)(a) OSPAR Convention.

196

Gary Marchant/Linda Abbott/Alan Felsot, Impact of the Precautionary Principle on Feeding Current and Future Generations, Council for Agricultural Science and Technology (CAST) Issue Paper No. 52 (June 2013), available at: http://www.cast-science.org/download.cfm?PublicationID=276208& File=1030fc616e8c852c465e7371c22580045712TR (accessed on 5 December 2013). 197 A case in point is the significant number of differences between the OSPAR Convention and the Rio Declaration’s formulation of the precautionary principle. The latter only applies to “serious and irreversible risks,” and requires that any measures taken be ‘cost-effective’ and only where there is a lack of ‘full scientific certainty.’ Art. 2 (2)(a) OSPAR Convention only requires there to be “reasonable grounds for concern that […] may bring about hazards to human help, harm living resources and marine ecosystems, damage amenities or interfere with other legitimate uses of the sea” and contains no requirement that measures be cost-effective, which applies even if there is no conclusive evidence of a causal relationship between the inputs and the effects. Indeed, there are over twelve different definitions of the principle in international agreements, each imposing different requirements. See also the Paralyzing Precautionary Principle, available at: http://paralyzingprecautionprinciple.com/problems-with-the-precautionaryprinciple.html (accessed on 5 December 2013). 198 Statement of Gary Marchant, 13 September 2006, available at: http://www.cfact.org/2006/09/ 13/dr-gary-marchant-on-arbitrary-and-capricious-3/ (accessed on 5 December 2013). 199 Jonathan H. Adler, The Problems with Precaution: A Principle without Principle, The American, 25 May 2011, available at: http://www.american.com/archive/2011/may/the-problems-with-precautiona-principle-without-principle (accessed on 5 December 2013). 200

Marchant/Abbott/Felsot (note 196), 7.

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lines were drafted without any input from, or consultation with any of the European cable companies or regional protection committees.201 Further, the representatives from Member States of the OSPAR Commission appear to consist of mostly environmental ministries but not ministries associated with communications cables or power cables.202 Efforts by the industry to apply for observer status with the OSPAR Commission in 2013 were reportedly rejected.203 The lack of industry support for the BEP Guidelines will no doubt create difficulties in their implementation.

V. Submarine Power Cables in the EEZ and Continental Shelf under the Jurisdiction of the Coastal State UNCLOS recognises an exception to the principle that all States have the freedom to lay, repair and maintain submarine cables in the EEZ and continental shelf. Under Article 79 (4) UNCLOS, coastal States have jurisdiction over submarine cables “used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.” This is a direct consequence of its sovereign rights over the resources of the continental shelf and EEZ as well as over other activities for the economic exploitation and exploration of the zone (such as the production of energy from water, currents and winds),204 and its jurisdiction over the establishment and use of artificial islands, installations and structures.205 Examples of such cables are cables which are used for offshore oil and gas platforms and for wind farms. Arguably, the major governance challenge facing governments, the cable industry and the renewable energy industry, concerns submarine power cables used for wind farms. Around the world, countries are increasingly looking to meet their energy demands by creating large-scale offshore energy farms using the strong winds that are

201

Carter/Burnett/Davenport (note 120), 210–211.

202

Ibid. Also see OSPAR Commission, Contracting Parties, available at: http://www.ospar.org/ content/content.asp?menu=00380108070000_000000_000000 (accessed on 5 December 2013). 203

Carter/Burnett/Davenport (note 120), 211.

204

Art. 56 (1)(a), Art. 77 UNCLOS.

205

Art. 56 (2), Art. 60, Art. 80 UNCLOS.

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found over oceans.206 The reasons behind this growth include the availability of wind as an infinite resource, the availability of offshore space to build projects as compared with wind farms on land, coupled with declining fossil reserves and environmental concerns relating to the extraction and transport of such fossil fuels.207 According to some reports, over 50 projects are operational around the world, with the majority being found in European waters.208 According to the European Wind Energy Associate, “a total of 1,371 offshore turbines have been installed and connect to electricity grids in European waters totalling 3,812.60 megawatts spread across 53 wind farms in 10 countries.”209 The demand for renewable energy and wind farms has driven demand for HVDC power cables. However, only a “handful of companies is capable of building the complex cables that are required by this market,”210 and there are questions as to whether the current supply of submarine cables will be able to meet demand. For example, the lack of supply has caused issues for wind farm projects in Germany. Germany embarked on a transformation of its energy policy after the Fukushima disaster in Japan led to a phasing out of its nuclear plants.211 It has reportedly invested US$ 250 billion in the renewable energy sector.212 However, in 2012, it was reported that two offshore wind clusters in the North Sea would be delayed because of cable shortage and insufficient financial incentives.213 As a result, the wind farms in the North Sea (somewhat ironically) relied on diesel-powered generators to keep the 206 See BOEM, Offshore Wind Energy, available at: http://www.boem.gov/Renewable-EnergyProgram/Renewable-Energy-Guide/Offshore-Wind-Energy.aspx (accessed on 5 March 2014). 207

Nielsen/Davenport (note 26), 367.

208

Ibid, 364.

209

Brieuc Hamon, Survey of Offshore Wind Farm Projects in the EU and their Connecting Grid Systems, Global Energy Network Institute, July 2012, 5 available at: http://www.geni.org/globalenergy/ research/offshore-wind-farms-in-the-eu/Survey%20of%20Off%20Shore%20Wind%20Farm% 20Project%20in%20EU%20and%20their%20connecting%20Grid%20Systems.pdf (accessed on 5 December 2013). 210

Navigant Research Report (note 7).

211

Larry Bell, German Green Energy Bluster Running Out of Wind, Forbes, 13 August 2013, available at: http://www.forbes.com/sites/larrybell/2013/08/13/german-green-energy-bluster-runningout-of-wind/ (accessed on 5 December 2013). 212 213

Ibid.

Paul Garrett, Rapid Growth Places Strain on Cable Supply, Wind Power Offshore, 28 May 2012, available at: http://www.windpoweroffshore.com/article/1192094/rapid-growth-places-strain-cablesupply (accessed on 5 December 2013).

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sensitive equipment in constant motion.214 In addition, there is also a shortfall of specialist cable-laying vessels. In 2012, the three major European manufacturers only had access to one large power cable-laying vessel each.215 It has been said that if UK’s offshore wind expansion programme is implemented in full along with Germany’s, there will be a serious shortage of power cables which could significantly delay wind farm projects in Europe.216 The cable industry has expressed concerns that there has not been sufficient investment in the industry due to the uncertainty in the wind farm market217 – “cable companies are reluctant to step up production until offshore projects are approved and consented but then it may be too late to ramp up capacity or build the vessels needed to lay the cables within the timescales required.”218 There are two main governance challenges in relation to power cables under the jurisdiction of coastal States, namely: (1) environmental issues and (2) competing uses.

A. Environmental Issues

A significant issue for submarine power cables used for wind farms appears to be their perceived environmental impact. This has been described in detail above, but it warrants mention for present purposes that one of the major environmental concerns regarding offshore renewable energy has been the potential electro-magnetic impact of cables associated with the large number of planned offshore wind farms.219 A series of studies done on this issue ultimately conclude that the current amount of information on the subject is still very limited. Indeed, there were no results that suggested

214

Frank Dohmen/Alexander Jung, Stress on the High Seas: Germany’s Wind Power Revolution in the Doldrums, Spiegel Online International, 30 December 2011, available at: http://www.spiegel.de/ international/business/stress-on-the-high-seas-germany-s-wind-power-revolution-in-the-doldrums-a805505.html (accessed on 5 March 2014). 215

Garrett (note 213).

216

Interview with Thomas Schwarz, Senior Vice-President of General Cable, WindForce Guide 2013, 15, available at: http://www.windforce2013.com/uploads/pdf/Windforce2013-Guide.pdf (accessed on 5 December 2013). 217

Ibid.

218

Garrett (note 213).

219

OSPAR Assessment (note 122), 14.

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that present sub-sea power cables posed a threat to the marine environment due to EMF.220 There is no restriction on the coastal State in imposing environmental regulations on power cables used for wind farms or oil and gas platforms (in contrast to power cables laid pursuant to Article 79 (1) UNCLOS discussed above). However, coastal States appear to have adopted different requirements for EMF-related impacts in their EIA processes. For example, Germany and Norway generally consider the issue of EMF impact of power cables to be negligible and therefore do not include it in their EIA requirements.221 The Netherlands, on the other hand, require an analysis of impacts from EMF in the EIA process including a requirement that the post-construction, sub-sea measurements of the EMF emitted from a cable are consistent with the levels before construction. However, sub-sea measurements cannot be currently carried out due to lack of available technology.222 The perceived uncertainty related to the EMF effect of power cables has meant that “both the offshore industry and the authorities face challenges in the planning, permitting, construction and operation of offshore projects.”223

B. Competing Uses

Another issue that has arisen is the potential conflict between wind farms and their associated submarine power cables infrastructure with existing submarine telecommunications cables. Offshore wind farms are a newer technology and thus tend to be built in areas where existing telecommunications cables have already been laid.224 The installation of wind farms near telecommunications cables can cause seafloor scouring (the erosion of sediment in the area around a structure on the sea floor) which in-

220 See generally Thomas Olsson et al., Impact of Electric and Magnetic Fields from Submarine Cables on Marine Organisms: The Current State of Knowledge, 12 November 2010 (also known as the Vattenfall Report), available at: http://www.seai.ie/Renewables/Ocean_Energy/Foreshore_Lease_Consultation/ Appendix_4_-_Impact_of_electric_and_magnetic_fields.pdf (accessed on 5 December 2013). 221

Ibid., 34–36.

222

Ibid., 36.

223

Ibid., 34.

224

Nielsen/Davenport (note 26), 371.

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creases the probability of communications cable damage.225 The presence of large wind farm developments also restricts both the installation and repair of telecommunications cables. Wind farms limit installation to narrow corridors “that dramatically limit infrastructure route diversity and increase risks of system outages from damage to multiple cables at once.”226 Cable repair ships will also not easily be able to repair cables if located near wind farms due to manoeuvrability and space issues.227 A second potential conflict has arisen between power cables serving wind farms and telecommunications cables. As observed by the North American Submarine Cable Association: Offshore energy systems, including wind farms and other alternative energy sources, run power transmission cables back to shore. With respect to wind farms, these often consist of multiple cables (typically three to six for larger operations) running in parallel with 50 to 100 meter separation to meet capacity requirements. Therefore, when a cable crossing situation arises, it now poses a risk of ‘sterilizing’ a much larger section of crossed telecommunications cable than a standard telecom-to-telecom crossing. For an undersea telecommunications cable owner planning to install a new undersea telecommunications cable that will cross an energy export cable, installation costs (for negotiating multiple cable crossing agreements) and risks both to the cable and to its commercial agreements in the event of delay have dramatically increased.228

The above situations are prime examples of conflicts between the rights of coastal States (wind farms and associated submarine power cable infrastructure) and telecommunications cables (a freedom accorded to all States in the EEZ and continental shelf). Both are required to give due regard to each other’s rights and duties.229 The approach of the UK in resolving this conflict is worth examining. The UK’s Crown Estate, together with Subsea Cables UK, the regional cable protection organisation, and Renewable UK, the professional body for the UK wind and marine renewable energy industries, have worked together to devise guidelines on the proximity be225 North American Submarine Cable Association (NASCA), Comments before BOEM, US Department of the Interior, In the Matter of Atlantic OCS Proposed Geological and Geophysical Activities, Mid-Atlantic and South Atlantic Planning Areas Draft Programmatic Environmental Impact Statement (NASCA Statement), 30 May 2012, OCS EIS/EA BOEM 2012-005, 20, available at: http://www.wiltshiregrannis.com/siteFiles/News/F7FE3C69FE76D28CD58D601E45D5C56B.pdf (accessed on 5 March 2014). 226

Ibid., 22.

227

Nielsen/Davenport (note 26), 371.

228

NASCA Statement (note 225), 20.

229

Art. 58 (2) UNCLOS.

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tween offshore wind farms and submarine communications cables (Proximity Guidelines).230 The Proximity Guidelines produced as a result include recommendations on concluding ‘proximity agreements’ between wind farm projects and telecommunications cables specifying inter alia the minimum separation needed between wind farms and telecommunications cables.231 Further, the Proximity Guidelines also address the problem of multiple crossings within a wind farm area such as a telecommunication cable crossing with a number of power cables.232 It encourages the relevant stakeholders to avoid multiple crossings within a wind farm area and if multiple crossings are deemed necessary, “the crossing cables should be spaced so that safe, timely and economical repairs to both the crossing and the crossed cable can be conducted without prejudice.”233 It also endorses a practice already prevalent in the cable industry, namely that of crossing agreements.234 What is notable about the UK efforts is that unlike the OSPAR BEP Guidelines, the Proximity Guidelines was a collaborative effort between the UK Government, the renewable energy industry and the cable industry.

VI. Conclusion: The Way Forward The framework in UNCLOS was carefully negotiated to take into account the rights and interests of all States and the rights and interests of coastal States. However, it is obvious from the above discussion that power cables raise particular concerns for government agencies in the management of their maritime spaces. The natural tendency is to over-regulate, largely because the EEZ and continental shelf has always been perceived in quasi-territorial terms235 and because concern about the 230 See Subsea Cables UK, Guideline No. 6: The Proximity of Offshore Renewable Energy Installations and Submarine Cable Infrastructure in UK Waters (Subsea UK Guidelines), Issue 4 (August 2012), available at: http://www.thecrownestate.co.uk/media/343985/Subsea%20Cables%20UK%20 Guideline%20%28SCUK%29%20No.%206.pdf (accessed on 5 December 2013). 231 The ICPC has also issued a Recommendation 13, Issue 2 on the Proximity of Wind Farm Developments and Submarine Cables, 2008, available via: http://www.iscpc.org/ (accessed on 15 March 2014). 232

Subsea UK Guidelines (note 230), 23–24.

233

Ibid.

234

Ibid., 3.

235

See generally Bernard Oxman, The Territorial Temptation: A Siren Song at Sea, AJIL 100 (2006), 830.

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marine environment has heightened in recent years. However, complicated and lengthy permitting processes in part due to arguably unnecessary environmental regulations may have a detrimental impact on an important public good, namely the provision of energy. Why have States adopted flawed national policies on submarine cables? One can only speculate that there is a lack of awareness on the nature and growing importance of submarine power cables, exemplified by the misconception that power cables cause serious environmental harm. This lack of awareness is attributable to several factors. As mentioned above, submarine power cables are not as prolific and public as submarine communications cables (even submarine communications cables suffer from governments’ lack of knowledge about them).236 This is exacerbated by the fact that power cables are owned or operated and installed by private companies. There is a structural inequality in that these private companies are in effect exercising the rights of States under UNCLOS but have no effective means of challenging coastal States who have impeded their rights. The dispute settlement mechanism in UNCLOS Part XV is only open to State Parties and the flag States of vessels that lay and repair such cables often do not have the interest to bring claims against errant coastal States. Further, there is no international lead agency responsible for submarine cables in contrast to shipping which is regulated by the IMO. The first step towards balancing competing rights and interests in ocean spaces lies in a good faith implementation of the ‘due regard’ obligation as required by Articles 56 (2) and 58 (3) UNCLOS. As argued elsewhere, this means that “cable companies and coastal States should take into consideration each other’s rights and interests in the EEZ and cooperate with each other to minimize conflicts.”237 It is of note that the OSPAR BEP Guidelines did not involve the cable industry whereas the Subsea UK Proximity Guidelines involved all relevant stakeholders, including the UK Government, the renewable energy industry and the cable industry. The latter has obviously received more support and this will play an important role in the effective implementation of the Proximity Guidelines. This highlights an important lesson for governments – when drafting laws, regulations and policies, it is imperative that they involve the cable industry and other relevant stakeholders. This can be done informally or formally. Such 236

Douglas Burnett/Tara Davenport/Robert Beckman, Introduction: Why Submarine Cables?, in: Burnett/Beckman/Davenport (eds.) (note 2), 8–11. 237

Davenport (note 49), 215.

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exchanges will enable stakeholders to enhance their understanding on particular issues, foster an environment of mutual confidence and trust that will in turn allow greater cooperation between cable companies and States. Ultimately, it is only through cooperation and dialogue, will the law of the sea be able to fulfil its function of balancing and accommodating competing rights and interests.

International Investment Protection Regimes in the Energy Sector KAJ HOBÉR( AND JOEL DAHLQUIST((

ABSTRACT: This contribution discusses the substantive as well as the procedural protection available to international investors in the energy sector. It begins by presenting some of the legal regimes providing protection for energy investments, including bilateral investment treaties. The Energy Charter Treaty is however the natural focus of the contribution, given its success as a multilateral treaty covering the energy sector in a wide sense and with a global reach. Consequently, the main part of the article discusses the substantive and procedural aspects of the Energy Charter Treaty. In doing so arbitral jurisprudence is extensively discussed, as the Energy Charter Treaty is a relatively young instrument and each new arbitral award contributes to the understanding of the protection afforded to investors under the treaty. In summary, this contribution submits that the system for protection of energy-related investments generally seems to work reasonably well; both from the perspective of investors and from that of host States. KEYWORDS: Energy Charter Treaty, Bilateral Investment Treaties, International Investment

I. Introduction Investments in the energy sector are almost by its definition involve public interests. From an investor’s perspective energy investments involve political risks and are vulnerable to interference by the host State. For the State there are often important national interests at stake. For both parties stability is desirable; especially since

( Prof Dr. Kaj Hobér, Professor of International Investment and Trade Law, Uppsala University; Partner, Mannheimer Swartling, Stockholm. ((

Joel Dahlquist, PhD Candidate, Uppsala University and Associate Counsel, Arbitration Institute of the Stockholm Chamber of Commerce.

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energy investments tend to be made with long-term prospects and are subject to markets that change frequently and unexpectedly. It therefore comes as no surprise that the surge in investment protection treaties, as well as the accompanying tendency to enforce investment protection standards by means of international arbitration, over the last decades has made a significant impact on the energy industry.1 Especially, in light of the multilateral Energy Charter Treaty (ECT),2 signed 20 years ago, that has put investment treaties on top of the agenda for international investors in the energy industry. The article begins by briefly discussing other regimes providing protection for international energy investments (see infra, II). As will be outlined below, the ECT forms part of a wider network of international norms and principles and often mirrors other investment protection treaties. References will be made to relevant awards rendered also under Bilateral Investment Treaties and the North American Free Trade Agreement3 in order to illustrate general points of investment protection. Parts III and IV explain the investment protection regime under the ECT and discusses some recent arbitral awards.4 As of March 2014, there are 51 registered investor-State disputes under the ECT, with

1

For more on investment treaty law in the energy sector, see e.g. Peter D. Cameron, International Energy Investment Law: The Pursuit of Stability (2010); Raymond Doak Bishop, Survey of Published International Arbitration Awards Involving the Petroleum Industry: The Development of a Lex Petrolea, in: Rocky Mountain Mineral Law Foundation (ed.), International Energy and Minerals Arbitration Mineral Law Series 2–25 (2002); Graham Coop/Clarisse Ribeiro (eds.), Investment Protection and the Energy Charter Treaty (2008); Thomas Roe/Matthew Happold/James Dingemans, Settlement of Investment Disputes under the Energy Charter Treaty (2011). 2

Energy Charter Treaty, 17 December 1994, UNTS 2080, 95 (ECT).

3

North American Free Trade Agreement, 17 December 1992, ILM 32, 289 (NAFTA).

4

For an overview of earlier awards, see e.g., Kaj Hobér, Investment Arbitration and the Energy Charter Treaty, Journal of International Dispute Settlement 1 (2010), 153, as reprinted in: Kaj Hobér, Selected Writings on Investment Treaty Arbitration (2013); Roe/Happold/Dingeman (note 1); Nils Eliasson, 10 Years of Energy Charter Arbitration, available at: http://www.sccinstitute.com/filearchive/ 4/40960/Nils_Eliasson_Report.pdf (accessed on 6 February 2014).

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roughly a third of them still pending,5 and no State-State disputes. In part V below, the provisional application of the ECT is discussed.

II. Other Relevant Regimes A. Bilateral Investment Treaties

The explosion of bilateral investment treaties (BITs) has transformed the protection enjoyed by international investors. There are almost 3,000 BITs today,6 many of which are concluded by developing countries.7 Typically, a BIT is a short document of no more than fifteen provisions, and the structure tends to be similar, commonly with three parts. The first part covers definitions, particularly of central concepts such as ‘investor’ and ‘investment.’ The second part usually outlines the substantive standards for protection including, inter alia, a guarantee of fair and equitable treatment, a guarantee of full protection and security, a guarantee against discriminatory 5 The publicly available awards or decisions on jurisdiction (not including settlements), as of November 2013, are Nykomb Synergetics Technology Holding AB v. Latvia, SCC Case No 118/2001; Plama Consortium Ltd. v. Bulgaria, The International Centre for Settlement of Investment Disputes (ICSID) Case No ARB/03/24; Petrobart Ltd. v. The Kyrgyz Republic, SCC Case No 126/2003, Award of 29 March 2005 Yukos Universal Ltd. v. Russian Federation, United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules; Hulley Enterprises Ltd. v. Russian Federation, UNCITRAL Arbitration Rules; Veteran Petroleum Trust v. Russian Federation, UNCITRAL Arbitration Rules; Ioannis Kardassopoulos v. Georgia, ICSID Case No ARB/05/18; Amto v. Ukraine, SCC Case No. 080/2005; Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No ARB/06/8; Azpetrol International Holdings B.V., Azpetrol Group B.V. and Azpetrol Oil Services Group B.V. v. Azerbaijan, ICSID Case No ARB/06/15; Cementownia ‘‘Nowa Huta’’ S.A. v. Republic of Turkey, ICSID Case No ARB(AF)/06/2; Europe Cement Investment and Trade S.A. v. the Republic of Turkey, ICSID ARB(AF)/07/2; Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14, Award of 22 June 2010, publicly available in parts; Electrabel S.A. v. Republic of Hungary, ICSID Case No ARB/07/19; AES Summit Generation Limited and AES-Tisza Erömü Kft. v. Republic of Hungary, ICSID Case No ARB/07/22; Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, SCC Case No 064/2008. An updated list including all documents and decisions/awards is maintained by the ECT Secretariat and available via: http://www.encharter.org/ index.php?id=269 (accessed on 6 February 2014). 6 United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2013, 101, available at: http://unctad.org/en/PublicationsLibrary/wir2013_en.pdf (accessed on 6 February 2014). 7

UNCTAD, International Investment Rule-making: Stocktaking, Challenges and the Way Forward (2009), 23.

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treatment and guarantees of national treatment and most favoured nation treatment.8 This part also contains protection against expropriation – the ‘heart and soul’ of investment treaties. The third part, finally, tends to deal with dispute settlement and provides for different forms of arbitration. As mentioned above, the ECT reflects provisions usually found in BITs; especially those concluded by European Union (EU) countries.9 This article will refer to arbitral awards rendered under BITs, to the extent that this is appropriate to clarify the scope of the ECT.

B. North American Free Trade Agreement

The North American Free Trade Agreement (NAFTA) was signed by Canada, Mexico and the United States of America in 1992. Though the agreement primarily deals with trade issues, its Chapter 11 regulates protection of investment. The chapter is structured in three sections: substantive obligations (Section A), rules of dispute settlement (Section B) and definitions (Section C). Provisions in Section A cover matters found in most BITs, such as expropriation, most favoured nation treatment and minimum standard of treatment. Section C contains a definition of ‘investment’ similar to that of most BITs, enumerating in detail which types of assets are protected. The definition also expressly states which assets do not constitute an investment.10 Though not specifically aimed at energy investments, and geographically restricted to only three countries, there have been at least two energy related awards under NAFTA,11 with at least two more cases pending.12 Needless to say, Canada, Mexico 8

Rudolf Dolzer/Christoph Schreuer, Principles of International Investment Law (2nd ed. 2012), 13.

9

Ibid., 15.

10

Art. 1139 NAFTA.

11

Glamis Gold Ltd. v. United States of America, UNCITRAL Arbitration, Abitral Award of 8 June 2009, available at: http://www.italaw.com/sites/default/files/case-documents/ita0378.pdf (accessed on 8 February 2014) and AbitibiBowater Inc. v. Government of Canada, which was later settled, see AbitibiBowater Inc. v. Government of Canada, Consent Award of 15 December 2010, available at: http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/disp-diff/abitibi03.pdf (accessed on 6 February 2014). 12

See Lone Pine Resources Inc. v. Government of Canada, further information is available at: http:// www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/lone. aspx?lang=eng (accessed on 7 February 2014) and Windstream Energy LLC v. Government of Canada, further information is available at: http://www.international.gc.ca/trade-agreements-accordscommerciaux/topics-domaines/disp-diff/windstream.aspx?lang=eng (accessed on 7 February 2014).

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and the United States are all major players on the global energy market, making NAFTA a highly relevant regime for investors in the sector.

C. Treaty Establishing the Energy Community

The Treaty Establishing the Energy Community (TEEC),13 concluded between the EU and several countries in South East Europe,14 creates a binding legal framework for the energy market between the EU and the signatory parties; its aim is to align the rules of the signatories with EU standards, thereby extending the European acquis communautaire regarding electricity, gas, renewables, environment and competition beyond EU borders.15The treaty does not establish independent standards of treatment for energy investments, but rather ties the protection level to that of the EU legislation.16 Unlike the ECT, the TEEC does not regulate the relationship between investors and States but stipulates how the signatory States are to comply with EU norms in their domestic energy legislation. The use of dispute settlement mechanisms in the TEEC is consequently restricted to the signatory parties and the bodies established under the treaty.17 Thus, the TEEC does not establish direct protection for individuals and corporations, but aims at creating a higher general level of protection.18

D. Energy Investments and the European Convention on Human Rights

It is important to note that energy investments enjoy protection under human rights regimes, in the form of protection of the right to property. From a procedural 13 Treaty Establishing the Energy Community, 25 October 2005 (TEEC), available at: http://www. energy-community.org/pls/portal/docs/2796177.PDF (accessed on 6 February 2014). For an overview of this regime, see Carsten Nowak, The Energy Community of South East Europe, European Yearbook of International Economic Law 3 (2012), 405. 14

As of November 2013, the ratifying parties are Albania, Bosnia and Herzegovina, Kosovo, Moldova, Montenegro, Republic of Macedonia, Serbia and Ukraine. 15

See Nowak (note 13), 406 with further references.

16

Art. 5 TEEC.

17

Arts. 89–93 TEEC. Private parties may however approach the secretariat of the TEEC with complaints. 18

See Art. 2 TEEC.

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standpoint, the European Convention on Human Rights (ECHR)19 is perhaps the most important human rights treaty, in that it allows individuals to appear before an adjudicatory body, viz., the European Court of Human Rights (ECtHR or the Court) in Strasbourg. This standing has made the ECHR an important legal tool for enforcing individual human rights.20 All Member States of the Council of Europe are parties to the ECHR, meaning that currently 47 States are bound by the treaty. This means that energy investors may be tied to obligations undertaken by Member States who are also signatories to the TEEC and parties to the ECHR. This will in turn cause energy investors to be affected by the procedural rules of the Court. Private property is protected under the first article of the first protocol to the ECHR.21 In several landmark cases, the Court has given the protection of property a broad interpretation.22 For example, the court has gone beyond the more formalistic view of expropriation and now accepts the wider notion of de facto expropriation,23 similar to indirect expropriation in investment treaty law.24 It has also in several cases acknowledged a wider protection of ‘property’ than recognised by domestic law.25 19

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 20

It is at the same the treaty’s greatest strength and its greatest weakness, as the Court is now overrun with applications. See Paul Mahoney, Thinking a Small Unthinkable: Repatriating Reparation from the European Court of Human Rights to the National Legal Order, in: Luzius Caflisch et al. (eds.), Liber Amicorum Luzius Wildhaber: Human Rights, Strasbourg Views (2007), 267. 21 See Art. 20 First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 9. The provision reads: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”. 22 See Luzius Wildhaber/Isabelle Wildhaber, Recent Case Law on the Protection of Property in the European Convention on Human Rights, in: Cristina Binder et al. (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (2009), 676 with further references. 23

European Court of Human Rights (ECtHR), Skibińscy v. Poland, Appl. No. 52589/99, Judgment of 14 November 2006; id., Weber v. Germany, Appl. No. 55878/00, Inadmissibility Decision of 23 October 2006; id., Fleri Soler and Camilleri v. Malta, Appl. No. 35349/05, Judgment of 26 September 2006; id., Ghigo v. Malta, Appl. No. 31122/05, Judgment of 26 September 2006, all available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 13 March 2014). 24 25

See infra, III.B.

ECtHR, Beyeler v. Italy, Appl. No. 33202/96, Judgment of 5 January 2000; id., Oneryildiz v. Turkey, Appl. No. 48939/99, Judgment of 18 July 2002, id., Broniowski v. Poland, Appl. No. 31443/96, Judgment of 22 June 2004; id., Hutten-Czapska v. Poland, Appl. No. 35014/97, Judgment of 19 June 2006, all available via: http://www.echr.coe.int/ECHR/EN/hudoc (accessed on 13 March 2014).

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There is, however, a crucial difference between litigation before the ECtHR and international arbitration under many investment protection treaties, including the ECT. In order to make use of the former, the claimant must first exhaust all available local remedies, which is usually not the case under investment protection treaties.26 For an aggrieved investor, it is not always practical to litigate through all channels available in the host State before turning to the Court. Such a process, apart from being expensive, generally takes many years and means that it is seldom a primary option for mistreated investors. Furthermore, the Court generally does not award damages to the same extent as an arbitral tribunal formed under an investment treaty. In sum, there are several regimes, other than the ECT, protecting international investments in general, including energy sector investments. Most investments covered by the ECT enjoy protection also under these regimes. The ECT however, having been drafted with investments in the energy sector specifically in mind, still remains the main international instrument for investors seeking protection for energy investments.

III. Investment Protection under the Energy Charter Treaty The provisions on foreign investments, set out in Part III, are an important part of the ECT. A distinction is made under the treaty between the pre-investment phase and the post-investment phase. Investments under the post-investment category are entitled to strong protection, similar to that under NAFTA or BITs,27 while softer provisions indicating a ‘best endeavour’ approach regulate the pre-investment phase.

A. Scope of the Energy Charter Treaty

Part III of the ECT only applies to “Investors” holding an “Investment” as defined in Article 1 (6) and (7) of the treaty. These terms are two important thresholds setting the bar for enjoyment of protection under the ECT, with the burden resting on the claimant to show that they are an investor holding an investment under the 26 27

Art. 35 ECHR. This principle, in various forms, is sometimes expressed in BITs as well.

Thomas Wälde, Investment Arbitration under the Energy Charter Treaty, in: Clarisse Ribeiro (ed.), Investment Arbitration and the Energy Charter Treaty (2006), 205.

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treaty’s definitions. The terms are usually interconnected, although respondent States tend to raise them as separate defences. Their scope corresponds with the right to arbitration under Article 26 since the Investor’s right to arbitration under the article is limited to disputes between a “Contracting Party [a State] and an Investor of another Contracting Party relating to an Investment of the latter in the Area [as defined in Article 1 (10)] of the former.” The identification of these terms is important as in many disputes under BITs, it is common for the question of whether there is an “Investor” holding an “Investment” in the jurisdictional phase of an arbitral proceeding; almost all decisions and awards rendered under the treaty so far have dealt with these concepts. In comparison with most BITs, Article 1 ECT contains broad definitions of Investors and Investment.

1. The Meaning of “Investor” under the Energy Charter Treaty An Investor under Article 1 (7) ECT is a natural person having the citizenship or nationality of, or being a permanent resident in, a Contracting Party in accordance with the applicable law of that Contracting Party. For legal entities, an Investor is defined as “a company or other organization established in accordance with the law applicable in that Contracting Party.” With regard to the nationality of corporations, the approach of the ECT is, thus, a formal one focusing on incorporation and does not require investigations into the direct or indirect control by the investor, unlike the provisions of many BITs.28

2. “Denial of Benefits” Clause: Article 17 The wide definition of Investor is balanced by Article 17, known as the “denial of benefits” clause, preserving the right for Contracting Parties to deny the advantages under Part III to certain investors. The Contracting Parties can thereby narrow the scope of protection granted in cases where the Investor has no substantial business activities in the Area of the contracting State where it is organised and is owned or 28

Stephen Jagusch/Anthony Sinclar, The Limits of Protection for Investments and Investors under the Energy Charter Treaty, in: Ribeiro (ed.) (note 27), 73. See also Plama Consortium Ltd v. Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction of 8 February 2005, para. 125.

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controlled by a third State entity.29 Arguably, the purpose of this option for the Contracting Parties is to prohibit investors from setting up empty corporate structures with the sole purpose of obtaining the favourable investment protection available under the ECT.30 Two disputed aspects of the denial of benefits clause are how and when a State may invoke the clause. The wording of the article seems to suggest that the denial can be exercised by the State at any time, without prior notification.31 Several tribunals have found however that the clause must be exercised actively by the host State and that the denial is not effective before such a notification has been made. The tribunal in Plama reached the conclusion that a prior notification on behalf of the host State was necessary,32 as did the Yukos tribunal.33 In the Liman Caspian Oil case,34 recently made partly public, the tribunal found that the respondent, Kazakhstan, could not invoke Article 17 retroactively. The State tried to invoke the provision more than three years after it had been notified of the investor’s claims and more than one year after the initiation of the arbitral proceedings. Allowing such a retroactive application of the denial of benefits clause, the tribunal noted, would not be compatible with the object and purpose of the ECT since an Investor must be able to rely on the advantages of the treaty as long as the 29 Art. 17 ECT reads in its entirety: “Each Contracting Party reserves the right to deny the advantages of this Part to: (1) a legal entity if citizens or nationals of a third state own or control such entity and if that entity has no substantial business activities in the Area of the Contracting Party in which it is organized; or (2) an Investment, if the denying Contracting Party establishes that such Investment is an Investment of an Investor of a third state with or as to which the denying Contracting Party: (a) does not maintain a diplomatic relationship; or (b) adopts or maintains measures that: (i) prohibit transactions with Investors of that state; or (ii) would be violated or circumvented if the beneWts of this Part were accorded to Investors of that state or to their Investments”. 30

In rejecting the applicability of the clause, the Petrobart tribunal found that the claimant was not such a company, see Petrobart Ltd. v. The Kyrgyz Republic, SCC Case No 126/2003, Award of 29 March 2005, 63. 31

See Roe/Happold/Dingemans (note 1), 84–87; Crina Baltag, The Energy Charter Treaty: The Notion of Investor (2012), 157 with further references. 32

Plama v. Bulgaria (note 28), para. 161.

33

Yukos Universal Ltd. v. Russian Federation, Interim Award on Jurisdiction and Admissibility of 30 November 2009, para. 456, available at: http://www.encharter.org/fileadmin/user_upload/ document/Yukos_interim_award.pdf (accessed on 8 February 2014). 34

Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14, Award of 22 June 2010.

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host State has not explicitly stated otherwise.35The conclusion of several tribunals is that the denial of benefits clause in the ECT has only prospective effect. The Contracting Party wishing to deprive an Investor of the substantive protection under the treaty must first notify the Investor thereof. Another issue with respect to Article 17 is the interpretation of the term: ‘third State.’ In the 2011 Libananco case the parties disagreed on this concept. The tribunal concluded that ‘third State’ means a “[S]tate not party to the treaty in question.”36 In interpreting Article 17 according to the 1969 Vienna Convention on the Law of Treaties (VCLT),37 the tribunal found that the term is used in its ordinary meaning in the ECT.38 The tribunal stressed, in accordance with the VCLT, the context of the phrase in the treaty, noting that ‘third [S]tate’ is almost always – apart from Article 7 – mentioned alongside ‘Contracting Party,’ so as to demonstrate that the two are mutually exclusive.39 In examining witnesses from the drafting process of the ECT, it also became clear that the term ‘third State’ initially read “[S]tate that is not a Contracting Party” but was subsequently changed for stylistic reasons.40 A further issue, first raised in the Plama proceedings, is whether the denial of benefits clause is part of the jurisdictional or the merits phase of a dispute.41 The tribunal in Plama looked at the system of provisions in the ECT and found, by applying Article 31 (1) VCLT, that Article 17 refers to the substantive provisions contained in Part III, as opposed to the procedural mechanisms in Article 26. Regarding the latter the tribunal stated that it “provides a procedural remedy for a covered investor’s claims; and it is not physically or juridically part of the ECT’s advantages enjoyed by that investor under Part III.”42 35

Ibid., para. 225.

36

Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No ARB/06/8, Award of 2 September 2011, para. 553. 37

Vienna Convention on the Law of Treaties, 13 May 1969, UNTS 1155, 331 (VCLT).

38

Libananco v. Turkey (note 36).

39

The Amto tribunal reasoned along the same lines in finding that a ‘third State’ is any State that is not a Contracting Party, see Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005, Award of 26 March 2008, para. 62. 40

Libananco v. Turkey (note 36), paras. 552–553.

41

Plama v. Bulgaria (note 28), paras. 79–95.

42

Ibid., para. 148.

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The tribunal upheld a distinction between Articles 17 (1) and 26 and held that the latter needs to be available to determine whether the conditions of the former have been met; not doing so would be a “license for injustice” in allowing the State to deny investors the right to arbitration.43

3. The Meaning of “Investment” under the Energy Charter Treaty The concept of Investment is defined in the ECT as every kind of asset associated with an economic activity in the energy sector, which is owned or controlled directly or indirectly by an Investor, comprising a wide range of non-exhaustive enumerated types of investments.44 This list follows most BITs but includes a wider span of investments than in most BITs.45 In fact, the Plama tribunal found it to “encompass virtually any right, property or interest in money or money’s worth.”46 The question of what constitutes being “owned or controlled directly or indirectly” is addressed in the third of the Understandings adopted by the Contracting

43

Ibid., para. 149. Subsequent tribunals have accepted this view, see Yukos v. Russia (note 33), para. 441 and Amto v. Ukraine (note 39), para. 60. This reading has however been criticised, see Baltag (note 31), 152 with further references. 44

Art. 1 (6) ECT reads in its entirety: “’Investment’ means every kind of asset, owned or controlled directly or indirectly by an Investor and includes: (a) tangible and intangible, and movable and immovable, property, and any property rights such as leases, mortgages, liens, and pledges; (b) a company or business enterprise, or shares, stock, or other forms of equity participation in a company or business enterprise, and bonds and other debt of a company or business enterprise; (c) claims to money and claims to performance pursuant to contract having an economic value and associated with an Investment; (d) Intellectual Property; (e) Returns; (f) any right conferred by law or contract or by virtue of any licences and permits granted pursuant to law to undertake any Economic Activity in the Energy Sector. A change in the form in which assets are invested does not affect their character as investments and the term ‘Investment’ includes all investments, whether existing at or made after the later of the date of entry into force of this Treaty for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the ‘Effective Date’) provided that the Treaty shall only apply to matters affecting such investments after the Effective Date. ‘Investment’ refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as ‘Charter efficiency projects’ and so notified to the Secretariat”. 45

Roe/Happold/Dingemans (note 1), 54–55.

46

Plama v. Bulgaria (note 28), para. 125.

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Parties.47 The ECT definition of “Investment” covers not only direct, but also indirect investments held through a series of shareholdings, and so forth.48

4. “Investment” under the Energy Charter Treaty Jurisprudence In the Petrobart case, the claimant had entered into a contract with a Kyrgyz Stateowned company for the purchase by the latter of 200,000 tonnes of gas condensate, for which Petrobart was not paid in full due to a series of Kyrgyz State measures. The contract was a traditional sales contract and did not involve any transfer of money or property as contribution to the charter capital in any business in the responding State but was a sales contract. The tribunal noted the problematic circularity of Article 1 (6)(c), in which the term “Investment” is not only the term to be defined, but is also part of the definition.49 Instead of relying on Article 1 (6)(c), the tribunal based its jurisdiction on Article 1 (6)(f) and held that: a right conferred by contract, to undertake an economic activity concerning the sale of gas condensate is an investment according to the Treaty. This must also include the right to be paid for such a sale.50

47 When signing the ECT the parties agreed to a series of Understandings in order to clarify certain provisions of the treaty. See ECT, Final Act of the European Energy Charter Conference, Understandings, in: ECT Secretariat, The Energy Charter Treaty and Related Documents (2004), 25 et seq., available at: http://www.ena.lt/pdfai/Treaty.pdf (accessed on 7 February 2014). With respect to Art. 1 (6) ECT, the Understanding reads: “For greater clarity as to whether an Investment made in the Area of one Contracting Party is controlled, directly or indirectly, by an Investor of any other Contracting Party, control of an Investment means control in fact, determined after an examination of the actual circumstances in each situation. In any such examination, all relevant factors should be considered, including the Investor’s: (a) financial interest, including equity interest, in the Investment; (b) ability to exercise substantial influence over the management and operation of the Investment; and (c) ability to exercise substantial influence over the selection of members of the board of directors or any other managing body. Where there is doubt as to whether an Investor controls, directly or indirectly, an Investment, an Investor claiming such control has the burden of proof that such control exists”. 48

See also Ioannis Kardassopoulos v. The Republic of Georgia, ICSID Case No ARB/05/18, Decision on Jurisdiction of 6 July 2007, paras. 121–124, and Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, SCC Case No 064/2008, Partial Award on Jurisdiction and Liability of 2 September 2009, para. 142. 49

Petrobart v. Kyrgyzstan (note 30), para. 72.

50

Ibid.

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The Kyrgyz Republic later challenged the award before the Svea Court of Appeal in Stockholm but did not challenge the holding with respect to the definition of “Investment.”51 The Petrobart definition of “Investment” has been criticised as being too wide.52 It is interesting to note that the claimant first filed its case under the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, relying on the Kyrgyz Law on Foreign Investments. The tribunal, however, rejected the claim since in its view Petrobart had not made an investment as defined in the Kyrgyz statute.53 Article 1 (6)(c) was discussed in the Amto case, where the respondent State objected to jurisdiction on the ground that the Investor did not have an Investment “associated with an Economic Activity in the Energy Sector.”54 Here, the Latvian claimant had acquired a majority shareholding in a Ukrainian company whose main activities were “installation of electric wiring and reinforcement,” “installation of fire and security alarm systems” and “painting works.” It provided these services to a Ukrainian State-owned nuclear power company. The tribunal held that this amounted to an “Economic Activity in the Energy Sector” and relied on the fact that the claimant provided technical services that were directly related to the production of electrical energy and that the relationship between the claimant and the nuclear power company was a strategic and long-lasting one.55 In a more recent award from 2011, the failure to establish that an Investment existed under the ECT was decisive in the tribunal’s decision to deny jurisdiction.56 Libananco Holdings, incorporated in Cyprus, brought expropriation claims under the ECT against Turkey, alleging a number of treaty breaches with respect to two Turkish companies in which Libananco Holdings claimed to have a majority stake. 51 Petrobart Limited v. The Kyrgyz Republic, SCC Case No. 126/2003, Review by Svea Court of Appeal of 19 January 2007, ICSID Reports 13 (2008), 480. 52

Baltag (note 31), 183. See also Roe/Happold/Dingemans (note 1), 62 et seq. for a summary of the criticism. 53

Petrobart v. Kyrgyzstan (note 30), 10.

54

Amto v. Ukraine (note 39), para. 43.

55

Ibid.

56

Libananco v. Turkey (note 36), para. 536.

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After an extensive evidence-taking, involving several witnesses, the tribunal found that the claimant had failed to meet its burden of proof to establish that it owned the two companies at the time of the alleged expropriation. Having found that there was no Investment, the tribunal did not have to further explain its decision to decline jurisdiction.

5. Temporal Jurisdiction The second paragraph of ECT Article 1 (6) states that Investments are covered by the treaty if they are made after the entry into force of the treaty, “provided that the Treaty shall only apply to matters affecting such Investments after the Effective Date.” This provision on the treaty’s coverage ratione temporis is consistent with customary international law.57 There is, however, a particular feature of the ECT that raises an issue with respect to its temporal application viz., the provisional application provided for in Article 45, which stipulates that the ECT shall be applied by States which have signed the treaty, but not yet ratified it.58 The definition in Article 1 (6) does not make clear how the application laid down there corresponds with the provisional application in Article 45. Put differently: when does the ECT ‘enter into force’ for the purpose of the definition of Investment? Is it when a Contracting Party ratifies the ECT, or is it when the treaty is provisionally applied? This was an issue in the Kardassopoulos case, where the tribunal held that Article 45 (1) constitutes an obligation for all Contracting Parties to apply the entire treaty as if it had already entered into force. This includes Article 1 (6). Therefore the term “entry into force” is to be interpreted as meaning the date on which the ECT became provisionally applicable.59

57

See Art. 28 VCLT.

58

Discussed further infra, V.

59

Kardassopoulos v. Georgia (note 48), para. 223.

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6. “Investment” in the International Centre for Settlement of Investment Disputes (ICSID) Jurisprudence As mentioned in the introduction, the ECT is part of a wider system of international investment law. The concept of investment is an integral part of every investment treaty and as such widely discussed.60 In the ICSID arbitration, a test often referred to as the Salini test has been at the centre of the debate. In the Salini decision,61 which built on an earlier case,62 four criteria were laid down as relevant when determining the existence of an “Investment” in the meaning of Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).63 They include: a. a substantial commitment by the claimant; b. certain duration of the investment; c. an assumption of risk on behalf of the investor; and d. should be of significance for the development in the host State. The Salini tribunal held these four criteria to be mandatory and cumulative. Following the Salini decision, this approach has been followed and applied by several arbitral tribunals.64 However, other tribunals have digressed from the Salini test, instead advocating a more flexible approach, focusing on party autonomy and factual 60

See Dolzer/Schreuer (note 8), 60 et seq. with extensive references.

61

Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction of 31 July 2001, ILM 42, 609. 62 Fedax N. V. v. The Republic of Venezuela, ICSID Case No. ARB/96/3, Award of 9 March 1998, ILM 37, 1378. 63

Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, UNTS 575, 159 (ICSID Convention). 64

See SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/01/13, Decision on Jurisdiction of 6 August 2003, para. 133; AES Corporation v. The Argentine Republic, ICSID Case No. ARB/02/17, Decision on Jurisdiction of 26 April 2005, para. 88; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction of 14 November 2005, paras. 130 et seq.; Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction of 16 June 2006, paras. 90 et seq.; Saipem S.p.A. v. The People’s Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction of 21 March 2007, paras. 99 et seq.

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circumstances. The first of these cases was the Biwater Gauff case.65 The tribunal, here, while reaching a conclusion akin to a “compromise between party autonomy and the Salini approach,”66 reasoned in a manner that questioned the rationale behind the four criteria approach. The tribunal relied mainly on the fact that Article 25 ICSID Convention does not contain anything similar to the four criteria. Rather the travaux préparatoires actually show that the definition of investment was left open.67 The Biwater tribunal was not willing to use a “one size fits all” definition, arguing that it would lead to arbitrarily excluding certain types of investments.68 Several tribunals have subsequently discussed the Salini test and have either applied it in one way or another,69 or deviated from it using the more flexible, fact specific approach promoted in the Biwater award.70 The debate is still far from settled, but the current state of the affairs seems to indicate that a strict insistence on any objective criteria is not generally adhered to.71 From this, it can be assumed that an investment within the meaning of Article 25 ICSID Convention exists when Treaty Parties have agreed on a definition of investment in the investment protection treaty in question, unless that definition stands in obvious contrast to the objective, general understanding of the concept.72

65 Biwater Gauff Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award of 24 July 2008. 66

Dolzer/Schreuer (note 8), 68.

67

Biwater Gauff v. Tanzania (note 65), para. 315.

68

Ibid., para. 316.

69

See Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este, S.A. v. The Dominican Republic, UNCITRAL, LCIA Case No. UN 7927, Award on Jurisdiction of 19 September 2008, available at: http://italaw.com/sites/default/files/case-documents/ ita0798.pdf (accessed on 8 February 2014); Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/ 07/20, Award of 14 July 2010; Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, ICSID Case No ARB/09/02, Award of 21 October 2012. 70 See Malaysian Historical Salvors, SDN, BHD v. The Government of Malaysia, ICSID Case No. ARB/05/10, Decision on Annulment of 16 April 2009; Pantechniki S.A. Contractors & Engineers v. The Republic of Albania, ICSID Case No. ARB/07/21. Award of 30 July 2009; Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/16, Award of 8 November 2010. 71

Dolzer/Schreuer (note 8), 76.

72

Ibid.

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B. Expropriation73 under the Energy Charter Treaty

The most important provision concerning the substantive protection of investments in the ECT is Article 13, which deals with expropriation. Protection against expropriation is the centre of every investment protection treaty, and the ECT is no exception. There is no clear definition of expropriation in Article 13, nor in the definitions part of the ECT. Like other provisions in the ECT, Article 13 mirrors language found in BITs.74 It is therefore reasonable, and indeed necessary, to look at investment arbitration jurisprudence in general in order to identify the features of the article. Expropriation as such is not illegal under international law. As a matter of principle, a host State has the right to expropriate foreign investors’ property under certain conditions and investment protection treaties usually regulate such conditions.75 It is important to note that few expropriation claims in modern arbitration jurisprudence concern the outright takings of investments.76 A direct expropriation is a radical step that often attracts significant bad-will and affects the perception of the State’s investment climate negatively. Instead, indirect expropriation is the more frequent occurrence.77 Whereas a direct (or formal) expropriation deprives the investor of the legal title to the investment, an indirect expropriation does not affect the investor’s legal right, but rather makes it impossible to utilise the investment.78 Typical State actions that 73 On expropriation in investment law generally, see Dolzer/Schreuer (note 8), 98–126; August Reinisch, Legality of Expropriation, in: id. (ed.) Standards of Investment Protection (2008); Kaj Hobér, Investment Arbitration in Eastern Europe: In Search of a Definition of Expropriation (2007). 74 Art. 13 (1) ECT reads: “Investments of Investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation (hereinafter referred to as ‘Expropriation’) except where such Expropriation is: (a) for a purpose which is in the public interest; (b) not discriminatory; (c) carried out under due process of law; and (d) accompanied by the payment of prompt, adequate and effective compensation. Such compensation shall amount to the fair market value of the Investment expropriated at the time immediately before the Expropriation or impending Expropriation became known in such a way as to affect the value of the Investment (hereinafter referred to as the ’Valuation Date’). Such fair market value shall at the request of the Investor be expressed in a Freely Convertible Currency on the basis of the market rate of exchange existing for that currency on the Valuation Date. Compensation shall also include interest at a commercial rate established on a market basis from the date of Expropriation until the date of payment”. 75

Christopher Dugan et al., Investor-State Arbitration (2008), 438.

76

Dolzer/Schreuer (note 8), 101.

77

Hobér (note 73), 9–11.

78

Dolzer/Schreuer (note 8), 101.

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amount to indirect expropriation are confiscatory taxation, exorbitant regulations and changes in tariffs.79 The measure does not have to be an isolated action; slow and successive steps which, taken together, have the same effect are also to be regarded as indirect expropriation. This is often referred to as “creeping expropriation.”80 An arbitral tribunal defined it as: a form of indirect expropriation with a distinctive temporal quality in the sense that it encapsulates the situation whereby a series of acts attributable to the State over a period of time culminate in the expropriatory taking of such property.81

Furthermore, it is possible that an expropriation is deemed to have occurred in cases where the entire investment has not been affected. Several arbitral tribunals have accepted such “partial expropriation.”82 Under Article 13 the Investor is entitled to “prompt, adequate and effective compensation” in case of expropriation. The phrase “prompt, adequate and effective” is a generally accepted requirement for compensation in most investment protection treaties.83 “Prompt” means “without undue delay” and the payment has to be “effective” in that it must be made in a convertible currency.84 In Article 13 (2), the manner in which adequate compensation is to be calculated is provided for, using the fair market value of the investment immediately before the expropriation as the benchmark. The methods of actually calculating the market value of an investment may differ, but the discounted cash flow method is often used with respect to businesses which are up and running and profitable.85

79

Hobér (note 4).

80

See Dolzer/Schreuer (note 8), 125 with further references.

81

Generation Ukraine, Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award of 16 September 2003, para. 20.22 (emphasis in original). 82 See Eureko B.V. v. Republic of Poland, Partial Award of 19 August 2005, paras. 239–241, available at: http://italaw.com/sites/default/files/case-documents/ita0308_0.pdf (accessed on 8 February 2014); Middle East Cement Shipping and Handling Co. S.A. v. Arab Republic of Egypt, ICSID Case No. ARB/ 99/6, Award of 12 April 2002; Waste Management, Inc. v. United Mexican States, ICSID Case No. ARB(AF)/00/3, Award of 30 April 2004, para. 141; see also Ursula Kriebaum, Partial Expropriation, Journal of World Investment & Trade 8 (2007), 69. 83

Dolzer/Schreuer (note 8), 100.

84

Rudolf Dolzer/Margrete Stevens, Bilateral Investment Treaties (1995), 112.

85

Dolzer/Schreuer (note 8), 296–297.

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It is not only the expropriation of tangible property that is covered by the ECT. In the definitions section of the treaty, Article 1 (6)(f) expressly states that “any right conferred by law or contract” is granted protection. This means that some failures to perform a contract could be regarded as expropriation, at any rate, in cases where the host State is a contracting party.86

1. Expropriation in the ECT Jurisprudence Alleged expropriation is a common feature in investment arbitration in general, and arbitrations under the ECT are not different in this respect. Breaches of Article 13 have been argued in most ECT arbitrations.87 There is, however, to date only one case where an expropriation claim under the ECT has been successful: in Kardassopoulos where the tribunal found that the claimant had been subjected to “a classic case of direct expropriation.”88 In this case, claimant’s company had been granted the exclusive right to operate a pipeline but various governmental decrees had extinguished this right without due process and without compensation. In Nykomb, the Swedish claimant unsuccessfully argued that it had been subjected to regulatory expropriation, a term covered by Article 13 aimed at cases where the host State takes regulatory measures that affect the Investment. The claimant had, through a Latvian subsidiary, contracted with a Latvian State-owned company to construct power plants in Latvia, on the condition that the latter undertook to purchase surplus electricity at a tariff twice the average power price at a level stipulated in Latvian domestic law. The State-owned company subsequently refused to pay the double tariff. In the arbitration, Latvia relied on the fact that the law had been changed and that according to the new law, the claimant was entitled to only 75 % of 86

This is a controversial topic, see Stephen Myron Schwebel, On Whether the Breach by a State of a Contract with an Alien is a Breach of International Law, in: International Law at the Time of its Codification, Essays in Honour of Roberto Ago (1987), 401. See also infra, III.D.4, in relation to the umbrella clause. 87 In addition to the cases referred to in this section, see the discussions in Liman v. Netherlands (note 34), paras. 430–434; Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability of 30 November 2011, paras 6.50–6.54 and AlBahloul v. Tajikistan (note 48), paras. 278–288. 88

Kardassopoulos v. Georgia (note 48), para. 387.

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the average price. The tribunal denied the expropriation claim, finding that the claimant’s assets had not been taken and that neither its shareholder’s rights, nor the management’s control over the company had been interfered with.89 Consequently, Latvia’s refusal to pay the agreed tariff did not amount to expropriation. The claimant did however succeed on its discrimination claim (see infra, III.C.3). In a case brought against Hungary,90 the claimant alleged that the State had expropriated its investment by reintroducing regulated pricing for electricity generated by the claimant. Hungary had issued two pricing decrees imposing a cap on the profit that energy companies were entitled to. The decrees were also claimed to constitute breaches of Hungary’s obligation not to discriminate, as well as to provide constant protection and security. All of the claims were denied. The expropriation claim was denied because the claimant had remained in control of its property, in which case no expropriation could have occurred.91 Indirect expropriation was rejected in the Petrobart case as well. The claimant argued that the forcible transfer of assets to other companies, as well as State intervention in judicial proceedings amounted to expropriation. The tribunal’s finding was contrary to the claim stating that: It is clear that there was no formal expropriation of Petrobart’s investment. Nor does it appear that the measures taken by the Kyrgyz Government and state authorities, although they had negative effects for Petrobart, were directed specifically against Petrobart’s investment or had the aim of transferring economic values from Petrobart to the Kyrgyz Republic. […] The Arbitral Tribunal considers that the measures taken by the Kyrgyz Republic, while disregarding Petrobart’s legitimate interests as an investor, did not attain the level of de facto expropriation. The Arbitral Tribunal therefore concludes that the Republic’s action does not fall within Article 13(1) of the Treaty.92

89

Nykomb Synergetics Technology Holding AB v. Latvia, SCC Case No 118/2001, Award of 16 December 2003, para. 4.3.1. 90

AES Summit Generation Limited and AES-Tisza Erömü Kft. v. Republic of Hungary, ICSID Case No. ARB/07/22, Award of 23 September 2009, sometimes referred to as AES II so as not be confused with the first ECT case (AES Summit Generation Limited (UK subsidiary of US-based AES Corporation) v. Hungary), brought by another AES entity, which was later settled. 91

Ibid., para. 14.3.1.

92

Petrobart v. Kyrgyzstan (note 30), 77.

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C. Standards of Protection under the Energy Charter Treaty

The basic substantive principles for the treatment of foreign investments are found in Article 10 (1) ECT, and do not deviate in any significant way from those found in most BITs. They are discussed briefly below.

1. Fair and Equitable Treatment Fair and Equitable Treatment (FET) contained within Article 10 ECT93 is a flexible and highly fact-specific standard difficult to define in general terms. Given its roots in international investment law, one can however look to awards under other treaties94 for a definition. There are many factual situations that may be covered by FET; and investors often rely on the standard. Consequently, there is a plethora of arbitral awards discussing its limits.95 For example, fair and equitable treatment usually includes protection of legitimate investor expectations, the principle of transparency, good-faith and abuse of rights principles, due process, proportionality and the prohibition on arbitrariness.96 As is evident from these principles, the FET concerns the process of States’ decision-making rather than substantive rights.97 The standard overlaps with indirect expropriation, discussed supra, III.B., where the host State imposes obligations on the investor in 93 The first two sentences of Art. 10 ECT provide that: “Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment”. 94 Generalisations should be done cautiously, given the heterogeneity of the language expressing the standard, see Dolzer/Schreuer (note 8), 132 for further references. 95

For a thematic overview of FET-related cases, see Cameron (note 1), 209 et seq., and Ioana Tudor, The Fair and Equitable Treatment Standard in the International Law of Foreign Investment (2009), 154 et seq. 96

See Hobér (note 4), 158 with case references. For more thorough studies on the standard, see Roland Kläger, Fair and Equitable Treatment in International Law (2011), and Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (2013). 97

Campbell McLachlan/Laurence Shore/Matthew Weiniger, International Investment Arbitration: Substantive Principles (2007), 260.

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order for the State to increase its share of the economic yield of the investment without actually expropriating it. Such measures are of a particular concern for investors in the energy sector.98 A connecting factor between the FET standard and indirect expropriation is that of the investor’s ‘legitimate expectation.’ The concept is a general one, expressed in different ways in municipal legislation,99 but increasingly being given an independent role in international investment law.100 Many arbitral tribunals under both NAFTA and BITs have referred to this factor in finding either expropriation or a breach of the FET standard.101 A legitimate or reasonable expectation of the investor may be created by explicit undertakings by the host State, but also by undertakings of a more general nature, such as the legal framework of the State.102 The protection of such an expectation created by government assurances is a key component in the FET standard.103 It has, however, also found its way into the expropriation discussion, as most cases of frustrated expectations can be framed under both standards.104 In an oft-cited early NAFTA award, the Metalclad tribunal stated that expropriation under that treaty includes not only open, deliberate and acknowledged takings of property, such as 98

Cameron (note 1), 170.

99

In the context of EU state aid law, see ECJ, Case C-5/89, Commission v. Germany and subsequent cases outlined in: Paul Craig/Gráinne de Búrca, EU Law (5th ed. 2011), 1107 et seq. For a more general discussion on legitimate expectations in municipal law, see Chester Brown, The Protection of Legitimate Expectations as a ‘General Principle of Law:’ Some Preliminary Thoughts, Transnational Dispute Management 6 (1) (2009), 2; Søren Schønberg, Legitimate Expectations in Administrative Law (2000). 100 See Dolzer/Schreuer (note 8), 145 et seq., with references; Michele Potesta, Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept, ICSID Review 28 (2013), 88. 101 See for example International Thunderbird Gaming Corporation v. The United Mexican States, UNCITRAL Arbitration, Award of 26 January 2006, para. 147); Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award of 29 May 2003, para. 150; Eureko v. Poland (note 82), para. 232; Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability of 30 July 2010, para. 247. 102

Dolzer/Schreuer (note 8), 115.

103

See ibid., 145 with further references; Thomas Wälde, Investment Arbitration under the Energy Charter Treaty: An Overview of Selected Key Issues based on Recent Litigation Experience, in: Norbert Horn/Stefan Kröll (eds.) Arbitrating Foreign Investment Disputes (2004), 209. 104

Hobér (note 73), 221–230.

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outright seizure or formal or obligatory transfer of title in favour of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-beexpected economic benefit of property even if not necessarily to the obvious benefit of the host State.105An investor bringing a claim often has the option of framing it under several standards, depending on the facts of the case. The delicate relationship between FET and indirect expropriation was discussed in the ICSID case Sempra v. Argentina: […] it would be wrong to believe that fair and equitable treatment is a kind of peripheral requirement. To the contrary, it ensures that even where there is no clear justification for making a finding of expropriation, as in the present case, there is still a standard which serves the purpose of justice and can of itself redress damage that is unlawful and that would otherwise pass unattended. Whether this result is achieved by the application of one or several standards is a determination to be made in the light of the facts of each dispute.106

The reasoning suggests that in cases of disappointed expectations, which could be framed as both indirect discrimination and or a breach of the FET standard, the latter is often the better option for the investor. This has also been put forward by scholars.107 The bar for expropriation is frequently high, requiring the economic value of the investment to be neutralised or destroyed.108 In many cases where this proves difficult to establish, a breach of fair and equitable treatment may still be successful. Consequently, many, in fact most, investment claims are won on the FET standard.109 It should be noted however that while the ECT contains a methodology for calculat105 Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB (AF)/97/1, Award of 30 August 2000, para. 103 (emphasis added). 106

Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Award of 28 September 2007, paras. 300–301. 107

Stephen Fietta, Expropriation and the Fair and Equitable Standard – The Developing Role of Investors’ Expectations in International Investment Arbitration, Journal of International Arbitration 23 (2006), 375 (399). 108

See Waste Management Inc. v. Mexico (note 82) and CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Award of 12 May 2005. 109 Especially in recent NAFTA arbitration, it is the standard under which most claims are framed, see Muthucumaraswamy Sornarajah, The International Law on Foreign Investment (3rd ed. 2010), 349. For an overview of the many tribunals who have grappled with the standard, see Dolzer/Schreuer (note 8), 130 et seq.; Nick Gallus, The Fair and Equitable Treatment Standard, in: Chester Brown/Kate Miles (eds.), Evolution in Investment Treaty Law and Arbitration (2011), 223, 224 et seq.

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ing compensation for an expropriation, no such guidance exists for a breach of FET under the treaty’s Article 10.110 The only ECT award so far to have found a breach of fair and equitable treatment is Petrobart, where the tribunal did not analyse the different elements of the standard but rather pointed out that “in its entirety [it] is intended to ensure a fair and equitable treatment of investments,” something it found that the Kyrgyz republic had failed to do.111

2. Most Constant Protection and Security Article 10 (1) also provides that Investments shall enjoy “most constant protection and security,” two standards whose precise meaning are yet to be thoroughly tested. It has been argued that they include, inter alia, a duty of the host State to protect the normal ability of the investor’s business to function in a level playing field.112 In AES v. Hungary, the tribunal denied the claimant’s contention that Hungary’s reintroduction of administrative pricing for electricity generated by AES was a breach of the most constant protection and security. The tribunal found that the State’s duty to provide a level playing field is not absolute and that certain changes to the legal climate are to be expected. To conclude otherwise “would be practically the same as to recognizing the existence of a non-existent stability agreement as a consequence of the full protection and security standard.”113

3. Discrimination Investments, Article 10 (1) states, are not to be impaired by “unreasonable or discriminatory measures.” This was the first standard to be breached under the ECT, when the Nykomb tribunal found that Latvia had discriminated against the Swedish 110

See Petrobart v. Kyrgyzstan (note 30), 77–78, for a discussion on compensation for an FET breach.

111

Ibid., 76.

112

Wälde (note 104).

113

AES v. Hungary (note 90), para. 13.3.5.

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investor by offering higher tariffs for electricity to other companies while failing to explain why those were different from the investor.114 The AES tribunal denied not only the full protection and security claim (see supra, III.C.2), but also the claim framed under the discrimination standard. In deciding, the tribunal relied on the fact that the reintroduced fees were calculated using the same methodology for all electricity generators.115 Therefore, in order for an investor to show that discrimination has in fact occurred, it must show that it has been treated unfairly compared to other investors and that the difference is not justified.116

4. The ‘Umbrella Clause’: Article 10 Article 10 (1) contains an umbrella clause, which operates by making it an obligation of each Contracting Party to “observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party,” thereby elevating some contractual breaches to violations of the ECT. Umbrella clauses are controversial117 as the limits of the clause contained in the last sentence of Article 10 remain largely unclear. In particular, it remains to be tested whether a State’s conduct in a commercial capacity is covered, or if only conduct by the State in an official capacity can fall under the clause.118 In the most recently publicly available ECT case,119 the tribunal at the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) in a 2010 partial award 114

For a longer discussion, see Thomas Wälde/Kaj Hobér, The First Energy Charter Arbitral Award, Journal of International Arbitration 22 (2005), 83. 115

AES v. Hungary (note 90), para. 13.3.53.

116

In a general BIT context, see Ulysseas, Inc. v. The Republic of Ecuador UNCITRAL, Award of 12 June 2012, para. 293 and Marion Unglaube and Reinhard Unglaube v. Republic of Costa Rica, ICSID Case Nos. ARB/08/1 and ARB/09/20, Award of 16 May 2012, para. 262. 117

Organisation for Economic Co-operation and Development (OECD), International Investment Law: Understanding Concepts and Tracking Innovations – A Companion Volume to International Investment Perspectives (2008), 101. For criticism, see e.g. Stephan W Schill, Umbrella Clauses as Public Law Concepts in Comparative Perspective, in: id. (ed.), International Investment Law and Comparative Public Law, (2010), 317 et seq. 118

Hobér (note 4), 225–226.

119

Al-Bahloul v. Tajikistan (note 48).

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interpreted the ECT umbrella clause broadly and found that the respondent State, Tajikistan, had breached the clause by not honouring a clear and unconditional undertaking to ensure the issuance of certain licenses. The tribunal also discussed an ICSID annulment decision containing a narrow understanding of similar treaty language,120 but read the ECT clause broadly. The tribunal reasoned that the provision in Article 10 refers to “any obligation” entered into by the State, and “as such, by the ordinary meaning of the words, includes both statutory and contractual obligations.”121 It should be noted that Articles 26 (3)(c) and 27 (2) allow for the Contracting Parties listed in Annex IA to exclude disputes covered by the umbrella clause from the ECT dispute resolution mechanism. Three Contracting Parties have done so.122

D. Most Favoured Nation Treatment: Article 10 (1)

The most favoured nation (MFN) clause provision states that Investments shall not be accorded “treatment less favourable than that required by international law, including treaty obligations,” in effect “imports” other more favourable treaty obligations on behalf of the host State into the ECT.123 Furthermore, Article 10 (7) states that Investors of other Contracting Parties shall enjoy treatment no less favourable than that of domestic Investors – known as the national treatment standard – and also expands the standard so as to apply not only to investments, but also to activities related thereto, such as management, use, enjoyment or disposal. 120 CMS Gas Transmission Company v. Argentina, ICSID Case No. ARB/01/8, Annulment Decision of 25 September 2007. 121

Al-Bahloul v. Tajikistan (note 48), para. 257.

122

Australia, Norway and Hungary (whose exclusion was noted by the tribunal in AES v. Hungary (note 90)). 123

An especially interesting and controversial issue in investment arbitration generally is whether, and if so, to what extent, an MFN clause extends to dispute settlement provisions in other treaties. For an overview of this discussion, see Dolzer/Schreuer (note 8), 270 et seq. and Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Jurisdiction of 25 June 2000, paras. 62 et seq; see also Kaj Hobér, MFN clauses and dispute resolution in investment treaties: Have we reached the end of the road?, in: id. (ed.), Selected Writings on Investment Treaty Arbitration (2013), 301–317 (originally published in: Binder et al. (note 22)) discussing RosInvestCo UK Ltd. v. The Russian Federation, SCC Case No. V079/2005, Award on Jurisdiction of 1 October 2007, available at: http://www. italaw.com/sites/default/files/case-documents/ita0719.pdf (accessed on 8 February 2014).

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IV. Dispute Settlement under the Energy Charter Treaty A. State-to-State: Article 27

An Investor may only pursue arbitration for breaches against the provisions in Part III, covering Investments. For disputes arising out of the three other pillars of the ECT – trade, transit and energy efficiency – State-to-State dispute settlement is the most important option in practice. So far, no such dispute has been made public. This article consequently focuses on investor-State arbitration.

B. Investor-State: Article 26

An aggrieved investor has access to a range of options on how to bring a claim against a host State under the ECT. Arbitration is undoubtedly the most important and in practice the dispute resolution mechanism most used by investors. The right to bring a claim is laid down in Article 26. This provision covers: disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III. Under Article 26 (1) and (2), the parties to an investment dispute must first attempt at settling it amicably within three months of the date when either party requested settlement.

1. Forum The choices presented to an aggrieved Investor, after three months of settlement attempts have elapsed, are listed in Article 26 (2)(a–c).They can be through: the national courts or administrative tribunals of the host State; mechanisms in accordance with any previously agreed dispute settlement procedure; or via international arbitration. As mentioned above, the opportunity for international arbitration is the most important remedy in practice. Pursuant to Article 26 (4), the Investor may choose any of the following forms of international arbitration:

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a. ICSID arbitration (if the Investor’s home State and the host State are both parties to the ICSID Convention); b. arbitration under the ICSID Additional Facility Rules (if the Investor’s home State or host State, but not both, is a party to the ICSID Convention); c. a sole arbitrator or ad hoc arbitral tribunal established under the UNCITRAL Arbitration Rules; or d. arbitration under the rules of the SCC. When opting for ICSID arbitration, the arbitration will be conducted under a selfcontained system designed specifically for arbitration between investors and States based on the ICSID Convention. Proceedings under the UNCITRAL124 or the SCC Rules125 are, however, more similar to traditional commercial arbitration in the sense that they are often facilitated by an appointing authority and resulting awards are enforceable under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.126 Awards rendered under these rules can be set aside by a national court, while an ICSID award can only be challenged before an ICSID ad hoc committee.127

2. Applicable Law There are different approaches to applicable law in investment treaties. Some refer to a combination of domestic and international law as applicable to disputes,128 in 124

UNCITRAL Rules on Arbitration (as revised in 2010), published in GA Res 65/22 of 6 December 2010, also available at: http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arbrules-revised-2010-e.pdf (accessed on 7 February 2014). 125 Arbitration Institute at the Stockholm Chamber of Commerce, Arbitration Rules (2010), available at: http://www.sccinstitute.com/filearchive/3/35894/K4_Skiljedomsregler%20eng%20 ARB%20TRYCK_1_100927.pdf (accessed on 7 February 2014). 126 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, UNTS 330, 3. 127 On the difference between ICSID and commercial arbitration rules generally, see Giuditta Cordero-Moss, Commercial Arbitration and Investment Arbitration: Fertile Soil for False Friends, in: Binder et al. (eds.) (note 22), 793 and Piero Bernardini, ICSID Versus Non-ICSID Investment Treaty Arbitration, in: Miguel Angel Fernández-Ballesteros/David Arias (eds.), Liber Amicorum Bernardo Cremades (2010), 159. 128

Dolzer/Schreuer (note 8), 290.

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which case the tribunals in question must apply both systems of law.129 ECT Article 26 (6), however, states that the arbitral tribunal “shall decide the issues in dispute in accordance with this Treaty and applicable rules and principles of international law.” The exclusive applicability of international law is also found in many BITs.130 The fact that the ECT and international law are to be applied does not render national law irrelevant. On the contrary, the law of the respondent State or the claimant’s home State is often crucial in deciding matters of a factual nature. The ultimate legal consequences of such matters must, however, be determined by applying the treaty and international law. For example, whether or not claimant X is an Investor in the meaning of the ECT may turn on its incorporation in country Y.131 To decide this the tribunal would have to look at the laws of incorporation in country Y as a matter of fact, but the ultimate legal question of whether claimant X is an Investor under the ECT must be decided by interpreting the ECT’s provisions.132 The applicability of international law to ECT disputes raises the question of how to deal with EU law. In two cases brought against Hungary, arising out of the same set of measures implemented by the State, the two tribunals were faced with the task of interpreting the relationship between EU law and the ECT.133 After entering the EU, Hungary changed the regime for calculating prices paid to private electricity generators. Two claimants requested arbitration under ICSID, alleging that these alterations constituted breaches of the ECT. While both cases involved a series of legal issues, the question of applicable law is probably the one of the greatest potential significance. The interesting issue was ascertaining the role of EU law in determining the law to be applied. In both cases, Hungary raised the defence that its actions were necessary under mandatory EU State aid rules. The two tribunals differed in interpreting the role of EU law. 129

Ibid., 293. For a general study of the relationship between the two, see Hege Elisabeth Kjos, Applicable Law in Investor-State Arbitration – The Interplay Between National and International Law (2013). 130

See Emanuel Gaillard/Yas Banifatemi, The Meaning of ‘and’ in Article 42(1), Second Sentence, of the Washington Convention: The Role of International Law in the ICSID Choice of Law Process, ICSID Review: Foreign Investment Law Journal 18 (2003), 375, 378 for a list of examples. 131

See supra, III.B.1.

132

See Nykomb v. Latvia (note 89), para. 3.7.

133

AES v. Hungary (note 90); Electrabel v. Hungary (note 87).

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In AES, EU law was given a dual nature as being both a regime of international law, while at the same time forming part of the Member States’ internal legal order once implemented.134 The tribunal did not elaborate further on this point. In Electrabel, however, the tribunal extensively discussed the relationship between EU law and the ECT. It noted the multiple, sui generis nature of EU law, but applied it primarily as international law and not as national law.135 By applying EU State aid rules as international law, the Electrabel tribunal had to reconcile EU rules with the ECT since both were treated as part of the same international legal order and both were simultaneously applicable to the merits of the case. The tribunal, thus, had to interpret the two in a consistent or at least harmonious manner; a delicate task, especially given the role of the European Court of Justice and its assumed monopoly on interpreting EU law.136 In the circumstances, the tribunal found that there was no inconsistency between the ECT and EU law regarding the matters at hand.137 Consequently, it did not have to decide on the hierarchy between the two legal regimes. The tribunal however continued its analysis anyway “as a courtesy to the elaborate and extensive arguments advanced”138 and reasoned, expressly obiter dicta, on the relationship between EU law and the ECT. In this context, the tribunal stated inter alia that in a hypothetical scenario – unlike the case put before the tribunal – where the two regimes provide incompatible interpretations, the view of the tribunal was that EU law should take precedence over the ECT. The tribunal said: [i]n summary, from whatever perspective the relationship between the ECT and EU law is examined, the Tribunal concludes that EU law would prevail over the ECT in case of any material inconsistency; and the Tribunal has concluded that none exists for the purpose of deciding the Parties’ dispute in this arbitration.139 134

AES v. Hungary (note 90), para. 7.6.6.

135

Electrabel v. Hungary (note 87), paras. 4.117 and 4.195.

136

See in this respect the annulment decision of the Frankfurt Higher Regional Court (Oberlandesgericht Frankfurt), Decision 26 SchH 11/10 of 10 May 2012 stating that the European Court of Justice (ECJ) does not enjoy such a monopoly, regarding the case Achmea B.V. v. The Slovak Republic, UNCITRAL, PCA Case No. 2008-13 (formerly Eureko B.V. v. The Slovak Republic), Award on Jurisdiction of 26 October 2010, available at: http://italaw.com/sites/default/files/case-documents/ ita0309.pdf (accessed on 8 February 2014). 137

Electrabel v. Hungary (note 87), para. 4.172.

138

Ibid.

139

Ibid., para. 4.1.91.

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3. Consent: Article 26 (3) In traditional commercial arbitration, the consent to arbitrate is found in the contract between the two parties, typically in the arbitration clause. Investment treaty arbitration, however, offers a different manner of establishing the consent. Since the claimant does not have a direct contractual relationship with the responding State, the consent is rather embedded in the treaty. Thus, Article 26 (3)(a) ECT provides that each State party to the treaty gives its “unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this article.”140 Therefore, by requesting arbitration, the Investor consents to the proceedings. As of that moment an agreement to arbitrate is thus formed. The consent of a Contracting Party to the ECT is irrevocable, meaning that it cannot withdraw its consent upon receiving the request of an Investor to commence arbitration. There is however a limitation on the consent in Article 26 (3)(b) applicable to the Contracting Parties that have made such a declaration. The provision known as the ‘fork in the road’ clause, charges the Investor to make a choice between arbitration and other forms of dispute resolution. If the Investor first submits the dispute to a national court, or to another forum previously agreed by the parties, it cannot later bring the same dispute to arbitration. Such a reservation has been made by almost half of the Contracting Parties.141 The ‘fork in the road’ provision was discussed by the Libananco tribunal. As mentioned above (supra, III.A.4), the tribunal found that there was no Investor and 140

Art. 26 ECT reads in relevant parts: “(1) Disputes between a Contracting Party and an Investor of another Contracting Party relating to an Investment of the latter in the Area of the former, which concern an alleged breach of an obligation of the former under Part III shall, if possible, be settled amicably. (2) If such disputes cannot be settled according to the provisions of paragraph (1) within a period of three months from the date on which either party to the dispute requested amicable settlement, the Investor party to the dispute may choose to submit it for resolution: (a) to the courts or administrative tribunals of the Contracting Party party to the dispute; (b) in accordance with any applicable, previously agreed dispute settlement procedure; or (c) in accordance with the following paragraphs of this Article. (3) (a) Subject only to subparagraphs (b) and (c), each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration or conciliation in accordance with the provisions of this Article. (b)(i) The Contracting Parties listed in Annex ID do not give such unconditional consent where the Investor has previously submitted the dispute under subparagraph (2)(a) or (b). (ii) For the sake of transparency, each Contracting Party that is listed in Annex ID shall provide a written statement of its policies, practices and conditions in this regard to the Secretariat no later than the date of the deposit of its instrument of ratification, acceptance or approval in accordance with Article 39 or the deposit of its instrument of accession in accordance with Article 41”. 141

They are listed in Annex ID ECT.

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thus had no jurisdiction. However, the tribunal still extrapolated obiter dicta on the other preliminary jurisdictional issues that were raised. One such issue was the question of consent on behalf of the Contracting Parties to the ECT. Turkey argued that by first filing suit in a Turkish administrative court, the Claimant had lost its right to request arbitration, as Turkey is one of the Contracting Parties mentioned in Article 26 (3)(b)(i) and it claimed to have filed such a statement as required by Article 26 (3)(b)(ii). Libananco challenged Turkey’s position and claimed, inter alia, that the statement Turkey had filed pursuant to subsection (ii) was not sufficient to establish that its consent was conditional. In interpreting the ECT article, the tribunal did not accept Libananco’s contention. It held that the conditional consent to arbitration flows directly from being listed in ECT Annex ID which does not require additional notification under Article 26 (3)(b)(ii) in order to be valid. In reaching this conclusion, the tribunal relied partly on the wording of the article.142 It also contrasted the structure of Article 26 with that of Article 45 on provisional application.143 The latter provision clearly makes the limitation on provisional application dependent on the making of a declaration by the Contracting Parties. This, the tribunal found, was not the case with Article 26. The tribunal found the statement mentioned in Article 26 (3)(b)(ii) to be a collateral obligation coupled with a time limit, and stated that “whatever legal consequences might follow from any failure to comply with the collateral obligation, they would not extend to the invalidation of the listing in Annex ID itself.”144

V. Provisional Application: Article 45 Generally speaking, a treaty comes to life in three steps: signing, ratification and, finally, its entry into force. The signature expresses the State’s consent to be bound subject to domestic ratification. Once the required numbers of signatory States have ratified the treaty, it enters into force.145 However, a distinctive feature of the ECT is 142

Art. 26 (3)(b)(ii) ECT starts with “for the sake of transparency,” emphasis added.

143

See infra, V.

144

Libananco v. Turkey (note 36), para. 546.

145

Alex M. Niebrugge, Provisional Application of the Energy Charter Treaty: The Yukos Arbitration and the Future Place of Provisional Application in International Law, Chicago Journal of International Law 8 (2007), 355.

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its Article 45, allowing for the treaty to be applied by States which have signed the treaty, but are yet to ratify it.

A. The Relationship between International Law and Municipal Law The scope of Article 45 is limited by a critical qualification in its first paragraph, which provides for provisional application only “to the extent that such provisional application is not inconsistent with [the Contracting Party’s] constitution, laws or regulations.”146 Such a phrase – or at least one with similar language – is found in provisional application clauses in other treaties.147 146 The relatively long Art. 45 ECT reads in its entirety: “(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations. (2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository. (b) Neither a signatory which makes a declaration in accordance with subparagraph (a) nor Investors of that signatory may claim the benefits of provisional application under paragraph (1). (c) Notwithstanding subparagraph (a), any signatory making a declaration referred to in subparagraph (a) shall apply Part VII provisionally pending the entry into force of the Treaty for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its laws or regulations. (3) (a) Any signatory may terminate its provisional application of this Treaty by written notification to the Depository of its intention not to become a Contracting Party to the Treaty. Termination of provisional application for any signatory shall take effect upon the expiration of 60 days from the date on which such signatory’s written notification is received by the Depository. (b) In the event that a signatory terminates provisional application under subparagraph (a), the obligation of the signatory under paragraph (1) to apply Parts III and V with respect to any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination, except as otherwise provided in subparagraph (c). (c) Subparagraph (b) shall not apply to any signatory listed in Annex PA. A signatory shall be removed from the list in Annex PA effective upon delivery to the Depository of its request therefore. (4) Pending the entry into force of this Treaty the signatories shall meet periodically in the provisional Charter Conference, the first meeting of which shall be convened by the provisional Secretariat referred to in paragraph (5) not later than 180 days after the opening date for signature of the Treaty as specified in Article 38. (5) The functions of the Secretariat shall be carried out on an interim basis by a provisional Secretariat until the entry into force of this Treaty pursuant to Article 44 and the establishment of a Secretariat. (6) The signatories shall, in accordance with and subject to the provisions of paragraph (1) or subparagraph (2)(c) as appropriate, contribute to the costs of the provisional Secretariat as if the signatories were Contracting Parties under Article 37(3). Any modifications made to Annex B by the signatories shall terminate upon the entry into force of this Treaty.” (7) A state or Regional Economic Integration Organization which, prior to this Treaty’s entry into force, accedes to the Treaty in accordance with Article 41 shall, pending the Treaty’s entry into force, have the rights and assume the obligations of a signatory under this Article. 147

Anthony Aust, Modern Treaty Law and Practice (2000), 141.

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The language of the qualification can be interpreted in either or both of the following ways: (1) provisional application of treaties per se must not be inconsistent with the Contracting Party’s municipal law, and/or (2) the substantive provisions of the ECT must not be inconsistent with the substantive provisions of municipal law. The parties in the Yukos case argued these two approaches respectively, but the tribunal only allowed the first argument. In doing so, it held that it is the question of whether provisional application per se was allowed under Russian law that was to be determined.148 After examining the evidence on Russian law, it found that such an application was indeed compatible with Russian legislation. The “to the extent” clause therefore did not present any limitation to the provisional application of the ECT to Russia.

B. The Relationship between Articles 45 (1) and 45 (2)

Article 45 presents two different regimes when it comes to the provisional application. In Article 45 (1), a system is laid down which entails an automatic provisional application of the ECT upon signature by the State, subject to its municipal legislative limits as discussed supra. To the extent that there is no contradiction between the ECT and the legislation of the Contracting Party, the entire treaty thus applies provisionally, with the “to the extent” language referred to above, becoming effective ipso jure.149 Article 45 (2), however, allows for a Contracting Party to declare that it does not accept the provisional application of the treaty. Such a declaration excludes provisional application all together, save for the treaty’s institutional provisions in Part VII.150 In the Yukos case, the distinction between the two first paragraphs of Article 45 was discussed. The tribunal held that even though Russia had made no declaration 148

Yukos v. Russia (note 33), para. 329.

149

Günther Hafner, The ‘Provisional Application’ of the Energy Charter Treaty, in: Binder et al. (eds.) (note 22), 603. 150

See Art. 45 (2)(c) ECT.

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under Article 45 (2), it was still entitled to benefit from the “to the extent” clause in Article 45 (1).151 Similarly, the Kardassopoulos tribunal allowed Georgia the limitation under Article 45 (2) even though the State had not made such a declaration.152

VI. Concluding Remarks In relative terms, the Energy Charter Treaty is a young investment protection treaty. Given the still scarce number of cases, jurisprudence is building by each award. This may explain why cases tend to involve so many different legal issues. It is noteworthy that the volume of cases is growing steadily. Accordingly, the jurisprudence of the ECT is still evolving. In general the system for protection of energy-related investments seems to work reasonably well, both from the perspective of the investors and from that of the host States.

151

Yukos v. Russia (note 33), paras. 268–269.

152

Kardassopoulos v. Georgia (note 48), para. 228.

Russia and the Energy Charter: Long, Thorny and Winding Way to Each Other ANDREY KONOPLYANIK(

ABSTRACT: The commentary analyses Russia’s ‘behavioural spiral’ in regard to the Energy Charter, starting with strong support since early 1990s and ending in exit from the Energy Charter Treaty (ECT) provisional application in October 2009. The improper evaluation of the ECT’s pros and cons for Russia and for withdrawal by the country’s authorities are examined, based on myths and misconceptions, generated, inter alia, by the European Union (EU). The article propones, that both the EU and Russia originally demonstrated a high interest in Energy Charter and its instruments, but since 2003, with further liberalisation of EU energy markets, expansion of the EU eastwards, signing of the Energy Community Treaty, the practical significance of the ECT for the EU began to sharply decline. The article argues that both the EU and Russia are equally responsible for Russia’s withdrawal from the ECT provisional application. It concludes that the Energy Charter is the only mutually beneficial legal fundament for Russia-EU energy cooperation and for creation of the common energy and economic space within the “broader energy Europe” and means an inevitable full return of Russia to the Energy Charter community, though the multi-facet Energy Charter process would change as well. KEYWORDS: European Energy Charter, Energy Charter Treaty, Energy Community Treaty, Provisional Application, Transit Protocol, REIO Clause, International Investment Law, Russia, European Union, Gas

(

Prof. Dr. Andrey A. Konoplyanik – Doctor of Science in (International Energy) Economics, Adviser to Director General, Gazprom Export LLC, Professor of the Chair “International Oil & Gas Business,” Gubkin Russian State Oil and Gas University; in 2002–2008 – Deputy Secretary General of the Energy Charter Secretariat; in 1991– Deputy Head of the former Union of Soviet Socialist Republics (USSR) delegation, and in 1991–1993 – the Head of the Russia’s delegation at negotiations of the Energy Charter Treaty. The author’s publications, presentations, and interviews regarding this and other subjects are available via: www.konoplyanik.ru. In this paper, the author does not intend to argue with earlier articles on the subject of Russia and the Energy Charter, even if he does not agree with many important provisions of those articles. The author thus, presents his own vision of the issues in question.

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I. Introduction With further liberalisation of European Union (EU) energy markets, which was established by the Second EU Energy Package (2003 Energy Directives),1 the role of the Energy Charter Treaty (ECT)2 as the promoter of EU energy acquis was substituted by the Energy Community Treaty and thus the role and significance of the ECT for the EU began to sharply decline, both in practice and in effective political support of the ECT process. On the other hand, the EU expansion to the East in 2004, when 10 new States mostly from Central and Eastern Europe joined the EU, resulted in the fact that all delivery points of Russian gas supplies to the EU, historically located at the external border of the 15 Member States (EU-15), since that time were located within the 25 Member States (EU-25) territory. This has created a number of misunderstandings and different interpretations of ECT rules between Russia and the EU, especially regarding transit inside the EU, on top of previous debate between the two on ECT agenda. On 30 July 2009, the then Russian Prime Minister Vladimir Putin signed Government Order No. 1055-r3 discontinuing the provisional application by the Russian Federation to the ECT. On 24 August 2009, in accordance with Article 45 (3)(a) ECT, Russia notified in writing the depositary of the Energy Charter (the government of Portugal) of its intention not to become a Contracting Party to the ECT. Sixty days later, Russia ceased to be a party applying the ECT on a provisional basis. On 19 October 2009, it became (along with Australia, Iceland, and Norway) a country that has signed but not ratified the Treaty, thereby taking a step back, while remaining within the Treaty (as the signatory of the ECT) and the Charter process. This commentary discusses whether there were reasonable grounds for this step to be taken and who ‘wins’ following Russia’s termination of the provisional application of the only multilateral inter-State instrument protecting investments in the energy industry?

1 For electricity, see EC Directive 2003/54 of 26 June 2003, OJ 2003 L 176, 37. For gas, see EC Directive 2003/55 of 26 June 2003, OJ 2003 L 176, 57. 2 Energy Charter Treaty, 17 December 1994, ILM 34, 360 (ECT), reprinted in: The Energy Charter Treaty and Related Documents – A Legal Framework for International Energy Cooperation (2004), available at: http://www.encharter.org/fileadmin/user_upload/document/EN.pdf (accessed on 14 April 2014). 3

Document on file with author.

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II. The Energy Charter A. History and Interests of Parties

The end of the Cold War and the fall of the Berlin Wall, marking the removal of the political border between Eastern and Western Europe, offered an unprecedented opportunity to overcome the previous economic division on the Eurasian continent. In the energy sector, the prospects for mutually beneficial cooperation between the East and the West were clearer and more vital than in other sectors. Russia and the former Union of Soviet Socialist Republics (USSR or Soviet Union) communities had huge energy resources, their main export item, but needed considerable investments for their development. At the same time, developed market economies of Western Europe had a strategic interest in diversifying their sources of energy supplies to reduce their dependence on the politically unstable Middle East countries. European companies had their own investment resources and were able to raise borrowed funds on acceptable commercial terms. The companies were ready to make investments into development of new energy producing regions outside the Middle East. For this reason, there was a recognised need to create a mutually acceptable foundation for development of energy cooperation among the States on the Eurasian continent. Based on these considerations, the Energy Charter process was ‘born’ in 1990. It stands to reason that multilateral energy cooperation must be founded on an inter-State mutually-acceptable agreement. At the same time, it is also obvious that certain political prerequisites, an open ‘window of opportunities,’ are required to sign a multilateral international agreement, especially a legally binding one. This is particularly true for treaties relating to such broad and basic areas of economic activities as the energy sector (where projects are characterised by the highest capital intensity and longest life-cycles compared to other industries) that provides the basis of economic development, assures the export potential of many countries and includes such ‘politically sensitive’ issues, as, for example, State sovereignty over natural resources. These agreements must have the respective political foundation. For the Energy Charter, the foundation was laid in 1975 by signing the Final Act of the Conference on Security and Cooperation in (transatlantic) Europe according

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to the results of the pan-European conference in Helsinki. Two years later, the Soviet Union represented by Leonid Brezhnev, the General Secretary of the Central Committee of the USSR Communist Party, proposed the initiative to convene a panEuropean energy conference. But at that time such a proposal seemed to be premature. However, the proposal of the USSR was revived 13 years later and in a somewhat different format. In June 1990, Ruud Lubbers, the then Prime Minister of Netherlands (the country presiding the EU at that time), put forward the idea of creating a pan-European energy community. The Energy Charter process was thus initiated offering the mechanism of assistance to former socialist countries in their transition to the market economy.4 Within the scope of those pan-European initiatives, Europe was understood as a transatlantic community of States. Since Lubbers’ initiative was put forward by the EU, the general strategy was formulated so as to combine Western European concerns (security of energy supplies) with Eastern energy assets (abundant oil and gas resources) by facilitating Western (predominantly European) investments in development of energy resources in the East and the transit of Eastern energy to Europe. That approach was beneficial for the EU for several reasons: it would assure further diversification of energy flows to the EU, provide new opportunities for oil and gas investments in the East for EU investors, and stimulate Eastern economic development. The latter was in the hope that the expanding eastern border of the European Union would be safer by having more prosperous and settled Eastern neighbours. It was expected to intensify interdependence between East and West in terms of energy and investment flows, which, in its turn, would reduce (if not totally eliminate) the remaining political confrontation within the European continent, which still existed as a consequence of the Cold War.5 This approach was also advantageous to Former Soviet Union (FSU) exporting countries, not only because they expected additional export earnings and tax revenues from extractive industries, but also because investment projects in the extractive industries generate huge multiplier effects in the processing industries and the econ-

4 This is why the Energy Charter process was often called ‘the Lubbers plan,’ especially at the initial stage. 5

Andrey Konoplyanik/Thomas Wälde, Energy Charter Treaty and its Role in International Energy, Journal of Energy and Natural Resources Law (JENRL) 24 (2006), 523–558.

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omy in general. The multiplier effects in such a developed industrial country as the USSR might by far exceed direct export earnings from these projects.6 Naturally, the latent goal of the European Union was to increase its competitiveness in the global competition with the United States of America by securing stable (and, according to expectations, with lower risk – means, lower costs – as compared to the Middle East countries) energy supplies from the FSU countries. Finally, at that time the EU developed the First Energy Directives, their provisions were the basis for the Energy Charter instruments (ECT and its Protocols). For this reason, there was a high level of correlation and consistency, including the ‘liberality,’ of legal ‘rules of the game’ provided for by both multilateral legal instruments: developed EU Directives with a narrower geographic scope7 and their acceptability for developed legally binding instruments of the Energy Charter with a broader scope.8 Thus, the Energy Charter was considered by the EU from the very beginning as a process of exporting its supranational legislation (acquis communautaire) to the East along the main energy supply chains within EU export-oriented, fixed energy infrastructure systems.9 And at that time, on the Eastern side, at the very beginning of the 6 Multiplier effects of investment projects in the extractive industries are the subject of a number of papers prepared under the guidance and with participation of Prof. Alexander A. Arbatov; for an example, on the subject see Alexander A. Arbatov (ed.), Impact on Russia’s Socio-Economic Development of Large-Scale Investments in Oil and Gas Projects Within the Scope of Six Production Sharing Agreements (text translated from the original Russian), KEPS-Petroleum Advisory Forum (1996); id., Visible and Invisible Effects, Chevron Today 2000, No. 2 (3), 25–29; id./Andrei Mukhin, SocioEconomic Effects of East Siberia – Development Projects (text translated from the original Russian), Neft, Gaz, Stroitelstvo 2000, No. 1, 60–63; id., Oil and Gas Projects in Russia: Investor’s Arguments (text translated from the original Russian), Energy Sector 2000, No. 2, 90–94. See also Andrey Konoplyanik, Analysis of the Effects of Oil and Gas PSA Projects in Russia for Budgets of Different Levels (on the Issue of Evaluation of Impact of Large-Scale Investments in Oil and Gas PSA Projects on the SocioEconomic Situation in the Country) (text translated from the original Russian), Neftyanoe Khozyaystvo 2000, No. 10, 24. 7

In the early 1990s, the European Union (EU) consisted only of fifteen countries.

8

More than 50 countries participated in the ECT negotiations.

9

On the hierarchical EU policy of its ‘export of acquis’ and its instruments, including the energy sector, to FSU States, see e.g. Andrey Konoplyanik, A Common Russia-EU Energy Space (The New EURussia Partnership Agreement, Acquis Communautaire, the Energy Charter and the New Russian initiative), in: Kim Talus/Piero Luigi Fratini (eds.), EU – Russia Energy Relations: Legal and Political Issues (2010), 45; id., Ukraine’s Inclusion into the EU Energy Community Treaty With the Countries of South Eastern Europe: Consequences For All Interested Parties (text translated from the original Russian), Oil and Gas, September 2010, 20–22, 24, 26, 28, 30, 32, 33–36; id., “Third way” for Russia: Moscow Should Choose One of Three Variants of Building the Common Energy Space with the EU (text

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Energy Charter process, import of the then being developed EU rules was acceptable for the broader Energy Charter constituency. In other words, in the absence of local national legislations in the new FSU and the former Council for Mutual Economic Assistance sovereign countries, the legally binding instruments of the Energy Charter process were supposed to fill the legal vacuum in the most important sphere of new transitional economics, the energy sector, for both East (energy exporters and transit countries and capital importers) and West (energy importers and capital exporters). The legal vacuum was supposed to be filled by the most up-to-date (predominantly liberal) global and European models of the State regulation of the energy sector, primarily, through the mechanisms of stimulation and protection of direct foreign investments: legally binding documents of the Energy Charter were developed based on the EU legal instruments, World Trade Organization (WTO) agreements,10 the North American Free Trade Agreement (NAFTA),11 and a system of almost 40012 bilateral investment protection agreements, or Bilateral Investment Treaties (BITs), that existed by the early 1990s. The negotiations began in the summer of 1990 and were completed within a year by signing the political declaration: the European Energy Charter of 17 December 1991 in The Hague, Netherlands.13 The declaration was signed by 50 countries from Europe, North America, and Asia. The list of parties to the declaration was defined by the fact that, firstly, on the Western side there were Organisation for Economic Co-operation and Development (OECD) countries;14 secondly, ‘Europe’ was undertranslated from the original Russian), Neft Rossii [Russian Oil] 2009, No. 6, 16–21; No.7, 14–19; No. 8, 11–16; No. 9, 13–18; id., A Common Russia–EU Energy Space: the New EU–Russia Partnership Agreement, Acquis Communautaire and the Energy Charter, JENRL 27 (2) (2009), 258; id., To Bypass the Sticking Points, Politicheskiy Zhurnal, Nos. 6–7 (183–184), 21 April 2008, 40–44. 10 See General Agreement on Tariffs and Trade, 30 October 1947, UNTS 55, 194 (GATT 1947); also see General Agreement on Tariffs and Trade, 15 April 1994, UNTS 1867, 187 (GATT 1994); Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, UNTS 1867, 154. 11

North American Free Trade Agreement, 17 December 1992, ILM 32, 289.

12

UN Conference on Trade and Development (UNCTAD), Bilateral Investment Treaties: 1959– 1999, UNCTAD Doc. UNCTAD/ITE/IIA/2 (2000), 1, available at: http://unctad.org/en/Docs/ poiteiiad2.en.pdf (accessed on 22 April 2014). 13

Concluding Document of the Hague Conference on the European Energy Charter (EEC), 17 December 1991, available at: http://www.encharter.org/fileadmin/user_upload/document/EN.pdf (accessed on 14 April 2014). 14 At that time including developed countries of Western Europe, North America (USA and Canada), Japan, Australia, and New Zealand. All these countries signed the political declaration of the EEC in 1991, see EEC (note 13).

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stood in terms of the pan-European Conference on Security and Cooperation in Europe of 1975, i.e. as ‘transatlantic Europe.’ For this reason, despite the term ‘European’ in the declaration’s name, the Energy Charter and its instruments have never been considered as merely and exclusively a European initiative and a European-only instrument. The legally-binding ECT and Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects were signed in December 1994 and took effect in April 1998. In connection with the creation of the WTO on the basis of GATT, in 1998, the Amendment to the Trade-Related Provisions of the Energy Charter (Trade Amendment)15 was adopted, that came into effect in 2009.16 There are also some incomplete documents in the Charter package.17 15 ECT, Amendment to the Trade-Related Provisions of the Energy Charter (Trade Amendment), in: ECT, Main Trade-Related Provisions of the Energy Charter Treaty as amended by the Trade Amendment adopted on 24 April 1998, 44 et seq., available at: http://www.encharter.org/ fileadmin/user_upload/document/Trade_Provisions_of_the_ECT_-_2003_-_ENG.pdf (accessed on 14 April 2014). 16 They are now called the Treaty Applicable Trade Provisions of the Energy Charter Treaty (2003), available via: http://www.encharter.org/index.php?id=168 (accessed on 14 April 2014). 17

The framework of the Energy Charter and related documents thus consists of a political declaration (see EEC (note 13)) and, inter alia, a set of legally binding instruments. Thus the Energy Charter political principles are incorporated in the legally-binding ECT and related documents, both of ‘horizontal’ and ‘vertical’ type, including both those that have entered into force and those that are in the making or placed ‘in the fridge’ (e.g. which further development and drafting is postponed). There are two ‘horizontal-type’ Energy Charter legally-binding documents that came in effect (the first figure is the date of signing, the second figure is the date of coming into effect): the ECT (note 2) (1994/1998), which is the ‘Constitution’ of the Energy Charter process, and the Trade Amendment (note 15) (1998/2009), which brought the trade-related sections of the ECT in line with the WTO language or rules and expanded its coverage from Energy Materials and Products to also energy-related equipment. One ‘horizontal-type’ document (to be legally-binding) was placed in the ‘fridge’: the Supplementary Treaty (on investment, aimed to expand national investment treatment to the pre-investment stage as well); the draft version is available via: http://www.encharter.org/index.php?id=33 (accessed on 24 April 2014). Among ‘vertical-type’ legally-binding instruments one came onto force, the Protocol on Energy Efficiency and Related Environmental Aspects, 17 December 1994, available via: http://www.encharter.org/index.php?id=43 (accessed on 24 April 2014) (1994/1998) and one is in the making (see Final Act of the Energy Charter Conference with Respect to the Energy Charter Protocol on Transit, Draft Version, 31 October 2003, available at: http://www.encharter.org/fileadmin/ user_upload/document/CC251.pdf (accessed on 24 April 2014). A number of specific energy industries-related Protocols were suggested to be developed at the initial stage of the negotiations on the ECT. The Protocol on Nuclear Energy was initially drafted but negotiations were closed afterwards. From this author’s view, one further Protocol (multilateral document) could have been suggested by Russia or the EU in 2009, after the unfortunate Russia-Ukraine gas transit crisis (with a possible title Protocol on Preventing Emergencies in Transit), but instead Russia and the EU has signed a bilateral document of this kind – the Early Warning Mechanism (“Memorandum on an Early Warning

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As of May 2014, the ECT has been signed or acceded to by 52 countries of Europe and Asia,18 as well as European Communities and the European Atomic Energy Community, so the total number of signatories is 54, with 46 States that have ratified the Treaty. This ratifying States include all the EU States. Five States – Australia, Belarus, Iceland, Norway, and Russia – have not yet ratified the ECT, though Belarus applies the Treaty on a provisional basis; Russia also applied the Treaty on a provisional basis until October 2009 when it discontinued its provisional application. The Energy Charter observers are 23 countries and ten international organisations.19 Key dates of the Energy Charter development process are presented in Table 1.

Table 1: Key Dates in the Energy Charter Develop ment Process (until Russia’s withdrawal from provisional application of the ECT) 25 June 1990

17 December 1991 17 December 1994 16 April 1998 23–24 April 1998

February 2000 December 2002

Ruud Lubbers, Prime-Minister of The Netherlands, presents an EU initiative on forming the pan-European Energy Community at the European Council meeting in Dublin, Ireland. The European Energy Charter (EEC), a political declaration, is signed in The Hague, Netherlands. The ECT and Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects (PEEREA) are signed in Lisbon, Portugal. ECT enters into full legal force after its 30th ratification. The Trade Amendment to ECT is adopted, which brought trade-related provisions of the ECT in line with the WTO norms, also expanding the ECT scope to ‘energyrelated equipment.’ Negotiations on the Energy Charter Protocol on Transit begin. Multilateral phase of the negotiations on the Energy Charter Protocol on Transit concludes; three open issues on the draft Protocol were to be first resolved within bilateral consultations between Russia and the EU.

Mechanism in the Energy Sector within the Framework of the EU-Russia Energy Dialogue”) available at: http://ec.europa.eu/energy/international/russia/dialogue/warning_en.htm (assessed on 10 May 2014)). So the Energy Charter package of legally-binding and non-binding documents is designed as a modular legal structure, e.g. open-end set of both instruments and members, which opens the way for its multifaceted and multi-directional further development. 18 With Pakistan’s accession to the ECT (making it the 53rd) member country, supported by the Energy Charter Conference (the supreme body of this international organisation) in November 2006. 19

List of countries are available via: http://www.encharter.org/ (accessed on 10 May 2014).

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End of December 2005

July 2006

April 2007 September 2007 September 2008 1–19 January 2009

21 April 2009

June 2009 19 October 2009 November 2009

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On the results of the second five-year Review (mandated under Article 34 (7) ECT) of the Energy Charter activities, the Energy Charter Conference decided on regular adaptation of the Energy Charter process to the new challenges and risks of the energy markets development. On the threshold of the Russia-Ukraine gas transit crisis, informal working agreement was reached by the then acting leadership of the Energy Charter Secretariat (ECS) with the high-level Russian and Ukrainian authorities, that should the two parties not reach their bilateral agreement, they will use the Energy Charter’s conciliatory procedure for resolution of transit dispute. Both parties also informally adopted the candidacy of the conciliator proposed by the ECS; and a corresponding letter by the newly appointed ECS Secretary General was sent on his first day in the office in his new capacity, on 3 January 2006, to both parties proposing this already agreed procedure. This however was not used, as on 4 January 2006, Russia and Ukraine had come to a bilateral settlement of their dispute after three days of termination of Russian export supplies to Ukraine. The Group of Eight (G-8) Summit in Saint-Petersburg, which concluding documents regarding enabling energy security, especially in regard to its investment aspects, are prepared mostly with the use of the ECT and its related documents. The Special Energy Charter Working Group on Strategy Issues is formed to implement and enforce decision of the December 2004 Energy Charter Conference. Russia-EU bilateral consultations are concluded and transformed into multilateral consultations on the draft solutions reached by Russia and the EU. Multilateral negotiations on finalisation of the Energy Charter Transit Protocol are resumed. Second Russia-Ukraine gas crisis; on its results Russia’s highest political leadership claimed that the Energy Charter in its incapability or unwillingness to solve the problems, related to violation of the ECT provisions; this was factual blaming of the Energy Charter in lack of dispositive legal capacity and political leadership of its Secretariat in incompetency. An initiative of the then Russian President Dmitry Medvedev on the “Conceptual Approach to the New Legal Base of International Cooperation in the Energy Sphere (Aims and Principles)” is adopted based mostly on the Energy Charter documents. ECT Trade Amendment enters into full legal force after its 35th ratification, now known as the Treaty Applicable Trade Provisions of the ECT. Russia withdraws from the provisional application of the ECT. On results of the third five-year Review of the Energy Charter activities, the Energy Charter Conference converted the status of the ad hoc Strategy Group into permanent one; the Trade and Transit Group is given one year to finalise negotiations on Transit Protocol; Russia expressed its support to Energy Charter process.

The Energy Charter Treaty can be considered as a multilateral investment agreement with a much broader scope than just purely investment-related document. The Treaty is different from other bilateral investment agreements by its application to the energy sphere but in a broader sense. During its preparation, the ECT did not draw much public attention, which was primarily focused on WTO and Multilateral

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Investment Agreement (MAI) negotiations. But with the failure of MAI negotiations in 1998, which factually paved the way to the termination of further activities on the Energy Charter draft Supplementary Treaty, and the lack of any promising initiatives in this area at that moment within the scope of OECD, WTO or elsewhere, the Energy Charter Treaty became one of the most impressive achievements in the international treaties process of the 1990s.

B. Aspects of the Energy Charter

The Energy Charter is a comprehensive multifaceted notion – meaning a process, an international organisation, and a system of documents at the same time. This includes all of the following: 1. A set of multilateral documents of different character, such as: a. EEC political declaration of 1991, b. Legally binding documents of 1994 (ECT, PEEREA) and 1998 Trade Amendment (Treaty Applicable Trade Provisions of the ECT), c. Other numerous legally binding and non-binding documents: Protocols, Understandings, Decisions, Declarations, Statements, model agreements, etc.; 2. Long-term Energy Charter process and the objective cycle of its development with the following consecutive phases: a. Negotiations on development of legally binding documents, b. Monitoring of their execution and efficient application, c. Multilateral political discussions on compliance of the Energy Charter instruments with new realities of the energy markets development and on agreement of measures to adjust these instruments to such new realities, d. New multilateral negotiations on modernisation of operating instruments or preparation of new Energy Charter instruments; the whole cycle is repeated at the next level;

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3. International organisation (Energy Charter Conference) as a political forum; within this forum the working process of different working groups of this international organisation is convened; 4. Energy Charter Secretariat as an administrative body of the multilateral international organisation. The Energy Charter Treaty is a sort of a ‘constitution’ of the Energy Charter process. Only legally binding documents are subject to ratification. At the same time, it is not possible to sign and ratify any legally binding document of the Energy Charter without signing and ratifying the ECT and, prior to that, the EEC, and the political declaration under Article 33 (3) ECT. The ECT is the only legally binding international legal instrument relating exclusively to the inter–State cooperation in the energy sector and covering, in its essential part, international investments, energy trade and transit, energy efficiency, and dispute resolution procedures.20 The fundamental goal of the ECT is to strengthen the rule of law on energy issues by creating a level playing field of rules to be followed by all participating governments, thus minimising the risks associated with energy-related investments and trade.

C. ECT and Project Financing: Operation of the Treaty

The main part of the ECT outlines the investment protection regime (Part III). It is modelled on Chapter XI NAFTA and on the contemporary BIT types. The section must be considered in combination with Article 26 ECT, Part V, which allows an investor to litigate directly against the government of the host country violating one of the contracted liabilities under the ECT, immediately in front of an independent arbitration tribunal – this provision is a legal innovation and novelty of the Treaty. 20

For detailed economic and legislative analysis of the Energy Charter Treaty, its historical prerequisites and negotiations history, as well as Russia’s concerns with respect to the ECT ratification, see Thomas Wälde (ed.), European Energy Charter Treaty: An East-West Gateway for Investment & Trade (1996); id., (ed.), (English version)/Andrey Konoplyanik (ed.), (Russian version), Energy Charter Treaty: The Way to Investments and Trade for East and West (2002); a brief complex analysis of the ECT is presented in Konoplyanik/Wälde (note 5), 523–558; id., The Energy Charter Treaty and its role in the global energy sector, Neft, Gas i Pravo 2008, No. 6, 56–61; 2009, No. 1, 46–50; No. 2, 44–49; No. 3, 48–55.

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The fundamental feature of the ECT investment provisions is ensuring a ‘level playing field’ for energy sector investments within the ECT member countries to minimise non-commercial risks associated with energy investments. In this respect, “the energy sector” in the ECT (Article 1 (5)) has the broadest possible meaning, including initially a wide range of Energy Materials and Products (Article 1 (4)). After the Treaty Applicable Trade Provisions of the ECT came into force in 2009, the notion also covers energy-related equipment and all parts and stages of the full investment and production cycle in the energy sector. ‘Investments’ in the ECT (Article 1 (6)) also have an extensive definition providing investors with stimuli for broadest spectrum of what can be considered as ‘investment activities’ within the energy sector by providing protection to such activities. The ECT provides protection of foreign investments in the energy sector based on the principle of non-discrimination in Article 10 (2) and (3). By accepting the ECT rules, a country undertakes to extend the national investment regime or the most favoured treatment to individuals and legal entities of other signatory States which have invested in its energy sector. The ECT distinguishes between the pre-investment stage (Articles 10 (2), (3) and (5)) and the post-investment stage (Article 10 (7)). In the first case, the ECT sets only ‘soft-law’ obligations of the parties, i.e. those with a more flexible framework and less specific content such as ‘shall endeavour.’ In the second case, the ECT provides for ‘hard-law’ legal obligations presented expressly as a must: “the parties shall encourage and create,” which means that the parties must (are obliged to) encourage and must (are obliged to) create. The reason for the distinction is that States should be relatively free to make decisions with regard to specific investors and areas of investments. But once an investor is admitted to the internal market, and has made concrete investments, and is thereby exposed to considerable political risk, the tougher the obligations are for the host State to behave fairly towards the investor. Obligation to adhere to providing foreign investors with non-discrimination access to the internal market is realised in the form of two flexible liabilities, i.e. obligations to pursue the following:

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1. Not to impose new restrictions for foreign investors with respect to new investments under Article 5 (a) ECT (the stand-still rule), and 2. To gradually eliminate existing restrictions under Article 5 (b) ECT (the rollback rule). Introduction of these rules reflects the international practice of the last 20 years to consistently liberalise and/or eliminate restrictions for direct foreign investments. However, since 2003–2004 (when oil prices started to soar) there has been a gradual increase in restrictive developments with respect to direct foreign investments in national legislations. The share of these has amounted to 30 % in 2009 against 0–10 % in pre-2003.21 Stabilisation (non-deterioration) and/or improvement of investment conditions by legally binding (hard and soft law) provisions of the ECT bring into action the ECT’s economic and legal instruments. They lead to lower non-commercial risks and reduced costs of borrowed funds, with corresponding financial and economic effects for an investor and the host country. The ECT is an instrument for project financing efficiency improvement. As an international treaty, it is aimed, however, at achieving business results. As an integral part of the international legislation the ECT assures reduction of investment risks and, as a result, financial costs of project implementation in case of a more protectionist and less non-discriminatory nature of the national legislation (in comparison with the ECT). This means improvement of prospects to receive higher and/or faster returns on investments, i.e. projects become more competitive on the capital market. As a result, the country’s positive capital balance grows in two directions: through reduction of domestic capital outflow and increase in direct foreign investment inflow. Inflow of capital in the form of direct investments is transformed into more capital expenditures. Since capital expenditures are the carriers of the scientific and technological progress and innovations, a somewhat lagged reduction in technical costs of project implementation thus takes place. Both factors (reduced financial and technical costs) ensure an increase in taxable profit which, in case of an adequate fiscal 21

UNCTAD, Trade and Development Report (2010), 76–77.

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system, results in a higher internal rate of return (IRR). As a result, the project’s competitiveness on the commodities market rises, as does the market share of its output (sales). The company enjoys higher revenue and capitalisation, lower credit rates, etc. This means growth of tax revenues and royalty payments for the host country and increase in direct and indirect, including multiplier, effects from the project within the host country. Thus, the ECT has the multiplier legal effect on lowering the risks with the resulting economic benefits regarding reduction in costs and growth of profits and revenues. Consequently, competitiveness of investment projects rises, with more direct and indirect investment revenues for the host country. But despite these evident positive effects of the Treaty and the Charter process for the energy-rich host countries, Russia did not ratify the ECT and has finally withdrawn from its provisional application. For what reason or purpose was this?

III. Russia’s Criticism of the ECT: Reasonable and Far-Fetched Claims Since the beginning of the ECT ratification procedure in Russia in 1996, its opponents have been raising different objections against ratification. These objections were analysed by the author in detail earlier.22 The major part of the ECT opponents relates to foreign investment antagonists per se. They consider foreign direct investment presence in Russia and in the energy sector and mineral extractive industries in particular, as a “bargain sale of the Motherland.” The most frequently repeated arguments against ECT ratification in Russia boils down to four: of which one related to trade in nuclear materials, and the other three related to natural gas trade. Two of the ‘gas’ objections concern transit issues and the last one deals with long-term contracts. At the same time, both ‘transit’ objections to the ECT do not 22

Andrey Konoplyanik, Ratification of the ECT: First Of All, Opponents’ Bona Fide Ignorance Should Be Assuaged (text translated from the original Russian), in: Wälde/Konoplyanik (eds.) (note 20), Chapter 22; id., Fighting the Myths: On Imaginary Benefits and Threats of the Energy Charter Treaty (text translated from the original Russian), Politicheskiy Zhurnal, 13 June 2006, No. 21 (116), 32–36; id., Power of Argument and Argument of Power. What is the Energy Charter for Russia? (text translated from the original Russian), Mirovaya Energetika, June 2004, No. 6, 50 et seq.

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relate to Russian gas transit through the territories of foreign States when gas is supplied to Europe, but focus on prevention (non-admission) of transit gas supplies from the Central Asia via Russia to Europe on the terms (as though when interpreted according to ECT rules) will discriminate against Russian producers and exporters. Thus, the main objections to the ECT were initially associated with transit issues. As is shown below, two transit objections are valid. A procedural solution was found: development of a Transit Protocol with an acceptable solution with the two issues of Russia’s concern in substance as a prerequisite for ECT ratification by Russia. The question remains, whether the prerequisite will be sufficient. On the eve of the 2006 G-8 Summit in Saint-Petersburg, in the light of strong (inherently counterproductive) pressure on Russia from Western countries, some of which were not contracting parties or signatories to the ECT, called on to Russia to ratify the ECT irrelatively to completion of the Transit Protocol, Russia raised further objections to the ratification, namely, the incompleteness of the Supplementary (Investment) Treaty.23 However, some Russian politicians seemed not to be conversant with the ECT and seemed to be unaware of the modern practice of preparation and conclusion of multilateral agreements which always reflect an achievable multilateral balance of interests, i.e. the minimal set of provisions satisfying all participating parties, and not the set of provision which, as it used to be, a country could impose on a wider community or another country in a bilateral agreement. Therefore, they were dissatisfied by the fact that the ECT did not contain some important, from their point of view, provisions24 and demanded the non-ratification of the ECT and a rewrite of the Treaty to include in its new version some amendments and alterations allegedly beneficial for Russia, before the State Duma returned to the ECT ratification issue. At the same time, the politicians did not consider that 46 countries have already ratified the ECT in its given version making it practically impossible to 23 Andrey Konoplyanik, Russia-EU, G-8, ECT and Transit Protocol, Russian/CIS Energy & Mining Law Journal 4 (3) (2006), 9, 12. 24 The present author has, on numerous occasions, including his publications and presentations, argued against the ECT opponents and their objections to the Treaty. See e.g. id., Fighting the Myths: On Imaginary Benefits and Threats of the Energy Charter Treaty (note 22), 32–36; id., Power of Argument and Argument of Power. What is the Energy Charter for Russia? (note 22), 50–53.

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make them walk away from ECT ratification in favour of a new – yet to be developed and thus yet unknown in substance – document.

IV. ECT: Transit and Draft Transit Protocol Since the Russian government introduced the topic of ECT ratification in the Russian State Duma in August 1996, Russia’s legitimate – from this author’s view – concerns about the ECT only focused on two matters covered by Article 7 ECT ‘Transit’: (1) Whether it is possible to interpret the provisions of Article 7 (3) concerning the correlation between the levels of transit tariffs and domestic transportation tariffs in a detrimental to Russia manner; and (2) The absence in Article 7 (7)(c) of a mechanism for converting the interim transit tariffs set by a conciliator in the course of transit dispute settlement through conciliation to final transit tariffs upon dispute resolution.25 Therefore, these legitimate concerns of the nation were evidence not that they (and or the Treaty as a whole) were unacceptable per se but only that various interpretations were possible for the said ECT provisions, including those that would go against the grain for Russia. It was necessary to make practical decisions,26 which

25

Apart from these legitimate concerns that needed clarification, the opponents of ECT ratification by Russia, whose mouthpiece has been and remains the incumbent (now former) deputy chair of the RF State Duma and CEO (now also former) of Russian Gas Society Valery Yazev, have voiced a great many other complaints about the ECT, which should be categorised as ‘myths’ due to the fact that the authors of the objections had not even read the ECT for themselves (a case in point is debate of many years between the author and Mr Yazev, who has strongly insisted that the ECT required mandatory thirdparty access to the gas-transportation infrastructure whereas the ECT explicitly states the opposite in its Understanding IV.1(b)(i), 25 of the text in its September 2004 publication by the Energy Charter Secretariat, available at: http://www.encharter.org/fileadmin/user_upload/document/EN.pdf (accessed on 24 April 2014)), but judged it based on the interpretation given to ECT provisions by the international media or EU politicians, who discussed not what is set forth in the Treaty (since most of them seemed not to have read the Treaty as well) but what they would have liked to find there, governed by and based upon the evolution of EU legislation and their ambition to expand its jurisdiction over the EU neighbouring countries. 26

These were what the author of this paper mostly worked to elaborate and achieve when serving as Deputy Secretary General of the Energy Charter Secretariat in 2002–2008.

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would enable addressing Russia’s reasonable complaints without amending the Treaty itself. In the course of parliamentary debates in January 2001 on the issue of ECT ratification, the State Duma took a pragmatic and legally feasible decision that Russia’s legitimate concerns about the ECT transit provisions must be addressed in a dedicated legally binding Energy Charter Protocol on Transit.27 Pursuant to Article 1 (13)(a) ECT, ‘Protocol’ means “a treaty […] in order to complement, supplement, extend or amplify the provisions of this Treaty with respect to any specific sector or category of activity […].” Therefore, using the Energy Charter Protocol on Transit to elucidate the interpretation of the provisions of Article 7 ECT on transit is legitimate and does not require editing or amending the ECT itself. The many years of bilateral informal consultations between Russian and EU experts about the draft Transit Protocol, which were particularly intensive and effective in 2004–2007, produced special mutually acceptable understandings, which had been agreed at the multilateral expert level and set forth therein (but which, however, have not yet been given political support by the stakeholders), with respect to the ECT provisions on transit. By 2007, all matters in dispute in the Transit Protocol, except for one provision, had been resolved. Differences persisted with respect to the EU proposal (Article 20 of the draft Transit Protocol – so-called ‘REIO28 clause’) that the movement of Energy Materials and Products within the European Union be not classified as transit. This is based on the EU’s argument that no transit can exist – in the legal meaning of the term as set forth in Article 7 ECT – within the EU single market.29 27

Negotiations on it started in 2000 (see Table 1 above).

28

Regional Economic Integration Organization (Art. 1 (3) ECT): “Regional Economic Integration Organization” means an organization constituted by [S]tates to which they have transferred competence over certain matters a number of which are governed by this Treaty, including the authority to take decisions binding on them in respect of those matters. 29 A few years later, after the Third EU Energy Package came in force in September 2009 and the EU Gas Target Model (GTM) was developed since 2010 based on provisions of the Third Energy Package, it became clear that this earlier EU delegation’s argument – about as if homogenous single EU gas market – was nil and void, since the GTM vision of the EU single market is based on the combination of a number of EU market zones of a pool character (entry-exit zones) with virtual trading point in each zone. Cross-border points with bundled capacity products in each such interconnection point will stay to exist. So cross-border character of the internal EU gas market will continue to be its characteristic feature even at the later stage of its evolution towards its further liberalisation. This means that the ‘REIO clause’ introduced by the EU delegation in 2002 at Transit Protocol negotiations, (i) was based

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This EU proposal may have created additional transit risks for supplies of Russian gas to Europe (for example, the risk of ‘contractual mismatch’ which was a result of the key novelties implemented by the Second EU Gas Directive:30 unbundling of vertically integrated companies and mandatory third-party access within the EU territory) because after the EU expansion in 2004–2007 a significant portion of these supply routes – up to gas delivery points in Russia’s or Gazprom’s long-term gas export contracts – passed through EU territory.31 However, the draft “Energy Charter Plus Roadmap,”32 which was discussed in 2009 (see infra, VII. C.), ushered in a very important and then new idea that would have paved the way to a radical solution of the problem (though this proposal was not recalled by the parties) – the option of incorporating into the Transit Protocol a provision that Article 20 will be automatically deleted from it in the event of the Transit Protocol ratification by Russia. It means that this would apply to ECT ratification by Russia, too, because Russia can only ratify the ECT and the Transit Protocol concurrently (see Table 2). However, the failure by the Russian delegation

on factually incorrect interpretation by the EU delegation of the very concept of the EU internal gas market, and (ii) has factually prevented negotiations on the draft Transit Protocol to be finalised. 30 EC Directive 2003/55 of 26 June 2003 Concerning Common Rules for the Internal Market in Natural Gas and Repealing Directive 98/30/EC, OJ 2003 L 176, 57. See also Andrey Konoplyanik, Third EU Energy Package: Regulatory Changes for Internal EU Energy Markets in Gas and Possible Consequences for Suppliers (Incl. Non-EU Suppliers) and Consumers, Oil, Gas and Energy Intelligence Law (OGEL) 3 (2011), available at: http://www.ogel.org/article.asp?key=3130 (accessed on 16 April 2014). 31 For the nature of the risks, see e.g. Andrey Konoplyanik, On the Evolution of Contractual Arrangements for Supplies of Russian Gas to Europe (text translated from the original Russian), Perspektivy Energetiki [Energy Industry Prospects] 10 (1) (2006), 1; id., Russian Gas for Europe: Evolution of Contractual Arrangements (from Long-Term Contracts, Border Sales and Final Destination Provisoes to other Forms of Contractual Relationship?) (text translated from the original Russian), Neft, Gaz i Pravo 2005, No. 3, 33–44 and No. 4, 3–12. 32

Id., Energy Charter Plus – Russia to Take the Lead Role in Modernizing ECT?, OGEL 4 (2009), available at: http://www.ogel.org/article.asp?key=2955 (accessed on 16 April 2014).

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to attend a number of key meetings33 made it impossible to continue promoting that roadmap.

Table 2. Possible and Impossible Procedural Solutions for ECT & Transit Protocol Ratification by Russia Scenario 1: First, Russia to ratify the ECT, afterwards the Energy Charter Community complete, sign and ratify Transit Protocol. Result: historical EU proposal, not acceptable for Russia.

Scenario 2: First, to complete, sign and ratify Transit Protocol with due consideration of justified concerns of Russia regarding transit provisions of the ECT and still open issues of the draft Transit Protocol. After that Russia will return to ECT ratification issue. Result: would be preferable for Russia, but it is impossible according to Energy Charter rules (no one State can become a party to an Energy Charter Protocol without ratification of the ECT).

Scenario 3: The only workable and mutually acceptable compromise: Russia ratifies ‘modified ECT’ and Transit Protocol simultaneously. The term ‘modified ECT’ does mean existing ECT being complimented and expanded (based on necessity and pursuant to agreement of Energy Charter parties) by the new Protocols and other legally-binding and non-binding instruments. ‘Modified ECT’ does not mean ‘rewritten’ ECT, i.e. it does not mean that ECT legal text per se can be amended and/or changed until the moment when all ECT signatories ratify it. Result: Energy Charter community should concentrate on practical ways of solving Russia’s justified concerns regarding ECT and draft transit Protocol. Nowadays this task is more difficult due to Russia’s withdrawal from ECT provisional application. Furthermore, there is no consensus in assessment of legal consequences of this Russian action and related disappointment in the Charter and broader international community.

33

Which can be viewed as “counteraction by inaction,” see discussion on the issue of whether it is possible to achieve practical results in multilateral negotiations by irregular participation in the negotiations, started in Andrey Konoplyanik, Voting with Feet (lit. “counteraction with inaction”) (text translated from the original Russian), Vedomosti, 23 October 2002, A4; id., Not to Lose Face: Successful Finalization of the Negotiations on Energy Transit Dependent on Russia’s Readiness to Participate in Them and To Search for Mutually Acceptable Solutions with the EU (text translated from the original Russian), Mirovaya Energeticheskaya Politika [Global Energy Policy], December 2002, No. 10, 54–57; id., Energy Charter: Counter-acting through Inaction, OGEL 2 (2003).

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V. Common Misconceptions by Russia A. Common Misconception 1: Obligation to Provide Transit

Some Russian politicians34 have been regularly voicing their fears that if Central Asian producers and European buyers make direct contracts for the supply of gas to Europe, the ECT would allegedly require (oblige) that Russia enable such companies to use the Russian Gas Transportation System (GTS) for transit of ‘cheap’ Central Asian gas to the EU at Russia’s low domestic transportation tariffs. The bottom line is that, having crossed over Russia’s territory, Central Asian gas will compete against Russian gas in the European market and will have a competitive (price) edge as it is much cheaper to be produced and is much closer (thus cheaper to be transported) to the European markets. This is what is widely believed. However, the ECT has no such requirement, pure and simple. First, the ECT ‘Understandings’ IV.1 (b)(i), explicitly state that “[t]he provisions of the Treaty do not oblige any Contracting Party to introduce mandatory third party access.”35 Second, it should be understood that transit is only one of three possible (alongside swaps, i.e. replacement transactions, and on-border sales) options to move Energy Materials and Products across the territory of a country that separates a producer and an end-user (Article 7 ECT).36 Therefore, a request from a supplier or end-user, even if backed up by a supply contract made between them, for transit to be provided across the territory of a third country does not constitute for this third 34 As was presented in the earlier publications of the author in his polemics with the ECT opponents. See, for instance, Andrey Konoplyanik, Energy Charter Treaty: “To Be Ratified But Not Today …” (text translated from the original Russian), Promyshlenny Mir [Industrial World] 2001, No. 2, 44–48; id., Only One Way to Ratify the ECT: To Reach Agreement, the Objections of the Opposite Party Must Be Understood (text translated from the original Russian), Neft i Kapital [Oil and Capital] 2001, No. 3, 8–10; id., ‘We Must Ratify Energy Charter Treaty – But Not Yet,’ Russia & CIS Energy Magazine, April 2001, 6–8; id., Force of Argument or Argument of Force: What Does the Energy Charter Provide for Russia (text translated from the original Russian), International Energy [Mirovaya energetika] 2004, No. 6, 50 et seq. 35 This is the clause that made it necessary for the author to engage in a long debate with many opponents of the ECT and the discussion of which gives evidence of whether the opponents of the ECT have read the text of the Treaty or not. 36

Andrey Konoplyanik, Gas Transit in Eurasia: Transit Issues between Russia and the European Union and the Role of the Energy Charter, JENRL 27 (3) (2009), 445, 462–465.

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country either a necessary or sufficient condition, let alone an obligation, to provide transit. A potential transit country is entitled to choose – and this will be its sovereign decision – whether to make its territory available for transit or provide either of the two other specified options. A refusal to provide transit across its territory, but with an arrangement offered instead to cross it, say, on the terms of ‘on-border sale,’ will not constitute a breach of ECT provisions. However, if a country takes the decision to provide transit and enters into talks on the arrangements for the provision thereof, the provisions of Article 7 ECT and of the Transit Protocol will apply. However, even when in such talks, the parties may naturally fail to reach an agreement on the terms and conditions of transit – and this will also constitute no breach of ECT provisions because the potential transit country has at least five levels of ‘protection’ for its interests in this matter if it does not want to provide new transit to third parties.37 The ECT says nothing about the duty to grant access to transit facilities for third parties. The Treaty only says that “Each Contracting Party shall take the necessary measures to facilitate the Transit of Energy Materials and Products” (Article 7 (1) ECT) – i.e. the existing, rather than new, transit, and “shall encourage relevant entities to co-operate” in the area of transit (Article 7 (2) ECT). Article 7 (4) ECT says that “[…] the Contracting Parties shall not place obstacles in the way of new capacity being established, except as may be otherwise provided in applicable legislation […]” (and for a country that applies the ECT on a provisional basis – which has been true for Russia up to October 2009 – the national legislation takes precedence over the ECT in the event of conflict of laws). Moreover, Article 7 (5) ECT says that a transit Contracting Party shall not be obliged to permit the construction or modification of transit facilities or permit new or additional transit if it demonstrates to the other Contracting Parties concerned that this “would endanger the security or efficiency of its energy systems, including the security of supply.”

37

This has also been necessary to bring home to ECT opponents on more than one occasion because they, too, apparently neglected to read the Treaty. See e.g. Andrey Konoplyanik, Promyshlenny Mir (note 34); id., Only One Way to Ratify the ECT: To Reach Agreement, the Objections of the Opposite Party Must Be Understood (text translated from the original Russian), Neft i Kapital [Oil and Capital] 2001, No. 3, 8–10.

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Therefore, the ECT does not require to give access to Gazprom’s Gas Transportation System; quite the opposite, it enshrines the internationally accepted mechanisms for justified denial of national GTS to new (potential) transit.

B. Common Misconception 2: Obligation for Equal Tariffs

Another complaint about the ECT was that it allegedly requires transit of gas from Central Asia across Russia’s territory to be at subsidised domestic tariffs for transport.38 Discussions, especially within Energy Charter first multilateral negotiations, and then Russia-EU bilateral consultations on draft Transit Protocol,39 revealed that it was indeed possible, though far from unconditionally, to interpret the provisions of Article 7 (3) ECT as providing for equal tariffs for export, import, transit and domestic transportation. Such interpretation of Article 7 (3) ECT was put forward, specifically, by the EU delegation – and not only during the talks on the Transit Protocol but also in the course of talks on Russia’s accession to the WTO (one of the six points of the socalled ‘Lamy package’ of early October 2003).40 However, such requirement for equal tariffs in Russia is at least contestable, and is arguably incorrect,41 all the more so given that (see infra) they are not equal even within the EU. For a long time, the possibility of interpreting Article 7 (3) ECT as if requiring equal tariffs, has provided grounds for ECT ratification opponents in Russia to call for amending the ECT or for an even more radical measure – to start talks on a new

38

Lower domestic transportation tariffs for pipeline gas of Gazprom as the owner of the GTS and its affiliated companies are established by Article 21 (“Regulation of gas prices and tariffs for gas transportation services”) of the Russian Federal Law No. 69-FZ as of 31 March 1999 on Gas Supply in the Russian Federation. 39

See author’s publications on the issues related to Transit Protocol at his website.

40

Andrey Konoplyanik, Russia-EU Summit: WTO, the Energy Charter Treaty and the Issue of Energy Transit, International Energy Law & Taxation Review 2 (2005), 30. 41

Id., Russia – EU Summit: Energy-Related Results (text translated from the original Russian), Neftegazovaya Vertikal 2004, No. 10, 10–12; id., What Are the Energy-Related Results of the Summit? (text translated from the original Russian), Neftegaz 2004, No. 3, 37–42.

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Treaty, which was supposed to replace the ‘imperfect,’ in their opinion, ECT, as a condition for ECT ratification by Russia. This proposal, however, falls into the category of ‘pipe dreams.’ The ECT has been an integral part of international law since April 1998, and will remain in full force and effect for the 46 States that have ratified it. One cannot improve the Treaty except after joining it as a full member, i.e. after ratification. Therefore the parties eventually opted for another – practical – approach to address the concerns of Russia. First, the Energy Charter Secretariat conducted a study42 which showed that five out of the six ECT countries targeted by the comparative review of transit and domestic tariffs had transit tariffs that were higher than the domestic ones, including four EU countries (where, in accordance with the EU delegation’s arguments at the talks on the Transit Protocol and on Russia’s accession to the WTO43 alike, the transit tariff should have been equal to the domestic ones): Austria 1.9 times, Belgium 2.8 times, Poland 2.4 times, Slovakia 1.3 times (to put this into perspective: Russia, as evidenced by the same study, 1.6 times), with Germany alone having equal tariffs. The study established that a wide variety of procedures were used for gas transit tariffication. Neither the ECT nor the draft Transit Protocol, however, imposes any specific procedures for transit tariffication. Therefore, the Contracting Parties are free to develop procedures that are the best for their transportation and transit systems as long as these procedures meet the requirements of transparency, recognition of actual costs, and non-discrimination. Therefore, as a solution to the problem in interpreting Article 7 (3) ECT, the draft Transit Protocol proposed an ‘Understanding’ stipulating that the transit tariffs and domestic transport tariffs are not obliged to be equal (Article 10 of the draft Transit Protocol). Finally, Central Asian gas is no longer cheap, at least for the buyers. Since 2009, all export gas has been priced both in the EU and in the post-Soviet space using the same methodology – based on the net-back replacement value from EU end-user price, e.g.

42 Energy Charter Secretariat, Gas Transit Tariffs in Selected ECT Countries, January 2006, available at: http://www.encharter.org/fileadmin/user_upload/document/Gas_Transit_Tariffs_-_2006__ENG.pdf (accessed on 22 April 2014). 43

See Konoplyanik, note 40.

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netted back to delivery points at the former EU-CMEA44 border in case of Russian gas deliveries to the EU. Central Asian countries find it more profitable to export gas using this pricing formula with the delivery points at their national border rather than arrange for transit supplies to Europe.45 As for West-European companies, they have thus lost their economic incentives for buying Central Asian gas directly since 2009 because of the price edge, the so-called ‘Hotelling’ rent, is no longer available. The latter is the difference between the ‘replacement value’ of gas in Europe (based on the end-user prices of gas substituting energies which compete with gas), adjusted or netted-back to the border of Central Asian exporting countries (i.e. net of the applicable transportation costs), on the one hand, and the export price at the national border of the Central Asian exporting countries, as calculated to the end of 2008 on the principle of ‘cost-plus,’ on the other.46 It is therefore this author’s opinion that it makes better sense for Central Asian exporting countries supplying gas to European destinations to sell their gas to their traditional business partners in Russia at their national borders within the infrastructure in place rather than arrange transit for it through Russia and/or sell it to new business partners in Europe, with supplies to be sent through new proposed (not yet completed – and some of them already cancelled, like Nabucco) pipelines bypassing Russia through the Southern Corridor.47

C. Common Misconception 3: Russia-EU Nuclear Trade

Due to complaints about the ECT, the opponents of its ratification have repeatedly asserted that the Treaty does not regulate bilateral trade in nuclear 44

E.g. in Waidhaus at the German-Czech or in Baumgarten at the Austria-Slovak border.

45

See Andrey Konoplyanik, Russian Gas in Continental Europe and the CIS: Evolution of Contractual Arrangements and Pricing Mechanisms (text translated from the original Russian), Institute for National Economic Forecasts of the Russian Academy of Sciences, Open Seminar on Economic Problems of Energy Complex, 99th Meeting, 25 March 2009 (2010); id., The Evolution of Gas Pricing, Europe & CIS Energy Economist, Issue 347 (September 2010), 9–10. 46 47

Ibid.

Id., Upcoming Export Strategy Change (text translated from the original Russian), Neft Rossii 2010, No. 3, 57–59; id., Russia has Trumped Nabucco in Central Asia, Petroleum Economist, September 2010, 24–25.

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materials between Russia and the EU.48 This being the case, Russian spokespersons have submitted that the situation has been worsening with time: to begin with, prior to 2004 the restrictions applied to the EU consisting of the 15 Member States; from 2004 to 25 Member States, and since 2007 reaching 27 Member States; with now 28 Member States. The Final Act of the EEC Conference signed in December 1994 (which includes the ECT and documents related thereto) has indeed as its integral part the Joint Memorandum of the Delegations of the Russian Federation and the European Communities on Nuclear Trade. The EU expansion, naturally enough, expands the jurisdiction of the Memorandum. The Memorandum documents states that Russia is interested in increasing the volume of nuclear trade with the EU, and that “[r]epresentatives of the Commission and of the Russian Government will meet in the near future in order to examine the difficulties encountered by Russian exporters of nuclear materials.”49 These provisions reflect the essentially bilateral relationship between the Parties and in the event of failure by either Party to be entirely satisfied with the development of the relationship envisioned in the Memorandum, cannot and must not be regarded as a failure of the multilateral Treaty. Moreover, by signing, six months before the commencement of the signing of the ECT, the Russia-EU Partnership and Cooperation Agreement (PCA) in June 1994, both Parties agreed to regulate the nuclear trade issues on the bilateral basis and PCA provided a framework for addressing the matters of nuclear trade on a bilateral basis. Thus, in this regard, what problems could the ECT cause?

D. Common Misconception 4: Supplementary Treaty on Investment

Another complaint about the ECT is sometimes linked to the situation with the Supplementary Treaty on Investment, the talks on which, according to Article 10 (4)

48 49

Konoplyanik (note 22), 11–12.

Joint Memorandum of the Delegations of the Russian Federation and the European Communities on Nuclear Trade of Annex II to Document CONF 115, 6 January 1995 (not published), sourced from the ECT, 159, available at: http://www.encharter.org/fileadmin/user_upload/document/ EN.pdf (accessed on 16 April 2014).

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ECT, were expected to start immediately after the signing of the ECT with a view to concluding it by 1 January 1998. The complaint was directed against the EU, which arranged for the Supplementary Treaty to be taken off the negotiation table in 1998 and put on hold due to the suspension of work by the Organisation for Economic Co-operation and Development on the Multilateral Agreement on Investment which was in progress up to that time.50 The question being raised supposedly shows that Russia was seemingly motivated to resume talks on the Supplementary Treaty, to have it drafted and signed. Two considerations come into play in this context, however. Firstly, the ECT in place, an integral part of international law, and the as-yetvirtual Supplementary Treaty on Investment are two independent legal instruments. Tying in the completion of work on the Supplementary Treaty with ECT ratification would have made sense, as it was in the case of the Transit Protocol, had it proved instrumental in addressing the matters of vital importance for Russia. It would have made sense to link together the existing ECT and yet-to-be developed Supplementary Treaty if the latter would have moved the EU in the direction to benefit Russia by clarifying the issues which failed to find adequate coverage in the ECT (as did the draft Transit Protocol in elucidating and developing the provisions of Article 7 on ‘Transit’). The content of the Supplementary Treaty, however, is predetermined by Article 10 (4) ECT – it is only expected to expand the jurisdiction of national treatment of investment from post-investment (as provided for in the ECT) to preinvestment stages in making the investment which seems not to be in line with the Russia’s current energy and investment policy regarding access of foreign investors to the Russia’s subsoil onshore and offshore. Secondly, for quite a number of years the situation with Russia’s commitment to the Supplementary Treaty is quite likely to be the reverse: the Russian domestic legislative scene suggests that the nation is not ready to apply the national treatment of investment at the pre-investment stage. The revised Law on the Subsoil, the Foreign Strategic Investments Law, the Continental Shelf Law, among others, bring it home in no uncertain terms.

50

Konoplyanik (note 22), 9, 12.

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E. Common Misconception 5: ECT Does not Permit Long-Term Contracts

This objection of ECT opponents, if made in good faith, is a result of their misunderstanding of market development trends and of mixing together (considering as synonyms) ECT and EU acquis through the whole period of ECT existence until the present time. One should distinguish the period before and after 2003. Before 2003, when the First EU Energy Package was in force, there was a full correlation between ECT and EU acquis. After the Second EU Energy Package came into force in 2003, deviation (qualitative gap) between ECT and EU energy acquis took place which was further broadened when the Third EU Energy Package51 became applicable within the EU from 2009. Thus, if any criticism exists towards the ECT based on EU actions and statements, this would be valid only for the period prior to 2003. Afterwards such criticism can only be addressed towards the EU as a Contracting Party to the ECT. Prior to Second EU Gas Directive, the targeting of long-term contracts would not be pragmatic, as they were, are and will be an important and essential element of contractual arrangements in the gas market.52 If ECT opponents entertained the notion that the EU had intended to make a special effort to scrap such contracts by unilateral administrative actions or introduce at its discretion amendments to this effect to the long-term contracts in place between Gazprom and its European counterparts, then either the EU intentions were misinterpreted or (if the EU 51

The Third EU Energy Package consists of two Directives and three Regulations: (1) EC Directive 2009/72 of 13 July 2009 concerning Common Rules for the Internal Market in Electricity and Repealing Directive 2003/54/EC, OJ 2003 L 211, 55; (2) EC Directive 2009/73 of 13 July 2009 Concerning Common Rules for the Internal Market in Natural Gas and Repealing Directive 2003/ 55/EC, OJ 2009 L 211, 94; (3) EC Regulation No. 714/2009 of 13 July 2009 on Conditions for Access to the Network for Cross-Border Exchanges in Electricity and Repealing Regulation (EC) No. 1228/2003, OJ 2009 L 211, 15; (4) EC Regulation No. 715/2009 of 13 July 2009 on Conditions for Access to the Natural Gas Transmission Networks and Repealing Regulation (EC) No. 1775/2005, OJ 2009 L 211, 36 and (5) EC Regulation No. 713/2009 of 13 July 2009 on Establishing an Agency for the Cooperation of Energy Regulators, OJ 2009 L 211, 1. 52 See e.g. Andrey Konoplyanik, Development of Gas markets, Long-Term Contracts and Energy Charter Treaty (text translated from the Russian original), Neftegaz 2002, No. 4, 25–33; Kim Talus, Vertical Natural Gas Transportation Capacity, Upstream Commodity Contracts and EU Competition Law (2011).

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intentions were interpreted correctly) the intentions were based on erroneous notions of market dynamics on the part of the EU entities involved. But in 2002 Russia and the EU made a joint statement that: Providing a secure legal framework and regulatory environment for the supply of gas is of fundamental interest to both the E.U. and Russia. […] Both the E.U. and Russia consider that these [long-term gas] contracts have not only underpinned investments in Russia in new capacity in the past, but will remain necessary in the future. The [European] Commission has made it clear that long-term take-or-pay gas contracts are indispensable. The [European] Commission will, together with Russia in the context of the dialogue, closely monitor the developing situation, and the Commission is determined to ensure that contractual and regulatory conditions continue to exist that enable the financing of the major investment necessary to ensure future E.U. gas security of [supplies].53

Therefore, the perceived conflict over long-term contracts between Russia and the EU within the period when ECT was equal to EU rules and thus when ECT could have been criticised for EU faults by the ECT opponents, can be considered as invalid. Presently, the whole gas market in the EU suddenly changed since 2009 its major characteristic features (transformation from undersupplied to oversupplied) due to a number of reasons,54 with the Third EU Energy Package coming into force in the same period, a radically new architecture of the EU gas market (entry-exit zones with virtual trading points in each zone) was established, which really puts under question the continuation of the existing models of long-term gas export contracts with petroleum product price indexation. Therefore all the claims regarding these issues should be addressed directly to the EU and no longer to the ECT.

F. The Media as the ‘Collective Disorganiser’

The Charter and its instruments are now, not as often as in the past, mentioned in the media on a regular basis, including in the headlines of broadsheets. However, the 53 EU-Russia Energy Dialogue, Second Progress Report – Presented by Russian Vice-Prime Minister Victor Khristenko and European Commission Director-General François Lamoureux (2002), Section II.3: Legal Security for Long Term Supplies, available at: http://ec.europa.eu/energy/international/ bilateral_cooperation/russia/doc/reports/progress2_en.pdf (accessed on 18 April 2014). 54

See for instance Andrey Konoplyanik, Russian Gas in Europe: Why Adaptation is Inevitable, Energy Strategy Reviews 1 (1) (2012), 42–56.

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Western and Russian media alike are quite often guilty of loose, for example, with respect to “freedom of transit,” and/or incorrect interpretation of ECT provisions, for example, with respect to the required provision of transit rights or access to the subsoil for foreign investors. Or they continue to rehash the old-hat arguments of opponents of ECT ratification by Russia put forward by them many years ago and long rebutted by its advocates, for example, with respect to the ECT’s alleged requirements for privatisation of the fuel-and-energy sector and/or unbundling of energy companies, or granting of mandatory third-party access, or its alleged agenda of abolishing long-term contracts. All this brings about are imaginary problems and phantom pains. The result is that in their effort to nudge the process of ECT ratification by Russia, the media often use incorrect or spurious arguments as if in support of the ECT, more often than not, thus, rendering it a disservice. In the Western media, quotes by European politicians urging Russia to ratify the ECT were normally accompanied by comments, including ones provided by the media themselves, extolling the benefits that ECT ratification by Russia would give to the West. Quite a lot of such comments suggest that the Charter’s scope and the Treaty’s relation to it are misunderstood. It is quite unfortunate that such comments often misrepresent, intentionally or unwittingly, the provisions of the Treaty – for example, in matters that are of special interest or concern to Russia and Gazprom, bearing as they do on energy transit or access to export pipelines (see supra, V. A., V. B.). ECT misinterpretation, presented as the ‘real McCoy’, and flying in the face of stated priorities of Russian energy policy, provoked a quite-predictable backlash in Russia – in political and business circles alike. For its part, in covering the debate centred on the ECT, the Russian media quite often simply reprinted the idle speculations in the Western media, sometimes taking them to a level that was bizarre and inaccurate. Whereas, some Russian politicians, without the legal ‘know-how’ required to understand a document such as the ECT, spoke vehemently against its ratification in their drive to be more ‘royalist than the king’ and gain ‘political capital’ in the “struggle to protect national interests,” usually responded to the media, supplying them, in turn, with opportunities to quote ‘authorities’, giving rise to a vicious circle. In this way, the focal point of the debate about the ECT shifted in point of fact into

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a kind of virtual space, where hot discussions centred on provisions allegedly present in the ECT but in actual fact absent from it. What is unfortunate is that this ‘virtual scene’ created the informational background that prompted Russia to make its decision to roll back provisional application of the ECT. VI. Russia’s Criticism of the ECT: 2009 Timeline and the Resulting Termination of the Provisional Application Nevertheless, the criticism levelled at the ECT by Russia’s leadership, resulting in the termination of the provisional application of the ECT, was sparked off not by the complaints about the ECT that had been voiced on more than one occasion but by the January 2009 Russian-Ukrainian gas crisis. The criticism of the ECT and Energy Charter by the Russian leadership was ratcheted up over January to June 2009. The first serious shot against the ECT was fired at this level in the course of Russian-Ukrainian gas crisis in January. The criticism was triggered by Ukraine’s infringement of the ECT transit provisions, absence of an adequate assessment of the breach by the European Union and its member States and inaction by the political leadership of the Energy Charter Secretariat before and during the Russian-Ukrainian gas conflict. On 20 January 2009, during a meeting with the Gazprom Chairman of the Board, Alexei Miller, the then Russian President Medvedev expressed criticism of the Energy Charter for its failure to prevent the Russian-Ukrainian gas crisis that ended the day before and called for “new international mechanisms.” The President urged “to think about either amending the Energy Charter in place [if allowed by the signatories] or drafting a new multilateral instrument […].” The President invited the Government and Gazprom “to think about what mechanism would make sense in this context to develop and offer to all members of the international community.” The President promised to table a number of ideas during the London meeting of the G20 in early April of that year.55 55

Andrey Konoplyanik, Energy Сharter and the Russian Initiative – Future Prospects of the Legal Base of International Cooperation, OGEL, Special Issue on EU-Russia Relations, No. 2 (2009) 2, et seq., available at: http://www.ogel.org/article.asp?key=2872 (accessed on 16 April 2014).

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Having voiced harsh criticism against the Energy Charter, levelled against the then political leadership of the Energy Charter Secretariat, the Russian President nevertheless outlined an alternative course of action: either revamp the Charter (on a large scale) or draft a new document. On 1 March 2009 in an interview with the Spanish media, the President proposed to “develop a new Energy Charter or a new version of the Energy Charter,” in that way confirming the either-or nature of the proposal.56 It should be noted, that the then Russian President (now Prime-Minister) Medvedev has regularly and constantly referred to his legal background, thus it could be assumed that the difference between the non-legally binding Energy Charter (political declaration) and legally-binding Energy Charter Treaty was clear. In late April 2009, however, the import of the presidential intentions changed. On 20 April 2009, while in Helsinki, President Medvedev said that “Russia intends to change the legal framework for its relationship with energy users and transit countries.” Speaking about the “Energy Charter and other documents,” the former President said that “we have not ratified these documents and do not consider ourselves bound by these decisions.”57 President Medvedev also indicated that “[…] a framework document which covers matters of international cooperation in energy,” would be disseminated.58 The following day, 21 April, the official website of Russia’s President posted the aforementioned ‘framework document’.59 This was a five-page “conceptual approach to a new legal framework for international cooperation in energy [objectives and principles].”60 56

TVE/El Pais, Europe Needs New Energy Charter – Medvedev, Interview of Dmitry Medvedev with Spanish journalists, 1 March 2009. 57

Konoplyanik (note 55).

58

1TV.ru, News Report, 30 October 2009, available at: http://www.1tv.ru/news/polit/142214 (accessed on 22 April 2014). 59

Official website of the President of Russia, Framework Document, 21 April 2009, available at: http://news.kremlin.ru/news/3812/print (accessed on 22 April 2014). 60

For a critical analysis of the Conceptual Approach and its relation to the ECT, refer, for example, to the following publications by the author: see Andrey Konoplyanik, Energy Charter and the Russian Initiative: What To Do With the Legal Framework for International Cooperation (text translated from the original Russian), Vremya Novostey (News Time), 28 April 2009; id. (note 55); id., Energy Charter Plus – Russia to Take the Lead Role in Modernizing ECT?, OGEL 7 (2009), 5 August 2009 (reprinted in: OGEL 7 (December 2009), N4); id., Russia’s Termination of Provisional Application of the ECT:

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The April initiative of then Russia’s President naturally changed the ‘alternative’ nature of criticism against the ECT, to improve the Charter process and its instruments or develop a new package of documents, to a ‘zero-option’ approach. After 21 April 2009, the Russian government gave voice to the second option only – to develop a new package of documents based on the Russian proposals. The Russian proposals to set up new system in lieu of the ECT, however, aroused little if any enthusiasm among potential partners. Brussels and certain EU members said that abandoning the Energy Charter was out of the question.61 And that made sense. After coming into effect in 1998, the ECT has become part of the system of international law, having been signed by 51 (now 52) countries and ratified by 46. Nonetheless, on 28 April 2009, in Sofia, the then Russian Prime Minister Putin said that unfortunately, the Energy Charter […] has failed in its role. The Russian Federation considers, and has always said before that we do not consider ourselves bound by this instrument because we have not ratified it. And today we can say exactly and definitively that we see no point in even keeping our signature on this instrument.62

On 5 June 2009 in St Petersburg, the then Russian President Medvedev reiterated the Russian position that the Energy Charter is incapable of dealing with all problems in international gas trade. President Medvedev continued by asking, “was this Energy Charter of any help in the course of the gas conflict early this year?” and stated that “the procedures set forth in this Charter failed; the incentives it offers failed,” and concluded by saying that “the Energy Charter Treaty was not applied,” and “this means that we must have some other framework to smooth over conflicts of this nature.”63

Mythical Threats Prove Stronger than Tangible Benefits? (text translated from the original Russian), Neft i Gaz, November 2009, No. 9, 32–35 (Ukraine). 61

See supra, note 57.

62

Vladimir Putin and Prime-Minister of Bulgaria Sergei Stanishev made statements for the press on results of the intergovernmental talks, 28 April 2009, available on the Website of the Prime-Minister of the Russian Federation. 63

Statement by President Medvedev, 5 June 2009, available at: http://www.rian.ru/economy/ 20090605/173397918.html (accessed on 22 April 2014).

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On 29 June 2009, in the course of an inter-ministerial working meeting chaired by then Vice Premier Igor Sechin, its attendees were informed that (despite objections from all major agencies) it had been decided to terminate the provisional application of the ECT by the Russian Federation. Hence, on July 30, 2009, the then Russian Prime Minister Putin, signed Government Order No. 1055-r terminating the provisional application of the ECT by the Russian Federation. On August 24, 2009, pursuant to Article 45 (3)(a) ECT, Russia notified the depository of the Treaty (the government of Portugal) in writing that it did not intend to become a Contracting Party to the ECT. Sixty days later, Russia ceased to be a party applying the ECT on a provisional basis. On 19 October 2009, it became (along with Australia, Iceland and Norway) an ordinary signatory of the Treaty (while Belarus stays the only one ECT signatory applying it on a provisional basis), i.e. it took a step back, as it were, nevertheless remaining a party to the Treaty and the Charter process. At present, internationally, there is no alternative to the ECT. So, rather than being abolished, it should be continually improved in line with the development of global energy markets, as envisioned by the December 2004 resolution of the Energy Charter Conference. It is hoped that Moscow’s discontinued provisional application of the ECT would not be viewed as a proverbial ‘burning of bridges’ because the Russian delegation said in a statement made at the twentieth session of the Energy Charter Conference in Rome on 9 December 2009 that “despite terminating the provisional application of the Energy Charter Treaty (ECT), Russia considers the ECT an important multilateral agreement in the energy area.”64 Moreover, Russia’s signature is still placed under the ECT. So, what are the implications of Russia’s termination of the provisional application of the ECT?

64 Statement by Russian Delegation at the 20th Session of the Energy Charter Conference in Rome, 9 December 2009, available at: http://www.encharter.org/fileadmin/user_upload/Conferences/ 2009_Dec/Russia_RUS.pdf (accessed on 22 April 2014).

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VII. General Conclusions A. Effects of the Termination of the Provisional Application

First, by terminating the provisional application of the ECT, Russia played into the hands of anti-Russian interests in global politics, with critics stating that Russia had confirmed its reputation as a country seen to flout the rule of law.65 In economic terms, this perception will increase the risks of lending to Russia, push up the cost of raising capital under credit lines opened to the country, and cut the volume of financing. In the final analysis, this will increase the financial costs of (i.e. raising capital for) investment projects in the Russian energy sector. Second, the ECT is the only multilateral instrument available for protecting and encouraging investment in the most capital-intensive and high-risk area of business, energy. As time goes by, the ECT increasingly protects not only foreign investment in Russia but would have also protected, in the event of ECT ratification by the parliament, Russian investment abroad, first of all against the ‘risks of liberalisation’ in the EU market, which has increased following the enactment of the EU’s Third Energy Package, of which a number of its provisions are viewed by many observers as anti-Russian.66 The ECT is believed by the Russian party to be inadequate in protecting the interests of producers, a thesis that at the very least needs to be proved, particularly in the context of other instruments for protecting and encouraging investment in the energy industry. As things stand now, however, the ECT is the highest multilateral legally binding compromise achieved by the international community. And incidentally, the ECT will continue protecting European companies against anti-investment measures of the EU Third Energy Package, and not the Russian ones. Third, Russia’s withdrawal from the ECT will not bring about the collapse of the treaty. Its positive aspects, i.e. as a risk reduction mechanism, will simply be used by

65

See, for instance, Emmanuel Gaillard, Russia cannot walk away from its legal obligations, Financial Times, 18 August 2009. 66

Like Article 11 “Certification in relation to third countries” of the Third EU Gas Directive which it often called an ‘anti-Gazprom’ clause.

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other countries whose costs of financing of their energy projects will go down vis-à-vis Russia, giving them a competitive edge. By its failure or unwillingness to ratify the ECT (and thus to come in full under its protective umbrella), Russia will, firstly, widen the gap in the level of competitiveness between the Russian investment projects in the energy industry and the competing projects in third countries and, secondly, staying outside, will be unable to influence the rules in this field to accommodate its interests. It may face the same situation as with GATT/WTO in 1947 when the USSR was invited to be involved in developing the rules for global trade, but Joseph Stalin, the then leader of the Soviet Union, declined since it was fairly expected that the USSR would not manage to dominate the process and thus would be one among equals. The GATT rules were then developed without Russian (Soviet Union) involvement and with no regard for its interests. Therefore, it took post-Soviet Russia nineteen years to join this global union that had been set up without its involvement. It seems that with regards to the ECT, the current Russian authorities have adopted the same approach as USSR authorities did with GATT almost 70 years ago. Fourth, Russia’s abandonment of the ECT does not mean that by this it will succeed within the foreseeable future in arranging the development of an alternative and more effective multilateral instrument. The window of political opportunity that enabled the fast completion of talks and signing of the ECT in the early 1990s has dramatically narrowed today. The current conditions being what they are, the ECT, even as it reads now, will most likely not have been signed. The proper course of action would have been to continue the efforts to gradually improve the multifaceted process of the Energy Charter and its instruments. For this, as noted above, the charter process has inbuilt adaptation mechanisms (see supra, Table 1). The absence in the ECT of a mechanism for effective prevention of crisis situations and fast resolution thereof, as well as inaction by the political leadership of the Energy Charter Secretariat in the run-up to the January 2009 Russian-Ukrainian gas crisis, should have been used not as an excuse to terminate the provisional application of the ECT but to launch and spearhead the process of upgrading the Treaty, by proposing, among other things, to add a new agreement (Protocol) to it, which would have been more beneficial as it had already been drafted by Gazprom at

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that time. Instead, Russia signed an agreement with the EU to prevent – by early warning – emergency situations in transit on a bilateral basis.67 However, it seems unlikely that the mechanism for the prevention of emergency situations in transit will work effectively without the involvement of transit countries. That said, the mechanism proposed by Russia (an Early warning Mechanism) could have been used as a starting point for developing at next step a functional mechanism within the framework of a multilateral forum of producing and consuming countries and transit States. Especially given that the Energy Charter is the only such forum that is based on a multilateral framework of international law in place. Fifth, the abandonment of the ECT today will not bring about its substitute. This means that the abandonment of the ECT will, on the one hand, create for Russia a legal vacuum – lack of adequate legal infrastructure – in the most high-risk area of business. On the other hand, after the ECT came into effect in 1998 and while it was provisionally applied by Russia, many Russian ministries and agencies started to use the statutes of the ECT as benchmarks in their rule-making, for example, the Federal Anti-Monopoly Service. Having abandoned the ECT, Russia will nevertheless hang on to its legacy which has been to some extent already incorporated in the Russian legislation. Will Russia have to patch up its legislation, generating additional investment risks – which is always a result of any revision of any laws, however good the intentions of the legislator, whether in Russia or in Europe – when what investors need first and foremost are rules that remain the same? Sixth, Russia’s statement that it does not intend to become a Contracting Party to the ECT either suspends the completion of the Transit Protocol or (as was the case with GATT/WTO) will cause it to be finalised with no regard for Russia’s legitimate concerns. The bottom line is that the nation will have no legally binding multilateral instrument (or none that it can accept) for transit, considering that the Transit Protocol was an instrument Russia insisted upon and which took more than ten years to produce.

67 Memorandum on an Early Warning Mechanism in the Energy Sector within the Framework of the EU-Russia Energy Dialogue, available at: http://ec.europa.eu/energy/international/russia/ dialogue/warning_en.htm (accessed on 12 May 2014).

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At the same time, by proposing the documents published on 21 April 200968 “to all intents and purposes as a replacement for the Energy Charter” (Arkady Dvorkovich, Russian Deputy Prime Minister),69 Russia thus de facto proposes to build two parallel systems for legislative regulation of international energy trade, both of which, as is evident from the analysis of new Russian proposals,70 are being constructed on the principles of the Energy Charter and fully consistent with its purposes. It would seem, however, that one and the same foundation cannot be used to put up two different buildings at the same time, or, more precisely, to build another house on the foundation of an existing house as an annex thereto. It is very doubtful that Russia will succeed in motivating other countries to start a new negotiation process, focused on practical results, from scratch based on the new Russian proposals. Nevertheless, the international community could accept Russia’s proposals as a starting point to bring the multifaceted Energy Charter in line with new circumstances “in order to reflect new developments and challenges in international energy markets” – the requirement set forth in the Conclusions of the 2004 Political Review of the Charter process.71 This has really happened within the Energy Charter Process.

B. To Destroy or to Upgrade?

So, a number of complaints made by the Russian leadership about the process of the Energy Charter and the ECT as its core legally binding instrument are perfectly reasonable: the Treaty has provisions that are ambiguous in their interpretation; the ECT is not enforceable in some areas it covers; the ECT has no mechanisms to force the Contracting Parties to perform the obligations assumed; to quickly and effectively prevent and resolve on a multilateral basis emergency situations in energy; to impose prompt and effective sanctions for a breach of the provisions of the ECT. All these 68 Translated from Russian, see Website of the President of Russia, Conceptual Approach to the New Legal Framework for Energy Cooperation (Goals and Principles), 21 April 2009, available at: http://archive.kremlin.ru/text/docs/2009/04/215303.shtml (accessed on 18 April 2014). 69 Website of the President of Russia, Press Conference, 21 April 2009, available at: http://news. kremlin.ru/ref_notes/186/print (accessed on 22 April 2014). 70 71

See supra, note 60.

ECT, Final Review Conclusions (2004), available at: http://www.encharter.org/fileadmin/user_ upload/document/Final_Review_conclusions_rus.pdf (accessed on 22 April 2014).

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assertions are quite fair. However, the call for the ECT to be abandoned and for a new instrument to be developed to replace it is the least effective way to address the reasonable complaints of the Russian party about the Energy Charter, even if abandonment is a feasible option. The April 2009 Russia-proposed Conceptual Approach72 cannot be treated as an alternative to the ECT, but the international community may in all likelihood accept it as an opening bid for improving the process of the Energy Charter as the only versatile mechanism for legislative regulation of international relations in energy. Once every five years, pursuant to Article 34 (7) ECT, a Review is conducted of the Energy Charter activities and a discussion is held dealing with the progress made in adapting it to the new conditions in energy markets (see supra, Table 1). Decisions based on the results of the latest Review were made in late 2009. That Review presented a good opportunity to make a great number of demonstrable changes in, and additions to, the Energy Charter process and instruments, which would have made it possible to meet Russia’s legitimate concerns.73 This could not be done without active involvement in the adaptation process. What seems to have happened, however, is that Russia jumped the gun on the ongoing decision-making process. Thus, with a Russian government edict to terminate the provisional application of the ECT not yet signed, it has already brought to a halt all government activities necessary to continue, or increase the involvement of the Russian delegation in the Energy Charter process, including to promote within the framework of the Charter process the April 2009 presidential proposals aimed at enabling Russia to take point on the adaptation of the Charter process.

C. Conclusion: Energy Charter – A Lost Opportunity?

Russia could have offered the Charter community a roadmap that would have implemented the presidential proposals of 21 April 2009 as part of the Energy Char72

Website of the President of Russia, Conceptual Approach, 21 April 2009, available at: http:// news.kremlin.ru/news/3812/print (accessed on 22 April 2014). 73

See ECT, Energy Charter Process Review, available at: http://www.encharter.org/index.php?id= 22&L=1 (accessed on 22 April 2014).

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ter process. Up to the release of the government edict of 30 July 2009, the informal draft roadmap for reforming the Energy Charter process, known as the “Energy Charter Plus,”74 was discussed informally with some of the key players in the process, and through them with spokespersons for some European States, supported by the States in principle. The next step forward would have been to develop a detailed game plan based on the Russian proposal of 21 April 2009. The plan could have become part of a balanced package solution at the next Energy Charter Conference in December of 2009. Such a solution would have accommodated Russia’s legitimate concerns about the Energy Charter. Naturally enough, it would have had to be ironed out with other countries in short order, for it to be finalised by December of that year. Any progress, however, was effectively stopped by the Russian government edict of 30 July 2009. Generally speaking, the termination of provisional application of the ECT does not prevent Russia from joining forces with other countries in implementing the Energy Charter Plus roadmap. Norway, for example, which has also signed the ECT but does not apply the Treaty on a provisional basis, is making a strong contribution to the Charter process. A quick reverse in Russian attitude towards the Energy Charter may be too optimistic. But at least some positive signs can be viewed in what should have reflected the modus operandi of Russia’s bureaucracy since it always tries to react to and reflect the changing intentions of the State leaders. Russia for long could not have managed (or would not have liked) to settle its arrears for membership in the Energy Charter process, at least for the full period of its provisional application of the ECT. Finally, not least due to the efforts of the new ECS Secretary General Urban Rusnak, the country has done this recently, though at this stage only for the period through its provisional application of the ECT. However, Russia remains a signatory to the ECT; therefore, all Russia’s valid complaints remain on the table, as do the accommodations made for them. 74 The Energy Charter Plus roadmap is described in Konoplyanik, Neft i Gaz (note 60), 32–35 (Ukraine); id., Energy Charter: Why Russia Takes a Timeout (text translated from the original Russian), Mezhdunarodnaya Zhizn 2010, No. 1, 27–44; id., Why Is Russia Opting Out of the Energy Charter?, International Affairs 56 (2) 2010, 84.

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Therefore, nothing prevents Russia in its new status from rethinking the matter of ECT ratification later on. What is important, is to continue its involvement in the Charter process and work for it to incorporate the April 2009 presidential proposals, rather than presenting them as an alternative to the multilateral instrument of international law in place – the only multilateral treaty to protect and encourage energy investment, trade and transit, improve energy efficiency and resolve disputes, for which no substitutes are available. Rather than spurning it, what is needed is to pool efforts to improve, perfect, upgrade, and expand the scope and territorial jurisdiction of this unique Treaty and the entire multifaceted Energy Charter process. All the more so as the latest statement by then Russian President Medvedev on the Charter subject, made in the course of the press conference following the Russia-EU Summit in Stockholm 18 November 2009, that the April 2009 “energy initiative […] was proposed by Russia in addition to the existing energy instruments including the Energy Charter,”75 rather than in lieu of the ECT and instruments related thereto, seems to have opened up new prospects for consolidating the processes involved. It is only by remaining closely involved in the Energy Charter process that the desired results can be achieved: Russia’s legitimate concerns addressed, the multifaceted Energy Charter process improved and its instruments adapted to new challenges and risks of the evolving international energy markets. This multifaceted adaptation process is on the way now, culminating in the January 2014 formal opening of negotiations on the updated Energy Charter by signatories of the EEC.76 On 29 April 2014 negotiations opened on updating 1991 Energy Charter – the political declaration underpinning the whole Energy Charter Process. The original Charter signatories were joined in Brussels by representatives of a further thirty countries. It is expected that the updated Energy Charter will be adopted in early 2015.77 The negotiations are another step in the ongoing modernisation of the 75 Website of the President of Russia, Transcript of Press Conference, 18 November 2009, available at: http://news.kremlin.ru/transcripts/6034/print (accessed on 22 April 2014). 76 See Energy Charter Secretariat, Energy Charter 2013 Annual Report (2014), available at: http:// www.encharter.org/fileadmin/user_upload/Publications/AR_2013_ENG.pdf (accessed on 22 April 2014). 77

See ECT, Negotiations Begin on the Updated Energy Charter, 30 April 2014, available at: http://www.encharter.org/index.php?id=19&id_article=503&L=0 (accessed on 9 May 2014).

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organisation aimed at widening its geographic scope and strengthening its framework for cooperation. But this new stage of the Energy Charter development cycle is the topic for another analysis.

The International Nuclear Energy Law Framework: An Outlook PATRICK REYNERS(

ABSTRACT: Nuclear law is generally understood as the corpus of special norms covering the activities related to the use of fissionable materials and ionizing radiations. While nuclear energy is often a source of controversy, it is not really the case for its international legal framework even if, like other branches of law, it reflects the evolution of policies. Also dramatic events such as the recent Fukushima catastrophe or new threats like nuclear terrorism constitute challenges for the nuclear community which in turn requires adaptations of this framework. This article reviews the present situation regarding the international instruments of nuclear law, going through its traditional components, namely: radiation protection; safety of nuclear installations; radioactive waste management; transport of radioactive materials; nuclear security; non-proliferation; safeguards; and liability. KEYWORDS: Nuclear Law, Nuclear Standards, Radiation Protection, Nuclear Safety, Nuclear Security, Radioactive Waste, Non-Proliferation, Liability and Compensation

I. Introduction While the development of nuclear energy is often a source of controversy, this is not really the case for its international legal framework which generally demonstrates a relative stability even if, like any branch of law, it is subject to the evolution of policies in this domain. For example, dramatic events like the Chernobyl accident or, nearer to us, the Fukushima catastrophe, or new threats such as that of nuclear terrorism, constitute challenges for the nuclear community which in turn requires adaptations of the law.

(

Secretary General and Scientific Advisor of the International Association of Nuclear Law. The author is also a honorary lecturer and member of the Centre for Energy, Petroleum and Mineral Law at the University of Dundee, and Nuclear Law lecturer at Poitiers-Angoulême, Montpellier, Lomonosov (Geneva), Hitotsubashi (Tokyo), Paris-Sorbonne Abu Dhabi University.

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The object of this article, following a quick reminder of historical developments, will be to review the present situation regarding the international instruments upon which nuclear law is based, going through the traditional chapters of the law governing the peaceful uses of nuclear energy, namely radiation protection, safety of nuclear installations, radioactive waste management, transport, nuclear security, non-proliferation, safeguards, and liability.

II. Nuclear Energy Today In 2008, the Organisation for Economic Co-operation and Development Nuclear Energy Agency (OECD NEA) published a Nuclear Energy Outlook1 providing a comprehensive picture of its state of development as well as future perspectives. The study forecasts, with a certain degree of optimism, a substantial increase in nuclear capacity worldwide. Three years later, the accident in Fukushima was another setback though it is too early to tell what will be its lasting impact on national programmes. Over the last 60 years or so, the history of nuclear energy has gone through a series of sometimes dramatic steps from the use of the atomic bomb at the end of World War II to the great expectations in the 1950 and 1960s in the potential of fission reactors to produce quasi limitless quantities of electricity (too cheap to meter),2 to the rise of public concern in respect of nuclear safety and the long-term management of radioactive waste, and the slowing down in the construction of plants after the Chernobyl accident. While the turn of the 20th century was marked by a return to hope for a ‘Nuclear Renaissance’ it is ‘uncertainty’ that now dominates.3 Indeed, one can observe a marked contrast in Europe between countries such as Germany or Switzerland which have resolved to terminate progressively nuclear operations in their territories and others like France about to extend the life of its reactors or the United Kingdom 1 The Organisation for Economic Co-operation and Development Nuclear Energy Agency (OECD NEA), Nuclear Energy Outlook, 16 October 2008, summary available via: http://www.oecd-nea.org/neo (accessed on 10 December 2013). See also Norbert Pelzer, New Nuclear Build – New Nuclear Law?, Nuclear Law Bulletin (NLB) 84 (2009), 5, 22. 2 A prediction by the United States scientist Alvin Weiberg, quoted by David Fisher, The IAEA: Vision and Reality, The International Atomic Energy Agency (IAEA) Bulletin 45 (2) (2003), 12, 16. 3

On “New Nuclear Build” legal aspects, see Helen Cook, The Law of Nuclear Energy (2013), Chapters 6 et seq.

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intending to reactivate its own power programme.4 The main region for the expansion of nuclear energy remains however Asia. At the moment, there are 435 reactors which generate approximately 13 % of electricity in the world and 72 are under construction.5 Nuclear power, therefore, is expected to remain a limited yet significant component of the energy mix in the context of the considerable increase of energy needs predicted over the next 30 years or so. This also means that the strengthening of the international legal framework to ensure a safe and secure use of nuclear energy remains an essential objective.

III. A Short History of Nuclear Law There is very little pre-World War II nuclear law proper. Yet, since the beginning of the last century, national courts had occasionally been confronted with cases of imprudent applications of radioactive materials.6 Health authorities and scientists alerted by this problem, founded in 1928 an International X-Ray and Radium Committee, a private association, to discuss the effects of radiations and good practices.7 The Committee was reorganised and renamed in 1950 into the International Commission on Radiological Protection (ICRP).8 It continues to periodically address recommendations to governments and nuclear operators which serve as an authoritative basis for the radiation protection norms issued by the competent international organisations. 4

See Henry Sokolsky, Post-Fukushima, Nuclear Power Changes Latitudes, Newsweek, 28 November 2011, available at: http://www.newsweek.com/post-fukushima-nuclear-power-changes-latitudes-66311 (accessed on 18 March 2014). With regard to Germany, see Judy Dempsey/Jack Ewing, Germany, in Reversal, Will Close Nuclear Plants by 2022, New York Times, 30 May 2011, available at: http://www. nytimes.com/2011/05/31/world/europe/31germany.html?_r=0 (accessed on 18 March 2014). 5

See IAEA, Power Reactor Information System (PRIS), List of Operational and Long-Term Shutdown Reactors, 17 March 2014 (latest update), available at: http://www.iaea.org/PRIS/World Statistics/OperationalReactorsByCountry.aspx (accessed on 18 March 2014). 6

Jean Hébert, French Case Law and the Use of Nuclear Energy, NLB 25 (1980) 57, 69.

7

See Roger Clarke/Jerome Valentin, The History of ICRP and the Evolution of its Policies, International Commission on Radiological Protection (ICRP) Publication 109, available at: http://www.icrp. org/docs/The%20History%20of%20ICRP%20and%20the%20Evolution%20of%20its%20Policies.pdf (accessed on 7 February 2014). 8

Further information regarding the ICRP and its publications are available via: http://www.icrp. org/index.asp (accessed on 9 December 2013).

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As regards nuclear energy, the scientific discoveries made before World War II about the fission of the atom and the realisation of its potential to generate extraordinary quantities of energy led, after the declaration of war in Europe, to intensive research on potential military applications within belligerent countries.9 The United States of America (USA) in particular launched the secret Manhattan Project.10 Its success allowed them to possess atomic bombs in 1945. After the defeat of the ‘Axis’ and the restructuration of the world community under the umbrella of the newly created United Nations (UN), came the question of how to define the post-war status of nuclear power. Ambitious plans put forward by the USA which was to consist of putting all future applications of nuclear energy under international control were however aborted, falling victim to the rapidly emerging Cold War. The reaction of the USA was then to adopt the 1946 Atomic Energy Act, known as the Mac-Mahon Act,11 prohibiting any transfer to other countries, including their wartime allies, of all nuclear knowledge, materials and equipment in their possession, resulting practically as a form of monopoly. In fact, this decision did not prevent the former Union of Soviet Socialist Republics (USSR) from carrying out successfully its first atomic weapon test in 1949, starting the armament race.12 In the ensuing years, the USA came progressively to the conclusion that the policy to contain the spread of atomic weapons by blocking the flow of scientific and technical information had failed, besides frustrating seriously other countries and the nascent USA’s nuclear industry as well. It is in this context that the USA resolved to change course radically and the President Eisenhower proposed the Atom for Peace Plan in a famous speech before the UN General Assembly (GA) in 1953.13 The proposal, a defining moment in the history 9

See Raymond L. Murray, The History of Nuclear Energy, in: id., Nuclear Energy: An Introduction to the Concepts, Systems, and Applications of Nuclear Processses (6th ed. 2009), 217; Stephen Tromans, Nuclear Law: The Law Applying to Nuclear Installations and Radioactive Substances in its Historic Context (2nd ed. 2010). 10 See US Department of Energy, Manhattan Project, available at: http://energy.gov/manage ment/office-management/operational-management/history/manhattan-project (accessed on 10 January 2014). 11

An Act for the Development and Control of Atomic Energy, 1 August 1946, Pub.L. 79–585 (also known as the McMahon Act). 12

See Tony Long, Aug. 29, 1949: First Soviet Atomic Test Stuns West, Wired, 29 August 2007, available at: http://www.wired.com/science/discoveries/news/2007/08/dayintech_0829 (accessed on 18 March 2014). 13

Dwight D. Eisenhower, President of the United States of America, Address to the 470th Plenary Meeting of the United Nations General Assembly, 8 December 1953, available at: http://www.iaea.

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of nuclear international relations, was essentially to open the possibility of cooperation with other nations for the development of the use of nuclear energy, provided that the recipients would commit themselves to keep this source of energy for peaceful purposes exclusively and accept verification. The Atom for Peace Plan also paved the way to the convening of the first UN Conference on the Peaceful Uses of Atomic Energy, which was held in Geneva in 1955.14 The next step was to proceed with the establishment of organisations to serve as a framework for international cooperation in this field, namely the International Atomic Energy Agency (IAEA), the European Atomic Energy Community (Euratom)15 and the OECD NEA (see infra, IV.). Besides the creation of the three nuclear agencies which were to play an important role for the development of nuclear law, a major event in the history of nuclear energy was the adoption of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)16 on 1 July 1968. Departing from the traditional order of international relations based on the notion of equality among States, the Treaty divides States into two categories: those which had by 1 January 1967 reached nuclear weapon capability (i.e. the five permanent members of the UN Security Council), designated as Nuclear Weapon States (NWS) and the others as the Non-Nuclear Weapon States (NNWS). Under the Treaty, the NNWS forego the right to acquire such weapons.17 They also undertake to allow the inspection by the IAEA of their nuclear installations in order to verify compliance with their obligations under the Treaty.18 In return, they are promised the right and facilitation of access to the peaceful uses of nuclear energy. On their side, the NWS pledge not to provide NNWS with nuclear weapons or assist them in acquiring such weapons, and not to transfer nuclear materials, equipment and technology to NNWS for peaceful purposes unless properly safeguarded. They also undertake to pursue negotiations toward nuclear disarmament. In this last org/About/atomsforpeace_speech.html (accessed on 7 February 2014), speech also reproduced in: United States Government Printing Office, Documents on Disarmament: 1945–1959, Publ. No. 7008, vol. 1 (1960). 14 OECD NEA, The Regulation of Nuclear Trade: Non-Proliferation, Supply, Safety, vol. 1: International Aspects (1988), 11, 18. See GA Res. 810 (IX) of 4 December 1954. 15 Treaty establishing the European Atomic Energy Community (Euratom), 25 March 1957, UNTS 298, 167 (Euratom Treaty). 16

Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, UNTS 729, 161 (NPT).

17

Art. II NPT.

18

Art. III NPT.

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regard, and as foreseen by the NPT, a series of regional ‘denuclearisation’ agreements have been concluded.19 In the same context, a Comprehensive Nuclear-Test Ban Treaty20 was adopted on 10 September 1996. It has not entered into force due to a lack of ratification from several key countries but a Preparatory Commission based in Vienna is already functional and an International Monitoring System has been created.21 During the same period (1960–1980), there was a considerable expansion of international nuclear law in the areas of radiation protection, nuclear installations safety, security and liability.22 In parallel, many countries adopted legislation to provide a legal framework for their nascent civil nuclear programmes.23 Apart from the already noted USA Atomic Energy Act, in 1946 Canada and the United Kingdom were the first to promulgate nuclear laws, followed by a number of countries, in Europe mostly,24 for example, the 1959 German Atomic Law (Atomgesetz).25 19

Apart from the Antarctic Treaty, 1 December 1959, UNTS 402, 71 which was a precursor, the nuclear-free zones agreements are the following: the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, 14 February 1967, UNTS 634, 326 (Tlatelolco Convention); the South Pacific Nuclear Free Zone Treaty, 6 August 1986, UNTS 1445, 178 (Rarotonga Treaty); the Southeast Asian Nuclear-Weapon-Free Zone Treaty, 28 March 1997, ILM 35, 635 (Bangkok Treaty); the African Nuclear Weapon Free Zone Treaty, 11 April 1996, UN Doc. A/50/426 (Pelindaba Treaty) and the Central Asian Nuclear Weapon Free Zone, 8 September 2006, available at: http://cns.miis. edu/inventory/pdfs/aptcanwz.pdf (accessed on 11 December 2013) (also known as the Semipalatinsk Treaty). See also Lisa Tabassi, National Implementation and Enforcement of Nuclear-Weapon-Free Zones Treaties, NLB 83 (2009), 29, 58. 20 Comprehensive Nuclear-Test Ban Treaty, 10 September 1996, UN Doc. A/50/1027, ILM 35, 1439 (CTBT). 21 Resolution establishing the CTBT Preparatory Commission, 19 November 1996, CTBT/ MSS/Res/1. See Preparatory Commission for the CTBT Organization, relevant information regarding the commission and its International Monotoring System is available at: http://www.ctbto.org/ specials/who-we-are (accessed on 7 February 2014). 22

OECD NEA, Nuclear Legislations: Analytical Studies, Vols. I and II (1984).

23

See ibid. In general, see OECD, Nuclear Legislation in OECD and NEA Countries, Country Profiles available via: http://www.oecd-nea.org/law/legislation/ (accessed on 18 March 2014). 24

OECD NEA (note 22). Information about early European nuclear regulation, i.e. 1962 (Italy), 1963 (Netherlands) and 1964 (Spain), is available via the OECD website, see OECD Country Profiles (note 23). Relevant United Kingdom legislation is available at: http://www.oecd-nea.org/law/legis lation/uk.html (accessed on 18 March 2014); relevant Canada legislation is available at: http://www. oecd-nea.org/law/legislation/canada.html (accessed on 18 March 2014). 25

German Atomic Law (Gesetz über die friedliche Verwendung der Kernenergie und den Schutz gegen ihre Gefahrem – Atomgesetz), 23 December 1959, in the version as promulgated on 15 July 1985, Bundesgesetzblatt (BGBl.) I, 1565, as amended on 28 August 2013, BGBl. I, 3313.

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A. The Impact of Chernobyl

Specialists of nuclear law indulge sometimes in noting its anticipatory character and it is a fact that its first phase of development passed without being subject to the test of a serious accident, at least in western countries. There had been a warning, however, with a partial melt-down of the core of reactor 2 at the Three Mile Island nuclear power plant (USA) 1979, fortunately causing no victims.26 The explosion which in 1986 destroyed reactor 4 of the Chernobyl plant27 in the USSR (today Ukraine) was to become the worst catastrophe of the nuclear age and also had an international dimension since it affected a number of neighbouring countries. Chernobyl was a ‘wake-up call’ for the nuclear community as it revealed inadequate domestic legislations and regulatory controls and the significant gaps in the international legal framework, notably in the domain of nuclear safety and liability.28 Until then, advanced nuclear countries had been generally reticent to the idea of an international regime setting norms of safety intended to prevent accidents in nuclear installations and, should they happen, to mitigate their consequences. Indeed, they felt that nuclear safety was exclusively a national responsibility. The commotion caused by Chernobyl was decisive in bringing a change to this attitude. The political transformations in Central and Eastern Europe a few years later and the revelation of the unsafe conditions of nuclear plants in this region, also played a role in the progressive conversion to an internationalisation of nuclear safety. As a result, starting with the Nuclear Safety Convention (CNS) in 1994,29 a series of new conventions or codes of conduct30 were adopted under the auspices of the IAEA. Similarly, the realisation of the deficiencies of the international system of liability and compensation for nuclear damage led 26 United States Nuclear Regulatory Commission, Backgrounder on the Three Mile Island Accident, available at: http://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html (accessed on 7 February 2014). 27

Jo Marrone, The Liability Claims Experience of the American Nuclear Pools and their Response to the Three Mile Island Accident, in: OECD NEA (ed.), Nuclear Third Party Liability and Insurance: Status and Projects – Proceedings of the Munich Symposium (1985), 197, 205; Linda Malone, The Chernobyl Accident: A Case Study in International Law Regulating State Responsibility for Transboundary Nuclear Pollution, Columbia Journal of Environmental Law 12 (1987), 203. 28

Johan Rautenbach/Wolfram Tonhauser/Anthony Wetherall, Overview of the International Legal Framework Governing the Safe and Peaceful Uses of Nuclear Energy, in: OECD NEA (ed.), International Nuclear Law in the Post-Chernobyl Period (2006), 7, 36. 29

IAEA Convention on Nuclear Safety, 20 September 1994, INFCIRC/449, ILM 33, 1514 (CNS).

30

See infra, VI.

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to an in-depth modernisation of the applicable conventions.31 In the light of these developments, it is often said that there is a pre-Chernobyl and post-Chernobyl in the history of nuclear law. Its evolution, however, was to be influenced by other events.

B. The Impact of “9–11”

The idea that both nuclear material and installations must themselves be protected against malicious or criminal acts ranging from diversions, thefts, sabotage to terrorism, had initially been addressed in the context of a Convention on Physical Protection of Nuclear Material (CPPNM)32 in 1980 focusing on nuclear transport operations. A ‘non-nuclear’ event, the attacks on the Twin Towers in New York on 11 September 2001, prompted the nuclear community to re-evaluate the risks associated with acts of terrorism. The reaction took the form of an amendment of the CPPNM in 200533 also expanding to include the illicit trafficking of nuclear material and security of radioactive sources. In parallel, the strengthening of the global anti-terrorism legal framework carried out through a series of international conventions34 adopted by the UN GA and by resolutions of the Security Council (SC), culminated in 2005 with the signature of a specific International Convention for the Suppression of Acts of Nuclear Terrorism (ICSANT).35

C. The Impact of Fukushima

The combined earthquake and tsunami which struck on 11 March 2011 the nuclear power plant of Fukushima-Daiichi, besides the direct consequences of the accident against which the Japanese authorities are still struggling, has led nuclear countries to 31

See infra, VI.G.

32

Convention on the Physical Protection of Nuclear Material, 3 March 1980, INFCIRC/274/ Rev.1, UNTS 1456, 124 (CPPNM Convention). 33 Amendment to the Convention on the Physical Protection of Nuclear Material, 8 July 2005, (CPPNM Amendment), available at: http://www.iaea.org/About/Policy/GC/GC49/Documents/ gc49inf-6.pdf (accessed on 10 December 2013). 34 35

See infra, VI.D.

International Convention for the Suppression of Acts of Nuclear Terrorism, 13 April 2005, UNTS 2445, 89 (ICSANT).

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undertake a series of verifications (‘stress-tests’) to determine whether their power reactors were vulnerable to the same type of event.36 Beyond that, the question of a more fundamental adjustment of the international legal framework remains open.

IV. Competent International Organisations A. The IAEA

The IAEA was created as an autonomous intergovernmental organisation by a treaty which came into force on 29 July 1957.37 While not a specialised agency of the UN, it has a direct relation with the UN, the Security Council and also with several UN bodies through bilateral agreements. From the perspective of nuclear law, the most relevant provision of its Statute is Article III (A) (6) under which the agency is mandated to establish or adopt […] standards of safety for protection of health and minimization of danger to life and property (including such standards for labour conditions), and to provide for the application of these standards to its own operation […].

Another essential mission of the IAEA concerns the administration of ‘safeguards’ in order to prevent that nuclear materials, technology and equipments be used to further military purposes, either in respect of the agency’s own activities or at the request to a State and pursuant to a safeguard agreement involving that State.38 The role in this domain of the IAEA was considerably expanded upon the adoption of the NPT.39 In the months following the creation of the IAEA, two other international organisations competent in the nuclear energy field were established: Euratom and the European Nuclear Energy Agency.40 36

EC Communication on the Comprehensive Risk and Safety Assessment (‘stress tests’) of Nuclear Power Plants in the EU and Related Activities, COM/2012/571 final, 4 October 2012. For a list (and links) regarding international and national regulatory action including stress tests, see OECD NEA, Actions taken by regulatory bodies and international organisations following the Fukushima Daiichi nuclear accident, 7 March 2014, available via: http://www.oecd-nea.org/nsd/fukushima/ (accessed on 18 March 2014). 37

Statute of the IAEA, 23 October 1956, UNTS 276, 3 (IAEA Statute).

38

Articles III (A)(5) and XII IAEA Statute.

39

See Odette Jankowitsch-Prevor, The Normative Role of the International Atomic Energy Agency, in: OECD NEA (ed.), International Nuclear Law: History, Evolution, Outlook (2010), 13, 30. 40

Created by the Organisation for European Economic Co-operation via a Decision Establishing a European Nuclear Energy Agency and the Convention on the Establishment of a Security Control in

236 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 B. Euratom

The Euratom Treaty creating the European Atomic Energy Community came into force on 1 January 1958. Still from the angle of nuclear law, the relevant provisions of the Treaty concern mostly the sector of health and safety under its Chapter 3 and security control under Chapter 7, giving extended responsibilities to the European Commission. On the basis of the Treaty an important corpus of derived legislation in the form of Council regulations, directives or recommendations, upon proposals from the Commission, has been developed and will be recalled later in this article.41

C. The OECD Nuclear Energy Agency

The European Nuclear Energy Agency (now called the OECD NEA) came into effect on 1 February 1958. The Agency’s activities, of a regulatory nature, are mostly based on Article 8 of its Statute under which it shall contribute to the promotion, by the responsible national authorities, of the protection of workers and the public against the hazards of ionizing radiations and of the preservation of the environment.

The Agency, under the same article, is also to “contribute to the promotion of a system for third party liability and insurance with respect to nuclear damage.” Over the years, the Agency has indeed been particularly active in the domain of nuclear liability and is also the source of many studies and publications on nuclear law.42

the Field of Nuclear Energy, 20 December 1957, reprinted in: American Journal of International Law 53 (1959), 1012. 41

See Wolfgang Kilb, The European Atomic Energy Community and its Primary and Secondary Law, in: OECD NEA (ed.), (note 39) 43, 90. 42

See Julia Schwartz, The OECD Nuclear Energy Agency, in: OECD NEA (ed.), (note 39) 31, 42.

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V. What Is Special About Nuclear Law?43 The law governing the peaceful uses of nuclear energy does not fit easily into a single category. It relates in fact to a number of established legal branches like energy, health, environment, transport, safety at work; and where it concerns the domain of public law, it is also covered by private law (in particular civil liability). Although there is no unique definition of nuclear law, it is generally understood as the body of special legal norms created to regulate the conduct of legal or natural persons engaged in activities related to fissionable materials, ionizing radiations and exposure to natural sources of radiation.44

Beyond this definition is a common purpose: to establish a proper balance between the risks and benefits of nuclear energy. Nuclear law presents a number of specific features. It has a very robust system of regulations and controls all nuclear activities, required to minimise the hazards associated with radioactivity. It has from the outset been built mostly through the adoption of international rules, whether legally binding or not, therefore ensuring an exceptional degree of harmonisation of national laws. The pre-eminence of international cooperation in this domain results in a high degree of international legal interdependence where major players are especially influent. Another characteristic is that nuclear norms derive to a large extent from science and technology which rapid evolution requires constant adaptation of the law; in turn, this explains the relative importance of soft law instruments in this sector. On the whole, nuclear law presents many original aspects, departing from ordinary law whenever necessary, based on novel concepts which have often been adopted in other domains. On the other hand, its autonomy can be discussed because it overlaps with other laws such as that on the protection of the environment.45

43

Note the difference between the terms ‘nuclear’ and ‘atomic’: at the origin, the reference to the ‘atom’ prevailed in the names of institutions, national legislation and international instruments but since the 1960s there appears to be a preference for referring to the nucleus of the atom which is more scientifically accurate, although both terms are still employed without distinction, including in legal texts. 44 45

IAEA, Handbook of Nuclear Law (2002), 4.

Sam Emmerechts, Environmental Law and Nuclear Law: A Growing Symbiosis, NLB 82 (2008), 95, 115.

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VI. The Legal Framework A. Radiation Protection

Exposure to various kinds of radiations is part of our natural environment. Some of them which are called ionizing radiations are emitted when the atom of certain materials have unstable nuclei, hence producing the phenomenon of radioactivity. There are also equipments designed to generate ionizing radiations (such as X-rays). Most of the sources of radiation are natural, whether from the space (cosmic rays) or from the uranium and derived products in the earth. Others are man-made (artificial radioactivity) and their use is essentially related to medical applications. Ionizing radiation can cause damage to human cells. Scientists and medical practicians started early to study these effects and the ICRP played a major role in recommending standards of protection. After World War II, a UN Scientific Committee on the Effects of Atomic Radiation (UNSCEAR)46 was instituted to examine the health condition of the population exposed to radioactivity following Hiroshima and Nagasaki.47 The transposition of these scientific data and ICRP recommendations into regulatory form has mainly been carried out within the IAEA and takes principally the form of its International Basic Safety Standards (BSS).48 These standards, approved by the IAEA’s Board of Governors, are not legally binding as they consist in recommendations to Member States to translate them into domestic legislation. Published for the first time in 1962, the BSS have since been periodically revised and the current edition dates from 1996.49 An interim edition has been adopted to integrate the latest ICRP recommendations.50 Several other intergovernmental organisations have joined 46 United Nations (UN) Scientific Committee on the Effects of Atomic Radiation, established by GA Res. 913 (X) of 3 December 1955. 47

Ibid., para. 2.

48

Paul Szasz, The Law and Practices of the IAEA, IAEA Legal Series No 7 (1970), Chapter 24, available at: http://ola.iaea.org/ola/documents/pdf/LegalSeries_7.pdf (accessed on 13 April 2014). 49 IAEA, International Basic Safety Standards for Protection Against Ionizing Radiation and for the Safety of Radiation Sources (IAEA BSS), IAEA Safety Series No. 115 (1996), available at: http:// www.ilo.org/wcmsp5/groups/public/@ed_protect/@protrav/@safework/documents/publication/ wcms_152685.pdf (accessed on 18 March 2014). 50 IAEA, International Basic Safety Standards on Radiation Protection and Safety of Radiation Sources, Interim Edition (2011), available at: http://www-pub.iaea.org/MTCD/Publications/PDF/ p1531interim_web.pdf (accessed on 9 December 2013).

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the Vienna Agency in sponsoring the BSS: the Food and Agriculture Organization of the United Nations, the International Labor Organization (ILO), the OECD NEA, the Pan-American Health Organization and the World Health Organization. The purpose of the BSS is to lay down general requirements for providing protection against the risks of radiation as well as to ensure the safety of radiation sources.51 The standards also specify dose limits for the exposure of workers and the public.52 It should be added that the BSS represent only one part of a much broader regulatory action of the IAEA which takes the form of recommendations concerning more specialised subjects or of codes of practice. Regarding regional cooperation, the role of the European Union (EU) is different because it has the statutory capacity to impose mandatory norms. The Euratom Treaty provides in its Chapter 3 for the establishment within the Community (now EU) of “uniform safety standards to protect the health of workers and the general public.”53 Further, its Article 33 requires Member States to enact provisions in their respective legislation to ensure compliance with these standards. They are contained in a Directive of the Council of 13 May 1996.54 Work is progressing on various proposals to adopt a new text which would amalgamate several existing Council Directives dealing inter alia with the control of high-activity sealed sources and orphan sources;55 on the operational protection of outside workers in controlled areas;56 on general public protection measures in the event of radiological emergency;57 and on the protection of individuals in relation to medical exposures.58 The Euratom Treaty also mandates the European Commission to verify the implementation of national legislation in this field, and to ensure that Members States respect their obligations concerning the monitoring of environmental radioactivity.59 51

IAEA BSS (note 49), para. 1.2.

52

Ibid., para. 2.23.

53

Art. 30 Euratom Treaty.

54

Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation, Official Journal of the European Union (OJ) 1996 L 159, 1. 55

Council Directive 2003/122/Euratom of 22 December 2003, OJ 2003 L 346, 57.

56

Council Directive 90/641/Euratom of 4 December 1990, OJ 1990 L 349, 21.

57

Council Directive 89/618/Euratom of 27 November 1989, OJ 1989 L 357, 31.

58

Council Directive 97/43/Euratom of 30 June 1997, OJ 1997 L 180, 22.

59

Art. 35 Euratom Treaty.

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The European Commission operates a system of rapid information exchange in the event of radiological emergency (ECURIE).60 Finally, it can impose maximum levels of radioactivity in foodstuff in the case of accidents (several such regulations were issued by the Council after Chernobyl).61 Apart from the EU, the international regulations on radiological protection are not binding. There is an exception however: the 1960 ILO Radiation Protection Convention (C 115)62 which entered into force on 17 June 1962. This convention which calls upon the Parties to take appropriate steps to ensure the protection of workers against ionizing radiation; also supplemented by a Radiation Protection Recommendation C 114,63 adopted the same day, which provides for methods of protection, monitoring, medical examination and inspection. The philosophy of the regulation of radiation protection is based on three main principles which are Justification, Optimisation and Limitation.64 Justification means that any activity likely to involve an exposure to radiation (which as a rule is subject to prior authorisation) must not be undertaken unless that activity presents a cost and benefit balance which is favourable. Naturally, other rules apply to radiological protection measures taken in the case of an emergency or accidental situation and medical applications consisting in deliberate exposure are subject to appropriate conditions. Optimisation means that exposure to radiation must be planned and carried out so as to keep the level of irradiation “As Low As Reasonably Achievable,” given existing economic and social factors (ALARA principle).65 Limitation means that applicable regulations must fix limits to the dose of the exposure to radiation likely to result from duly permitted activities in respect of workers and the public at 60 The European Community Urgent Radiological Information Exchange, Council Decision 87/ 600/EEC of 14 December 1987, OJ 1987 L 371, 76. 61

Council Regulation (Euratom) 3954/87 of 22 December 1987, OJ 1987 L, 11.

62

ILO Convention (No. 115) concerning the Protection of Workers against Ionising Radiations, 22 June 1960, UNTS 431, 41 (Radiation Protection Convention). 63

ILO, Recommendation concerning the Protection of Workers against Ionising Radiations, 22 June 1960, Recommendation R 114. 64 See IAEA (note 44), 45–53. For a definition of these principles, also see ICRP, 2007 Recommendations on Radiological Protection, in: Annals of the ICRP, Publication 103 (2007), 14, extract available at: http://www.icrp.org/docs/ICRP_Publication_103-Annals_of_the_ICRP_37(2-4)-Free_ extract.pdf (accessed on 18 March 2014). 65

Ibid.

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large. At present, international regulations set such limits at 50 millisievert (msv) per year for professionally exposed workers and a maximum of 100 msv over five years. For the general population, the limit is of 1 msv per year.66 The sievert is a radiological unit which measures the biological effects of radiation in the body (effective dose).67 A source of complexity in applying radiation protection comes from the fact that while significant doses result in a predictable and measurable impact on health (deterministic effects), a risk persists even at very low doses where the effects of radiation are considered as random (stochastic effects).68 It means that there cannot be a threshold below which it would be possible to eliminate any possibility of detrimental effects on human health and this has important legal implications concerning the settlement of claims for compensation of alleged radiation-induced diseases like solid cancers. This is for the reason that the lower the dose of irradiation received, the more complex is the demonstration of a causal link and the greater the chance of speculative claims.69

B. Nuclear Safety

Under this heading the international conventions and other non-binding instruments covering the following aspects: information and assistance in the case of nuclear accidents safety of nuclear installations; safety of spent fuel and radioactive waste; safe and secure management of radioactive sources will be discussed.

1. Information and Assistance The Chernobyl accident on 26 April 1986 put in evidence the relative helplessness of the international legal framework to prevent or cope with the consequences of a catastrophe of this magnitude.70 This concerned notably obligations in the event of 66

See supra, note 49.

67

See French Alternatives Energies and Atomic Energy Commission (CEA), Radiation and Man (2010). 68

Ibid.

69

See Ted Lazo, International Systems of Radiological Protection, in: OECD NEA (ed.), (note 39) 105, 120. 70

Malone (note 27), 203.

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transfrontier release of radioactivity and the absence of internationally agreed safety rules, plus the liability and compensation dimension. One particular aspect which shocked the public opinion was that the USSR had failed to inform appropriately the other countries about the accident and its likely impact in terms of radioactive fallout. This prompted the nuclear community to act swiftly; in the ensuing five months, from May to September, two conventions71 were negotiated and open to signature, an unusual feat in international law. The Convention on Early Notification of a Nuclear Accident was adopted at the Agency’s General Conference on 26 September 1986. It quickly entered into force and has now 106 parties. It obligates Parties to notify of any nuclear accident occurring on their territory – directly or through the IAEA – to the States susceptible to be physically affected by the nuclear accident.72 The Parties must also specify the nature, time and location of an accident and provide the relevant information in order to mitigate radiological consequences.73 The accidents to which the convention refers are those involving the actual or possible release of material likely to cause a transboundary radioactive contamination.74 Its scope is broadly defined as it covers accidents in reactors, other installations of the nuclear fuel cycle, transports of nuclear fuel and radioactive waste, and also extends to radioisotopes used outside nuclear installations.75 While, as a rule dictated by political considerations, many nuclear instruments exclude their application to non-peaceful activities, the Early Notification Convention provides that State Parties may at their discretion also notify of “other nuclear accidents.”76 The affected State Parties must notify through the Vienna Agency or directly to other Parties designated competent authorities or points of contact. The Agency must also keep the Incident and Emergency Center list,

71

Convention on Early Notification of a Nuclear Accident, 26 September 1986, INFCIRC/335, 26, UNTS 1439, 275 (Early Notification Convention), and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 26 September 1986, INFCIRC/336, UNTS 1457, 133 (Assistance Convention). 72 Art. 2 (a) and (b) Early Notification Convention. See also Dirk Hanschel, Prevention, Preparedness and Assistance, Concerning Nuclear Accidents – Effective Legal Framework or Patchwork?, German Yearbook of International Law 55 (2012), 217, 225–227. 73

Art. 2 Early Notification Convention.

74

Art. 1 (1) Early Notification Convention.

75

Art. 1 (2) Early Notification Convention.

76

Art. 3 Early Notification Convention.

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created in 2005, up-to-date.77 There are also several international cooperative arrangements in order to foster the implementation of the notification mechanism, like the Inter-Agency Committee on Radiological and Nuclear Emergencies.78 The convention may today appear somewhat obsolete as it was adopted in a ‘pre-internet’ age compared to today’s quasi instantaneous dissemination of news as exemplified by the Fukushima accident. It nonetheless constitutes a landmark in the universal acceptance of a new concept: that of nuclear transparency. The Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency79 was also adopted by the IAEA on 26 September 1986. It entered into force on 26 February 1987 and presently has 111 parties. The convention does not limit itself, as indicated in the title, to nuclear accidents but also extends to emergency situations understood to develop before an actual accident happens (both terms are left undefined). Like its ‘twin convention,’ it aimed at responding to the question raised in the aftermath of Chernobyl, namely whether there is an obligation for countries to cooperate in order to provide each other assistance in these circumstances. Under the convention, the State Parties shall cooperate between themselves – and with or through the IAEA – with a view to facilitate prompt assistance in the event of a nuclear accident or radiological emergency, to minimize its consequences and to protect life, property and the environment from the effects of radioactive releases.80

In practice, the provision of assistance implies that potential obstacles must be overcome beforehand: the permission to move across borders, an agreement on the nature and conditions of the assistance, the protection of the personnel involved, and the reimbursement of costs.81 In this regard, the question of possible legal actions against the assisting party in relation to damage arising out of an intervention was particularly sensitive and is addressed by the convention by hold harmless type

77 For information regarding the Incident and Emergency Center, see its website, available at: http:// www-ns.iaea.org/tech-areas/emergency/incident-emergency-centre.asp (accessed on 18 March 2014). 78 For information regarding the Inter-Agency Committee on Radiological and Nuclear Emergencies, see its website, available at: http://www-ns.iaea.org/tech-areas/emergency/iacrna/login.asp (accessed on 18 March 2014). 79

For more discussion on this, see Hanschel (note 72), 239–241.

80

Art. 1 Assistance Convention.

81

Arts. 7–9 Assistance Convention.

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arrangements.82 Like the Early Notification Convention, the Assistance Convention has contributed to the international recognition of a principle nowadays generally accepted and has been followed by the conclusion of a large number of bilateral or regional assistance agreements. Both conventions were also a first step in the direction of an international regime for nuclear safety.

2. Safety of Nuclear Installations For a long time, rule-making in the area of nuclear safety had consisted essentially in the elaboration of technical standards and advice on good practices to be followed by governments, worked out by specialised committees organised by the Vienna Agency. These standards are articulated in three main categories: Safety Fundamentals at the top of the hierarchy, then Safety Requirements, and further below, Safety Guides.83 Independently of this internal classification and in spite of the fact that the standards reflect a broad consensus among the national experts having participated in their preparation – thus encouraging their actual implementation on the domestic level – they are legally mere recommendations issued by the competent IAEA bodies. However, the intensive use of soft law norms has been criticised by international lawyers such as Professor Boustany who speaks of “nuclear safety caught in the trap of nebulous law.”84 It took the Chernobyl accident to mitigate the resistance of many countries to the idea of international mandatory norms, and several more years to arrive at an agreement on the type of regime acceptable to these countries.85 The Convention on Nuclear Safety (CNS) was opened to signature on 20 September 1994. It entered into force on 24 October 1996 and has now 76 parties, including almost all nuclear-active States.86 Before giving some indications on its main provisions, 82

Art. 10 Assistance Convention.

83

See notice contained in IAEA, IAEA Safety Standards Series No. GS-R-1 on Legal and Governmental Infrastructure for Nuclear, Radiation, Radioactive Waste and Transport Safety (2000). 84

Katia Boustany, The Development of Nuclear-Law Making or the Art of Legal Evasion, NLB 61 (1998), 39, 53. 85 Louise de La Fayette, International Environmental Law and the Problem of Nuclear Safety, Journal of Environmental Law 5 (1) (1993), 31, 69. 86 Convention on Nuclear Safety (CNS), Status and List of Contracting Parties, 9 January 2014, available at: http://www.iaea.org/Publications/Documents/Conventions/nuclearsafety_status.pdf (accessed on 18 March 2014).

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it should be noted that the CNS applies only, contrary to what its title may suggests, to land-based civil nuclear power reactors, including on-site ancillary facilities for the management of radioactive materials, and until their decommissioning.87 Its stated objective is to achieve and to maintain a high degree of nuclear safety worldwide, to establish effective defences against potential radiological hazards, and finally to prevent accidents and minimise their consequences.88 The convention is to a large extent based on the technical input produced by the work of the IAEA’s International Nuclear Safety Advisory Group (INSAG).89 A key concept identified in the Preamble of the convention is the desirability to promote universally “an effective nuclear safety culture.”90 The convention is structured into two main parts. Chapter 2 (Obligations) provides for the creation of a suitable legislative framework, the institution of a competent national regulatory body, and a licensing system. It broadly codifies the duties of the Parties concerning the various elements of a sound nuclear safety policy covering the successive stages of the life of nuclear reactors, from siting to operation, and including emergency preparedness.91 It assigns the ‘prime’ responsibility for safety to the holder of the licence (the nuclear operator).92 In respect of “existing nuclear installations” at the time of adoption of the CNS, it requests Contracting Parties to upgrade if necessary their level of safety or if it cannot be realised to close them, taking into account the social and economic impact of the shut down.93 The second pillar of the convention (Chapter 3 on Meetings of the Contracting Parties) establishes a mechanism of peer review of the safety of nuclear installations where such Parties must report in detail on the implementation of their obligations under the convention.94 87

Art. 2 (i) CNS.

88

Art. 1 CNS. See also Patrick Reyners, The Convention on Nuclear Safety of 1994, Review of European Community & International Environmental Law (RECIEL) 5 (1996), 231, 238. 89 International Nuclear Safety Advisory Group (INSAG), 1991 Safety Fundamentals: The Safety of Nuclear Installations, IAEA Safety Series No 50 (1993). 90 See Preamble, para. iv CNS. Safety Culture was defined in the INSAG Report of 1981 as “that assembly of characteristics and attitudes in organizations and individuals which establishes that, as an overriding priority, nuclear plant safety issues receive the attention warranted by their significance.” The definition is reprinted in: Ian Barraclough/Annick Carnino, Safety Culture: Keys for Sustaining Progress, IAEA Bulletin 40 (2) (1998), 27. See also IAEA, IAEA Safety Series No. 75: INSAG-1 on the PostAccident Review meeting of the Chernobyl Accident (1987). 91

Arts. 4–19 CNS.

92

Art. 9 CNS.

93

Art. 6 CNS.

94

Arts. 20–28 CNS.

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This system has proven over the years to be quite effective in confronting national policies and in sharing experience95 (the sixth CNS review meeting took place at the IAEA’s headquarters from 23 March to 4 April 2014). Even if confidentiality provisions protect the national reports and the exchanges within the ‘country groups’ sessions, in practice most countries opt to make their reports public, thus contributing to the transparency of the process.96 In sum, the CNS aims at enhancing safety performances across the world through the application of fundamental principles rather than detailed prescriptive standards. This explains its qualification (somewhat odd for a lawyer) in the Preamble as an ‘incentive’ convention.97 It underlines the fact that the CNS does not provide for a system of sanctions and does not create an international nuclear safety authority. Rather, it reflects the collective interest of strengthening nuclear safety and for the first time submits nuclear plants to a legally binding regime.98 Until a few years ago, while a comprehensive radiation protection regulation had been developed under the Euratom Treaty, there were no equivalent rules for nuclear safety. This was partly due to the fact that the Treaty is not as explicit on this subject and partly because several EU Members were reticent to accept an extension of the competence of the Commission in this domain.99 The gap was finally filled in 2009 with the adoption of Council Directive 2009/71/Euratom100 establishing a Community Framework for the Nuclear Safety of Nuclear Installations. The main objectives of the Directive which is generally built on the CNS and IAEA Safety Fundamentals101 are to improve the Member States’ laws and regulations, and to enhance the independence of national regulators. The Directive covers all civilian 95

This opinion is based on the increasing number of participating countries, openness of the review process and general feedback from the Parties. 96

See Peri Lynne Johnson, The Role of the Convention on Nuclear Safety in Strengthening the Legal Framework for Nuclear Safety, NLB 91 (2013), 7, 22. 97 See Tammy de Wright, The ‘Incentive’ Concept as Developed for the Nuclear Safety Conventions and its Possible Extension to Other Sectors, NLB 80 (2007), 29, 47. 98

Günther Handl, The IAEA Nuclear Safety Convention: An Example of Successful Treaty Management?, NLB 72 (2004), 7, 27. See also Odette Jankowitsch, The Nuclear Safety Convention, NLB 54 (1994), 9, 22. 99

Yvan Pouleur/Petr Krs, The Momentum of the European Directive on Nuclear Safety: From the Complexity of Nuclear Safety to Key Messages Addressed to Europeans Citizens, NLB 85 (2010), 5, 34. 100

Council Directive 2009/71/Euratom, of 22 June 2009, OJ 2009 L 172, 18.

101

See IAEA Fundamental Safety Principles, IAEA Safety Standards Series No. SF-1 (2006).

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nuclear installations and not simply power reactors. Different from the CNS, it contains provisions on informing the public, taking into account the 1998 Aarhus Convention.102

3. Spent Fuel and Radioactive Waste While the CNS is “commonly recognized as constituting the cornerstone of the international framework on nuclear safety,”103 during its negotiation a number of delegations had objected to the narrow scope of the text and, specially, had insisted on the importance of regulating the safe management of radioactive waste.104 This request was acknowledged in the Preamble of the CNS and work started immediately afterwards, leading to the adoption on 5 September 1997 of a Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management.105 It entered into force on 18 June 2001 and has now 69 parties, which is relatively low considering that practically all countries have some sort of radioactive waste.106 Its somewhat unusual title (“Joint Convention”) originates from the difference of views among negotiators concerning the way spent (meaning irradiated in a reactor) nuclear fuel should be addressed in this instrument. Indeed, spent fuel can either be considered as a valuable resource when it is to be reprocessed in order to recover and recycle the useful material it still contains, or fall in the category of radioactive waste (defined in the convention as “for which no further use is foreseen”107). Finally, a compromise was found whereby there would be a single convention with provisions 102 United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, UNTS 2161, 447 (Aarhus Convention). 103 Wolfram Tonhauser/Anthony Wetherall, The International Legal Framework on Nuclear Safety: Developments, Challenges and Opportunities, in: OECD NEA (ed.), (note 39) 157, 169. 104

Wolfram Tonhauser/Odette Jankowitsch, The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, NLB 60 (1997), 9, 12. 105

Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management, 5 September 1997, INFCIRC/546, UNTS 2153, 357 (Radioactive Waste Convention). 106

See Radioactive Waste Convention, Status and List of Contracting Parties (2013), available at: http://www.iaea.org/Publications/Documents/Conventions/jointconv_status.pdf (accessed on 13 April 2014). 107

Art. 2 (h) Radioactive Waste Convention.

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common to spent fuel and radioactive waste safety and two parallel sets of requirements applying respectively to spent fuel and to radioactive waste. Besides this problem of structure, it was agreed that the CNS would serve as a model for the new agreement, both being seen as ‘sister conventions.’108 The Joint Convention covers spent fuel and radioactive waste resulting from civilian (only) operations.109 However, spent fuel held at reprocessing facilities is not covered unless the Contracting Party concerned declares to include this activity into the scope of the convention.110 Further, the convention does not apply to waste outside the nuclear fuel cycle except for the special case of disused radioactive sealed sources.111 As concerns the relationship with the CNS, the idea was that a convention on the safety of radioactive waste management should take over where the CNS ceased to apply so as to avoid gaps in coverage.112 On the substance, the provisions contained in Chapters 2 (Safety of Spent Fuel Management) and 3 (Safety of Radioactive Waste Management) are clearly modelled on those of the CNS and inspired as well from standards elaborated by the IAEA’s competent groups of experts.113 Chapter 4 on General Safety Provisions apply both to spent fuel and radioactive waste. Like the CNS, the Joint Convention establishes a peer review mechanism (Chapter 6 on the Meetings of the Contracting Parties); there have been so far four such meetings.114 The Joint Convention deals also with the issue of transboundary movements of waste, a matter which at the time was politically sensitive due to allegations of ‘waste dumping’ in Africa,115 and is reflected in the Preamble “recognizing that any State has the right to ban import into its territory of foreign spent fuel and radioactive waste.” Drawing from a 1990 IAEA Code of Practice on International Transboundary Movement of Radioactive Waste116 – itself adopted to take into account the 1989 108

Tonhauser/Jankowitsch (note 104), 19.

109

Art. 3 Radioactive Waste Convention.

110

Art. 3 (1) Radioactive Waste Convention.

111

Art. 3 (2) Radioactive Waste Convention.

112

Tonhauser/Jankowitsch (note 104), 13.

113

IAEA, Principles of Radioactive Waste management, IAEA Safety Series No. 111-F (1995).

114

Information regarding the four Review Meetings is available via: http://www.iaea.org/ Publications/Documents/Conventions/jointconv.html (accessed on 18 March 2014). 115 116

Art. 27 Radioactive Waste Convention. See also Tonhauser/Jankowitsch (note 104), 17.

IAEA, Code of Practice on the International Transboundary Movement of Radioactive Waste, 13 November 1990, INFCIRC/386. Res. GC (XXXIV)/RES/530.

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Basel Convention on Transboundary Movement of Hazardous Waste and their Disposal117 – such movements are subject to a system of express authorisation, notification and consent on the part of both the States of origin and destination of spent fuel and radioactive waste.118 Finally, in order to cope with difficulties encountered by in particular the “least developed countries,” the Contracting Parties are called to allow for the re-entry into their territories of disused radioactive sources (such as those used for medical applications) so that they can be safely returned to a qualified manufacturer.119 Following the adoption in 2009 of the Nuclear Safety Directive, a Council Directive 2011/70/Euratom120 was adopted on 19 July 2011, establishing a Community Framework for the Responsible and Safe Management of Spent Fuel and Radioactive Waste. Like the Directive of 2009 Establishing a Community Framework for the Safety of Nuclear Installations, the Directive is based on the Joint Convention and IAEA Fundamentals. Member States must set up a legislative and organisational framework for spent fuel and radioactive waste management.121 National programmes must be communicated to the Commission and be reviewed periodically so as to demonstrate safety conditions.122 An export control system is based on the general principle that waste are to be disposed primarily in the State of origin, subject to certain exceptions and taking account of the provisions of the Directive 2006/117/ Euratom on the Supervision and Control of Shipments of Radioactive Waste and Spent Fuel.123

117

Basel Convention on Transboundary Movement of Hazardous Waste and their Disposal, 22 March 1989, UNTS 1673, 57. 118

Art. 27 (1)(i) Radioactive Waste Convention.

119

Tonhauser/Jankowitsch (note 104), 22.

120

Council Directive 2011/70/Euratom of 19 July 2011, OJ 2011 L 199, 48.

121

Art. 5 (1) Directive 2011/70/Euratom.

122

Art. 13 (1) Directive 2011/70/Euratom.

123

Ute Blohm-Hieber, The Radioactive Waste Directive: A Necessary Step in the Management of Spent Fuel and Radioactive Waste in the European Union, NLB 88 (2011), 21, 35.

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4. Research Reactors Research reactors – not included in the scope of the 1994 CNS – operate in considerable number in many countries, including those without a nuclear power programme. In 2000, it was recognised that the conditions for the safety of research reactors in certain countries were a cause of concern and, accordingly, the IAEA was asked to initiate the preparation of either a protocol (to the CNS) or of another instrument to address this problem.124 A group of technical and legal experts were given the task and it opted eventually for the solution of a guidance document rather than that of a full-fledged international treaty (as had been the case for the Joint Convention). The result was a Code of Conduct on the Safety of Research Reactors,125 adopted in 2004 by the IAEA General Conference which recommended its implementation. As noted by Anthony Wetherall, the IAEA code is by its very nature a soft law instrument and thus not binding.126 Yet, it has been elaborated through a mechanism of international cooperation and once formally approved by the IAEA’s competent organs – the Board of Governors and General Conference – it constitutes a legal instrument intended to offer guidance to Member States for the development and harmonisation of national policies and regulations.127 The provisions of the Code concerning the role of States and of regulatory bodies are comparable to that of the CNS. However, more emphasis is put on the responsibilities of the Operating Organisation.128 Since there are many different designs of research reactors – one reason advanced to justify their exclusion from the scope of the CNS – as reflected in their broad definition in the Code, States are advised to adopt “a graded approach” in applying it, “commensurate with the hazard potential, while maintaining a strong nuclear safety culture.”129 Another special feature of the Code relates to a situation found in several countries due to political or economic factors: the extended 124

IAEA, Resolution on the Safety of Nuclear Research Reactors, September 2000, GC(44)/RES/14.

125

IAEA, Code of Conduct on the Safety of Research Reactors, 8 March 2004, IAEA/CODEOC/ RR/2006, GC (48)/Res/10), available at: http://www-pub.iaea.org/MTCD/publications/PDF/ CODEOC-RR_web.pdf (accessed on 11 December 2013). 126

Anthony Wetherall, Normative Rule-Making at the IAEA: Codes of Conduct, NLB 75 (2005),

71, 93. 127

Ibid.

128

IAEA, (note 125), Section V (9).

129

Ibid., Section III (6).

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shutdown of reactors which requires that appropriate measures be taken to restore or maintain an adequate level of safety (and of security), in particular the removal of fuel elements.130 In turn, the Code advises on decommissioning procedures.131 Consistent with its non-mandatory nature and different from the CNS and the Joint Convention, the Code does not provide for a peer review mechanism. In the years following its adoption, it became however clear that some countries regretted this absence and there are now meetings held periodically where the questions raised by the application of the Code at domestic level are discussed collectively.132

5. Radioactive Sources Compared to the safety of nuclear installations, nuclear authorities were rather late in paying attention to the hazards presented by radioactive sources. These sources are sealed devices containing radioactive substances, designed to be used for a large variety of applications such as in medicine, industry, agriculture or research. While the number of nuclear installations is relatively limited, hundreds of thousands of radioactive sources are currently in use all over the world.133 Yet, they can cause serious damage should they be incorrectly applied or fall into improper hands.134 The risk is therefore not only a matter of safety but also of security. It is now addressed by a code135 elaborated within the IAEA. The Code of Conduct on the Safety and Security of Radioactive Sources136 was adopted first in 2000. Then, following the lessons drawn from the events of 11 September 2001, which had highlighted the danger of nuclear terrorism, it was revised in 130

Ibid., Section VII.C.

131

Ibid., Section VII.D.

132

Patrick Reyners, Three International Atomic Energy Agency Codes, in: OECD NEA (ed.), (note 39) 171, 185. 133

See IAEA Bulletin 41 (3) (1999), a special issue on “Radiation, Safety and Security” and radioactive sources. 134

See ibid.

135

IAEA, Code of Conduct on the Safety and Security of Radioactive Sources (2000).

136

The original IAEA Code of Conduct on the Safety and Security of Radioactive Sources (2000) is available at: http://www.fmwg.org/sitefiles/code%20of%20conduct%20on%20safety%20and%20 security%20of%20radioactive%20sources.pdf (accessed on 11 December 2013).

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its present form in September 2003.137 The Code’s originality is that it integrates both the safety and security elements of the management of radioactive sources. Accordingly, its purpose is not only to prevent radiological accidents and to mitigate their consequences but also to prevent unauthorised access and misuse of sources through the harmonisation and implementation of national policies, laws and regulations. The Code sets out in detail the arrangements which States must make to establish a suitable legal framework for the use and safekeeping of sources, and to minimise the risks.138 Its provisions reflect a graded approach, the sources being categorised in an annex in the decreasing order of their propensity to danger. In addition, there are specific rules covering disused sources and the import and export operations,139 broadly based on the obligations already fixed under the 1997 Joint Convention. Following the adoption of the revised version of the Code, some IAEA Member States felt the need to supplement it by a Guidance on the Import and Export of Radioactive Sources,140 adopted in September 2004, The Guidance is a sort of vademecum document intended to give importing and exporting countries detailed recommendations concerning the procedures to follow for these operations. The Code and its Guidance are clearly non-binding instruments. However in 2003, in respect of the Code alone and in the interest of reinforcing its authority, the IAEA General Conference urged the Members to write to the Director General (DG) and to declare their intention to give full effect to the provisions of the Code.141 This political commitment which is not meant to constitute a strict legal obligation has since been subscribed to by more than 100 countries. Note that this type of arrangement has not been used in the case of the Code on Research Reactors.

137 IAEA, Revised Code of Conduct on the Safety and Security of Radioactive Sources (2004), IAEA/CODEOC/2004, GC(47)/RES/7, available at: http://www-pub.iaea.org/MTCD/Publications/ PDF/Code-2004_web.pdf (accessed on 11 December 2013). 138

Ibid., Section III (Basic Principles).

139

Ibid., Section III (23–29).

140

IAEA, Guidance on the Import and Export of Radioactive Sources (2004), IAEA/CODEOC/ IMP/EXP/2005, 2012 version available at: http://www-pub.iaea.org/MTCD/Publications/PDF/ 8901_web.pdf (accessed on 11 December 2013). 141

IAEA, Resolution on Measures to Strengthen International Co-operation in Nuclear, Radiation and Transport Safety and Waste Management, September 2003, GC(47)/RES/7, B, para. 4.

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C. Nuclear Transports

Nuclear industry activities require many transport operations whether domestic or international. The same is true for radioactive sources. The transport of radioactive material presents a risk for safety inherent to radioactivity and also, as concerns nuclear fuel, the possibility of uncontrolled fission reaction (criticality).142 Transport safety is mainly based on proper conditioning, packaging, labelling and adequate procedures.143 There is also a risk for security due to the exposure to a variety of malicious acts. All transports of radioactive material are subject to a regime of licensing, under national legislation independently of nuclear trade controls over such movements.

1. IAEA Regulations The United Nations Economic and Social Council (ECOSOC) has developed a set of recommendations for the transport of dangerous goods which establishes a nine-class identification system (known as the Orange Book).144 Radioactive materials in this system belong to Class 7. In 1959, the ECOSOC asked that the IAEA be entrusted with the preparation of specific norms for such material145 and, in 1961, the first edition of the Regulations for the Safe Transport of Radioactive Materials146 was published. The recommendations contained in the IAEA Regulations have since been updated regularly and the current edition is from 2012.147 There was in turn a need to 142 Duncan Currie/Jon Van Dyke, The Shipment of Ultrahazardous Nuclear Materials in International Law, RECIEL 8 (1999), 113, 124. 143

IAEA (note 44), 89–95.

144

UN Recommendations on the Transport of Dangerous Goods – Model Regulations, available via: http://www.unece.org/trans/danger/publi/unrec/rev13/13nature_e.html (accessed on 11 December 2013). 145 ECOSOC Res. 724 C (xxviii) of 17 July 1959, para. 3 (g), following a Recommendation of the UN Committee of Experts on the Transport of Dangerous Goods, see IAEA, Report on Legally Binding and Non-Binding International Instruments and Regulations Concerning the Safe Transport of Radioactive Materials and Their Implementation, 30 April 1998, GOV/1998/17, 4. 146

The original version (which is no longer valid) of the IAEA Regulations for the Safe Transport of Radioactive Materials, IAEA Safety Series No. 6 (1961) is available at: http://gnssn.iaea.org/ Superseded%20Safety%20Standards/Safety_Series_006_1961.pdf (accessed on 11 December 2013). 147 IAEA, Regulations for the Safe Transport of Radioactive Material (2012), Safety Standards Series No. SSR-6, available at: http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1570_web.pdf (accessed on 11 December 2013).

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adjust the general recommendations issued by the Vienna Agency to the particular requirements for the various modes of transport to ensure that they be universally accepted and to facilitate the movements of radioactive material. States are in turn expected to apply these regulations to domestic transports.

2. Modal Transport Regulations The law governing the carriage by sea of dangerous goods has its origin in the Safety of Life at Sea Convention.148 The convention (Chapter VII) refers itself to the IMO International Maritime Dangerous Goods Code which 11th edition entered into application in 2001.149 Under the Code, Class 7 covers radioactive material. The IMO has also adopted in 1998 an International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Waste.150 Both Codes are now mandatory.151 In respect of radioactive material transported by air, there are two sets of regulations. It is under the 1944 International Civil Aviation Organization (ICAO) Convention on International Civil Aviation152 that norms for the transport of dangerous goods have been developed (Annex 18). The detailed requirements for the shipments of radioactive material are found in its Chapter 7 (last amended in 2005) and are kept up to date by an ICAO Dangerous Goods Panel. Separately, regarding dangerous cargoes, there are Restricted Articles Regulations issued by the International Air Transport Association (IATA)153 which airlines companies follow as well.

148

International Convention for the Safety of Life at Sea, 1 November 1974, UNTS 1184, 3.

149

IMO, International Maritime Dangerous Goods Code (2001).

150

International Code for the Safe Carriage of Packaged Irradiated Nuclear Fuel, Plutonium and High-Level Radioactive Wastes on Board Ships under the International Convention for the Safety of Life at Sea of 1 November 1974, 27 May 1999, Resolution MSC.88(71) (also known as the INF Code). 151

World International Transport Institute (WNTI), Radioactive Materials Transport, The International Safety Regime: Overview, Rev. 1 (2001), available at: http://www.wnti.co.uk/media/ 31649/IP7_EN_MAR13_V1.pdf (accessed on 13 April 2014). 152 International Civil Aviation Organization (ICAO), Convention on International Civil Aviation, 7 December 1944 UNTS 15, 295 (also known as the Chicago Convention). 153

International Air Transport Association (IATA), Restricted Articles Regulations. See WNTI (note 151), 81 et seq.

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The 2001 Restricted Articles on some points differ from the corresponding ICAO Technical Instructions but remain generally consistent. Contrary to maritime and aerial transport rules which are meant to be global, transports by land are geographically restricted and so is their regulation. To focus on the European continent, it has been developed under the aegis of the UN Economic Commission for Europe. The 1957 European Agreement on the International Carriage of Dangerous Goods by Road154 contains technical annexes dealing with radioactive material modelled on the IAEA Regulations. These requirements have further been incorporated in the EU Council Directive 94/55/EC for the approximation of road transport laws of Member States.155 As for railway transports, it is on the basis of a 1980 Convention Concerning the International Carriage by Rail156 and its CIM Uniform Rules,157 that Regulations concerning the International Carriage of Dangerous Goods by Rail158 have been adopted, covering radioactive material. Likewise, they conform to the IAEA standards. Again, these Regulations have been introduced into the EU Council Directive 96/49/EC for the same purpose.159 Similar requirements are provided in accordance with a 2000 European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways,160 in line with the IAEA’s Regulations and made applicable in EU law.161

154 European Agreement on the International Carriage of Dangerous Goods by Road, 30 September 1957, UNTS 619, 77. 155

EU Council Directive 94/55/EC of 21 November 1994, OJ 1994 L 319, 7.

156

Convention Concerning International Carriage by Rail, as amended by the Vilnius Protocol of 3 June 1999, 9 May 1980, UNTS 1397, 76 (COTIF). 157

Uniform Rules Concerning the Contract for International Carriage of Goods by Rail (1980), COTIF, Annex. 158

Central Office for International Carriage by Rail, COTIF: Appendix C, Regulations concerning the International Carriage of Dangerous Goods by Rail (2013), available via: http://www.otif.org/ en/publications/rid-2013.html (accessed on 11 December 2013). 159

Council Directive 96/49/EC of 23 July 1996, OJ 1996 L 235, 25.

160

European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways, 26 May 2000, ECE/TRANS/ADN/CONF/2000/CRP.10. 161

See WNTI (note 151), 89 et seq.

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Finally, under the 1964 Universal Postal Convention,162 a manual contains safety prescriptions for the conveyance by mail of radioactive material.163

D. Nuclear Security

Compared to the concept of nuclear safety which puts the emphasis on the prevention and mitigation of accidents, nuclear security relates to the measures of prevention, detection and response in the case of unauthorised access and transfer of nuclear material and of sabotage, theft or other malicious acts involving nuclear material and associated equipments and facilities.164 International conventions have been adopted to combat these acts and there are in addition various non-binding instruments in this field as well as political initiatives from countries and organisations concerned, within and outside the nuclear sphere. This article will however concentrate on nuclear aspects. Actions taken to enforce nuclear security are comforted by other instruments in the area of safety or non-proliferation (safeguards agreements). The IAEA has formulated the concept of the three S (for Safety, Security and Safeguards)165 which is meant to underline their synergetic effect.166

1. International Conventions The first treaty addressing the question of nuclear security was the CPPNM Convention which opened for signature on 3 March 1980. It came into force on 8 February 1987 and has now 148 parties. Because the movements of nuclear material (i.e. plutonium and enriched uranium in particular) were at the time considered as especially vulnerable to breaches of security, the convention applies to their international transport.167 It requests Contracting Parties to strengthen their legal framework, taking 162

Constitution of the Universal Postal Union, 10 July 1964, UNTS 611, 7.

163

For further details, see World Nuclear Transport Institute, Radioactive Materials Transport – The International Safety Regime (2nd ed. 2001). 164

IAEA (note 44), 145.

165

IAEA, Report by the Director General, 11 November 2001, Doc. GOV/2001/50.

166

Carl Stoiber, Nuclear Security: An Emerging Domain of International Law, in: International Nuclear Law Association (INLA), Nuclear Inter Jura: Proceedings of INLA Congress 2007 (2008), 851, 881. 167

Art. 2 (1) CPPNM Convention.

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into consideration the degree of protection corresponding to the propensity for danger of nuclear material concerned,168 and to cooperate between themselves through in particular consultation and the exchange of information.169 The CPPNM Convention criminalises the commission of acts constitutive of offence170 and for the first time in the nuclear domain obligates Parties to either prosecute or extradite the offenders (judicare aut dedere).171 Over the years and in the climate of growing concern about nuclear ‘insecurity,’ came the realisation of drawbacks to the convention, namely that it did not cover nuclear material in domestic use, storage or transport. As a result, the CPPNM was amended on 8 July 2005 under a new title (Convention on the Physical Protection of Nuclear Material and Nuclear Facilities). The revised CPPNM has to date been ratified by 70 States. However, it is not yet in force by reason of the high number of ratifications (two thirds) required to approve the amendments.172 Parties under the enlarged scope of the new convention are expected to apply a series of Fundamental Principles of Physical Protection of Nuclear Material and Nuclear Facilities. The amendments also expand the qualification of existing offences and add new ones such as the smuggling of nuclear material or the sabotage of nuclear facilities.173 Outside the sphere of nuclear law but relevant for nuclear security, the action of the international community against the risk of terrorism has been undertaken by the UN, through a number of SC resolutions, generally taken on the basis of Chapter VII of the UN Charter,174 or under universal conventions adopted by the GA.175 Many of these instruments encompass the nuclear dimension but one of them is specific to nuclear security: International Convention for the Suppression of Acts of Nuclear 168

Arts. 3–6 CPPNM Convention.

169

Arts. 3–6 CPPNM Convention.

170

Art. 7. CPPNM Convention.

171

Art. 8 CPPNM Convention.

172

Art. 20 CPPNM Convention. The status of the amendment is available at: http://www.iaea.org/ Publications/Documents/Conventions/cppnm_amend_status.pdf (accessed on 18 March 2014). 173

Maria de Lourdes Vez Carmona, The International Regime on the Physical Protection of Nuclear Material and the Amendment to the CPPNM, NLB 76 (2005), 29, 46. 174

One example is SC Res. 1540 of 28 April 2004. The resolution which refers to the action of ‘nonState actors’ (paras. 1, 2) focuses on the proliferation of weapons of mass destruction and calls upon States to take all necessary measures to combat this threat. Adopted under Chapter VII Charter of the UN, 26 June 1945, UNTS 892, 119, the resolution is binding for all members of the UN. 175

See Walter Gehr, The Universal Legal Framework against Nuclear Terrorism, in: INLA (note 166), 869, 881; Carl Stoiber, The United Nations Security Council and Nuclear Law, in; OECD NEA (ed.), (note 39) 91, 104.

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Terrorism.176 The convention came quickly into force, on 7 July 2007, now with more than 90 parties. Its adoption reflected the desire to supplement the already existing UN instruments with one especially dedicated to the threat to international peace and security,177 which nuclear terrorism represents. Compared with the CPPNM, the insertion in the definition article of radioactive material and of explosives or radiological dispersal devices (‘dirty bombs’) reflects the broad scope of the convention.178 It lists the acts which constitute offences under the convention and which Contracting Parties must criminalise in their domestic law and establishes an obligation to prosecute or extradite the alleged perpetrators.179As for the CPPNM, it is made clear that for the purpose of extradition, none of the offences can be excused on account of political motives.180 Parties are to cooperate in the implementation of the convention181 and there is also a duty to render harmless any material or device seized in relation to the commission of an offence.182 Generally, these provisions are consistent with those of earlier anti-terrorism conventions. The question of the inevitable overlap with the CPPNM was not regarded during the negotiations as a real problem, even though the two texts differ on certain points.183

2. Non-Binding Instruments In this category of instruments, the longest standing document are the Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities, first published in 1972 and regularly updated since.184 It provides recommendations on 176

For the ICSANT, see supra, note 35.

177

See Preamble, para. 7 ICSANT.

178

Art. 1 (4)(b) ICSANT.

179

Arts. 2 (list), 5 (domestic law), 9–17 (perpetrators) ICSANT.

180

Art. 15 ISCANT.

181

Art. 7 ICSANT.

182

Art. 18 (1)(a) ICSANT.

183

Odette Jankowitsch-Prevor, International Convention for the Suppression of Acts of Nuclear Terrorism, NLB 76 (2005), 7, 27. 184 IAEA, Nuclear Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (2011), IAEA Nuclear Security Series No. 13, INFCIRC/225/Revision 5, available at: http://www-pub.iaea.org/MTCD/Publications/PDF/Pub1481_web.pdf (accessed on 12 December 2013). See also Vladimir Orlov, Illicit Nuclear Trafficking & the New Agenda, IAEA Bulletin 46 (1) (2004), 53, 56.

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the elements to be incorporated in States’ legislation and system of physical protection. It includes, like in the CPPNM, a table categorising nuclear material in order to determine the appropriate level of protection measures. In the same family of non-binding instruments relevant for nuclear security, the Code of Conduct on the Safety and Security of Radioactive Sources (supra, VI.B.5) is of particular importance. The Code recommends that States should make arrangements with a view to reduce the likelihood of malicious acts upon sources, including sabotage, and to assess the level of threat and their vulnerability to such acts. The Guidance supplementing the Code is also applicable for nuclear security purposes.

3. Illicit Trafficking The IAEA has defined illicit trafficking as “the receipt, possession, use, transfer or disposal of radioactive material without an authorization.”185 While the ICSANT is not very explicit in this respect, the CPPNM Amendment clearly covers nuclear smuggling.186 On the other hand, no other mandatory instruments apply specifically to illicit trafficking of nuclear material. However, the serious threat of such trafficking was felt in the wake of the dissolution of the USSR which led the Vienna Agency to issue technical standards in order to guide its Member States in preventing, detecting and responding to clandestine movements of nuclear material.187 The Code of Conduct on the Safety and Security of Radioactive Sources is again a relevant instrument. In addition, the IAEA provides International Nuclear Security Services missions to enable Member States to improve their security systems.188 Finally, it operates since

185 IAEA, Prevention of the inadvertent movement and illicit trafficking of radioactive materials (2002), TECDOC No. 131, para. 1.1.2. 186

Art. 5 (2) CPPNM Amendment.

187

IAEA, Report by the Director General to the General Conference: Measures Against Illicit Trafficking in Nuclear Materials and Other Radioactive Sources, 20 August 1996, GC(40)/15; IAEA, Measures against Illicit Trafficking in Nuclear Materials and other Radioactive Sources, GC(XXXVIII)/RES/15 (1994). See further Scott Spence, Legal Aspects of the Control and Repression of Illicit Trafficking of Nuclear and other Radioactive Materials – Is There a Need for an International Convention?, NLB 89 (2012), 67, 105. 188 See IAEA Security Report, GC(55)/21 (2011). Information regarding the International Nuclear Security Advisory Service is available at: http://www-ns.iaea.org/security/insserv.asp?l=26 (accessed on 18 March 2014).

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1993 an Incident and Trafficking Database which collects and makes available information in this domain.189

4. International Programmes and Initiatives Coordinated actions to strengthen nuclear security commenced in 1996 with a G8 Summit on Nuclear Safety and Security in Moscow, when a programme to prevent and repress illicit trafficking of nuclear material and radioactive substances was launched,190 followed in 1999 by the creation of an Inter-Agency Committee. In 2006, a UN Global Counter-Terrorism Strategy was adopted under a GA resolution.191 Apart from the IAEA, this action involved several intergovernmental organisations such as the UN Office of Drugs and Crime, Interpol and the World Customs Organization. A Global Initiative to combat nuclear terrorism was decided in 2006 by Russia and the USA, to which more than 50 countries are now participating.192 There is also a Proliferation Security Initiative193 announced by the USA in 2003 which is intended, through the application of Interdiction Principles,194 to stop shipments of goods susceptible to contribute to the making of weapons of mass destruction (WMDs). At the same time, the European Council has adopted the EU

189

See Greg Webb, Tracking Traffickers – The IAEA Incident and Trafficking Database, in IAEA Bulletin 54 (2) (2013); Bruno Demeyere, Sanctioning Illicit Trafficking in Nuclear Materials and other Radioactive Substances through Criminal Responsibility, in: INLA (note 166), 899, 964; IAEA, The International Legal Framework for Nuclear Security, IAEA International Law Series No 4 (2011). Information regarding the Incident and Trafficking Database is also available at: http://www-ns.iaea. org/security/itdb.asp (accessed on 18 March 2014). 190 See Moscow Nuclear Safety and Security Summit Declaration, 20 April 1996, available at: http://www.g8.utoronto.ca/summit/1996moscow/declaration.html (accessed on 18 March 2014); Programme for Preventing and Combatting Illicit Trafficking in Nuclear Material, 20 April 1996, available at: http://www.g8.utoronto.ca/summit/1996moscow/program.html (accessed on 12 December 2013). 191

UN Global Counter-Terrorism Strategy, GA Res. 60/288 of 8 September 2006.

192

Global Initiative to Combat Nuclear Terrorism, 15 July 2006; a fact sheet by the US State department is available at: http://www.state.gov/documents/organization/145499.pdf (accessed on 12 December 2013). 193

Proliferation Security Initiative, 31 May 2003; further information is available at: http://www. state.gov/t/isn/c10390.htm (accessed on 12 December 2013). 194

Proliferation Security Initiative: Statement of Interdiction Principles, 4 September 2003, available at: http://www.state.gov/t/isn/c27726.htm (accessed on 12 December 2013).

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European Security Strategy.195 Recently, there has been a Global Threat Reduction Initiative intended to reduce and to protect vulnerable nuclear and radiological materials located at civilian sites like research reactors worldwide.196 It sponsors in particular a programme to remove such materials and to transfer them to safe and secure locations. A common point of these actions is that they are based on voluntary commitments, not legally binding-instruments.

E. Non-Proliferation and Safeguards

From the very beginning, the dual nature of nuclear energy caused serious concern about the possibility of an uncontrolled increase in the number of countries willing to possess their own atomic weaponry. This undesirable prospect brought both the Soviet Union and the USA to support the negotiation of a global agreement197 within the UN Disarmament Committee in Geneva. The NPT was signed on 1 July 1968 and came into force on 5 March 1970. It has now some 189 parties, making it a quasi universal instrument.198 As already explained, each NNWS undertakes in accordance with the NPT to accept the application of safeguards on its territory through an agreement with the IAEA, with a view to prevent the diversion of their nuclear activities from peaceful uses to nuclear weapons or other nuclear explosive devices. Every five years, a conference of the Parties is held in New York to review the progress in the implementation of the Treaty.199 A major event was the agreement reached in 1995 for an unlimited extension of the NPT.200 Retrospectively, while the NPT may not have been entirely successful in its objective to eradicate nuclear weapons, yet more countries have abandoned their military ambitions compared to others which 195 EU, European Security Strategy, A Secure Europe in a Better World, 12 December 2003 (not published in the OJ), available at: http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf (accessed on 12 December 2013). 196 US National Nuclear Security Administration, Global Threat Reduction Initiative, further information available at: http://nnsa.energy.gov/aboutus/ourprograms/dnn/gtri (accessed on 12 December 2013). 197

OECD NEA (note 14). 15.

198

Prominent absentees are India, Israel and Pakistan. The Democratic People's Republic of Korea unilaterally withdrew in 2003 from the NPT. 199 200

Art. VIII (3) NPT.

Review and Extension Conference of the Parties to the NPT, 12 May 1995, Decision 3: Extension of the NPT, NPT/CONF.1995/32 (Part I), Annex.

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have pursued the development of such weapons. A major achievement of the Treaty has been to establish an internationally recognised norm of non-proliferation. The respect of this norm require however a strong system of international controls. An original feature of the NPT is the triangular system whereby the NNWS commit themselves to conclude with the IAEA an agreement to allow international verification of their obligations.201 Before the actual adoption of the Treaty, it had been the policy of the suppliers of nuclear materials and equipments to retain control over their use in the recipient country in order to obtain the assurance that they would not be diverted to military purposes (concept of ‘safeguards’).202 A first type of safeguards was therefore developed by the IAEA for this purpose and it is referred to as the INFCIRC/66/Rev.2 agreements.203 These agreements initially covered nuclear materials and reactors but they were subsequently extended to other categories of nuclear installations.204 A fundamental prerequisite for each safeguarded country is to create and operate a State System for Accounting and Control (SSAC) of nuclear materials, including the tracking of their imports and exports.205 After the adoption of the NPT, the IAEA established a new type of safeguards agreement published as INFCIRC/153(corr.).206 While the earlier INFCIRC/66/Rev.2 applied to specified items, the NPT-based agreements were intended to cover all source or fissionable material in all peaceful nuclear activities on the territory of the States Parties and, for that reason, are called Comprehensive Safeguards Agreements (CSA).207 Under the NPT and CSA, States have an international responsibility to enable the IAEA to

201

Art. III (4) NPT.

202

The concept of ‘safeguards’ is explicated in Art. III A (5) IAEA Statute.

203

IAEA, The Agency's Safeguards System, 16 September 1968, INFCIRC/66/Rev.2, available at: http://www.iaea.org/Publications/Documents/Infcircs/Others/inf66r2.shtml (accessed on 12 December 2013). 204

Ibid.

205

This is specifically requested under IAEA, The Structure and Content of Agreements between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapon, Part II, June 1972, paras. 27 et seq., INFCIRC/153(corr.)(INFCIRC/153(corr.)), available at: http:// www.iaea.org/Publications/Documents/Infcircs/Others/infcirc153.pdf (accessed on 4 March 2014). 206 207

Ibid.

NPT Comprehensive Safeguards Agreements, status available at: http://www.iaea.org/ Publications/Factsheets/English/nptstatus_overview.html (accessed on 12 December 2013).

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perform site inspections and to operate appropriate verifications.208 Should there be doubts about a possible violation by a particular State of the terms of the safeguards agreement or should that State fail to provide the Agency with satisfactory explanations or take required countermeasures, the IAEA DG reports to the Board of Governors a case of non-compliance.209 If the Board arrives at the conclusion that a case is established and the IAEA is unable to fulfil its mandate to verify the absence of a nuclear material diversion, it may impose some forms of sanctions on the State concerned, such as the suspension of its assistance or membership rights.210 The Board may also make a report to the UN Security Council and General Assembly for appropriate action as has been the case for Iraq, Iran or the Democratic People's Republic of Korea.211 Still under the NPT, Nuclear Weapon States can decide to submit to safeguards all or part of their civil nuclear activities in the form of “voluntary offer agreements.”212 Within the EU, the Safeguards (or Security Control) system is laid down in Chapter VII of the Euratom Treaty which assigns to the European Commission the task to ensure that fissile material are not diverted from their intended and official use.213 The application of safeguards is governed by Euratom Regulation 1334/2000.214 Like the safeguards exercised by the IAEA, it takes the form of inspections and related nuclear material accountancy. Considering that both systems pursue essentially the same goals and are generally consistent, the relationship between them is organised since 1973 by a Cooperation Agreement (INFCIRC/193) called the ‘Verification Agreement.’215 208

Arts. 4–10 Model Protocol Additional to the Agreements between States and the IAEA for the Application of Safeguards, September 1997, INFCIRC/540(corr.)(INFCIRC/540), available at: http:// www.iaea.org/Publications/Documents/Infcircs/1997/infcirc540c.pdf (accessed on 4 March 2014). 209

INFCIRC/153(corr.) (note 205), para. 18.

210

Arts. XII and XIX IAEA Statute.

211

Pierre Goldschmidt, Exposing Nuclear Non-Compliance, Survival 51 (1) (2009), 143, 164. See also Ben Sanders, A Short History of Nuclear Non-Proliferation, NLB 62 (1988), 7, 25. 212

Since these voluntary offer agreements are ‘voluntary,’ they are not governed by either the NPT or IAEA safeguards rules. 213

Art. 77 Euratom Treaty.

214

Council Regulation (EC) No. 1334/2000 of 22 June 2000, OJ 2000 L 159, 1.

215

Agreement between Belgium, Denmark, the Federal Republic of Germany, Ireland, Italy, Luxembourg, the Netherlands, the European Atomic Energy Community and the Agency in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons, 14 September 1973, INFCIRC/ 193. Also see Roland Kobia, The EU and Non-Proliferation: Need for a Quantum Leap?, NLB 81 (2008), 31, 53.

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With the discovery in 1991 of Iraq’s secret nuclear weapon programme came the realisation of the limits of a regime based on declarations by States as regards the extent and nature of their nuclear activities.216 The IAEA was asked to make proposals in order to strengthen its safeguards and, in 1997, the Board of Governors approved a new legal instrument, still to be applied for NPT purposes, called the Model Protocol Additional to the Agreements between States and the IAEA.217 Under the Protocol (to CSA agreements), a State must declare all aspects of its nuclear fuel cycle as well as any location where nuclear material is present, including those for non-nuclear use.218 The declaration must also cover nuclear-sensitive technologies.219 In addition, to reinforce its detection capacities, the Vienna Agency obtains extended access to declared sites or to others suspected to hold nuclear material, and can perform environmental samplings.220 Inspection arrangements are simplified.221 Finally, the Agency may have access to information from ‘other’ sources. By 2012, 179 States had concluded safeguards agreements with the IAEA and 114 had signed the Additional Protocols.222

F. Nuclear Trade Controls

There is a paradoxical side to the regulation of the trade of nuclear material and equipments. While the international exchange of other goods is encouraged by constant liberalisation efforts, nuclear trade has gradually been subject to an ever more restrictive regime because of the threat of proliferation of nuclear weapons and, more recently, of terrorism.223 Further, these conditions are consistent with the rigorous system of licensing and control applicable to nuclear activities generally. 216

IAEA, Non-Proliferation of Nuclear Weapons & Nuclear Security – IAEA Safeguards Agreements and Additional Protocols (2004). 217

INFCIRC/540.

218

Art. 2 INFCIRC/540.

219

Ibid.

220

Art. 6 INFCIRC/540.

221

Arts. 11 and 12 INFCIRC/540.

222

Laura Rockwood, The IAEA Safeguard System, in: OECD NEA, (ed.), (note 39) 243, 269.

223

See Patrick Reyners, The Contradictions in Nuclear Trade Law, OECD Observer No. 155 (1989),

15, 28.

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1. The Zangger Trigger List It is recalled that under the NPT, Parties undertake not to transfer source or special fissionable material or related equipments to NNWS unless subject to safeguards.224 It was felt necessary to further specify the material referred to in the Treaty and to devise procedures to be followed in this respect.225 After the adoption of the Treaty, a group of national experts chaired by Professor Zangger of Switzerland took up this task. The outcome of these informal discussions materialised in the form of a series of identical letters sent by several suppliers States to the IAEA Director General, and stating their intention to conform to the guidelines enclosed in the letters.226 They include Memorandum A, whereby IAEA safeguards are to apply to exports and re-exports to NNWS, and Memorandum B, which lists the material and equipments designed or prepared for the processing of special fissionable material and which export requires the application of safeguards (‘Trigger List’).227 The Zangger Trigger List has since been revised several times in order to include new material and equipments, using the same procedure of communication.228

2. The Nuclear Suppliers Guidelines In 1974, India carried out an atomic test, which it still called a ‘peaceful’ explosion by reference to Article V NPT.229 As the plutonium used in the bomb had been 224

Art. III (2) NPT.

225

See Quentin Michel, Critical Reflections on the NPT, NLB 80 (2007), 21, 28.

226

IAEA, Communication Received from Members Regarding the Export of Nuclear Material and of Certain Categories of Equipment and Other Material, 3 September 1974, INFCIRC/209 , available at: www.iaea.org/Publications/Documents/Infcircs/Others/inf209.shtml (accessed on 4 March 2014). This document details the ‘Trigger List’ and guidelines (‘Common Understandings’) for the export of nuclear materials to non-NPT countries. The most recent version of this IAEA document is the Communication received from the Permanent Mission of the United Kingdom Regarding the Export of Nuclear Material and of Certain Categories of Equipment and Other Material, 2 June 2009, INFCIRC/209/Rev.2/Corr.1, available at: http://www.zanggercommittee.org/Documents/infcirc 209r2c1.pdfl (accessed on 8 March 2014). 227

Ibid.

228

Ibid.

229

See George Perkovich, India’s Nuclear Bomb: The Impact on Global Proliferation (1999).

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obtained from a research reactor delivered by Canada, it raised questions about the effectiveness of policies to control nuclear proliferation. Another problem was that some nuclear suppliers, like France, were not at the time party to the NPT. This explains why in 1975 the main manufacturers of nuclear equipments, through a USA initiative including seven supplier States, met in London230 in order to define common export rules, outside the NPT framework but taking into account the existing Zangger Trigger List. A consensus was reached in 1977 within the Nuclear Suppliers Group (NSG) on a set of Guidelines which were circulated using the same procedure of identical letters to the IAEA DG.231 In both cases it does not do so through a formal agreement but via voluntary commitments. The NSG’s Guidelines incorporates a trigger list system but different from Zangger’s, they are meant to apply to exports and re-transfers to any NNWS regardless of NPT membership.232 They also insist on the transfer of technologies that are particularly sensitive from a proliferation angle, such as enrichment and reprocessing.233 Another significant departure is that they cover the export of ‘dual-use items,’ namely potentially usable for both civil and military purposes.234 The Guidelines also contain Non-Proliferation Principles concerning the conditions of transfers.235 In 2004, a ‘catch-all’ clause was added which provides that exporters must request an authorisation for the transfer of items not covered by a control regime and susceptible to be used in a programme related to WMDs. It 230

See Nuclear Suppliers Group, available via: www.nuclearsuppliersgroup.org (accessed on 4 March

2014). 231

IAEA, Communication Received from Certain Member States Regarding Guidelines for the Export of Nuclear Material, Equipment or Technology, February 1978, INFCIRC/254. 232

A recent development is that at the initiative of the USA, but subsequently seconded by countries like France, interested to increase their commercial cooperation with India, the latter undertook to identify officially its civilian nuclear facilities and therefore to separate them from military ones. This paved the way for submitting Indian civil activities to IAEA safeguards via an agreement concluded in 2009: see IAEA, Communication dated 10 September 2008 received from the Permanent Mission of Germany to the Agency regarding a “Statement on Civil Nuclear Cooperation with India,” INFCIRC/ 734 (corr.) available at: http://www.iaea.org/Publications/Documents/Infcircs/2008/infcirc734c.pdf (accessed on 4 March 2014). In the same year, India signed (but did not ratify) the Additional Protocol. Accordingly, the NSG members were invited to introduce an exception to the benefit of India in the application of their Guidelines. See further Jay Kramer/Frank Aum, The US-India Nuclear Agreement: Progress toward Nuclear Cooperation with India and a new Paradigm to Non-Proliferation Policy, International Journal of Nuclear Law 1 (4) (2007), 418, 439. 233

See INFCIRC/254 (note 231).

234

Ibid.

235

Ibid.

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constituted a response to the SC Resolution 1540 and was decided in the context of international anti-proliferation initiatives236 to which it has already been made reference.237 The severe conditions for nuclear exports imposed by the NSG were felt by many NNWS as unfair, contradicting the right guaranteed by the NPT “to develop research, production and use of nuclear energy for peaceful purposes,”238 in exchange of their renunciation to nuclear weapons. To try to allay their frustration, the NSG members issued in 1997 a paper – still in the form of a communication to the IAEA DG – where they explain and try to make more transparent nuclear export policies.239

G. Nuclear Third Party Liability

In the 1950s, while nuclear energy opened the prospect of a vast source of electricity generation, the fear of onerous financial liability in the event of an accident seemed however susceptible to discourage potential investors.240 There was also the possibility that suppliers of nuclear operators would hesitate in accepting contracts for the same reason. Indeed, under ordinary tort law, they would be exposed to unlimited liability for nuclear damage. Further, though the nature and extent of the risks inherent with nuclear activities were still imperfectly known, governments were conscious of their responsibility towards their citizens and of the necessity to ensure that they would be properly guaranteed against the consequences of an accident.241 These conflicting interests, to open the benefits that would result from the development of nuclear power while avoiding potentially ruinous claims, and the need to protect the population, all had to be reconciled. Governments, together with the nuclear industry and insurers, sought therefore a solution that would combine both

236

Ibid.

237

See supra, VI.D.4

238

Art. IV NPT.

239

IAEA, Communication Received from the Permanent Mission of Australia on Behalf of the Member States of the Nuclear Suppliers Group, 16 September 1997, INFCIRC/539, as subsequently modified by IAEA, Communication, 29 November 2000, INFCIRC/539/Rev.1 (corr.), Also see Quentin Michel, The Control of International Nuclear Trade, in: OECD NEA (ed.), (note 39) 271, 306. 240 In general, see OECD NEA, Liability and Compensation for Nuclear Damage: An International Overview (1994). 241

Ibid.

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objectives.242 To this effect and also to encourage the harmonisation of national legislation, required in particular for international transports of nuclear material, several conventions have been established. The following review will describe briefly the development of the international nuclear liability regime before discussing its revision after the Chernobyl accident.

1. The Paris Convention Although the USA was the first country to enact, in 1957, a special law on liability for nuclear damage (the Price-Anderson Act),243 it was the Organisation for European Economic Co-operation which initiated the negotiations which led to the adoption on 29 July 1960 of the Paris Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention).244 The convention was subsequently revised in 1964, 1982 and last in 2004 but the 2004 Protocol is not yet applicable.245 The convention came into force on 1 April 1968 and has fifteen parties, all from Western Europe, which gives it a de facto regional character. Below is a reminder of the main principles upon which the convention is based.

a) Strict Liability From the outset, it was clear that the operation of nuclear facilities and transports were the type of activity to which the notion of strict liability should be applied. Strict or objective liability relieves the victim of the burden of proving fault or negligence on the part of the tort-feasor and allows the payment of compensation on the mere proof 242

Ibid.

243

Price-Anderson Nuclear Industries Indemnity Act (1957), 42 USC § 2210.

244

Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1960, as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982, UNTS 956, 251 (Paris Convention), consolidated version available at: http://www.oecd-nea.org/law/nlparis_ conv.html (accessed on 11 December 2013). 245

Protocol to amend the Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982, 12 February 2004 (Amended Paris Convention) (not yet in force), available at: http://www.oecd-nea.org/law/paris_convention.pdf (accessed on 10 December 2013).

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of a causal link between an incident (to use the conventions terminology) and the resulting damage.246 The one case of exoneration of the nuclear operator’s liability247 concerns nuclear damage caused by war or other hostilities.

b) Exclusive Liability Contrary to ordinary civil law, the (government-designated) nuclear operator is held solely liable for nuclear damage, regardless of whose acts or omissions may be the actual cause of the incident.248 In addition to sparing suppliers or other contractors the trouble and expense of defending complex liability suits, a justification for ‘channelling’ all liability on the nuclear operator was the rationalisation of the insurance cover,249 a major concern for the nascent nuclear industry. From the victims’ angle, a significant advantage is the simplification of claims settlement.

c) Scope of Application The special regime applies to reactors and other large nuclear installations and to the transport of nuclear substances,250 namely the operations which are deemed to cause serious incidents. Not included therefore are activities of the front-end of the nuclear fuel cycle like mining and milling of uranium, or radioactive sources used outside nuclear installations.

d) Nuclear Damage The damage to be indemnified is simply defined as damage to or loss of life of any person, and damage to or loss of any property – with the exclusion of damage to the 246

Art. 3 Paris Convention.

247

Art. 9 Paris Convention.

248

Art. 6 Paris Convention.

249

OECD, Paris Convention Exposé des Motifs, as approved by the OECD Council on 16 November 1982, revised edition (1989), available at: http://www.oecd-nea.org/law/nlparis_motif.html (accessed on 4 March 2014). 250

Arts. 3 and 4 Paris Convention.

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installation concerned and to any property on the same site used in connection with the licensed operations – resulting from a nuclear incident.251

e) Limitation of Liability in Amount In civil law, there is in principle no limit in respect of the compensation a victim may claim. The authors of the Paris Convention arrived at the conclusion that the possibility that the nuclear industry be exposed to large-scale damage after a grave incident – which at the time the insurance market was not capable to cover – justified to put a cap on the liability of the nuclear operator252 (see infra for current amounts).

f) Limitation of Liability in Time Constituting derogation from civil law and the usual period of prescription of 30 years, actions must be brought before the courts within 10 years of the date of the nuclear incident.253 This highlights a particular difficulty or paradox, knowing that exposure to ionizing radiation may cause diseases such as solid cancers long after the time of irradiation.254 The principal explanation for this shorter limit was that insurers felt for technical and economic reasons unable to maintain the cover for a longer period.255

g) Mandatory Financial Cover In order to ensure that funds would effectively be available to indemnify victims, the provision by the nuclear operator of an insurance or other approved form of financial security is compulsory,256 in principle up to the amount of its maximum liability as specified in the applicable legislation. 251

Art. 3 Paris Convention.

252

Art. 7 Paris Convention; as exemplified in the Exposé des Motifs (note 249), para. 43.

253

Art. 8 Paris Convention; as exemplified in the Exposé des Motifs (note 249), para. 47.

254

See Berthold Moser, Proof of Damage from Ionizing Radiation, NLB 38 (1986), 70, 93.

255

This reflects a constant position of nuclear insurers. See Geoffrey C. Warren, Vienna Convention Revision: A Review of the Exercise and the Insurance Implications in the Provisions under Discussion, NLB 55 (1995), 9, 17. 256

Art. 7 Paris Convention.

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h) Jurisdiction Another departure from ordinary law which generally leaves to the claimant several options concerning the choice of jurisdicion for bringing their actions, it was found preferable to concentrate on a single jurisdiction.257 One reason was to rationalise the legal proceedings.258 Also, in the case of an incident causing damage beyond national borders, this better ensures the recognition and execution of judgments. The basic rule is that it is a court of the country where the incident occurs which has jurisdiction.259 While in the case of an incident in a land-based installation, the tribunals of the ‘installation State’ are therefore competent, in that of international transports the rule for assigning jurisdiction is inevitably more complex but the principle of a single competent court remains. The applicable law is that of the court where the claims are lodged.260

i) Intervention by the State The intervention by the State is manifold in the domain of nuclear liability. In particular, it has an important role to play in designating the liable operator, in setting the conditions of its financial security and in controlling it.261 In a number of countries,262 the domestic law gives the public authorities extensive responsibilities in organising the indemnification of victims. In addition, the State may substitute itself to the provider of financial security if the latter were to fail and, finally, public funds may be called to provide additional means of compensation to cover damage in excess of the operator’s security, pursuant to specific international conventions.263 257

Art. 13 Paris Convention; as exemplified in the Exposé des Motifs (note 249), para. 54.

258

Ibid.

259

Art. 13 Paris Convention.

260

Art. 14 Paris Convention.

261

Art. 10 Paris Convention.

262

See for example those of Belgium, Finland, France, and Germany, more information at OECD NEA, Nuclear Legislation in OECD and NEA Countries, Regulatory and Institutional Framework for Nuclear Activities, available via: https://www.oecd-nea.org/law/legislation/ (accessed on 4 March 2014). 263

Article VII Vienna Convention on Civil Liability for Nuclear Damage, 21 May 1963, UNTS 1063, 265 (1963 Vienna Convention).

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2. The Brussels Supplementary Convention264 At the time the Paris Convention was adopted, its Signatories realised that the financial cover of the liable operator as determined under the convention might not be sufficient to compensate fully the damage resulting from a nuclear incident.265 Given the then very limited capacity of the insurance market, the solution was to superpose to the convention an instrument allowing public funds to be mobilised. A Convention Supplementary to the Paris Convention was adopted on 31 January 1963266 and as the Paris Convention, it was later amended in 1964, 1982 and 2004 (the 2004 Protocol is not yet applicable).267 The Brussels Supplementary Convention came into force on 4 December 1974 and, out of the Paris Convention States, twelve are parties to the convention. It establishes a three-tiered system. At the bottom, compensation is paid by the financial cover of the operator up to the amount fixed by national law.268 Then a second layer of compensation is paid out of funds provided by the State in which the nuclear installation of the operator is situated.269 The top layer is jointly contributed by the parties to the convention according to a formula derived from their gross national product and the thermal power of the reactors located in each State (50 % each).270 In total, the amount today available is 300 million271 Special Drawing Rights (SDRs).272

264

Convention Supplementary to the Paris Convention of 29th July 1960, 31 January 1963, as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982, UNTS 1041, 358, consolidated version (Brussels Supplementary Convention), available at: http:// www.oecd-nea.org/law/nlbrussels.html (accessed on 11 December 2013). 265

This is reflected in the Preamble Brussels Supplementary Convention.

266

Brussels Supplementary Convention (note 264).

267

Protocol to Amend the Brussels Supplementary Convention on Nuclear Third Party Liability, 12 February 2004 (Amended Brussels Supplementary Convention), available at: http://www.oecd-nea. org/law/brussels_supplementary_convention.pdf (accessed on 11 December 2013). 268

Art. 3 Brussels Supplementary Convention.

269

Ibid.

270

Art. 12 Brussels Supplementary Convention.

271

Art. 3 Brussels Supplementary Convention.

272

For more on Special Drawing Rights, see the IMF’s Factsheets on the subject at: http://www.imf. org/external/np/exr/facts/sdr.htm (accessed on 10 January 2014).

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3. The Vienna Convention Shortly after the adoption of the Paris Convention, negotiations started within the IAEA on a global instrument. The Vienna Convention on Civil Liability for Nuclear Damage273 was open to signature on 21 May 1963 and it entered into force on 12 November 1977. There are 38 parties to the convention. Though there are some differences, its provisions are quite similar to those of the Paris Convention as indicated above and reflect therefore the general principles of strict and exclusive liability, limitation, mandatory cover, unity of jurisdiction. On the other hand, the Vienna Convention does not have an additional compensation mechanism of the type of the Brussels Convention.

4. The Joint Protocol From a legal standpoint, an obstacle to the universality of the special nuclear liability regime, apart from being based on two different instruments, was that the Paris and Vienna Conventions operated in isolation of each other. This problem was highlighted by the Chernobyl accident which occurred in a country which was at the time a nonconvention country. It was then thought that creating a link between the Paris and Vienna Conventions would encourage new countries, particularly in Central and Eastern Europe, to adhere to the latter convention.274 The OECD NEA and the IAEA combined their efforts and a new instrument, called the Joint Protocol relating to the Application of the Paris Convention and the Vienna Convention275 was adopted on 21 September 1988. It entered into force on 27 April 1992 and has now 27 parties from either convention. The Joint Protocol fulfils two functions. By eliminating the discriminatory status of non-contracting State as concerns the relations between Paris and Vienna, it permits potential victims in a State Party to one convention to be entitled to compensation for an incident in a Party to the other.276 Secondly, in 273

1963 Vienna Convention (note 263).

274

Otto von Busekist, A Bridge between the Two Conventions on Civil Liability for Nuclear Damage, NLB 43 (1989), 10, 35. 275

OECD NEA/IAEA Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention, 21 September 1988, INFCIRC/402, (Joint Protocol), available at: http://www. iaea.org/Publications/Documents/Infcircs/Others/inf402.shtml (accessed on 11 December 2013). 276

Arts. II and IV Joint Protocol.

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addition to creating this system of mutual benefits, the Joint Protocol can also serve to avoid conflicts of law by ensuring that a single convention is made applicable to any one incident.277 The Joint Protocol was however only a limited remedy to a wider problem, the growing obsolescence of the regime of nuclear liability.278

5. Modernisation of the Nuclear Liability Regime Since its establishment in the early 1960s, the international framework of nuclear liability only evolved a little and, particularly, the level of compensation available on the basis of the conventions and most domestic implementing legislation had become rather inadequate.279 In the aftermath of the Chernobyl catastrophe, it was widely acknowledged that an in-depth revision of the regime was indispensable. Having regard to its universal vocation, work started first on the Vienna Convention and on another instrument whereby additional funds could be drawn in the event of an incident causing damage in excess of the operator’s liability. The Protocol to amend the Vienna Convention280 was open to signature on 12 September 1997 and it entered into force on 4 October 1994. At present, there are ten parties to the Protocol which constitutes (to the difference of the Paris amending Protocols) a stand-alone treaty vis-à-vis the ‘old’ Vienna Convention. On the same day, the Convention on Supplementary Compensation for Nuclear Damage (CSC)281 was adopted which is not yet applicable (see infra, VI.B.6.). European countries had actively contributed to these negotiations and, in turn, the Paris and Brussels Conventions were amended by Protocols signed on 12 February 2004 (not yet in force).282 The main changes brought to the liability regime by these instruments are summarised hereafter. 277

Art. III Joint Protocol.

278

See Vanda Lamm, The Protocol Amending the 1963 Vienna Convention, NLB 61 (1998), 7, 24.

279

Ibid., 15

280

Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, 2 September 1997, UNTS 2241, 270 (Protocol to Vienna Convention). See also the Vienna Convention on Civil Liability for Nuclear Damage and the Convention on Supplementary Compensation for Nuclear Damage, 22 July 1998, INFCIRC/567 (CSC), available at: http://www.iaea.org/Publications/ Documents/Infcircs/1998/infcirc567.pdf (accessed on 11 December 2013). 281 282

CSC (note 280).

Julia Schwartz, International Nuclear Third Party Liability: The Response to Chernobyl, in: OECD NEA, International Nuclear Law in the Post-Chernobyl Period (2006), 37, 72.

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a) Geographical Scope During the negotiations, advocates of a broad opening of the cover afforded by the conventions confronted those in favour of the traditional territorial restriction. Eventually, it was agreed to widen the protection of the special regime to all victims wherever they are, though it remains possible for a party to apply the condition of reciprocity to ‘nuclear’ States.283 Another change is the extension of the jurisdiction of coastal States over actions for damage caused by an incident in their exclusive economic zone.

b) Nuclear Damage Drawing on recent conventions on environmental protection, a more detailed definition of nuclear damage is introduced.284 In addition to personal injuries and loss of property, nuclear damage extends, subject to what may be provided by the law of the competent court, to the pure economic loss and to the cost of reinstatement of impaired environment and of preventive measures.

c) Units of Account The old gold-based unit for the Vienna Convention had been a source of confusion. The new unit adopted for the Vienna Amending Protocol and the CSC is the IMF SDR.285 For the revised Paris and Brussels Conventions, the new unit is the Euro.286

d) Financial Limits As concerns the Protocol to amend the Vienna Convention, the minimum limit of liability of the nuclear operator is set at 300 million SDRs, though the installation 283

Art. 1 Protocol to Vienna Convention; Art. 2 Amended Paris Convention.

284

Art. I (1)(k) Protocol to Vienna Convention; Art. 1 (a) Amended Paris Convention.

285

Art. I (1)(p) Protocol to Vienna Convention. For more on Special Drawing Rights, see the IMF’s factsheet (note 272). 286

Art. 7 Amended Paris Convention; Art. 3 Amended Brussels Supplementary Convention.

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State may bear the burden for a fraction of that amount.287 In respect of the revised Paris and Brussels system, the newly established minimum liability amount for the nuclear operator (and accordingly that of its financial cover) is elevated to 700 million Euros.288 The tier of compensation to be borne by the installation State will be the difference between the amount of liability of the operator liable as determined by the applicable law (i.e. no less than 700) and 1.2 billion Euros.289 The third tier of compensation to be provided collectively by all the Brussels parties will be an additional 300 million Euros, reaching therefore a total of 1.5 billion Euros for a nuclear incident.290 The formula for calculating the contributions to the third tier is slightly changed from 50/50 % to 35 % on GNP and 65 % on installed nuclear capacity.291

e) Time Limits The limitation of claims ten years after the incident had long been criticised and, overcoming the objections of insurers, that period is extended to thirty years in respect of personal injuries. The ten year period for other damage is maintained.292

6. The Convention on Supplementary Compensation Convention for Nuclear Damage293 The CSC Convention is discussed separately because, besides not yet applicable, it stands apart in the family of liability conventions as it is not only open to the participation by parties to both the Paris and Vienna Convention but, also, to other States provided their domestic legislation conforms with the principles of nuclear liability as specified in an Annex to that convention (‘Annex States’). Like the Brussels Conven287

Art. V Protocol to Vienna Convention.

288

Art. 7 Amended Paris Convention; Art. 3 Amended Brussels Supplementary Convention.

289

Art. 3 Amended Brussels Supplementary Convention.

290

Ibid.

291

Art. 12 Amended Brussels Supplementary Convention.

292

Norbert Pelzer, Main Features of the Revised International Regime Governing Nuclear Liability – Progress and Standstill, in: OECD NEA (ed.), (note 39) 355, 386. 293

See CSC (note 280).

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tion, but using a different mode of contributions, the CSC is intended to supplement the compensation available from the nuclear operator’s financial security.294 These additional funds are to be provided on top of at least an amount of 300 million SDRs that is in principle the minimum level of liability under the revised Vienna Convention.295 The contribution of each party is calculated on the basis of its installed nuclear capacity and for a small fraction – 10 % – by reference to the United Nations rate of assessment corresponding to that party.296 There is also a cap with a view to limit the share to be borne by States with a large nuclear programme.297 Different again from Brussels, is how such additional funds can be allocated: 50 % are reserved for the indemnification of transboundary damage and the other 50 % are to cover damage suffered in or outside the territory of the installation State.298 In sum, the CSC, a complex and free-standing instrument, has vocation to attract beyond the Paris and Vienna circle new countries whose legislation would be consistent with the criteria of the Annex. In that respect, the USA which aspires, through the CSC, at establishing treaty relations in this field with other States, benefit already from a ‘grandfather clause’ set in the Annex.299 Different from the Paris and Brussels mechanisms, the CSC’s is cumulative, namely based on the level of commitments of contributions as more countries adhere to the convention. Therefore, no total amount of funds susceptible to become available under that convention can be indicated.300

VII. Perspectives After several of progressive development, the international framework of nuclear law appears as both comprehensive and mature in its various sectors.301 Considering 294

Art. II CSC.

295

Art. III (1)(a)(i) CSC.

296

Art. IV CSC.

297

Ibid.

298

Annex, Art. 2 CSC.

299

Ibid.

300

Ben McRae, The Role of the Convention on Supplementary Compensation for Nuclear Damage in Expanding the Use of Nuclear Power, in: INLA (note 166), 409, 422. 301

Sema Kus, International Nuclear Law in the 25 Years between Chernobyl and Fukushima and Beyond, NLB 87 (2011), 7, 26.

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first that of nuclear safety, one question raised by Pelzer in a recent article302 is in substance whether the trend towards internationalisation is in itself conducive to a safer operation of nuclear installations at national level. One has of course in mind the root causes of the Chernobyl catastrophe or the circumstances of Fukushima qualified as a ‘man-made disaster’ by the Japanese authorities themselves. The reaction on the side of the IAEA was in fact quite prompt in the form of an Action Plan on Nuclear Safety.303 Its adoption has so far been accompanied by strong national measures of technical and organisational nature but has not resulted in a concrete initiative to revise the NSC, as contemplated in the Plan inter alia, or other safetyrelated conventions. One reason, besides the inherent difficulties of such task, may be that the real problem evidenced by the accident is both complex and politically sensitive.304 Indeed, an implicit question from the Action Plan is why and how a country like Japan, a pillar of the world nuclear establishment, had failed to maintain an effectively competent and independent nuclear regulator and had also apparently disregarded recommendations coming from international safety audit missions.305 Moving to the sector of non-proliferation and safeguards, the sustainability of the NPT asymmetric edifice depends on two main conditions. One is the test of credibility, namely the ability of the IAEA’s safeguards system, enhanced now by the Additional Protocol, to uncover clandestine nuclear weapons activities and to dissuade countries to engage on this path. The other is the test of legitimacy: can NNWS, particularly emerging nuclear countries, have full confidence in their ability to access to nuclear technology and equipments without undue discriminations on the part of nuclear suppliers – a question at the core of the Iran dispute – and will the NWS live up to their NPT promise to proceed to a genuine disarmament? 302 Norbert Pelzer, Safer Nuclear Energy Trough a Higher Degree of Internationalisation? International Involvement versus National Sovereignty, NLB 91 (2013), 43, 88. 303 Following an Ministerial Conference on Nuclear Safety convened in June 2011 in order to consider the lessons to be drawn from the accident, the IAEA submitted at the following General Conference a Draft Action Plan relating principally to nuclear safety and national regulatory bodies, to emergency preparedness and response to accident situations and to radiation protection of people and the environment, see IAEA, Draft Action Plan on Nuclear Safety, Report by the Director General, 5 September 2011, GOV/2011/59-GC(55)/14. The Action Plan is now integrated in the agency’s general programme. See Johnson (note 96), 21. 304

Patrick Reyners, A New World Governance for Nuclear Safety after Fukushima, International Journal of Nuclear Law 4 (2013), 63, 72 et seq. 305

Ibid., 77.

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In the field of nuclear liability, the main weakness of the special legal regime, after the modernisation exercise, lies in its fragmentation, meaning the multiplication of international instruments. Another drawback is the low level of adherence to most of them as indicated earlier.306 Still now, several major nuclear players,307 notably in Asia, stay outside the existing conventions. If the prospect of a real global system seems out of reach in a foreseeable future, progress can perhaps be achieved on the regional level. Work has started recently within the European Commission on the possibility to bring some improvements on the compensation of nuclear damage and the elimination of differences of treatment between potential victims in the area of the European Union where co-exist Paris and Vienna parties.308 In conclusion one of the most original features of nuclear law is the essential role played by international actors, as evidenced again after the Fukushima accident. This involved not only governments and the traditional intergovernmental organisations but also nuclear regulators associations, industry groups, NGOs and other stakeholders. It is their combined efforts which are behind the evolution of nuclear law today and which may, in the longer term, succeed in rebuilding the trust of the public.

306 Patrick Reyners, Liability Problems Associated with the Current Patchwork Liability Regime, in: Norbert Pelzer (ed.), Europäisches Atomhaftungsrecht im Umbruch (2010), 93, 104. 307 308

They include countries such as Canada, China, Japan and South Korea.

Norbert Pelzer, The 2007 EU-Initiative on Nuclear Liability – A Chance for Enhancing the Nuclear Liability in Europe, in: Marc Beyens/Denis Philippe/Patrick Reyners (eds.), Prospects of a Civil Nuclear Liability Regime in the Framework of the EU (2002), 91, 108.

International Law on Renewable Energy: The Need For a Worldwide Treaty PETER KAYODE ONIEMOLA(

ABSTRACT: The international importance attached to renewable energy is increasing. The roles of renewable energy in climate change mitigation, energy security and economic development are being recognised by States and the international community. Principles of international environmental law as well as binding and nonbinding international law instruments have recognised the importance of renewable energy. The current international legal framework on renewable energy is weak and uncertain. Some international instruments may promote or constitute barriers to the development of renewable energy. It is therefore becoming inevitable to have a treaty on renewable energy. This article examines the emerging international trend on renewable energy redeployment and development and the unique role played by international law in relation to renewable energy. It identifies the virtues and shortcomings of the current international framework relevant to renewable energy. The article posits that the development of renewable energy can be achieved internationally through the creation of an international treaty which operates in a synergic way between the established principles of international environmental law and nonbinding and binding international law instruments relevant to renewable energy. It therefore makes a case for the emergence of an affirmative treaty process for renewable energy. KEYWORDS: Renewable Energy, Climate Change, Energy Security, Soft Law, Treaties, International Environmental Law, International Trade Law

I. Introduction There is a current global trend towards a shift to renewable energy sources.1 Renewable energy is important in meeting climate change mitigation, energy security and economic development objectives of countries. It is recognised that climate ( Barrister and Solicitor of the Supreme Court of Nigeria and PhD candidate at the School of Law, University of Aberdeen, United Kingdom. 1

Martha M. Roggenkamp et al., Energy Networks and the Law: Innovative Solutions and Changing Markets, in: id. (eds.), Energy Networks and the Law: Innovative Solutions and Changing Markets (2012) 1, 8.

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change is a serious environmental concern which must be addressed internationally. Climate change has been attributed to anthropogenic emission of greenhouse gases in the atmosphere, resulting in global warming. The use of renewable energy on the other hand emits little or no greenhouse gases into the atmosphere. It can curtail the trend of climate change.2 Another imperative is energy security. The problem of energy security can be addressed through the utilisation of renewable energy sources. This will result in the supply of renewable energy and diversification of the energy supply to meet energy needs.3 Renewable energy can contribute to economic development as it provides an avenue for the use of renewables to meet the production of social services, employment generation and national and international investments.4 It is gradually finding its way into the global international policy agenda, mainly on the recognition of its global benefits and low utilisation.5 The impelling considerations for renewable energy indicate that international law will have to play an important role in its promotion. Measures can be facilitated at both national and international levels. National measures can be developed through policy and statutory means. International law is relevant to the development and promotion of renewable energy. Principles of international environmental law and binding and non-binding international law instruments relevant to renewable energy can constitute the basis for countries to initiate national measures to promote investments through the use of support schemes. The role of non-State actors in the energy sector has also been on the increase.6 International institutions are presently rising to the task of the promotion of investments in renewable energy and there has been a proliferation of these institutions recently. Therefore, creating legislation for sustain2 Intergovernmental Panel on Climate Change (IPCC), Climate Change 2007: Synthesis Report: An Assessment of the Intergovernmental Panel on Climate Change, available at: http://www.ipcc.ch/ pdf/assessment-report/ar4/syr/ar4_syr.pdf (accessed on 31 October 2013). 3

William. Moomaw et al., Introduction, in: Ottmar Edenhofer et al. (eds.), IPCC Special Report on Renewable Energy Sources and Climate Change Mitigation (2011), 161, 167, 191. 4 See generally International Energy Agency (IEA), Renewable Energy Services for Developing Countries – In Support of the Millennium Development Goals: Recommended Practice and Key Lessons (2008). 5

Paul H. Suding/Philippe Lempp, The Multifaceted Institutional Landscape and Processes of International Renewable Energy Policy, International Association for Energy Economics Energy Forum 2 (2007), 4, 4. 6

Neil Gunningham, Confronting the Challenge of Energy Governance, Transnational Environmental Law 1 (2012), 119, 134–135.

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able energy can be influenced by the international legal order.7 This will require affirmative law making to stimulate the growth.8 This article argues that much needs to be done to develop the international regime on the promotion of renewable energy. It discusses the shortcomings in the current international framework relevant to renewable energy. The article posits that the principles of international law enshrined in non-binding and binding international law instruments are instructive on the need for countries to promote renewable energy. Although non-binding instruments do not create legal obligations, they do set out the need for States to promote their renewable energy and could be relied upon as justification for the promotion of renewable energy by governments. The treaties relevant to renewable energy support will be discussed. These treaties create obligations on States to initiate measures to promote the deployment of renewable energy. They set the basis for international cooperation on the promotion of and investment in renewable energy. The article shows that there has been considerable international attention on the important role of renewable energy. However, the international legal framework for renewable energy is still emerging and relatively weak. There is therefore a need for a worldwide treaty to address the challenges of promoting renewable energy. A treaty enhancing synergy of international law principles and instruments in such a way that they work in unison to promote renewable energy rather than create barriers to renewable energy is needful.

II. International Legal Framework Relevant to the Promotion of Renewable Energy Energy matters were addressed mainly in domestic laws until in the 1970s when energy issues came to the fore of public international law.9 The increase in trade in energy as well as environmental concerns have made energy an important issue in 7 Altide Canton-Fourrat/Monesty Junior Fanfil, Sources of Energy Law in Africa and International Law, International Business Law Journal 4 (2010), 365, 373. 8

Uma Outka, Environmental Law and Fossil Fuels: Barriers to Renewable Energy, Vanderbilt Law Review 65 (2012), 1679, 1682. 9

Adrian J. Bradbrook, The Development of Renewable Energy Technology and Energy Efficiency Measures through Public International Law, in: Donald N. Zillman et al. (eds.), Beyond the Carbon Economy: Energy Law in Transition (2008), 109, 112.

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international environmental law.10 The attempt to create a market for renewable energy started in the 1970s. The oil price shocks of that time made the world reconsider the role renewable energy has to play in energy supply security.11 Thereafter, the awareness created by climate change in the 1990s and the current climate change regime have continued to draw attention to the need to invest in renewable energy. More so, it is only recently that the long-term effects and costs of conventional fuels are being felt in relation to resource exploitation and climate change.12 The sources of international law relating to energy give support to the promotion of renewable energy. The principles of international environmental law enshrined in binding and non-binding international law instruments relevant to renewable energy are examined below.

A. Principles of International Environmental Law

The support for renewable energy has received credence from principles of international environmental law. Some of these principles are gradually finding a place in customary international law.13 They are also contained in some binding and nonbinding international instruments. With the application of certain international law principles to environmental law, they may be invoked as a justification or basis for the promotion of renewable energy. Notable among these principles are: the principle of sustainable development, the duty to prevent and control environmental harm, and the precautionary principle, which can be relied upon as a basis of the promotion of renewable energy for climate change mitigation.

10

Ibid., 113.

11

Adrian J. Bradbrook/Alexandra S. Wawryk, Government Initiatives Promoting Renewable Energy for Electricity Generation in Australia, University of New South Wales Law Journal 25 (2002), 124, 124. 12

Volker Oschmann, Renewable Energy Sources in European Law: An Overview, The Journal for European Environmental and Planning Law 6 (2006), 478, 479. 13 Art. 38 (b) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355, provides that where there is a uniform and constant usage of practice recognised by countries, such practice assumes the status of a rule of international law. The practice becomes customary international law. Customs create obligations except for those States that object to it. See Philippe Sands, Principles of International Environmental Law, vol. 1: Framework Standards and Implementation (1995), 118–122.

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1. The Principle of Sustainable Development The promotion of renewable energy also finds relevance in the principle of sustainable development and intergenerational equity.14 Even in the absence of explicit treaty provisions, the International Court of Justice (ICJ) in its decision on the Gabčíkovo-Nagymaros Project15 has given credence to the need to prioritise environmental protection and the concept of sustainable development by stating that: Owing to new scientific insights and to a growing awareness of the risks for mankind […] new norms and standards have been developed […]. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.16

Renewable energy therefore offers a win-win approach, resulting in less impact on the environment when compared to other energy sources. This will result in States exploiting the resources of the environment in such a way that the interests of future generations are not jeopardised by exhausting the finite fossil fuel resources.17

2. The Precautionary Principle Taking precautionary measures to check the impact of climate change may serve as a basis for the promotion of renewable energy.18 The principle is based on the premise that prevention of harm before its occurrence through decision making could serve as

14 For a review of the concept of sustainable development, see World Commission on Environment and Development (WCED), Our Common Future (1987); particularly, sustainable development was defined as development that “meets the needs of the present without compromising the ability of future generations to meet their own needs,” ibid., 8. 15 ICJ, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Merits, Judgment of 25 September 1997, ICJ Reports 1997, 7. 16

Ibid., 78, para. 140.

17

WCED (note 14), 45–46.

18

See Cass Robert Sunstein, Beyond the Precautionary Principle, University of Pennsylvania Law Review 151 (2003), 1003, 1003.

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a means of protecting the environment from harm.19 For example, by promoting renewable energy a precautionary measure is taken to prevent uncertainties surrounding climate change.

3. The Polluter Pays Principle There are external costs resulting from overreliance on fossil fuels. They include climate change impacts, other environmental degradations and depletion of fossil fuel resources due to overexploitation.20 For example, the anthropogenic greenhouse gas emissions arising from deforestation, industrial activities and the burning of fossil fuels constitute external problems. Usually, the full cost of production of energy from conventional energy sources is not taken into consideration in energy pricing, including externalities such as negative impact on human health, damages to the environment and other impacts associated with climate change.21 Those involved in activities leading to greenhouse gas emissions benefit from the activities and impose the attendant consequences or costs on others.22 These costs could be borne by persons responsible for them through the use taxation, fees and charges.23 In so doing, the costs will be internalised. This proposition is deeply rooted in the international environmental law principle known as the ‘polluter pays principle.’ The polluter pays principle is an economic principle for allocation of environmental costs.24 The internalisation of costs, in effect, will give room for the use of more sustainable economic processes. For instance, the investment in renewable energy will enhance sustainability as such social 19

See Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law (2002), for an analysis of the precautionary principle. 20

Kok Tat Tan/Keat Teong Lee/Abdul Rahman Mohamed, Role of Energy Policy in Renewable Energy Accomplishment: The Case of Second-Generation Bioethanol, Energy Policy 36 (2008), 3360, 3360. 21

Renewable Energy Network for the 21st Century (REN21), Changing Climates: The Role of Renewable Energy in a Carbon-Constrained World (2006) 14, available at: http://www.risoe.dk/ rispubl/art/2006_120_report.pdf (accessed on 3 February 2014). 22 See Andrew Green, You Can’t Pay Them Enough: Subsidies, Environmental Law, and Social Norms, Harvard Environmental Law Review 30 (2006), 407, 414. 23 24

Ibid.

Catherine Banet, The Use of Market-Based Instruments in the Transition from a Carbon-Based Economy, in: Zillman et al. (eds.) (note 9), 207, 211.

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costs for pollution, resource depletion and environmental degradation are limited when compared to fossil fuels. Therefore, it can be concluded that economic incentives operate on the ‘principle of internalisations of environmental cost,’ which is one of the fundamental principles of sustainable development.25 The assignment of property rights, like tradable quotas, will enable individuals to internalise the costs which they impose on the environment.26 Consumers are also likely to shift towards the use of substitutes that are favourable to the environment knowing well that they are not likely to incur more expenses through the use of such resources.27 For example, market mechanisms aimed at greenhouse gas mitigation increase the cost of fossil energy.28

B. Non-Binding International Law Instruments: Soft Law

A significant body of institutional declarations and international partnerships reveal the emergence of a growing consensus on the need to freely disseminate renewable energy technologies.29 Soft law is not binding under international law.30 However, countries will display some level of commitment to soft law knowing that they are unlikely to be subjected to binding obligations.31 It operates as a form of moral persuasion. This therefore is an important incentive for States to promote renewable energy bearing in mind the international recognition of renewable energy through the settled principles of international law, which are also embedded in non-binding and 25

Benjamin J. Richardson, Economic Instruments in UK Environmental Law Reform: Is the UK Government ‘Sending the Right Signals’?, European Journal of Environmental Law Reform 3 (2002), 427, 431. 26

Green (note 22), 413.

27

United Nations Environment Programme (UNEP), Financial Risk Management Instruments for Renewable Energy Projects (2004), 17, available at: http://energy-base.org/wp-content/uploads/2013/ 11/SEFI-Financial-Risk-Management-Instruments-for-Renewable-Energy-Projects.pdf (accessed on 2 February 2014). 28 Roberta Mann, How to Love the One You’re With: Changing Tax Policy to Fit Cap-and-Trade, San Diego Journal of Climate and Energy Law 2 (2010), 145, 158. 29

Jason R. Wiener, Sharing Potential and the Potential for Sharing: Open Source Licensing as a Legal and Economic Modality for the Dissemination of Renewable Energy Technology, The Georgetown International Environmental Law Review 18 (2006), 277, 280. 30 Catherine Redgwell, International Soft Law and Globalization, in: Barry Barton et al. (eds.), Regulating Energy and Natural Resources (2006), 89, 98. 31

See Andrew T. Guzman/Timothy Meyer, International Soft Law, Journal of Legal Analysis 2 (2010), 171, 171–225.

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binding international law instruments. Some of the non-binding instruments are discussed below.

1. The Rio Declaration The 1992 Rio Earth Summit came out with two main non-binding documents that reiterate sustainable development: the Rio Declaration on Environment and Development32 and the Agenda 21.33 The documents have a far-reaching relevance to the development of renewable energy. In the Rio Declaration, the limitation of the sovereignty of States to exploit their resources to such a manner that it does not result in transnational environmental degradation was recognised in Principle 2.34 The notions of developmental and generational equity, cooperation towards eradicating poverty and development, and special treatment of developing countries were articulated in Principles 3–6.35 Principle 7 enjoins States to cooperate in conserving, protecting and restoring the ecosystem, while Principle 9 requires States to “strengthen endogenous capacity building for sustainable development” through “improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies.”36 Principle 16 Rio Declaration provides for the need for national authorities to promote the internalisation of environmental costs and the use of economic instruments in order to ensure that polluters bear the cost of pollution taking into consideration public interest and without distortion of international trade and investment.37 32

Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) (1992), Annex 1. 33

Agenda 21, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (1992), also available at: http://sustainabledevelopment.un.org/content/ documents/Agenda21.pdf (accessed on 20 February 2014). See Henning Grosse Ruse-Khan, A Real Partnership for Development? Sustainable Development as Treaty Objective in European Economic Partnership Agreements and Beyond, Journal of International Economic Law 13 (2010), 139, 145–147. 34

Wiener (note 29), 281.

35

Ibid.

36

Ibid.

37

At international level, the principle was first mentioned in the Recommendation by the Organization for Economic Co-operation and Development Council on Guiding Principles Concerning International Economic Aspects of Environmental Policies, 26 May 1972, C (72) 128. See Doerte

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These principles may form the basis for the promotion of renewable energy. States can preserve other finite resources and the environment by exploiting renewable energy sources thereby enhancing sustainable development and intergenerational equity. Cooperation and partnership in capacity building and technological transfer in renewable energy can be utilised in achieving sustainable development and prevention of environmental degradation.

2. The Agenda 21 The Agenda 21, which was adopted in the 1992 United Nations Conference on Environment and Development, emphasised that environmental problems such as acid rain and climate change can be tackled through the use of clean and renewable energy sources.38 The Agenda 21 enjoins governments to be involved in the development of energy sources that are economically and environmentally sound, including renewable energy.39 Governments are also implored to review current energy supply mixes in order to determine the increase in renewable energy.40 Chapter 24 of Agenda 21 addresses technology transfer in line with Principle 9 Rio Declaration. Thus, the Agenda 21 can be referred to as an international law instrument which provides compelling reasons why States should promote renewable energy and facilitate international cooperation on matters affecting renewable energy.

3. The Johannesburg Plan of Implementation Global climate change and energy were addressed by the international community at the 2002 World Summit on Sustainable Development held in Johannesburg, South Africa.41 The summit was a follow up to the Rio summit to resolve the environFouquet/Thomas B. Johansson, European Renewable Energy Policy at Crossroads: Focus on Electricity Support Mechanisms, Energy Policy 36 (2008), 4079, 4080, footnote 7. 38

Fred Sissine, CRS Report for Congress, Renewable Energy Policy: Tax Credit, Budget, and Regulatory Issues, available at: http://research.policyarchive.org/2944.pdf (accessed on 30 October 2013). 39

Para. 9.12 (a) Agenda 21.

40

Para. 9.12 (c) Agenda 21.

41

Bradbrook (note 9), 122.

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ment/development dichotomy.42 Central to the discussion of the summit was the issue of energy and the possibility of timetables for energy access, energy subsidies and integration of renewable energy to the energy mix of countries.43 There was no agreement on a timetable on energy access but States were obliged to diversify their energy supply through measures which include renewable energy.44 Paragraph 20 Plan of Implementation45 is of great importance, focussing on a great deal of measures ranging from the need for policy development at national, international and regional levels in advancing the development of renewable energy to the role of State and nonState actors. Although the provisions are non-binding, they can be referred to as catalysts capable of influencing the development of renewable energy. For instance, subsequently to the conclusion of the summit, the US Department of State implemented a $ 42 million Clean Energy Initiative and the European Union committed $ 700 million to energy partnerships in 2003.46

4. The Group of Eight (G8) Gleneagles 2005 Plan of Action The G8 meeting in 2005 in Gleneagles, Scotland, which included Brazil, China, India, Mexico and South Africa, resulted in the Gleneagles Communiqué and Plan of Action on Climate Change, Clean Energy and Sustainable Development.47 The focus of the G8+5 Group is to bring about a reduction in greenhouse gas emissions.48 The future areas to work in are the Ministerial dialogue as well as engaging the Interna-

42

Ruse-Khan (note 33), 146.

43

Kevin R. Gray, World Summit on Sustainable Development: Accomplishments and New Directions?, International and Comparative Law Quarterly (ICLQ) 52 (2003), 256, 257. 44

Ibid.

45

The Johannesburg Plan of Implementation of the World Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002), ch. 1, res. 2 Annex. 46

Sissine (note 38).

47

Gleneagles Plan of Action, Climate Change, Clean Energy and Sustainable Development, 8 July 2005, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/ 48584/gleneagles-planofaction.pdf (accessed on 30 October 2013). 48

Niklas Höhne et al., Climate Change Legislation and Initiatives at International Level and Design Options for Future International Climate Policy (2007), 27.

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tional Energy Agency (IEA) and the World Bank.49 In the Action Plan the G8 proposes to promote the continuing development and commercialisation of renewable energy by inter alia, working with developing countries to provide capacity building and development, assess the potential for renewable energy, and launch a Global Bioenergy Partnership to support wide, cost-effective biomass and biofuels development.50 A major commitment of the G8 summit in Gleneagles was to “take forward a Dialogue on Climate Change, Clean Energy and Sustainable Development, and to invite other interested countries with significant energy needs to join.”51 Twenty countries are involved in the dialogue, which comprises G8+5, Australia, Indonesia, Poland, South Korea, Spain, the European Commission, international organisations such as the World Bank and IEA as well as the United Nations Framework Convention on Climate Change (UNFCCC) Secretariat.52

5. The Beijing Declaration and Beyond The Beijing Declaration is a product of the Beijing International Renewable Energy Conference in 2005.53 Ministers and government representatives from 78 countries met at the conference in Beijing and reaffirmed the commitment to implement the outcomes of the Earth Summit, the World Summit on Sustainable Development, and the United Nations 2005 Millennium Review Summit, and to substantially increase with a sense of urgency the global share of renewable energy in the total energy supply, as called for in the Johannesburg Plan of Implementation.54

49

Ibid.

50

Para. 16 Gleneagles Plan of Action.

51

Höhne et al. (note 48), 27.

52

Ibid.

53

Adrian J. Bradbrook, Creating Law for Next Generation Energy Technologies, George Washington Journal of Energy and Environmental Law 2 (2011), 17, 26. 54 Para. 1 Beijing Declaration on Renewable Energy for Sustainable Development, 9 November 2005, available at: http://www.un.org/esa/sustdev/whats_new/beijingDecl_RenewableEnergy.pdf (accessed on 20 February 2014).

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The Beijing declaration focuses on development, implementation, technology transfer and rapid commercialisation of renewable energy. Thus, the declaration “emphasize[s] the multiple benefits of increased energy efficiency and the use of renewable sources of energy for improving access to energy services.”55 It states that [t]he international community should strengthen its commitment to the scaling up of renewable energy development and use, especially in the developing countries. [Parties] agree to take further action at the national, regional, and international levels to accelerate the market uptake of renewable energy technologies […].56

It “commit[s parties] to creating a positive investment climate to attract private capital for renewable energy,”57 and “recognize[s] the need for making technical assistance for renewable energy […] accessible to developing countries […].”58 A striking content of the Declaration is Paragraph 8, which provides that: We recognize that significantly increasing the use of renewable energy faces a number of challenges […]. Experience has shown that successful actions for scaling up the use of renewable energy, include: (1) creating supportive policy, legal, and institutional frameworks; (2) securing public sector commitment, including for R&D [research and development] and procurement policies; (3) levelling the playing field; (4) promoting private sector involvement and a stronger alignment between policy timeframes and timelines for investment; (5) supporting the establishment of national renewable energy industries including small and medium enterprises; and (6) providing access to affordable finance, including micro-finance, and consumer credit mechanisms.

Paragraph 8 Beijing Declaration therefore notes the actions for scaling up the use of renewable energy creating supportive legal, policy and institutional framework.59 Since the Beijing Declaration, core non-binding instruments on renewable energy are emerging. Within the UN system, they are becoming more pronounced. Of particular importance is the recent UN General Assembly Resolution 65/151 on the International Year of Sustainable Energy for All. A follow-up is the 2012 declaration of the years 2014–2024 as the Decade of Sustainable Energy for All.60 The declaration stresses the important role of renewable energy and the need to promote renew55

Para. 3 Beijing Declaration.

56

Paras. 6–7 Beijing Declaration.

57

Para. 9 Beijing Declaration.

58

Para. 11 Beijing Declaration.

59

Bradbrook (note 9), 127.

60

UN GA Res. 67/215 of 21 December 2012.

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able energy by States and international institutions through cooperation.61 As observed, the Declaration, although not binding, has a far-reaching persuasiveness in encouraging Member States not to renege in the quest for exploitation of renewable energy sources.

C. Binding International Law Instruments: Treaties

A treaty binds parties to it. Article 26 Vienna Convention on the Law of Treaties (VCLT),62 which recognises the doctrine of pacta sunt servanda, provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”63 This therefore indicates that by virtue of the VCLT, States should perform their obligations in relation to renewable energy under any relevant treaty to which they are parties. It follows further that credence can be given to the promotion of renewable energy because States are expected to observe their obligation under treaties relevant to the promotion of renewable energy.64 Treaties relevant to the promotion of renewable energy are discussed below.

1. The United Nations Convention on the Law of the Sea of 1982 The United Nations Convention on the Law of the Sea (UNCLOS) contains provisions on sovereign rights of States to exploit the natural resources in their exclusive territorial and economic zones.65 The resources which can be exploited will 61 United Nations General Assembly Declares 2014–2024 Decade of Sustainable Energy for All, 21 December 2012, available at: http://www.un.org/News/Press/docs/2012/ga11333.doc.htm (accessed on 30 October 2013). 62

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT).

63

See Nsongurua J. Udombana, A Question of Justice: The WTO, Africa, and Countermeasures for Breaches of International Trade Obligations, The John Marshall Law Review 38 (2005), 1153, 1192, where Udombana states that “[p]arties to the WTO agreements must fulfil obligations arising therein in good faith, based on the sacred principle pacta sunt servanda” (footnote omitted). 64 For example, the European Union in its 2009 Directive on the Promotion of Renewable Energy emphasised in its recital its commitment under the Kyoto Protocol as a justification for the promotion of renewable energy, see Recital 1 of the EC Directive 2008/28 of 23 April 2009, OJ 2009 L 140, 16. 65

Arts. 55 and 57 United Nations Convention on the Law of the Sea (UNCLOS), 10 December 1982, UNTS 1833, 3. See Helle Tegner Anker/Birgitte Egelund Olsen/Anita Rønne, Wind Energy and

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include offshore wind, geothermal and other marine renewable energy sources. States have rights to install offshore wind turbines and other marine installations. Put differently, States can exploit the natural resources for their developmental interest.66 However, such a right is subject to rights of other States and decommissioning after abandonment.67 The right is also subject to the right of innocent passage of sovereign flagged vessels.68 The right to promote renewable energy within the exclusive territorial and economic zone can be asserted by States in making a legal framework for the promotion of renewable energy. This could be through the creation of support schemes for renewable energy within the areas covered by the exclusive economic zone.

2. The United Nations Framework Convention on Climate Change and the Kyoto Protocol The role of renewable energy in mitigating the consequences of climate change cannot be overemphasised. International law has rightly recognised the need to mitigate climate change through legal measures concerning the use of renewable energy. Climate change was given high international recognition in 1992 at the Rio Earth Summit Agenda, where the United Nations Framework Convention on Climate Change (UNFCCC)69 was signed by States as the first commitment of the world to control the emission of greenhouse gases.70 The UNFCCC has as its ultimate objective the stabilisation of greenhouse gas concentrations in the atmosphere to prevent dangerous anthropogenic interference with the climate system and to promote sustainable development.71 the Law: A Comparative Analysis, Journal of Energy and Natural Resources Law 27 (2009), 145, 148; David Leary/Miguel Esteban, Renewable Energy from the Ocean and Tides: A Viable Renewable Energy Resource in Search of a Suitable Regulatory Framework, Carbon and Climate Law Review 4 (2009), 417, 417–425. 66

Canton-Fourrat/Fanfil (note 7), 370.

67

Arts. 56 and 60 UNCLOS; Anker/Olsen/Rønne (note 65), 148.

68

Art. 17 UNCLOS.

69

United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107 (UNFCCC). 70

Catherine Redgwell, International Legal Response to the Challenges of a Low-Carbon Future: Climate Change, Carbon Capture and Storage and Biofuels, in: Zillman et al. (eds.) (note 9), 85, 88. 71

Art. 2 UNFCCC.

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The parties are enjoined to promote strategies for technology transfer, cooperate in scientific and technical research, and development education and training programmes.72 The Kyoto Protocol73 to the UNFCCC, which strengthens the provisions of the UNFCCC, sets limits for greenhouse gas emissions in developed countries to at least 5.2 % below the level of 1990 between the years 2008–2012 and introduced flexible market mechanisms that would allow reduction of greenhouse gas emissions in the most cost-effective, efficient, and sustainable manner.74 The UNFCCC and the Kyoto Protocol contain far-reaching obligations on contracting parties in the promotion of and cooperation in transfer of climate-friendly technologies.75 Both the UNFCCC and the Kyoto Protocol recognise the importance of renewable energy. Article 2 (1)(a)(iv) Kyoto Protocol specifically commits parties to “[r]esearch on, and promotion, development and increased use of, new and renewable forms of energy […] and of advanced and innovative environmentally sound technologies.”76 The mechanisms established under the Kyoto Protocol are the Joint Implementation (JI),77 the Clean Development Mechanism (CDM)78 and the Emissions Trading Scheme (ETS).79 The purpose of the JI is to initiate carbon reduction projects in a developed country categorised as Annex I country in order to generate credits known as Emissions Reduction Units (ERUs).80 Such ERUs may be purchased by an Annex

72

Art. 10 UNFCCC.

73

The Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), 16 March 1998, UNTS 2303, 148 (Kyoto Protocol). 74 See Jimena Eyzaguirre/Nicole Kalas, Science and Policy, in: Christiana Figueres (ed.), Establishing National Authorities for the CDM: A Guide for Developing Countries (2002), 1, 12. 75 See Art. 4 (5) UNFCCC: “The developed country Parties and other developed Parties included in Annex II shall take all practicable steps to promote, facilitate and finance, as appropriate, the transfer of, or access to, environmentally sound technologies and knowhow to other Parties.” Art. 10 (c) Kyoto Protocol provides for cooperation in the promotion of environmentally sound technologies particularly in developing countries. 76 See similar position in Virginie Barral, Sustainable Development in International Law: Nature and Operation of an Evolutive Legal Norm, European Journal of International Law 23 (2012), 377, 392–393. 77

Art. 6 Kyoto Protocol.

78

Art. 12 Kyoto Protocol.

79

Art. 17 Kyoto Protocol.

80

Aaron Cosbey/Deborah Murphy/John Drexhage, The Development Dividend Project – Phase III: Market Mechanisms for Sustainable Development: How Do They Fit in the Various Post-2012 Climate Efforts? (2007), 3.

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I country in fulfilling its reduction commitments.81 The JI allows developed countries to purchase ERUs resulting from emissions reducing or emissions avoiding project activities implemented by any other developed country.82 Article 12 Kyoto Protocol establishes the CDM. The CDM seeks to encourage joint emissions reduction projects between Annex I countries and non-Annex I countries (developing countries) that will promote sustainable development in order to generate Certified Emission Reductions (CERs). Thus, the emission reductions derived from the CDM projects must demonstrate that they are additional to any which would occur in the absence of certified emission projects.83 The arrangement under the ETS allows Annex I countries, which include industrialised States and transitional economies, to purchase or part with each country’s Assigned Amount Units (AAUs).84 This results in increases in the amount of emission of the country in receipt of AAUs while there is a corresponding reduction in that of the country selling.85 Participating countries are expected to maintain a commitment period reserve comprising a minimum level of emission ERUs, CERs, AAUs and Removal Units (RMUs) held in its national registry.86 The market-based mechanisms such as the JI and the CDM can be used for the promotion of renewable energy through the initiation of renewable energy projects for climate change mitigation within the framework of the climate change regime. This will also lead to the transfer of renewable energy technology among countries. Although the implementation of the climate change regime has been faced by many challenges and inability to meet its ambitious targets, it has a positive impact on the development and promotion of renewable energy for climate change mitigation.87 The popularity given to climate change with the emergence of the UNFCCC and its Kyoto Protocol can be said to have in some measure encouraged the promotion of renewable energy for climate change mitigation. The renewable energy projects 81

Ibid.

82

See Eyzaguirre/Kalas (note 74), 12.

83

Redgwell (note 70), 93.

84

Art. 17 Kyoto Protocol. See Cosbey/Murphy/Drexhage (note 80), 3.

85

Ibid.

86

Redgwell (note 70), 96.

87

Challenges faced in implementing the present climate change regime were examined in: Benjamin J. Richardson et al. (eds.), Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (2009).

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therefore should be able to result in emission reductions, which ordinarily would not have occurred assuming corresponding energy sources such as coal or oil and gas are used in the generation of electricity. The negotiation process set up in the thirteenth Conference of the Parties (COP 13) under the Bali Action Plan (BAP), which focused on mitigation, adaptation, finance, and technology and capacity building has been on-going.88 After the shortcomings recorded at COP 15 in Copenhagen,89 with the progress made at COP 16 in Cancún,90 COP 17 in Durban91 and COP 18 in Doha,92 as well as the extension of the Kyoto Protocol commitment period, in addition to the desire to continue with the market-based mechanisms in the event of a post-Kyoto climate change regime, enthusiasm has been boosted.93 By implication, a higher opportunity for renewable energy is flourishing within the international climate change agenda.

3. The Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters The Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention)94 is also a treaty relevant to renewable energy. Environmental impacts of renewable energy and the resultant litigations in form of challenges to planning are well 88 UNFCCC, Report of the Conference of the Parties on its thirteenth session, held in Bali from 3 to 15 December 2007, UN Doc. FCCC/CP/2007/6/Add.1 (2008). 89

Id., Report of the Conference of the Parties on its fifteenth session, held in Copenhagen from 7 to 19 December 2009, UN Doc. FCCC/CP/2009/11/Add.1 (2010). 90

Id., Report of the Conference of the Parties on its sixteenth session, held in Cancún from 29 November to 10 December 2010, UN Doc. FCCC/CP/2010/7/Add.1 (2010). 91 Id., Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011, UN Doc. FCCC/CP/2011/9/Add.1 (2012). 92

Id., Doha Climate Change Conference – November 2012, available at: http://unfccc.int/ meetings/doha_nov_2012/meeting/6815.php#decisions (accessed on 4 February 2014). 93

See Lavanya Rajamani, The Cancún Climate Agreements: Reading the Text, Subtext and Tea Leaves, ICLQ 60 (2011), 499, 499–519, and id., The Durban Platform for Enhanced Action and the Future of the Climate Regime, ICLQ 61 (2012), 501, 501–518, for analyses of COP 17 and 18, respectively. 94

Convention on Access to Environmental Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, UNTS 2161, 447 (Aarhus Convention).

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documented.95 Currently, there is a trend emerging to ensure that renewable energy projects are carried out in compliance with the Aarhus Convention. The Convention obliges contracting parties to guarantee the right of access to information, public participation in decision-making, and access to justice in environmental matters.96 The aforementioned elements work in unison in facilitating public participation in environmental issues.97 The Aarhus Convention has found relevance to the promotion of renewable energy because the nature of some renewable energy projects requires public engagement.98 If neighbourhoods and communities are engaged from the outset of the initiation of renewable energy projects, this will guard against protests against the projects. Generally, the Aarhus Convention has offered a way forward. Nevertheless, the nature of renewable energy projects and the attitude of people regarding the aesthetic impacts of renewable energy will require a more specialised approach for reconciling the impacts of renewable energy projects and their potential benefits. International standards for this are desirable. Complying with the provisions of the Aarhus Convention goes a long way in resolving the likelihood of challenges against renewable energy projects. It is one thing to have laws which encourage renewable energy, and another to overcome the barriers which may militate against them in form of public opposition to the installation of renewable energy projects.

4. The World Trade Organization Agreements The World Trade Organization (WTO) is an intergovernmental organisation dealing with matters relating to trade among members.99 The WTO rules aim pri-

95

Aylwin Pillai/Colin T. Reid/Andrew R. Black, Reconciling Renewable Energy and the Local Impacts of Hydro-Electric Development, Environmental Law Review 7 (2005), 110, 110–123; John Arnold McKinsey, Regulating the Avian Impact under the Migratory Bird Treaty Act and other Laws: The Wind Industry Collides with one of its Own, The Environmental Protection Movement, Energy Law Journal 28 (2007), 71, 71–92; William Norris/Simon Bucknall, Capacity versus Output (and other Energy Policy Issues) in UK Wind Farm Planning, Journal of Planning and Environment Law 7 (2009), 381, 831–841. 96

Art. 1 Aarhus Convention.

97

See Christine Johnson, Improved Access Regime for Environmental Information and the Role of the Information Commissioner, Environmental Law Review 6 (2004), 219, 219. 98 See generally, Vikki Leitch, Securing Planning Permission for Onshore Wind Farms: The Imperativeness of Public Participation, Environmental Law Review 12 (2010),182, 182–199. 99

Laura Nielsen, Trade and Climate Change, Manchester Journal of International Economic Law 7 (2010), 2, 4.

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marily at progressively liberalising world trade.100 States parties can naturally invoke an exception as a defence for unilateral trade barriers that would otherwise be inconsistent with the WTO rules.101 There is a growing debate on the interconnection between trade in energy and the environment.102 Member States of the WTO are bound by relevant WTO rules and agreements which may have far-reaching consequences on investment and trade in renewable energy. An examination of WTO agreements in this section builds on the notion that if renewable energy support schemes and regulations are utilised as climate change measures, international trade laws could create some level of impediments in the implementation due to the interpretation given to international trade agreements.103 Therefore, there is a dire burden on States promoting renewable energy to ensure that the subsidies and regulations are in accordance with international trade rules.104 This can in turn whittle down regulatory support for renewable energy. The main agreements vis-à-vis their implications to the operation of support measures are discussed below.

a) Agreement on Subsidies and Countervailing Measures It is provided in the Agreement on Subsidies and Countervailing Measures (SCM Agreement)105 that a financial contribution exists where the government or public body confers benefits.106 Financial contribution has been defined to include: direct transfers of funds by the government such as grants, loans, and equity infusion as well as potential direct transfers of funds or liabilities such as loan guarantees; exemption from revenue due to the government, e.g. fiscal incentives such as tax credits; provi100

Ibid.

101

Ibid.

102

Thomas Cottier et al., Towards a WTO Framework Agreement on Trade in Energy, Society of International Economic Law, Second Biennial Global Conference, 8–10 July 2010, Barcelona Working Paper No. 2010/40. 103

See Nigel Bankes et al., International Trade and Investment Law and Carbon Management Technologies, Natural Resources Journal 53 (2013), 285, 294. 104 Daniel Peat, The Perfect FIT: Lessons for Renewable Energy Subsidies in the World Trade Organization, LSU Journal of Energy Law and Resources 1 (2012), 1, 24. 105 Agreement on Subsidies and Countervailing Measures (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1869, 14 (SCM Agreement). 106

Art. 1 (1)(a)(1) SCM Agreement.

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sion of goods or services by the government other than general infrastructure, or purchase of goods; and where the government funds or guarantees a scheme or obliges a private body to do such things in such a manner as if they would have been done by the government.107 Article 14 SCM Agreement further provides that: the purchase of goods shall not be considered as conferring a benefit unless the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service in question in the country of provision or purchase (including price, quality, availability, marketability, transportation and other conditions of purchase or sale).

To this end, should countries decide to make laws on economic and financial incentives, it can be argued that where the benefits of the particular scheme are not limited or exclusively meant for a particular company, there is no breach of the SCM Agreement.108 The benefits accorded must be more favourable than what ordinarily would have been provided to other investors in the open market.109 For a support scheme to be considered as falling within the definition of a financial contribution as set out in the SCM Agreement, it must be specific and have adverse effects. These two grounds will need to be established to render a subsidy for renewable energy actionable under the SCM Agreement. Specificity has been deemed to connote cases where the subsidy is limited in law or in fact to a particular industry or enterprise. It cannot be taken to say that there is specificity where the “eligibility of the subsidy is contingent on ‘criteria or conditions which are neutral, which do not favor certain enterprises over others, and which are economic in nature and horizontal in application, such as number of employees or size of enterprises.’”110 The main emphasis therefore will be on sector neutrality which entails not ‘how many’ industries or enterprises benefit but whether all industries or enterprises are entitled to the subsidy. 107

Ibid.

108

See WTO, European Communities and Certain Members States – Measures Affecting Trade in Large Civil Aircraft (EC-Aircraft), Panel Report of 30 June 2010, WT/DS316/R, 639, para. 7.1039. 109

See id., Canada – Measures Affecting the Export of Civilian Aircraft (Canada-Aircraft), Report of the Appellate Body of 2 August 1999, WT/DS70/AB/R, para. 157, where it was held that “the marketplace provides an appropriate basis for comparison in determining whether a ‘benefit’ has been ‘conferred,’ because the trade-distorting potential of a ‘financial contribution’ can be identified by determining whether the recipient has received a ‘financial contribution’ on terms more favourable than those available to the recipient in the market”. 110

Bankes et al. (note 103), 301.

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In line with the provisions of Articles 5 and 6 SCM Agreement, adverse effects occur where there is an injury to the domestic industry, nullification or impairment of benefits accruing directly or indirectly to other members, or serious prejudice to the interests of another member.111 Identification and determination of what constitutes an adverse effect will be on case-by-case basis. As Bankes et al. note: Subsidies may cause harm in a variety of ways, creating a need for very fact-specific examinations of harm. Such case-by-case considerations suggest some flexibility within the ASCM and perhaps provide governments with scope to support environmental objectives, like the promotion of CMTs [carbon management technologies]. For example, it seems possible that a subsidy implemented to promote CMTs like a consumption subsidy or energy-saving subsidy, which does not discriminate with respect to the origin of the energy or technology, may survive the adverse effects analysis.112

Considerations would have to be given to the provisions of Articles 15 (4) and 11 (9) SCM Agreement according to which in cases where the subsidy is not up to 1 % of the per unit value of the exported products, countervailing measures may not be implemented. The value is put at 2 % for developing countries if the import market share is below 4 % and the aggregate share of all developing countries being investigated is less than 4 % and below 9 % of the total imports.113 The subsidies could amount to prohibited or actionable subsidies. It is provided in Article 3 SCM Agreement that “no member shall grant or maintain subsidies contingent in law or in fact, whether solely or as one of several other conditions, upon export performance or upon the use of domestic over imported goods.” Such subsidies are prohibited and are to be ‘withdrawn without delay.’114

b) Agreement on Technical Barriers to Trade The Agreement on Technical Barriers to Trade (TBT Agreement)115 safeguards, inter alia, the use of technical regulations and standards in a manner that they will 111

Marie Wilkie, Feed-in Tariffs for Renewable Energy and WTO Subsidy Rules: An Initial Legal Review, 9, available at: http://ictsd.org/i/publications/112508/?view=document (accessed on 31 October 2013). 112

Bankes et al. (note 103), 302.

113

Wilkie (note 111), 9.

114

Art. 4 (8) SCM Agreement.

115

Agreement on Technical Barriers to Trade, (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1868, 120 (TBT Agreement).

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operate as inhibitions or restrictions to international trade.116 The main obligations in the TBT Agreement are first, a provision prohibiting discrimination against and between foreign products; and second, the so-called ‘necessity’ requirement which obliges WTO members not to adopt standards that are more trade-restrictive than necessary for achieving legitimate objectives such as environmental protection.117

They are examined below. Article 2 (1) TBT Agreement states that “products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.” From the provisions of Article 2 (1) TBT Agreement, three conditions must be established in order to succeed in a complaint, namely: (i) […] the measure […] constitutes a ‘technical regulation’ within the meaning of Annex 1.1, (ii) […] the imported products are ‘like’ the domestic product and the products of other origin, and (iii) […] the treatment accorded to imported products is less favorable than that accorded to like domestic products and like products from other countries.118

Technical regulation will include reporting and verification requirements to ensure that the energy is from a renewable energy source.119 Therefore, the technology-based standard requires compliance with certain technological equipment to achieve the aim of the regulation. Such measures must, however, not create an undue burden on traded energy. A restriction may occur in respect of placing limits on the amount of importation of a particular product into a country, e.g. restriction on fossil fuel technology in order to promote investment in renewable energy technology. Thus, Article 2 (2) TBT Agreement provides that members shall ensure that technical regulations do not create unnecessary obstacles to international trade and are not more trade-restrictive than necessary to fulfil a legitimate objective such as the 116

Nathalie Bernasconi-Osterwalder/Johannes Norpoth, Is World Trade Law a Barrier to Saving our Climate?: Questions and Answers, available at: http://www.ciel.org/Publications/ClimateTrade Report_foee-ciel_sep09.pdf (accessed on 30 December 2013). 117

Ibid.

118

Bankes et al. (note 103), 305. See WTO, United States – Measures Affecting the Production and Sale of Clove Cigarettes, Report of the Appellate Body of 4 April 2012, WT/DS406/AB/R, para. 87. 119 Robert Howes, Renewable Energy and International Law Project (REIL), World Trade Law and Renewable Energy: The Case of Non-Tariff Measures, Journal of European Environmental Law and Planning Law 6 (2006), 500, 500–518.

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protection of the environment, taking into consideration the consequential risks of non-fulfilment. In this regard it may be argued that the promotion of renewable energy using support schemes could constitute a legitimate objective directed at addressing climate change.

c) General Agreement on Tariffs and Trade Article I (1) General Agreement on Tariffs and Trade (GATT)120 provides that any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

Renewable energy incentives could offer such ‘favour, privilege or immunity.’ Thus, series of panels have defined advantage to include “more favourable competitive opportunities” or “affect the commercial relationship between products of different origins.”121 Article III (4) GATT states that [t]he products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.

Article XI (1) GATT provides that there should be “no prohibitions or restrictions other than duties, taxes or other charges may be instituted by any contracting party on the importation or exportation of any product from or to another contracting party.”122 120 General Agreement on Tariffs and Trade (Annex 1A to the WTO Agreement), 15 April 1994, UNTS 1867, 187 (GATT). 121

WTO, Colombia – Indicative Prices and Restrictions on Ports of Entry, Report of the Panel of 27 April 2009, WT/DS366/R, para. 7.341; WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas (EC-Bananas III), Report of the Panel of 22 May 1997, WT/DS27/ R/HND, para. 7.239. See Andrew D. Mitchell/Christopher Tran, The Consistency of the EU Renewable Energy Directive with the WTO Agreements, Georgetown Business, Economics & Regulatory Law Research Paper No. 1485549, October 2009, available at: http://scholarship.law.georgetown.edu/ cgi/viewcontent.cgi?article=1121&context=fwps_papers (accessed on 30 October 2013). 122

Ibid.

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Article XX GATT on the other hand creates an exception to measures which ordinarily would have been considered to be in breach of the provisions of the GATT. It provides that for measures “necessary to protect human, animal or plant life or health” or relating to resources conservation “in conjunction with restriction on domestic production” an exception will apply. However, the measures must not be arbitrary or amount to unjustifiable discrimination between countries where the same conditions prevail, or operate as disguise to restrict international trade. Article XX GATT may be relied upon as the basis for the promotion of renewable energy investment in a country. In Brazil – Measures Affecting Imports of Retreaded Tyres,123 it was interpreted to comprise climate change.124 In US – Gasoline, the justification also included the protection of clean air. Because of the advantages of the promotion of renewable energy, which include climate change mitigation and conservation of natural resources, the use of incentives may be justified. Thus, by promoting investment in renewable energy, an effort is made towards protecting humans, animals or plants, or health, considering the impact which climate change has on them. It can therefore be seen as a justifiable ground for renewable energy.125 The chapeau in Article XX GATT (“such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade”) can be used to prevent the reliance on the exception set out as a disguise for a breach of the provisions of the GATT.126 Good faith should therefore be taken into consideration.127 This will include cases in which the breach is utilised to conceal the objective of trade restriction.128 It can also be weighed on the basis of “the contribution made by the compliance measure to the enforcement of the law or regulation at issue, 123

Id., United States – Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body of 20 May 1996, WT/DS2/AB/R, para. 18. 124 Id., Brazil – Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body of 17 December 2007, WT/DS332/AB/ R, para. 151. 125 Luca Rubini, Ain’t Wastin’ Time No More: Subsidies for Renewable Energy, the SCM Agreement, Policy Space, and Law Reform, Journal of International Economic Law 5 (2012), 525, 570. 126

WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp), Report of the Appellate Body of 6 November 1998, WT/DS58/AB/R, para. 118. 127 128

Ibid., para. 158.

Id., European Communities – Measures Affecting Asbestos and Asbestos Containing Products, Report of the Panel of 18 September 2000, WT/DS135/R, para. 8.236.

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the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports.”129 There has been an increasing trade-related tension and resistance over the use of subsidies to promote renewable energy lately. In 2010 and 2011 respectively, Japan and the EU challenged requirements of the feed-in tariff scheme under the Green Energy Act of Ontario, which provides preferential incentives arguing that it is in violation of the provisions of Article III (3) and (5) GATT because less favourable treatment is accorded to imported renewable energy equipment than to similar equipment produced in Ontario.130 The dispute between the United States and China before the WTO on the trade restriction in the green tech industry also typifies the situation.131 The US alleged that the Chinese green tech policies are in breach of its obligation against unfavourable subsidies which has impacted on US investment in the green tech industry. In face of these tensions, market players in the renewable energy sector would have to pause and consider the changes or effect of the possible change that may result from the existing tension. This will continue to act as bane against investment and could be capable of creating some uncertainties in the mind of investors. Given the respective provisions, international trade laws can affect the way in which the law for renewable energy support schemes and regulations are designed. The objective behind the law promoting investment in renewable energy and the extent of a State’s commitment and perception of the provisions of international trade rules may affect the nature and choice of support schemes.

5. International Investment Treaties Countries have signed investment treaties with one another in order to encourage foreign investment and promote bilateral and multilateral business relationships. 129

Id., Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body of 10 January 2001, WT/DS161/AB/R, 164. See Garba Ibrahim Malumfashi, ‘Green’ Procurement Policies, Climate Change Mitigation and International Trade Regulation: An Assessment of the WTO Agreement on Government Procurement, PhD Thesis, University of Dundee (2010), 220. 130 Id., Canada – Certain Measures Affecting the Renewable Energy Generation Sector (CanadaRenewable Energies), WT/DS412; id., Canada – Measures Relating to the Feed-in Tariff Program (Canada-Feed-in Tariff), WT/DS426. See Rafael Leal-Arcas, Unilateral Trade-related Climate Change Measures, The Journal of World Investment and Trade 13 (2012), 875, 899. 131

Id., China – Measures Concerning Wind Power Equipment (China-Wind Power), WT/DS419.

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States parties are expected to observe their commitments under these investment treaties. In the absence of a specific investment treaty on renewable energy, the provisions of the various investment treaties will apply to investment in renewable energy. Good examples of such multilateral treaties are the Energy Charter Treaty (ECT)132 and North American Free Trade Agreement.133 Although the ECT lacks wide coverage, it is devoted to the promotion of investment in energy. The ECT expressly recognises renewable energy.134 The part of the treaty dealing with renewable energy is Article 19 ECT, which requires each State in the pursuit of sustainable development and minimising environmental degradation to inter alia “(d) have particular regard to improving energy efficiency to developing and using renewable energy sources to promoting the use of cleaner fuels and to employing technologies and technological means that reduce pollution.” Article 19 ECT is drafted in a non-binding loose form as there is clearly no possibility of international enforcement of any of these obligations in the light of the tentative wording of the provision. It is, however, an indication of intention to promote renewable energy in meeting the objectives of the Charter. Nevertheless, within the preamble of the ECT the emphases on climate change mitigation and environmental considerations are well articulated.135 Going by the provisions of Article 31 (2) VCLT, a preamble is taken into consideration in the interpretation of a treaty. The ECT is aimed at fostering cooperation and enhancing energy supply.136 The treaty generally facilitates and enhances strategies

132

Energy Charter Treaty, 17 December 1994, UNTS 2080, 95.

133

North American Free Trade Agreement, 17 December 1992, Canada-United States of AmericaMexico, ILM 289, 32. 134

The Energy Charter Treaty was signed in Lisbon and it addresses ranges of subject on energy. See Jayarao Gururaja, Energy for Sustainable Development: Review of National and International Policies, Natural Resources Forum 27 (2003), 53, 56. The treaty was signed by 47 States consisting of most western and eastern European countries, the United States, Canada, Japan, Australia and New Zealand. See Bradbrook (note 9), 117. 135 See Edna Sussman, The Energy Charter Treaty’s Investor Protection Provisions: Potential to Foster Solutions to Global Warming and Promote Sustainable Development, ILSA Journal of International and Comparative Law 14 (2008), 391, 403; Francesca Romanin Jacur, Changing Climate in Climate Change Investment: An International Law Perspective, available at: http://www.law.nyu. edu/sites/default/files/ECM_PRO_071568.pdf (accessed on 30 October 2013). 136

Canton-Fourrat/Fanfil (note 7), 370.

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that remove barriers to investment in energy, and fair market access.137 Generally, the salient contents of the treaty revolve around investment protections intended to create a ‘level playing field’ and reduce […] noncommercial risks associated with energy sector investment; […] trade provisions consistent with WTO rules and practice; […] facilitat[ion of] transit of energy on a non-discriminatory basis consistent with the principle of free transit; […] energy efficiency and environmental provisions […] for improving energy efficiency and reducing the energy cycle’s negative impacts on the environment; and […] dispute resolution mechanisms for investment related disputes between an investor and a Contracting Party or between one state and another as [it relates to the treaty].138

This view has also been supported by Sussman that “[s]uch collaborative efforts should facilitate the development of a workable global energy investment environment that promotes sustainable energy projects which serve to mitigate GHG [greenhouse gas] emissions.”139 States wishing to promote environmental friendly technologies can provide in multi- and bilateral investment treaties environmentally friendly provisions which can encourage the promotion of renewable energy. There are provisions in investment treaties which can be relied upon by investors to protect their investments. Therefore, there are general standards which investors can enforce before international tribunals to check against regulatory changes in relation to support schemes. They include protection against expropriation, fair and equitable treatment, national treatment, prohibition of arbitrary and unreasonable measures, most-favoured national treatment, sanctity of contracts, as well as full protection and security.140 Broad interpretation of these provisions could also constitute a bar to the development of renewable energy. Countries may be reluctant to regulate renewable energy. A good example will be penalising carbon intensive companies for the purpose of promoting renewable energy. If the penalty is high, and could be so high that it will result in substantial economic loss or the company closing down its operation, it could constitute a basis for bringing an action under the provi137 Andrey A. Konoplyanik, Energy Security: The Role of Business, Governments, International Organisations and International Legal Framework, International Energy Law and Taxation Review 6 (2007), 85, 92. 138

Sussman (note 135), 392.

139

Ibid., 404.

140

Anatole Boute, The Potential Contribution of International Investment Protection Law to Combat Climate Change, Journal of Energy and Natural Resources Law 27 (2009), 333, 348.

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sion of fair and equitable treatment, expropriation and even national standards. This therefore will create a regulatory chill on the government, who could become reluctant to implement environmental protective measures for renewable energy.

6. Setting the Pace: The Statute of the International Renewable Energy Agency The treaty-making process for renewable energy has been further brought forward through the emergence of the Statute of the International Renewable Energy Agency (IRENA).141 The treaty can be adjudged as the first treaty devoted to renewable energy.142 The treaty became operational on 8 July 2010 after it was ratified by the 25th member in June 2010.143 The idea behind IRENA is to enhance an environment for finance, know-how and collaboration with relevant institutions on renewable energy.144 IRENA’s goal is ultimately to increase the share of renewable energy worldwide.145 Before IRENA many international institutions have come into existence which have been instrumental to the promotion of renewable energy. These institutions include the IEA and other bodies established within the UN system, such as the United Nations Development Programme (UNDP), the United Nations Environment Programme (UNEP), the United Nations Industrial Development Organization (UNIDO), the United Nations Department of Economic and Social Affairs (UNDESA), the World Bank, and the Global Environmental Facility (GEF) that have engaged in activities geared at promoting renewable energy.146 International financial institutions have been noted in playing leading roles in financing energy 141 The Statute of the International Renewable Energy Agency, 26 January 2009, ILM 1223, 48 (IRENA Statute). See generally Peter Kayode Oniemola, The Statute of the International Renewable Energy Agency (IRENA): A Road Set for the Promotion of Renewable Energy, International Energy Law Review 3 (2011), 72, 72–75. 142

Ibid., 74.

143

REN21, Renewables 2010 Global Status Report (2010), 36, available at: http://www.ren21. net/Portals/0/documents/activities/gsr/REN21_GSR_2010_full_revised%20Sept2010.pdf (accessed on 3 February 2014). 144

Oniemola (note 141), 74.

145

See REN21 (note 143), 36; see also Art. II IRENA Statute.

146

Yinka O. Omorogbe, Promoting Sustainable Development Through the Use of Renewable Energy: The Role of the Law, in: Zillman et al. (eds.) (note 9), 39, 47.

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projects that are capital intensive.147 The World Bank is also instrumental in providing expertise for renewable energy development through its chain of activities. Facilitation of project financing for renewable energy is also an important role of the World Bank in advancing clean energy. Drawing from this above, co-operation to promote renewable energy in meeting energy security and climate change mitigation can be facilitated under the auspices of international institutions and organisations. However, the activities of these institutions can be said to be uncertain and without a specific focus, creating a relatively weak and obscure system.148 More particularly, if the intent behind IRENA is not allowed to dwindle, an array of opportunities for renewable energy governance and project financing can be opened. The establishment of IRENA is an indication of the growing consensus on the need to promote renewable energy. The institutions are numerous and it is hoped that with IRENA, the activities of these institutions will be promoted under a single umbrella. There is the possibility of eventual incorporation of IRENA within the UN system.

III. Towards a Worldwide Treaty on Renewable Energy The international importance of renewable energy is well recognised. The principles of international environmental law enshrined in binding and non-binding instruments give credence to the promotion of renewable energy but have not provided concrete actions. The promotion of renewable energy through international law is still relatively weak. There is the need to put forward the progress made under the UNFCCC and the Kyoto Protocol through an affirmative treaty-making process. An international treaty on renewable energy is therefore necessary. The proliferation of international law instruments will need to be brought together under clear terms. By so doing, obligations will be created on States parties, who will not only see renewable energy as incidental in the observance of the provisions of existing treaties that are relevant to renewable energy, though not made for renewable energy. A treaty that will harness the various principles international law relevant on renewable energy and give them clear binding obligation is a way forward. 147

Konoplyanik (note 137), 93.

148

Gunningham (note 6), 131.

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Setting international standards for renewable energy will serve as guide to States parties in facilitating the development of renewable energy. Placing binding and indicative targets for renewable energy utilisation on States parties, taking into consideration the renewable energy potential of each State as well as their capabilities, through a treaty is paramount. Clear goals and ambitions should be set for the various governments. Therefore, setting medium and long term targets for the overall national energy mix and international supply of the various renewable energy sources and technologies in order to ensure that renewable energy is taken into account in meeting development strategies is essential. This will be followed by financial support and the pooling together of resources for cooperation in the development of renewable energy projects among countries. Developing countries lack the requisite capacity in the deployment of renewable energy. It will be necessary to give consideration to the development of institutional capacity for electricity generation from renewable energy. Capacity building should also be built in the areas of the use and regulation of renewable energy. There could be more efforts made to work with specialised multilateral agencies such as the World Bank, UNEP, IEA, IRENA and a host of other organisations backed by a treaty. Research development and demonstration will become very instructive under such an arrangement. Cooperation can be fostered in the area of data collection and provision of information in respect of renewable energy potential and installed capacity. Measures for technology transfer will need to be developed to facilitate the transfer of renewable energy technologies among States. It is apposite to stress that transfer of technology to a developing country is counterproductive in the absence of an enabling environment for ensuring that there is appropriate local technical capacity and infrastructure for proper utilisation and maintenance of the technology.149 Within the framework of the treaty, there should be a detailed provision for technology transfer. It is an area to which consideration must be given. “For successful technology adoption and adaptation, it is essential to have a technology innovation system in place in a country”150 and the treaty can create provisions for that. Innovation systems may serve this purpose through 149 Richard L. Ottinger/Lily Mathews/Nadia Elizabeth Czachor, Renewable Energy in National Legislation: Challenges and Opportunities, in: Zillman et al. (eds.) (note 9), 138, 196. 150

Eric D. Larson, Biofuel Production Technologies: Status, Prospects and Implications for Trade and Development (2008), 29.

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research universities/institutes generating fundamental knowledge and assimilating knowledge from the global community; […] industries with the capacity to form joint ventures with foreign companies and to introduce innovation and learning into shared technologies; […] government agencies able to recognize and support the required research and technology adaptation needs; and [through] a technology-informed public policymaking system.151

The raging debate on the legal framework for renewable energy support and conflict with international trade and investment law is an area where a treaty is needful in resolving the conflict. The debate has further been intensified by the fact that renewable energy is seen as a tool for climate change mitigation. Setting out parameters for a compromise in ensuring that the potential conflict between international trade and investment law and the promotion of renewable energy is resolved will be instructive in the international political arena. Likewise, treaties such as the Aarhus Convention and UNCLOS should be interpreted in such a way that they promote renewable energy projects rather than acting as barriers. In essence, synergies should be created through treaty-making to ensure that other international law instruments do not constitute a clog to the promotion of renewable energy. For example, there should be clear provisions that will create a link between interconnection of renewable electricity in exclusive economic zones and among countries. Though relevant to renewable energy, each of these international law instruments has their specific objectives behind their formation.152 The UNCLOS offers the basis for exploitation of resources in the exclusive economic zones and the Aarhus Convention will determine how renewable electricity grids for the transfer of electricity to another State do not infringe on environmental justice. Therefore, a treaty, which incorporates in a purposive manner the promotion of renewable energy by taking into consideration existing treaties, will be an important development. Likewise, as different States have employed varied approaches in the development of the grid and network infrastructure development for renewable energy, it will be the role of the proposed treaty to address how the varied regimes can be harnessed.153

151

Ibid.

152

Volker Roeben, Governing Shared Offshore Electricity Infrastructure in the Northern Seas, ICLQ 62 (2013), 839, 863. 153

See Olivia Woolley, Governing a North Sea Grid Development: The Need for a Regional Framework Treaty, Competition and Regulation in Network Industries 14 (10) (2013), 73, 80–81.

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Still, it has been canvassed elsewhere that a renewable energy protocol to the UNFCCC is desirable.154 Reasons given for the position are that it is least expensive and there would be no need to set up a new secretariat.155 However, the current realities on ground will require renewable energy to operate under a distinct treaty. The UNFCCC process can exist parallel to the renewable energy treaty. The UNFCCC is already complex with many issues requiring urgent attention. For example, the sectoral scope of CDM projects includes energy industries (renewable/non-renewable sources), energy distribution, energy demand, manufacturing industries, chemical industries, construction, transport, mining/mineral production, metal production, fugitive emissions from fuels (solid, oil and gas), fugitive emissions from production and consumption of halocarbons and sulphur hexafluoride, solvent use, waste handling and disposal afforestation and reforestation, and agriculture.156 More so, tying the issues of renewable energy with other measures of climate change mitigation may not effectively yield much result as actions will be directed towards the use of other carbon management technologies to meet the core objectives of the UNFCCC. Thus, States may question the need for the promotion of renewable energy when carbon management technologies can be used to harness fossil fuel exploitation to meet obligations imposed by the UNFCCC by enhancing energy efficiency and clean energy. Obviously, investors are more likely to invest in emissions reduction and energy efficiency projects since the existing industries rely extensively on fossil fuel technology.157 The support for energy efficiency as a measure for climate change mitigation is no doubt higher.158 There should be a body established to oversee the functioning and working of the treaty. The body should be charged with the responsibility of ensuring that the treaty

154 Adrian J. Bradbrook, The Development of a Protocol on Energy Efficiency and Renewable Energy to the United Nations Framework Convention on Climate Change, New Zealand Journal of Environmental Law 5 (2001), 55, 59. 155

Ibid.

156

See UNFCC, CDM, List of Sectoral Scopes, available at: http://cdm.unfccc.int/DOE/scopelst.pdf (accessed on 5 March 2014). 157

See A. K. Akella/R. P. Saini/M. P. Sharma, Social, Economical and Environmental Impacts of Renewable Energy Systems, Renewable Energy 34 (2009), 390, 391. 158 James M. Van Nostrand, Legal Issues in Financing Energy Efficiency: Creative Solutions for Funding the Initial Capital Costs of Investments in Energy Efficiency Measures, George Washington Journal of Energy and Environmental Law 2 (2011), 1, 1.

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is effectively implemented.159 Clear functions of the body and other agencies working for the realisation of the objective of the treaty will need to be spelt out. As stated above, institutions with related goals can be directed to aid the development of the organs of the treaty. A pertinent question will be how the process should be initiated to bring a possible draft to the negotiation table? There will be need for institutions responsible for the draft of such a treaty. As seen from the article, many institutions have played various roles in the promotion of renewable energy. A treaty on renewable energy will need to be coordinated under a unified umbrella representing various groups. Firstly, coordinating the treaty within the UN system may be desirable. This could give it a very wide coverage and States are much more likely to show more commitments to such a treaty. A committee coordinated through the auspices of UNEP drawing members particularly from IRENA and the IEA will be desirable.

IV. Conclusion Whilst international law has recognised the importance of renewable energy, the framework for the promotion of renewable energy can rather be regarded as weak. International law principles and soft law provisions at best create moral obligations on States to promote renewable energy. The role which customary international law will play in encouraging the investment in renewable energy is also not certain. Countries are not under any obligation to implement the provisions of the nonbinding declarations. However, they can choose to do so for international political considerations or to show solidarity to the consensus expressed for the promotion of renewable energy under these declarations. In other words, it can be deemed a moral obligation which countries should comply with on their own volition. Countries can, nevertheless, derive inspiration from them in designing their renewable energy laws to be in tandem with international best practices. Countries are bound to promote their renewable energy resources to meet their commitments under international law. These commitments can be linked to climate change mitigation as well as the commitment to promote renewable energy under the 159

Bradbrook (note 154), 68.

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auspices of IRENA. The international framework for renewable energy is largely uncertain and weak. International trade and investment law further increases the tension between the promotion of renewable energy and trade and investment. The implication of the uncertainties and weaknesses are that countries could be reluctant to promote renewable energy at the national level, so that they do not fall foul of international trade and investment provisions. Whatever the priority in place should be, i.e. environment or trade, States are obliged to uphold commitments they have made in international law.160 It is therefore important that there is a need for a compromise to balance the promotion of renewable energy with the likely interference by other international law instruments. The proliferation of institutions has contributed in the promotion of renewable energy but they are structured in a manner that renewable energy is not the main priority goal. It is hoped that the founding of IRENA should create the desired effect. Whether IRENA will be able to serve as a means of promoting renewable energy at the international level is a question to be determined over the years. The current state of affairs will need to be moved forward internationally for the realisation of a treaty that will enhance international promotion of renewable energy.

160

See Daniel Crosby, Energy Discrimination and International Rules in Hard Times: What’s New This Time Around, and What Can Be Done, Journal of World Energy Law and Business 5 (2012), 325.

Rights of Indigenous Peoples under the Light of Energy Exploitation ALEXANDRA XANTHAKI(

ABSTRACT: This article discusses how energy exploitation impacts on indigenous peoples’ rights. The article argues that the current focus in the international arena and the literature on indigenous rights of participation and consultation and the special attention that the free, prior and informed consent attracts may minimise the importance that States and companies pay to the other rights that indigenous peoples have in these circumstances. After analysing the current standards relating to participation and consultation and looking closely to the free, prior and informed consent, the article uses international human rights law, and especially ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples, as well as jurisprudence coming from the Inter-American and the African system of human rights and the interpretation of United Nations bodies, to identify the specific other obligations that States have vis-à-vis indigenous peoples when they initiate or permit energy projects on or near the lands they live on. KEYWORDS: Indigenous Rights, UN Declaration on the Rights of Indigenous Peoples, Free, Prior and Informed Consent, Participation, Natural Resources, Land Rights, Development, Environment

I. Introduction Although the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)1 has been one of the major breakthroughs of international law in the last decade, there is a well-accepted need to ensure that the newly-recognised standards, as imprinted in the provisions of the Declaration, do not remain on paper only ( 1

Reader in Law, Brunel University, London.

UN Declaration on the Rights of Indigenous Peoples, GA Res. 61/295 of 13 September 2007 (UNDRIP). ‘For a general discussion on indigenous rights in the United Nations,’ see, e.g., Patrick Thornberry, Indigenous Peoples and Human Rights (2002), Alexandra Xanthaki, Indigenous Rights and UN Standards (2007, 2010), and Stephen Allen/Alexandra Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (2011).

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but become part of further international and national legislation, policies and realities. This is particularly important with respect to energy-related projects, as all around the world indigenous peoples are constantly victims of such projects and the promises of economic development they carry with them. Indigenous lands encompass up to 22 % of the world’s land surface.2 A 2013 study claimed that over 30 % of the global production of oil and gas was sourced either on or near indigenous lands.3 In some areas energy production, a very important income-generator for the State, comes almost wholly from energy projects on indigenous lands: for example, in Russia 92 % of gas is extracted from the territory of the Nenets indigenous peoples.4 Unfortunately, such projects have dire effects on the indigenous communities living in the area. From the Chan 75 and Bonyic dams in Panama5 and the oil-licensing in Ecuador,6 the Gibe III dam in Ethiopia,7 the Murum Dam project in Sarawak,8 to the oil projects in Siberia,9 energy exploitation is wreaking havoc on indigenous peoples’ lives. In 2006, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises noted: the extractive sector – oil, gas and mining – utterly dominates this sample of reported abuse with two thirds of the total [and] accounts for most allegations of the worst abuses, up to and including complicity in crimes against humanity. These are typically for acts committed by public and private security forces protecting company assets and property;

2 Permanent Forum on Indigenous Issues, Indigenous People’s Rights and Safeguards in Projects related to Reducing Emissions from Deforestation and Forest Degradation (REDD+), 5 February 2013, UN Doc. E/C.19/2013/7 (2013), para. 9. 3

First Peoples Worldwide, Indigenous Rights Risk Report for the Extractive Industry (U.S.), Preliminary Findings, 28 October 2013, 10, available at: http://www.firstpeoples.org/images/uploads/ R1KReport2.pdf (accessed on 11 February 2014). 4 Permanent Forum on Indigenous Issues, Consolidated Report on Extractive Industries and Their Impact on Indigenous Peoples, 20 February 2013, UN Doc. E/C 19/2013/16 (2013), para. 11. 5

Mary Finley-Brook/Curtis Thomas, Renewable Energy and Human Rights Violations: Illustrative Cases from Indigenous Territories in Panama, Annals of the Association of American Geographers 101 (2011), 863. 6

Jane Monahan, Showdown in the Amazon, New Internationalist 459 (2013), 58, 58–59.

7

Jon Abbink, Dam Controversies: Contested Governance and Developmental Discourse on the Ethiopian Omo River Dam, Social Anthropology 20 (2012), 125–144. 8 Benjamin Sovacool/L. C. Bulan, Behind an Ambitious Megaproject in Asia: The History and Implications of the Bakun Hydroelectric Dam in Borneo, Energy Policy 39 (9) (2011), 4842. 9

Natalia Yakovleva, Oil Pipeline Construction in Eastern Siberia: Implications for Indigenous People, Geoforum 42 (2011), 708.

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large scale corruption; violations of labour rights; and a broad array of abuses in relation to local communities, especially indigenous people.10

International human rights law has recently started paying special attention to human rights issues related to energy exploitation projects. The detrimental effects of energy-related projects on local communities and the social unrest they often carry make human rights considerations of such projects paramount. Furthermore, claims that such projects are necessary to fulfil – a State-centred interpretation of – the right to development are not adequate anymore to quieten the human rights concerns.11 This article argues that to the degree that the energy industry’s effects on indigenous peoples is being discussed, the emphasis has been on the participation and consultation rights that indigenous peoples have, especially on the free, prior and informed consent (FPIC). Notwithstanding the need and urgency of implementing FPIC and the safeguards that such standard offers when implemented correctly, the article maintains that the focus on FPIC through the efforts on understanding and implementing it may put across the idea that procedural rights are the essence of States’ obligations towards indigenous peoples when faced with energy exploitation. The article aims at demonstrating that this is not the case.

II. Consultation and Participation The requirement of consultation with indigenous peoples and their participation in decisions that affect them has been recognised in international law, even though it is often still not respected at the national level. The obligation is included in minority rights and specifically in the right of minorities and indigenous peoples for effective participation, as explicitly stated in the UN Declaration on the Rights of Persons

10 Commission on Human Rights (CHR), Promotion and Protection of Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 22 February 2006, UN Doc E/CN.4/ 2006/97 (2006), para. 25. 11

Report of the Global Consultation on the Right to Development as a Human Right: The Challenge of Implementing the Right to Development in the 1990s, in: United Nations Office of the High Commissioner for Human Rights (ed.), Realising the Right to Development: Essays in Commemoration of 25 Years of the United Nations Declaration on the Right to Development (2013), 49, 49–50, available at: http://www.ohchr.org/Documents/Publications/RightDevelopmentInteractive_EN.pdf (accessed on 20 February 2014).

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belonging to Ethnic or National, Religious and Linguistic Minorities,12 viewed as an interpretative tool of Article 27 International Covenant on Civil and Political Rights (ICCPR).13 Even ILO Convention No. 107,14 adopted as far back as 1957 and highly criticised for its integrationist attitude towards indigenous peoples, requires in Article 5 that governments seek the collaboration of indigenous populations and their representatives. Although the text does not link consultation with development projects per se, the International Labour Organisation (ILO) supervisory body, the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has done this by insisting on the “involvement of indigenous leadership before development projects affecting their situation have been undertaken.”15 The CEACR has elaborated on the scope of Article 5 (a) noting that consultation with indigenous peoples should not be carried out “only at [the] inception” of the project in question;16 that “tribals should be made partners in the large development projects,”17 and has requested the formal participation of indigenous representatives in decision-making bodies.18 Participation in non-decision-making bodies was found not to satisfy Article 5 ILO Convention No. 107. Still, the Convention, which is still in force in seventeen States, does not require indigenous consent before the start of a development project.

12 UN Declaration on the Rights of Persons belonging to Ethnic or National, Religious and Linguistic Minorities, GA Res. 47/135 of 18 December 1992. 13 International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR). 14 ILO Convention (No. 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, UNTS 328, 247. 15 ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning Convention No. 107, Indigenous and Tribal Populations, Bangladesh, 2005, para. 11; and also Individual Observation concerning Convention No. 107, Indigenous and Tribal Populations, Bangladesh, 2002. 16

Id., Report of the Committee of Experts on the Application of Conventions and Recommendations, Individual Direct Request concerning Convention No. 107, Indigenous and Tribal Populations, Brazil, 1990, para. 13. 17 Id., Report of the Committee of Experts on the Application of Conventions and Recommendations, Individual Observation concerning Convention No. 107, Indigenous and Tribal Populations, India, 2003, para. 11. 18 Id., Report of the Committee of Experts on the Application of Conventions and Recommendations, Individual Direct Request Concerning Convention 107 Indigenous and Tribal Populations, Panama, 1991, para. 7.

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ILO Convention No. 16919 is stronger on obligations regarding development projects. Article 6, arguably the corner-stone of the Convention,20 recognises the right of indigenous peoples to be consulted “through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly” and to freely participate at all levels of decision-making when policies and programmes affect them. Article 6 (2) specifically requires that the consultations “shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures” (emphasis added). For energy related projects, this provision must be read together with Article 7 which recognises in paragraph 1 the right to indigenous peoples to “participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.” Article 7 (1) also recognises the right of indigenous peoples “to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.” Relevant is also Article 15 ILO Convention No. 169 which recognises the rights of indigenous peoples “to participate in the use, management and conservation” of the natural resources in their lands. Governments should consult with indigenous peoples “with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.” In case of relocation, the Convention goes as far as requiring indigenous consent, but even then it includes clauses and exceptions (Article 16). The CEACR has noted that consultations should be conducted with the objective to find “appropriate solutions in an atmosphere of mutual respect and full participation.”21 Unfortunately, very often decisions regarding development projects are taken cen19 ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, UNTS 1650, 383. 20 “The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based.”, Confederación Ecuatoriana de Organizaciones Sindicales Libres, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), para. 31. 21 ILO Governing Body, Second Supplementary Report: Representation Alleging Non-Observance by Ecuador on the Indigenous and Tribal Peoples Convention, November 2001, GB.282/14/2, para. 36.

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trally and not at the local level where indigenous peoples are better represented.22 Still, one should not easily put aside the legally binding obligations that the 22 States parties to the Convention have with respect to development projects. The generally accepted principle that indigenous peoples should be consulted “as to any decision affecting them” is by many, including the UN Special Rapporteur on Indigenous Issues, viewed as a norm of customary international law.23 International environmental law has also been increasingly vocal on the need for such consultations to take place before any such project goes ahead.24 Principle 22 Rio Declaration on Environment and Development (Rio Declaration)25 asks States to “recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.” The World Bank Operational Directive 4.1026 adopted in July 2005 recognises the importance of the indigenous lands for their cultures and identities and stipulates that the borrower, before embarking into a project, must engage in a process of free, prior, and informed consultation with indigenous peoples that aims at “broad support for the project.”27 Barelli notes that although such a requirement could be quite stringent as the project must secure wide support among the affected community,28 it is diluted by the use of

22 Rune S. Fjellheim, Arctic Oil and Gas: Corporate Social Responsibility, Gáldu Čála Journal of Indigenous Peoples Rights 4 (2006), 8, 11. 23

See James S. Anaya, Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources, Arizona Journal of International and Comparative Law 22 (2005), 8, 8. 24 Mauro Barelli, Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead, International Journal of Human Rights 16 (2012), 1, 3. 25 Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 12 August 1992, UN Doc. A/CONF.151/26 (Vol. I) (1992), Annex 1. 26 World Bank, Operational Policy 4.10 on Indigenous Peoples (July 2005), available at: http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANU AL/0,,contentMDK:20553653~menuPK:4564185~pagePK:64709096~piPK:64709108~theSiteP K:502184,00.html (accessed on 20 February 2014). 27 World Bank Group Management Response, Striking a Better Balance – The World Bank and Extractive Industries: The Final Report of the Extractive Industries Review, 17 September 2004, available at: http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2004/ 09/21/000160016_20040921111523/Rendered/PDF/300010GLB.pdf (accessed on 20 February 2014). 28

World Bank (note 26), para. 11.

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terms such as ‘consultation’ and ‘support’ rather than ‘consent.’29 The World Bank is currently reviewing its policy towards indigenous peoples.

III. Free Prior and Informed Consent Rights to participation and consultation do not go far enough to protect indigenous peoples in situations of energy exploitation. Cases such as Bolivia demonstrate that the requirements of participation and consultation are not adequate: Even though the participation of indigenous peoples is promoted, permits for energy production are judged on the basis of referendums at the municipal and departmental levels where the voices of the indigenous communities, who are much more affected than other local populations, are obscured by the majority views.30

A. UNDRIP

It was the elaboration and adoption of the UN Declaration on the Rights of Indigenous Peoples that has pushed for a shift from the principles of consultation and participation to that of the free, prior and informed consent of indigenous peoples in development projects.31 In 1997 the Committee on the Elimination of Racial Discrimination (CERD) had already stated that “no decisions directly relating to [indigenous peoples’] rights and interests [should be] taken without their informed consent.”32 During the discussions of the UNDRIP, it became obvious that FPIC must be seen under the light of the indigenous right to self-determination, explicitly recognised in Article 3 UNDRIP. FPIC is included in seven articles of the Declaration, including Article 19 which recognises a collective right to giving or withholding 29

Barelli (note 24), 5.

30

Secretariat of the Convention on Biological Diversity, Recognising and Supporting Territories and Areas Conserved by Indigenous Peoples and Local Communities, Global Overview and National Case Studies, CBD Technical Series No. 64 (2012), 30, available at: http://www.cbd.int/doc/publications/cbdts-64-en.pdf (accessed on 2 March 2014). 31 Cathal Doyle/Jill Cariño, Making Free, Prior and Informed Consent a Reality: Indigenous Peoples and the Extractive Sector, May 2013, 7, available at: http://www.piplinks.org/system/files/Consortium+ FPIC+report+-+May+2103+-+web+version.pdf (accessed on 20 February 2014). 32

Committee on the Elimination of Racial Discrimination (CERD), General Recommendation No. 23 on Indigenous Peoples, GAOR, 52nd Sess., Suppl. 18, 122, para. 4 (d).

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consent by the indigenous peoples, according to the rules and procedures determined by the group itself. According to Article 27 UNDRIP, States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used.

The most focussed provision of the UNDRIP regarding energy projects comes from Article 32 (2) requiring States to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.33

It is noteworthy that the text does not recognise explicitly a right to free, prior and informed consent. Consent, however, must be free, hence given without any form of coercion or undue influence; prior, so given before the adoption or implementation of the relevant measure; and informed, so the community concerned is effectively aware of the possible effects that the measure to be taken is suitable of producing with respect to its interests. Indigenous communities must have all information that is necessary to arrive at a position on the project, made available in a form and language they can understand before they give their consent.34

B. Human Rights Bodies

UN bodies have been instrumental in promoting the implementation of FPIC and clarifying the scope of the standard. In 2009, the Human Rights Committee noted in Angela Poma Poma v. Peru,35 which involved the impact on water beneath indigenous peoples’ lands, that “participation in decision-making process must be effective, which 33

Art. 32 (2) UNDRIP (emphasis added).

34

Barelli (note 24), 2.

35

Human Rights Committee, Communication No. 1457/2006, Ángela Poma Poma v. Peru, 24 April 2006, UN Doc. CCPR/C/95/D/1457/2006 (2006).

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requires not mere consultation but the free, prior and informed consent of the members of the community.”36 CERD has also repeatedly emphasized the importance of participation of indigenous peoples’ freely chosen representatives in negotiations37 and has asked States to “seek the free informed consent of indigenous communities and give primary consideration to their special needs prior to granting licences to private companies for economic activities on territories traditionally occupied or used by those communities.”38 In the context of its Early Warning Urgent Action procedure CERD has examined cases in Brazil, Canada, the Philippines, Peru and India on the States’ failure to obtain the FPIC of the affected indigenous peoples.39 The Committee on Economic, Social and Cultural Rights also affirmed in 2009 the duty of States “to respect the principle of free, prior and informed consent of indigenous peoples in all matters that affect them.”40 The Committee has repeated that the right of indigenous peoples to free, prior and informed consent should be respected before any project that affects indigenous peoples is implemented and that legislation must be enacted to ensure the respect of this indigenous right.41 Further clarification of the contours of FPIC is currently being generated by the various UN bodies concerned with indigenous peoples. Of particular importance is how strong the requirement for consent is in energy related projects. Being squashed between States pushing for a negative answer and indigenous activists pushing for a positive answer, the former Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous Peoples, Rodolfo Stavenhagen, has taken the second option and has referred to the “right to free prior informed consent by indigenous peoples” which includes their ‘right to say no’ describing it as being of ‘crucial con36

Ibid., para. 7.6.

37

Office of the High Commissioner for Human Rights (OHCHR), Letter to Nepal, 13 March 2009, available at: http://www2.ohchr.org/english/bodies/cerd/docs/early_warning/Nepal130309.pdf (accessed on 21 February 2014). See CERD, Concluding Observations on the Russian Federation, 20 August 2008, UN Doc. CERD/C/RUS/CO/19 (2008). 38

Ibid.

39

CERD, Summary Record of the Fist Part (Public) of the 1901st Meeting, 26 September 2008, UN Doc. CERD/C/SR.1901 (2008). 40

Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 21 on the Right of Everyone to Take Part in Cultural Life, 21 December 2012, UN Doc. E/C.12/GC/21 (2009), paras. 36–37. 41

Id., Concluding Observations on Colombia, 21 May 2010, UN Doc. E/C.12/COL/CO/5 (2010); id., Concluding Observations on New Zealand, 30 May 2012, UN Doc. E/C.12/NZL/CO/3 (2012).

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cern’ in relation to large-scale or major development projects and ‘essential’ for the protection of their human rights.42 His successor, James Anaya, has also adopted this line explaining it further. Anaya has adopted a nuanced approach emphasising that the strength of the requirement for FPIC would vary according to “the circumstances and the indigenous interests involved.”43 He noted that a “direct impact on indigenous peoples’ lives or territories establishes a strong presumption that the proposed measure should not go forward without indigenous peoples’ consent,” and that “in certain contexts, that presumption may harden into a prohibition of the measure or project in the absence of indigenous consent.”44 The Special Rapporteur has recognised the development of an international norm requiring the consent of indigenous peoples when their property rights are impacted by natural resource extraction.45 He has confirmed that the general rule [is] that extractive activities should not take place within the territories of indigenous peoples without their free, prior and informed consent. Indigenous peoples’ territories include lands that are in some form titled or reserved to them by the State, lands that they traditionally own or possess under customary tenure (whether officially titled or not), or other areas that are of cultural or religious significance to them or in which they traditionally have access to resources that are important to their physical well-being or cultural practices. Indigenous consent may also be required when extractive activities otherwise affect indigenous peoples, depending upon the nature of and potential impacts of the activities on the exercise of their rights. In all instances of proposed extractive projects that might affect indigenous peoples, consultations with them should take place and consent should at least be sought, even if consent is not strictly required.46 42 CHR, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, 21 January 2003, UN Doc. E/CN.4/2003/90 (2003), paras. 13 and 66. He points out that FPIC is necessary as too many major developments do not respect the consultation and participation criteria that are laid out in ILO Convention No. 169. 43 Human Rights Council (HRC), Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, Report of the Special Rapporteur, 15 July 2009, UN Doc. A/HRC/12/34 (2009), para. 47. 44

Ibid.

45

The Special Rapporteur qualified this requirement by adding that FPIC may not be essential for projects that do not have these potential impacts as long as this was in line with the requirements of Arts. 46 and 32 (3) UNDRIP, James S. Anaya, Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction, Arizona Journal of International and Comparitive Law 22 (1) (2005), 7, 8. HRC, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Rigth to Development, Report of the UN Special Rapporteur, 11 August 2008, UN Doc. A/HRC/9/9/Add. 1 (2008). 46

HRC, Report of the Special Rapporteur on the Rights of Indigenous Peoples, Extractive Industries and Indigenous Peoples, 1 July 2013, UN Doc. A/HRC/24/41 (2013), para. 27.

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In other words, the consent of indigenous peoples is required when energy projects are situated on their own lands; or when they are near their lands and indigenous communities are seriously affected by them. The UN Expert Mechanism on the Rights of Indigenous Peoples recommended in 2008 that the 2001 Durban Declaration and Programme of Action47 be revised to “acknowledge that both the right to self-determination and the principle of free, prior and informed consent are now universally recognized through the adoption of the Declaration.”48 The Special Rapporteur on the Right to Food,49 the Special Rapporteur on Adequate Housing50 and the Independent Expert on the Rights of Minorities51 have all referred to the FPIC of indigenous peoples. Clarification on the specifics of the FPIC standard has also come from the InterAmerican system of human rights protection. The Inter-American Commission on Human Rights has confirmed the need for consultation in cases of natural resource extraction since 2001,52 but only in 2007 the Court held in Saramaka People v. Suriname53 that in the case of large scale development or investment project that would have an impact on indigenous communities, the State “has the duty, not only to consult with the [indigenous group], but to obtain their free, prior and informed

47 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban Declaration and Programme of Action, 8 September 2001, UN Doc. A/CONF.189/12 (2001), 5 and 26. 48

HRC, Report of the Expert Mechanism on the Rights of Indigenous Peoples, 8 January 2009, UN Doc. A/HRC/10/56 (2008), Proposal No. 2, para. 4. See also Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, 17 February 2005, UN Doc. E/C.19/2005/3 (2005). 49 HRC, Report of the Special Rapporteur on the Right to Food, 21 July 2009, UN Doc. A/HRC/12/31 (2009), para. 21 (j). 50 HRC, Report of the Special Rapporteur on Adequate Housing, 14 March 2006, UN Doc. E/CN.4/2006/41 (2006), para. 56 (e). 51 UN Independent Expert on Minority Issues, Statement on the conclusion of the official visit to Colombia, 1–12 February 2010, para. V, available at: http://www.ohchr.org/EN/NewsEvents/Pages/ DisplayNews.aspx?NewsID=9821&LangID=E (accessed on 18 March 2014). 52

Inter-American Commission of Human Rights, Marie and Carrie Dann v. United States Case 11.140, Report 75/02 (2002), para. 130; Inter-American Court of Human Rights (IACtHR), Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001, Merits, Reparations and Costs, Series C No. 79, para. 25. 53

IACtHR, Saramaka People v. Suriname, Judgment of 28 November 2007, Preliminary Objections, Merits, Reparations, and Costs, Series C No. 172.

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consent, according to their customs and traditions.”54 The Court was asked to decide on whether logging and mining concessions awarded by the State to third parties on indigenous lands violated indigenous rights and affirmed that in some cases the scope of Article 21 American Convention on Human Rights (ACHR)55 may comprise the exploitation of indigenous sub-soil resources.56 The 2012 case of Kichwa v. Ecuador does not refer to the right to free, prior and informed consent as such, but discusses instead the right to consultation “with the aim of reaching an agreement or obtaining consent.”57 The Court held that “the State did not conduct an appropriate and effective process that would guarantee the right to consultation of the Sarayaku People before undertaking or authorizing the program of exploration or exploitation of resources on their territory.”58 The more nuanced discussion of “good faith and the aim of reaching agreement”59 may be explained by the fact that Ecuador is party to the ILO Convention No. 169, which as seen above focuses on the right to consultation. The African Commission on Human and Peoples Rights recognised in the 2010 Endorois case that the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions [in relation to] any development or investment projects that would have a major impact within [their] territory.60

54

Ibid., 40, para. 134.

55

American Convention on Human Rights, 22 November 1969, OAS Treaty Series No. 36 (ACHR). 56

IACtHR, Saramaka People v. Suriname (note 53), para. 126.

57

Id., Pueblo Indigena Kichwa de Sarayaku v. Ecuador, Judgment of 27 June 2012, Merits and Reparations, Series C No. 245, para. 185. 58

Ibid., para. 211.

59

Ibid., para. 185.

60

African Commission on Human and Peoples’ Rights, Communication 276/03, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council/Kenya, Decision of 25 November 2009, para. 291, available at: http://www.achpr.org/ files/sessions/46th/comunications/276.03/achpr46_276_03_eng.pdf (accessed on 22 February 2014).

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C. Development Actors

In addition to human rights bodies, all multilateral development banks with the exception of the World Bank, which is currently reflecting on its policy, and the African Development Bank have adopted the principle of FPIC.61 The International Finance Corporation, the private sector branch of the World Bank, also adopted the principle in 2011.62 Moreover, documents such as the Rio Declaration and Agenda 2163 are currently being re-interpreted to include the need for consent and support of indigenous peoples, while the Akwé: Kon Guidelines64 for the implementation of Article 8 (j) Convention on Biological Diversity65 also recognise the importance of consent for the protection of traditional knowledge of indigenous peoples. Reviews on FPIC have also been issued by other bodies, notably the Extractive Industry Review66 and the Report of the World Commission on Dams,67 and by NGOs.68 Several States have changed their policies requiring now consultations with indigenous peoples,69 and several mining companies have made new policies endorsing

61 Permanent Forum on Indigenous Issues, Review of World Bank Operational Policies, Note by the Secretariat, 20 February 2003, UN Doc. E/C.19/2013/15 (2013), para. 44. 62

Ibid.

63

Agenda 21, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (1992), also available at: http://sustainabledevelopment.un.org/content/ documents/Agenda21.pdf (accessed on 20 February 2014). 64 Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous or Local Communities, 2004, para. 60, available at: https://www. cbd.int/doc/publications/akwe-brochure-en.pdf (accessed on 18 March 2014). 65

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79.

66

Extractive Industries Review, Striking a Better Balance: The World Bank Group and Extractive Industries (Vol. I) (December 2003), available at: http://www-wds.worldbank.org/external/default/ WDSContentServer/WDSP/IB/2014/02/20/000442464_20140220114614/Rendered/PDF/8428 60v10WP0St00Box382152B00PUBLIC0.pdf (accessed on 13 March 2014). 67

World Commission on Dams, Dams and Development: A New Framework for Decision-Making: The Report of the World Commission on Dams (November 2000), available at: http://www. internationalrivers.org/files/attached-files/world_commission_on_dams_final_report.pdf (accessed on 22 February 2014). 68 69

For example Doyle/Cariño (note 31), 7.

HRC, Report of the Expert Mechanism on the Rights of Indigenous Peoples, 30 June 2013, UN Doc. A/HRC/24/51 (2013), 9–11.

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FPIC70 and/or have reached agreements with indigenous peoples on development projects.71

IV. Substantive Indigenous Rights With such spotlight currently on FPIC, one would be forgiven to believe that the obligations of States end with its correct implementation. And one cannot ignore that if applied correctly, FPIC is indeed a solid guarantee of indigenous peoples’ rights, as they themselves give their informed consent at every stage of the energy project to the restrictions of their rights that such projects entail.72 If they agree with such restrictions of their rights, one has to respect their wishes. However, a deeper look at the reality of energy projects reveals that the FPIC on its own is an insufficient guarantee of indigenous rights. First of all, very often FPIC is not applied in practice. The recent report by First Peoples Worldwide reveals that of 52 large US-based extractive companies, only one had an explicit policy of respecting indigenous FPIC, while only four had company-wide indigenous policies.73 Even when it is applied, very often the processes put in place to satisfy its requirements are superficial at best and dubious at worse. The energy private investment sector is very powerful and the imbalance of power between the industry and indigenous communities often results in the agreement of indigenous peoples being obtained through manipulation, intimidation, repression and even reprisals. Reports have surfaced of companies getting the indigenous communities’ agreement for large energy projects with the promise of sums of money which are much less than the rightful compensation; or by dividing the community and focussing on the consent of the part that agrees with their project; by reminding indigenous communities of the industry’s influence in the political sphere or the weak position of indigenous peoples in the 70 International Council on Mining and Metals, Indigenous Peoples and Mining: Position Statement, May 2013, available at: http://www.icmm.com/document/5433 (accessed on 6 April 2014). See also First Peoples Worldwide (note 3), 7. 71

HRC, Report of the Expert Mechanism on the Rights of Indigenous Peoples, 17 August 2011, UN Doc. A/HRC/18/42 (2011), para. 64. 72

Cathal Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free, Prior and Informed Consent (forthcoming 2014). See also Doyle/Cariño (note 31), 69–79. 73

First Peoples Worldwide (note 3), 4.

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social ladder; even by getting their signatures by tricking them into signing. There has been ample evidence of such practices. For example, a 2013 study by the Permanent Forum on Indigenous Issues reported how a Canadian company got the agreement of indigenous peoples by intimidating them and by supporting the creation of a union of farmers that voted in favour of its energy project.74 Similarly, the judgment in Kichwa Indigenous Peoples of Sarayaku v Ecuador explains how the private oil company tried to get the indigenous community’s formal support by giving money to individuals, promising health care in exchange of agreeing to the continuation of the oil exploration project, forming support groups and offering jobs and gifts to indigenous individuals.75 The Special Rapporteur has also discussed such tactics76 and the UN bodies have expressed their concerns: In 2008, the UN Committee on Economic, Social and Cultural Rights highlighted that in Panama consultations with indigenous peoples were left “in the hands of the private firms carrying out such projects” and that the agreements reached were not in conformity with the international standards and cited as an example the Chan 75 hydroelectric project.77 The Committee recommended ‘a careful examination’ of these agreements to check whether they comply with international standards and, if this is not the case, to “seek mechanisms in order to negotiate appropriate agreements for those communities.”78 The Committee on the Elimination of Racial Discrimination has expressed its “deep concern at the growing tensions between outsiders and indigenous peoples over the exploitation of natural resources, especially mines”79 and has criticised draft legislation that falls below international law standards.80

74 Permanent Forum on Indigenous Issues, Study on the extractive industry in Mexico and the situation of indigenous peoples in the territories in which the industries are located, 14 February 2013, UN Doc. E/C.19/2013/11 (2013), 11. 75

IACtHR, Kichwa v. Ecuador (note 57), paras. 73–74.

76

HRC (note 46), 7–8.

77

CERD, Concluding Observations on Panama, 19 May 2010, UN Doc. CERD/C/PAN/CO/15-20 (2010), paras. 13–14. 78

Ibid., para. 16.

79

Id., Concluding Observations on Mexico, 4 April 2012, UN Doc. CERD/C/MEX/CO/16-17 (2012), para. 17. 80

Id., Concluding Observations on Guatemala, 15 May 2006, UN Doc. CERD/C/GTM/CO/11 (2006), para. 19.

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In addition, FPIC is not yet an obligation included expressly in a legally binding instrument so far, so many States can avoid it. Even more so, at times, it is not an obligation that is required, because the project’s effects on indigenous peoples do not pass the threshold needed for FPIC, either because the project is not on indigenous lands or because the project does not affect mainly indigenous rights. Finally, even when the standard of FPIC is applied correctly and in principle does cover indigenous rights, both FPIC and indigenous rights should be looked at individually, as it is not axiomatic that the rightful application of FPIC will give adequate protection to all indigenous rights. Within this context, it is important to remember that the right to FPIC is only one of the obligations that States and industries have when it comes to energy projects. In addition to procedural guarantees and besides them, indigenous peoples also have other rights, substantive ones, regarding the lands they own and occupy. Doyle notes that FPIC should not be decoupled from rights to resources, development and selfdetermination, as otherwise they could potentially undermine those very rights.81 This line of thought was followed in the Saramaka case, where the Court looked at the State’s obligations beyond the principle of FPIC. The Court held that a State which intends to launch or authorise a project affecting the natural resources found within indigenous ancestral lands needs to ensure both the effective participation of the members of the community in the project and also that indigenous peoples have a reasonable share of the benefits; the State performs or supervises prior environmental and social impact assessments; and implements adequate safeguards and mechanisms to minimise the effect of the project to indigenous lands and natural resources.82 In Kichwa v. Ecuador, the Court’s judgment also implies this duality of obligations that includes consultation and the protection of other indigenous rights: According to the judgment, the State must “guarantee these rights to consultation and participation at all stages of the planning and implementation of a project that may affect the territory on which an indigenous or tribal community is settled, or other rights essential to their survival as a people.”83 81 Doyle (note 72) and Doyle/Carino (note 31), 11, 17, 22, 25, 35, 49 and 70, where FPIC is linked to rights to resources. 82

IACtHR, Saramaka People v. Suriname (note 53), para. 158.

83

Id., Kichwa v. Ecuador (note 57), para. 167.

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The Special Rapporteur on the situation and rights of indigenous peoples has also noted the importance of other human rights safeguards in addition to the properly implemented consent: it must be emphasized that the consent is not a free-standing device of legitimation. The principle of free, prior and informed consent, arising as it does within a human rights framework, does not contemplate consent as simply a yes to a predetermined decision, or as a means to validate a deal that disadvantages affected indigenous peoples. When consent is given, not just freely and on an informed basis, but also on just terms that are protective of indigenous peoples rights, it will fulfil its human rights safeguard role.84

However, the Special Rapporteur accepts that “when indigenous peoples freely give consent to extractive projects under terms that are aimed to be protective of their rights, there can be a presumption that any limitation on the exercise of rights is permissible and that rights are not being infringed.”85 The analysis above would bring doubts in accepting such a presumption. An emphasis on the procedural requirement of FPIC of indigenous peoples may give the wrong impression that the State’s obligations stop with the agreement of indigenous peoples to the energy project. Also, the agreement of indigenous peoples does not waive the human rights they have as a whole; hence, the monitoring of their human rights continues to be as relevant as ever. In addition to rights of consultation and participation, including their FPIC, indigenous peoples also have the following substantive rights.

A. Land Rights

International law has recently clarified the need to protect indigenous land rights. The Inter-American Court of Human Rights (IACtHR) has firmly established in the Awas Tingni case,86 Yakye Axa v. Paraguay,87 Sawhoyamaxa v. Paraguay88 and

84

HRC (note 46), para. 30.

85

Ibid., para. 33.

86

IACtHR, Tingni Community v. Nicaragua (note 52), para. 149.

87

Id., Yakye Axa Indiginous Community v. Paraquay, Merits, Reparations and Costs, Judgment of 17 June 2005, Series C No. 125, paras. 124, 137. 88

Id., Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment of 29 March 2006, Series C No. 146, paras. 118–121.

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Saramaka People v. Suriname89 that the right of indigenous peoples to collectively own their ancestral lands stems from Article 21 ACHR interpreted in the light of their special spiritual relationship to their lands. Article 25 UNDRIP also recognises the special relationship of indigenous peoples with their land, while Article 26 UNDRIP recognises their right to lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired in the past; and their right to own, use, develop and control the lands, territories and resources they possess currently. States are under the obligation to “give legal recognition and protection to these lands, territories and resources” and this should be done “with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.”90 ILO Convention No. 169 also recognises the special relationship of indigenous peoples with their lands and “the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy.”91 The Convention also asks for measures “to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.”92 The jurisprudence of the African Commission on Human and Peoples’ Rights,93 statements in support of indigenous land rights from the Human Rights Committee,94 the CERD,95 UN experts,96 UN Special Rapporteurs on indige-

89

Id., Saramaka People v. Suriname (note 53), paras. 87–96.

90

Art. 26 (3) UNDRIP.

91

Art. 14 (1) ILO Convention No. 169.

92

Ibid.

93

See, e.g., African Commission on Human and Peoples’ Rights, Endorois (note 60).

94

See especially Human Rights Committee, Communication No. 167/1984, Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, 26 March 1990, UN Doc. CCPR/C/38/D/167/1984 (1990); see also id., Concluding Observations on the United States of America, 15 September 2006, UN Doc. CCPR/C/USA/CO/3 (2006). 95

See CERD (note 32); see also CERD, Decision 1 (53) on Australia, GAOR, 53rd Sess., Suppl. 18, 18; id., Concluding Observations on Brazil, 28 April 2004, UN Doc. CERD/C/64/CO/2 (2004), paras. 15–16; id., Decision 1 (66): New Zealand Foreshore and Seabed Act 2004, 11 March 2005, UN Doc. CERD/C/66/NZL/Dec.1 (2005); id., Decision 1 (69) on Suriname, 18 August 2006, UN Doc. CERD/C/Dec/Sur/3 (2006). 96 For example, see CHR, Report on the Expert Seminar on Indigenous Peoples’ Permanent Sovereignty over Natural Resources and Their Relationship to Land, 5 May 2006, UN Doc. E/CN.4/ Sub.2/AC.4/2006/3 (2006).

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nous peoples’ related issues,97 opinions of the ILO adjudicatory bodies and, in many cases, domestic law have all pushed the International Law Association to conclude that the rights of indigenous peoples to their lands “can be reasonably considered as being part of customary international law, as evidenced by extensive and consistent state practice as well as opinio juris, especially in Latin America, but also in former AngloCommonwealth colonies.”98 In protecting indigenous land rights in cases of extractive projects, international jurisprudence has set up the following three obligations on the part of the State.

1. Impact Assessments Human rights impact assessments (HRIAs) are a rather new issue in human rights law.99 The UN Special Rapporteur on the Right to Food noted in 2010: “For over ten years, the human rights treaty bodies and independent experts have called on governments to assess the impact of trade and investment agreements on the enjoyment of human rights, but without success.”100 Impact assessments are of particular importance for indigenous peoples, as their connection to the land puts them in a position even more vulnerable than the rest of the population with regard to energy projects. Impact assessments must be comprehensive, be published before the decision to start with the energy project is taken,101 include a gender perspective as sometimes the effects of energy projects are different for indigenous women, and must include empirical data, maybe in the form of indica97

E.g. CHR, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Mission to Guatemala, 24 February 2003, UN Doc. E/CN.4/2003/ 90/Add.2 (2003). 98

International Law Association, The Hague Conference (2010), Rights of Indigenous Peoples, Interim Report, 23, available via: http://www.ila-hq.org/en/committees/index.cfm/cid/1024 (accessed on 24 February 2010). 99

Gauthier de Beco, Human Rights Impact Assessments, Netherlands Quarterly of Human Rights 27 (2009), 139. 100

Human Rights Impact Assessments for Trade and Investment Agreements, Report of the Expert Seminar, 23–24 June 2010, 2, available at: http://www2.ohchr.org/english/issues/food/docs/report_ hria-seminar_2010.pdf (accessed on 24 February 2014). 101

Ibid., 6: “under the WTO’s Doha Agenda, for example, the World Bank, universities and NGOs carried out assessments of the likely outcome of the negotiations” (emphasis in the original).

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tors, to substantiate their conclusions. Human rights assessments have been found to have added value to social impact assessments, as they have a clear normative framework and are more appropriate to address indigenous concerns than environmental impact assessments, since the latter may not address directly all aspects of indigenous rights to be affected by the project in question.102 The UN Guiding Principles for Business and Human Rights103 have stressed the importance of impact assessments and in 2012–2013, the European Commission, the Organisation for Economic Co-operation and Development and the Food and Agriculture Organisation have incorporated the assessment of human rights impacts into their project and loan requirements. This has increased the demand for clear guidance on how HRIAs are to be conducted. Impact assessments have been advanced by the World Bank in its Policy on Indigenous Peoples.104 It requires a full environmental impact assessment in order to identify potentially adverse impacts of energy projects to the indigenous communities affected by the projects. This also includes a social assessment, paying ‘particular attention’ to indigenous land rights that may be affected (beyond mere ownership) and ensuring that there will be social and economic benefits for the communities involved.

2. Redress The law to a remedy is part of international law.105 Reparation for violations of indigenous peoples’ rights has been a controversial issue during the elaboration of the UNDRIP. Yet, rights to redress are included both in ILO Convention No. 169 and in the UNDRIP. Article 8 (2) UNDRIP affirms the right of indigenous peoples to 102

Ibid.

103

OHCHR, UN Guiding Principles for Business and Human Rights, 2011, available at: http://www. ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (accessed on 19 March 2014). 104 105

World Bank (note 26).

Among others, it is recognised in Art. 8 Universal Declaration on Human Rights, GA Res. 217 A (III) of 10 December 1948; Arts. 29 (3), 9 (5) and 14 (6) ICCPR; Art. 6 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNTS 660, 195; Art. 2 (c) Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, UNTS 1249, 13. Dinah Shelton, Remedies in International Human Rights Law (2nd ed. 2005). See also 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, GA Res. 60/147 of 16 December 2005.

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redress for a number of practices threatening their cultural and ethnic identity and integrity. ‘Just and fair compensation’ is also envisaged in cases of relocation and removal (Article 10), while restitution and compensation are envisaged when indigenous peoples are deprived of their means of subsistence (Article 20). The most important provision dealing with reparation included in the UNDRIP is undoubtedly Article 28, which recognises the right of indigenous people to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

The IACtHR has recognised the rights of indigenous peoples to redress in Saramaka and other cases,106 while the African Commission on Peoples and Human Rights recognised the indigenous right to redress in the Endorois case. At the national level the decision by the Supreme Court of Appeal of South Africa in Richtersveld Community and Others has been of importance, where the Court held that while mineral rights were frequently reserved to States and in lands owned by or reserved to indigenous peoples, where these lands are appropriated for government use, adequate compensation should be given to the owners, and should include other equally suitable land.107

3. Benefit Sharing While the right of indigenous peoples to redress is quite well-accepted, this is not the case for the right of indigenous peoples to participation in economic benefits generated by the use of their lands and resources. Benefit sharing, for example, is limited to ‘wherever possible’ in Article 15 (2) ILO Convention No. 169, and it is not even mentioned in the UNDRIP.108 Nor does any clear indication come from State practice or, with the exception of the Inter-American case-law, from international 106 IACtHR, Saramaka People v. Suriname (note 53), para. 158. See also id., Sawhoyamaxa Indigenous Community v. Paraguay (note 88), para. 128. 107

Supreme Court of Appeal of South Africa, Case 488/2001, Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa, Judgment of 24 March 2003, para. 89. 108 Enzamaria Tramontana, The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources, International Journal on Minority and Group Rights 17 (2010), 241, 247.

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jurisprudence. Benefit sharing can take several forms. For example, in Australia, “[f]our main ways in which mining revenues are distributed to indigenous communities have been identified: individual payments to individuals (in cash or in kind); provision of services; investment in indigenous businesses; and investment in longterm capital funds.”109

B. Prohibition of Forcible Removal

An important right that runs through the issue of free, prior and informed consent and indigenous land rights is the prohibition of forcible removal or relocation of indigenous peoples from their lands in order to allow energy projects. Unfortunately such relocation is still relatively common in such cases,110 even though Article 10 UNDRIP puts a blanket prohibition on such removal without the FPIC of indigenous peoples and agreement on just and fair compensation. The provision goes further than the equivalent provision included in Article 16 (2) ILO Convention No. 169 which allows relocation in exceptional circumstances and “only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide for the effective representation of the people concerned.”111 Emerging international law is gradually making its impact on national legislation.112 States tend to justify relocations of indigenous peoples on the basis of the development of the economic life of the State and to point out that the freedom of movement and residence allows for restrictions “which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the 109

Permanent Forum on Indigenous Issues, Study on the impact of the mining boom on indigenous communities in Australia, 5 March 2013, UN Doc. E/C.19/2013/20 (2013), para. 11. 110

Id., Consolidate report on extractive industries and their impact on indigenous peoples, Note by the Secretariat, 20 February 2013, UN Doc. E/CN.19/2013/16 (2013), para. 13. See also CHR, Transnational Investments and Operations on the Lands of Indigenous Peoples, 15 June 1994, UN Doc. E/CN.4/Sub.2/1994/40 (1994). 111 112

See in particular CERD (note 32).

See, e.g., Art. 231 (5) Consitution of the Federal Republic of Brazil (Constituição da República Federativa do Brasil), 5 October 1988, Official Gazette of Brasil No. 191-A and the Law of Indigenous Rights and Culture of the Mexican State of Chiapas (Ley de Derechos y Cultura Indígenas del Estado de Chiapas), Official Gazette of Mexico of 29 July 1999.

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rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant” (Article 12 (3) ICCPR). However, one has to keep in mind that limitation clauses of human rights must be interpreted restrictively; therefore, the mere development of the economic life of the State does not constitute an adequate reason to bring such negative changes to a group’s life.113 The Guiding Principles on Internal Displacement underline that displacement is arbitrary “[i]n cases of largescale development projects, which are not justified by compelling and overriding public interests;”114 the same document adds that State authorities must ensure that all other feasible alternatives are explored and displacement shall last no longer than required and that the free and informed consent of those displaced is sought. Finally, the Guiding Principles include a particular obligation to protect against the displacement of indigenous peoples and other groups with a special dependency on and attachment to their lands. The prohibition of relocation without the agreement of indigenous peoples is also confirmed by the case-law of the the IACtHR, which has repeatedly affirmed the right of indigenous peoples to return to the lands they have been removed from or, if this is not possible, to receive adequate reparation.115 According to Anaya, there is an implied duty in the Saramaka judgment that the State must not adopt a measure forcing indigenous peoples away from their lands without the agreement of the community concerned, as this measure would have a substantial impact that may endanger the indigenous nation’s physical and cultural well-being.116 United Nations bodies have repeatedly expressed their concern about the expulsions and displacements of indigenous communities in connection with energy projects and the actual involvement of the police and/or security forces. In 2010, CERD discussed at lengths the removals of indigenous communities from the lands

113

See Principles 6–9 Guiding Principles on Internal Displacement, 11 February 1998, UN Doc E/ CN.4/1998/53/Add.2 (1998), Annex. 114

Principle 6 (2)(c) Guiding Principles on Internal Displacement.

115

IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay (note 88), para. 148; id., Moiwana Community v. Suriname, Judgment of 15 June 2005, Series C No. 124; id., Saramaka People v. Suriname (note 53). 116 HRC, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people: Summary of cases transmitted to Governments and replies received, 15 August 2008, UN Doc A/HRC/9/9/Add.1 (2008), Annex 1, paras. 39–40.

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they occupied in Panama for energy projects and the violence that private forces used to remove indigenous communities.117 In actual truth, such relocations may raise issues of genocide. The UNDRIP does not include the prohibition of ethnocide or other acts which indigenous peoples have often been victims of, such as ‘ecocide,’ i.e. “adverse alterations, often irreparable, to the environment – for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest – which threaten the existence of entire populations.”118 However, Article 8 (2) UNDRIP prohibits, among other things, any action depriving indigenous peoples of their identity or cultural values, or dispossessing them of their lands, territories and resources, or any population transfer. It is noteworthy that the provision refers to the aim or even just the effect of dispossession of their lands to substantiate genocide.

C. Rights to Natural Resources

Traditionally, international law recognised the importance of natural resources for the State and hence accepted that natural resources may belong to the State. Common Articles 1 of both the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR)119 recognises the right of ‘peoples’ “to freely dispose of their natural wealth and resources” and confirms that ‘States’ cannot be deprived of their own means of subsistence. Article 47 ICCPR and Article 25 ICESCR adhere that “nothing in the present Convention shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize freely their natural wealth and resources.” The issue of whether the right is recognised only to whole populations of States has been complicated even more by a series of United Nations resolutions120 equating rights of 117 CERD, Concluding Observations on Panama, 19 May 2010, UN Doc. CERD/C/PAN/CO/1520 (2010), para. 15. 118

CHR, Revised and updated report on the question of the prevention and punishment of the crime of genocide, 2 July 1985, UN Doc. E/CN.4/Sub.2/1985/6 (1985), para. 33. 119

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS

993, 3. 120

GA Res. 626 (VII) of 21 December 1952; GA Res. 1514 (XV) of 14 December 1960; GA Res. 1515 (XV) of 15 December 1960 and 1803 (XVII) of 14 December 1962, GA Res. 3171 (XXVIII) of 17 December 1973; and the Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX) of 12 December 1974.

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peoples with rights of States. The instruments on indigenous peoples provide some clarification: Although ILO Convention No. 107 does not even refer to natural resources, ILO Convention No. 169 recognises the right of indigenous peoples to “participate in the use, management and conservation of these resources” (Article 15 (1) ILO Convention No. 169). Article 15 (2) recognises that often natural resources belong to the State; [i]n cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.

Therefore, the actual right that the Declaration recognises is not that of ownership, but that of participation in the usage and conservation of the resources.121 The UNDRIP is the first instrument that actually recognises the rights of indigenous peoples “to own, use, develop and control the […] resources they possess by reason of traditional ownership or other traditional occupation or use” (Article 26 (2)). Although this is an important step forward, it is not clear whether the UNDRIP recognises ownership to indigenous peoples of their traditional resources or other weaker property rights; additionally, it seems doubtful that it recognises ownership to subsurface resources used for energy. Of help for indigenous claims affected by energy projects is the right to development. Article 1 (2) UN Declaration on the Right to Development122 includes within the scope of the right the full sovereignty over natural resources. ILO Convention No. 169 recognises the right of indigenous peoples “to decide their priorities for the process of development as it affects their lives […] and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.”123 Going further, Article 23 UNDRIP recognises the right of indigenous peoples “to determine and develop priorities and strategies for exercising their right 121 Heather Northcott, Realisation of the Right of Indigenous Peoples to Natural Resources under International Law Through the Emerging Right to Autonomy, International Journal of Human Rights 16 (2012) 73, 79. 122 Declaration on the Right to Development, GA Res. 41/128 of 4 December 1986, Annex. For a comprehensive analysis of the right of indigenous peoples to their development see Joshua Castellino, Indigenous Rights and the Right to Development: Emerging Synergies or Collusion?, in: Allen/Xanthaki (eds.) (note 1), 367. 123

Art. 7 ILO Convention No. 169.

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to development.” Importantly, Article 20 UNDRIP also recognises that “indigenous peoples deprived of their subsistence and development are entitled to just and fair redress.” In the Endorois case, the African Commission held that the State’s failure to guarantee a reasonable share in the profits deriving from the development project amounted to a violation of the right of indigenous peoples to development.124 The Inter-American jurisprudence has provided important contextual elaborations on indigenous rights to natural resources: Both in the Saramaka and the Kuchwa cases the IACtHR noted the importance of above-surface natural resources for the survival of indigenous peoples and made a nuanced distinction between these and other natural resources, including sub-soil resources, that are important for the preservation of indigenous culture and ensure that the necessary resources are available. Without referring to ownership, the Court accepted that natural resources fall within the protection of indigenous property rights and indigenous cultural rights and discussed rights to participation in decisions relating to natural resources and benefit sharing. Tramontana finds this approach “a workable balance between national economic development strategies and damaging effects of environmental degradation deriving from resource extracting activities” and in line with sustainability and human rights approaches to development.125 National practice makes a clear distinction between resources over the ground and sub-soil resources. For example, the Federal Court of Australia in Attorney General of the Northern Territory v. Ward recognised indigenous rights that include the right to “gather and use the natural resources of the land […] and to have access to and use of natural water on the land,” but that native title did not cover minerals and petroleum.126 Equally, the Supreme Court of the Philippines also ruled that the Indigenous Peoples Rights Act127 encompasses only the right to surface resources.128 124

African Commission on Human and Peoples’ Rights, Endorois (note 60), para. 228.

125

Tramontana (note 108), 263.

126

Federal Court of Australia, Attorney-Geneal of the Northern Territory v. Ward [2003] FCAFC 283, as discussed in: Stefania Errico, The Controversial Issue of Natural Resources: Balancing States’ Sovereignty with Indigenous Peoples’ Rights, in: Allen/Xanthaki (eds.) (note 1), 329, 336. 127

The Indigenous Peoples Rights Act, 29 October 1997, Official Gazette of the Philippines Republic Act No. 8371. 128

Supreme Court of the Philippines, G.R. No. 13538, Judgment of 6 December 2000, available at: http://sc.judiciary.gov.ph/jurisprudence/2000/dec2000/135385.htm (accessed on 19 March 2014).

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Notwithstanding some successes at the national level, notably the recognition by the Constitutional Court of South Africa of indigenous ownership including sub-soil resources in the Alexkor Ltd and the Republic of South Africa v. The Richtersveld Community,129 Errico rightly concludes that “international, regional and national practice suggest that, at present, States do retain ownership of subsoil resources, and in practice, this poses a limit to indigenous peoples’ right to ‘own, use, develop and control’ the resources located in their lands.”130 However, it would be a restrictive and incorrect interpretation to conclude that with respect to the natural resources, indigenous peoples only have the right to consultation and participation, as guaranteed in Article 32 (2) UNDRIP. As seen above, they have rights of usage, management and conservation of sub-soil resources found in their lands. In addition, they have rights to the sharing of benefits, included both in the UNDRIP and in ILO Convention No. 169.131 These can take several forms ranging from agreements with communities to redistribution of taxes.132 Finally, the UNDRIP also recognises rights to redress and possible restitution for the resources used and damaged without their FPIC. States, recognised as the main guarantor of indigenous rights in energy projects, must ensure that these rights are implemented both with respect to the sub-soil resources as well as with respect to the above-soil resources affected by the energy projects.

D. Cultural and Social Rights

Energy projects often have adverse effects on the cultures of indigenous peoples and the social matrix of their communities. The non-indigenous migration into indigenous communities, the existence of transient workers with no meaningful commitment to the place, the better infrastructure which brings more traffic and 129

Constitutional Court of South Africa, Alexkor Ltd. and the Republic of South Africa v. the Richtersveld Community, Judgment of 14 October 2003, CCT 19/03. 130

Errico (note 126), 337.

131

Malgosia Fitzmaurice, Tensions Between States and Indigenous People over Natural Resources in Light of the 1989 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries and the 2007 UN Declaration on the Rights of Indigenous Peoples (Including Relevant National Legislation and Case-Law), The Yearbook of Polar Law 4 (2012), 227, 232. 132

Ibid.

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possibly increased tourism and possible conflicts stemming from perceived and real opportunities for income, jobs and education have very detrimental effects on the rights of indigenous peoples. In addition, the infrastructure suffers at times with increased demand for housing, and increased rent which have a negative effect on already poor indigenous people and lead at times to homelessness, family disruption, alcohol related problems and violence. Abbink notes: An anthropological approach to dam impacts […] not only needs to highlight the observable effects such as displacement, livelihood loss and social decline, but also the dissonances in cultural discourse around dam constructions as state infrastructural engineering feats incapable of incorporating views and interests of local people, who often have a longestablished relationship to the land in the socio-economic and ritual sense.133

The Inter-American jurisprudence on indigenous rights has touched upon the effect of development projects on the cultural rights of indigenous peoples. In Saramaka and Kichwa, the Court noted that big energy projects have a negative effect on indigenous cultural rights. The World Bank recognises “that the identities and cultures of indigenous peoples are inextricably linked to the lands on which they live and the natural resources on which they depend” and acknowledges that the ‘distinct circumstances’ of indigenous peoples expose them “to different types of risks and levels of impacts from development projects, including loss of identity, culture, and customary livelihoods, as well as exposure to disease.”134 The rights of indigenous peoples to their culture and the States’ obligations to take measures that protect indigenous cultural rights have been widely recognised by ILO Convention No. 169 and the UNDRIP but also promoted and reinforced by the United Nations bodies.135 In addition to the protection of cultural rights, energy projects must protect the biological diversity of indigenous territories. The 1992 Biodiversity Convention136 recognises that indigenous peoples’ knowledge and practices encompass “traditional lifestyles relevant for the conservation and sustainable use of biological diversity” and it requests States to 133

Abbink (note 7), 126.

134

World Bank (note 26).

135

Alexandra Xanthaki, Culture, in: Marc Weller/Jessie Hohmann (eds.), A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples (forthcoming 2014); for a wider discussion see Athanasios Yupsanis, The Meaning of Culture in Article 15 (1)(a) of the ICERSC: Positive Aspects of CESCR’s General Comment No 21 for the Safeguarding of Minority Cultures, German Yearbook of International Law 55 (2012), 345. 136

Convention on Biological Diversity, 5 June 1992, UNTS 1760, 79.

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respect, preserve and maintain such knowledge and practices, and promote their wider application with the approval and involvement of the holders. This is also confirmed in Article 31 UNDRIP, namely the right of indigenous peoples “to maintain, control, protect and develop” their cultural heritage, traditional knowledge and traditional cultural expressions. In dealing with the eviction of the Endorois from their ancestral lands, the African Commission has found that such a practice had resulted in a breach of Article 8 African Charter on Human and Peoples’ Rights (ACHPR),137 the right of this people to freely practice their religion.138 There have been occasions where the State has recognised the effects of such projects on indigenous peoples: For example, in 2012, the judiciary in Mexico ordered the temporary suspension of the mining project at Wirikuta in Real del Catorce (San Luis Potosí) as the area was a seasonal pilgrimage site for some indigenous communities and so affected severely their cultural rights.139 However, such issues have to be more openly discussed and reflected upon.

E. The Right to the Conservation and Protection of the Environment

Although the scope of the right of environment is still very much contested,140 the protection and conservation of the environment where indigenous peoples live is of paramount importance.141 Energy projects may produce environmental liabilities, such as “solid or liquid waste, generally harmful to the environment or human health, which are left behind as residues of mining activity.”142 The right to life, the right to a private life and the right to property have been used as a basis for State obligations, 137

African Charter on Human and Peoples’ Rights, 27 June 1981, UNTS 1520, 217 (ACHPR).

138

African Commission on Human and Peoples’ Rights, Endorois (note 60), para. 173.

139

Permanent Forum on Indigenous Issues (note 74), 13.

140

Alan Boyle, Human Rights and the Environment: Where Next?, European Journal of International Law 23 (2012), 613. 141 Leena Hainamaki, Protecting the Rights of Indigenous Peoples: Promoting the Sustainability of the Global Environment?, International Community Law Review 11 (2009), 3; see also Cherie Metcalf, Indigenous Rights and the Environment: Evolving International Law, Ottawa Law Review 35 (2003–2004), 101. 142 Observatorio de Conflictos Mineros de América Latina, Consuelo Infante, Pasivos Ambientales Mineros: Barriendo Bajo la Alfombra, 2011, available via: http://www.conflictosmineros.net/biblioteca/ publicaciones/publicaciones-ocmal/pasivos-ambientales-mineros-barriendo-bajo-la-alfombra/detail (accessed on 19 March 2014).

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including positive measures, to protect the environment; however, “the right to a decent environment” is still a contested notion.143 The instruments specifically focused on indigenous rights are clearer. Principle 22 Rio Declaration also recognises ‘the vital role’ that indigenous peoples have “in environmental management and development because of their knowledge and traditional practices.” Chapter 26 Agenda 21 affirms that the lands of indigenous peoples “should be protected from activities that are environmentally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate” and recognises that the cultural, economic and physical well-being of indigenous peoples depends on their “traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting.” The Agenda 21 also expressly recognises that traditional knowledge and resource management practices are key to promoting environmentally sound and sustainable development. According to Chapter 26 (3) Agenda 21, measures should be established which recognise that traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic and physical well-being of indigenous people and their communities. The Akwé: Kon Guidelines on sacred sites and indigenous lands and waters for an ethical code on ecological knowledge and customary norms of indigenous peoples relating to biodiversity, innovations and practices may serve to guide the impact-assessment processes and promote the use of appropriate technologies. In all the general instruments above, the link between indigenous peoples and the environment is recognised and the protection of the environment is proclaimed, but there is no explicit recognition of a right to environment. In addition, the recognised emphasis of environmental rights lies on procedural rights related to participation and impact assessments. For example, the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters144 adopted by the UN Economic Commission for Europe which builds upon the right to access to justice and procedural elements related to environmental protection is seen as an excellent model for future strengthening of ‘environmental democracy’.145 143

Boyle (note 140), 615.

144

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, UNTS 2161, 447. 145

UN Economic Commission for Europe, The Aarhus Convention: An Implementation Guide (2000), UN Doc. E/ECE/CEP/72 (2000).

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The decision of the African Commission in the Ogoni case is unique in paving the way of a substantive right to environment and in that the court ordered extensive environmental clean-up measures to be taken.146 The ILO Convention No. 169 follows this line too and specifies that measures shall be taken to protect the environment of indigenous peoples (Articles 4 and 7) and studies shall be carried out to assess the impact of the projects on the indigenous environment, but does not explicitly recognise a right to environment per se. However, Article 29 (1) UNDRIP is bolder and recognises indigenous peoples’ right “to the conservation and protection of the environment and the productive capacity of their lands or territories and resources;” States are required to “establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination” and “effective measures to ensure that no storage or disposal of hazardous materials” remain in indigenous lands without their agreement. A special mention must be made to renewable energy projects: Although they are seen in a positive manner by environmentalists and States, they often pose important challenges for indigenous communities. Finley-Brook and Thomas note that there is “a resurgence of historical prejudices that categorize subsistence practices as inefficient and indigenous customs as inferior.”147 Often, “state agencies and private firms selectively define sustainable development in renewable energy projects in ways that allow them to pursue neoliberal agendas while further marginalizing indigenous communities.”148

V. Conflicts of Rights States traditionally justify the restrictions of the rights of indigenous peoples by energy projects on the ground of the economic development of the State. Energy projects, States repeat, will allow the whole population to benefit from more energy 146

African Commission on Human and Peoples’ Rights, Communication 155/96, Social and Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria, Decision of 27 October 2001, available at: http://www.achpr.org/files/sessions/30th/comunications/155.96/achpr 30_155_96_eng.pdf (accessed on 17 March 2014). 147

Finley-Brook/Thomas (note 5), 864.

148

Ibid.

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or will improve their quality of lives through the revenues that will go to further services etc. The Special Rapporteur on the Rights of indigenous peoples has argued: It will be recalled that consent performs a safeguard role for indigenous peoples’ fundamental rights. When indigenous peoples freely give consent to extractive projects under terms that are aimed to be protective of their rights, there can be a presumption that any limitation on the exercise of rights is permissible and that rights are not being infringed.149

However, the presumption that the restriction of their rights is permissible only exists if they have given their consent to each particular restriction and to the extent to which they have allowed their rights to be restricted. A general agreement to a project does not necessarily mean agreement to all actions of the energy company or the State with respect to the project. The agreement must be continuous and go through the different stages of the project. In addition, restrictions of all human rights analysed above are allowed under international law only as long as the principles of legality, legitimacy and proportionality are satisfied. Therefore any restriction must be established by law, aim to attain a legitimate goal, and be necessary and proportional.150 However, the courts have recognised that the threshold for a lawful restriction of indigenous rights to their lands is higher than for other sectors of the population. The IACtHR has justified the higher threshold on the basis of “a broader and different concept that relates to the collective right to survival as an organized people, with control over their habitat as a necessary condition for reproduction of their culture, for their own development and to carry out their life aspirations.”151 Disregarding their land rights, the IACtHR continued, “could affect other basic rights, such as the right to cultural identity and to the very survival of the indigenous communities and their members.”152 The Special Rapporteur has also noted that the principle of proportionality underlines the need to give due regard to the “significance to the survival of indigenous peoples of the range of rights potentially affected by the project.”153 However, both the Special Rapporteur and the IACtHR have not ruled out the possibility that “the territorial interests of private individuals or of the State” prevail over indigenous rights under certain circum149

HRC (note 46), para. 33.

150

IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay (note 88), para. 144.

151

Ibid., para. 146.

152

Ibid., para. 147

153

HRC (note 46), para. 36.

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stances.154 In the Endorois case, the African Commission reflected on the phrase of Article 14 ACHPR that allows the restriction of property rights “in the interest of public need or the general interest of the community” when legality and proportionality are fulfilled. Again, the Commission noted that the ‘public interest’ test requires a much higher threshold in the case of indigenous peoples’ land rights, because such rights are closely linked to their right to life, self-determination and to exist as a people.155 The Special Rapporteur went further and noted that “a valid public purpose is not found in mere commercial interests or revenue-raising objectives, and certainly not when benefits from the extractive activities are primarily for private gain.”156 Article 2 Political Constitution of Mexico recognises that as part of their right to selfdetermination, indigenous peoples may have preferential use of the natural resources of the sites inhabited by their indigenous communities, except for the strategic resources.157 Unfortunately in reality this article is nullified by the Mining Act which gives preference to requests for mining exploitation to indigenous peoples as long as they match the best financial offer presented by another bidder.158 This effectively nullifies the preferential right that the Constitution gives to indigenous peoples, who are unlikely to have the financial and technical resources to outbid large multinational or national corporations, should they attempt to do so. It also nullifies their right to consultation and consent as guaranteed in the international legal instruments signed by Mexico.

VI. Conclusions – An Alternative Model? States that initiate or agree to energy projects in areas where indigenous peoples live, or nearby areas, have the obligation to ensure that indigenous peoples give their 154

IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay (note 88), para. 149.

155

African Commission on Human and Peoples’ Rights, Endorois (note 60), paras. 211–213. For an analysis of this point, see Adem Kassie Abebe, Limitations to the Rights of Indigenous Peoples in Africa: A Model for Balancing National Interest in Development with the Rights of Indigenous Peoples?, African Journal of International and Comparative Law 20 (2012), 407. 156

HRC (note 46), para. 35.

157

Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos), Official Gazette of Mexico of 5 February 1917, as amended in Official Gazette of Mexico of 26 February 2013. 158

Art. 13bis (3)(2) Mexican Mining Act (Ley Minera), Official Gazette of Mexico of 26 June 1992, as amended in Offical Gazette of Mexico of 26 June 2006.

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free, prior and informed consent for such projects or, if the effect is not direct or not serious, must ensure the consultation and participation of indigenous peoples in all decisions taken relating to these projects and affecting them. However, this is not where the States’ obligations end. Under international law and to the extent that indigenous peoples have not agreed (in a genuine, informed and free manner), States continue to have an obligation not to relocate indigenous peoples, to protect their lands, to protect the resources above surface and sub-soil that exist in their lands, to protect their cultures, not to disrupt the social cohesion of their communities and to take measures to protect the environment where indigenous peoples live. These rights also translate to procedural rights including ensuring that full human rights impact assessments are completed before a final decision regarding the project is reached; sharing the benefits of energy projects with the indigenous peoples that live in the areas where the resources are taken from; and providing them with just and fair compensation and redress for any violation that the energy project has resulted in. The UN Special Rapporteur on Indigenous Peoples has recently suggested the development of “a new business model for natural resource extraction” where indigenous peoples initiate and control resource extraction in their own territories according to their priorities is being developed and is “more conducive to the full enjoyment by indigenous peoples of their rights than the one that currently prevails in much of the world.”159 Although the Special Rapporteur acknowledged that these projects also pose risks for environmental degradation and the violation of other rights, these risks can be minimised and the rights of indigenous peoples enhanced as indigenous peoples freely decide to engage in such activities. This is an exciting proposition that has to be reflected on further. Such partnerships of indigenous communities with energy companies have started in some parts of the world, notably Australia.160 If this partnership is built on solid grounds, then it may combine the need for economic development and energy production with the respect of indigenous self-determination and indigenous control of the matters that concern them.

159

HRC (note 46), para. 5.

160

Permanent Forum on Indigenous Issues (note 109), para. 12.

GENERAL ARTICLES

All the Things That You Can Do with Jus Cogens – A Pragmatic Approach to Legal Language ULF LINDERFALK(

ABSTRACT: Investigating the meaning of conceptual terms is an important task for international legal scholars. In the analysis of the usage of conceptual terms in international legal discourse, traditionally, most international lawyers have confined studies to the descriptive meaning of those terms. They have assumed that conceptual terms describe a relationship between, on the one hand, the particular properties identifying a particular phenomenon or state of affairs as one that belongs to the extension of a particular concept, and on the other hand, the legally relevant inferences ensuing from the categorisation. While this theory works reasonably well as long as studies are confined to the meaning of conceptual terms in law, it is ill-suited for any similar study of international legal discourse. In the search for possible alternatives, this article adopts instead a pragmatic approach to legal language. More specifically, it equates the meaning of a conceptual term with its functionality, that is, with what the uttering of a conceptual term potentially does to the beliefs, attitudes, and behaviour of participants in international legal discourse. The investigation proceeds in two steps. As Section II argues, a functionality-based theory of meaning suggests a method (referred to throughout the article as functionality analysis) that can be used for the analysis of international legal discourse. Sections III, IV and V illustrate the ramifications of functionality analysis by applying it relative to the usage of one particular conceptual term, namely jus cogens. KEYWORDS: Conceptual Terms; Concepts, Legal Meaning, Pragmatics, International Legal Discourse, Jus Cogens, Peremptory International Law

I. Introduction Conceptual terms are important elements of the language used by participants in international legal discourse for the communication of legal propositions. A legal ( Professor of International Law at the Faculty of Law, Lund University, Sweden. The author wishes to extend his sincere gratitude to Dr Olof Barr, a mathematician and philosopher, and a great pal and discussion partner. Special thanks go also to the Institute for Legal Scientific Research (Institutet för rättsvetenskaplig forskning) for the financial support needed to complete this article.

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advisor to a government may suggest that a line of action taken by a State in the exercise of powers given to it under some treaty be categorised as in effect coming within the scope of the concept of treaty abuse.1 A body of experts may discourage recognition of a distinction between delicts and crimes and suggest instead the introduction of the concept of a serious breach by a State of an obligation arising under a peremptory norm of general international law.2 An international legal scholar may explain the concept of good faith,3 or advice against the categorisation of State responsibility law as secondary rules of law.4 An international court may apply an observation of the non-existence of a normative conflict to resolve a legal dispute brought before it.5 An organ of an international organisation may reaffirm its commitment to the concept of the rule of law.6 An NGO may denounce a particular practice of a State as in effect amounting to an inhuman or degrading treatment or punishment.7 For the purposes of this article, a conceptual term is a term, like any of the examples just provided, used for the verbal representation of a concept. A concept, in turn, is the generalised idea of an empirical or normative phenomenon or state of affairs (e.g. a normative conflict, an inhuman or degrading treatment or punishment, or the abuse of a treaty) or a class of such phenomena or states of affairs (e.g. good faith, delicts, or the rule of law).8

1 See International Court of Justice (ICJ), Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment of 26 June 1992, ICJ Reports 1992, 240, para. 5. 2 See Arts. 40 et seq. International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, GAOR, 56th Sess., Suppl. 10, 43 et seq. 3

See Elisabeth Zoller, La bonne foi en droit international public (1977).

4

See Ulf Linderfalk, State Responsibility and the Primary-Secondary Rules Terminology: The Role of Language for an Understanding of the International Legal System, Nordic Journal of International Law (NJIL) 78 (2009), 53. 5

See ICJ, Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), Judgment of 3 February 2012, ICJ Reports 2012, 99, paras. 92–94. 6

See Standing Committee of the Parliamentary Assembly of the Council of Europe, Resolution 1594 on the Principle of the Rule of Law, 23 November 2007, available at: http://assembly.coe.int/ main.asp?Link=/documents/adoptedtext/ta07/eres1594.htm (accessed on 26 February 2014). 7 See European Court of Human Rights (ECtHR), Soering v. The United Kingdom, Judgment of 7 July 1989, Series A, No. 161, para. 101. 8

See Birger Hjørland, Concept Theory, Journal of the American Society for Information Science and Technology 60 (2009), 1519.

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Investigating the meaning of conceptual terms is one of the tasks of legal scholars.9 In effectuating this task, following traditional legal methodology, scholars generally confine studies to the descriptive meaning of terms.10 They assume that conceptual terms describe a relationship between identifying criteria and legal consequences.11 Identifying criteria are the particular properties used by international lawyers for the categorisation of a particular phenomenon or state of affairs (or a class of phenomena or state of affairs) as one that comes within the extension of some particular concept.12 Legal consequences, on the other hand, is the particular significance ascribed by international lawyers to having so categorised a particular phenomenon or state of affairs (or a class of phenomena or state of affairs).13 This approach works reasonably well as long as scholars confine analysis to the meaning of conceptual terms in law. In adopting traditional legal methodology, knowing the meaning of a conceptual term will be tantamount to knowing the role of the underlying concept in legal inferences from identifying criteria to legal consequences.14 To illustrate, knowing the full meaning of ‘the high seas’ will be tantamount to knowing (a) the criterion or criteria identifying particular seas areas as high seas, and (b) each and every international right and obligation limiting the exercise of the freedom of the high seas. Knowing the full meaning of ‘civilian’ in international humanitarian law will be tantamount to knowing (a) the criterion or criteria identifying particular persons as civilians, and (b) each and every international obligation governing the treatment by belligerents of civilians and civilian property in armed conflict. Knowing the full meaning of ‘the United Nations Security Council’ will be tantamount to knowing (a) the legal conditions for its constitution and existence, and (b) each and every power entrusted to the Security Council by United Nations (UN) Member States. 9

See e.g. Aulis Aarnio, Introduction, in: Aleksander Peczenik, On Law and Reason (1989), 11–12.

10

For an example, see e.g. Alexander Orakhelashvili, Peremptory Norms in International Law (2006).

11

This approach permeates much international jus cogens research. See e.g. ibid. To this extent, international legal scholars still seem to follow in the footsteps of the Danish legal philosopher Alf Ross, whose writing in the 1950s introduced the topic of conceptual terms to the agenda of legal scholarship, see Alf Ross, Tû-tû, Harvard Law Review 70 (1957), 812. 12 Ulf Linderfalk, What Is So Special About Jus Cogens? On the Difference between the Ordinary and the Peremptory International Law, International Community Law Review 14 (2012), 3, 8. 13

Ibid.

14

See Ross (note 11), 822–823.

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On the other hand, the descriptive theory of meaning does not seem very well suited for studies of international legal discourse. As can be seen from the communicative practice of international lawyers, conceptual terms may be very popular and frequently resorted to, despite the fact that a descriptive meaning is largely lacking. Few other terms illustrate this more clearly than jus cogens. Whether the information sought is about the particular properties identifying international legal norms as jus cogens, or the legal consequences ensuing from a norm having been so identified, any answer given on the basis of the recognised means for the determination of law will depend largely on the particular source of authority consulted.15 Consider for example the wide divergence of opinion inherent in the following statements: 1. Because the prohibition of genocide is jus cogens, when a reservation is made to Article IX of the Genocide Convention,16 exempting the jurisdiction otherwise conferred on the International Court of Justice under this provision, this reservation shall be null and void.17 2. Because the prohibition of widespread rape is jus cogens, domestic tribunals have standing to adjudicate such offenses although they occurred in another country.18 3. “The primary purpose of asserting that a norm is jus cogens seems to be to over-ride the will of persistent objectors to a norm of customary international law.”19

15

Similarly, see e.g. Jutta Brunné, The Prohibition of Torture: Driving Jus Cogens Home?, Proceedings of the American Society of International Law 104 (2010), 454; Hélène Ruiz Fabri, Enhancing the Rhetoric of Jus Cogens, European Journal of International Law (EJIL) 23 (2012), 1049, 1050. 16 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, UNTS 78, 277 (Genocide Convention). 17 ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, ICJ Reports 2006, 6, para. 56. 18 Dean Adams, The Prohibition of Widespread Rape as a Jus Cogens, San Diego International Law Journal 6 (2005), 357, 386–387. 19

Dinah Shelton, International Law and ‘Relative Normativity,’ in: Malcolm Evans (ed.) International Law (3rd ed. 2010), 141, 156.

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4. Because the international prohibition of torture is jus cogens, States must not absolve a perpetrator of torture through amnesty laws; neither must they refuse extradition of such a perpetrator under any political offence exemption.20 5. “So far, relatively few peremptory norms have been recognized as such.”21 6. Because basic human rights form part of jus cogens, “State responsibility results not only from actual breaches, but also from merely potential breaches.”22 7. Because the principle of equality and non-discrimination is jus cogens, States shall not enact laws, or “formulate civil, administrative or any other measures […] in implementation or interpretation of the law that discriminate against a specific group of persons because of their race, gender, colour or other reasons.”23 8. While it is a rule of jus cogens that war crimes and crimes against humanity should not be committed, it does not follow that a State does not enjoy immunity from the exercise by courts of another State of jurisdiction over claims for compensation for the commission of such crimes.24 9. Because some human rights obligations are jus cogens, those obligations are directly applicable to multinational corporations.25 10. “Perhaps the only generally accepted examples of jus cogens are the prohibition on the use of force (as laid down in the UN Charter) and on aggression, genocide, slavery, racial discrimination, torture and crimes against humanity […]. Despite what may be said or written, it is wrong to assume that many 20 International Criminal Tribunal for the former Yugoslavia (ICTY), Trial Chamber, The Prosecutor v. Anto Furundžija, IT-95-17/1-T, Judgment of 10 December 1998, paras. 155–157, available at: http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf (accessed on 25 February 2014). 21 Commentaries to the ILC Draft Articles (note 2), GAOR, 56th Sess., Suppl. 10, 59 et seq., Art. 26, para. 5. 22

Olivier De Schutter, International Human Rights Law: Cases, Materials, Commentary (2010), 69.

23

Inter-American Court of Human Rights (IACtHR), Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/3 of 17 September 2003, Series A, No. 18 (2003), paras. 97–101, 103. 24

See ICJ, Jurisdictional Immunities of the State (note 5).

25

Patricia Rinwigati Waagstein, Corporate Human Rights Responsibility (2009), 148–154.

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important provisions of human rights treaties, such as due process, are jus cogens, or, for that matter, even rules of customary international law.”26 Some commentators infer from this practice that jus cogens is shallow; that it has no clear reference in this world; that it lacks a genuine legal meaning.27 This is not a very satisfying conclusion. If the trend is that participants in international legal discourse increasingly put their trust in jus cogens language for their arguments, saying that jus cogens lacks a genuine legal meaning would be tantamount to suggesting that in the great majority of cases participants wrongly believe jus cogens to describe a relationship between identifying criteria and legal consequences. Surely, things are more complicated than this. This setting helps explain the purpose of the present article. If international legal scholars wish to come to grips with some of the many interesting questions raised by the usage of conceptual terms in international legal discourse, obviously, they cannot be content with the idea of such terms as merely a description of a relationship between identifying criteria and legal consequences. They would have to find some other approach to legal language. As this article will argue, considering legal language from the point-of-view of pragmatics will offer a solution to the problem. Consequently, this article will depart from the assumption that conceptual terms are not so much means for the communication of descriptive information as they are means for social inter-action. More specifically, the article will equate the meaning of conceptual terms with their functionality.28 The functionality of a conceptual term is what its uttering potentially does to the beliefs, attitudes, and behaviour of participants in 26

Anthony Aust, Handbook of International Law (2nd ed. 2010), 10. A footnote was omitted.

27

See e.g. Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, EJIL 16 (2005), 113, 122; Arthur Mark Weisburd, The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina, Michigan Journal of International Law 17 (1995), 1, 50–51. 28 To capture the inter-personal aspect of language, a range of different theories of meaning have been put forward. The later Wittgenstein, for example, equated the meaning of words and sentences with their communicative function, see Ludwig Wittgenstein, Philosophical Investigations (1953). Language philosophers like John Langshaw Austin and John Searle took this idea a step further speaking about the illocutionary force of language, see e.g. John Langshaw Austin, How to Do Things With Words (1962); John Searle, Speech Acts (1969). Pierre Bourdieu has argued that an important aspect of the meaning of language is the interests pursued by utterers in using it, see Pierre Bourdieu, Language and Symbolic Power (1991). This is not the time and place to engage in depth with such theories. In equating the meaning of conceptual terms with their functionality, this article aims to capture the pragmatic project while at the same time trying to remain neutral between various theories on pragmatic meaning, as far as possible.

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international legal discourse.29 Henceforth, this approach of inquiry will be referred to as a functionality-based theory of meaning. It is the purpose of this article to illustrate the general usefulness of a functionality-based theory of meaning for the analysis of international legal discourse. The organisation of the article will be as follows. Section II will briefly outline how a functionality-based theory of meaning can be brought to bear on the analysis of international legal discourse. As will be argued, a functionality-based theory of meaning suggests also a method that can be used for the analysis of the usage of conceptual terms in international legal discourse generally. For the purpose of the present article, this method will be referred to as functionality analysis. Sections III, IV and V will illustrate the ramifications of functionality analysis by applying it relative to the usage of a particular term; for reasons already indicated, jus cogens will serve as the example. As will be argued, functionality analysis opens new possibilities for the study of international legal discourse. Explaining the usage of conceptual terms for other purposes than simply communicating descriptions of the law, obviously, functionality analysis can be used for the critical assessment of single contributions to international legal discourse; but not only this. As will be illustrated by the example of jus cogens, it can be used for other important purposes, too, such as the assessment of the significance of international legal discourse for the making of international law.

II. Functionality Analysis A. Understanding Utterances

Pragmatics is the study of language use.30 Studies include two questions in particular. A first task of pragmatics is to explain the concept of the meaning of an utterance, that is, a word or a string of words used by a speaker or a writer at a particular occasion. According to pragmatics and implied by the focus on both utterer (i.e. speaker

29 See John Lyons, Semantics (1977), 725; Diane Blakemore, Understanding Utterances (1992), 102–103. 30

For an excellent, easy-to-read introduction to the topic, see e.g. Stephen C. Levinson, Pragmatics (1983); Blakemore (note 29).

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or writer) and addressee (i.e. listener or reader),31 language is used to engage in social inter-action. When a person makes an utterance it is always with the intention to affect the attitudes, beliefs, or behaviour of the addressee or addressees.32 Consider for instance the following fictitious sentence of a text posted by a law professor, Professor Martin, on the Opinio Juris blog: For his argument that preparatory work can be used as a primary means of interpretation, Austin relies primarily on the preparatory work of the Vienna Convention, just like Stephen Schwebel did in his 1996 article. Professor Martin may have many reasons for uttering this sentence – for purposes of easy reference, henceforth in this section, it will be referred to as the Opinio Juris blog sentence. If it is taken for granted that the blog-post provides comment on a working paper previously posted on the Social Science Research Network (SSRN) by a colleague, Dr Austin, Professor Martin may want Dr Austin to think that Professor Martin supports Dr Austin’s methodological choice; she may want Dr Austin to query the appropriateness of Dr Austin’s preferred methodology and involve him in a discussion of this issue; Professor Martin may want readers of the blog to avoid using Dr Austin’s preferred methodology; or she may want readers of the blog to be sceptical about Dr Austin’s conclusion. According to pragmatics, any sound theory of utterance meaning will have to accommodate for this social aspect of human language. Whatever motivates Professor Martin to utter the sentence in question, some way or another, it has to be accounted for as part of the meaning of her utterance. If, generally, pragmatics speak about the meaning of an utterance as synonymous with the intention that the utterer wishes to communicate by making it, then consequently, they do so on the understanding that this intention includes also the utterance’s intended effect(s). The second task assumed by pragmatics is to explain how an utterance can ever be understood by a listener or a reader. In the earlier example of the Opinio Juris blog post, if Professor Martin wants to involve Dr Austin in a discussion about the appropriateness of his preferred methodology, obviously, in order for Dr Austin to under31 To facilitate reference neutral to particular means of communication, instead of speaker and writer, pragmatics prefer the term ‘utterer.’ For the same reason, listeners and readers are generally referred to as ‘addressees.’ This terminology will be adopted throughout this article. 32

See Lyons (note 29), 725.

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stand Professor Martin’s utterance, she would have to communicate this intention to him. The question is how this is actually done. In addressing this explanatory task, pragmatics note the relevance of contexts.33 Certainly, the lexicon and grammar of a language such as English may help utterers signal to addressees in whatever way they wish to affect their attitudes, beliefs, or behaviour. For instance, if Professor Martin wants Dr Austin to query the appropriateness of his preferred methodology and involve him in a discussion of this issue, the address can be achieved using the second singular personal pronoun and a tag question: If you want to establish the significance that Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT)34 accord to preparatory work, methodologically speaking, basing your argument largely on the preparatory work of the Vienna Convention would not be very appropriate, would it? Let us have a discussion of this issue! In the final analysis, however, pragmatics find that there is no one-to-one correspondence between the grammatical form of a sentence and the intention or intentions that it may be used to communicate. Certainly, the lexicon and grammar of a language may facilitate communication, but so may also the context of utterance. In the example of the Opinio Juris blog post, if Professor Martin wants readers of the blog to be sceptical about Dr Austin’s conclusion, she does not necessarily have to employ a grammatical imperative such as Readers, be sceptical about Dr Austin’s conclusion! If readers share the assumption that the circularity of a legal argument makes it flawed, this intention may be communicated equally well using a declarative sentence like the one resorted to in the example. The context may be such that communication may not even require the usage of the grammatical verb. If Professor Martin has earlier referred to Dr Austin’s working paper in a generally negative spirit, for instance, she may succeed to impart to readers of the blog that she wants them to be sceptical about Dr Austin’s conclusion by the utterance of a grammatically incomplete sentence like ‘Ouch!’ or ‘Oops!’ (although, of course, such utterances would be regarded as condescending).

33

For an excellent overview of this topic, see Blakemore (note 29), Chapter 1.

34

Vienna Convention on the Law of Treaties, 13 May 1969, UNTS 1155, 331.

360 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 B. Studying Contexts as Generalised Phenomena

Although, obviously, the understanding of an utterance will always be dependent on the assumption or assumptions actually used by an addressee, the relevance of contexts for the understanding of utterances can be studies as a generalised phenomenon. Consider the example of the fictitious Opinio Juris blog sentence: For his argument that preparatory work can be used as a primary means of interpretation, Austin relies primarily on the preparatory work of the Vienna Convention, just like Stephen Schwebel did in his 1996 article. Analysing this sentence, international lawyers can inquire into the possibilities of using it for imparting to an addressee named Austin that the utterer wishes to involve him or her in a discussion about the appropriateness of his or her preferred methodology. Focus is then naturally shifted from the meaning of the particular utterance by Professor Martin of the Opinio Juris blog sentence at the particular occasion to the meaning potential of the utterance of this sentence generally. For the purpose of the present article, the meaning potential of a piece of language in international legal discourse is what the uttering of it potentially does to the beliefs, attitudes or behaviour of the participants of that same discourse.35 To facilitate reference, henceforth, this will be referred to as the functionality of the term. The functionality of a piece of language must not be confused with the actual function or effect of its utterance. While the functionality of a piece of language may help an utterer affect the beliefs, attitudes, or behaviour of an addressee in some particular way, the actual effect can never be guaranteed. As already explained, this is because the understanding of an utterance is always dependent on a particular context. In the earlier example, the Opinio Juris blog sentence may cause Dr Austin to think that Professor Martin supports Dr Austin’s methodological choice. In that sense, causing people named Austin to think that the utterer supports the addressee’s methodological choice is part of the functionality of the sentence in question. However, in order for Professor Martin’s utterance to actually cause Dr Austin to think that Professor Martin supports Dr Austin’s methodological choice, Dr Austin has to interpret this utterance in the context of some certain assumption, for instance the assumption that Stephen 35

See Lyons (note 29), 725; Blakemore (note 29), 102–103.

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Schwebel was formerly a judge of the ICJ, and that opinions of judges of the ICJ generally have considerable authority. If instead Dr Austin chooses to interpret Professor Martin’s utterance in the context of the assumption that the circularity of a legal argument makes it flawed, obviously, it will affect him differently. The functionality of a piece of language, such as a term or a sentence, is contextdependent, too, but in a different sense. As explained, the actual effect of the utterance of a piece of language is dependent on whether some particular contextual assumption was actually used by a particular addressee in the process of understanding it. The functionality of a piece of language, on the other hand, is dependent on whether some certain kind of contextual assumption is available to some certain potential addressee or addressees.36 To illustrate, consider once again the fictitious Opinio Juris blog sentence: For his argument that preparatory work can be used as a primary means of interpretation, Austin relies primarily on the preparatory work of the Vienna Convention, just like Stephen Schwebel did in his 1996 article. If the addressee does not know that Stephen Schwebel served as a judge of the ICJ, and cannot be expected to figure that out – based, for instance, on references provided in the blog post – then this same sentence can never work to cause the addressee to think that the utterer supports the addressee’s methodological choice, not even potentially. To facilitate reference, in referring to the entire set of contextual assumptions available to an addressee, henceforth in this article, the term ‘cognitive environment’ will be used.37

C. Avoiding Miscommunication

Given the dependency of the functionality of a conceptual term on cognitive environments, there are several reasons for why utterers and addressees may at times find themselves in miscommunication. First, an addressee may simply not have access to the relevant contextual assumption or assumptions. This is illustrated by the Opinio 36

See Dan Sperber/Deidre Wilson, Relevance, Communication and Cognition (1986), 81–93.

37

See ibid., 38 et seq.

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Juris blog sentence. If an utterer uses the name of Stephen Schwebel to cause an addressee to think that the utterer supports the addressee’s methodological choice, it might be that the addressee is not the slightest familiar with the person referred to. Similarly, if an utterer uses the name of Stephen Schwebel to cause an addressee to think that the utterer supports the addressee’s methodological choice, it might be that the addressee knows that Stephen Schwebel served on the ICJ, but does not share the utterer’s assessment of Stephen Schwebel as a person, whose example should be generally emulated. Secondly, the addressee may have access to the relevant contextual assumption or assumptions, but for some reason choose to understand the utterance against the background of some other assumption that is also available to him. For example, the addressee may share the assessment of the utterer that as a former judge of the ICJ, Stephen Schwebel is a person whose example should be generally emulated; but the addressee may also recognise that as a general rule, the circularity of a legal argument inevitably makes it flawed. In this situation, because the addressee firmly believes that even judges of the ICJ may sometimes err, he may choose to understand the relevant sentence on the basis of the latter assumption and not the former, with the result that once again the utterance will not have the intended effect. Now, interestingly, utterers may take action to avoid any such misunderstandings. For example, if an utterer of the Opinio Juris blog sentence wishes to cause an addressee to think that the utterer supports the addressee’s methodological choice, to ensure that the addressee knows that Stephen Schewebel formerly served as judge of the ICJ, the utterer may point that out explicitly. If, on the other hand, the utterer wishes to query the appropriateness of the addressee’s preferred methodology and involve him or her in a discussion of this issue, the utterer may refer to the fact that international legal scholars have expressed severe criticism of the methodological stance taken by Stephen Schwebel’s 1996 article.38 This observation is of great practical importance. It suggests a method that can be used for the critical assessment of single contributions to international legal discourse. As the subsequent two sections of this article will argue, because conceptual terms serve as links in legal inferences from identifying criteria to legal consequences, participants in international legal discourse use them for communicating a great variety of intentions. The example of jus cogens will help to illustrate this proposition. 38

A fictitious article for the purposes of this work.

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For example, as will be contended, utterers use jus cogens (i) to convince addressees of the correctness of their arguments, (ii) to impede constructive criticism of jus cogens arguments, and (iii) to prevent addressees from questioning their intents. Such propositions raise methodological questions. How can it be established whether the meaning of a particular utterance of jus cogens includes the intention of the utterer to bring about the one effect or the other? For example, if it is argued that by uttering jus cogens at a particular occasion, a particular participant in international legal discourse (say, an international lawyer) wishes to prevent addressees from questioning his or her intents, how can this proposition be justified? The answer is implicit in the description of pragmatics given in this section. First, the lawyer establishes that preventing addressees from questioning the intents of an utterer is among the functionalities of jus cogens. Second, the lawyer clarifies the kind of assumption or assumptions, on which this particular functionality is dependent. Third, the lawyer studies the supporting action possibly taken by the utterer to ensure that such an assumption is actually available to addressees, from which he then makes inferences about the particular intention or intentions of the utterer.39 This is the methodology to be followed in the subsequent sections III and IV.

III. Why Utterers Resort to Jus Cogens A. It Potentially Helps Convince Addressees of the Correctness of Utterers’ Arguments

Utterers resort to jus cogens because it is an evocative term.40 Uttered to an audience of international lawyers it typically arouses strong emotions: depending on the context, either feelings of sympathy and compassion, or of repudiation and disgust.41 That being the case, using jus cogens as an intermediate link in legal inferences may 39 Analytically speaking, for the purpose of this methodology, supporting action serves a twofold purpose. In the example, it serves as evidence of the fact, first, that preventing addressees from questioning the intents of utterers is among the functionalities of jus cogens, and second, that particular utterers actually use jus cogens to prevent addressees from questioning their intents. 40

See Ulf Linderfalk, The Functionality of Conceptual Terms in International Law and International Legal Discourse, European Journal of Legal Studies 6 (2013), 27. 41

Ibid.

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work to provoke reactions that international law itself cannot provoke. Specifically, it potentially works to convince addressees of the correctness of any utterer’s arguments.42 For instance, if an utterer wishes to argue that perpetrators of some particular international human rights norm must not go unpunished, even though they would normally be protected by a rule of immunity, the characterisation of the norm as jus cogens would typically work in the utterer’s favour. This will be referred to as the normative functionality of jus cogens. Of course, the normative functionality of jus cogens is nothing peculiar for this term specifically. In international legal discourse many other conceptual terms work the same way.43 Hence, the different normative functionalities of terms would seem to be at least parts of the explanation to why lawyers, depending on the situation, prefer to speak about ‘genocide’ rather than ‘killing members of a national, ethnical, racial or religious group with intent to destroy it, in whole or in part;’ of ‘targeted killing’ rather than the ‘extrajudicial killing of suspected terrorist offenders;’ of a ‘proportionate decision’ rather than a ‘decision meddling between two conflicting interests, of which the one overrides the other’ of ‘State sovereignty’ rather than the ‘power possessed by an independent State;’ and so on and so forth. To establish the normative functionality of a conceptual term, international lawyers need to inquire into the assumed underlying moral or political norms. If ‘genocide’ typically provokes a different reaction on the part of participants in international legal discourse than ‘killing members of a national, ethnical, racial or religious group with intent to destroy, in whole or in part,’ this is not because of the lexical legal meaning of ‘genocide,’ but because of the norms assumedly tied to this same concept in political discourse.44 The normative functionality of ‘genocide’ is dependent on whether or not participants in international legal discourse can acquaint themselves with those norms, at least to some extent. Similarly, the normative functionality of jus cogens would seem to turn on the political norms assumed by participants in international legal discourse to give justification of the very existence of the jus cogens regime. The way for an utterer to make sure that those norms are available to an audience is to direct its 42 In referring to this functionality, other commentators have spoken about “the promotional rationale” and “the charming power” of jus cogens, see, in turn Carlo Focarelli, Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects, NJIL 77 (2008), 429, 455–459; Ruiz Fabri (note 15), 1050. 43 See Lars Lindahl, Deduction and Justification in the Law: The Role of Legal Terms and Concepts, Ratio Juris 17 (2004), 182, 195–198. 44

See Preamble Genocide Convention.

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attention to their existence. Consequently, when an utterer uses jus cogens to convince addressees of the correctness of arguments, indications of this fact may be found in assertions that jus cogens is the expression of an international ordre public,45 for example, or in the suggestion that jus cogens forms an element of an international constitution.46 More often, the relevant political norms are made available by the utterer by implicit reference. Consequently, depending on the particular ground of justification referred to, the utterer may point to the vital importance of the rights, policies or goals protected by jus cogens,47 or to “the basic values of the international community” manifested in jus cogens.48 Similarly, utterers may remark that jus cogens stands as a guarantee of “values viewed as fundamental by the international community a whole rather than the self-interested choices of nations;”49 that jus cogens serves as protection of some more specific object to which the audience can be expected to be favourable, such as ‘fundamental human rights,’50 or ‘an open international market;’51 that violations of jus cogens are contradictory to ‘the fundamental concern for fairness;’52 that “without the primacy of jus cogens, international law would have a grim future;’53 or that jus cogens are norms “so essential to the international system that their breach places the very existence of that system in question.”54 45

See e.g. Orakhelashvili (note 10), Chapter 1, especially 29.

46

See e.g. Jost Delbrück, “Laws in the Public Interest”- Some Observations on the Foundations and Identification of Erga Omnes Norms in International Law, in: Volkmar Götz/Peter Selmer/Rüdiger Wolfrum (eds.), Liber Amoricum Günther Jaenicke –Zum 85. Geburtstag (1998), 17, 35. 47

See ICJ, Armed Activities on the Territory of the Congo (note 17), Separate Opinion of Judge ad hoc Dugard, ICJ Reports 2006, 86, para. 10. 48 See ECtHR, Al-Adsani v. The United Kingdom, Judgment of 21 November 2001, Joint Dissenting Opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić, RJD 2001-XI, 111, para. 2. 49 Darcie L. Christopher, Jus Cogens, Reparation Agreements, and Holocaust Slave Labour Litigation, Law & Policy in International Business 31 (2000), 1227, 1233. 50

Andrea Gattini, War Crimes and State Immunity in the Ferrini Decision, Journal of International Criminal Justice 3 (2005), 224, 234. 51 Michael H. Allen, Globalization and Peremptory Norms in International Law: From Westphalian to Global Constitutionalism, International Politics 41 (2004), 341, 346. 52

Christopher (note 49), 1236.

53

ICJ, Jurisdictional Immunities of the State (note 5), Dissenting Opinion of Judge Cançado Trindade, ICJ Reports 2012, 179, para. 288. 54

Jean Allain, The Jus Cogens Nature of Non-Refoulement, International Journal of Refugee Law 13 (2002), 533, 535.

366 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 B. It Potentially Helps Provoke an Understanding of Arguments as Generalised Propositions

Utterers resort to jus cogens because it potentially makes addressees understand their arguments in a more systematic fashion. According to the ontological stance taken in this article, concepts are formed through a process of abstraction. They are the result of the ability of the human brain to perceive of particular properties of phenomena or states of affairs as characteristics shared by all entities belonging to the extension of some certain concept.55 This means that by the mere nature of what it represents, a conceptual term will always express an assumption about the existence of some certain relationship or relationships between particular phenomena or states of affairs.56 If, for example, a particular phenomenon is referred to by an utterer as a ‘football,’ the utterer may be understood to commit herself to the assumption that she is speaking about an object, which is either round or oval in shape, made by leather or plastic, having a weight of something between 410 and 450 grams. Similarly, if a determinate or indeterminate number of norms are referred to by an utterer as jus cogens, the utterer may be understood to commit herself to the assumption that there is a special kind of relationship between all those norms, in the sense that this relationship does not obtain between any other norms of international law not belonging to the extension of this same concept. Potentially, at least, such assumptions would seem to help addresses understand jus cogens arguments in a more systematic fashion. Whatever the characteristic property or properties assumed by an utterer, the resort to jus cogens provokes an understanding of the utterer’s argument as a generalised proposition. This will be referred to as the ‘systemising functionality’ of jus cogens. To establish the systemising functionality of a conceptual term, international lawyers need to inquire into the assumed existence of one or several systemising criteria. To illustrate, the systemising functionality of treaty depends on whether participants in international discourse are able to understand that in so characterising a particular agreement, the utterer expresses an assumption not only about the properties of the particular agreement (such, as for instance, its written form, or the fact 55 See e.g. Eric Margolis/Stephen Laurence, Concepts, in: Edward Zalta (ed.), Stanford Encyclopedia of Philosophy (Summer 2010 Edition) available at: http://plato.stanford.edu/archives/sum2010/ entries/concepts (accessed on 25 February 2014). 56

See ibid.

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that parties to the agreement intended that it be governed by international law), but also about the properties of treaties in general.57 Similarly, in order for jus cogens to have a systemising functionality, participants in international legal discourse need to have an opportunity to acquaint themselves with the general purport of the utterer in resorting to this term. Such an assumption can be made available by an utterer by explicit or implicit reference to the systemising criterion or criteria being assumed. Consequently, when an utterer uses jus cogens to make addressees understand her arguments in a more systematic fashion, indications of this fact may be found in observations about the non-derogatory character of jus cogens norms, the nature of jus cogens obligations as prohibitions, the irrelevance of State consent for the validity of jus cogens, or its universal applicability ratione personae.58 By providing information about the assumed systemising criteria, the utterer may also provoke further inferences about the particular norm characterised by the utterer as jus cogens, thus conferring on jus cogens not only a systemising functionality, but also other functionalities, which are analytically separate. Thus, there is an intimate relationship between the systemising functionality of jus cogens and the indirect functionalities of that term to be described later in this article (see infra, IV).

C. It Potentially Causes Misunderstandings of the True Nature of Arguments

Utterers resort to jus cogens because it potentially causes addressees to misunderstand the true nature of any utterer’s argument. If jus cogens had not existed, the international jus cogens regime would have had to be stated and discussed linking individual identifying criteria with individual legal consequences. Addressing the international jus cogens regime generally, utterers would have had to produce at each and every single occasion of utterance a complete list of all the relevant identifying criteria and all the relevant legal consequences linked to the jus cogens concept. To this extent, obviously, jus cogens potentially helps participants in international legal

57

See Linderfalk (note 40).

58

See infra, IV.

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discourse think and talk about international law in a more economic fashion.59 This economising functionality of jus cogens comes at a certain cost. Although an utterer may have access to the relevant means for the determination of the international jus cogens regime, as earlier stated, identifying criteria and legal consequences cannot be determined to any appreciable extent. The introduction of jus cogens as an intermediate term between identifying criteria and legal consequences helps to conceal this. Consequently, in so far as the jus cogens argument is in fact the result more of the utterer’s own moral and political universe than of her observation and assessment of the relevant means for the determination of law, potentially at least, addressees may understand the argument differently. This will be referred to as the ‘camouflaging functionality’ of jus cogens. To establish the camouflaging functionality of jus cogens, international lawyers need to inquire into the way addressees perceive of the productivity of traditional legal methodology. The camouflaging functionality of jus cogens turns on the (false) assumption that by using the relevant means for the determination of law, the utterer can provide a fairly good description of the identifying criteria and the legal consequences tied to the jus cogens concept. To the extent that addressees are either not already familiar with the poor productivity of traditional legal methodology, or have learned about this poor productivity but are prepared to reconsider, utterers may contribute to making such an assumption available. Consequently, when an utterer uses jus cogens with a camouflaging intent, indications of this fact may be found in the introduction by an utterer of a proposition as “obvious” or “self-evident,”60 or by frankly remarking about the proposition that “anything else would be absurd.”61 Referring to a proposition as the result of “a general understanding,”62 or “a universal consensus,”63 may also do the trick.

59

See Linderfalk (note 40), 33–36.

60

See e.g. Christopher A. Ford, Adjudicating Jus Cogens, Wisconsin International Law Journal 13 (1994), 145, 153. 61

See e.g. ibid., 153 and 164.

62

See e.g. Christopher (note 49), 1236.

63

See e.g. ibid., 1234.

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D. It Potentially Makes Addressees Process Arguments Independently of Any Law-Maker’s Current Understanding

Utterers resort to jus cogens because it potentially makes addressees process the arguments of utterers independently of any law-makers’ current understanding. When States and international organisations adopt a legal document using in that document some particular conceptual term, they do not always provide the specific criteria defining its extension. In every such case, when participants in international legal discourse subsequently engage in the analysis of the document, they can always argue that international law-makers used the term as a generically referring expression: rather than to any specific entity or groups of entities, they used the term to refer to a class of entities defined only generically.64 According to this argument, law-makers decided that the extension of the term be determined based on some particular institutional practice, for instance everyday language conventions, the moral principles followed within some certain community, the teaching of natural science, or the practice of some certain institution or judicial body. From this position, there is but a small step to also contending that the meaning of the term should be determined based not on the particular institutional practice existing at the time of the conclusion of the document, but in accordance with institutional practice as it develops, irrespective of what it might be on each and every moment in time. Thus, in the context of the UN Charter, it can be argued that the participants in the 1945 San Francisco Conference defined ‘human rights’ as synonymous with whatever the competent UN bodies would understand it to be in their future work.65 In the context of the 1972 Treaty between Hungary and Czechoslovakia Concerning the Construction and Operation of the Gabčíkovo-Nagymaros System of Locks,66 it can be argued that “the quality of the water in the Danube”67 was defined by the two parties as synonymous with whatever

64 On generic reference generally, see Ulf Linderfalk, Doing the Right Thing for the Right Reason: Why Dynamic or Static Approaches Should be Taken in the Interpretation of Treaties, International Community Law Review 10 (2008), 109. 65

Art. 1 (3) UN Charter, 26 June 1945, UNTS 892,119.

66

Treaty between the Hungarian People´s Republic and the Czechoslovak Socialist Republic concerning the construction and operation of the Gabčíkovo–Nagymaros system of locks, 16 September 1977 (Gabčíkovo–Nagymaros Treaty), available at: http://www.gabcikovo.gov.sk/doc/it1977en (accessed on 25 February 2014). 67

Art. 15 (1), Gabčíkovo–Nagymaros Treaty.

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natural science from time to time would understand by ‘qualitative water.’68 In the context of the European Convention on the Protection of Human Rights and Fundamental Freedoms,69 similarly, it can be argued that ‘morals’70 was defined by the parties to that Convention as synonymous with whatever moral standards come to be honoured in European countries. In so far as the usage of a conceptual term opens this possibility, obviously, it will cause addressees to process the arguments of utterers independently of any law-makers’ understanding. This will be referred to as the ‘emancipating functionality’ of a conceptual term. To establish the emancipating functionality of jus cogens, international lawyers need to inquire into the way addresses understand the referring intention of international law-makers. The emancipating functionality of jus cogens turns on the assumption of addressees, that other agents also play a role in the development of the international jus cogens regime. Utterers may contribute to making such an assumption available in various ways. Consequently, when an utterer uses jus cogens to make addressees process their arguments independently of any law-makers’ current understanding, the utterer may indicate this intention by referring to an act as “universally condemned,”71 or to jus cogens as the product of a “world conscience.”72 The utterer may refer to the “universal juridical conscience” manifested in jus cogens.73 The utterer may remark that jus cogens norms are to be identified “on the basis of the evolution of the understanding of the international community.”74 Perhaps even more effectively, the utterer may refer to the preparatory work of the 1969 VCLT. In Article 53 VCLT, jus cogens is defined in a rather peculiar way, by reference to the relevant legal consequences tied to this concept: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is 68

Ibid.

69

European Convention on the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 70

See e.g. Arts. 6 (1), 8 (2), 9 (2), 10 (2), 11 (2) ECHR.

71

See e.g. Christopher (note 49), 1233.

72

See e.g. ibid., 1234.

73

See e.g. IACtHR, Nicholas Chapman Blake v. Guatemala, Series C, No, 26, Judgment of 24 January 1998, Separate Opinion of Judge Cançado Trindade, para. 25, available via: http://www.corteidh. or.cr/index.php/en/decisions-and-judgments (accessed on 25 February 2014). 74

De Schutter (note 22), 64.

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permitted and which can be modified only by a subsequent norm of general international law having the same character.

There is a reason for why this definition was chosen. The drafters initially found that there was no common agreement among international lawyers about the particular criterion or criteria to be used for the identification of particular jus cogens norms.75 Highlighting this fact, while downplaying at the same time the definition provided in Article 53 VCLT – which makes the extension of jus cogens still dependent on the action of States – is an often used strategy among utterers, who use the term for emancipating purposes.76

E. It Potentially Helps Contain the Understanding of Other Conceptual Terms

Utterers resort to jus cogens because it potentially helps contain the understanding of addressees of other conceptual terms. Just like a concept is dependent on the existence of some certain relationship or relationships between particular phenomena or states of affairs, the meaning of a conceptual term is dependent on its relationship with other conceptual terms belonging to the same language system.77 For example, the meaning of ‘football’ (in the sense of the ball object) is dependent on its relationship with the concept of the game known as ‘football;’ the meaning of ‘kick’ is dependent on its relationship with ‘foot;’ the meaning of ‘arm’ is dependent on its relationship with ‘finger,’ ‘shoulder’, and ‘body;’ and so on. Every such proposition about the relationship between two conceptual terms implies the existence of some principle that can explain why for instance ‘kick’ is more closely related to ‘foot’ than ‘sky,’ or why ‘arm’ is more closely related to ‘shoulder’ than ‘maritime transport.’78 Because of the existence of such principles, the usage of one conceptual term in 75

See ILC, Draft Articles on the Law of Treaties with Commentaries, in: id., Report of the International Law Commission covering the work of its fifteenth session, UN Doc. A/CN.4/163, 189 (1963), 198–199. 76

See e.g. Stefan Kirchner, Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System, German Law Journal (GLJ) 5 (2004), 47, 48–49. 77

See Lyons (note 29), Chapters 8–9.

78

Ibid.

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international legal discourse potentially works to facilitate the usage by utterers of yet other such terms. For instance, if an utterer refers to a territory meeting some certain criteria as ‘State territory,’ then this would typically contain the interpretation by addressees of terms such as ‘internationalised territories.’ Reference by an utterer to an understanding of a treaty as its ‘ordinary meaning’ would typically contain the interpretation by addressees of terms such as ‘special meaning.’ Similarly, the reference by an utterer to a vehicle as a ‘foreign ship’ would typically contain the interpretation by addressees of terms such as ‘hot pursuit.’ This potentiality inherent in conceptual terms will be referred to as their ‘formative functionality.’ Like most other conceptual terms used in international legal discourse, jus cogens has a formative functionality. To establish this functionality, international lawyers need to inquire into the principles explaining the relationship between jus cogens and other concepts. The formative functionality of jus cogens relative to, for example, ‘ordinary international law’ depends on whether addressees can acquaint themselves with the assumption that those two terms are antonyms: the extension of jus cogens does not entail any one norm of ‘ordinary international law,’ and the extension of ‘ordinary international law’ does not entail any one norm of jus cogens. The formative functionality of jus cogens relative to ‘aggravated State responsibility’ depends on whether addressees can acquaint themselves with the assumption that ‘aggravated State responsibility’ requires a breach of a jus cogens norm.79 The formative functionality of jus cogens relative to the international jus cogens regime depends on whether addressees can acquaint themselves with the assumption that there is a relationship between those two concepts in so far as the international jus cogens regime includes not only jus cogens norms proper; it also depends on norms that specify the legal consequences ensuing from the postulated superiority of jus cogens norms over ordinary international law, as well as norms that provide a definition of the jus cogens concept.80 Utterers have the possibility of contributing to making such assumptions available by explicitly stating their understanding of how the two conceptual terms are related.81 79

See Art. 40 ILC Draft Articles (note 2).

80

See Ulf Linderfalk, The Creation of Jus Cogens: Making Sense of Article 53 of the Vienna Convention, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 71 (2011), 359, 360. 81

See e.g. Kerstin Bartsch/Björn Elberling, Jus Cogens vs. State Immunity, Round Two: The Decision of the European Court of Human Rights in the Kalogeropolou et al. v. Greece and Germany Decision, GLJ 4 (2003), 477, 487.

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Another possibility is to provide a definition of the assumed neighbouring concept, leaving the relationship with jus cogens to be implied. If, for instance, the utterer defines ‘ordinary international law’ as defeasible law, then addressees will easily understand that according to the assumption of the utterer, jus cogens is indefeasible law.82 Any such action on the part of an utterer will typically indicate that the utterer uses jus cogens to contain the understanding of addressees of other conceptual terms.

IV. Why Utterers Resort to Jus Cogens: Indirect Functionalities A. It Potentially Helps Convey Pieces of Legal Knowledge

In everyday language, the utterance of a string of words may affect the beliefs, attitudes, or behaviour of an addressee in several ways simultaneously.83 Take the example of a teenage daughter, Alice, who utters to her father, Andrew, the following sentence: ‘We’re out of milk!’ By this utterance, potentially, first, Alice may raise Andrew’s awareness to the fact that there is no more milk in the fridge. Secondly, she may raise Andrew’s awareness to her feeling of discontent (because Alice always takes milk with her coffee). The interesting point of the example is the relationship between the two functionalities of the sentence. If the necessary conditions for the two functionalities are to be described, the former would seem to depend on the availability of an assumption about the lexical and grammatical meaning of the words uttered. The second functionality, on the other hand, would seem to depend partly on the recognition of the addressee that the sentence – ‘We’re out of milk!’ – may be used to convey the information that there is no more milk in the fridge. Partly, it would seem to depend on the availability of a supporting assumption, namely the assumption that Alice likes to have milk in her coffee. That is to say, the second functionality remains partly dependent on the recognition of the addressee of the former.84 If Andrew had not been enough acquainted with the English language to understand that ‘We’re out of milk!’ may be used to inform him that there is currently no milk in the fridge, this 82

See e.g. Allain (note 54), 534.

83

See e.g. Lyons (note 29), 736.

84

See James R. Hurford/Brendan Heasley, Semantics: A Coursebook (1983), 257–267.

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sentence could never have raised his awareness to Alice’s feeling of discontent. For this reason, pragmatics would say that the latter meaning is indirect, while the former is direct.85 This distinction between direct and indirect functionalities can be used also for the analysis of the functionality of conceptual terms like jus cogens. If one particular functionality can be ascribed to jus cogens, then by the mere fact that addressees are able to recognise this functionality, the term may have other functionalities, too. This is why the usage of jus cogens potentially helps convey to addressees pieces of legal knowledge.86 If a particular norm is categorised by an utterer as jus cogens, then obviously this may prompt, on the part of addressees, the inference that according to the utterer, this particular norm has the same properties as any other alleged norm of jus cogens. Depending on the systemising criteria assumedly used by the utterer, addressees may then use this assumption as a basis for further inferences about the particular norm characterised as jus cogens. They may infer, for instance, that the norm expresses an obligation erga omnes.87 This is to say, that in order for jus cogens to potentially help convey to addressees pieces of legal knowledge, two assumptions will have to be available to them: first, the assumption that the utterer expresses a generalised proposition; second, the supporting assumption that the utterer, in using jus cogens, draws on some particular systemising criterion or criteria, for example, the idea that norms of jus cogens inevitably entail obligations erga omnes. The necessity of a second, supporting assumption allows references to the knowledge-generating functionality of jus cogens as being indirect. Utterers may contribute to making this assumption available. Consequently, when an utterer uses jus cogens to convey to addressees pieces of legal knowledge, indications of this fact may be found in explicit references to alleged defining features of jus cogens. Examples include the non-derogatory character of jus cogens norms;88 the nature of jus cogens obligations as

85

Ibid.

86

See Aarnio (note 9), 11–12.

87

See e.g. Bruno Simma, From Bilateralism to Community Interests, Recueil des Cours 250 (1994), 221, 285 et seq. 88

See e.g. IACtHR, Blake v. Guatemala, Separate Opinion of Judge Cançado Trindade (note 74), para. 24.

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prohibitions,89 as customary international law,90 or as obligations of result;91 the irrelevance of State consent for the validity of jus cogens;92 or its universal applicability ratione personae.93 The necessary supporting assumption may also be indicated implicitly by comparison with neighbouring concepts such as international crimes,94 nonderogable human rights,95 international obligations erga omnes,96 or world or common heritage law,97 or by providing alleged uncontroversial examples of jus cogens norms displaying some easily recognisable common characteristic.98

B. It Potentially Prompts an Assessment of Arguments Based on Means for the Determination of Lex Lata

The interrelationship between the different functionalities of a piece of language may assume various forms. As shown by the example of Alice and Andrew, the relationship may assume the form of a two-tiered ‘binary’ chain. While in this case the chain consists of a direct and indirect functionality, it seems indirect functionalities can be similarly interrelated. If an assumption about the existence of a direct functionality may help to confer on a piece of language a further indirect functionality, 89

See e.g. Juan Antonio Carillo Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, EJIL 8 (1997), 583, 592. 90

Wladyslaw Czapliński, Concepts of jus cogens and Obligations erga omnes in International Law in the Light of Recent Developments, Polish Yearbook of International Law 23 (1997–1998), 87, 88. 91 ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2012, 487, para. 44. 92

See e.g. Eva M. Kornicker Uhlmann, State Community Interest, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms, Georgetown International Environmental Law Review 11 (1998), 101, 101. 93

See e.g. Carillo Salcedo (note 89), 594.

94

See e.g. Andrea Bianchi, Human Rights and the Magic of Jus Cogens, EJIL 19 (2008), 491, 494.

95

See e.g. Rinwigati Waagstein (note 25), 149.

96

See e.g. Patricia Tarre Moser, Non-Recognition of State Immunity as a Judicial Countermeasure to Jus Cogens Violations: The Human Rights Answer to the ICJ Decision on the Ferrini Case, Goettingen Journal of International Law 4 (2012), 809, 843. 97 See e.g. Jonathan Charney, Universal International Law, American Journal of International Law 87 (1993), 529, 541. 98

See e.g. Ladan Askari, Girl’s Rights under International Law: An Argument for Establishing Gender Equality as a Jus Cogens, Review of Law and Women Studies 8 (1998), 3, 7.

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why then could not assumptions about the existence of an indirect functionality work the same way? Of course, they can. The example of Alice and Andrew once again illustrates this proposition. Clearly, the availability of the assumption that Alice’s utterance may be used to raise Andrew’s awareness to her feeling of discontent may cause Andrew to think that maybe he should go out to buy some milk. Naturally, this functionality, too, requires the addition of a supporting assumption, for instance the assumption that Alice would like to have her coffee as she usually takes it. The availability of the assumption that Alice’s utterance may have this effect may further cause Andrew to actually go out to buy some milk. But again a supporting assumption is required, for instance the assumption that if Andrew goes out to buys milk, this will alleviate Alice’s feeling of discontent (because then she can have her coffee as she usually takes it). The functionality of jus cogens can be analysed along similar tracks. As was argued in section III, jus cogens has a camouflaging functionality. It potentially makes addressees misunderstand the true nature of utterers’ arguments. This functionality requires the availability of the following (allegedly false) assumption: “By using the relevant means for the determination of lex lata, the utterer can provide a fairly good description of the identifying criteria and the legal consequences tied to the jus cogens concept.” As stated in section III, when an utterer uses jus cogens to make addressees misunderstand the true nature of their argument, indications of this fact can be found in supporting action such as references to a proposition as ‘obvious’ or ‘self-evident.’ The idea of indirect functionalities helps explain why such supporting action may also partly serve as indication of two further intentions. The explanation runs as follows: (1) Jus cogens potentially prompts addressees to assess an utterer’s arguments based on the relevant means for the determination of the relevant lex lata, for example, the officially manifested opinio juris and practice of States. This functionality requires the availability of two assumptions: the assumption that jus cogens may be used to provide a fairly good description of the relevant lex lata; and the assumption that the utterer’s argument can be assessed based on the relevant means for the determination of lex lata. Utterers contribute to making the first assumption available by indicating that by using the relevant means for the determination of lex lata, they can provide a fairly good description of the

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identifying criteria and the legal consequences tied to the jus cogens concept. The availability of the second assumption can be ensured by an utterer by referring to one or several particular legal authorities, for instance the Conclusions adopted by the Executive Committee of the Programme of the United Nations High Commissioner for Refugees (UNHCR);99 a decision taken by the Inter-American Court for Human Rights;100 or an opinion delivered in the United Kingdom’s House of Lords.101 (2) Jus cogens potentially impedes constructive criticism of an utterer’s argument. This functionality, too, requires the availability of two assumptions: the assumption that jus cogens may be used to prompt addressees to assess the utterer’s arguments based on the relevant means for the determination of lex lata; and the assumption that an utterer’s argument needs no further assessment apart from what can be achieved by resort to the relevant means for the determination of lex lata. Utterers contribute to making the first assumption available by indicating that the utterer’s argument can be assessed based on the relevant means for the determination of lex lata. The availability of the second assumption can be ensured by an utterer by referring to no other supporting argument than such based on the generally recognised means for the determination of the lex lata.

C. It Potentially Works to Exaggerate the Importance of Arguments and Prevents Addressees from Questioning Utterers’ Intents

As earlier indicated, the interrelationship between the various functionalities of a piece of language may assume other forms than a ‘binary’ chain. Take for example the following fictitious sentence uttered by Professor Martin still commenting on a working paper posted by Dr Austin, on the SSRN: In his SSRN working paper investigating the status of preparatory work as a means of interpretation, rather than occupying himself with extensive studies of the preparatory

99

See e.g. Allain (note 54), 539.

100

See e.g. Francisco Forrest Martin, Delineating a Hierarchical Outline of International Law Sources and Norms, Saskatchewan Law Review 65 (2002), 333, 336. 101

See e.g. De Schutter (note 22), 72–73.

378 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 work of the Vienna Convention, Austin should be concerned with the wording of Articles 31–32 and their organizational structure.

This sentence has (at least) three functionalities: (1) It may cause any male addressee named Austin to think that he should be more concerned with the wording of Articles 31–32 and their organisational structure. (2) It may raise the awareness of any male addressee named Austin to the fact that his preferred methodology is perhaps not the most appropriate. (3) It may cause any male addressee named Austin to think that he should revise his SSRN working paper. The first functionality turns on the availability of an assumption about the lexical and grammatical meaning of the sentence used by Professor Martin. The second functionality turns on the availability of an assumption about the referring possibilities of this same sentence: in a situation like the one prevailing, the sentence can be used to refer to the extensive studies of the preparatory work of the VCLT as a less appropriate methodology. The third functionality, interestingly, requires a different explanation. It turns on the recognition of the addressee of the availability of two assumptions: first, the assumption that the sentence uttered by Professor Martin may be used to cause a male addressee named Austin to think that he should be more concerned with the wording of Articles 31 and 32 VCLT and their organisational structure; second, the assumption that in a situation like the one prevailing, the sentence uttered by Professor Martin can be used to refer to the extensive studies of the preparatory work of the VCLT as a less appropriate methodology. In other words, the third functionality turns on the recognition of the addressee that the sentence used by Professor Martin has not one of the earlier two functionalities, but both. This makes the indirect functionality of this sentence fundamentally different from the various indirect functionalities of ‘We’re out of milk!’. Realising this difference helps international lawyers come to grips with the indirect functionalities of jus cogens. As the present article would suggest, jus cogens has the following two indirect functionalities:

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(1) It potentially works to exaggerate the importance of statements that on closer scrutiny might be rather trivial. If an utterer made a sentence like ‘The prohibition of torture is jus cogens,’ although she only wanted to express that it is extremely important that torture be prevented, because of the functionality of jus cogens, the utterance would typically be understood to carry more weight than this. (2) It potentially prevents participants in international legal discourse from questioning the intent of utterers. On further scrutiny, the effect of an utterance like ‘The prohibition of torture is jus cogens’ may often be quite similar to ‘I find that the prohibition of torture is jus cogens, and if by any chance you do not share this opinion, this shows you are pro-torture.’ Both functionalities turn on the availability of the twofold assumption that jus cogens has a normative as well as a camouflaging functionality. As stated in section III, the normative functionality of jus cogens turns on the availability of an assumption about the underlying moral and political norms. The camouflaging functionality turns on the availability of the (false) assumption that the utterer can provide a fairly good description of the identifying criteria and legal consequences tied to the jus cogens concept. Section III illustrated how an utterer may contribute to making those two assumptions available. To ensure the normative functionality of jus cogens, for example, the utterer may point to the vital importance of the rights, policies or goals that it protects; to ensure the camouflaging functionality of jus cogens, the utterer may refer to a proposition as the result of ‘a general understanding’ or ‘a general consensus.’ Consequently, when an utterer uses jus cogens to exaggerate the importance of statements, or to prevent addressees from questioning the utterer’s intents, indication of this fact can be found in the combination of the supporting action of those two kinds.

V. The Significance of Jus Cogens for the Formation of International Law As other legal scholars have established, the usage of language plays an important role in the making of international law.102 Not only States and international organisa102

See e.g. Ingo Venzke, How Interpretation Makes International Law (2012).

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tions make international law, but also other participants in international legal discourse. As will be illustrated in this Section, functionality analysis may help international lawyers understand and describe those processes in more detail. International law results from a combination of institutionalised action, such as the conclusion of an international agreement or the participation in an international practice, and the perception and understanding of participants in international legal discourse of that action.103 Stated in the context of jus cogens, international law is formed partly by action that confers on a norm the character of both international law and jus cogens,104 and partly by action that furthers an understanding of the identifying criteria and legal consequences tied to the jus cogens concept. This assumption needs emphasising. It will work as a point of departure for the following brief inquiry into the further significance of jus cogens arguments for the formation of international law. As indicated by the observations made in sections III and IV, the potential effect of jus cogens arguments on the formation of international law inevitably depends on the particular functionality of jus cogens considered. First, take for example the normative functionality of jus cogens. As the definition of this functionality goes, jus cogens potentially works to convince addressees of the correctness of any utterer’s arguments. The normative functionality of jus cogens turns on the availability of the norms assumedly tied to the jus cogens concept in political discourse. In so far those norms are available, if an utterer expresses the proposition that because some certain norm (e.g. the prohibition of genocide) is jus cogens, some certain legal consequences should ensue, the utterer is implicitly providing the addressee with a particularly weighty reason for the adoption of the proposition. To the extent of the normative functionality of jus cogens, an increased usage of this term potentially furthers an understanding of the identifying criteria and legal consequences tied to the jus cogens concept. Secondly, take the systemising functionality of jus cogens. Jus cogens potentially makes addressees understand the arguments of utterers as generalised propositions. Indirectly, because addressees can acquaint themselves with the systemising function103

Symptomatically, judicial decisions and the teachings of legal scholars are generally referred to as “means for the determination of rules of law,” see e.g. Art. 38 (1)(d) Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355. 104

See Ulf Linderfalk, The Source of Jus Cogens Obligations: How Legal Positivism Copes with Peremptory International Law, NJIL 82 (2013), 369, 385–386.

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ality of jus cogens, the term potentially also helps convey to addressees pieces of legal knowledge. More exactly, it potentially helps addressees fit the observation of some particular norm into the greater system of assumptions held by them at the time of address, thus prompting a series of further inferences about this same norm. To the extent of the systemising functionality of jus cogens, apparently, the increased usage of this term potentially furthers the understanding of the identifying criteria and legal consequences tied to the jus cogens concept. Thirdly, the emancipating functionality of jus cogens: jus cogens potentially makes addressees process the arguments of utterers independently of any law-maker’s current understanding of the term. This functionality is explained by the availability of the assumption that in relevant international documents, such as the 1969 and the 1986 Vienna Conventions on the Law of Treaties,105 international law-makers used jus cogens as a generically referring expression. In resorting to jus cogens, law-makers referred to no more than a class of norms, leaving the referent (i.e. the class) to be defined by some particular institutional practice as it develops over time. By this assumption, jus cogens comes to work as bridge between the assumed referring intention of international lawmakers and later developments. To the extent of the emancipating functionality of jus cogens, obviously, the increased usage of this term potentially furthers the understanding of the identifying criteria and legal consequences tied to the jus cogens concept. Fourthly, the formative functionality of jus cogens: jus cogens potentially helps contain the understanding of addressees of other conceptual terms. In the case of a term like jus cogens, which has very little descriptive meaning, it may not be obvious to everyone how the formative functionality of the term can make its usage significant for the formation of international law. If ordinary international law is defined as an antonym of jus cogens, and the descriptive meaning of jus cogens remains meagre, then the descriptive meaning of ordinary international law will be equally meagre – this is how the argument goes. This objection ignores the effect that the establishment of a relationship between two terms may have on their understanding. Like all conceptual terms, ordinary international law potentially helps convey to addressees new pieces of knowledge about the particular norm or norms so referred to. Because of the relation105

Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, 21 March 1986, UN Doc. A/CONF.129/15 (not yet in force).

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ship between ordinary international law and jus cogens – given that the process of understanding works according to the theory of the hermeneutic circle – this way addressees will potentially also learn more about norms of jus cogens. To the extent of the formative functionality of jus cogens, obviously, the increased usage of this term potentially furthers the understanding of the identifying criteria and legal consequences tied to the jus cogens concept. Fifthly, the camouflaging functionality of jus cogens: jus cogens potentially causes addressees to misunderstand the true nature of any utterer’s argument. That is to say, jus cogens potentially makes addressees (falsely) believe that utterers can provide a fairly good description of the relevant lex lata. Indirectly, because addressees can acquaint themselves with this functionality, jus cogens potentially prompts addressees to assess any utterer’s argument using methodology ill-suited for that purpose. The availability of this indirect functionality in turn implies that jus cogens potentially also impedes constructive criticism of any utterer’s argument. Therefore, to the extent of those three functionalities, contrary to the other functionalities considered, the increased usage of jus cogens potentially encumbers the understanding of the identifying criteria and legal consequences tied to the jus cogens concept. Sixthly, take the indirect functionalities of jus cogens ensuing from the combination of its normative and camouflaging significance. Indirectly, because addressees can acquaint themselves with the camouflaging and the normative functionalities of jus cogens, this term potentially helps exaggerate the importance of any utterer’s statements. For the very same reason, jus cogens potentially prevents addressees from questioning any utterer’s intents. Thus, to the extent of those two functionalities, an increased usage of jus cogens potentially encumbers the understanding of the identifying criteria and legal consequences tied to the jus cogens concept.

VI. Conclusions The usage of jus cogens arguments in international legal discourse may certainly have an effect on international law-formative processes. Depending on the particular functionality considered, potentially, it either contributes to the formation of interna-

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tional law, or obstructs it. Having said that, the present author wishes to emphasise once again the distinction between the potential and actual effect of a piece of language such as jus cogens. Naturally, the actual effect of the usage of jus cogens arguments on the formation of international law will depend also on other things than the mere functionalities of jus cogens. It will depend on the contents of the propositions expressed, of course; but equally will it depend on whether and to what extent utterers, in resorting to jus cogens arguments, actually succeed to affect the beliefs, attitudes, and behaviour of addressees. As stated in section II, the actual effect of an utterance on the beliefs, attitudes, and behaviour of an addressee turns on the assumption or assumptions that the addressee actually uses in the process of understanding it. Obviously, the addressee can use only such assumptions that are available to him. What is interesting is that the availability of assumptions remains partly in the control of utterers; this was highlighted in section III. Hence, an utterer may contribute to conferring on jus cogens a normative functionality by the assertion that it is the expression of an international ordre public, or by the suggestion that it forms an element of an international constitution. An utterer may contribute to conferring on jus cogens a systemising functionality by providing alleged uncontroversial examples of jus cogens norms displaying some easily recognisable common characteristic. Similarly, an utterer may confer on jus cogens a camouflaging functionality by referring to their argument as the result of ‘a general understanding’ or ‘a universal consensus.’ Experience suggests that eventually the actual effect of a jus cogens argument will often depend on the way addressees react to such communicative strategies. This article, and Sections III and IV in particular, might possibly help addressees to a better understanding of utterers’ intentions. In so doing, it might also help addressees understand and assess the activity of which they are inevitably a part.

Absolute Rights and Proportionality MARTIN BOROWSKI(

ABSTRACT: Certain rights are commonly regarded as absolute sensu stricto, that is to say, they lend themselves neither to limitation nor to proportionality analysis. Following the received opinion, absolute sensu stricto characterises rights found in Articles 3 and 4 (1) European Convention on Human Rights and Articles 1, 4 and 5 (1) Charter of Fundamental Rights of the European Union. I shall argue, to the contrary, that the basic rights commonly regarded as absolute are not absolute sensu stricto. Rather, proportionality analysis that is employed elsewhere can and should be used here, too. Why so? The merit of a reconstruction of these rights in terms of proportionality analysis is the explanation that it provides, namely, why it is that these rights enjoy, for all intents and purposes, an ‘absolute’ standing. Thus, the dogmatic, not to say a priori character of absolute rights sensu stricto yields to an understanding of these rights in terms of the very machinery used elsewhere in proportionality analysis. KEYWORDS: Absolute Rights, Proportionality, Balancing, Empirical Certainty, Relative Absoluteness, Human Dignity, Torture

I. Introduction In ever greater numbers, constitutional lawyers have come to appreciate that the doctrine of proportionality is a crucial factor in assessing claims that stem from basic rights. Still, we are told that certain rights, call them ‘absolute rights,’ are not amenable to proportionality analysis. Is this a defensible position? I have my doubts, and I will be arguing that the ostensibly ‘absolute character’ of these rights can – and ought to – be reconciled with the doctrine of proportionality. That is to say, these rights, too, lend themselves to reconstruction in terms of balancing, which, in turn, takes its cues from the doctrine of proportionality. To be sure, in practical circumstances the structural properties of balancing along with fundamental rules respecting the assign(

Professor for Public Law, Constitutional Theory, and Legal Philosophy, University of Heidelberg. I wish to thank Robert Alexy, Stephen Greer, Stanley L. Paulson, and George Pavlakos for helpful comments.

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ment of weights to competing principles will give rise to the property of ‘absoluteness.’ If, however, ‘absoluteness,’ thus understood, stems from balancing as per the doctrine of proportionality, then it might best be termed ‘relative absoluteness.’ The alternative, call it ‘blanket absoluteness,’ would then reflect a wholesale dismissal of balancing. This ‘relative’ reading of absolute rights provides no less protection than that associated with ‘absolute rights’ – and, I argue, it does so more convincingly than the traditional account, for it avoids problems and paradoxes that have bedevilled the traditional understanding of absolute rights over a long period of time. I shall argue, in nine sections, on behalf of the relative reading of ‘absolute rights,’ to wit: I begin, in section II, with a sketch of the role that proportionality analysis plays generally in the assessment of claims based on basic rights. I turn then, in section III, to the common understanding of ‘absolute rights:’ Specifically, which rights are commonly regarded as absolute, and what structural characteristics are attributed to them? In what follows, I then explain, in section IV, the problems to which the structural characteristics of absolute rights sensu stricto give rise. After an outline of a relative reading of absolute rights in section V, I ask, in section VI, in what different kinds of debates the issue of a relative reading is typically raised. In section VII, I then turn to an explication of the phenomenon of relative absoluteness qua proportionality in greater detail. I go on to pose the question, in section VIII, of whether everything is relative – or whether there are deontological constraints to balancing that stem from the prohibition of using others as means to ends. To illustrate the relative reading of ‘absolute rights,’ I revisit, in section IX, the example of the Gäfgen case. Finally, I discuss, in section X, the issue of whether proportionality and limitation can and should be uncoupled. Here the ‘relativity’ of the scope of Article 3 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)1 and Robert Alexy’s reconstruction of human dignity according to Article 1 (1), (2) of the German Basic Law2 loom large.

1 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5 (ECHR). 2

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 11 July 2012, BGBl. I, 1478.

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II. Proportionality and Rights Proportionality analysis is widely regarded as a crucial factor in the protection of human rights. In the case law of the European Court of Human Rights (ECtHR) in Strasbourg, the application of Convention rights involves, as a rule, proportionality analysis. This applies, first and foremost, to rights with a written limiting clause that contains the expression “necessary in a democratic society,” Articles 8 (2), 9 (2), 10 (2), and 11 (2) ECHR.3 Proportionality has also become a key criterion in the case law of the European Court of Justice on fundamental rights,4 and it is now expressly provided for in the Charter of Fundamental Rights of the European Union (Charter or ChFR)5 in Article 52 (1) cl. 2. What is more, proportionality analysis has proven itself in the vindication of constitutional rights in many national legal systems.6 Beyond fundamental or constitutional rights, proportionality analysis is also playing a central role in promoting market freedoms in European Union law7 and the freedoms set down in the framework of the World Trade Association.8 Alec Sweet Stone and Jud Mathews recently characterised the international proliferation of proportionality, originally developed in Germany,9 as follows: “By the end of the 1990s, virtually 3

See for example David Harris et al., Law of the European Convention on Human Rights (2nd ed. 2009), 349–359; Robin C. R. White/Clare Ovey, The European Convention on Human Rights (5th ed. 2010), 325–332. 4

See for example Paul Craig/Grainne de Burca, EU Law (5th ed. 2011), 529–530 et passim.

5

Charter of Fundamental Rights of the European Union, 7 December 2000, OJ 2000 C 364, 1 (ChFR). 6

On proportionality in the assessment of rights claims, see generally Robert Alexy, A Theory of Constitutional Rights (2002), 66–69 et passim. On the international proliferation of proportionality, see David M. Beatty, The Ultimate Rule of Law (2004); Alec Stone Sweet/Jud Mathews, Proportionality Balancing and Global Constitutionalism, Columbia Journal of Transnational Law 47 (2008/2009), 72, 112–160; both with further references. See also Mattias Kumm, Political Liberalism and the Structure of Rights: On the Place and the Limits of the Proportionality Requirement, in: George Pavlakos (ed.), Law, Rights, and Discourse: The Legal Philosophy of Robert Alexy (2007), 131, 131–132. 7

Craig/de Burca (note 4), 668 et passim.

8

See Stone Sweet/Mathews (note 6), 153–160 with further references.

9

The first more concrete manifestation of proportionality can be found in Prussian police law as a special branch of administrative law in the 18th century, see Barbara Remmert, Verfassungs- und verwaltungsrechtsgeschichtliche Grundlagen des Übermaßverbotes (1995), 140 et seq. The Basic Law, Germany’s constitution from 1949, does not, however, record proportionality in a particular provision. Early attempts to understand proportionality as required by the Basic Law include seminal articles by Herbert Krüger, Die Einschränkung von Grundrechten nach dem Grundgesetz, Deutsches Verwaltungs-

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every effective system of constitutional justice in the world, with the partial exception of the United States, had embraced the main tenets” of proportionality analysis.10 While the substantive standards of constitutional review in the United States have their own history,11 there is nevertheless a good bit to be said on behalf of the thesis that the United States, too, embraces some elements of ‘balancing.’ This issue, along with the extent to which these elements can be conceived of as a proper part of proportionality, is currently the subject of a lively debate.12 Proportionality is commonly employed as a substantive criterion for the justification of an interference with a basic right,13 for example, a Convention right, a fundamental right, or a constitutional right.14 Following the standard model of the structure of basic rights,15 the assessment of rights claims is carried out in three steps. First, the behaviour of the right-holder has to fall within the protected area. If this is the case, one then asks blatt 65 (1950), 625, 628; and Günter Dürig, Der Grundrechtssatz von der Menschenwürde, Archiv des öffentlichen Rechts 81 (1956), 117, 146. At the beginning of the 1960s, Peter Lerche could assume that proportionality counted as a widely accepted general principle of the Basic Law, see Peter Lerche, Übermaß und Verfassungsrecht (1961), 350 et passim. In the case law of the FCC one finds, with an eye to proportionality, two lines of reasoning. First, proportionality is conceived of as an integral component of the rule of law (Rechtsstaatsprinzip), Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 17, 306, 313–314; 23, 127, 133–134; 27, 1, 8; 30, 250, 263; 35, 382, 400; 38, 348, 368; 49, 24, 58; 61, 126, 134; 69, 1, 35; 76, 256, 359; 80, 109, 120; 92, 277, 325. Second, it follows, the Court claims, “from the nature” (aus dem Wesen) of basic rights, id., BVerfGE 19, 342, 348–349; 61, 126, 134; 65, 1, 44; 76, 1, 50; 77, 308, 334. The German origins of proportionality are often mentioned in contemporary Anglo-Saxon literature, see Stone Sweet/Mathews (note 6), 98–112; Moshe Cohen-Eliya/ Iddo Porat, American Balancing and German Proportionality: The Historical Origins, International Journal of Constitutional Law 8 (2010), 263, 271–276. For the perspective of European Union law, see Craig/de Burca (note 4), 526: “most fully developed within German law”. 10

Stone Sweet/Mathews (note 6), 75.

11

On the history of ‘balancing’ in American constitutional law, see in particular T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, Yale Law Journal 96 (1986/1987), 943, 948–972; Cohen-Eliya/Porat (note 9), 276–284. 12

See for example Cohen-Eliya/Porat (note 9), 266–286.

13

In what follows, I use for the sake of simplicity the term ‘basic rights’ as a generic term covering ‘constitutional rights,’ ‘Convention rights,’ ‘fundamental human rights,’ and the like. 14 This is to say that proportionality is employed as a requirement for the limitation of rights. On reconstructions of rights, in which proportionality and limitation are uncoupled, see infra, X. 15 On this standard structure for the rights of the ECHR, which is reflected in the case law of the European Court of Human Rights (ECtHR), see for example Harris et al. (note 3), 341–342. See furthermore Janneke Gerards/Hanneke Senden, The Structure of Fundamental Rights and the European Court of Human Rights, International Journal of Constitutional Law 7 (2009), 619. See generally Alexy (note 6), 178–200.

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whether a public authority has interfered with the right. If so, the question arises of whether this interference can be justified. Usually there are both formal and substantive criteria for the justification. Formal criteria refer to the form of the interference. For example, it can be required that the interference be – or be legitimated by – a parliamentary statute. A paradigmatic formal criterion is the clause “prescribed by law” according to Articles 9 (2), 10 (2), 11 (2) ECHR.16 Substantive criteria refer to the substantive content of the interference: For example, is an interference excessive because it is disproportionate? For Convention rights, the substantive requirement of proportionality is established by the expression “necessary in a democratic society” in, for example, Articles 8 (2), 9 (2), 10 (2), and 11 (2) ECHR. The Charter has a general limiting clause in Article 52 (1) cl. 2 ChFR that explicitly requires proportionality, and where there are no explicit provisions, the proportionality requirement is firmly rooted in the case law of the courts. Proportionality in its broader sense comprises three criteria.17 Suitability requires that the State pursue a legitimate end, and the means must be appropriate to achieve or, at the very least, to promote that end. Illegitimate ends are excluded from the outset; they have no basis that would justify interferences with basic rights. For example, ‘public health’ according to Article 9 (2) ECHR counts as a legitimate end for limiting freedom of religion and conscience, Article 9 (1) ECHR. Applying the criterion of necessity, the means must have the least restrictive effect. This is to say that there is no alternative means that infringes to a lesser degree on the individual’s rights but promotes the end at least as well as the means employed by the State. Finally, proportionality in its narrower sense requires that the interference with the individual’s right and the promotion of public authority’s legitimate end be balanced. If the former outweighs the latter, the interference counts as disproportionate.18 Even 16

See for example Mark Janis/Richard Kay/Anthony Bradley, European Human Rights Law (2nd ed. 2000), 213–217; White/Ovey (note 3), 312–315; Harris et al. (note 3), 344–348. 17

Alexy (note 6), 66–69; Craig/de Burca (note 4), 526; Cohen-Eliya/Porat (note 9), 267. Some consider ‘legitimate purpose’ as an independent requirement rather than an integral part of the suitability test, which leads to a distinction of four requirements: legitimate purpose, suitability, necessity, and proportionality in its narrower sense. See for example Stone Sweet/Mathews (note 6), 76; Michael Fordham/Thomas de la Mare, Identifying the Principles of Proportionality, in: Jeffrey Jowell/Jonathan Cooper (eds.), Understanding Human Rights Principles (2001), 27, 28. This is, however, only a different conceptualisation of one and the same set of requirements. 18

According to the common definition of proportionality in its narrower sense, an interference counts as disproportionate only if the interference with the right outweighs the promotion of the

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though cases may well be decided at the first and second stages of proportionality analysis, the balancing requirement at this third stage is at the core of proportionality analysis. Proportionality is identical or at least very similar to the idea of practical concordance (praktische Konkordanz), as developed by Konrad Hesse, an influential scholar in constitutional law and justice at the German Federal Constitutional Court (FCC).19 The following hypothetical case may serve to illustrate an application of proportionality to rights: John wishes to attend religious services at his church. The authorities, however, have temporarily banned every sort of assembly, for an easily contracted form of influenza has become pandemic. Does John have a valid claim stemming from his freedom of religion according to Article 9 ECHR? Attending religious services counts as a manifestation of religion and falls, therefore, within the scope of religious freedom according to Article 9 ECHR. The prohibition by the public authority makes it impossible for John to attend the service. Thus, it represents an interference. The limiting clause in Article 9 (2) ECHR empowers public authorities to limit one’s exercise of religious freedom – in the language of the clause, one’s “religion and beliefs.” Assuming that the prohibition is based on a parliamentary statute that explicitly confers the power on the responsible authorities to issue such a prohibition of assembly in order to prevent the disease from spreading, the requirement of a formal justification as ‘prescribed by law’ is met. Is the prohibition of assembly also “necessary in a democratic society,” that is, proportionate in its broader sense? The authorities are pursuing the end of disease prevention. This is a reflection of the

legitimate end being pursued by public authorities. It does not require, however, that the promotion of the legitimate end pursued by public authorities outweighs the interference with the right. There are cases in which balancing leads to a stalemate – one cannot say either that the interference with the right outweighs the promotion of the end pursued by public authority or vice versa. On such cases, see Alexy (note 6), Postscript, 408–414. The common definition gives the benefit of the doubt to the government. It deserves to be emphasised that the question of which side enjoys the benefit of the doubt is a substantive rather than a structural issue. 19 See Konrad Hesse, Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland (20th ed. 1995), 28. In his characterisation of practical concordance, Hesse refers explicitly to proportionality. On the resemblance between proportionality and practical concordance, see Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland, vol. III/2 (1994), 625 et seq. There are, however, attempts to distinguish between proportionality and practical concordance, see for example Ernst-Wolfgang Böckenförde, Grundrechte als Grundsatznormen, in: id. (ed.), Staat, Verfassung, Demokratie (2nd ed. 1992), 159, 184. This depends on whether practical concordance requires optimisation beyond the extent to which proportionality does; this issue shall not, however, be pursued here further.

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“protection of […] health” according to Article 9 (2) ECHR, a legitimate end. Since an easily contracted disease may well spread in an assembly of persons, prohibiting such assemblies promotes the legitimate end. It is suitable in the sense of proportionality. No less restrictive means crosses one’s mind; thus, the prohibition of such assemblies is also necessary. Finally, John’s interest in attending religious services of his faith has to be balanced against the protection of public health that is achieved by the prohibition of the religious service qua assembly. In light of the fact that aggressive forms of influenza will, in all likelihood, claim a significant number of casualties, and that the wider public is endangered, too, there is a formidable case on behalf of a temporary prohibition of assemblies. By contrast, a temporary prohibition of religious services as a result of a general prohibition of all forms of assemblies is a relatively modest interference with religious freedom. Thus, the right to religious freedom is outweighed by the concern over public health in John’s case. A detailed analysis of proportionality and balancing, including the various objections that have been advanced,20 goes well beyond the scope of this article. It will suffice to emphasise a couple of points. To begin with, proportionality balancing is a clearly defined method of law application. It is not to be confused with subjectivistic or intuitionistic methods. Which ends count as legitimate is a matter of legal interpretation, not a matter of prejudice or subjective preferences. In reply to the ‘irrationality objection,’ according to which there are “no rational standards” for balancing,21 one has to distinguish between radical and moderate scepticism about balancing. According to radical scepticism, no balancing judgement can ever be justified by rational argument, a very strong thesis. Assuming, for example, that capital punishment is imposed for trespassing on one’s lawn, we would say, quite apart from the circumstances, that the right to life outweighs one’s interest in promoting the preservation of the lawn. We would not say that such a judgement is a matter of prejudice and personal opinion rather than an objectively justifiable judgement. Far more reasonable is moderate scepticism, which could also be called moderate optimism where balancing is con20 For criticism of balancing, see, e.g., Jürgen Habermas, Between Facts and Norms (1996), 253–261; Kai Möller, Balancing and the Structure of Constitutional Rights, International Journal of Constitutional Law 5 (2007), 453, 459–461; Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, International Journal of Constitutional Law 7 (2009), 468, 490–493. See generally Bernhard Schlink, Abwägung im Verfassungsrecht (1976). 21

See for example Habermas (note 20), 259; Schlink (note 20), 134–191; id., Grundrechte als Prinzipien?, Osaka University Law Review 39 (2009), 41, 55.

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cerned.22 According to this position, “balancing does not lead in a rational way to one outcome in every case,” but it does in some cases, and “the class of these cases is interesting enough to justify balancing as a method.”23 Given hard cases, in which one can reasonably disagree on the outcome of balancing, it is crucial that every balancing judgement be justified.24 Balancing can be subjected to deliberative processes at various levels, by the public, by the government, by academic commentators, and by courts in subsequent decisions if a detailed justification is to be proffered. In these cases, in which it cannot be established objectively that a right outweighs the relevant limiting reasons, no violation of the right can be established. It is understood that courts have to grant ample discretion to public authorities in the course of proportionality analysis, especially to the democratically legitimated parliament.25 Finally, it is worth pointing out that the critics of proportionality have not advanced a seriously competing alternative. The fact that proportionality plays, as a rule, a key role in vindicating basic rights does not necessarily mean, however, that proportionality also plays a key role vis-à-vis those rights that are commonly regarded as absolute. The prevailing view, however, denies that this is the case. By contrast with relative rights, absolute rights are seen as immune to limitation and, therefore, to proportionality analysis.

22 On moderate scepticism or optimism where balancing is concerned, see Alexy (note 6), 401–405; Martin Borowski, Grundrechte als Prinzipien (2nd ed. 2007), 122–123. Cautiously optimistic on the rationality of balancing as a method of law application Aleinikoff (note 11), 972–979. He finds, however, many justifications of balancing judgments by the Supreme Court wanting: “[T]o a large extent, balancing takes place inside a black box,” ibid., 976. And, a half dozen pages later, Aleinikoff continues: “The problems that plague most balancing opinions, I believe, have severely damaged the credibility of the methodology,” ibid., 982. That a method is not well practised need not, however, count against the method itself. 23

Alexy (note 6), 401–402.

24

The importance of the justification of balancing judgements is particularly emphasised by Aleinikoff (note 11), 976 et passim, and Alexy (note 6), 100–101. 25

On discretion in balancing, see Alexy (note 6), 394–425; Julian Rivers, Proportionality, Discretion and the Second Law of Balancing, in: Pavlakos (ed.) (note 6), 167.

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III. The Common Understanding of Absolute Rights It is frequently assumed in references to absolute rights that everyone knows which rights are absolute and which are not. According to a widespread opinion, paradigmatic examples of absolute rights include the prohibition of torture or inhuman or degrading treatment or punishment according to Article 3 ECHR and Article 4 ChFR, the prohibition of slavery according to Article 4 (1) ECHR, the prohibition of slavery and servitude according to Article 5 (1) ChFR, and human dignity according to Article 1 ChFR and according to Article 1 (1), (2) Basic Law.26 What do these rights have in common that separates them from other rights?

A. The Characteristics of Absolute Rights

The common understanding of absolute rights turns on the fact, so it is claimed, that they are not amenable to limitation, proportionality, or balancing. Interferences with absolute rights cannot be justified. Every interference with an absolute right counts as a violation.27 Proportionality has no role to play.28 This understanding has found expression, for example, in the decision of the ECtHR in Chahal.29 In characterising the protection granted by the prohibition of torture according to Article 3 ECHR in an extradition case, the Court stated explicitly that there is “no room for balancing the risk of ill-treatment against the reasons for expulsion.”30 In Gäfgen, the Court reinforced the point that “the absolute nature” of Article 3 ECHR “does not 26 The rights being reconstructed as absolute in the structural sense, in which sense they are not amenable to proportionality analysis or limitation, will be referred to as “absolute rights sensu stricto” in what follows. By contrast, the rights found in Arts. 3 and 4 (1) ECHR, Arts. 1, 4 and 5 (1) ChFR, and Art. 1 (1), (2) Basic Law, will be referred to as “rights commonly regarded as absolute.” This distinction is crucial, for the main thesis of this essay can be summarised as follows: Basic rights commonly regarded as absolute are not absolute rights sensu stricto. 27

See for example Harris et al. (note 3), 69–70.

28

See for example White/Ovey (note 3), 167–168.

29

ECtHR, Chahal v. The United Kingdom, Judgment of 15 November 1996, Appl. No. 22414/93 (1997), EHRR 413. 30

Ibid. para. 81.

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allow for any exceptions or justifying factors or balancing of interests.”31 In the same vein, the very idea that proportionality might play a role in determining the protection granted by Article 3 ECHR has been emphatically dismissed in the literature as a “wrong turn[ing].”32

B. How to Identify Absolute Rights

Thus, the structural characteristics of absolute rights are thought to be clearly defined. Less clear, however, is the matter of identifying absolute rights according to this structural characterisation. In short, which rights are not amenable to limitation, proportionality, or balancing?

1. Absolute Rights qua Being Non-Derogable? Often a connection is established between the nature of rights as absolute and their quality of being non-derogable. Where Article 3 ECHR is characterised as absolute, it is frequently emphasised that this right is not subject to derogation according to Article 15 ECHR.33 The same applies to Article 4 (1) ECHR.34 What is more, another guarantee that is frequently seen as absolute is on the very short list of nonderogable rights in Article 15, namely, the prohibition of retroactivity in criminal law according to Article 7 ECHR.35 The list in Article 15 ECHR contains, however, a fourth right, the right to life according to Article 2 ECHR. Traditionally, this right has not been considered absolute. Article 2 (1) cl. 1 ECHR establishes the right.

31

Id., Gäfgen v. Germany, Judgment of 1 June 2010, Appl. No. 22978/05, para. 107.

32

Stephanie Palmer, A Wrong Turning: Art. 3 ECHR and Proportionality, Cambridge Law Journal 65 (2006), 438, 438. 33

See for example Michael K. Addo/Nicholas Grief, Does Art. 3 of the European Convention on Human Rights Enshrine Absolute Rights?, European Journal of International Law 9 (1998), 510, 513; Harris et al. (note 3), 69; Janis/Kay/Bradley (note 16), 113–114. 34 35

Harris et al. (note 3), 113; White/Ovey (note 3), 195.

Art. 7 ECHR is seen as absolute in the sense that the justification of interferences is usually not discussed, see for example Harris et al. (note 3), 331–339.

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Article 2 (1) cl. 2, however, empowers the State to impose the death penalty,36 and Article 2 (2) empowers the State to deprive one of life in certain circumstances in so far as it is ‘absolutely necessary:’ to defend against unlawful violence (lit. a), to enforce lawful arrest (lit. b), or to quell a riot or insurrection (lit. c). Proportionality is essential to assessing what is ‘absolutely necessary.’37 If the list in Article 15 ECHR contains a right that is clearly seen as not absolute, the quality of being non-derogable according to Article 15 ECHR cannot imply the absolute nature of the right. Apart from the fact that neither the German Basic Law nor the Charter of Fundamental Rights of the European Union empowers authorities to derogate rights in the sense of Article 15 ECHR, the right to life according to both Article 2 (2) Basic Law and Article 2 (1) ChFR is also not considered absolute. Article 2 (2) Basic Law contains an explicit limiting clause, and Article 2 (1) ChFR is subject to the general limiting clause in Article 52 (1) ChFR.38

2. Absolute Rights qua Lack of a Limiting Clause? The rights that are commonly regarded as absolute, mentioned above, also have in common their wording, namely, the wording of the provisions that grant them do not include a limiting clause.39 This might well suggest that a right is absolute in nature if the wording of the provision granting it does not include a limiting clause. A written limiting clause makes clear that the relevant right is amenable to limitation and, therefore, not absolute. The converse is not, however, conclusive. Limiting 36 This clause, however, has to be read in conjunction with Art. 1 Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, as Amended by Protocol No. 11, 28 April 1983, ETS No. 114, which abolished the death penalty in time of peace, and Art. 1 Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Concerning the Abolition of the Death Penalty in All Circumstances, 3 May 2002, ETS No. 187, which abolished the death penalty altogether. Protocol No. 6 has been ratified by all Member States of the Council of Europe except Russia. Protocol No. 13 has been ratified, to date, by 42 out of 47 Member States. The death penalty was abolished in Germany in 1949 by Art. 102 Basic Law and for the European Union in Art. 2 (2) ChFR. 37

See for example Harris et al. (note 3), 61–62; White/Ovey (note 3), 145.

38

According to Art. 52 (3) cl. 1 ChFR the limiting clause in Art. 2 (2) ECHR has to be considered in applying Art. 2 in conjunction with Art. 52 (1) ChFR. 39

This is less compelling in the case of Arts. 1, 4, and 5 ChFR, for the general limiting clause in Art. 52 (1) ChFR could also extend to these rights.

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clauses may be unwritten. In fact, there are several instances of rights with no written limiting clause, which are nevertheless seen as subject to limitation and proportionality and are therefore not absolute. According to the case law of the FCC, this applies to a whole range of constitutional rights: Articles 4 (1) and (2), 5 (3), 6 (1), 7 (2)–(4), 8 (1), 9 (3), 16 (1) cl. 1 and (2) Basic Law.40 Although these rights have no written limiting clause, they can be limited, subject to proportionality, which is to say that an unwritten limiting clause is implied.41 In the ECHR, for example, Article 2 cl. 1 Protocol No. 1 to the Convention42 establishes the right to education. The following clause reads: “[T]he State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” This right has no written limiting clause. After having explained that the ban on corporal punishment in religious schools counts as a limitation of the parents’ right to religious freedom, Lady Hale stated in the Williamson case: “It is common ground that the respect due to the parents’ religious and philosophical convictions in the education of their children under article 2 of the First Protocol may be similarly limited.”43 Another example: Proportionality is regarded as crucial to the application of Article 5 ECHR, even though it has no written limiting clause.44

3. Substantive Characteristics If the absolute nature of a right cannot be concluded from formal criteria such as the quality of the right as non-derogable or from the lack of a written limiting clause,

40

FCC, BVerfGE 28, 243, 261. This seminal decision from 1970 is still good law, see for example id., BVerfGE 107, 104 (118). 41

Martin Borowski, Limiting Clauses, Legisprudence 1 (2007), 197, 217–219.

42

Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 20 March 1952, ETS No. 9. 43

Regina (Williamson et al.) v. Secretary of State for Education and Employment [2005] UKHL 15, para. 74. 44 See for example Harris et al. (note 3), 136–137. See furthermore Jeremy McBride, Proportionality and the European Convention on Human Rights, in: Evelyn Ellis (ed.), The Principle of Proportionality in the Law of Europe (1999), 23, 27.

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the question then arises on whether the characteristics that distinguish rights commonly regarded as absolute from other rights are substantive in nature. It is clear that the rights commonly regarded as absolute protect unusually important interests. Not to be subjected to torture, inhuman or degrading treatment or punishment (Article 3 ECHR and Article 4 ChFR), not to be held in slavery or servitude (Article 4 ECHR and Article 5 ChFR), and to have one’s human dignity respected (Article 1 ChFR and Article 1 (1) Basic Law) are unusually important interests of the individual. To be sure, it is characteristic of basic rights that they protect important rather than marginal interests. Even among the interests protected by basic rights, those interests that are protected by the rights commonly regarded as absolute have truly extraordinary importance. Thus, the substantive criterion of the outstanding importance of the underlying interest of the individual counts, according to the common understanding, as an integral part of the characterisation of absolute rights. The right to life raises doubts. Is the interest not to be subjected to degrading treatment (Article 3 ECHR) so much more important than the interest in life (Article 2 ECHR) that the former ought to be regarded as absolute and the latter not? This would be surprising, for ‘life’ is the most basic condition for holding rights in the first place. One would think, then, that the fundamental importance accorded to life renders the right to life particularly important. If the right to life must be regarded as being at least on a par, respecting the importance of the protected interest, with the rights commonly regarded as absolute, why is the right to life not, then, regarded as absolute? Is there something that distinguishes the right to life, in substantive terms, from these other rights? The difference between the right to life and the rights commonly regarded as absolute is that a justification for an interference with the right to life seems far more plausible than in the case of interferences with the other rights. To be sure, the question of the circumstances in which it can be justified that an individual be deprived of life raises deep moral questions, questions that are troubling. In any case, the wording of Article 2 (2) ECHR indicates that there are, at least from the legal point of view, plausible justifications for limitations on the right to life: defence against unlawful violence, enforcing a lawful arrest, and quelling an unlawful riot or insurrection. While the case on behalf of the death penalty according to Article 2 (1) cl. 2 ECHR has become far weaker over time, the justifications mentioned in Article 2 (2) ECHR have not lost their weight, provided that they are, in a given case, proportional vis-à-vis the

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severity of the interference. By contrast, what could seriously justify an instance of slavery according to Article 4 (1) ECHR? A justification of torture according to Article 3 ECHR? Likewise for the justification of an interference with human dignity according to Article 1 ChFR, Article 1 Basic Law. One hastens to add that this will depend in good part on the scope of human dignity, which is unclear and controversial: The narrower the scope, the less plausible the very idea of justifying an interference. To conclude: The rights that are commonly regarded as absolute cannot be identified by means of formal criteria. Rather, it is characteristic of ‘absolute rights’ that they protect particularly important interests of the individual and that no weighty limiting reason is at hand. The right generally outweighs any imaginable limiting reason by an unusually wide margin. This lends support to the intuition that the very idea of limitations is well nigh beyond the pale.

IV. Problems of the Common Understanding of Absolute Rights Seen as such, the idea of an absolute right sensu stricto seems perfectly plausible. If there be an interference with an absolute right, it can never be justified. Competing rights and goods are simply irrelevant; proportionality and balancing play no role. By contrast with limitable or relative rights, the third step of the assessment of the rights claim, the justification of the interference, is missing. Should absolute rights become an element in a comprehensive system of rights, which contains for the most part relative rights, then the perspective will change.

A. The Competition among Absolute Rights

To begin with, which right yields to which in instances where two absolute rights compete? Absolute rights sensu stricto take priority, by definition, over every other competing right or interest. Once it has been determined that there is an interference with the right, everything else has to yield. For example, what can be done in a situation in which the dignity of one individual can be respected only if the dignity of

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another individual is interfered with?45 To leave these cases simply unresolved would be to leave the most important cases – the cases, in which unusually important interests are at stake on both sides – unresolved, which is unsatisfactory. Thus, one needs a criterion for decisions in which a competition between and among absolute rights is at issue. It might seem attractive to uncouple proportionality and limitation by using proportionality as a criterion for determining whether there is an interference rather than as a criterion for the justification of interferences. This solution seems consistent with one characteristic of absolute rights, the characteristic that they are not amenable to limitation.46 For example, Robert Alexy’s reconstruction of human dignity according to Article 1 Basic Law moves in this direction.47 Still, this solution is not consistent with another characteristic of absolute rights, namely, their characteristic of being immune to proportionality analysis and, therefore, balancing. The proportionality test is simply transplanted from the third step of the standard model of assessing rights claims into the first two steps. Suffice it to say in this context that such a solution cannot be reconciled with the characteristics of absolute rights sensu stricto.48 It has been suggested in the German discussion on human dignity that a limitation of human dignity ‘by itself’ be allowed. This is to say that the dignity of one individual can be limited by the dignity of another individual.49 The right to human dignity would remain absolute in so far as other competing rights or limiting reasons are concerned. If the dignity of one individual competes with the dignity of another individual, this is not, however, some form of competition ‘inside’ human dignity. It is a competition between two rights, just as if two rights established in different 45

This has been discussed, in particular, in German constitutional law. I have in mind the interpretation of Art. 1 (1) Basic Law, see Christian Starck, Art. 1 Abs. 1, in: Hermann von Mangoldt/Friedrich Klein/Christian Starck (eds.) Grundgesetz Kommentar (6th ed. 2010), 25, 45 and 61–63. 46 Strictly speaking, this is not true. There is an intrinsic connection between balancing and limitation. Where rights are balanced, these rights can be limited. They are limited if they are outweighed by competing rights or interests. See infra, X. 47

See infra, X.B.

48

See infra, X.

49

See in particular Starck (note 45), 45. See also Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland, Vol. IV/1 (2006), 95–96; Reinhold Zippelius/Thomas Würtenberger, Deutsches Staatsrecht (32nd ed. 2008), 240–242; Fabian Wittreck, Menschenwürde und Folterverbot, Die Öffentliche Verwaltung 56 (2003), 873, 879–892.

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provisions competed. Most notably, human dignity is rendered relative in so far as the dignity of another individual is concerned, and becomes amenable to proportionality analysis and balancing. In short, the supposed absolute right loses its absolute character, and this quite apart from the fact that it continues to enjoy strict priority over competing rights other than human dignity. The same would apply mutatis mutandis to an approach whereby different absolute rights in one bill of rights can limit each other, while they have strict priority over other competing rights.50

B. The Absolute Priority of Absolute Rights over Competing Relative Rights

The idea of absolute rights as a part of a comprehensive system of rights, most of which are relative rights, raises the question of whether the absolute priority of every absolute right vis-à-vis every relative right51 – priority under all imaginable circumstances – strikes one as reasonable. Does every interference with an absolute right, however marginal, justify forgoing the protection of the competing relative rights no matter how severe the consequences might be? Is it reasonable, for example, to conceive of every right commonly understood as absolute as outweighing the right to life, whatever the circumstances and the number of individuals affected? That absolute rights sensu stricto are insatiable raises doubts about how well they fit into a system of rights, most of which are relative in nature. This is underscored by the insight that the rights commonly regarded as absolute are characterised in substantive terms. Based on the substantive characterisation of the rights that are commonly regarded as absolute, the difference between ‘absolute rights’ and ‘relative rights’ is a matter of degree. While the so-called ‘absolute rights’ outweigh all imaginable limiting reasons by a wide margin in typical circumstances, this margin will usually be smaller in the case of ‘relative rights.’ How great must this margin be in order that a right can be regarded absolute? Even if a great margin is required, there may be hard cases in which the weight of the interest protected by the ‘absolute right’ is unusually low and where competing rights and interests are unusu50 In this sense the characterisation of absolute rights as rights “that must be superior to other rights which do not bear a similar label” (Addo/Grief (note 33), 516) misses an important point. 51

Apart from the issue of the competition among absolute rights.

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ally weighty. If the substantive characterisation of the rights commonly regarded as absolute is correct, one cannot be sure that a hard case will never be encountered, one in which, by way of exception, the limiting reasons outweigh the right. If a right is regarded as absolute sensu stricto even though, all things considered, there are better reasons to treat it as outweighed, the phenomenon that I shall term a ‘rationality deficit’ arises: A result is upheld even though reasons for the opposite result are better.

C. The Narrow Scope of Absolute Rights Sensu Stricto

If one regards a certain right as absolute sensu stricto, which is, then, not amenable to any limitation or to proportionality analysis, this will be accompanied by a clear tendency toward a narrow scope. The determination of the scope – protected area and interference52 – carries the entire burden of the assessment of the rights claim. The greater the scope, the more likely it will be that hard cases arise in which the limiting reasons actually outweigh the right – even though they are precluded, owing to the nature of the right as absolute sensu stricto. In other words, the greater the scope, the more pressing becomes the problem of the ‘rationality deficit’ mentioned above. To restrict the ‘rationality deficit’ as far as possible, the scope of the right must be kept as narrow as possible. This is to say that for the sake of protection to the core of the right, the penumbra of the right is sacrificed. These problems of absolute rights sensu stricto in a system of relative rights have formed the background of a heated debate in German constitutional law. With an eye to the competition of claims stemming from human dignity, Horst Dreier called into question whether an interference with one individual’s human dignity cannot be ‘justified’ by means of another individual’s human dignity.53 This is to say that, according to Dreier, in certain tragic situations law encounters its limits.54 This thesis, although neither new55 nor outlandish, attracted significant criticism. Matthias 52

On the scope of basic rights, see Alexy (note 6), 196–217.

53

Horst Dreier, Art. 1 I, in: id. (ed.), Grundgesetz: Kommentar, Vol. 1 (2nd ed. 2004), 139, para. 133.

54

See his extended statement with replies to critics in the most recent edition of his commentary, id., Art. 1 I, in: id. (ed.), Grundgesetz: Kommentar, Vol. 1 (3rd ed. 2013), 154, para. 133. 55

Starck (note 45), 45. See also Stern (note 49), 95–96; Zippelius/Würtenberger (note 49), 240–242; Wittreck (note 49), 879–892.

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Herdegen undertook to distinguish between core and penumbra of human dignity, with a view to render the penumbra subject to proportionality analysis in 2003. His analysis of human dignity according to Article 1 Basic Law in the Maunz/Dürig commentary, a work that was quite influential in the first decades under the Basic Law, replaced the commentary of the founder of this work and a doyen of German constitutional law, Günter Dürig. Since Dürig’s classic pages on human dignity were inspired by natural law ideas, it was regarded inappropriate by some that they were replaced by a plea for balancing human dignity with competing rights and goods. In particular ErnstWolfgang Böckenförde, a former justice of the German FCC, harshly criticised Herdegen’s commentary in an article in the newspaper Frankfurter Allgemeine Zeitung from 3 September 2003.56 Since human dignity loses, according to Herdegen’s interpretation, its special status, it cannot, Böckenförde argues, serve any longer as the linchpin of the German constitution. Herdegen found himself compelled to revise and qualify his statements. He defended, however, his core ideas against fierce criticism.57 This debate illustrates that there exist entrenched positions with an eye to the reconstruction of human dignity. On one hand, the thesis of human dignity as an absolute right sensu stricto gives rise to serious problems, on the other, it is regarded inappropriate to treat human dignity just as any other basic right. In my view, however, the idea of ‘relative absoluteness’ shows how this confrontation of entrenched positions can be overcome.

V. An Outline of the Relative Reading of ‘Absolute Rights’ If the substantive characterisation of those rights usually regarded as absolute is correct, it suggests that they be understood as subject to proportionality and balancing. From the substantive point of view, rights commonly regarded as absolute protect (1) particularly important interests with (2) limiting reasons that are, typically, 56

Ernst-Wolfgang Böckenförde, Die Würde des Menschen war unantastbar, Frankfurter Allgemeine Zeitung, 3 September 2003, 33. 57 See Matthias Herdegen, Art. 1 Abs. 1 GG, in: Theodor Maunz/Günther Dürig (eds), Grundgesetz: Kommentar, loose leaf supplement (2013), paras. 46–51 (the most recent version for this article was published in May 2009).

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far removed from justifying an interference with the right. This is to say that the interest undergirding the right is particularly weighty and that the limiting reasons are usually far less weighty. Even if these rights are subjected to proportionality analysis, the result in typical circumstances is clear: The interest undergirding the right prevails, and it does so with such certainty that an express justification appears superfluous. Still, in exceptional circumstances it may appear less certain, such that an explicit justification might seem advisable. In extreme circumstances, it might even be the case that a right commonly regarded as absolute proves to be limited. It militates on behalf of the relative reading of all rights that all structural problems bedevilling the reading of rights as absolute rights sensu stricto vanish. The problem of competing ‘absolute rights’ can be resolved, from the structural point of view, by balancing these rights in the circumstances of the case at hand. These are the hard cases, for particularly important interests are at stake on both sides of the issue. To be sure, balancing provides a structure in which normative problems can be decided in an open and transparent manner. To leave open the question of which absolute right yields to the other – on the ground that by definition absolute rights cannot yield – is less satisfactory than to proceed with balancing. In addition, the hardly reasonable assumption that every ‘absolute right’ takes priority over every relative right in every instance disappears without a trace. The rights commonly regarded as absolute rights and those regarded as relative rights can be balanced. The strict priority of ‘absolute rights’ is replaced by a very strong prima facie priority. While the rights commonly regarded as absolute will nearly always enjoy priority over relative rights, this may not be so in very exceptional circumstances. Finally, the need to construe the scope of the rights commonly regarded as absolute as narrowly as possible vanishes, for the phenomenon of the ‘rationality deficit’ does not arise in the first place. Still, even if the relative reading of the rights commonly regarded as absolute should avoid a number of problems, a pressing question remains: Does it not tend to undermine the protection granted by these rights?

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VI. Debates that are Result-Oriented versus Structural Enquiries into ‘Absolute Rights’ Before the relative reading of absolute rights is unfolded in greater detail, it would be well to emphasise that the relative reading of the rights commonly regarded as absolute proposed in this article is neither intended to weaken the protection these rights provide nor does it in fact weaken them. Even if the rights commonly regarded as absolute were to lose their structural characteristic (being immune to proportionality analysis), their substantive characteristics, paramount abstract weight and typically far less weighty limiting reasons, would remain. These substantive characteristics would continue to distinguish Articles 3 and 4 (1) ECHR, Articles 1, 4, and 5 ChFR, and Article 1 Basic Law from all the other paradigmatic relative rights. It is widely recognised that the rights commonly regarded as absolute deserve a particularly high level of protection, and this universally accepted conviction is to be taken seriously. A relative reading is suggested here to offer a more convincing reconstruction of this high level of protection. It is not offered to change the results of the common understanding. This needs to be emphasised, for a relative reading of ‘absolute rights’ might also be employed as a means in what I shall term a debate that is result-oriented.

A. Debates that are Result-Oriented

Result-oriented debates are characterised by the effort to justify a result that departs from the received opinion. Let us say that someone is simply convinced or has a strong intuition to the effect that in certain life-threatening situations State action that would usually be classified as an instance of ‘torture’ can be justified.58 The Gäfgen case, which was decided by the Grand Chamber of the ECtHR in June 2010,59 may serve as an example. A law student in Frankfurt, Magnus Gäfgen, kidnapped an eleven58 See for example Winfried Brugger, May Government Ever Use Torture?, American Journal of Comparative Law 48 (2000), 661, 674; id., Darf der Staat ausnahmsweise foltern?, Der Staat 35 (1996), 67, 93–95; id., Vom unbedingten Verbot der Folter zum bedingten Recht auf Folter?, Juristenzeitung 55 (2000), 165, 170–171. Explicitly following Brugger: Starck (note 45), 62–63. 59 ECtHR, Gäfgen v. Germany (note 31). On this judgment, see Steven Greer, Should Police Threats to Torture Suspects Always be Severely Punished? Reflections on the Gäfgen Case, Human Rights Law Review 11 (2011), 67.

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year-old boy, Jakob von Metzler, holding him for ransom money. After taking the ransom, the law student was apprehended by the police. The police had assumed that the boy was still alive, and that he was, of course, in imminent danger, possibly dying of thirst, helplessly locked away in a hideout. Gäfgen refused to reveal the boy’s whereabouts. The police chief of Frankfurt, Wolfgang Daschner, threatened the suspect with ‘intolerable pain,’ inflicted by a special police squad already under way in a helicopter, and under medical supervision.60 Having been exposed to the threats for roughly ten minutes, Gäfgen revealed the location of the corpse. The boy had died earlier of suffocation. The case sparked a lively debate on how far the police are allowed to go in a situation in which it is reasonable to assume that the life of an innocent victim may well be in imminent danger. According to the Grand Chamber of the ECtHR, the treatment to which Gäfgen was exposed amounted to ‘inhuman treatment’ and fell afoul of Article 3 ECHR.61 In a result-oriented debate, the outcome of the case is taken as the archimedian point. A paradigmatic statement in a result-oriented debate on the Gäfgen case might read as follows: “In the Gäfgen case Daschner’s course of action must be permitted.” Those who support this thesis and disagree with the result of the Grand Chamber judgment can choose between two strategies to explain why, according to their opinion, the treatment to which Gäfgen was exposed does not violate Article 3 ECHR. They can claim (1) that the treatment as such is not an instance of “torture or […] inhuman or degrading treatment or punishment” according to Article 3 ECHR in the first place, or (2) that it is an instance of such a treatment, but that it is, as an exception, justified in the circumstances of the case at hand. It is a necessary element of the second strategy that the absolute nature of Article 3 ECHR be denied – if an exception or limitation can be made, this right cannot, by definition, be absolute. This is to say that the relative nature of a certain right may well become part of a result-oriented debate. Where it does, however, it serves only as a means to an end – as a means of supporting a certain outcome in the case that is taken as given from the outset. The key problem of this strategy is whether the conviction regarding the outcome of the case, the archimedian point of the result-oriented debate, can be justified. 60

Further allegations of physical and psychical maltreatment of Gäfgen could not be proven beyond reasonable doubt, see ECtHR, Gäfgen v. Germany (note 31), para. 98. 61

Ibid., para. 108.

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Apart from this general problem, there are, however, serious doubts as to whether a relative reading of Article 3 ECHR really can support the thesis that Daschner’s course of action in the Gäfgen case is justified. I will return to this issue below.62

B. Enquiries into the Structure of ‘Absolute Rights’

An enquiry in which the issue of the structure of rights as absolute or relative takes centre stage is something completely different. By contrast with debates that are result-oriented, in which the outcome is the focal point, enquiries into the structure of rights are indifferent to the outcome. The interpretation of certain rights in practical contexts is critically reconstructed. Is the relevant right treated de facto as a relative right, amenable to proportionality and balancing, or is it treated as an absolute right, which can never be balanced? The emphasis is here on understanding how the outcomes can be justified rather than criticising the outcomes according to the majority opinion. To avoid any doubt on the matter, this essay is devoted to a critical reconstruction of the interpretation of the rights that are commonly regarded as absolute. In particular, issue is not taken with outcomes that are supported by the common understanding of absolute rights. For example, a relative reading of absolute rights does not support Daschner’s course of action in the Gäfgen case.63

VII. The Relative Absoluteness of ‘Absolute Rights’ qua Proportionality The phenomenon of ‘relative absoluteness’ has its foundation in the substantive characteristics of the rights commonly regarded as absolute, namely, the paramount abstract weight of interests that undergird the rights and the light abstract weight of typically competing principles.64 This explains why the phenomenon of ‘relative 62

See infra, IX.

63

See infra, IX.

64

See supra, III.B.3.

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absoluteness’ is characteristic of ‘absolute rights’ but not of other rights, not at any rate to the same extent. Rules on attributing weight to competing principles with rising severity of interference and the consideration of the certainty of empirical premises, taken together, serve to explain why it is mistaken to suppose that subjecting ‘absolute rights’ to proportionality analysis would diminish their significance, reducing their level of protection to the level that is enjoyed by paradigmatic relative rights, such as Articles 8 to 11 ECHR. On the one hand, the idea of balancing is by no means new. On the other, the analysis of the structure of balancing has made significant progress in recent years. Robert Alexy’s enquiries into proportionality and balancing in his treatise “A Theory of Constitutional Rights”65 have sparked a lively debate on balancing and its reconstruction. The weight formula66 for balancing, which he developed over the last couple of years, has provided further impetus to the debate. The weight formula is an attempt to give expression to the structure of the process of balancing by mathematical means. Alexy is perfectly aware that a formal structure alone, mathematics alone, cannot serve to justify a judgement based on balancing. The normative premisses on which a balancing judgement rests require justification by legal argument.67 Apart from the details of Alexy’s attempt at a formal reconstruction of balancing, this challenging project invites attention to aspects that figure in balancing. In this sense, the enquiry into the structure of balancing has already yielded valuable insights.

A. The Abstract Weight of Rights

It has already been mentioned that the rights commonly regarded as absolute have a particularly high abstract weight. Rights with a high abstract weight prevail more often over competing rights and interests than rights with a low abstract weight. A right with a high abstract weight will not, however, always prevail over rights or interests with a lower abstract weight, for the severity of interference must also be taken into account. This is to say that the weight of a right in the circumstances of the 65

Alexy (note 6).

66

Ibid., Postscript, 403–410; id., The Weight Formula, in: Jerzy Stelmach/Bartosz Brożek/Wojciech Załuski (eds.), Frontiers of Economic Analysis of Law: Studies in the Philosophy of Law, Vol. 3 (2007), 9. 67

Id., On Balancing and Subsumtion, Ratio Juris 16 (2003), 433, 439.

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case at hand depends on both its abstract weight and the severity of the interference with the right. Rights with a lower abstract weight can outweigh rights with a higher abstract weight if and when the interference with the former is more severe than the interference with the latter. The greater the differences between and among the abstract weight of rights, the easier they are to identify. For example, it is difficult to say that freedom of expression (Article 10 ECHR) has a higher abstract weight than freedom of religion (Article 9 ECHR), or that the right to a fair trial (Article 6 ECHR) is, in the abstract, more important than the right to respect for family and private life (Article 8 ECHR), and so on. In that sense, most bills of rights contain many rights with, by and large, equal abstract weight.68 There are, however, basic rights with particularly high or low abstract weight. An example of a right with a rather low abstract weight is the general right to liberty in the German constitution, Article 2 (1) Basic Law. This right requires that every interference with liberty be justified, independently of whether a particularly important interest of the individual is affected. Because nearly every parliamentary statute interferes in one respect or another with liberty, an interference with the general right to liberty is the rule rather than the exception. It is also the rule, however, that the general right to liberty is outweighed by competing rights or interests. This is to say that this right has a relatively low abstract weight. By contrast, an example of a right with a particularly high abstract weight is the right not to be enslaved, Article 4 (1) ECHR and Article 5 ChFR. Slavery is an extraordinarily severe interference with both liberty and equality, depriving an individual of his or her personhood. Moreover, considering the great physical and emotional suffering caused by torture, the individual has an overriding interest not to be subjected to torture, Article 3 ECHR and Article 4 ChFR. The prohibition of both slavery and torture is contained in the guarantee of human dignity, Article 1 ChFR and Article 1 Basic Law. Other aspects of human dignity also reflect unusually important interests of the individual. It has already been mentioned that the right to life also has a high abstract weight.69 As with most aspects of basic rights, the abstract weight of a given right is likely to be a controversial matter. It is nevertheless plausible that three categories of basic rights be distinguished with an eye to abstract weight: To begin with, rights with a 68

Id. (note 6), Postscript, 406.

69

See supra, III.B.3.

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rather low abstract weight such as the general right to liberty, Article 2 (1) Basic Law, then, rights with an average abstract weight, for example, most rights of the ECHR, first and foremost Articles 8 to 11 ECHR, and, finally, rights with a particularly high abstract weight, such as the rights commonly regarded as absolute along with the right to life.

B. The Disproportionately Increasing Resistance of Rights

In balancing, the relation between the intensity of interference and the weight of the relevant principle is not proportional. That is, to justify a more severe interference with a right, one requires a justification far stronger than merely a proportionately stronger justification.70 This phenomenon is the more pronounced, the higher the abstract weight of the relevant right. Since the rights commonly regarded as absolute have a particularly high abstract weight, any interference with them will count as a very severe interference. This is to say that the only limiting reasons that can even come close to outweigh them are those of truly outstanding importance. Here the second element of the substantive characteristics of the rights commonly regarded as absolute comes into play, the fact that the prospective limiting reasons are typically far less weighty than the right.71 In the vast majority of cases, the limiting reasons do not come close to outweighing the ‘absolute right.’ To repeat: What limiting reason might outweigh the prohibition of slavery? This explains why the supporters, for example, of torture under certain circumstances have to make their case plausible by designing hypothetical cases in which the lives of many innocent victims depend on subjecting a criminal to torture or to other forms of inhuman or degrading treatment. The hypothetical or artificial nature of such cases sheds light on an often neglected yet important factor in balancing, the question of the certainty of the relevant empirical premisses.

70

Alexy (note 6), 195; Borowski (note 22), 278–279.

71

See supra, III.B.3.

410 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 C. The Certainty of the Relevant Empirical Premisses

Severe interferences have to be based on empirical premisses that are certain. Very severe interferences have to be based on very certain empirical premisses. These intuitions suggest the following: The more severe the interference with the right, the greater the certainty of the empirical72 premisses.73 The idea of a disproportionate increase also applies, then, here. The more severe the interference and the higher the abstract weight of the relevant right, the disproportionately greater certainty of the empirical premisses. This is to say that an interference with the rights commonly regarded as absolute, for which a particularly high abstract weight is characteristic, can be justified only by limiting reasons with truly outstanding weight and on the basis of absolutely certain empirical premisses. The argument that the situation has to be judged from an ex ante standpoint rather than with the gift of hindsight, and that the view ex ante necessarily involves some uncertainties,74 changes nothing. If it is, as a practical matter, well nigh impossible to have the required certainty of the relevant empirical premisses ex ante, then the right proves, in practical terms, not amenable to limitation.75

1. Shooting Down Passenger Aircrafts, Human Dignity, and the German FCC The requirement of the absolute certainty of the empirical premisses for limitations of rights commonly regarded as absolute is overlooked by those who think one simply has to place weighty limiting reasons alongside the ‘absolute right’ to make plausible a limitation. This can be illustrated with the example of the German em72

The question arises as to whether the same applies to the certainty of normative premisses. This issue goes, however, beyond the scope of this essay. 73

See Alexy’s “epistemic law of balancing,” Alexy (note 6), Postscript, 418. See furthermore id., Thirteen Replies, in: Pavlakos (ed.) (note 6), 333, 342 and 345; Borowski (note 22), 279–280. 74 75

Brugger (note 58), 668.

On the argument that one cannot be sure that a suspected terrorist knows the relevant information and will provide it under torture, so that torture in such cases is never ‘necessary’ see Paola Gaeta, May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, Journal of International Criminal Justice 2 (2004), 785, 791–792; Florian Jessberger, Good Torture, Bad Torture? What International Criminal Lawyers May Learn from the Recent Trial of Police Officers in Germany, Journal of International Criminal Justice 3 (2005), 1059, 1070.

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powerment, created by statute, to shoot down a passenger aircraft in case there are grounds for believing that a terrorist attack is imminent, as per Section 14 (3) Aviation Security Act (Luftsicherheitsgesetz) from 2005,76 which was ruled unconstitutional by the FCC in 2006.77 If a passenger aircraft that is supposedly being used as a weapon for a terrorist attack on a ground target is shot down, everyone aboard will perish. This is an interference with the right to life on the part of the passengers, the crew, and the terrorists. What is more, the Court regarded the shooting down of the aircraft as an interference with the passengers’ and the crew’s human dignity according to Article 1 (1) Basic Law, for, as the Court argued, they are being treated as mere means to an end.78 The Court classifies human dignity as an absolute right sensu stricto, so that a justification of interference is precluded from the outset. Interestingly, the Court developed an additional line of reasoning. As if it were not fully confident about the argument derived from the absolute character of human dignity, it pointed out “[i]n addition”79 that the situation in which the decision is taken to shoot down the aircraft is marked by multifaceted empirical uncertainty: One could not expect that there will always be “a complete picture of the factual situation and that the factual situation can always be assessed correctly.”80 Typically, it is (1) not fully clear whether the aircraft is in fact under the control of terrorists, (2) it is not fully clear whether they intend to use it to attack a building and if so, which one, and (3) it is not clear whether they are in a position to carry out their plan, and so on.81 To endorse an interference with human dignity, the Court continued, is ‘absolutely inconceivable’ in such uncertain circumstances.82 Precisely this is explained by the requirement of the certainty of empirical premisses relative to the severity of the interference – since an interference with human dignity is so extraordi76

Aviation Security Act (Luftsicherheitsgesetz), 11 January 2005, BGBl. I, 78.

77

FCC, BVerfGE 115, 118; English translation of the decision available at: http://www.bundesver fassungsgericht.de/entscheidungen/rs20060215_1bvr035705en.html (accessed on 20 April 2014). 78

Ibid., para. 119. For the terrorists, there is, however, no interference with human dignity, and the interference with their right to life is considered justified, see ibid., paras. 138–152. 79

Ibid., para. 123.

80

Ibid.

81

The manifold uncertainties along with the enormous pressure of the time during which a decision to shoot down the aircraft would have to be taken are illustrated ibid., paras. 123–127. 82

Ibid., para. 128.

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narily severe, the empirical premisses on which the balancing decision is based need to be absolutely certain. In short, this additional line of reasoning by the Court is best explained in terms of balancing structures.

2. On the Irrelevance of Hypothetical or Artificial Cases Those who justify interferences by appeal to ‘absolute rights’ – understood in the sense of result-oriented debates83 – regularly resort to hypothetical or artificial cases. Notorious in the debate on torture is the ‘ticking time-bomb scenario,’ in which the terrorist has planted a bomb and is the only one who can defuse it in time. The facts are always arranged in such way as to lead to a great many casualties unless the terrorist is subjected to measures that are usually classified as torture.84 The idea is to orchestrate the situation in such a way that the prohibition of torture is juxtaposed with competing rights and interests that are as weighty as possible. A ‘rhetorical question’ is supposed to emerge: Who would not be prepared to endorse some form of torture when so many lives are at stake? Such hypothetical or artificial cases have very little in common with real cases. All empirical uncertainties are simply removed by way of hypothetical assumption: The terrorist is a terrorist, not a suspected terrorist, it is certain that no one else can defuse the bomb in a timely fashion, it is certain that the terrorist will disclose the crucial information under some mild form of torture, it is certain that this information will save a great many lives, and so on.85 The introduction of these empirical assumptions does not count as simplification; rather, it changes the case fundamentally. As Henry Shue has put it recently: Abstractions and idealisations “make the hypothetical superior to reality and thereby a disastrously misleading analogy from which to derive

83

See supra, VI.A.

84

See for example Brugger (note 58), 662.

85

Particularly on the artificial assumptions in ‘ticking bomb scenarios,’ see Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, Case Western Reserve Journal of International Law (2005–2006), 231, 231–237.

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conclusions about reality.”86 Or, to quote from nearly three decades earlier: “[A]rtificial cases make bad ethics”87 – and, one has to add, ‘bad law,’ too. The importance of the certainty of empirical premisses has long been acknowledged in the debate on torture. The relation, in balancing, between the required certainty of empirical premisses and the severity of the interference with a right explains why. Since torture would represent such a severe interference, nearly perfect certainty of all the empirical premisses would be required to justify it. Such certainty fails to reflect a robust sense of reality. In short: Proportionality balancing can give rise to a form of absoluteness, namely relative absoluteness.

VIII. On Absolute Limits to Balancing Is everything, then, a matter of balancing, or are there absolute limits? Mattias Kumm has recently raised the question of whether proportionality analysis can comprehensively capture the ‘priority’ of rights reflected in ‘political liberalism.’88 Three ideas, according to Kumm, are characteristic of political liberalism: antiperfectionism, anticollectivism, and anticonsequentialism.89 I shall focus on Kumm’s claim that the ‘priority of rights’ requires that rights be anticonsequential.90 Anticonsequentialism, according to Kumm, expresses “the basic idea […] that there are restrictions connected to the idea of inviolability of persons that impose constraints on actors seeking to bring about desirable consequences.”91 Rights subject to balancing impose constraints on “actors seeking to bring about desirable consequences.”92 If individual rights have weight in the balancing, they impose constraints on public authorities with respect to their pursuit of this or that end. The phenomenon of ‘relative absoluteness’ shows that even a constraint that is technically not strictly absolute can nevertheless be a very powerful 86

Ibid., 231.

87

Id., Torture, Philosophy & Public Affairs 7 (1978), 124, 141.

88

Kumm (note 6), 131.

89

Ibid., 142–164.

90

On Kumm’s claim to ‘antiperfectionism’ and ‘anticollectivism,’ see Alexy, Thirteen Replies, (note 73), 340–342. 91

Kumm (note 6), 153.

92

Ibid.

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constraint. Thus, the argument derived from anticonsequentialism can be considered by attributing weight to the individual right in the balancing. According to Kumm, there are, however, constraints on balancing that cannot be reflected in the structure of proportionality. He illustrates his thesis by reference to the ‘trolley problem,’ which he traces back to an essay by Philippa Foot from the end of the 1960s.93 This problem has received a good bit of attention.94 Kumm distinguishes two scenarios: “1. A runaway trolley will kill five people if a bystander does not divert it onto another track, where, he foresees, it will kill one person. 2. A runaway trolley will kill five people if a bystander does not push a fat man standing” next to him onto the tracks in order to stop the trolley. It is clear that the fat man will die in the process.95 Kumm claims that it is a “widely shared view that in the first case the bystander may divert the trolley […], whereas in the second he may not.”96 To begin with, this is a hypothetical or artificial scenario that tells us, for the reasons mentioned above,97 relatively little about how to decide real cases. Interestingly, Philippa Foot acknowledges the relevance of empirical certainty or uncertainty in her original example. Addressing her counterpart to Kumm’s first scenario, she writes: “In real life it would hardly ever be certain that the man on the narrow track [will] be killed.”98 By contrast, regarding her counterpart to Kumm’s second scenario: “The judge, however, needs the death of the innocent man for his (good) purposes.”99 This is to say that there is a significant difference in the certainty of the relevant empirical premisses, which may be the entire explanation as to why these scenarios ought to be treated differently. And the intuition derived from cases in the real world 93

Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy (1978), 19–32, 23. The article originally appeared in: Oxford Review 2 (1967), 5. 94

Kumm (note 6), 153 with further references.

95

Ibid. (In the latter part of Kumm’s second entry, I have taken the liberty of paraphrasing).

96

Ibid.

97

See supra, VII.B.

98

Foot (note 93), 23.

99

Ibid.

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may simply carry over to these completely artificial scenarios, should people be asked to express their intuition. Second, the description of the second scenario has a conspicuous normative dimension – to push anyone onto the tracks is a taboo. If people react more negatively to the second scenario than to the first, they may well be reacting primarily to this description. According to Kumm, however, the supposed differing evaluation of the two scenarios reflects a different reason. In the first scenario, the death of the victim “is merely a contingent side-effect,” the victim is a ‘disabler.’100 By contrast, the fat man in the second scenario is, Kumm continues, “being used as a means to bring about the end of saving the five,” he is an ‘enabler.’101 Kumm draws the conclusion that “[o]nly the claims of the disabler are susceptible to proportionality analysis,” while “[t]he claims of the enabler impose significantly stronger restrictions.”102 Even if the claim of the enabler should be stronger than the claim of the disabler, where this is not simply the result of the typically different certainties of the empirical premisses in the two scenarios, the question arises as to why ‘stronger’ necessarily means ‘absolute.’ The claim of the enabler could be stronger even if the claims of both disabler and enabler were susceptible to proportionality analysis, namely, if greater weight in the balancing were attributed to the claim of the enabler. Kumm’s claim that there is an absolute prohibition of using others as means to an end recalls to mind Kant’s formula in the “Groundwork of the Metaphysic of Morals.” To be sure, there is a decisive difference: According to Kant, one must not use oneself or someone else as a mere means to an end: “Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.”103 The FCC has employed Kant’s ‘end’ 100

Kumm (note 6), 154 (emphasis in the original).

101

Ibid. (emphasis in the original).

102

Ibid. Kumm continues: “No one can be forced to be a hero and sacrifice their life for others.” If someone is sacrificed against his will, he is, however, a victim rather than a hero. In this respect, the two scenarios are not different. The fat man would be a hero only if he himself took the decision to jump onto the tracks in order to save the five. 103

Immanuel Kant, Groundwork of the Metaphysic of Morals (1785, transl. 1964), 96 (standard Academy pagination 429) (annotations omitted).

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formula in the interpretation of human dignity, according to Article 1 (1) Basic Law, as an absolute right sensu stricto.104 This formula is, however, only one element in a complex interpretation of human dignity, and commentators have noted that the formula, by itself, is hardly ever conclusive.105 To be sure, an analysis of the use of Kant’s formula in the case law of the FCC goes well beyond the scope of this essay. Suffice it to say that it is not obvious that the formula Kant developed in moral philosophy undergirds a basic right that is absolute sensu stricto in nature. One could say, for example, that for as long as the interests of the individual are appropriately considered in balancing, the individual is not being used as a mere means to an end – even if this individual is being used in this or that respect as a means to an end. To conclude, it is far from clear that the idea of a prohibition of using others as means to ends gives rise to an absolute limit to balancing.

IX. The Gäfgen Case Revisited To illustrate the plausibility of the idea of relative absoluteness, it is well to revisit the Gäfgen case. What changes, if this approach is compared with the traditional understanding of absolute rights? In line with the traditional understanding and the case law of the ECtHR, the Grand Chamber emphasises the absolute nature of Article 3 ECHR and explicitly rules out any ‘balancing of interests.’106 If, however, one applies proportionality, does the outcome change? Does the fact that the life of a child was supposedly at stake justify the treatment to which Gäfgen was subjected? It is plausible to assume that the treatment accorded to Gäfgen amounted to an interference with Article 3 ECHR. He was in police custody and handcuffed, which represents “a situation of particular vulnerability and constraint.”107 In this situation he was threatened with unbearable pain, which was to be inflicted upon him if he failed to reveal the whereabouts of the missing boy. According to the Grand Chamber, “the real and immediate threats of deliberate and imminent ill-treatment to 104

See Nils Teifke, Das Prinzip Menschenwürde (2011), 9–15 with references from the case law.

105

See in particular Dreier (note 53), 167–168.

106

ECtHR, Gäfgen v. Germany (note 31), para. 107.

107

Ibid., para. 95.

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which the applicant was subjected during his interrogation must be regarded as having caused him considerable fear, anguish and mental suffering.”108 There can be little doubt that this counts as a very severe interference with his right not to be subjected to such treatment.109 The responsible police officer, Daschner, pursued the end of saving the life of the missing boy. In principle, the boy’s right to life, Article 2 ECHR, served as a limiting reason. This is a legitimate end. Problems begin already at the suitability level of proportionality analysis, for one has to have reservations about the reliability of confessions extracted with the help of torture or inhuman treatment. What is more, the question as to whether a less restrictive means was available arises at the necessity level. We may assume, however, that the treatment promoted the aim at least to some extent and that no alternative course of action was available that would have been comparably efficacious. In this case, the balancing is decisive. The interference with Gäfgen’s right not to be subjected to inhuman treatment according to Article 3 ECHR is very severe, and the negative effects were absolutely certain. The presumption against such an interference can be rebutted if extraordinary limiting reasons are forthcoming. In substantive terms, the life of a child is of inestimable value. However, it was far from certain that torturing Gäfgen would save the life of the boy. The police officers could not be absolutely certain whether they had ‘the right man’ in custody. They could not be certain that Gäfgen knew where the boy was hidden, and they could not be sure that the boy was still alive. Taking all of these empirical uncertainties together, Daschner’s course of action appears to have been an act of desperation rather than an act reflecting a sound empirical basis. This tips the balance decisively in favour of Gäfgen and his right according to Article 3 ECHR. This can be generalised: Where two particularly important substantive interests – such as the interest to life and the interest not be subjected to torture, inhuman and degrading treatment – compete, the certainty of the empirical premisses decides the outcome. Because the negative effects of torture and inhuman and degrading treatment are absolutely certain, it is hardly imaginable to regard Article 3 ECHR as ever being outweighed.

108

Ibid., para. 103.

109

Ibid., para. 108.

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X. Uncoupling Proportionality and Limitation Finally, the question arises as to whether uncoupling proportionality and limitation might serve as a compromise between absolute and relative rights. It has been mentioned that, where paradigmatically limitable rights are applied, proportionality analysis is conducted at the level of the justification of the interference, that is, in determining whether a right is limited.110 One could, however, think of using proportionality elsewhere in the scheme of the assessment of rights claims, as a criterion for the determination of whether there is an interference with the right in the first place. Does this give rise to an absolute right – because illimitable – that is susceptible to proportionality analysis? The answer is in the negative. The only difference here is that the limitation is hidden. That uncoupling of proportionality and limitation may well be more than a theoretical construct can be illustrated by the case law of the ECtHR and the FCC. The structural characteristics of such an approach will then be analysed using the example of Robert Alexy’s reconstruction of human dignity in Article 1 (1) Basic Law.

A. The ‘Relativity’ of Article 3 ECHR in the Case Law of the ECtHR

It has already been mentioned that the determination of the scope of absolute rights sensu stricto carries the whole burden of their assessment, and that there is a tendency towards a narrow scope.111 It does not come as a surprise, therefore, that only serious maltreatment of individuals can amount to an interference with Article 3 ECHR. In the case of Ireland v. United Kingdom, the ECtHR characterised the threshold of severity as ‘relative:’ “The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.”112 The Court has repeated this formula in numerous 110

See supra, II.

111

See supra, IV.C.

112

ECtHR, Ireland v. United Kingdom, Judgment of 18 January 1978, Appl. No. 5310/71, para. 162 (emphasis added).

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decisions ever since.113 Against the backdrop of the dichotomy of ‘absolute’ and ‘relative,’ it is suggested that the expression ‘relative’ be read as referring to a balancing exercise. This seems to be confirmed in Soering, where the Court stated: “What amounts to ‘inhuman or degrading treatment or punishment’ depends on all the circumstances of the case,” referring to the passage in the judgment where the ‘relativity formula’ is used.114 The Court continues: “Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.”115 By contrast, the Court stated later, in Chahal, that [i]t should not be inferred from the Court’s remarks concerning the risk of undermining the foundations of extradition, as set out in paragraph 89 of [Soering], that there is any room for balancing the risk of ill-treatment against the reasons for expulsion in determining whether a State’s responsibility under Article 3 is engaged.116

This was reinforced in Saadi, where the “argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back” is regarded as ‘misconceived.’117 What is more, one reads in Gäfgen: “The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests.”118 Commentators are divided. While the ‘relativity’ of the

113

See in particular id., Tyrer v. United Kingdom, Judgment of 25 April 1978, Appl. No. 5856/72, para. 30; id., Soering v. United Kingdom, Judgment of 7 July 1989, Appl. No. 14038/88, para. 100; id., Selçuk and Asker v. Turkey, Judgment of 24 April 1998, Appl. Nos. 23184/94 and 23185/94, para. 76; id., Tekin v. Turkey, Judgment of 9 June 1998, Appl. No. 22496/93, para. 52, id., Selmouni v. France, Judgment of 28 July 1999, Appl. No. 25803/94, para. 100; id., Keenan v. United Kingdom, Judgment of 3 April 2001, Appl. No. 27229/95, para. 109; id., Valašinas v. Lithuania, Judgment of 24 July 2001, Appl. No. 44558/98, para. 101; id., Koktysh v. Ukraine, Judgment of 10 December 2009, Appl. No. 43707/07, para. 88; id., Gladović v. Croatia, Judgment of 10 May 2011, Appl. No. 28847/08, para. 34. 114

Id., Soering v. United Kingdom (note 113), para. 89.

115

Ibid.

116

Id., Chahal v. The United Kingdom (note 29), para. 81.

117

Id., Saadi v. Italy, Judgment of 28 February 2008, Appl. No. 37201/06 (2009), para. 139.

118

Id., Gäfgen v. Germany (note 31), para. 107.

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scope has been understood as a reference to balancing,119 others have objected to this reading.120 A full analysis of the Court’s case law goes, however, well beyond the scope of this essay. Suffice it to say that the following two reconstructions are germane: (1) The Court uses proportionality balancing for the determination of whether there is an interference with Article 3 ECHR. This is to say that the required severity depends on the weight of competing rights or interests. In this case, Article 3 ECHR is absolute in the sense that the right cannot be expressly limited; it is, however, relative in the sense that proportionality analysis is part of the assessment of the rights claim. (2) The Court does not use proportionality balancing in the application of Article 3 ECHR, not as a criterion for a limitation of the right and not in the determination of whether there is an interference with the right either. Article 3 ECHR is absolute in every sense; neither a limitation nor the application of proportionality is possible. The ‘relativity’ formula as such permits both readings. Which reconstruction is correct depends on how this formula is applied. Soering points in the direction of (1), Chahal in the direction of (2). The Court’s formulation in Gäfgen is not altogether conclusive. It can be read as ruling out balancing altogether. It can also be read as ruling out only a balancing of interests in the sense of proportionality qua criterion for the justification of an interference, for ‘balancing interests’ is mentioned in the context of ‘exception’ and ‘justifying factors.’121 According to the latter reading, proportionality as a criterion for the determination of whether there is an interference remains possible. Admittedly, it is not easy to claim that the Court balances the severity of the interference against competing rights and interests if the Court emphasised in Chahal that it does not. It is, in any case, hard to imagine that the Court is completely unimpressed by competing rights and interests in the assessment of claims invoking Article 3 ECHR, and this points in some sense toward reconstruction (1). Interestingly, the case law of the German FCC on the ‘absolute nature’ of human dignity is split, too. There are two different lines of decisions: Those in which the 119

See for example McBride (note 44), 28. See also Roland Bank, Das Verbot von Folter, unmenschlicher oder erniedrigender Behandlung oder Strafe, in: Rainer Grote/Thilo Marauhn (eds.), EMRK/GG Konkordanzkommentar (2006), 479, 529–532. 120

See for example Palmer (note 32), 439; Harris et al. (note 3), 111.

121

ECtHR, Gäfgen v. Germany (note 31), para. 107.

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absolute nature is emphasised and proportionality analysis explicitly ruled out, and those in which balancing structures can be identified in justifying the outcome.122 The orthodox view of human dignity as an absolute right sensu stricto is losing support among commentators, and the idea of balancing in the assessment of claims based on this right is on the advance.123

B. Alexy’s Model of the Structure of Human Dignity – Implicit Proportionality Analysis

In an attempt to reconcile the absolute with the relative strand in the case law of the FCC, Robert Alexy distinguishes between two elements of human dignity, the “human dignity principle” and the “human dignity rule.”124 He emphasises the “semantic open-texture of the concept of human dignity.”125 The human dignity rule establishes the definitive protection granted by Article 1 (1) Basic Law in the case at hand. The human dignity principle undergirds the human dignity rule, and the principle is balanced against competing rights or interests. The rule is the result of this balancing: “The preference relation between the human dignity principle and other competing principles determines the content of the human dignity rule.”126 According to Alexy’s principles theory, the application of principles necessarily requires proportionality analysis: “The nature of principles implies the principle of proportionality.”127 The advantage of his reconstruction, Alexy concludes, is “that on one hand no limiting clause needs to be read into the human dignity norm of the constitution, but that on the other hand the human dignity principle can still be

122

See, with further references, Borowski (note 22), 273–278; Teifke (note 104), 15–32; Manfred Baldus, Menschenwürdegarantie und Absolutheitsthese, Archiv des öffentlichen Rechts 136 (2011), 529, 536–540. 123 A recent article in an influential commentary on the Basic Law is testimonial to this advance: Herdegen (note 57), 32–36. See also Baldus (note 122), 548–550 with further references. 124

Alexy (note 6), 62–64.

125

Ibid., 64, footnote 69.

126

Ibid., 64.

127

Ibid., 66.

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balanced with other constitutional principles.”128 In short, one can have proportionality analysis without limitation. This model of implicit proportionality analysis in the assessment of rights claims invoking human dignity renders Article 1 (1) Basic Law absolute in some sense – in the sense that once the human dignity rule has been established, no exception, justification, or balancing is possible. It presupposes human dignity as relative, however, in so far as the principle of human dignity is balanced according to proportionality. If Alexy considers implicit proportionality analysis as ‘advantage[ous],’ the question arises as to why it ought to be advantageous for human dignity alone rather than for all constitutional rights. To return129 to the example of John, barred from attending religious services owing to an imminent pandemic, introduced at the beginning of this essay: One might ask whether a principle of religious freedom and a rule of religious freedom ought to be distinguished, the latter being absolute in nature. The principle of religious freedom needs to be balanced against competing principles in the circumstances of the case at hand – public health in John’s case. Public health outweighs religious freedom, so that John has no definitive right to attend religious services. How does this reconstruction according to implicit proportionality analysis differ from the reconstruction according to the standard model of limitable rights?130 It is crucial to understand that the application of proportionality to rights is in both cases precisely the same. A prima facie right (the principle) is balanced against competing rights and interests, and the outcome of the balancing is the definitive right. The only difference is that the standard model of limitable rights focuses on the prima facie right and on the justification of interferences, while Alexy’s reconstruction of human dignity, implicit proportionality analysis, has the definitive right at centre stage. One could say that if judges were to follow Alexy’s model of human dignity, it would be less obvious that they are performing proportionality balancing. To put a sharp edge on it: Is it advantageous to hide the fact that proportionality analysis takes place in the assessment of rights claims? Considering that it is regarded as a crucial advantage of proportionality balancing that it sheds light on the relevant premisses

128

Ibid., 64, footnote 69.

129

See supra, II.

130

On the standard model see supra, II.

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and particularly on the justification of the weight of competing principles,131 the answer must be in the negative. An additional aspect that ought not to be forgotten is the issue of such formal criteria as ‘prescribed by law.’ There are no formal criteria in Alexy’s model of implicit proportionality analysis for human dignity. This is to say that the executive or the judiciary does not require any prior authorisation by parliamentary statute to consider the principle of human dignity as being outweighed in a given case. If paradigmatically limitable rights, for example, Articles 8 to 11 ECHR, require such prior authorisation, why would ‘absolute rights,’ such as human dignity or Article 3 ECHR, which are characterised by significantly higher abstract weight, not require it? Thus, if one follows Alexy’s model, the criterion ‘prescribed by law’ ought to be read into it. If one does this, however, the structural parallels between the standard model of limitable rights and Alexy’s model become even more obvious. To conclude, uncoupling proportionality and limitation does not give rise to a new structural model of basic rights. The main difference, by comparison with the standard model of basic rights, is that the limitation of prima facie right is hidden rather than explicitly acknowledged. Because rendering the balancing and the arguments in support of it transparent is a crucial advantage of proportionality analysis, the shift in the focus that results from implicit proportionality analysis is – to say the least – unfortunate.

XI. Conclusion Is the idea of proportionality analysis in the application of absolute rights such as Article 3 ECHR a ‘wrong turn’? There are good reasons to doubt this. In fact, the results most of us regard as correct can better be reconstructed by means of balancing. And the role of the certainty of empirical premisses in balancing explains why hypothetical or artificial scenarios tell us very little about how to decide real cases.

131

See supra, II.

Interception of Seaborne Migrants: The Applicability of the Non-Refoulement Principle at Sea JASMINE COPPENS(

ABSTRACT: Irregular movements of migrants by sea have resulted in States taking interception measures to prevent people from arriving onto their territory. This article deals with the legality of these interception measures and more specifically with the applicability of the nonrefoulement principle at sea. Especially the extraterritorial scope of this principle is a controversial issue. The 2012 European Court of Human Rights case of Hirsi Jamaa and Others v. Italy plays a crucial role in the international debate. KEYWORDS: Seaborne Migrants, Interception, Right to Leave, Right to Seek Asylum, NonRefoulement, Extraterritoriality

I. Introduction Huge disparities in wealth across the world, the denial of fundamental rights in some countries and natural disasters have resulted in broad population movements, also by sea. For example, in 2010, almost 10,000 irregular arrivals by sea were reported in Greece, Spain, Italy and Malta. Due to the uprisings in Tunisia and Libya, this number even mounted to nearly 70,000 in 2011. In Yemen, there were 53,382 arrivals from Somalia in 2010 and even 103,000 in 2011.1 Nowadays, most maritime movements are what is known as ‘mixed’ movements, involving individuals or groups travelling in an irregular manner along similar routes and using similar means of travel, but for different reasons. This means that the people on board have various

(

Senior researcher at the Maritime Institute of Ghent University, Belgium. In 2013, she successfully defended her PhD entitled ‘Migrants at Sea: A Legal Analysis of a Maritime Safety and Security Problem’. 1

United Nations High Commissioner for Human Rights (UNHCR), Key Facts & Figures, available at: www.unhcr.org/pages/4a1d406060.html (accessed on 13 September 2013).

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profiles and needs, as opposed to being primarily refugee outflows.2 The 1951 Convention relating to the Status of Refugees (Refugee Convention) defines a refugee as someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.3 However, among seaborne migrants, there are also people who are economic migrants looking for a better life in a developed country. States are quite reluctant in permitting asylum-seekers onto their territory. Therefore, in order to cope with this problem, States are taking interception measures to prevent people from arriving at their territory by sea.4 For example, the creation of Frontex – the European agency for the management of operational cooperation between the Member States at the external borders of the European Union – was aimed at promoting solidarity between the European Member States in the field of control and surveillance of external borders.5 It coordinates joint interdiction operations at sea, such as ‘Operation Hera.’ This operation targeted the passage of irregular migrants and the criminal organisations that transported them from West Africa to the Canary Islands. By stemming the flow of people through this highly dangerous route, Frontex stated that hundreds if not thousands of lives were saved.6 There is no internationally accepted definition of interception at sea. According to the Executive Committee (ExCom) of the Office of the United Nations High Commissioner for Refugees (UNHCR):

2 Id., All in the Same Boat: The Challenges of Mixed Migration, available at: http://www.unhcr. org/pages/4a1d406060.html (accessed on 13 September 2013). 3 Art. 1 Convention relating to the Status of Refugees, 28 July 1951, UNTS 189, 137 (Refugee Convention). The 1967 Protocol removed geographical and temporal restrictions from the Refugee Convention, see Protocol relating to the Status of Refugees, 31 January 1967, UNTS 606, 267. 4

For a detailed discussion on interception and the law of the sea see Jasmine Coppens, Migrants in the Mediterranean: Do’s and Don’ts in Maritime Interdiction, Ocean Development & International Law 43 (2012), 342. 5

Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Border of the Member States of the European Union, OJ 2004 L 349, 1, preamble para. 5. Europe has got as much as 42,672 km of external sea borders. 6

Frontex, Operations – Sea, available at: http://www.frontex.europa.eu/operations/types-ofoperations/sea (accessed on 8 October 2013).

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[I]nterception or interdiction occurs when mandated authorities representing a State: (i) prevent embarkation of persons on an international journey; (ii) prevent further onward international travel by persons, who have commenced their journey; (iii) assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law.7

This can occur in the form of either physical interception or administrative measures.8 Preventing embarkation from inside the intercepting State via the imposition of exit visas or border closures to prevent departure would for example qualify under the ExCom definition of interception. Therefore, I will first take a look at whether interception measures could violate the right to leave any country. After interception, migrants at sea are often returned to the place where they embarked. However, the non-refoulement principle entails that a person cannot be returned to a place where their life or freedom would be threatened. In a second part, I will thus deal with the content of the non-refoulement principle – in the refugee law context, the human rights context and in customary international law – and its application at sea.

II. Interception and the Right to Leave Preventing embarkation from inside the intercepting State via the imposition of exit visas or border closures to prevent departure would qualify under the ExCom definition of interception. But could the legality of in-country activities of interception – for example within the territorial sea – violate the right to leave any country? The right to leave one’s own country is an aspect of general concern regarding the freedom of movement.9 It is an established human right recognised in a range of international instruments. Article 13 of the Universal Declaration of Human Rights

7 UNHCR Executive Committee of the High Commissioner’s Programme (ExCom), Protection Safeguards in Interception Measures Problems Related to the Rescue of Asylum-Seekers in Distress at Sea, Conclusion No. 97 (LIV), 10 October 2003, available at: http://www.unhcr.org/refworld/docid/ 3f93b2894.html (accessed on 13 September 2013). 8 UNHCR, Interception of Asylum-Seekers and Refugees: the International Framework and Recommendations for a Comprehensive Approach, 9 June 2000, UN Doc. EC/50/SC/CRP.17, paras. 12–13, available at: http://www.unhcr.org/refworld/docid/49997afa1a.html (accessed on 13 September 2013). 9

In general see Colin Harvey/Robert P. Barnidge, Human Rights, Free Movement, and the Right to Leave in International Law, International Journal of Refugee Law (IJRL) 19 (2007), 1.

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(UDHR)10 as well as Article 12 (2) of the International Covenant on Civil and Political Rights (ICCPR)11 stipulate that everyone has the right to leave any country, including their own. The scope of the right is not restricted to persons lawfully within the territory of a State. An alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State.12 Both travelling abroad and departure for permanent emigration are covered.13 Also the 1969 American Convention on Human Rights (ACHR)14 and Protocol No. 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol No. 4 ECHR)15 mention this right in Article 22 (2) and Article 2 (2), respectively. Nevertheless, the right to leave is not an absolute right and – under certain conditions – there can be restrictions by law, for example when it is necessary to protect national security or public safety.16 In its General Comment No. 27 on Article 12 of the ICCPR, the UN Human Rights Committee (HRC) has stressed that restrictive measures must conform to the principle of proportionality. Therefore, they must be appropriate to achieve their protective function, they must be the least intrusive instrument amongst those which might achieve the desired result and they must be proportionate to the interest to be protected. The principle of proportionality has to be respected in the law that frames the restrictions, as well as by the administrative and judicial authorities in applying the law.17 Moreover, restrictions need to be consistent with the fundamental principles of equality and non-discrimination. Thus, distinctions such as those on the basis of race, language, religion, political or other opinion, national origin, birth or other legal status are impermissible. For example, 10 UN GA Res 271A (III) of 10 December 1948, Universal Declaration of Human Rights (UDHR), available at: http://www.un-documents.net/a3r217a.htm (accessed on 13 September 2013). 11

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 99, 171 (ICCPR).

12

Human Rights Committee (HRC), General Comment No. 15: The Position of Aliens under the Covenant, 11 April 1986, UN Doc. HRI/GEN/1/Rev.3 (1997), 19. 13

HRC, General Comment No. 27: Freedom of Movement, 2 November 1999, UN Doc. CCPR/ C/21/Rev.1/Add.9 (1999), para. 8. 14

American Convention on Human Rights, 22 November 1969, ILM 9, 99 (ACHR).

15

Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, 16 September 1963, CETS No. 46 (Protocol No. 4 ECHR). 16

Art. 12 (3) ICCPR; Art. 22 (3) ACHR; Art. 2 (3) Protocol No. 4 ECHR.

17

HRC, General Comment No. 27 (note 13), paras. 14–15.

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the HRC has found on several occasions that measures preventing women from moving freely or from leaving the country by requiring them to have the consent or the escort of a male person, constitute a violation of Article 12 of the ICCPR.18 As coastal States exercise sovereignty over their territorial sea, it is generally accepted that other States are not permitted to exercise enforcement jurisdiction therein.19 This can be problematic if for example a foreign vessel – engaged in unlawful activities beyond the territorial sea – may flee to this zone and the coastal State lacks resources or does not consider it to be a priority to police certain activities within its territorial sea. Therefore, in order to respond to certain threats, States have concluded agreements where coastal States grant permission for other States to exercise enforcement jurisdiction within their territorial sea, subject to certain conditions.20 A recent example is the Caribbean Community (CARICOM) Maritime and Airspace Security Co-operation Agreement, which allows for State parties to patrol and conduct law enforcement operations in the territorial seas of other State parties. This Agreement covers a variety of maritime security threats. It does not only involve illegal migration and migrant smuggling, but also piracy, terrorism, arms trafficking and drug trafficking.21 A major objective of this agreement is to promote co-operation among the parties to enable them to conduct such law enforcement operations as may be necessary to address more effectively the security in the region.22 The 2008 CARICOM Agreement is being supplemented by the CARICOM Arrest Warrant Treaty.23 It deals with arrest warrants “by the issuing judicial authority of one State Party […] with a view to the arrest and the surrender of a requested person by the

18

Ibid., para. 18.

19

Arts. 2–3 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS). 20

Natalie Klein, Maritime Security and the Law of the Sea (2011), 78–79.

21

Caribbean Community (CARICOM) Maritime and Airspace Security Co-operation Agreement, 4 July 2008 (not yet entered into force), available at: http://www.caricom.org/jsp/secretariat/legal_ instruments/agreement_maritime_airspace_security_cooperation.pdf (accessed on 1 October 2013) (2008 CARICOM Agreement). The State parties are Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago. 22 23

See Preamble 2008 CARICOM Agreement.

CARICOM Arrest Warrant Treaty, 4 July 2008 (not yet entered into force), available at: http:// www.caricom.org/jsp/secretariat/legal_instruments/caricom_arrest_warrant_treaty.pdf (accessed on 28 September 2013).

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executing judicial authority of another State Party for the purposes of conducting a criminal prosecution or executing a custodial sentence.”24 Another possibility is that a coastal State law enforcement official is being brought onto the host State’s ship. This kind of arrangement is commonly referred to as a ‘shiprider’ agreement. A shiprider may – subject to specific treaty arrangements – authorise interventions aboard the host State’s vessels. For example, Spain signed a Memorandum of Understanding with Senegal and Mauritania to bring on board Senegalese and Mauritanian immigration officers for interceptions carried out in their respective territorial waters.25 Another example is the agreement between the United States of America and the Dominican Republic to bring officials of one country on board vessels of the other country while carrying out patrols in their respective territorial waters.26 In 1997, Italy and Albania signed an agreement to intercept migrants in Albanian territorial waters whereby Albanian officials were brought onto Italian naval vessels.27 Indeed, faced with the wave of Albanian citizens immigrating illegally into Italy, the Italian and Albanian authorities took a number of measures to discourage Albanians from leaving. In 1997, both countries signed an agreement authorising the Italian navy to set up a naval blockade in international waters and Albanian territorial waters. The case was brought before the European Court of Human Rights (ECtHR) by Albanian migrants in Xhavara and Others v. Italy and Albania, who were trying to enter Italy illegally when their boat Kater I Rades sank following a collision with an Italian warship. Although the applicants were rescued, 58 people – among whom were members of their family – perished in the shipwreck. The applicants claimed that the bilateral agreement between Albania and Italy allowing for Italy’s interception of Albanian sea vessels in international waters as well as in Albanian territorial waters 24

Art. 1 CARICOM Arrest Warrant Treaty.

25

Frontex, Longest Frontex Coordinated Operation – Hera, The Canary Islands, available at: http://www.frontex.europa.eu/news/longest-frontex-coordinated-operation-hera-the-canary-islandsWpQlsc (accessed on 17 September 2013). Frontex denies public access to the text of the co-operation agreements signed between Spain and Senegal/Mauritania. 26

Agreement between the United States of America and the Government of the Dominican Republic Concerning Cooperation in Maritime Migration Law Enforcement, 20 May 2003, TIAS 2003 UST LEXIS 32. 27 Agreement between Italy and Albania to Prevent Certain Illegal Acts and Render Humanitarian Assistance to Those Leaving Albania, 2 April 1997, Gazetta Ufficiale della Repubblica Italiana No. 163 (15 July 1997).

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violated Article 2 (2) Protocol No. 4 ECHR, namely the right to leave one’s country. However, as the interception activities were not aimed at preventing the Albanians from leaving their country, but rather at preventing them from entering Italian territory, the ECtHR held that this right was not violated.28 However, this decision is being criticised in doctrine. It has been argued that “when the most accessible safety route is sealed off, […] the result is to lock migrants into their home countries or to cause them to risk more perilous journeys.”29 Therefore, Italy’s actions would have significantly undermined both the right to leave one’s country and the right to seek asylum.30 Nevertheless, in this case, the most accessible safety route was not sealed off as persons could still choose to migrate by land or by air, both safer routes than by sea. Therefore, the result of the interception measures was not to lock migrants into their home country, nor to cause them to risk more perilous journeys. The right to leave must be read in conjunction with the right to seek and to enjoy asylum in Article 14 (1) UDHR. Thus, States have an obligation to respect an individual’s right to leave their country in search of protection.31 Nevertheless, there is no obligation for States to grant asylum and individuals do not have the right to be granted asylum.32 During the drafting of the UDHR, the proposal to substitute ‘to be granted’ for ‘to enjoy’ was vigorously opposed.33 Moreover, Lauterpacht noted that there was no intention among States to assume even a moral obligation in the matter, as granting asylum was regarded as the sovereign right – and not the duty – of every State.34 This view was also reflected in the 1967 UN GA Declaration on Territorial Asylum that provides that asylum granted by a State – in the exercise of its sovereignty – to persons entitled to invoke Article 14 UDHR has to be respected by all 28 European Court of Human Rigths (ECtHR), Xhavara and Others v. Italy and Albania, Decision of 11 January 2001, Appl. No. 39473/98, available via: http://hudoc.echr.coe.int (accessed on 17 September 2013). 29 Lori A. Nessel, Externalized Borders and the Invisible Refugee, Columbia Human Rights Law Review 40 (2009), 625, 675. 30

Ibid.

31

Guy S. Goodwin-Gill/Jane McAdam, The Refugee in International Law (3rd ed. 2007), 373; Guy S. Goodwin-Gill, The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement, IJRL 23 (2011), 443, 444. 32

Guy S. Goodwin-Gill, The Refugee in International Law (2nd ed. 1996), 202.

33

UN GA, Third Committee, Draft International Declaration of Human Rights: Recapitulation of Amendments to Article 12, 16 October 1948, UN Doc. A/C.3/285 (1948). 34

Hersch Lauterpacht, International Law and Human Rights (1950), 421.

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other States. The State of asylum has the authority to evaluate the grounds for the grant of asylum.35 In 1977, the world community again passed over an opportunity to grant to individuals the right to asylum vis-à-vis the State of refuge. The 1977 UN Conference on Territorial Asylum – convened with the goal of adopting a Convention on Territorial Asylum – adjourned without finishing its work, due to the considerable disagreement among States.36 Also regional instruments do not provide for an individual’s right to be granted asylum. The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)37 makes no reference to asylum and although African and American regional instruments address asylum, they do so with great respect for State sovereignty. Article 12 (3) African Charter on Human and Peoples’ Rights (ACHPR) states that every individual has the right to seek and obtain asylum, but in accordance with the laws of those countries and international conventions.38 Similarly, the ACHR provides in Article 22 (7) that every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the State and international conventions.

III. Interception and Non-Refoulement A. Refugee Law Context

1. Concept Article 33 (1) Refugee Convention states that No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

35

Art. 1 (1) and (3) GA Res 2312 (XXII) of 14 December 1967.

36

See Atle Grahl-Madsen, Territorial Asylum (1980); Paul Weis, The Draft United Nations Convention on Territorial Asylum, British Yearbook of International Law (BYIL) 50 (1979), 151. 37 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR). 38

African Charter on Human and Peoples’ Rights, 27 June 1981, ILM 21, 58 (ACHPR).

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Article 42 (1) Refugee Convention precludes the making of reservations in respect inter alia of Article 33 concerning non-refoulement. The ratio legis of this article is that the turning back of refugees to the frontiers of a country where their life or freedom would be threatened, would be tantamount to delivering them into the hands of their persecutors. Reference is made not only to the country of origin but also to other countries where the life or freedom of the refugees would be threatened for the reasons mentioned.39 Non-refoulement is not limited to those formally recognised as refugees. Therefore, the prohibition on States is applicable to recognised refugees as well as to all asylum-seekers. Any other approach would significantly undermine the effectiveness and utility of the protective arrangements of the Refugee Convention.40

2. Application at the Borders of a State Although the non-refoulement principle could be violated with regard to all asylum-seekers who are already present on the territory of a State, it is not always clear whether this is also the case for people who are at the border and want to be admitted to the territory of a State.

a) Maritime Frontier First of all, I will have to answer the question of what the maritime frontier exactly is. The sovereignty of a coastal State extends – beyond its land territory and internal waters – to the territorial sea.41 Article 29 1969 Vienna Convention on the Law of Treaties says: “Unless a different intention appears from the treaty or is otherwise 39 UN Economic and Social Council (ECOSOC), Report of the Ad Hoc Committee on Statelessness and Related Problems – Annex II: Comments of the Committee on the Draft Convention relating to the Status of Refugees, 17 February 1950, UN Doc. E/1618 (1950), 61. 40 Daniel Bethlehem/Elihu Lauterpacht, The Scope and Content of the Principle of Non-Refoulement: Opinion, in: Erika Feller/Volker Türk/Frances Nicholson (eds.), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), 87, 116–118; UNHCR, The Protection of Asylum-Seekers and Refugees Rescued at Sea, in: Thomas Alexander Aleinikoff/Vincent Chetail (eds.), Migration and International Legal Norms (2003), 137. 41

Art. 2 (1) UNCLOS. See also Art. 1 (1) Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, UNTS 516, 205.

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established, a treaty is binding upon each party in respect of its entire territory.”42 The International Law Commission (ILC) already stated in 1956 that the rights of the coastal State over the territorial sea do not differ in nature from the rights of sovereignty which the State exercises over other parts of its territory.43 The maritime frontier will thus be the territorial sea border. Therefore, one strand of legal doctrine is convinced that the non-refoulement principle will be applicable within the territorial waters as it is on land territory.44 However, another opinion is that – while sovereignty certainly follows from a State’s possession of territory – the exercise of sovereignty or sovereign rights over a space or object does not make it territory. Consequently, the argument that territorially limited international obligations would necessarily apply in the territorial sea in the same manner as on land is thus unconvincing.45 In this case, the maritime frontier is being transferred to the internal waters of a State. Nevertheless, the nonrefoulement principle will still be applicable within territorial waters. It seems consistent with the spirit of the Refugee Convention that a person should be able to claim asylum once they are within the jurisdiction of a State.46 The far reaching de jure jurisdiction of the coastal State in its territorial waters is a very strong indication for corresponding de facto control. For example, vessels exercising non-innocent passage become subject to the full jurisdiction of the coastal State.47 As such, the prohibition of non-refoulement will apply in the territorial sea.48

42

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331.

43

International Law Commission (ILC), Report of the International Law Commission covering the work of its eighth session, UN Doc. A/3159 (1956), reprinted in: Yearbook of the ILC, 1956, vol. II, 253. 44

Mark Pallis, Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes, IJRL 14 (2002), 329, 343–344; Seline Trevisanut, The Principle of NonRefoulement at Sea and the Effectiveness of Asylum Protection, in: Armin von Bogdandy/Rüdiger Wolfrum (eds.), Max Planck Yearbook of United Nations Law XXII (2008), 205, 222. 45

Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (2009), 226.

46

Richard A. Barnes, Refugee Law at Sea, International and Comparative Law Quarterly (ICLQ) 53 (2004), 47, 70. 47 48

Robin R. Churchill/Vaughan A. Lowe, The Law of the Sea (3rd ed. 1999), 87 and 95–100.

Anja Klug/Tim Howe, Extraterritorial Interception Measures, in: Bernard Ryan/Valsamis Mitsilegas (eds.), Extraterritorial Immigration Control (2010), 65, 93.

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Despite the fact that the link between territory and territorial sea is strong, it is not settled that the territorial sea is to be considered as territory strictu sensu.49 As pointed out by Goodwin-Gill and McAdam, the question of whether entering a State’s territorial waters constitutes entry – where ‘entry’ is the judicial fact necessary and sufficient to trigger the application of a particular system of international rules – to State territory remains unresolved.50 Although entry within territorial waters may be an ‘entry’ for certain purposes, it is not correct to generalise.51 Indeed, if all the provisions of the Refugee Convention became operative upon entry into the territorial waters, then a potential conflict arises between Article 31 (1) Refugee Convention and Article 25 (1) UN Convention on the Law of the Sea (UNCLOS). The former states that The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

The latter on the contrary permits coastal States to take action necessary to prevent non-innocent passage. The full application of the Refugee Convention to the territorial sea would effectively negate or severely constrain the authority of a coastal State to control non-innocent passage. As the potential interference posed to the right to regulate navigation in the territorial sea goes far beyond the limited aims of the Refugee Convention to restrict the undue penalisation of illegal migrants, the full application of the Refugee Convention to the territorial sea would provide an unworkable basis for dealing with migration issues.52 However, there appears to be little reason to doubt the applicability of nonrefoulement in the territorial sea, irrespectively of which approach is applied.53 As ExCom noted: “The State within whose sovereign territory, or territorial waters, 49

Daniel P. O’Connell, The Juridical Nature of the Territorial Sea, BYIL 45 (1971), 303, 381.

50

Goodwin-Gill/McAdam (note 31), 279. See also Daniel P. O’Connell, in: Ivan A. Shearer (ed.), The International Law of the Sea (Vol. II 1984), 80–81. 51

See e.g. Supreme Court of Canada, The Ship “May” v. R., Judgment of 28 April 1931, SCR 374 (1931). 52

Richard A. Barnes, The International Law of the Sea and Migration Control, in: Ryan/Mitsilegas (eds.) (note 48), 103, 125. 53

Id., (note 46), 69.

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interception takes place has the primary responsibility for addressing any protection needs of intercepted persons.”54

b) Non-Admittance at the Borders of a State It is important to note that the Refugee Convention – and also international law generally – does not contain any right to asylum for individuals. Therefore, international law, as it stands today, does not guarantee asylum-seekers a right to enter a State’s territory. Article 33 of the Refugee Convention does not imply that a refugee must in all cases be admitted to the country where they seek entry.55 However, Bethlehem and Lauterpacht argue that this does not mean that States are free to reject at the frontier, without constraint, those who have a well-founded fear of persecution.56 This view is also supported by various ExCom Conclusions. ExCom has confirmed that it is of utmost importance that the principle not be violated on the territory of a State or at the borders.57 But what are the actual consequences for States at their borders? Where nonrefoulement applies, a series of related procedural guarantees could become applicable as well. There appears to be a growing support for a norm of refugee status determination – implicitly present in the Refugee Convention – in both doctrine and the iterations of the UNHCR.58 This means that, as non-admittance would constitute refoulement, asylum-seekers should be admitted to refugee status determination. Refugee status determination is declaratory, meaning that a person is a refugee by virtue of the fact of being outside the country of nationality, having fled due to a wellfounded fear of persecution. Therefore, status as a refugee does not depend on any constitutive act of the State processing the claim. Persons do not become refugees

54

ExCom, Conclusion No. 97 (LIV) (note 7).

55

ECOSOC (note 39), 61.

56

Bethlehem/Lauterpacht (note 40), 113.

57

ExCom, Non-Refoulement, Conclusion No. 6 (XXVIII), 12 October 1977, available at: http:// www.unhcr.org/refworld/type,EXCONC,UNHCR,,3ae68c43ac,0.html (accessed on 19 September 2013); id., Conclusion No. 97 (LIV) (note 7). 58

See for example Hemme Battjes, European Asylum Law and International Law (2006), 467.

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because of recognition, but are recognised because they are refugees.59 In order to enable State parties to the Refugee Convention to implement their provisions, refugees have to be identified.60 Thus, UNHCR believes that States will be required to grant individuals seeking international protection access to fair and efficient asylum procedures in order to give effect to their obligations under the Refugee Convention and/or the 1967 Protocol.61 This view has very important consequences in the maritime context, as asylumseekers arriving by sea who manage to reach a State’s territorial waters should not be turned away. Pallis takes the view that any interdiction and re-direction of vessels may amount to a breach of an obligation to determine the status of asylum-seekers.62 Thus, a refusal to refugee status determination would amount to a breach of international law unless the State adopts another course that does not amount to refoulement, for example the removal to a safe third country or temporary protection.63 Trevisanut for example bases herself on the 1967 UN GA Declaration on Territorial Asylum to argue that the first State of arrival has a duty to at least temporarily host the asylum-seekers.64 She considers vessels – except those enjoying the right of innocent passage – that have entered the territorial sea to have ‘arrived’ at a State. As a result, this State should carry out a first screening of the persons. Vessels with asylum-seekers can therefore not be redirected towards the high seas.

59 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (December 2011), UN Doc. HCR/IP/4/Eng/REV.3 (2011), para. 28. 60

Ibid., para. 189.

61

Id., Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, para. 8, available at: http://www.unhcr.org/refworld/docid/45f17a1a4.html (accessed on 14 September 2013). See also id., Asylum Processes – Fair and efficient Asylum Procedures, 31 May 2001, EC/GC/01/12, paras. 4–5, available at: http://www.unhcr.org/refworld/docid/3b36f2fca.html (accessed on 14 September 2013); ExCom, Conclusion No. 81 (XLVIII), 17 October 1997, para. (h); id., Safeguarding Asylum, Conclusion No. 82 (XLVIII), 17 October 1997, para. (d) (iii); id., International Protection, Conclusion No. 85 (XLIX), 9 October 1998, para. (q); id., General Conclusion on International Protection, Conclusion No. 99 (LV), 8 October 2004, para. 1; all available at: http://www.unhcr.org/41b041534.html (accessed on 14 September). 62

Pallis (note 44), 354.

63

Bethlehem/Lauterpacht (note 40), 113.

64

Trevisanut (note 44), 223.

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However, this expansive reading of an obligation of refugee status determination is rejected by other authors. The aforementioned arguments could make sense with regard to land boundaries, as rejection at one State’s border could result in refoulement if the neighbouring State is the country of persecution.65 With respect to asylum-seekers arriving by sea however, this would require bringing the vessel and the people on board into port. This would contradict the fact that there is no right of entry into ports, neither under the law of the sea nor under refugee law.66 This view is also supported by State practice. It is quite common for States to apply migration law only to those arriving on ‘dry land,’ e.g. persons presenting themselves within the geographic area of a port.67 For example, Article 3 (1) Dublin II Regulation says: “Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum.”68 This application has to be examined in conformity with Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status.69 The Directive applies to all applications for asylum made in the territory, including at the border of the Member States.70 However, Article 2 (2) Schengen Borders Code defines an external border as the Member States’ land borders, including river and lake borders, sea borders and their airports, river ports, sea ports and lake ports, provided that they are not internal borders.71 Thus, as sea ports are considered to be located at the external border, it is doubtful whether the territo-

65

Barbara Miltner, Irregular Maritime Migration: Refugee Protection Issues in Rescue and Interception, Fordham International Law Journal 30 (2006), 75, 94. 66

Barnes (note 52), 114–117, 127.

67

Goodwin-Gill (note 32), 163; Guilfoyle (note 45), 222.

68

Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2003 L 50, 1. 69 European Commission Proposal for a Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodges in one of the Member States by a third-country national, 26 July 2001, COM (2001) 447 final, Explanatory Memorandum. 70 Art. 3 (1) Council Directive (EC) No. 2005/85 of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ 2005 L 326, 13. 71 Regulation (EC) No. 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), OJ 2006, L 105, 1.

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rial sea border could be regarded as constituting an external border for the purpose of applying refugee status determination.72 Nevertheless, an obligation of refugee status determination – or another act that does not amount to refoulement, such as temporary protection – may exist when the act of rejection necessarily results in the person being returned to the place of persecution. Theoretically, the vessel – where seaworthy and adequately supplied – could travel to any coastal State in the world.73 However, if every country sends migrant boats back into the ocean, those on board will become persons ‘in orbit.’ These people are looking for a place to request asylum, but are pushed back to sea each time.74 As a result, if the combined effect of multiple States expelling the same vessel from their waters is that a refugee must return to a place of persecution, this is said to constitute ‘chain’ or ‘collective’ refoulement.75 Therefore, in order to be able to give effect to their obligations, States Parties to the Refugee Convention should, at a minimum, conduct some form of individual refugee screening process when actually repatriating persons, turning boats back to their points of departure or in case of collective refoulement.76 This has to be opposed to mere rejection at the frontier.77 The simple denial of entry into internal waters or territorial waters to ships does not necessarily amount to the return of these persons to a place where their life or freedom would be threatened. In its commentary on the draft text of the Refugee Convention, the Ad Hoc Committee on Statelessness and Related Problems noted that the prohibition of refoulement does not entail a duty for the State to accept a person onto its own territory. The Committee illustrated this by saying that the return of a migrant ship to the high seas would not constitute refoulement.78 Therefore, this refusal must be

72

But see Maarten den Heijer, Europe Beyond its Borders, in: Ryan/Mitsilegas (eds.) (note 48), 163, 176–180. 73

Guilfoyle (note 45), 223.

74

Hélène Lambert, Seeking Asylum: Comparative Law and Practice in Selected European Countries (1995), 4. 75

Guilfoyle (note 45), 223.

76

Ibid., 223.

77

Barnes (note 52), 116–117.

78

UNHCR, Ad Hoc Committee on Statelessness and Related Problems, Comments of the Committee on the Draft Convention, 10 February 1950, UN Doc. E/AC.32/L.32/Add.1 (1950), Art. 28.

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differentiated from the physical return of persons on a ship to a place where their life or freedom would be threatened.79 We can conclude that the duty of non-refoulement not only encompasses nonreturn at the frontier but also non-rejection at the frontier, only when the latter poses an actual threat.80 It has to be noted, however, that States also have other obligations – for example under the search and rescue regime – towards unseaworthy vessels.81 It is a legal obligation for shipmasters and States under customary international law, as well as under Articles 58 and 98 of the UNCLOS to render assistance to persons in danger of being lost and to proceed with all possible speed to the rescue of persons in distress. As every situation is different, the fact whether persons at sea are in distress or not will depend on the specific circumstances. The actual distress phase is defined by the 1979 International Convention on Maritime Search and Rescue (SAR Convention)82 – a treaty monitored by the International Maritime Organization that imputes multi-State coordination of search and rescue systems – as: “A situation wherein there is reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance.”83 When exactly a situation is identified as requiring immediate assistance, can differ according to which State is handling the situation. For some States the vessel

79

Goodwin-Gill (note 32), 166; Barnes (note 46), 70.

80

James C. Hathaway, The Rights of Refugees under International Law (2005), 301.

81

When vessels respond to persons in distress at sea, they are not engaged in interception or interdiction, see ExCom, Conclusion No. 97 (LIV) (note 7). However, States sometimes rely on the principles associated with search and rescue at sea as a means of interdicting vessels that could not otherwise lawfully be visited on the high seas. Furthermore, it is better for a State’s reputation to claim that they have ‘rescued’ migrants at sea instead of admitting that they actually interdicted a vessel. However, the UNCHR already stressed that States should avoid the categorisation of interception operations as search and rescue operations because this can lead to confusion with respect to disembarkation responsibilities. See Natalie Klein, International Migration by Sea and Air, in: Brian Opeskin/ Richard Perruchoud/Jillyanne Redpath-Cross (eds.), Foundations of International Migration Law (2012), 260, 270; UNHCR, The Treatment of Persons Rescued at Sea: Conclusions and Recommendations from Recent Meetings and Expert Round Tables Convened by the Office of the United Nations High Commissioner for Refugees: Report of the Office of the United Nations High Commissioner for Refugees, 11 April 2008, UN Doc. A/AC.259/17 (2008), para. 20. 82 International Convention on Maritime Search and Rescue, 27 April 1979, UNTS 405, 97 (SAR Convention). 83

Annex Chapter 1 para. 1.3.13 SAR Convention.

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must really be on the point of sinking.84 However, the ILC stated that – although a situation of distress may at most include a situation of serious danger – it is not necessarily one that jeopardises the life of the persons concerned.85 In contrast, for other States it is sufficient for the vessel to be unseaworthy.86 Some authors even suggest that unseaworthiness per se entails distress.87

3. Extraterritorial Application A point of discussion, and probably the most debated one, is the question whether the non-refoulement principle is applicable extraterritorially during interdictions on the high seas. According to an advisory opinion of the UNHCR, the principle is definitely applicable extraterritorially, based upon the ordinary meaning of the text, the context and the humanitarian object and purpose of the Refugee Convention as well as subsequent State practice and relevant rules of international law.88 First, the extraterritorial scope is said to be clear from the ordinary meaning of the text of the provision itself as the obligation set out in Article 33 (1) Refugee Convention is subject to a geographic restriction only with regard to the country a refugee may not be sent to. Furthermore, the terms ‘return’ and ‘refouler’ do not support an interpretation which would restrict its scope to conduct within the territory of the State concerned, nor is there any indication that these terms were understood by the drafters of the Refugee Convention to be limited in this way.89 As Helton stated: “The right of non-refoulement becomes a hollow promise if nations can circumvent it by stopping 84 European Commission Proposal for a Council Decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders, 27 November 2007, COM (2009) 658 final, Explanatory Memorandum, para. 2. 85 ILC, Yearbook of the International Law Commission, 1979, vol. II (2), 135, para. 10. Although this definition was given during the discussions on the concept of ‘distress’ as one of the grounds for excluding wrongfulness with regard to the Draft Articles on State Responsibility, the definition is often being used to describe the situation of distress of persons at sea. See e.g. Barnes (note 46), 60. 86

COM (2009) 658 final, Explanatory Memorandum (note 84), para. 2.

87

Violeta Moreno-Lax, Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea, IJRL 23 (2011), 174, 195. 88

UNHCR, Advisory Opinion (note 61).

89

Ibid., paras. 26–27.

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the refugees before arrival.”90 Second, subsequent State practice is for example expressed through ExCom Conclusions which attest to the overriding importance of the principle of non-refoulement irrespective of whether the refugee is in the national territory of the State concerned.91 Last, other international refugee and human rights instruments – treaties as well as non-binding texts – drawn up since 1951 do not place territorial restrictions on States’ non-refoulement obligations. These include for example the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa,92 the 1969 ACHR, the 1984 Cartagena Declaration on Refugees93 and the 1967 UN GA Declaration on Territorial Asylum. In addition to the advisory opinion of the UNHCR, the Inter-American Commission on Human Rights also asserted that Article 33 Refugee Convention has no geographical limitations.94 A restrictive reading of Article 33 Refugee Convention however suggests that nonrefoulement is limited to those who have already entered the territory of a receiving State. This reading is consistent with the text of the Convention, based on the drafters’ choice to use the key words ‘expel or return,’ as these words imply that only asylum-seekers within the territory of the receiving State cannot be subject to refoulement. Records from the Conference of Plenipotentiaries in 1951 indicate that several delegates had this conception of Article 33, including, for example, the Swiss,

90 Arthur C. Helton, The United States Government Program of Intercepting and Forcibly Returning Haitian Boat People to Haiti: Policy Implications and Prospects, New York Law School Journal of Human Rights 10 (1993), 325, 341. 91

ExCom, Conclusion No. 6 (XXVIII) (note 57), para. (c); id., Refugees without an Asylum Country, Conclusion No. 15 (XXX), 16 October 1979, paras. (b) and (c); id., Protection of AsylumSeekers in Situations of Large-Scale Influx, Conclusion No. 22 (XXXII), 21 October 1981, para. II.A.2; id., Stowaway Asylum-Seekers, Conclusion No. 53 (XXXIX), 10 October 1988, para. 1, all available at: http://www.unhcr.org/41b041534.html (accessed on 29 September 2013). 92 Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, UNTS 1001, 45. 93 Cartagena Declaration on Refugees, 22 November 1984, OAS Doc. OEA/Ser.L/V/II.66/doc.10, rev. 1 (1984–1985), 190–193. 94

Inter-American Commission on Human Rights, The Haitian Centre for Human Rights et al. v. United States, Decision of 13 March 1997, Case 10.675, Report No. 51/96, para. 157.

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French and Dutch delegations.95 Furthermore, with regard to expulsion, Article 32 specifically addresses refugees in the territory of a receiving State.96 The British Court of Appeals upheld the restrictive approach in a 2003 case reasoning that no permissible construction of Article 33 confers a right on refugees to access the territory of another country. The Court concluded that States are entitled to take active steps to prevent their arrival.97 In the case of Sale v. Haitian Ctr. Council, the US Supreme Court ruled that the correct textual interpretation of Article 33 did not prohibit the US Coast Guard from intercepting Haitian refugees before they reached the border.98 Although in doctrine this case is criticised, no State party to the Refugee Convention, nor the UNHCR, issued an official complaint regarding the US Supreme Court’s interpretation of Article 33.99

B. Human Rights Context

1. Concept The non-refoulement principle is also included, explicitly or implicitly, in several human rights treaties. Along with the express prohibition of refoulement in Article 3 Convention Against Torture (CAT),100 the principle has been construed as being implicitly present in the pertinent prohibition of torture or cruel, inhuman or degrad95 UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the 16th Meeting, 23 November 1951, UN Doc. A/CONF.2/SR.16 (1951); id. Summary Record of the 35th Meeting, 3 December 1951, UN Doc. A/CONF.2/SR.35 (1951). 96 Ellen F. D’Angelo, Non-Refoulement: The Search for a Consistent Interpretation of Article 33, Vanderbilt Journal of Transnational Law (VJTL) 42 (2009), 279, 284–286. 97

England and Wales Court of Appeal, European Roma Rights Ctr. and others v. Immigration Officer at Prague Airport, EWCA Civ. 666 (2003), paras. 37–43. 98 US Supreme Court, Sale v. Haitian Ctr. Council, Inc., 509 U.S. 158 (1993). See also High Court of Australia, Minister for Immigration and Multicultural Affairs v. Hali Ibrahim, Judgment of 26 October 2000, [2000] HCA 55, para. 136; id., Minister for Immigration and Multicultural Affairs v. Khawar, Judgment of 11 April 2002, [2000] HCA 14, para. 42. 99 Inter-American Commission on Human Rights, The Haitian Centre for Human Rights et al. v. United States (note 94). 100

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, UNTS 1465, 85 (CAT).

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ing treatment enshrined in various human right treaties, such as Article 7 ICCPR, Article 3 ECHR and Article 22 (8) ACHPR. The protection enjoyed against non-refoulement in the human rights context is considered to be much broader than the one in Article 33 of the Refugee Convention, both ratione personae and ratione materiae. In contrast to the principle in the refugee context, non-refoulement in the human rights context is not predicated on any given status of the individuals at risk. Therefore, it applies to all persons – not only asylum-seekers – compelled to remain in or return to a territory where substantial grounds can be shown for believing that they would face a real risk of being subjected to torture or cruel, inhuman, or degrading treatment. Moreover, while the Refugee Convention prescribes exceptions to non-refoulement in Articles 32 and 33 (2), the principle of non-refoulement in the human rights context is absolute and nonderogable, preventing extradition, expulsion, or removal in any manner whatsoever.

2. Extraterritorial Application The HRC has stated that States are required by Article 2 (1) ICCPR to respect and to ensure the Covenant rights to all persons who may be within their territory as well as to all persons subject to their jurisdiction.101 A State party must thus respect and ensure the rights laid down in the ICCPR to anyone within the power or effective control of that State Party, even if not situated within the territory of the State party. Consequently, States can be held accountable for violations of rights under the ICCPR which its agents commit on the territory of another State, whether with the acquiescence of the government of that State or in opposition to it.102 In certain circumstances, persons may fall under the jurisdiction of a State party to the ICCPR, even when

101 HRC, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the ICCPR, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 10. 102 See for example id., Lopez Burgos v. Uruguay, Communication No. 52/79, 29 July 1981, UN Doc. CCPR/C/13/D/52/1979 (1981), para. 12.3; id., Celiberti de Casariego v. Uruguay, Communication No. 56/79, 29 July 1981, UN Doc. CCPR/C/13/D/56/1979 (1981), para. 10.3; id., Pereira Montero v. Uruguay, Communication No. 106/81, 31 March 1983, UN Doc. CCPR/C/18/D/ 106/1981 (1983), para. 5.

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outside that State’s territory.103 The International Court of Justice (ICJ) has also confirmed that the ICCPR is applicable with regard to acts performed by a State in the exercise of its jurisdiction outside its own territory.104 The Court observed that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. In the latter case, considering the object and purpose of the ICCPR, State parties to the ICCPR should therefore be bound to comply with its provisions.105 Similarly, the Committee against Torture has affirmed that the nonrefoulement obligation contained in Article 3 CAT applies in any territory under a State party’s jurisdiction, including all areas under the de facto effective control of the State party by whichever military or civil authorities such control is exercised. The provision applies to, and is fully enjoyed, by all persons under the effective control of its authorities, of whichever type, wherever located in the world.106 The Marine I Case was the first case involving a European State in which an international human rights body, the Committee against Torture, offered some guidance on determining responsibility for safeguarding the human rights of migrants who are rescued at sea. Although the Committee against Torture declared the case inadmissible, it noted that Spain exercised constant de facto control over the migrants from the time of their rescue and throughout their detention in Mauritania. Consequently, the alleged victims were subject to Spanish jurisdiction and Spain incurred responsibility for their protection under the CAT.107 103

See for example id., Concluding Observations of the Human Rights Committee: United States of America, 3 October 1995, UN Doc. CCPR/C/79/Add.50 (1995), para. 284; id., Concluding Observations of the Human Rights Committee: Israel, 18 August 1998, UN Doc. CCPR/C/79/Add.93 (1998), para. 10; id., Concluding Observations of the Human Rights Committee: Israel, 21 August 2003, UN Doc. CCPR/CO/78/ISR (2003), para. 11; id., Concluding Observations of the Human Rights Committee: United States of America, 18 December 2006, UN Doc. CCPR/C/USA/CO/ 3/Rev.1 (2006), para. 10. 104 International Court of Justice (ICJ), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 111; id., Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports 2005, 168, para. 216. 105

Id., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (note 104), para. 109. 106 Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture: United States of America, 25 July 2006, UN Doc. CAT/C/USA/CO/2 (2006), paras. 15 and 20. 107

Id., Marine I Case (J.H.A. (P.K. and Others) v. Spain), Decision of 11 November 2008, Communication No. 323/2007, UN Doc. CAT/C/41/D/323/2007 (2008), para. 8.2. For an extensive discussion of this case see Kees Wouters/Maarten Den Heijer, The Marine I Case: A Comment, IJRL 22 (2010), 1.

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Klug and Howe argue that de jure jurisdiction over vessels on the high seas ipso facto provides evidence for a sufficient level of de facto control to trigger the application of human rights law. In any case, physical control over intercepted persons would trigger State jurisdiction. But even where the level of de facto control is limited, it is likely that human rights bodies would consider that the intercepting State has established jurisdiction.108 The Committee against Torture interpreted the term jurisdiction – as the crucial condition for enlivening a State’s extraterritorial human rights obligations – based on the tenet that ‘factivity creates normativity.’109 Therefore, a State’s human rights obligations are triggered whenever there is de facto control, even when there is no de jure jurisdiction. In the Marine I Case, it would therefore not have mattered whether the factual exercise of control was duly grounded in the diplomatic agreement concluded with Mauritania, which allowed for the temporary presence on Mauritanian territory of Spanish security forces. While such an agreement is important in determining whether Spain had the authority to act outside its own territory – and possibly also for the determination of the ‘lawfulness’ of certain infringements of human rights – it is not as such relevant in establishing whether Spain’s human rights obligations were engaged. As a result, as soon as, and for as long as, the passengers were under the actual de facto control of Spain, Spain was responsible for their human rights protection.110 At the regional level, the extraterritorial applicability of human rights treaties is established as well. The question of extraterritorial applicability of the non-refoulement principle – as implicitly present in Article 3 ECHR – on the high seas was decided by the ECtHR on 23 February 2012 in the case Hirsi Jamaa and Others v. Italy.111 The applicants – eleven Somali and thirteen Eritrean nationals – relied on Article 3 ECHR to argue that the decision of the Italian authorities to intercept the vessels on the high seas, and send the applicants directly back to Libya, exposed them to the risk of ill108

Klug/Howe (note 48), 95.

109

Martin Scheinin, Extraterritorial Effect of the International Covenant on Civil and Political Rights, in: Fons Coomans/Menno T. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (2004), 73. 110 111

Wouters/Den Heijer (note 107), 10–11.

ECtHR, Hirsi Jamaa and Others v. Italy, Judgment of 23 February 2012, Appl. No. 27765/09, available via: http://hudoc.echr.coe.int (accessed on 29 September 2013). See also UNHCR, UNHCR’s oral intervention at the European Court of Human Rights Hearing of the case Hirsi and Others v. Italy (Application No. 27765/09), 22 June 2011, available at: http://www.unhcr.org/refworld/pdfid/ 4e0356d42.pdf (accessed on 28 September 2013).

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treatment there, as well as to a serious threat of being sent back to their countries of origin, where they might also face ill-treatment. The applicants were part of a group of about 200 individuals who left Libya aboard three vessels with the aim of reaching the Italian coast. However, after they were noticed by ships of the Italian coast guard, the persons on board were transferred onto Italian military ships and returned to Tripoli. This return was carried out based on a bilateral agreement between Italy and Libya.112 Although the ECtHR affirmed that only in exceptional cases could acts of State parties performed, or producing effects, outside their territories constitute an exercise of jurisdiction by them, it held that in this case there had been a violation of Article 3 ECHR because the applicants had been exposed to: (1) the risk of ill-treatment in Libya; and (2) of repatriation to Somalia or Eritrea. The Court found that the applicants had fallen within the jurisdiction of Italy in the period between boarding the Italian ships on the high seas and being handed over to the Libyan authorities and that during this period the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. Finally, the Court stated that the transfer of the applicants to Libya had been carried out without any examination of each individual situation and thus constituted a form of collective expulsion, in breach of Article 4 Protocol No. 4 ECHR.113 It can be concluded that the non-refoulement principle in Article 3 ECHR applies extraterritorially when there is a continuous and effective control over the persons concerned. It must, however, be noted that in the case of Hirsi Jamaa and Others v. Italy the migrants were brought onto an Italian military ship and physically handed over to the Libyan authorities. Therefore, whether this effective control is also present when a vessel’s course is diverted is not clear.

3. Effective Control and Legal Fictions Positively establishing extraterritorial jurisdiction has been motivated by a desire to avoid double standards or – as was stated by the ECtHR in the 2001 Cyprus v. Turkey Case – a regrettable vacuum in human rights protection.114 This case related 112

ECtHR, Hirsi Jamaa and Others v. Italy (note 111), paras. 9–11.

113

Ibid., paras. 70 et seq.

114

Id., Cyprus v. Turkey, Judgment of 10 May 2001, Appl. No. 25781/94, available via: http:// hudoc.echr.coe.int (accessed on 29 September 2013), paras. 78 and 91.

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to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. Cyprus, on the one hand, contended that – despite the proclamation of the Turkish Republic of Northern Cyprus (TRNC) in November 1983 – the TRNC was an illegal entity under international law. Therefore Turkey was the State accountable for a broad range of ECHR violations there. Turkey, on the other hand, argued that the TRNC was politically independent from Turkey. Consequently, Turkey could not be held responsible for its acts. However, the ECtHR stressed that Turkey’s responsibility under the ECHR could not be confined to the acts of its own soldiers and officials operating in northern Cyprus, but was also engaged by the acts of the local administration (the TRNC), which survived by virtue of Turkish military and other support. As a result, Turkey had jurisdiction under the ECHR. A number of States have claimed that certain international areas or transit zones in ports or airports do not legally form part of their national territory. For example, in the case of Amuur v. France, France held before the ECtHR that the international zone at Paris-Orly airport was different from French territory.115 Within this international zone, no interpreters, legal assistance or private assistance was allowed to asylum-seekers. The legal status of the international zone was considered as different from that of French territory. As a result, the French Office for the Protection of Refugees and Stateless Persons (OFPRA) was not legally obliged to examine the request as they would have been if the request had been made by someone already on French territory. Therefore, OFPRA denied the applicants access to the asylum procedure on the grounds that it lacked jurisdiction. The ECtHR, however, confirmed that despite its name, the international zone did not have extraterritorial status and that the ECHR did apply in this case.116 Australia also has a somewhat original way of dealing with the problem of asylumseekers. This country created ‘territorial excision’ of more than 3,500 of its islands. The Australian 2001 Migration Amendment (Excision from Migration Zone) Act defines certain places as ‘excised offshore places.’ The effect of this excision legislation is that non-citizens who have first entered Australia at an excised offshore place 115 Id., Amuur v. France, Judgment of 25 June 1996, Appl. No. 19776/92, available via: http:// hudoc.echr.coe.int (accessed on 29 September 2013). See Juliane Kokott, Amuur v. France, American Journal of International Law 91 (1997), 147. 116

ECtHR, Amuur v. France (note 115), para. 52.

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without lawful authority – namely without a valid visa that is in effect – are barred from making valid visa applications on arrival or during their stay in Australia. These non-citizens may be detained and removed from Australia.117 Human Rights Watch (HRW) has criticised this practice of excluding parts of Australian territory from the Australian migration zone as asylum-seekers processed in excised places such as Christmas Island do not enjoy the same legal rights as those processed on mainland Australia. According to HRW, all asylum-seekers under Australian jurisdiction should be able to file a claim for asylum and have full access to legal assistance, an independent appeal process, work permits and community support.118 However, Australia claims to meet its international obligations through the protection assessment process which includes a primary assessment of protection obligations under the Refugee Convention and complementary protection obligations.119 I conclude that situations of extraterritoriality do not arise despite legal fictions in national legislation. A State must be assumed to exercise jurisdiction within its entire territory, unless this assumption can specifically be rebutted. However, it must be borne in mind that the applicability of refugee law or human rights law does not preclude States from installing special border procedures under national law, as long as they are consistent with international obligations.120

C. Customary International Law

The prevailing view in international law is that the principle of non-refoulement has acquired the status of customary international law. Article 38 (1)(b) Statute of the 117 Migration Amendment (Excision from Migration Zone) Act 2001, Act No. 127 (2001), available at: http://www.comlaw.gov.au/Details/C2004A00887 (accessed on 28 September 2013). 118 Human Rights Watch, Letter to Australian Prime Minister Kevin Rudd, Letter by Kenneth Roth, 18 December 2007, available at: http://www.hrw.org/news/2007/12/16/letter-australian-prime-ministerkevin-rudd (accessed on 28 September 2013). 119 Australian Government, Department of Immigration and Citizenship, Fact Sheet 61: Seeking Protection Within Australia, available at: http://www.immi.gov.au/media/fact-sheets/61protection.htm (accessed on 8 October 2013). For a discussion on this topic, see Violeta Moreno-Lax, The Legality of the ‘Safe Third Country’ Notion Revisited: An Appraisal in Light of General International Rules on the Law of Treaties, in: Guy S. Goodwin-Gill (ed.), 2010 Study Session, The Hague Academy of International Law (2012), 33. 120

Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2011), 119.

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International Court of Justice (ICJ Statute) defines international custom as evidence of a general practice accepted as law.121 For a rule to become part of customary international law, two elements are required: (1) consistent State practice and (2) opinio juris. The latter means the understanding held by States that the practice is obligatory due to the existence of a rule requiring it.122 The evolution of customary international law rules is important with regard to States that are not parties to the 1951 Refugee Convention and the 1967 Protocol.123 Also, some State parties have not implemented the non-refoulement principle into domestic legislation. Domestic courts might be able to treat customary international law as part of national law. For example, in 2008 the customary legal argument found favour before Justice Hartmann of the Hong Kong Court of First Instance.124 The applicants argued that non-refoulement was allowed,125 this was refused by the Court since it determined that it must be recognised that the principle of non-refoulement – as it applies to refugees – has grown beyond the confines of the Refugee Convention and has matured into a universal norm of customary international law.126 Next to the near-universal acceptance of a non-refoulement duty in various international and regional treaties as well as in the 1967 UN GA Declaration on Territorial Asylum, there is an absence of express opposition to the principle by the States which neither signed a relevant treaty nor were present in the UN GA when the 1967 Declaration was adopted.127 Nevertheless, a minority of authors does contest the customary international law character of non-refoulement. The most prominent opposing argument concerns the 121

Statute of the International Court of Justice, 26 June 1945, UNTS 33, 993 (ICJ Statute).

122

ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 74; id., Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 77. 123

There are some 50 States that are currently not a party to either the 1951 Refugee Convention or the 1967 Protocol. 124 Hongkong Court of First Instance, C. v. Director of Immigration, [2008] HKEC 281 (C.F.I.), HCAL No. 132/2006. For a detailed description of this case, see Oliver Jones, Customary NonRefoulement of Refugees and Automatic Incorporation into the Common Law: A Hong Kong Perspective, ICLQ 58 (2009), 443, 447–468. 125

Hongkong Court of First Instance, C. v. Director of Immigration (note 124), 36.

126

Ibid., 27–34.

127

Bethlehem/Lauterpacht (note 40), 143–149.

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lack of general practice in certain regions. Feliciano, Hyndman and Kälin all expressed degrees of cautious reservation with respect to the scope of any customary international law rule in 1982.128 Yet, taking into account numerous ratifications of the Refugee Convention since 1982, party-membership is now widespread. However, more recently, it has been pointed out that the Arabic and Asian regions – which are specially affected – still show no significant increase in Convention ratifications.129 Hathaway adds that – as compliance is not in fact advanced by the assertion of words alone as customary international law130 – there is no necessity to claim that nonrefoulement is customary international law.131 In contrast, if the scope of extant legal obligation were exaggerated, we would implicitly jettison accrued gains and descend into the realm of pure policy. As the latter is a space in which refugee rights are far too often deemed dispensable in the pursuit of narrow definitions of State self-interest, we must avoid this.132 However, this opinion cannot be shared. It is true that questions remained as to the customary nature of the norm of non-refoulement during the Cold War era. However, after the Soviet era the norm quickly attained a customary nature as no State – whether party to the Refugee Convention or not – will claim it has a general right to commit refoulement.133 Also, violations of non-refoulement may in fact even strengthen the norm. The ICJ stressed that if a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or 128

Florentino P. Feliciano, The Principle of Non-Refoulement: A Note on International Legal Protection of Refugees and Displaced Persons, Philippine Law Journal (PLJ) 57 (1982), 598, 608–609; Patricia Hyndman, Asylum and Non-Refoulement: Are These Obligations Owed to Refugees under International Law?, PLJ 57 (1982), 43, 68–69; Walter Kälin, Das Prinzip des non-refoulement: Das Verbot der Zurückweisung, Ausweisung und Auslieferung von Flüchtlingen in den Verfolgerstaat im Völkerrecht und im schweizerischen Landesrecht (1982), 65. 129

Nils Coleman, Non-Refoulement Revised: Renewed Review of the Status of the Principle of NonRefoulement as Customary International Law, European Journal of Migration and Law 5 (2003), 23, 48; James C. Hathaway, Leveraging Asylum, Texas International Law Journal 45 (2010), 503, 513. 130 Patrick J. Kelly, The Twilight of Customary International Law, Virginia Journal of International Law 40 (2000), 449, 540–541. 131

Hathaway (note 129), 527.

132

Ibid., 536.

133

Gunnel Stenberg, Non-Expulsion and Non-Refoulement: The Prohibition Against Removal of Refugees with Special References to Articles 32 and 33 of the 1951 Convention Relating to the Status of Refugees (1989), 279; Goodwin-Gill (note 32), 168–169 and 288.

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justifications contained within the rule itself, then – whether or not the State’s conduct is in fact justifiable on that basis – the significance of that attitude is to confirm rather than to weaken the rule.134 Although serious breaches of the principle have been signalled, none have been deemed of sufficient weight to question the customary nature of the norm. Moreover, according to a number of authors, if States do act contrary to the principle, they do so with a certain attempt at justification, which indicates that they feel they are infringing upon a legal rule.135 At present, it is thus clear that the norm prohibiting refoulement is part of customary international law and therefore binding on all States whether or not they are party to the Refugee Convention. Still, it remains uncertain whether that norm has achieved the status of jus cogens. Claims have been made that the principle of non-refoulement is not only customary international law but has even attained the status of a norm of jus cogens. Doctrine confirming this is primarily based on ExCom Conclusions.136 In Conclusion No. 25 of 1982, ExCom observed that the principle of non-refoulement was progressively acquiring the character of a peremptory rule of international law.137 By the late 1980s, ExCom concluded that all States are bound to refrain from refoulement on the basis that such acts are contrary to fundamental prohibitions against these practices.138 In 1996, ExCom concluded that non-refoulement determined that the principle of nonrefoulement is not subject to derogation.139 Although it would undoubtedly be of beneficial effect to the overall international protection of refugees, the existence of a

134

ICJ, Nicaragua Case (note 122), para. 186.

135

Stenberg (note 133), 279; Goodwin-Gill (note 32), 168–169.

136

Harold Hongju Koh, The Haitian Centers Council Case: Reflections on Refoulement and Haitian Centers Council, Harvard International Law Journal 35 (1994), 30; Jean Allain, The Jus Cogens Nature of Non-Refoulement, IJRL 13 (2001), 533. 137

ExCom, General Conclusion on International Protection, Conclusion No. 25 (XXXIII), 20 October 1982, para. (b), available at: http://www.unhcr.org/3ae68c434c.html (accessed on 28 September 2013). 138 Id., General Conclusion on International Protection, Conclusion No. 55 (XL), 13 October 1989, para. (d), available at: http://www.unhcr.org/refworld/pdfid/4b28bf1f2.pdf (accessed on 28 September 2013). 139 Id., General Conclusion on International Protection, Conclusion No. 79 (XLVII), 11 October 1996, para. (i), available at: http://www.unhcr.org/refworld/pdSfid/4b28bf1f2.pdf (accessed on 28 September 2013).

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peremptory norm of non-refoulement cannot be considered realistic.140 ExCom Conclusions are not sufficient by themselves to generate customary norms. There has to be evidence of additional State practice which is consistent with those Conclusions. As a result, the state of the art does not yet permit to affirm the peremptory nature of the principle of non-refoulement. The substantive content of the customary international law obligation is generally thought to more or less mirror the CAT and ICCPR non-refoulement obligations in relation to all persons and – with regard to refugees specifically – additionally to mirror the Refugee Convention obligation.141 But is the extraterritorial character of nonrefoulement also part of the customary obligation? Some authors state that the nonrefoulement obligation in customary international law is engaged upon an asylum-seeker coming within the effective control of an agent of that State, wherever in the world this occurs.142 Nevertheless, many States are not prepared to concede that this position is correct.143 For example, during the Caribbean Interdiction Program, the preliminary screening of Haitian asylum claims by the United States on the high seas was suspended by Executive Order 12807, also known as the Kennebunkport Order.144 Fleeing persecution and/or poverty, Haitian asylum-seekers began arriving in the United States by boat in 1963. Numbers started becoming significant in the 1970s and surged dramatically in 1980 and 1981. In response to this influx, President Ronald Reagan entered into an agreement with the Haitian government. The agreement authorised the United States to board Haitian vessels on the high seas and question the passengers.145 When a violation of either US or Haitian law occurred, the US could return the boat to Haiti. Nevertheless, anyone found to be a refugee would not be 140

Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (1988), 261–662; Coleman (note 129), 23, footnote 114; Trevisanut (note 44), 218. 141

Bethlehem/Lauterpacht (note 40), 163–164; Goodwin-Gill/McAdam (note 31), 345–354; Savitri Taylor, Offshore Barriers to Asylum Seeker Movement: The Exercise of Power without Responsibility?, in: Jane McAdam (ed.), Forced Migration, Human Rights and Security (2008), 93, 116. 142

Bethlehem/Lauterpacht (note 40), 149–160; Goodwin-Gill/McAdam (note 31), 244–253.

143

Taylor (note 141), 117.

144

US Executive Order 12807, Interdiction of Illegal Aliens, 24 May 1992, 57 FR 23133.

145

Exchange of Diplomatic Letters Between E. H. Preeg, US Ambassador to Haiti, and E. Francisque, Haiti’s Secretary of State for Foreign Affairs, 23 September 1981, TIAS No. 1024; US Presidential Proclamation 4865, High Seas Interdiction of Illegal Aliens, 29 September 1981, 46 FR 48107.

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returned to Haiti.146 However, as reception facilities were felt to be at full capacity, the government changed course in 1992.147 Executive Order 12807 asserted that the Refugee Convention non-refoulement principle did not apply outside US territory, stating The international legal obligations of the United States under the United Nations Protocol Relating to the Status of Refugees […] to apply Article 33 of the United Nations Convention Relating to the Status of Refugees do not extend to persons located outside the territory of the United States.148

However, the ICJ noted in the Nicaragua Case: The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.149

The aforementioned decisions of the Committee against Torture and the HRC already constituted this kind of evidence. Moreover, since the Hirsi Case there is also a court decision dealing with this issue. Therefore, this case plays a crucial role towards the possible future recognition of the extraterritorial application of the nonrefoulement principle as international customary law.

IV. Conclusion Interception measures have to respect the fact that everyone has the right to leave any country, including their own. In the case Xhavara and Others v. Italy and Albania, the ECtHR held that this right was not violated as the interception activities were not aimed at preventing the Albanians from leaving their country, but rather at

146

US Executive Order 12324, Interdiction of Illegal Aliens, 29 September 1981, 46 FR 48109.

147

For a recent discussion see Stephen H. Legomsky, The USA and the Carribean Interdiction Program, IJRL 18 (2006), 677. 148

US Executive Order 12807 (note 144), para. 2.

149

ICJ, Nicaragua Case (note 122), para. 186.

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preventing them from entering Italian territory.150 The right to leave must be read in conjunction with the right to seek and to enjoy asylum in Article 14 (1) UDHR. Although there is a right to seek asylum, there is no right of individuals vis-à-vis the State of refuge to be granted asylum. The non-refoulement principle in Article 33 (1) Refugee Convention states that: No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Non-refoulement is not limited to those formally recognised as refugees. Therefore, the prohibition on States is applicable to recognised refugees as well as for all asylumseekers. There appears to be little reason to doubt the applicability of non-refoulement in the territorial sea.151 The duty of non-refoulement not only encompasses non-return at the frontier but also non-rejection at the frontier, only when the latter poses an actual threat.152 The most debated point of discussion is the question whether the non-refoulement principle is applicable extraterritorially during interdictions on the high seas. Concerning non-refoulement obligations under international and European human rights law, the decisive criterion is not whether such persons are on the State’s territory, but rather whether they come within the effective control and authority of that State.153 As the principle of non-refoulement is considered to have the status of customary international law, the Hirsi Case plays a crucial role towards the possible future recognition of the extraterritorial application of the non-refoulement principle as customary international law.

150

ECtHR, Xhavara and Others (note 28).

151

Barnes (note 46), 69.

152

Hathaway (note 80), 301.

153

UNHCR, Advisory Opinion (note 61), para. 43.

Returning ‘Politically Exposed Persons’ Illicit Assets from Switzerland – International Law in the Force Field of Complexity and Conditionality DAGMAR RICHTER( AND PATRICK UHRMEISTER((

ABSTRACT: This article deals with the international law implications of illegally acquired assets being transferred to Switzerland by ‘Politically Exposed Persons.’ Involving a variety of issues in the context of grand corruption and subsequent money laundering, the problem has long transcended the domestic law sphere and has become an issue of major concern to the international community. Switzerland has not only acceded to all relevant international treaties and initiatives but has also adopted a new approach in its national law allowing for the return of assets. This article seeks to assess the relevant Swiss law, particularly the new 2010 Act on the Restitution of Illicit Assets, in the framework of international law standards on the freezing, confiscation and final returning of illicit assets in order to evaluate the effectiveness of regulation in a matter of global concern. It concludes, on the basis of the international law principle of repatriation that States Parties to the relevant treaties must account for not having repatriated illicit assets effectively within a reasonable period of time; and that more ‘success control’ is needed. KEYWORDS: Asset Recovery, Developing Countries, Conditionality, Illicit Assets, Mutual Legal Assistance in Criminal Matters, Dictators; Politically Exposed Persons, Restitution of Illicit Assets Act, Switzerland, United Nations Convention Against Corruption

( Professor of Law and Member of the Institute for Legal Studies of the Polish Academy of Sciences, Warsaw. ((

Assistant Researcher at the Institute of Criminal Law and Criminology at the University of Bern.

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I. Introduction A. The Prominence of Switzerland

The old issue of ‘dictators’ assets’1 has got a new name. Today the term ‘Politically Exposed Persons’ (PEPs) is used when categorising high-ranking public figures that have succeeded in diverting State property, mainly from a developing or transitional country, to their private accounts abroad. Switzerland as one of the most important financial places has attracted huge amounts of money from all over the world2 – and thus has become mainly confronted with the PEP problem. Its efforts and failures in tackling this problem are formative for the emergence of State practice as well as for the functioning of international law standards in the global world of finance.

B. PEPs – Politically Exposed Persons of the Special Kind

1. Discrepancies in Definition There is no universally accepted definition of PEPs in international law and practice.3 On the global level (except the European Union) there are two main standards on PEPs, one being presented by the Financial Action Task Force (FATF), the other one being part of the United Nations Convention against Corruption (UNCAC).4 The FATF defines PEPs as 1

See Dagmar Richter, ‘Potentatengelder’ in der Schweiz: Rechtshilfe im Spannungsfeld der Menschenrechte von Tätern und Opfern, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 58 (1998), 541; for a criminal law perspective, see Marnie Dannacher, Diktatorengelder in der Schweiz (2012). 2 Switzerland with its 27 % market share in cross-border private banking still is the major offshore banking centre. See Swiss Banking, The Economic Significance of the Swiss Financial Centre, July 2012, 5, available at: www.swissbanking.org/en/20120702-2400-factsheet_finanzplatz_schweiz-rva.pdf (accessed on 20 December 2013). 3 See e.g. Swiss Federal Council (Schweizerischer Bundesrat), Dispatch concerning the Federal Act on the Restitution of Assets of Politically Exposed Persons obtained by Unlawful Means, 28 April 2010, Systematische Rechtssammlung (SR) 10.039, Bundesblatt (BBl) 2010, 3309, 3331, unofficial English translation available at: www.eda.admin.ch/etc/medialib/downloads/edazen/topics/finec/intcr.Par. 0018.File.tmp/Message%20LRAI%20in%20English.pdf (accessed on 4 December 2013). 4 United Nations Convention against Corruption, 31 October 2003, UNTS 2349, 41 (UNCAC), which entered into force in Switzerland on 24 October 2009, SR 0.311.56, Amtliche Sammlung (AS) 2009, 5467. See infra, II.A.2.b) and II.B.

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individuals who are or have been entrusted with prominent public functions in a foreign country, namely Heads of State or government, members of government, senior politicians, high-ranking judicial or military officials, senior executives of State owned corporations or important functionaries of political parties.5

In contrast, Article 52 (1) UNCAC applies to all “individuals who are, or have been, entrusted with prominent public functions and their family members and close associates.”6 While both types of definition make clear that no corporation can qualify for a PEP status, they vary remarkably with respect to the inclusion of family members, responsible close associates, the positions qualifying for being ‘exposed’ and the inclusion of domestic PEPs. These discrepancies can partly be explained by the different purposes of the two systems. FATF, by focusing on foreign PEPs, accentuates the exploitation of weak governance structures of transitional or developing countries. In contrast, the UNCAC follows to a greater extent an economic and corruption-orientated approach by not differentiating between foreign and domestic PEPs. Further discrepancies relate to the inclusion of former PEPs into the definition.7

2. Modes of Kleptocracy, Supposed Figures and the Dimensions of Damage The means usually employed by PEPs to plunder the public purse range from the simple theft of central bank funds8 to more sophisticated forms of looting, such as, the manipulation of licensing or privatisation procedures, the imposition of personal 5 See Financial Action Task Force (FATF), Methodology for Assessing Compliance with the FATF 40 Recommendations and the FATF 9 Special Recommendations, February 2009, Annex 1, 69, available at: www.fatf-gafi.org/media/fatf/documents/reports/methodology.pdf (accessed on 20 December 2013). Similarly, see Bank for International Settlements/Basel Committee on Banking Supervision, Customer Due Diligence for Banks, October 2001, para. 41, available at: www.bis.org/publ/ bcbs85.pdf (accessed on 27 February 2014). 6 Similarly, see Wolfsberg Group, Wolfsberg Anti-Money Laundering (AML) Principles on Private Banking (2012), para. 2.3, available at: www.wolfsberg-principles.com/pdf/standards/WolfsbergPrivate-Banking-Prinicples-May-2012.pdf (accessed on 20 December 2013). 7 8

See infra, III.C.1.

With regard to the Abacha regime in Nigeria, see Tim Daniel/James Maton, Recovering the Proceeds of Corruption: General Sani Abacha – a Nation’s Thief, in: Mark Pieth (ed.), Recovering Stolen Assets (2008), 63 et seq; Mark Pieth, Recovering Stolen Assets – A New Issue, in: Pieth, op. cit.,3.

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taxes,9 or the skimming off sales from natural resources.10 Some estimates point to an annual amount between US$ 20 to 40 billion of rogue monies received by public officials, which is equivalent to 20 to 40 % of world wide official development assistance.11 Considering the additional damage in forgone growth and poverty alleviation, the true costs of such enrichment regularly exceed the value of stolen assets by far. Whereas the governments of the receiving States were not eager to stop the cash flow into their economies in earlier times, the international community has now acknowledged that widespread corruption and nepotism impairs free trade and international competition, abets organised crime and misdirects development aid. Corruption in particular has been identified as a major threat to the stability and security of societies, undermining the institutions and values of democracy, the rule of law and jeopardising sustainable development.12 It is “no longer a local matter but a transnational phenomenon that affects all societies and economies, making international cooperation to prevent and control it essential.”13 Accordingly, a “principle of shared responsibility”14 has become the motor for the international community to produce an ever-increasing number of common standards for the prevention, detection and punishment, for the freezing and final recovery of illicit assets as well as a novel approach to mutual legal assistance.15

9 10

For the Marcos Case, see ibid., 4. With regard to Angola and the Republic of Congo, see ibid., 3 et seq.

11

See World Bank, Stolen Asset Recovery Initiative (StAR), Stolen Assets & Development, available at: www1.worldbank.org/finance/star_site/stolen-assets.html (accessed on 20 December 2013). According to the World Bank more than US$ 1 trillion are being paid each year in bribes worldwide, see World Bank, Six Questions on the Cost of Corruption with World Bank Institute Global Governance Director Daniel Kaufmann, available at: http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/ 0,,contentMDK:20190295~menuPK:34457~pagePK:34370~piPK:34424~theSitePK:4607,00.html (accessed on 20 December 2013). See also Swiss Federal Department of Foreign Affairs (FDFA), Illicit Assets of Politically Exposed Persons (PEPs) (2013), available at: www.eda.admin.ch/eda/en/home/ topics/finec/poexp.html (accessed on 20 December 2013). 12

See UNCAC, Preamble, para. 9. See infra, II.A.2.b).

13

Ibid., Preamble, para. 4.

14

Daniel Claman, The Promise and Limitations of Asset Recovery under the UNCAC, in: Pieth (ed.) (note 8), 333, 335 et seq. 15

See infra, II.A.

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C. The Case of Switzerland: Proclaimed Policy and Open Questions

The seizures of financial assets following the Arab rebellion in Northern Africa have demonstrated once more that important financial centres continue to play a major role in assisting corrupt leaders to invest their gains.16 On numerous occasions intermediary services in developed countries such as Switzerland have even actively assisted in laundering or hiding such assets. Being one of the ‘target countries’ for the deposit of criminal proceeds, Switzerland in recent years has shown a fundamental interest in protecting its reputation.17 Even before international treaty obligations were brought about, national legislation was enacted in order to aid foreign countries in recovering illicitly diverted assets to their rightful owners, and prevent the concealment of ill-gotten wealth.18 Switzerland also started and monitored international initiatives in order to regulate the transnational money trails.19 Officially, Swiss authorities adhere to a policy according to which “international financial centres must form a common front to prevent the inflow of such funds, to quickly freeze assets of criminal origin and return them to the rightful owners.”20 In practice, however, huge accumulations of assets continue to appear in Switzerland whenever a dictatorial regime collapses. In the wake of the ‘Arab Spring’ the Swiss Foreign Minister announced that approximately CHF 830 million belonging to former political leaders and their entourage had been seized.21 It is true that the 16

See e.g. Deborah Ball/Cassell Bryan-Low, ‘Arab Spring Regimes Face Long Slog to Recoup Assets,’ Wall Street Journal (New York, 25 August 2011), A.1; Simon Gemperli, Viel Aufmerksamkeit für die Schweizer Potentaten-Politik, Neue Zürcher Zeitung (NZZ) Online, 10 May 2011, available at: www.nzz.ch/aktuell/schweiz/viel-aufmerksamkeit-fuer-die-schweizer-potentaten-politik-1.10527222 (accessed on 20 December 2013). 17

See Micheline Calmy-Rey, Switzerland is not a Safe Haven for Stolen Funds, The Telegraph, 15 March 2011, available at: www.telegraph.co.uk/news/worldnews/europe/switzerland/8383275/ Switzerland-is-not-a-safe-haven-for-stolen-funds.html (accessed on 20 December 2013). 18

See Paul Gully-Hart, International Asset Recovery of Corruption-related Assets: Switzerland, in: Pieth (ed.) (note 8), 165. 19

Cf. Stephan Stadler, Neue Entwicklungen in der Bekämpfung der Geldwäscherei, Der Schweizer Treuhänder 6-7/11 (2011), 463, 469. 20 21

See FDFA (note 11).

See News.ch, 830 Mio. Fr. an Potentatengeldern gesperrt, 2 May 2011, available at: www.news. ch/830+Mio+Fr+an+Potentatengeldern+gesperrt/490125/detail.htm (accessed on 20 December 2013), with data from the conference of Swiss ambassadors in Tunis; Daniel Foppa, ‘In der Schweiz lagern noch weit mehr Gelder von arabischen Ex-Potentanten,’ Tages-Anzeiger (Zürich, 27 July 2012), 5.

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Swiss authorities have confiscated and returned greater amounts than most countries, but it is also true that its financial institutions had attracted them.

II. Returning Assets in International Law Whether and under what conditions illicit assets are to be returned to the countries of origin has become a matter of international law. Since the 1990s, regional and universal efforts have led to the conclusion of international treaties, mainly in the field of Anti-Corruption Law, to elaborated forms of international co-operation and even to enforcement measures of the United Nations (UN) Security Council. This section will highlight the diverseness of approaches, the malfunctions and lacunae of the various instruments, but also the emergence of a new international law principle on Asset Recovery.

A. International Anti-Corruption Treaty Law

1. The Criminal Law Revolution: A New Transnational Approach to Combating Corruption The development of international anti-corruption law was very much inspired by pertinent United States (US) law. It was a breakthrough when for the first time in legal history bribery committed by foreign officials was declared a criminal offence, thereby indicating the rising of a common world interest in combating corruption. The US Foreign Corrupt Practices Act of 197722 has inspired a series of analogous international provisions ever since and become a ‘natural point of reference,’ firstly for the Inter-American Convention against Corruption of 29 March 1996 (IACAC).23 One of the most spectacular tools in this Convention is the offence of illicit enrichment under Article IX IACAC which criminalises a significant increase 22 23

Foreign Corrupt Practices Act, 15 U.S.C. §§ 78m, 78dd-1, 78dd-2 (1994) 78 et seq.

Inter-American Convention against Corruption, 29 March 1996, reprinted in: ILM 35, 724 (IACAC). See also Lucinda A. Low/Andrea K. Bjorklund/Kathryn C. Atkinson, The Inter-American Convention against Corruption: A Comparison with the United States Foreign Corrupt Practices Act, Virginia Journal of International Law 38 (1998), 242, 245, 246.

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in the assets of a government official that cannot be explained reasonably in relation to his or her lawful earnings. In the course of time international rules and recommendations on corruption, money-laundering and illicit enrichment augmented, as a start on the regional (European, Inter-American) and later on the universal level.24 Accordingly, the instrument case continuously increased from covering traditional tools like the obligation of States to criminalise certain acts and render legal assistance to the full range of preventive, detecting, securing and restituting measures.25 What can be seen now is a fullfledged double strategy, which in the first stage seeks to harmonise national law in order to gradually expand and facilitate mutual legal assistance, and in the second stage tackles the problems in co-operation.26 Particularly in the field of corruption and money-laundering (and so relating to PEPs), international law-making contributes to the decline of national sovereignty and, at the same time, increasingly involves private actors such as associations of the banking sector.27 This development can be considered a ‘hybridization’28 or rather a normalisation of international law which, like State law, increasingly resorts to the technical standards of professional branches (e.g. due diligence standards in the banking sector) in order to fine-tune regulation. Today, international treaties and conventions like the Organisation for Economic Co-operation and Development (OECD), Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,29 the Council of Europe (CoE) Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime of 1990,30 or the CoE Criminal Law Convention on Corruption 24 For regional instruments such as the IACAC, see supra, note 23 and infra, notes 29–32. On the Organisation for Economic Co-operation and Development (OECD) Convention, Council of Europe (CoE) conventions and other international instruments, see infra, II.A.2. 25

See infra, II.A.2.; II.B.

26

Ibid.

27

See infra, II.B.

28

See Poul F. Kjær/Paulius Jurčys/Ren Yatsunami (eds.), Regulatory Hybridization in the Transnational Sphere (2013). 29

OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, ILM 37, 1 (entered into force in Switzerland on 30 July 2000, AS 2003, 4243, SR 0.311.21). 30 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime, 8 November 1990, CETS No. 141 (entered into force in Switzerland on 1 September 1993, SR 0.311.53, AS 1993, 2386).

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of 1999,31 relate to corruption and money laundering. However, this article will only analyse instruments that are of particular relevance to asset recovery.

2. The Emergence of the Principle of Asset Recovery a) The UN Convention against Transnational Organized Crime (1) Introduction The UN Convention on Transnational Organized Crime (UNTOC) of 200032 is the first international treaty relating to the phenomenon of corruption and money laundering on a global level. Switzerland has been a party since the end of 2006. However, UNTOC’s scope is limited, because it only covers criminal offences committed by an organised criminal group (Article 3 (1) UNTOC).33 Only where the dictator established a criminal organisation – as the Swiss Federal Court held with respect to the Abacha Family34 – will UNTOC apply. UNTOC enshrines provisions on the criminalisation of corruption with regard to public officials (Article 8), the laundering of the proceeds of crime (Article 6), the identification, seizure and confiscation of criminal proceeds (Article 12), as well as on mutual legal assistance (Article 13). However, Article 12 establishes preconditions like the duty to respect the rights of bona fide third parties (Article 12 (8)), or refers to the domestic law of the State Parties (Article 12 (9)). Article 13 strengthens mutual legal assistance by imposing upon each State Party an obligation to act “to the greatest extent possible” – but only “within its domestic legal system” (Article 13 (1)). 31 Criminal Law Convention on Corruption, 27 January 1999, CETS No. 173 (Criminal Law Convention) (entered into force in Switzerland on 1 July 2006, SR 0.311.55, AS 2006, 2375). 32 UN Convention on Transnational Organized Crime, 15 November 2000, UN Doc. A/55/383, adopted by GA Res. 55/25 of 15 November 2000 (UNTOC) (entered into force in Switzerland on 26 November 2006, SR 0.311.53, AS 2006, 5861). 33 According to Art. 2 (a) UNTOC an “‘organized criminal group’ shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit”. 34

See infra, III.B.2.

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With restrictions like these, core provisions of UNTOC may easily be undermined – if the Convention applies at all.

(2) Return of the Proceeds of Organized Crime under UNTOC If the preconditions are fulfilled, Article 14 UNTOC provides for the return of the proceeds of crime to the requesting State, with the view that the latter should be enabled to compensate the victims and restitute the proceeds of crime to the legitimate owners. However, the return is not mandatory, as Article 14 (2) only speaks of giving “priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party.” The return can also be attained by the conclusion of agreements (Article 14 (3)). Such agreements are common practice and suggested by the United Nations Economic and Social Council Resolution 2005/1435 in cases of joint investigations like the case of Arana de Nasser.36

b) The UN Convention against Corruption (1) Introduction Only three years after UNTOC, in 2003, the UN adopted a more comprehensive instrument against corruption – the UN Convention against Corruption.37 Switzerland acceded to it in 2009.38 The main objective of this convention is to oblige the States Parties to criminalise a wide range of corruptive practices, protect the integrity of their 35 United Nations Economic and Social Council (ECOSOC) Res. 2005/14 of 22 July 2005: Model bilateral agreement on the sharing of confiscated proceeds of crime or property covered by the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. 36 See Swiss Federal Office of Justice (FOJ) (Bundesamt für Justiz), Press Release: Switzerland and the USA to share further confiscated drug monies, 10 July 2002, available at: www.ejpd.admin.ch/ content/ejpd/en/home/dokumentation/mi/2002/ref_2002-07-10.html (accessed on 20 December 2013). ECOSOC Res. 2005/14 (note 35) proposes a ‘model bilateral agreement’ of the sharing of the proceeds of crime. 37 38

See supra, note 4.

See also Swiss Federal Council, Dispatch concerning the UNCAC, 21 November 2007, SR 07.078, BBl 2007, 7349.

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financial institutions and improve international cooperation, especially in the field of asset recovery. While UNCAC recognises the principle of dual criminality (Article 46 (IX)(b) and (c)), the offence must not be similarly regulated in both legal systems (Article 43 (2)); i.e., the requirement of dual criminality will be deemed fulfilled, if the relevant conduct is a criminal offence under the laws of both States Parties. Although UNCAC is considered a ‘centrepiece’ of international efforts in tackling global corruption,39 its striking power is rather limited, as some of the UNCAC provisions are only recommendatory. Article 20 UNCAC only recommends the criminalisation of illicit enrichment, which is defined as the “significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.”40 In addition Article 54 (c) only recommends the confiscation of illicit property without prior criminal conviction.41 Moreover, the Convention does not oblige the States Parties to adapt their laws to a common (minimum) standard. Though mutual legal assistance shall be afforded “to the fullest extent possible,” it is subjected to the “relevant laws, treaties, agreements and arrangements of the requested State Party” (Article 46 (2)), or may be refused, with respect to “sovereignty, security, ordre public or other essential interests” (Article 46 (XXI)(b)). With these normative circumstances, asset recovery has a weak stand.

(2) Asset Recovery under UNCAC Articles 51–59 UNCAC on asset recovery constitute the core provisions of the Convention.42 By declaring the return of assets to the countries of origin to be “a fundamental principle of this Convention,”43 Article 51 initiated a dramatic shift in

39

Mark V. Vlasic/Jenae N. Noell, Fighting Corruption to Improve Global Security: An Analysis of International Asset Recovery Systems, Yale Journal of International Affairs 5 (2) (2010), 106, 110. 40 Switzerland has implemented that provision only with respect to PEPs of failed or fragile States. See infra, III.D.3.c). 41

See infra, II.A.2.b).(2).

42

See Dimitri Vlassis/Dorothee Gottwald, Implementing the Asset Recovery Provisions of the UNCAC, in: Pieth (ed.) (note 8), 353, 359–361. 43

With special regard to developing countries, see Pieth (note 8), 9. Switzerland has supported the principle of return, see FDFA (note 11).

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the evaluation of international asset recovery,44 which was considered a landmark consensus.45 Addressing both States seeking the recovery of assets as well as States rendering legal assistance to them, Articles 51–59 established the principle of ‘shared responsibility.’46 Article 53 UNCAC on assets recovery is unique in criminal law conventions, as it allows for direct recovery even in cases where mutual legal assistance would fail or be denied. According to Article 53 (a) any State Party shall permit any other State Party to initiate civil action in its courts to establish title to or ownership of property. National courts must also be enabled to award compensation or damages to the victim countries (Article 53 (b)). However, disbenefits such as bearing the burden of proof or being forced to waive sovereign immunity rights will deter States from appearing before a foreign civil court.47 UNCAC at least seeks to facilitate confiscation – by non-mandatory provisions: Article 54 (c) for the first time recommends the introduction of a non-conviction based confiscation, if “the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.” This may also include cases where a former dictator and followers had to be granted amnesty in order to induce them to give up power. Article 57 UNCAC on the return and disposal of assets follows a new approach: whereas Article 14 UNTOC leaves confiscated assets under the control of the confiscating State,48 Article 57 (3)(a) UNCAC, for the first time ever, proclaims the binding principle of repatriation. However, Article 57 UNCAC presupposes that the assets were previously confiscated.49 In that respect Article 31 (1) UNCAC demands from the States Parties no more than to “take, to the greatest extent possible within its domestic legal system, such measures as may be necessary to enable confiscation.” 44

Claman (note 14), 335, 337 et seq.

45

Cf. Vlassis/Gottwald (note 42), 354.

46

See also Claman (note 14), 335–338.

47

Cf. ibid., 342, 343.

48

The only obligation following from Art. 14 (2) UNTOC is to “give priority consideration to returning the confiscated proceeds”. 49 Claman (note 14), 349–350. See Ad Hoc Committee for the Negotiation of a Convention against Corruption, Report on the Work of its First to Seventh Sessions, Addendum: Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Corruption, 7 October 2003, UN Doc. A/58/422/Add.1, para. 69.

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In the case of the embezzlement of public funds or money-laundering, confiscated property shall be returned to the requesting State (Article 57 (3)(a)). The same applies to the proceeds of other offences, given that, the requesting State can reasonably establish its prior ownership (Article 57 (3)(b)). In all other cases no more than ‘priority consideration’ has to be given to the return of confiscated property either to the requesting State Party or to the prior legitimate owners or to victims of the offence (Article 57 (3)(c)). In addition, Article 57 (5) opens the way for concluding agreements or “mutually acceptable arrangements,” on a case-by-case basis, for the final disposal of confiscated property. This corresponds to a well-established practice: States prefer to return dictators’ assets to developing countries only on certain conditions in order to avert the risk of novel diversion by a corrupt successor regime. For example in 1997 the Swiss Federal Court made the direct return of the Marcos assets to the Philippines conditional on the obligation to examine the compensation claims of the victims of corruption in a fair judicial procedure.50 In the case of Abacha, an agreement between Nigeria and Switzerland was concluded according to which Nigeria had to invest the regained assets in certain development projects. This practice became the standard some years later in the form of the Swiss Restitution of Illicit Assets Act (RIAA).51 In the overall perspective, UNCAC clearly tends to empower the victim States. This principle of self-help is reflected by the provisions on international cooperation and asset recovery including the obligation of the States Parties to grant to other States Parties access to the national courts.52 However, major lacunae such as the lacking of clauses on the burden of proof or illicit enrichment could not be filled. Though UNCAC is a trend-setting treaty, it leaves a strange result in that the extradition of a person is still more easily achieved than the return of money.53 The differentiation between mandatory provisions that mostly reflect minimum standards and nonmandatory provisions, which could not be foreseen in its consequences, additionally weakens the effectiveness of UNCAC. 50

Swiss Federal Court (Bundesgericht), Judgment of 10 December 1997, BGE 123 II 595.

51

See e.g. Art. 4 Swiss Federal Act on the Restitution of Assets illicitly obtained by Politically Exposed Persons, 1 October 2010, SR 196.1 (RIAA), unofficial English translation available at: www.admin.ch/ ch/e/rs/1/196.1.en.pdf (accessed on 20 December 2013). See infra, III.D.3. 52

Cf. Claman (note 14), 338: “principle of self-help and empowerment”.

53

Cf. ibid., 350–351.

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B. Other Forms of International Co-operation Relevant to Asset Recovery

Some of the above-mentioned instruments do not have any monitoring mechanism. In the case of the UNCAC, the Conference of State Parties held in Amman in December 2006 only agreed on a self-assessment mechanism that would be nonintrusive, not produce any form of ranking, and would only complement review mechanisms already existing.54 This is why complementary initiatives play an important role in the field of implementation. International initiatives dealing with illicit assets of PEPs include in particular the FATF, the Bank for International Settlements (BIS) Core Principles for Effective Banking Supervision,55 the Stolen Asset Recovery Initiative (StAR),56 and the International Centre for Asset Recovery (ICAR).57 Only some of them contribute to the recovery of stolen assets. The FATF,58 through its 40 Recommendations has established many due diligence requirements including the fundamental “know your customer” principle, providing for a definition of PEPs,59 issues evaluation reports,60

54 See UN Office on Drugs and Crime (UNODC)/World Bank, StAR Initiative, Challenges, Opportunities, and Action Plan, June 2007, 27, available at: http://siteresources.worldbank.org/ NEWS/Resources/Star-rep-full.pdf (accessed on 20 December 2013). 55

See Bank for International Settlements (BIS), Basel Committee on Banking Supervision, Core Principles for Effective Banking Supervision, October 2006, available at: www.bis.org/publ/bcbs129.pdf (accessed on 20 December 2013). 56

Information regarding the Stolen Asset Recovery Initiative (StAR) is available via: http://star. worldbank.org/star/ (accessed on 20 December 2013). 57

See International Asset Recovery Knowledge Centre, information available via: http://assetre covery.org (accessed on 20 December 2013). 58 The FATF was established in the form of an inter-governmental body by the then G-7 Summit of Paris in 1989. It has delivered 40 recommendations on money-laundering and nine special recommendations on the financing of terrorism (FATF 40+9 Recommendations, see infra, note 59). The latter are considered to reflect international standards of due diligence, see e.g. SC Res. 1617 of 29 May 2005, para. 7. 59 See supra, I.B.1. See also FATF, Recommendation 38 on Mutual Legal Assistance: Freezing and Confiscation, all recommendations available at: www.fatf-gafi.org/media/fatf/documents/ recommendations/pdfs/FATF_Recommendations.pdf (accessed on 27 February 2014). 60 On the (non-)compliance of Switzerland, see e.g. id., Third Mutual Evaluation Report on AntiMoney Laundering and Combating the Financing of Terrorism, 14 October 2005; and id., Follow-up Report to the Mutual Evaluation of Switzerland, 27 November 2009, both available via: www.fatf-gafi. org/topics/mutualevaluations/ (accessed on 20 December 2013).

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and periodically publishes a blacklist on high-risk and non-cooperative jurisdictions.61 However, it has not yet dealt specifically with the recovery of stolen assets. This is due to the fact that FATF as a policy-making body aims at the setting of standards protecting the integrity of the international financial system rather than to provide for the restitution of looted assets. The same applies, mutatis mutandis, with respect to the BIS Core Principles,62 and the Wolfsberg Principles (2000).63 The StAR Initiative is a joint initiative by the UN Office on Drugs and Crime (UNODC) and the World Bank Group, which supports international efforts to close safe havens for illicit funds. It mainly works “with developing countries and financial centres to prevent the laundering of the proceeds of corruption and to facilitate more systematic and timely return of stolen assets.”64 Additionally, the ICAR which is part of the Basel Institute on Governance provides for capacity-building and technical training with respect to financial investigation, tracing and the final recovery of assets. These activities may function as a supplementary mechanism securing the implementation of international treaties in the field of corruption and money laundering. However, the plenitude of initiatives produces an ever-increasing number of recommendations that will create anything but consistent standards. Eventually, this kind of standard-setting could even degenerate to a bureaucracy which disburdens the implementing bodies from responsibility rather than erasing the evil.

C. Emergency Measures by the UN Security Council: The Case of Libya (2011)

The rebellions of 2011 in Northern Africa, especially in Libya, have induced the UN Security Council (SC) for the first time to explicitly include dictators’ assets into 61

Currently, thirteen countries (not including Switzerland) are listed. See id., High-risk and noncooperative jurisdictions, available at: www.fatf-gafi.org/topics/high-riskandnon-cooperativejurisdictions/ (accessed on 20 December 2013). 62

BIS Core Principles (note 55). See also Christos Gortsos, Fundamentals of Public International Financial Law (2012), 175 et seq. 63 Twelve global banks such as e.g. UBS and Credit Suisse forming the Wolfsberg Group developed these principles. Further details are available at: www.wolfsberg-principles.com (accessed on 20 December 2013). 64

StAR, Our Vision, available at: http://star.worldbank.org/star/about-us/our-vision (accessed on 20 December 2013).

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a decision under Chapter VII of the UN Charter.65 Acting on grounds of Article 41, the SC ordered Member States of the UN to freeze all assets being directly or indirectly controlled by certain members of the Gaddafi family.66 As this decision was based on the antecedent assessment that the situation in the Libyan Arab Jamahiriya constituted “a threat to international peace and security” (Article 39 UN Charter), it must be understood as a means to restore peace by draining the financial means for further acts of aggression – rather than to repatriate assets to Libya. The SC had expressed “its intention to ensure” that assets frozen pursuant to the resolution “shall at a later stage be made available to and for the benefit of the people of the Libyan Arab Jamahiriya.”67 However, Resolution 1970 (2011) does not regulate the final attribution of PEPs but rather clarifies that frozen assets formerly held by the Gaddafi family must not fall to the freezing States under any circumstances but to Libya alone. Even with this restricted meaning the resolution, like others of the kind, suffers from lacking a judicial review mechanism that could compensate the drastic character of individualised measures such as, the confiscation of ‘private’ assets.68

III. Swiss Law – A Model for State Practice? A. Three Pillar Approach

Switzerland’s policy to staunch the accumulation of illicit assets by foreign PEPs and the investment of these assets into its financial market can be described as a three-pillar approach.69 The focus of the first pillar lies on the prevention of such accumulation 65

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

66

SC Res. 1970 of 26 February 2011, para. 17 and Annex II.

67

Ibid., para. 18.

68

See e.g. European Court of Human Rights (ECtHR), Al-Dulimi et al. v. Switzerland, Judgment of 26 November 2013, Appl. No. 5809/08 (not final), available via: http://hudoc.echr.coe.int/sites/eng (accessed on 27 February 2014); Thomas Giegerich, “A Fork in the Road” – Constitutional Challenges, Chances and Lacunae of UN Reform, German Yearbook of International Law (GYIL) 48 (2005), 29, 59 et seq.; Dagmar Richter, Judicial Review of Security Council Decisions – A Modern Vision of the Administration of Justice?, Polish Yearbook of International Law (PYIL) 32 (2012), 271; Pavel Šturma, Does the Rule of Law also Apply to the Security Council? – Limiting Its Powers by Way of Responsibility and Accountability, PYIL 32 (2012), 299. 69

In contrast, the FDFA speaks of a two-pillar approach. See FDFA (note 11).

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by criminalising corruption in transnational contexts, creating myriads of guidelines for domestic companies operating abroad,70 and promoting good governance and capacity building in developing countries.71 The second pillar contains legal norms and administrative rules on the duties of financial intermediaries with respect to the identification of clients and the origins of monies. The third pillar alone relates to the rules on the freezing, seizure and repatriation of assets of PEPs, which despite all efforts have still managed to arrive in Switzerland. As the repatriation of assets presupposes confiscation or forfeiture which again presupposes discovery and eventually temporary freeze, major shortcomings on any of these stages of compliance can constitute a violation of the principle obligation of returning assets to the countries of origin.

B. Preventing the Accumulation of Illicit Assets in Switzerland through Criminal Law

1. Transnational Offences: Active and Passive Corruption with Regard to Foreign Public Officials In compliance with the Criminal Law Convention on Corruption72 Article 322septies Swiss Criminal Code (SCC)73 provides for the punishment of those who offer, promise or give an undue advantage to a foreign public official (active bribery), and also for the punishment of any foreign public official who demands, secures the promise of, or accepts such advantage (passive bribery). The criminalisation of passive bribery theoretically allows for the prosecution of foreign public officials by Swiss authorities in transnational cases, even if the victim

70

See e.g. Swiss State Secretariat for Economic Affairs (Staatssekretariat für Wirtschaft), Economic Cooperation and Development Division, Anti-Corruption Handbook 2011, available via: www.secocooperation.admin.ch/themen/00960/01032/index.html?lang=en (accessed on 20 December 2013). 71 See Swiss Agency for Development and Cooperation (SDC) (Direktion für Entwicklung und Zusammenarbeit), Strategy 2006: Fighting Corruption (2006) and id., Key Recommendations and Guiding Principles: Challenging Common Assumptions on Corruption and Democratisation (2008), both available via: www.deza.admin.ch/en/Home/Themes/State_and_Economic_Reforms/ Combating_corruption (accessed on 20 December 2013). 72

Cf. Arts. 2, 3, and 5 Criminal Law Convention; see supra, II.A.1.

73

Swiss Criminal Code (SCC) (Strafgesetzbuch), 21 December 1937, SR 311.0.

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country is not in the condition or willing to prosecute its own public officials.74 However, there are some obstacles. First, any act of bribery has to be either committed on Swiss territory or by Swiss nationals (territoriality and personality principle).75 Secondly, a person may not qualify for the position of a “foreign public official,” if the Swiss definition of such a function deviates from the understanding in the foreign country concerned.76 Thirdly, advantages, which are to be considered common social practice or ‘facilitation payments,’77 cannot trigger the applicability of Article 322septies SCC.78 And finally, the bribing of foreign public officials, in contrast to the bribing of Swiss public officials must always be linked to a specific act. Above all, it is not surprising that, despite frequent mentioning, the offence of bribing foreign public officials, or being bribed by such persons, has not yet become significant in any of the recent high-profile cases relating to PEPs.

2. PEP Regimes as Criminal Organisations? Even before the bribing of foreign officials was recognised as a criminal offense, Swiss courts had developed creative solutions in order to tackle the shortcomings of national law: in 2005 the Swiss Federal Court started qualifying foreign PEPs together with their entourage as criminal organisations according to Article 260ter SCC.79 With regard to the former Abacha Government of Nigeria it found that the 74

Cf. Swiss Federal Council, Dispatch regarding the Criminal Law Convention (Botschaft über die Genehmigung und die Umsetzung des Strafrechts-Übereinkommens und des Zusatzprotokoll des Europarates über Korruption), 10 November 2004, SR 04.072, BBl 2004, 6983, 7004; see also Mark Pieth, Art. 322septies, in: Marcel Alexander Niggli/Hans Wiprächtiger (eds.), Basler Kommentar: Strafrecht II (2nd ed. 2007), para. 19a. 75

See infra, III.B.4.b).

76

Cf. Pieth (note 74), paras. 19b–19f.

77

These are considered small benefits for non-discretionary administrative acts. See ibid. (note 74), para. 19h.

78

See Swiss Federal Council, Dispatch (note 74), 7001; cf. Gully-Hart (note 18), 168. When acceding to the Criminal Law Convention Switzerland deposited a declaration according to which Switzerland “will punish the active and passive bribery in the meaning of Articles 5, 9 and 11 only if the conduct of the bribed person consists in performing or refraining from performing an act contrary to his/her duties or depending on his/her power of estimation.” The Swiss declaration is available at: http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=173&CM=&DF=&CL= ENG&VL=1 (accessed on 20 December 2013). 79 Art. 260ter SCC provides for the punishment of any person who participates in or supports an organisation, whose “structure and personal composition is kept secret and which pursues the objective of committing crimes of violence or securing a financial gain by criminal means”.

474 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 structure set up by Sani Abacha and his accomplices constitute[d] a criminal organisation […] since its object was to embezzle funds from the Central Bank of Nigeria for private purposes, and to profit from corrupt transactions.80

Additionally, it decided to analogously apply Article 72 (then Article 59 (3)) SCC to mutual legal assistance cases, which as a part of general criminal law establishes the reversal of proof.81 As a consequence, “funds held by a criminal organisation are presumed to be of criminal origin unless the holders prove the contrary;” if this presumption cannot be rebutted, delivery of the funds “must be ordered in accordance with Article 74a (3) EIMP [Federal Act on International Criminal Assistance (IMAC)] without any further examination of the provenance of the funds reclaimed.”82 Since the Abacha family did not submit any evidence proving the licit origin of their assets in Switzerland, US$ 508 million was returned to Nigeria.83 This decision was criticised: the argument was that the respective regimes due to their ‘natural publicity’ were lacking the necessary element of secret internal structures,84 or that the Federal Court had neglected the lex specialis principle by applying the more general rule.85 However, the presumptive effect of unexplained wealth facilitated the returning of looted assets in a way that resembles the concept of illicit enrichment. 80

Swiss Federal Court, Judgment of 7 February 2005, BGE 131 II 169, para. E.9.1. For an unofficial English translation, see Enrico Monfrini, The Abacha Case, in: Pieth (ed.) (note 8), 41, 57–58. 81 An unofficial English translation of Art. 72 SCC by the Federal Authorities of the Swiss Confederation is available at: www.admin.ch/ch/e/rs/311_0/a72.html (accessed on 20 December 2013). 82 Cf. Swiss Federal Court, BGE 131 II 169 (note 80), para. E.9.1. Also see Art. 74a (3) Federal Act on International Criminal Assistance (Bundesgesetz über internationale Rechtshilfe in Strafsachen), 20 March 1981, SR 351.1 (IMAC). For the IMAC, see infra, III.D.2. 83

Cf. Monfrini (note 80), 59. Concerning Abacha’s son, Abba Abacha, see Swiss Federal Court, Judgment of 9 September 2011, 6B-254/20111. See also Annegret Mathari, ‘Bedingte Haft für AbachaSohn,’ NZZ (Zürich, 18 June 2010), 13. 84

Cf. Marnie Engewald-Dannacher, Aufarbeitung von Staatsunrecht in rechtstaatlichen Grenzen?, Aktuelle Juristische Praxis (AJP) 3 (2009), 288, 290; Mark Pieth, Die Herausgabe illegal erworbener Vermögenswerte an sog. ‘Failing States,’ in: Marcel Alexander Niggli/José Hurtado Pozo/Nicolas Queloz (eds.), Festschrift für Franz Riklin zur Emeritierung und zugleich dem 67. Geburtstag (2007), 497, 504; Ursula Cassani, Les avoirs mal acquis, avant et après la chute du ‘potentat,’ Revue Suisse de Droit International et Européen 20 (2010), 465, 481. Other authors regard the ruling as an implementation of Art. 31 (8) UNCAC (on a reversal of proof) and Art. 54 (1c) UNCAC (on confiscation without prior conviction), cf. Monfrini (note 80), 60 et seq. 85

Art. 74a (2) IMAC (see infra, III.D.2) which should have been applied, necessitates the criminal origin of the assets, whereas Art. 72 SCC, which actually was applied, only requires that the assets belong to a criminal organisation. Cf. Engewald-Dannacher (note 84), 292.

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3. Money Laundering Since the investment of plundered assets in safe havens is a symbiotic part of transnational corruption, international conventions on corruption have long included provisions on money laundering.86 Swiss law defines money laundering in Article 305bis SCC as any act “that is aimed at frustrating the identification of the origin, the tracing or the tracking or the confiscation of assets.” This requires the offender to know, suspect or have reasonable grounds for knowing or suspecting that the assets are proceeds of crime and that the money laundering is linked to a predicate offence.87 For example, deliberate disruption of the ‘paper trail’ or concealment of the beneficial owner through multiple intercalated offshore companies fulfils this requirement.88 With regard to foreign PEPs, predicate crimes can be any of the offences mentioned in Articles 260ter, 322septies SCC.89

4. Fundamental Obstacles to Prosecution and Punishment a) Public International Law Restrictions – Benefiting PEPs? Public international law restrictions such as the principle of immunity can protect foreign public officials from prosecution.90 As the Swiss Federal Court confirmed in the Marcos case, heads of State are absolutely exempt from all measures of constraint

86

See e.g. Art. 13 Criminal Law Convention and Art. 7 UNTOC.

87

For further details, see Swiss Federal Court, Judgment of 21 November 1994, BGE 120 IV 323, para. E.3d.; Stefan Trechsel/Heidi Affolter-Eijsten, Art. 305bis, in: Stefan Trechsel et al. (eds.), Schweizerisches Strafgesetzbuch (2008), para. 11. 88

Swiss Federal Court, Judgment of 23 January 2006, 6P.125/2005, para. E.2.2.

89

This applies even if the predicate crime was committed abroad, provided that there is dual criminality. See Art. 305bis (3) SCC; Trechsel/Affolter-Eijsten (note 87), para. 28. 90 See David Chaikin, Policy and Legal Obstacles in Recovering Dictator’s Plunder, Bond Law Review 17 (2005), 27, 32 et seq.; Haimo Schack, Zugriff auf Potentatengelder – zwischen Vollstreckungsimmunität und Opferschutz, in: Berichte der Deutschen Gesellschaft für Internationales Recht 46 (2014; forthcoming), summary available at: www.dgfir.de/workspace/media/documents/schack-thesen.pdf (accessed on 27 February 2014); see also Silvio Antonio Marques, Political Immunities: Obstacles in the Fight Against Corruption, in: Gretta Fenner Zinkernagel/Charles Monteith/Pedro Gomes Pereira (eds.), Emerging Trends in Asset Recovery (2013), 93 et seq.

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on the part of a foreign State for acts committed by them in the exercise of their official functions (ratione materiae). Furthermore, immunity ratione personae from criminal jurisdiction must be respected even with regard to private acts committed during the incumbency as head of State.91 Under these circumstances PEPs can hardly be prosecuted, unless certain transnational offences would be recognised as international crimes, or immunity is being waived expressly by the State concerned.92 This, however, will only be considered by transitional States, who are not bound to respect promises of immunity included in reconciliation agreements with their former dictators.

b) Swiss Jurisdiction and Dual Criminality Swiss authorities have no jurisdiction over crimes committed by PEPs and their entourage in foreign countries, except in cases where a specific link to Switzerland can be established. Even if Switzerland is specifically obliged by international conventions to prosecute certain offences committed abroad, dual criminality is still a prerequisite (Articles 6 (1) and 7 (1) SCC).93 In the case of Gaddafi, dual criminality could hardly be established, because Gaddafi – then disposing of unfettered power – was in the capacity to ensure the legality of his and his family’s enrichment according to Libyan law.94

c) Disastrous Limitation Clauses: Experiences in the Cases of Duvalier and Mobutu Inspired by the ruling of the Federal Court in the case of Abacha (2005), Swiss authorities in 2009 again resorted to Article 260ter and 72 SCC by qualifying the 91

Swiss Federal Court, Judgment of 2 November 1989, BGE 115 IB 496, sub para. E.5c.

92

In the Marcos case immunity was waived by the Philippines. See ibid.

93

This is also due to the fact that even grand corruption is not considered an international crime with universal jurisdiction. For a dissenting opinion, see Ilias Bantekas, Corruption as an International Crime and Crime against Humanity, Journal of International Criminal Justice 4 (2006), 466 et seq. 94 Markus Balser, Jäger des gestohlenen Schatzes: Interview with Mark Pieth, Süddeutsche Zeitung, 7 March 2011, available at: www.sueddeutsche.de/geld/schwarzgeldfahnder-mark-pieth-jaeger-desgestohlenen-schatzes-1.1068764 (accessed on 20 December 2013).

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regimes of Duvalier95 and Mobutu96 as criminal organisations. In the case of Duvalier, the Federal Office of Justice ordered the handover of CHF 7 million, the lawful origin of which could not be proven, to Haiti.97 However, the repatriation of these assets was ultimately denied by the Swiss Federal Court: as the criminal organisation had ceased to exist by the termination of the presidency of Jean Claude Duvalier in 1986, the limitation period had already elapsed in 2001.98 Consequently, dual criminality as a precondition for rendering legal assistance had ceased to exist, too, so that the illicit assets could not be returned. A similar result was obtained in re Mobutu.99 In both cases the limitation of prosecution clauses under the SCC frustrated yearlong struggles for the repatriation of assets through mutual criminal assistance procedures.100 The disastrous experiences and the loss of reputation following from the return of assets to the perpetrators convinced the Swiss legislator to pursue a new approach to the problem by enacting the Restitution of Illicit Assets Act.101

d) Lack of Evidence It also became apparent that weak or failing States typically do not provide for sufficient evidence and respectively fulfil the requirements of mutual legal assistance. 95 In the case of Jean-Claude Duvalier, President of Haiti from 1971 until 1986, up to US$ 900 million could have been embezzled. Cf. Swiss Federal Court, Judgment of 12 August 2009, RR.2009.94. 96

In the case of Mobutu Sese Seko, President of Zaire from 1965 until 1997, US$ 5 billion were at stake. Cf. Claudia Schoch, ‘Chance für schwache Staaten an ihr Geld zu kommen,’ NZZ (Zürich, 25 February 2010), 11. 97

See FOJ, Press Release: Handover of Duvalier Assets to Haiti Ordered: Lawful Origin of Assets Could Not Be Proven, 12 February 2009, available at: www.bj.admin.ch/content/bj/en/home/ dokumentation/medieninformationen/2009/2009-02-12.html (accessed on 20 December 2013). 98 Swiss Federal Court, Judgment of 12 January 2010, BGE 136 IV 4. Art. 97 (1)(b) SCC reads: “The right to prosecute is subject to a time limit of: […] b. 15 years, if the offence is punishable by a custodial sentence of more than three years”. 99

See Swiss Federal Criminal Court (Bundesstrafgericht), Judgment of 14 July 2009, BA.2009.4, TPF 2009 116. Whereas the Democratic Republic of Congo had not sought recourse, the complaint of a Swiss citizen was rejected on grounds of standing. See also FDFA, Press Release: Switzerland is Forced to Unfreeze Mobutu Assets, 16 July 2009, available at: www.news.admin.ch/message/index.html? lang=en&msg-id=28137 (accessed on 20 December 2013), ‘regretting’ the outcome of this case and suggesting legislative reform. 100

Cf. Swiss Federal Council, Dispatch (note 3), 3354 et seq.

101

See infra, III.D.3.

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Whilst the relevant evidence is predominantly to be found in the foreign State concerned, such States very often are neither willing nor capable to cooperate.102 In the case of Hafez Makhluf, a cousin of Bashar al-Assad, the offence of money laundering, owing to a lack of evidence, could not be established – with the result that CHF 3.6 million had to be released.103

C. The Role of Financial Intermediaries: Due Diligence Requirements in Financial Transactions

1. Know Your Customer – Know Your PEP Ascertaining the ‘beneficial owner’104 of assets being invested in Switzerland is not only crucial to the prevention of money laundering but also enables financial institutions to freeze suspicious assets with a view to later confiscation.105 According to Article 305ter (1) SCC, which implements the “know your customer” principle pursuant to Article 52 (1) UNCAC, a financial intermediary will be punishable, if he or she does not ascertain “the identity of the beneficial owner of the assets with the care that is required in the circumstances.” Article 305ter (2) SCC clarifies that, even if there is no duty to report, there is a right to report to the Money Laundering Reporting Office.106 According to the know your customer-principle, financial intermediaries are expected to identify the contracting party (Article 3 Swiss Anti-Money Laundering 102

Cf. Pieth (note 84), 503. See also Swiss Federal Council, Dispatch (note 3), 8 (sub para. 1.3).

103

Swiss Federal Criminal Court, Judgment of 11 January 2012, BB.2011.95 and 106. See also Tages-Anzeiger Online, Schweiz gibt Millionen von Assads Cousin frei, 10 February 2012, available at: www.tagesanzeiger.ch/schweiz/standard/Schweiz-gibt-Millionen-von-Assads-Cousin-frei-/story/ 30226626 (accessed on 20 December 2013). 104

Merely the economic perspective is relevant. See Trechsel/Affolter-Eijsten (note 87), para. 9. The term ‘beneficial owner’ is also used in the FATF 40 Recommendations (note 59), the customer due diligence provisions of the Basel Committee on Banking Supervision (note 5) and the Wolfsberg Principles (note 6), i.e. para. 2.1.1. 105 Cf. Nadja Capus, Country-Report: Combating Money Laundering in Switzerland, in: Mark Pieth/Gemma Aiolfi (eds.), A Comparative Guide to Anti-Money Laundering: A Critical Analysis of Systems in Singapore, Switzerland, the UK and the USA (2004), 114, 143. 106

Cf. Trechsel/Affolter-Eijsten (note 87), para. 16.

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Act (AMLA)107) as well as the beneficial owner (Article 4 AMLA).108 In addition, they must neither do business with unidentified customers nor continue dubious relations, and in the case of the termination of business relationships, must provide for an uninterrupted paper trail.109 All of these rules reflect some of the revised FATF standards including the paradigmatic change from a rule-based to a risk-based approach.110 Though the extent to which clarifications on the customer and their investment plans have to be conducted remains somewhat unclear,111 more intensive checks have to be conducted in the case of PEPs, which always constitute a high-risk business relationship (Article 12 (3) Swiss Financial Market Supervisory Authority AntiMoney Laundering Ordinance (AMLO-FINMA)112). Financial intermediaries have to clarify, whether the contracting partner or beneficial owner eventually is a PEP (Article 14 (2)(g) AMLO-FINMA) and, in the affirmative, members of the chief executive body must decide on whether to continue the business relation (Articles 17 and 18 AMLO-FINMA). The problem is that the open wording of legal terms such as “prominent public position,” “enterprises of national importance” or “close ties” leaves too much room for interpretation.113 Additionally, identifying prominent political figures can be a

107 Art. 3 Swiss Federal Act on Combating Money Laundering and Terrorist Financing in the Financial Sector, 10 October 1997, SR 955.0, unofficial translation available at: www.admin.ch/ch/ e/rs/955_0/index.html (accessed on 27 February 2014) (Anti-Money Laundering Act, AMLA). 108

Pieth, Article 305ter, in: Niggli/Wiprächtiger (eds.) (note 74), paras. 1, 4.

109

See e.g. Art. 30 (1) Swiss Financial Market Supervisory Authority (FINMA) Ordinance on the Prevention of Money Laundering and Terrorist Financing, 8 December 2010, SR 955.033.0 (AntiMoney Laundering Ordinance, AMLO-FINMA). This is in accordance with Art. 52 (1) UNCAC. 110

See Mathias Pini, Risk Based Approach – ein neues Paradigma in der Geldwäschereibekämpfung (2007); FATF, Risk Based Approach Guidance for Legal Professionals, 23 October 2008, available at: www.fatf-gafi.org/media/fatf/documents/reports/RBA%20Legal%20professions.pdf (accessed on 20 December 2013). 111 For an example, it is uncertain if a declared identity has to be verified. Cf. Trechsel/Affolter-Eijsten (note 87), paras. 6, 10; Pieth (note 74), paras. 24–25. According to Recommendation 10 (b) FATF (note 59) only “reasonable measures to verify” have to be taken. Concerning later knowledge of the criminal origin of assets, see Swiss Federal Court, Judgment of 30 April 1999, BGE 125 IV 139, para. E.3c. 112 113

See supra, note 109.

Art. 2 (a)(1) and (2) AMLO-FINMA; see Ralph Wyss/Dave Zollinger, Art. 1 GwV-FINMA 1, in: Daniel Thelesklaf et al. (eds.), GwG-Kommentar (2nd ed. 2009), para. 2.

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difficult undertaking, even if IT-based name-matching tools are being employed.114 This problem may be aggravated by the fact that some banks had and eventually still have an interest in assisting PEP regimes to hide illicit assets.115 Numerous PEP cases shed doubts on the effectiveness and even on the seriousness of the Swiss due diligence supervision and sanctions system.116 Furthermore, Swiss law – in contrast to the FATF Recommendations – excludes individuals no longer holding a prominent foreign public position from the definition of a PEP (Article 2 (1)(a) AMLOFINMA),117 notwithstanding the fact that Swiss law in contrast surpasses the FATF requirements by considering companies and individuals closely associated with PEPs to be PEPs themselves.118 Banks are not required by law to apply special due diligence requirements concerning business relationships with former PEPs, though the same persons can be targeted by the simplified repatriation procedures of the new RIAA.119

2. Duty to Report and Automatic Freeze Financial intermediaries not only have a right (Article 305ter (2) SCC) but also a duty to report suspicious transactions or business relations to the competent authorities, if they know or have reasonable grounds to suspect that the assets could be linked to money laundering, belong to a criminal organisation, be the proceeds of crime, or

114 Swiss Federal Banking Commission (Eidgenössische Bankenkommission), Abacha-Gelder bei Schweizer Banken, 4 September 2000, available at: www.finma.ch/archiv/ebk/d/archiv/2000/pdf/neu 14a-00.pdf (accessed on 20 December 2013). See also Leo Müller, Potentatengelder: Die Depots der Despoten, Bilanz 05/11, 11 March 2011, available at: www.aysec.ch/cms/upload/pdf/Bilanz_05_11_ Potentatengelder.pdf (accessed on 27 February 2014). 115 Cf. Markus Balser, ‘Grosse Geldinstitute waren am Versteckspiel beteiligt,’ Tages-Anzeiger (Zürich, 8 March 2011), 43. 116

See David Vonplon, Es gibt keine Ausreden: Interview with Mark Pieth, Tages-Anzeiger Online, 11 November 2011, available at: www.tagesanzeiger.ch/wirtschaft/geld/Es-gibt-keine-Ausreden-/story/ 14200812 (accessed on 20 December 2013). 117

For further details, see Theodore S. Greenberg et al., Politically Exposed Persons: Preventive Measures for the Banking Sector (2010), Appendix C: Comparison of the PEPs Definitions and Enhanced Due Diligence Requirements, 79 et seq. 118 This conforms to Art. 3 (4) EU Directive 2005/60/EC of 26 October 2005, OJ 2005 L 309, 15, as well as to Art. 52 (1) UNCAC. 119

This is due to the fact that the RIAA defines PEPs fully in line with the FATF definition. See infra, III.D.3 and Swiss Federal Council, Dispatch (note 3), 3332.

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serve the financing of terrorism (Article 9 AMLA). However, financial intermediaries will be exempted from any liability when acting in good faith (Article 11 AMLA). The filing of a report under Article 9 AMLA triggers an immediate compulsory freeze on assets until an order from the competent prosecution authorities is received (Article 10 AMLO). The freeze, however, must be lifted, if the authorities do not manage to issue a freezing order within five working days; in this case, financial intermediaries are free to decide whether and under what condition the business relationship will be continued.120 If the business relationship is terminated, a paper trail must not be established.121 As financial intermediaries in these instances will be more likely to cancel business relations,122 dubious assets can easily disappear.

D. Freezing, Seizure and Repatriation of Assets

1. Precautionary Seizure of Assets upon Order of the Swiss Federal Council: Recent Cases from Africa The most prominent mechanism for the freezing of PEP assets is the precautionary seizure upon order by the Swiss Government. This occurs in accordance to Article 184 (3) of the Federal Constitution (FC);123 the Swiss Federal Council (Federal Council), where safeguarding the interests of the country so requires, may order the seizure of assets for a limited period of time.124 By employing Article 184 (3) FC as an 120

See Art. 9 (2) AMLA; Art. 28 AMLO-FINMA.

121

Cf. Art. 30 (1) AMLO-FINMA; Art. 22 (2) Swiss Federal Gaming Board Ordinance on Due Diligence Obligations of Casinos in Combating Money Laundering (Verordnung der Eidgenössischen Spielbankenkommission über die Sorgfaltspflichten der Spielbanken zur Bekämpfung der Geldwäscherei), 12 June 2007, available at: www.admin.ch/opc/de/classified-compilation/20063096/index.html (accessed on 27 February 2014) (not in English). 122

Daniel Thelesklaf, Art. 26 GwV-FINMA 1, in: id. et al. (eds.) (note 113), para. 2.

123

Art. 184 (3) Federal Constitution of the Swiss Confederation, 18 April 1999, SR 101 reads: “Where safeguarding the interests of the country so requires, the Federal Council may issue ordinances and rulings. Ordinances must be of limited duration”. 124 For the exigencies of proportionality, see Swiss Federal Court, Mobutu Case, Judgment of 27 April 2006, ATF 131 III 652, para. E.11. In recent cases assets usually were frozen for an initial period of three years. Cf. e.g. Swiss Federal Council, Egypt Ordinance (Verordnung über Massnahmen gegen gewisse Personen aus der Arabischen Republik Ägypten), 2 February 2011, SR 946.231.132.1; id., Tunesia Ordinance (Verordnung über Massnahmen gegen gewisse Personen aus Tunesien), 19 January 2011, SR 946.231.175.8.

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exceptional legal basis, the Federal Council seeks to prevent assets from disappearing in order to enable the injured countries to initiate criminal proceedings and request mutual legal assistance from Switzerland. Since the Marcos affair, the Federal Council in cases with a high relevance to Swiss foreign policy125 repeatedly resorted to Article 184 (3) FC in order to safeguard the reputation of the Swiss financial market.126 In 2011 alone more than CHF 1.1 billion in assets was seized on the basis of Article 184 (3) FC.127 Though the Federal Council had formerly avoided unilateral action, it for the first time in the case of Libya128 reacted unilaterally, ahead of the US and the European Union and even before the struggle for power was ultimately decided.129 Nonetheless, assets will be frozen only if there is a likelihood of a request for legal assistance on the part of the country concerned, which, however, is unlikely while a potentate is still in power.130 One can derive from this that the precautionary seizure is not to be understood in a way as to effectively stop the plundering of foreign States by PEPs but rather as a means to secure assets for a specific legal assistance procedure – if the purpose of safeguarding Switzerland’s reputation so requires. The

125 Cf. Daniel Thürer et al., Art. 184, in: Bernhard Ehrenzeller et al. (eds.), St. Galler Kommentar zur Schweizerischen Bundesverfassung (2nd ed. 2008), para. 20. 126 See FDFA, FAQ on frozen assets of Politically Exposed Persons (PEPs) from Tunisia, Egypt and Ivory Coast – ordinances of the Federal Council, July 2011, available at: www.eda.admin.ch/etc/ medialib/downloads/edazen/topics/finec/intcr.Par.0037.File.tmp/Liste%20de%20questions%20et% 20reponses_PEPs_ENGL.pdf (accessed on 20 December 2013). For the earlier Marcos case, see Richter (note 1), 543. 127 According to then-Swiss Foreign Minister Calmy Rey, CHF 60 million, was frozen in the case of Tunisia, CHF 410 million in the case of Egypt, CHF 650 million in the case of Libya, and CHF 70 million in the case of the Ivory Coast. See Micheline Calmy-Rey, Response to Enquiry 11.5212, Beschlagnahmte Ghaddafi-Gelder, 7 June 2011, available at: www.parlament.ch/ab/frameset/d/n/ 4819/355481/d_n_4819_355481_355529.htm (accessed on 20 December 2013). See also TagesAnzeiger Online, Schweiz ermittelt wegen Geldwäscherei gegen Gbagbo, 9 May 2011, available at: www.tagesanzeiger.ch/schweiz/standard/Schweiz-ermittelt-wegen-Geldwaescherei-gegen-Gbagbo/ story/19548163 (accessed on 20 December 2013). 128 Swiss Federal Council, Libya Ordinance (Verordnung über Massnahmen gegen gewisse Personen aus Libyen), 21 February 2011, SR 946.231.149.82. 129

See Gemperli (note 16); Deborah Ball/Cassell Bryan-Low, Swiss Banks Scrutinize Mideast Regimes’ Assets, Wall Street Journal, 23 February 2011, available at: http://online.wsj.com/news/articles/ SB10001424052748704071304576160490591620676 (accessed on 8 March 2014). 130

FDFA (note 126), para. 8.

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repetitive use of emergency measures on grounds of the constitution has however given rise to the conviction that a more specific legal basis is needed.131

2. International Mutual Assistance in Criminal Matters The Federal Act on International Mutual Assistance in Criminal Matters (IMAC)132 allows for transnational assistance in criminal proceedings including measures like the freezing or returning of assets to a foreign country.133 However, the fulfilment of all formal and material requirements has proved difficult or impossible for States with weak governance structures.134 Even with technical assistance135 transitional or developing countries mostly fail to present all relevant facts, classify the offence, construe the link between the offence and the assets, or comply with the principles of reciprocity, dual criminality, speciality and proportionality according to

131 The preliminary draft of a consolidated Federal Act on the Freezing and Restitution of Politically Exposed Persons’ Assets Obtained by Unlawful Means, is not meant to further develop the law but to integrate all relevant laws into a single Act as well as to release the Federal Council from ‘regular’ involvement on grounds of Art. 184 (3) Federal Constitution. See also FDFA, The Federal Council Opens the Consultation Procedure on the Draft of the Federal Act on the Freezing and Restitution of Potentates’ Assets, 22 May 2013, available at: www.eda.admin.ch/eda/en/home/recent/media/single. html?id=48933 (accessed on 20 December 2013). See Loïc Parein, L’avant-projet de loi fédérale sur le blocage et la restitution de valeurs patrimoniales d’origine illicite liées à des personnes politiquement exposées (LBRV), Jusletter, 18 November 2013, available via: http://jusletter.weblaw.ch/_734?lang=de (accessed on 20 December 2013); see also Rita Adam/Valentin Zellweger, The Proposed Swiss Comprehensive Act on Asset Recovery, in: Zinkernagel/Monteith/Pereira (eds.) (note 90), 173 et seq. 132 For the development of mutual legal assistance and early cases, see Richter (note 1), 541 et seq.; cf. Swiss Federal Council, Dispatch (note 3), 3351 et seq. 133

In addition Switzerland has also concluded bilateral treaties. For a detailed list, see Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement), List of Bilateral Treaties on Mutual Assistance in Criminal Matters, available at: www.rhf.admin.ch/rhf/de/home/ straf/recht/bilateral.html (accessed on 20 December 2013). 134 135

Cf. Swiss Federal Council, Dispatch (note 3), 3318.

For a discussion on Switzerland’s technical assistance in favour of Tunisia and Egypt, see Deborah Ball, Tracking Assets in the Arab Spring, Wall Street Journal, 25 August 2011, available at: http:// online.wsj.com/news/articles/SB10001424053111904875404576528310932368624 (accessed on 8 March 2014); see also FDFA, Press Release on the Swiss delegation of experts in Cairo, 11 May 2011, available at: www.eda.admin.ch/eda/en/home/recent/media/single.html?id=39108 (accessed on 20 December 2013); id. (note 126).

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IMAC.136 If, exceptionally, a developing country fulfils all requirements, Switzerland still remains free to refuse assistance on grounds of its own essential interests (Article 1 (a) IMAC), or with respect to its obligations from human rights treaties (Article 2 IMAC).

a) Freezing of Assets and Precautionary Orders Article 18 IMAC provides for provisional measures in order to create the timeframe necessary to file a formal request for mutual legal assistance hereinafter.137 In order to attain a preliminary freezing order the requesting State has to do no more than to indicate its suspicion that the relevant items or assets could be linked to a criminal conduct.138 The same right has been afforded to International Criminal Tribunals as was used, in the case of Charles Taylor, the former president of Liberia.139 However, there have been very few cases concerning PEPs where Article 18 IMAC has been applied.140

b) Confiscating and Returning Assets The core provision on the return of assets in mutual legal assistance cases is Article 74a IMAC. It states that upon request, the objects or assets subject to a precautionary seizure may be handed over to the competent foreign authority after conclusion of the mutual assistance proceeding (Art. 80d IMAC) for the purpose of forfeiture or return to the person entitled.

136 See Gretta Fenner Zinkernagel/Anja Roth, Asset Recovery – Praktische Probleme, in: Jürg-Beat Ackermann/Marianne Johanna Hilf (eds.), Geldwäscherei – Asset Recovery, 6. Schweizerische Tagung zum Wirtschaftsstrafrecht (2012), 43, 47 et seq. 137

See Gully-Hart (note 18), 172.

138

Cf. ibid., 173. If the requesting State seeks the return, it must show a high degree of likelihood that such linkage exists. 139 See FOJ, Press Release: 2 million frozen in Taylor case, 23 July 2003, available at: www.bfm.admin.ch/content/ejpd/en/home/dokumentation/mi/2003/ref_2003-07-23.html (accessed on 20 December 2013). 140

With respect to the Mobutu case, see Richter (note 1), 564.

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Only as a ‘general rule’ mutual assistance proceedings have to be concluded in the form of a final and executable decision by a foreign court (Articles 74a (1), (3) and 80d IMAC). As the Federal Court has ruled in the Marcos case, Swiss authorities are not obliged to clarify the criminal origin of the respective assets as long as the proceedings in the foreign State comply with the international standards of fair trial, including fundamental human rights as being guaranteed by the European Convention on Human Rights141 and the International Covenant on Civil and Political Rights.142 Accordingly, assets can be returned prior to a final and executable order, whenever a summary examination reveals a high probability that the relevant assets originate from criminal conduct, given that the return of the latter to the country of origin is also in line with Switzerland’s interest in protecting its financial market.143 Nevertheless, international mutual assistance in criminal matters has not been very effective. In practice, Switzerland has returned illicit assets in a relatively small number of cases in the form of ad hoc solutions.144 In the case of Abacha (concerning Nigeria), detected assets were repatriated with the support of Nigeria and the World Bank, whilst Switzerland only monitored the return.145 In the end major parts of the repatriated assets (approximately US$ 200 million) were not used for any development project but mysteriously disappeared.146

141 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5. 142 International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171. See Swiss Federal Court, BGE 123 II 595 (note 50), para. E.4.; Gully-Hart (note 18), 175; Richter (note 1), 575. 143 See Swiss Federal Court, BGE 123 II 595 (note 50), para. E.5a; confirmed by id., BGE 131 II 169 (note 80). 144

See Swiss Federal Council, Dispatch (note 3), 3351 et seq., relating to the cases of Marcos (Philippines), Abacha (Nigeria), Montesinos (Peru) as well as to cases from Kazakhstan and Angola. 145 146

Ibid., Annex 1, 3352–3353.

See Stefan Boss, ‘Abachas Millionen sind verschwunden,’ Basler Zeitung (Basel, 5 December 2006), 1. See also Nigerian Network on Stolen Assets, Shadow Report of the Public Expenditure Management and Financial Accountability Review (PEMFAR) Monitoring Exercise, available at: www.evb.ch/ cm_data/Report_Abacha.pdf (accessed on 20 December 2013); World Bank, Report on the Utilization of Repatriated Abacha Loot: Results of the Field Monitoring Exercise, December 2006, available at: http://siteresources.worldbank.org/INTNIGERIA/Resources/Abacha_Funds_Monitoring_1221.pdf (accessed on 20 December 2013).

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c) Asset Sharing Assets being declared forfeited by a national court normally become State property,147 given that no third parties rights are impaired. If a foreign State is the victim of embezzlement or looting, this differs somewhat, as according to Article 11 of the Asset Sharing Act of 2004 (Asset Sharing Act),148 Switzerland can conclude agreements with foreign States on the sharing of assets that have been seized in Switzerland. Under the general rule of Article 12 (3) Asset Sharing Act, States assets shall be distributed equally between the country of origin and Switzerland.149 ‘Equal shares,’ however, is not a common concept in such contexts. United States and Canadian law provides for the sharing of assets according to the contribution of the single States to the detection and seizure of the assets.150 Article 12 (3) Asset Sharing Act permits exceptions from the equal share principle, particularly if the assets stem from the corruption of foreign officials or the crime affected important interests of the foreign State. With regard to such assets the Federal Council has declared that “for moral reasons” it had never and would never insist on the sharing of assets but rather continue its practice of returning them completely to the country of origin.151 Even so the application of the exception clause remains at the discretion of the Swiss authorities. It is true that the entrustment with discretionary power can serve the purpose of avoiding novel embezzlement; however, there remain doubts on whether this practice conforms to the binding principle of repatriation.152

147 Federal Council, Dispatch on the Asset Sharing Act (Botschaft zum TEVG), 24 October 2001, BBl 2002, 441, 442. 148

Swiss Federal Act on the Sharing of Confiscated Assets (Bundesgesetz über die Teilung eingezogener Vermögenswerte), 19 March 2004, SR 312.4. 149 See also Swiss Federal Council, Dispatch (note 147), 452 on alternative solutions being proposed in the drafting process. 150 See e.g. Section 7 Canadian Forfeited Property Sharing Regulations, Registration 1995-01-31, SOR/95-76, available at: http://laws-lois.justice.gc.ca/eng/regulations/sor-95-76/FullText.html (accessed on 27 February 2014). Cf. Jean B. Weld, International Co-Operation in the Recovery of Criminal Assets (March 2011), Resource Material Series No. 83, 28, 34, available at: www.unafei. or.jp/english/pdf/RS_No83/No83_07VE_Weld2.pdf (accessed on 20 December 2013). 151

See Swiss Federal Council, Dispatch (note 147), 474. See also Gully-Hart (note 18), 178 et seq.

152

See supra, II.A.2.b).(2) and infra, III.E.2. and III.IV.

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3. The Restitution of Illicit Assets Act a) Object and Purpose As mentioned above, the RIAA is a direct consequence of the debacle Switzerland faced in the cases of Mobutu and Duvalier.153 This Act applies to IMAC only subsidiarily, if mutual assistance procedures due “to the total or substantial collapse, or the unavailability of the national judicial system” in the State of origin of the looted assets cannot be completed.154 This formulation addresses “failed or fragile States,”155 which are either unable (Haiti in the Duvalier case) or utterly unwilling (Congo in the Mobutu case) to issue a request for legal assistance.

b) Freezing – As Being Demanded by the Interests of Switzerland The freezing of assets is a precondition for forfeiture, which again is conditional for the restitution to the country of origin. According to Article 2 RIAA, the Swiss government may order the freeze if (i) the assets have been “secured provisionally in the context of a process of mutual legal assistance in criminal matters instigated at the request of the country of origin,” (ii) the latter are at the disposal of a PEP or a ‘close associate’ of a PEP,156 (iii) the country of origin is unable to satisfy the requirements of mutual legal assistance proceedings owing to a failure of State structures,157 and (iv) “the safeguarding of Swiss interests demands that the assets be frozen.”

153

See supra, III.B.4.c.

154

Arts. 1, 2 (c) RIAA.

155

The Swiss legislator has adopted the World Bank’s definition of ‘fragile States.’ See Swiss Federal Council, Dispatch (note 3), 3313. 156

For the definition of PEPs, see supra, I.B.1.

157

See already supra, III.D.3.a). For more details, see Swiss Federal Council, Dispatch (note 3), 3333.

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Only if all conditions are satisfied, the assets can be frozen up to a maximum of ten years. The freezing order will expire, if no procedure for forfeiture is commenced within that period of time (Article 3 RIAA). During the freezing period an amicable settlement may be negotiated by the current owners of the frozen assets and the country of origin with the involvement of the Swiss Federal Department of Foreign Affairs and final approval by the Swiss Government (Article 4 RIAA). This corresponds to Article 57 (5) UNCAC suggesting the conclusion of amicable settlements in order to achieve, under the rules on restitution (Articles 8–10 RIAA), a rapid repatriation.

c) Forfeiture Assets being frozen can be forfeited according to Articles 5–7 RIAA provided that the “power of disposal” still rests with the PEP or their close associates. The unlawful origin of the assets, which is a prerequisite for forfeiture, can be presumed, if “the wealth of the person who holds power of disposal over the assets has been subject to an extraordinary increase” and “the level of corruption in the country of origin or surrounding the politically exposed person in question during his or her term of office was acknowledged as high” (Article 6 (1) (a) and (b) RIAA). By demanding an ‘extraordinary increase’ in the PEP’s wealth Swiss law clearly deviates from Article 20 UNCAC, which only speaks of a ‘significant increase.’ The Swiss Government has tried to justify this discrepancy by pointing out that Swiss law is more extensive than UNCAC in including ‘close associates.’158 However, compensation regarding another issue (i.e., including close associates) cannot provide for a proper implementation of the relevant provision – Article 20 UNCAC on significant increase. The person concerned may rebut the presumption of the unlawful origin by demonstrating that “in all probability the assets were acquired by lawful means” (Article 6 (2) RIAA). This is based on the assumption that owners must know about the origin of their assets (“know your assets” rule).159 In this manner, Article 6 (2)

158

Ibid., 3337.

159

Ibid., 3336.

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RIAA introduces a reversal of proof rule emulating the antecedent criminal law provision, which only applies to the assets of criminal organisations.160 In order to exclude similar outcomes as in the cases of Duvalier and Mobutu,161 forfeiture – at least in a failed State context – cannot be escaped by referring to a statutory limitation (Article 5 (3) RIAA). As soon as the forfeiture of assets is final and enforceable, the Swiss Confederation gains title to the assets for the purpose of initiating their restitution to the country of origin.162

d) Restitution With the RIAA, Switzerland for the first time has introduced a specific legal basis for the return of looted assets. Article 9 (1) RIAA now provides that “[f]orfeited assets shall be restituted in the form of financing programs of public interest.” Article 8 RIAA names the objectives of restitution that may constitute a ‘public interest.’ Accordingly, the restitution of forfeited assets must either improve the living conditions of the population or reinforce the rule of law in the country of origin.163 With these objectives, Swiss authorities are bound to condition the restitution. This may leave to the foreign State no other choice than either to accept any suggestion of the Federal Council on how to strengthen the rule of law in its domestic sphere, or give a discount to the respective PEP in order to win support for an amicable settlement with the formal holders of the assets. The country of origin does not on any account have any enforceable rights to the assets. According to the RIAA, the details of the restitution shall be specified by an agreement between Switzerland and the country of origin (Article 9 (2) RIAA). If no such agreement can be achieved, the Federal Council can determine the modalities of the restitution – a provision, which certainly will not encourage the latter to extensively respect the position of the looted State. If no mutual agreement is reached, 160

See supra, III.B.2.

161

See supra, III.B.4.c).

162

See Swiss Federal Council, Dispatch (note 3), 3335.

163

Additionally, a flat-rate charge of no more than 2.5 % of the total sum may be debited to cover the costs of freezing and returning the assets (Art. 10 RIAA), which more or less corresponds to Art. 57 (4) UNCAC.

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Article 9 (5) RIAA suggests the return of forfeited assets via international or national institutions under the supervision of the Federal Department for Foreign Affairs. Exactly the same method was applied in the case of Abacha – leading to the re-disappearance of the assets that were restituted to Nigeria.164

E. Compliance with UNTOC and UNCAC?

1. IMAC In the field of mutual legal assistance through IMAC, Swiss law seems to be, more or less, in compliance with UNTOC. As Article 14 (2) UNTOC shows with regard to restitution, it clearly grants discretion to the confiscating State: “shall […] give priority consideration to returning the confiscated proceeds.” Thus Switzerland does not violate UNTOC when exercising discretion even in cases where dictators and their entourage have been classified as a ‘criminal organisation.’ The same applies to the conclusion of asset sharing agreements on grounds of the Swiss Asset Sharing Act, which UNTOC explicitly permits (Article 14 (3)(b) UNTOC). Article 14 (2) UNTOC evidences that the exercising of discretion shall not undermine the rule that the denial of returning must be exceptional. Article 74a IMAC, however, falls short in cases where public funds are concerned (Article 57 (3)(a) UNCAC). The same applies to cases where the requesting State can claim ownership, or where the assets can be considered a compensation for recognised damage on the part of the requesting State (Article 57 (3)(b) UNCAC). In these instances the confiscating State ‘shall return’ all assets, provided that the preconditions for the application of Article 57 (3) UNCAC are fulfilled. As Article 57 (3) UNCAC refers to Article 55 (3) and then to Article 46 (21) UNCAC, a request for co-operation can be repelled, e.g. with respect to sovereignty, security, ordre public or other essential interests, and even with respect to national law. Still, the general subjection of victim States to asset sharing ‘agreements’ or conditional repatriation must be considered to be in violation of the principle of repatriation (Article 51 UNCAC) reflecting the very essence of UNCAC. 164

See supra, III.D.2.b).

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Though control seems essential for securing assets after their return against rapid disappearance, monitoring in the context of the StAR Initiative and UNCAC cannot but take place on a voluntary basis. Accordingly, the unilateral imposition of measures regarding the monitoring of funds is considered a violation of UNCAC.165 Ultimately there exists a dilemma: Switzerland cannot be held accountable for implementing these new conditions and at the same time for not having taken all reasonable care to prevent assets from novel disappearance in the State of destination.166

2. RIAA With the RIAA the Swiss legislator has introduced a legal basis for restitution, which applies to failed and fragile States only, and which does not grant to foreign States any enforceable rights. Considering the situation of developing States, which are not in that last stage of agony, Swiss law continues to lack reliable means for implementing the international principle of repatriation (Article 51 UNCAC). Therefore, the question arises why the RIAA has not been designed in a way as to cover all PEP cases, especially in connection with a more general rule on the reversal of proof.167 The Swiss legislator instead puts its focus on a very narrow range of cases where the damage to Switzerland’s reputation could be devastating. This is emphasised by the fact that assets shall only be frozen, if Switzerland’s interest so demands (Article 2 (c) RIAA). The RIAA also does not mention the compensation of victims. This is all the more surprising, since Switzerland itself had supported this concern in the negotiations of UNCAC,168 and even ratified international instruments explicitly addressing it

165

UNODC/World Bank, StAR Initiative (note 56), 24. See also Ignasio Jimu, Managing Proceeds of Assets Recovery: The Case of Nigeria, Peru, the Philippines and Kazakhstan, Basel Institute on Governance Working Paper Series No. 06, 17, available at: www.baselgovernance.org/fileadmin/docs/ publications/working_papers/Managing_Prodceeds_of_AR_Final.pdf (accessed on 20 December 2013). 166

For further elaboration, see infra, IV.

167

See also Mark Pieth, Asset Recovery – Der Umgang der Schweiz mit Potentatengeldern, in: Ackermann/Hilf (eds.) (note 136), 31, 41. 168

Cf. FDFA (note 11).

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(Articles 57 (3) UNCAC and Article 25 (2) UNCTOC).169 The Swiss Federal Court, too, found the direct return of assets to be conditional on the obligation to examine the compensation claims of the victims of corruption in a fair judicial procedure.170 However, international law lacks clarity in this point. Some authors derive from Article 57 (3) UNCAC which “give[s] priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of the crime,” that victims should be compensated primarily in cases of “corruption offences outlined in the Convention, except for cases of embezzlement or in cases where the State establishes prior ownership or damages.”171 Such an obligation has clearly not become part of the RIAA.172 Switzerland has tried to argue that individual victims would automatically be included, as the respective assets after their recovery must be used to the benefit of the whole people.173 However, the comparison between the individual interest of a particular victim and the collective (public) interest cannot be considered convincing.174 In particular, the question arises whether the RIAA conflicts with the principle of repatriation. For example whereas Article 57 (3) UNCAC requires the return of assets in any case where such property or its surrogate is concerned, the RIAA applies only if mutual legal assistance has proven unsuccessful owing to the failure of State structures. Formally, it can be objected that the prerequisite for the application of Article 57 UNCAC is the successful request for mutual legal assistance according to Articles 47 (21) and 55 (3) UNCAC. Consequently, conditionality pursuant to Articles 8 and 9 RIAA cannot be considered a violation of any specific UNCAC provisions. However, the general principle of repatriation remains an issue, as Swit-

169

See also Marc Henzelin, Le dédommagement des victimes étrangères dans le cadre d’une procédure suisse d’entraide internationale en matière pénale v. la restitution des avoirs à l’étranger, in: Sandrine Giroud/Alvaro Borghi (eds.), État de droit et confiscation internationale (2010), 147, 154 et seq. 170

See Swiss Federal Court, BGE 123 II 595 (note 50), with respect to mutual legal assistance.

171

Cf. Theodore S. Greenberg et al., Stolen Asset Recovery – A Good Practices Guide for NonConviction Based Asset Recovery Forfeiture (2009), 104, available at: www.coe.int/t/dghl/monitoring/ moneyval/web_ressources/IBRDWB_Guidassetrecovery.pdf (accessed on 28 February 2014); Art. 57 (3) UNCAC. 172 Cf. Flavia Bianchi/Stefan Heimgartner, Die Rückerstattung von Potentatengeldern, AJP (2012), 353, 368. 173

Cf. Swiss Federal Council, Dispatch (note 3), 3340.

174

Cf. Bianchi/Heimgartner (note 172), 368.

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zerland is in the position to unilaterally determine on how the State of destination must improve its domestic structures in order to get its own money back.

IV. Returning Assets to Developing Countries – The Legal Challenge A. Subjecting Restitution to Conditions – The Dilemma of Weak Institutions

While it remains the first priority of all international efforts to repatriate looted assets to the plundered (in particular developing) States, completing the task poses a fundamental problem: will the developing State, which formerly failed to prevent the embezzlement of public money, be able to effectively protect the repatriated assets in the future? Furthermore, can the uncertainty of this point legitimatise the imposition of conditions requiring that the assets must be used for specific purposes as being conceded, e.g. by Switzerland? The dilemma results from the need of choosing between the danger of a novel loss of public property and the risk of slipping into a new form of colonialism.

B. Conditionality in Public International Law

Conditioning the return of assets, as required by Articles 8 and 9 RIAA, might be contradictory to the international law principles of State sovereignty and non-intervention (Article 2 (7) UN Charter). However, the State of origin by ratifying the relevant conventions could be said to have agreed to subjecting the repatriation of assets to conditions, and to negotiate an agreement on the terms of return (Article 14 (3) UNTOC and Article 57 (5) UNCAC). It is also recognised that the returning State may keep a modest share in the confiscated assets for expenses.175 Additionally, reference should be made to the fact that conditionality has always been practised by international organisations, where loans are being granted by international financial

175

See e.g. Art. 57 (4) UNCAC. See also FATF, Recommendation 38 (note 59).

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institutions (e.g. International Monetary Fund or World Bank)176 or where development aid is being allocated (e.g. European Union’s Cotonou Agreement).177 State practice also tends to conditionality. For instance, it is the policy of the United States to dedicate recovered proceeds of corruption to programs that will benefit the people who have suffered from corrupt activities.178 However, there is much more sensibility today for the involvement of developing countries in the setting of conditions.

1. Interference with the Domaine Réservé? A violation of the principle of non-intervention can be assumed only, if the respective act of a foreign State directly or indirectly interferes with the domaine réservé, with coercion, and aims at imposing a certain conduct on a sovereign State.179 Although the scope of purely domestic affairs180 diminishes progressively,181 the domaine réservé still allows to each State the “choice of a political, economic, social and cultural system and the formulation of foreign policy.”182 This freedom of choice can be considered to include the choice of States on the use of public resources. On the other hand, Switzerland as the country, where the respective assets have been discovered 176 See Cesare Pinelli, Conditionality, Max Planck Encyclopedia of Public International Law (MPEPIL), available via: www.mpepil.com (accessed on 20 December 2013). 177 See Partnership Agreement 2000/483/EC between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, 23 June 2000, OJ 2000 L 317, 3 (Cotonou Agreement). See in particular Arts. 55 et seq. Cotonou Agreement. 178 Linda M. Samuel, Recovering Proceeds of Corruption, Third Regional Seminar on Good Governance for Southeast Asian from 9 to 11 December 2009 by the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI), 8, available at: www.unafei.or.jp/english/pdf/PDF_ThirdGGSeminar/Third_GGSeminar_P3-9.pdf (accessed on 20 December 2013). 179 Philip Kunig, Prohibition of Intervention, MPEPIL, para. 1, available via: www.mpepil.com (accessed on 20 December 2013). See also GA Res. 2625 (XXX) of 24 October 1970 (Friendly Relations Declaration). 180 Institut de Droit International, Resolution: La détermination du domaine réservé et ses affaires, 29 April 1954, reprinted in: Annuaire de l’Institut 45 (1954), II, 292. 181 182

Cf. Antonio Cassese, International Law (2001), 99; Kunig (note 179), para. 3.

International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, para. 205.

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and by which the assets are to be returned, is unavoidably involved. Considering the fact that the combat against transnational corruption and money laundering has become a matter of international concern,183 the final restitution of affected assets cannot be treated differently. Accordingly, the requested State has a say – or rather responsibility – when it comes to the modalities of the return. From this it follows that common responsibility cannot justify any form of conditioning but rather advocates proportionality; the assessment of the admissibility of conditions ought to depend on the necessity and intensity of the interference with the country concerned. Conditional repatriation of illicit assets interferes with the internal affairs of the country of origin, if the conditions do not strictly stick to the purpose of avoiding new losses but rather seek to influence the political, economic, social and cultural system of the State concerned or even serve the purposes of the returning State.

2. Element of Coercion? Interference with the internal affairs of another State constitutes a breach of international law only if it is implemented by coercive measures. Following the commonly accepted ‘extended definition,’184 such measures can include the use of force or other methods such as economic pressure if being applied in order to compel a State “to adopt a course of action contrary to its will and advantageous to the coercive State.”185 However, not every form of economic pressure can be regarded as coercion,186 notwithstanding the fact that Article 1 Charter of Economic Rights and Duties seeks to outlaw interference from outside “in any form whatsoever.”187 Here again, one has to differentiate with respect to the intensity of the measure, the rela183

See Vlassis/Gottwald (note 42), 368.

184

Cf. Horst Fischer, § 59: Gewaltverbot, Selbstverteidigungsrecht und Intervention im gegenwärtigen Völkerrecht, in: Jörn Ipsen et al. (eds.) Völkerrecht (5th ed. 2004), 1067, para. 57. 185 Cassese (note 181), 99. On economic coercion, see Tobias Trautner, Die Einmischung in innere Angelegenheiten und die Intervention als eigenständige Verbotstatbestände im Völkerrecht (1997), 78 et seq. 186 Cf. Detlev C. Dicke, Die Intervention mit wirtschaftlichen Mitteln im Völkerrecht (1978), 155; Kunig (note 179), para. 25. 187

See Art. 1 Charter of Economic Rights and Duties of States, GA Res. 3281 (XXIX) of 12 December 1974.

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tionship of means and ends, and the actual result in the State that allegedly is being coerced.188 This standard could become more manageable in practice, if case groups relating to, for example, embargos, development aid, or asset recovery, would be established.189

3. Imposing a Certain Conduct on Developing Countries? The repatriation of assets differs in essence from granting developing aid, because it is not ‘donation’ but rather restitution to the legitimate owner. On the other hand, the requesting State regularly lacks title and thus depends on the good will of the returning State. With regard to this similarity it may be inspiring to consider the terms of development aid as a basis for further assessment. The refusal to grant developing countries economic assistance does not violate the principle of non-intervention,190 even if Article 4 (2) of the UN Declaration on the Right to Development is being interpreted in a way as to establish a customary duty to generally provide for development aid.191 Therefore, any donor State principally remains free to choose the recipient and set the conditions.192 This is also reaffirmed by the Paris Declaration on Development of 2005 (Paris Declaration)193 and the Accra Agenda for Action of 2008.194 Contrariwise, both documents emphasise the concept of ‘ownership’ of the receiving States when attributing to them “effective leadership over their development policies, and strategies and co-ordinate develop188 Cf. Fischer (note 184), para. 63; Klaus Bockslaff, Das völkerrechtliche Interventionsverbot als Schranke aussenpolitisch motivierter Handelsbeschränkungen (1987), 82 et seq. 189

Cf. Fischer (note 184), para. 62.

190

See Dicke (note 186), 225 et seq.; Kunig (note 179), para. 26; Fischer (note 184), para. 62. For a more restrictive view, see Philip Dann/Michael Riegner, Foreign Aid Agreements, MPEPIL, para. 12, available via: www.mpepil.com (accessed on 20 December 2013); see also Cassese (note 181), 99. 191

See UN Declaration on the Right to Development, GA Res. 41/128 of 4 December 1986, Annex. For a discussion on denying aid, see Kunig (note 179), para. 26. 192 Cf. Dicke (note 183), 227; Fischer (note 184), para. 62. On foreign aid agreements, see Dann/ Riegner (note 190). 193

OECD, Paris Declaration on Aid Effectiveness, 2 March 2005, available at: www.oecd.org/ development/effectiveness/34428351.pdf (accessed on 20 December 2013). 194

OECD, Accra Agenda for Action, 4 September 2008, available at: www.oecd.org/development/ effectiveness/34428351.pdf (accessed on 20 December 2013).

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ment actions” (Paragraph 14 Paris Declaration). Paragraph 16 Paris Declaration accordingly recommends that donors should commit to draw their conditions from the receiving State’s national development strategy. One may derive from this that the repatriation of assets must not fall below the limitations applicable to a mere donation: if contemporary international law obliges donor States to respect the leadership of the developing countries over their development policies, even more respect ought to be shown with regard to States seeking to regain their former property. The ‘principle of ownership’ thus applies all the more to the restitution of looted assets to the countries of origin.

C. Just and Fair Restitution

If combating corruption and returning assets is a common concern of mankind, Switzerland is under a responsibility to safely repatriate the money so that it can regain its former public purpose. Nonetheless, how can it be ensured that, the Swiss government, for example, in acting like a trustee, formulates conditions which are in the best interests of the developing State and not in its own best interests? And why must a developing country agree to use recovered assets for determined purposes in order to get its own money back? If the majority of the people of a developing country wish to spend the returned money on the construction of a luxurious mosque, can it be legitimate to make the restitution conditional on the construction of elementary schools, without violating the principle of self-determination? On the one hand, the developing State must prove that returned assets will continue to serve public purposes. This applies all the more, if neglecting due diligence on the side of the receiving State has amounted to a violation of international treaties like UNTOC or UNCAC. On the other hand, it is for the developing State alone to determine the public purposes for which recovered assets should be spent. The right to self-determination applies to every State, including those that do not have any capacity to protect public property from further misuse and embezzlement. According to the core principles of the Paris Declaration and the Accra Agenda for Action, it is now the norm even for aid recipients to formulate on a democratic basis their own national development strategies (principle of ownership), for donors to support these strategies (principle of alignment), and for both donors and recipients to jointly

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bear responsibility for achieving these goals (principle of mutual accountability).195 The same principles should, therefore, generally apply to the repatriation of assets. Returning looted assets to developing countries often faces difficulties which are similar to those occurring in the context of lost art,196 given that developing States, due to their weak governmental structures or the fragility of public peace, are often unable to produce a final court decision or pursue a formal procedure which is essential for gaining mutual legal assistance in the traditional way. Third parties claims or good faith issues may also pose further obstacles. In this situation, an unconventional approach is needed in order to return the respective property to its rightful owners. The principle of “just and fair solution” as enshrined in the Washington Principles197 on lost art can be regarded as a model principle for the management of asset claims which just like lost art, though they can be attributed to a victim or certain group of victims, cannot be enforced. According to this principle, the victims of the Holocaust shall be enabled to regain lost art, even if they cannot fulfil the exigencies of the formal law. In the context of this article, a “just and fair solution” implies that a claim of a developing State to its looted assets must not be rejected for mere formalistic reasons. ‘Just’ in this context means that the State of origin must get its former belongings back; ‘fair’ indicates that all necessary safeguards can be demanded by the requested State in order to prevent any further misuse of the same assets. However, the developing country must remain free to invest them for any public purpose of its own choosing.

D. Conclusion: Success Control The restitution of assets illicitly acquired by PEPs, their families and followers may fail for a plenitude of reasons, which have been shown in detail in this article. On the 195

Ibid.

196

See e.g. Explanatory Statement of the Commission for Looted Art in Europe, in: Report on a legal framework for free movement within the internal market of goods whose ownership is likely to be contested, 26 November 2003, 2002/2114(INI), 7, available at: www.lootedartcommission.com/ european-union (assessed on 20 March 2014). 197 See in particular Principle 9 Washington Conference Principles on Nazi-Confiscated Art, 3 December 1998, available at: www.lootedartcommission.com/Washington-principles (accessed on 20 December 2013): “If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.” See also ibid., Principle 8 referring to a “just and fair solution” that “may vary according to the facts and circumstances surrounding a specific case”.

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one hand, international law has considerably progressed, though it still leaves much room for discretion in the national interest; on the other hand, traditional mutual assistance law referring to national law and ordre public has remained in the form of a subtle culture. One of the main results of this study is that the interaction of international law and national law as well as the involvement of a variety of norm-producing actors create a complexity of regulation that after all may serve the purposes of the perpetrators. It is to be learnt from the Swiss example that national law can implement international law overall, but nevertheless may fail to deliver results. The RIAA in particular is likely to turn out to establish facade law rather than to tackle the problem. This leads to the conclusion that with respect to the complexity of the issue, i.e. the inter-operation of national and international law, State and private actors, more ‘success control’ is needed. Considering that UNCAC is based on an underlying principle of repatriation, States Parties must account for not repatriating illicit assets effectively within a reasonable period of time.

GERMAN PRACTICE

The German-Gabonese Initiative on Poaching and Illegal Wildlife Trafficking: Is There a Role for the UN Security Council? CHRISTOPHE EICK(

Introduction: Poaching and illegal wildlife trafficking are on the rise at an alarming rate. A recent study has documented a clear increase in the level of elephant poaching on the African continent, with tens of thousands slaughtered for their ivory in 2011 and 2012 alone.1 In the Central African sub-region (including northern Cameroon and northern parts of the Central African Republic), there has been a 76 % decline in elephant populations in the last two decades.2 Gabon’s Minkebe National Park, once home to Africa’s largest forest elephant population, has lost two thirds of its elephants since 2004.3 Some of the most affected areas lie in the Democratic Republic of the Congo, including the Garamba, Virunga and Kahuzi-Biega national parks, all designated UNESCO World Heritage sites.4 The reasons behind this recent surge in elephant poaching are diverse. Researchers have identified drivers at the global, national and local levels: increasing consumer (

Permanent Mission of Germany to the United Nations in New York, Head of Political Department.

1

United Nations Environmental Programme (UNEP)/Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)/International Union for Conservation of Nature (IUCN)/Wildlife Trade Monitoring Network (TRAFFIC), Elephants in the Dust: The African Elephant Crisis. A Rapid Response Assessment (2013), 32. 2

Ibid., 35.

3

Wildlife Conservation Society, Press Release, 11,000 Elephants Slaughtered in National Park, 6 February 2013. available at: http://www.wcs.org/press/press-releases/gabon-elephant-slaughter.aspx (accessed on 19 December 2013). 4

UNEP/CITES/IUCN/TRAFFIC (note 1), 35; Jeffrey Gettleman, Elephants Dying in Epic Frenzy as Ivory Fuels Wars and Profits, New York Times (New York, 3 September 2012), available at: http:// www.nytimes.com/2012/09/04/world/africa/africas-elephants-are-being-slaughtered-in-poachingfrenzy.html?_r=0 (accessed on 19 December 2013).

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demand in countries like China, poor law enforcement at the national level, and local hunting for bushmeat, exacerbated by increased poverty, all have contributed to this tragedy. Added to this is a relatively new phenomenon: Poaching and illegal wildlife trafficking is becoming an important source of funding for armed and terrorist groups. This is particularly true of the Lord’s Resistance Army (LRA), operating in Central Africa, and Janjaweed rebel groups in Chad and Sudan.5 There are also reports that the Al Shabab in Somalia are involved in poaching and illegal wildlife trafficking in order to fund their terrorist activities.6 In the Democratic Republic of the Congo, members of the Congolese Army have been implicated as well.7 Like blood diamonds from Sierra Leone or plundered minerals from Congo, ivory is the latest conflict resource in Africa, now fueling conflicts across the continent.8 It is currently estimated that the total value of the illegal global wildlife trade is between US $ 8 and 10 billion annually, and that wildlife crime now ranks equal among trafficking in drugs, arms and human beings in terms of profits.9 Poaching and illegal wildlife trafficking have thus become much more than a conservation issue. In fact, organisations involved in wildlife conservation have emphasised the security dimensions and called on the international community to treat it as such.10 In light of these developments, Germany and Gabon, who both recently served on the United Nations (UN) Security Council, initiated a number of briefings and discussions in New York on the subject. In June 2013, they organised a panel discussion on “Poaching as a Threat to International Peace and Security: Options for the

5

UNEP/CITES/IUCN/TRAFFIC (note 1), 41.

6

Johan Bergenas/Rachel Stohl/Ochieng Adala, Killing Lions, Buying Bombs, New York Times (New York, 9 August 2013), available at: http://www.nytimes.com/2013/08/10/opinion/killing-lions-buyingbombs.html (accessed on 19 December 2013). 7 Security Council (SC), Final Report of the Group of Experts on the Democratic Republic of the Congo, 12 October 2012, UN Doc. S/2012/843 (2012), Annex, paras. 127–138. 8

Gettleman (note 4).

9

Yuri Fedotov/John E. Scanlon, Wildlife crime ranks among trafficking in drugs, arms and humans, The Guardian (London, 26 September 2013), available at: http://www.theguardian.com/environment/ 2013/sep/26/wildlife-crime-trafficking-drugs-arms (accessed on 19 December 2013). 10 See the written testimony of CITES Secretary-General John E. Scanlon, United States Senate Foreign Relations Committee Hearing, Ivory and Insecurity: The Global Implications of Poaching in Africa, 24 May 2012, available at: http://www.cites.org/eng/news/sg/2012/20120525_SG_US-Senate_ testimony.php (accessed on 19 December 2013); Bergenas/Stohl/Adala (note 6).

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United Nations.”11 On the margins of the General Debate of the 68th session of the UN General Assembly, the President of Gabon and the Foreign Minister of Germany chaired a high-level meeting that brought together many of the key actors involved in the fight against wildlife crime.12 The UN and Member States are beginning to address this challenge. Within the UN system, the UN Office on Drugs and Crime in particular plays an important role in terms of strengthening the capacity of governments to investigate and prosecute crimes of poaching and illicit wildlife trafficking. But this may not be sufficient. The focus of this article is on the role the Security Council could play in combatting poaching and illegal wildlife trafficking. As will be shown, the Council has different options and tools at its disposal that makes it uniquely placed to address this scourge, without encroaching on the competencies of other UN organs. The Security Council and Conflict Resources: The Security Council has for many years recognised that natural resources can play a role in armed conflict and post-conflict situations.13 In 2005, the Council expressed its “determination to take action against illegal exploitation and trafficking of natural resources and high-value commodities in areas where it contributes to the outbreak, escalation or continuation of armed conflict.”14 In 2007, the Council noted that, “in specific armed conflict situations, the exploitation, trafficking, and illicit transfer of natural resources have played a role in areas where they have contributed to the outbreak, escalation or continuation of armed conflict.”15 As recently as in April 2013, the Council expressed

11 See Letter of Gabon and Germany to the President of the Security Council, 23 July 2013, UN Doc. S/2013/454 (2013). 12 Outcome of the high-level discussion on “Poaching and illicit wildlife trafficking: a multidimensional crime and a growing challenge to the international community,” organised by Gabon and Germany on 26 September 2013 in New York, see Letter from the Permanent Representatives of Gabon and Germany to the United Nations addressed to the Secretary-General, 28 October 2013, UN Doc. A/ 68/553 (2013). 13 See Security Council Report, Natural Resources and Conflict, 20 June 2007, available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Update%20Report%2020%20June%202007_Natural%20Resources%20&% 20Conflict.pdf (accessed on 19 December 2013); Heiko Nitzschke/David Malone, Economic Dimensions of Civil War, in: Graham Brown/Arnim Langer (eds.), Elgar Handbook of Civil War and Fragile States (2012), 72 et seq. 14

SC Res. 1625 of 14 September 2005.

15

SC, Presidential Statement of 25 June 2007, UN Doc. S/PRST/2007/22 (2007).

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its “concerns at the role played by the illegal exploitation of natural resources in fueling some past and current conflicts.”16 Specifically, the Council has recognised that revenues from the illicit extraction of natural resources enable armed groups to finance their activities. The Council has imposed embargoes on oil and diamonds in Angola and Sierra Leone, diamonds and timber in Liberia, diamonds in Côte d’Ivoire17 and, most recently, banned charcoal exports from Somalia.18 The Council has established sanctions committees in order to monitor and enforce existing sanctions regimes. And it has mandated a significant number of missions that operate in countries in which the proper management of natural resources, in particular extractive industries, are key for the stability of the countries concerned and for the wider region. This being said, the Security Council’s role in addressing the illegal exploitation of natural resources has not been without controversy. This controversy is linked to differences of opinion as to the extent of the Council’s mandate in preventing conflicts and in addressing “threats to international peace and security.” Although the Council has declared, at the level of heads of States and governments, that “the nonmilitary sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security,”19 there has always been significant resistance to the Council taking conflict prevention measures of a general, abstract nature.20 This includes Council members that have expressed the view that tackling the illegal exploitation of resources outside of specific conflict situations went beyond the mandate of the Council.21 A draft Presidential Statement circulated by the United Kingdom in 2013 which would have addressed the issue of conflict resources more broadly thus failed to garner the necessary consensus among Council 16

SC, Presidential Statement of 15 April 2013, UN Doc. S/PRST/2013/4 (2013).

17

See SC Res. 1173 of 12 June 1998 on Angola; SC Res. 1925 of 28 May 2010 on the Democratic Republic of the Congo; SC Res. 1306 of 5 July 2000 and SC Res. 1446 of 4 December 2002 on Sierra Leone; SC Res. 1521 of 22 December 2003 and SC Res. 1903 of 17 December 2009 on Liberia. 18

SC Res. 2036 of 22 February 2012.

19

SC, Presidential Statement of 31 January 1992, UN Doc. S/23500 (1992).

20

See Nico Krisch, Article 39, in: Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary (3rd ed. 2012), 1289 et seq. 21

See e.g. the position of the Russian Federation as expressed in the Council’s open debate on conflict prevention and natural resources: how can the effective and transparent management of natural resources in conflict-affected States contribute to international peace and security?, SC, Provisional Verbatim Record of the 6982th Meeting, 19 June 2013, S/PV.6982, 16.

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members.22 However, even those Council members that adopt a more narrow view of the Council’s remit agree that the Council may consider the potential link between the management of natural resources and the prevention of conflicts on a case-by-case basis.23 It was on this basis that the Security Council, in December 2012, and in the context of the conflict in the Central African Republic (CAR), recognised elephant poaching and related illegal smuggling as a possible source of illicit financing of an illegal armed group (the Lord’s Resistance Army).24 It was the first time that poaching and illegal wildlife trafficking were referred to in a Council decision. This was followed by another Presidential Statement in which the Council called on the UN Secretary-General to report on “the LRA’s logistical networks and possible sources of military support and illicit financing, including alleged involvement in elephant poaching and related illicit smuggling.”25 And on 10 October 2013, again in the context of the Central African Republic, the Council adopted a resolution in which it noted (in a preambular paragraph) that “poaching and trafficking of wildlife are among the factors that fuel the crisis in the CAR.”26 Options for the Security Council: Based on past and current experience in the field of conflict resources, the Security Council has a variety of tools at its disposal that can help tackle the issue of poaching and wildlife trafficking, without encroaching on the competencies of other UN organs or agencies. Embargo on Ivory or Other Wildlife Commodities: Although the Security Council has in the past imposed embargoes on conflict resources, these have always been country-specific and linked to a conflict situation. A general ban on ivory or other wildlife commodities outside a specific conflict-situation would in all likelihood be met with significant resistance by Council members and non-members alike. It would be perceived as a ‘legislative’ measure of the Council which would in any event 22

The Presidential Statement would have been adopted as part of the open debate in UN Doc. S/ PV.6982 (note 21); see Letter of the United Kingdom of 6 June 2013, UN Doc. S/2013/334 (2013). 23

For statements by the representatives of the Russian Federation and Guatemala in an open debate, see SC (note 21), 16, 19. 24

SC, Presidential Statement of 19 December 2012, UN Doc. S/PRST/2012/28 (2012).

25

SC, Presidential Statement of 29 May 2013, UN Doc. S/PRST/2013/6 (2013).

26

SC Res. 2121 of 10 October 2013. SC Res 2127 of 5 December 2013, also on the CAR, contains a similar preambular paragraph.

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‘encroach’ on the prerogatives of other UN organs, notably the UN General Assembly. However, a country-specific ban on ivory or other wildlife commodities could very well be one of the options the Security Council may wish to examine further. Once the Council acknowledges, as it has in the case of the Central African Republic, that poaching and illegal wildlife trafficking are among the factors that fuel a particular crisis, the necessary link between ‘peace and security’ and Security Council action would appear to be strong enough to support such a specific embargo. The fact that ivory and other wildlife commodities generally fall under existing restrictions, such as those agreed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),27 would not constitute an obstacle to this type of measure by the Council. In essence, it would then serve as a reinforcing measure and as an additional basis for the imposition of sanctions. Such a measure would send a clear message to governments, industry and consumers about what not to buy. Individual Sanctions: The Security Council could impose sanctions (‘targeted measures’) against individuals, entities and groups involved in poaching and illegal wildlife trafficking. These measures would typically involve travel bans and asset freezes. The Council has already taken an important step in this regard. In its Resolution 2134 (2014) of 28 January 2014, the Council introduced a new listing criterion in the framework of the recently created sanctions regime on the Central African Republic (CAR).28 With this resolution, the Sanctions Committee will be in a position to impose sanctions against individuals and entities “providing support for armed groups or criminal networks through the illicit exploitation of natural resources, including diamonds and wildlife and wildlife products, in the CAR.”29 Only two days later, the Council added a similar listing criterion to the existing sanctions regime on the Democratic Republic of the Congo (DRC).30 In addition, the Council called on the DRC and the States in the Great Lakes region to “cooperate at the regional level to investigate and combat regional criminal networks and armed groups 27

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 3 March 1973, UNTS 993, 243. 28

The sanctions regime on the CAR was originally established by SC Res. 2127 (2013) of 5 December 2013. 29

SC Res. 2134 (2014) of 28 January 2014, para. 37 (d) (emphasis added).

30

SC Res. 2136 (2014) of 30 January 2014, para. 4 (g).

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involved in the illegal exploitation of natural resources, including wildlife poaching and trafficking.”31 It will now be up to the respective sanctions committees to list individuals (or entities) that meet this criterion. One should note that these measures are linked to particular crises and conflicts. But it is encouraging – and fully in line with the German-Gabonese initiative – that the Council has been willing to specifically include poaching and wildlife trafficking as designating criteria for targeted measures. As is the case with other individual sanctions, these targeted measures seek to disrupt nefarious activities and to influence the behaviour of those concerned. While the effectiveness of such sanctions on the ground is sometimes put into question, its preventive function should not be underestimated.32 Panel of Experts: The Security Council should also look into the useful role Panels of Experts (sometimes also called Groups of Experts) may play. These panels are small, civilian fact-finding teams, mandated by the Council to give advice on specific issues. Its members are appointed by the Secretary-General, after consultation with Council members. The panels have made major contributions towards understanding how natural resources finance arms and armed groups. While they are usually set up within the framework of a sanctions regime in order to assist in the implementation of sanctions against countries, individuals and groups who threaten peace and security, there is nothing preventing the Council from mandating a panel of experts outside such a regime. In fact, in 2000, years before it created a Sanctions Committee on the DRC, the Council had requested the Secretary-General to establish an expert panel “on the illegal exploitation of natural resources and other forms of wealth in the Democratic Republic of the Congo.”33 The panel’s report eventually led to the imposition of sanctions and ‘due diligence’ guidelines on the exploitation of natural resources in the DRC. Looking at the current work of panels of experts in the framework of existing sanctions regimes, it is interesting to note that the Group of Experts on the DRC 31

Ibid., para. 24 (emphasis added).

32

See Nico Krisch, Article 41, in: Simma et al. (note 20), 1313–1314; Security Council Report, Sanctions (Special Research Report), 25 November 2013, available at: http://www.securitycouncilreport. org/special-research-report/un-sanctions.php (accessed on 23 December 2013). 33

SC, Presidential Statement of 2 June 2000, UN Doc. S/PRST/2000/20 (2000).

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recently included a chapter on poaching and ivory trade in Eastern DRC and neighbouring countries in one of its reports to the Sanctions Committee.34 It has also investigated criminal networks within the Congolese armed forces, including the Chief of Staff of Land Forces, that were cooperating with armed groups in certain parts of the DRC in poaching and wildlife trafficking.35 Apart from forming a basis for the imposition of sanctions against individuals and groups, these reports from independent experts, generally published as documents of the Security Council and publicly available, often serve the purpose of ‘naming and shaming.’ In some instances, the States concerned take action – in the case of the Chief of Staff of Land Forces in the DRC, the publication of the report of the Group of Experts that had linked him to poachers and armed groups led to his suspension and replacement.36 The establishment of a new Panel of Experts specifically on poaching and wildlife trafficking in Africa and its links to conflicts would probably constitute one of the most promising measures the Council could take at the present time, barring more stringent measures. In the meantime, the Council could request the Group of Experts on the DRC to conduct more in-depth analyses of the problem in the DRC and the region.37 Peacekeeping Operations and Missions Mandated by the Council: The Security Council has mandated a number of peacekeeping operations in regions affected by poaching and illegal wildlife trafficking: UN-led peacekeeping operations in the Democratic Republic of the Congo (MONUSCO) and in South Sudan (UNMISS), a Special Political Mission in the Central African Republic (BINUCA), as well as AU-led peacekeeping operations in the Central African Republic (MISCA) and in Somalia (AMISOM). The Council also oversees the activities of regional offices in the region, notably the UN Regional Office for West Africa in Abidjan (UNOWA) and the UN Regional Office for Central Africa in Libreville (UNOCA). While the 34 SC, Midterm Report of the Group of Experts on the Democratic Republic of the Congo, 19 July 2013, UN Doc. S/2013/433 (2013), paras. 198–201. 35

SC, Final Report (note 7), paras. 127–138.

36

SC, Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo, 15 February 2013, UN Doc. S/2013/96 (2013), 2. 37

The latest Report of the Group of Experts already contains some valuable information on the subject, see UN Doc. S/2014/42 (2014), Annex, paras. 225–238.

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respective focus of these operations and missions vary, as do the resources at their disposal, the Security Council may wish to discuss what role they could play in addressing poaching and wildlife trafficking. In a recent briefing to the Council, the Head of UNOCA announced that his Office would identify areas of cooperation with concerned governments on the issue of poaching.38 In the case of the UN’s peacekeeping operation in the DRC (MONUSCO), one could very well envisage security operations to extend State authority over national parks and other affected regions and dislodge poachers and armed groups involved in wildlife trafficking. Capacity building is another area that many peacekeeping operations and missions could offer to affected countries and regions, be it in the area of customs, security services or national park rangers. Again, the Security Council has taken similar measures in the past, in the context of conflicts financed and fuelled by natural resources.39 Where peacekeeping operations and missions operate alongside Panels of Experts mandated to give advice on and monitor sanctions, it will be important to ensure close cooperation between these entities, given their mutually supporting roles and shared interests. Conclusion: As the discussions on poaching and illicit wildlife trafficking initiated by Germany and Gabon at the UN in 2013 have shown, the threat to international peace and security posed by poaching and illegal wildlife trafficking is very real. It thus comes to no surprise that the issue has been raised in the Security Council. The Council has a variety of tools and instruments at its disposal to address this threat, and it should be encouraged to make use of them. Looking beyond the Security Council, a response to the threat posed by poaching and illegal wildlife trafficking will have to include source, transit and destination States. What is needed is a truly collective effort, one that involves not only the UN but States acting individually and collectively, as well as partnerships with civil society and non-governmental organisa38

Briefing by the Special Representative of the Secretary-General Abou Moussa in: SC, Provisional Verbatim Record of the 7065th Meeting, 20 November 2013, UN Doc. S/PV.7065 (2013), 2–3; see also Report of the Secretary-General on the Activities of the United Nations Regional Office for Central Africa and on the Lord’s Resistance Army-affected Areas, 14 November 2013, UN Doc. S/ 2013/671 (2013), 3. 39 See UNEP, Greening the Blue Helmets: Environment, Natural Resources and UN Peacekeeping Operations (2012), 42–51, available at. http://www.un.org/en/peacekeeping/publications/UNEP_ greening_blue_helmets.pdf (accessed on 19 December 2013).

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tions.40 As a sign of their further commitment to this effort, Germany and Gabon have recently created a “Group of Friends on Poaching and Illicit Wildlife Trafficking” which aims at identifying further needs for action.41

40 See e.g. Clinton Global Initiative, Partnership to Save Africa’s Elephants, 26 September 2013, launched as a three-year, $ 80 million project; further information is available at: http://www.clinton foundation.org/clinton-global-initiative/details-partnership-save-africas-elephants (accessed on 27 November 2013); and International Union for Conservation of Nature (IUCN), Urgent Measures adopted by the African Elephant Summit hosted by Botswana and the IUCN, 3 December 2013, available at: https://cmsdata.iucn.org/downloads/african_elephant_summit_final_urgent_measures_ 3_dec_2013.pdf (accessed on 5 December 2013). 41 See Press Statement of the Permanent Mission of Germany to the United Nations, 12 December 2013, available at: http://www.new-york-un.diplo.de/Vertretung/newyorkvn/en/03/illicit-wildlifetrafficking.html (accessed on 27 February 2014).

Shining a Light on the Human Rights Situation in Germany – The Human Rights Council’s Report on Germany in the Second Cycle of the Universal Periodic Review BERENIKE SCHRIEWER(

The Universal Periodic Review: The Universal Periodic Review (UPR) is a unique human rights instrument created through UN General Assembly resolution 60/251 on 15 March 2006. It consists of a State-driven process under the auspices of the Human Rights Council and involves a periodic review of the human rights records of all UN Member States.1 According to UN Secretary-General Ban Kimoon, the UPR “has great potential to promote and protect human rights in the darkest corners of the world.”2 Whereas 21st century Germany can hardly be described as a particularly dark place for human rights, arguably every country has ample room for improvement in this area. Given the UPR Working Group’s adoption of its second report on Germany on 30 April 2013 – four years after the initial review – both reports warrant a summary. This allows for an evaluation of Germany’s human rights situation and the UPR’s effectiveness. Germany in the UPR – First Round: On 8 September 2008, the Human Rights Council selected a group of rapporteurs (Cameroon, Republic of Korea and France),

( Associate in the Frankfurt office of McDermott Will & Emery Rechtsanwälte Steuerberater LLP, focusing her practice on international law and international commercial arbitration. 1

For more details about the UPR, see Tatiana Bejar, A Practical Guide to the United Nations Universal Periodic Review (UPR), January 2010, available at: http://www.hrpujc.org/documents/UPR toolkit.pdf (accessed on 5 May 2014). 2 Secretary-General’s video message for the opening of the Fourth Session of the Human Rights Council, 12 March 2007, available at: http://www.un.org/sg/statements/?nid=2475 (accessed on 5 May 2014).

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the so-called troika, to facilitate the review of Germany.3 Gernot Erler, Germany’s Deputy Minister for Foreign Affairs, and Peter Altmaier, Germany’s Deputy Minister of the Interior, presented Germany’s national report4 at the first meeting on 2 February 2009.5 Whereas German human rights experts have criticised the country’s national report as rather defensive and not very problem-oriented, the country’s self-critical oral presentation led by the high-ranking delegation received a positive reception.6 The delegation stated that whereas human rights are of high importance in Germany’s legal system, challenges to its comprehensive protection exist.7 Germany’s national report itself focused on five areas: (a) the challenge of integrating migrants (out of a total population of 82 million, 15 million have a migration background); (b) tackling the issue of racism and xenophobia; (c) ensuring gender equality in the work field; (d) the principle that fighting terrorism must not be detrimental to the respect for human rights; and (e) ensuring the enjoyment of economic, social and cultural rights.8 In response to advance questions, Germany mentioned that the government had adopted a National Integration Plan in 2007 and a National Action Plan against Racism following the World Anti-Discrimination Conference in 2001.9 It also reported that the rights for foreigners and asylum-seekers had been strengthened through legal reforms, that an official forum for dialogue with representatives of Muslim communities (the ‘German Islam Conference’) had been founded in 2006 and that the government had spent almost € 170 million in language and integration

3 Human Rights Council (HRC), Report of the Working Group on the Universal Periodic Review, Germany, 4 March 2009, UN Doc. A/HRC/11/15 (2009), para. 2, available via: http://www.ohchr. org/EN/HRBodies/UPR/Pages/DESession4.aspx (accessed on 5 May 2014). 4 Id., National Report, Germany, 10 November 2008, UN Doc. A/HRC/WG.6/4/DEU/1 (2008), para. 5, available via: http://www.ohchr.org/EN/HRBodies/UPR/Pages/DESession4.aspx (accessed on 5 May 2014). 5

Id. (note 3), para. 5.

6

Petra Follmar-Otto, Deutschland im Universal Periodic Review (UPR): Von der Pflicht zur Kür, June 2012, 3, available at: http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/aktuell_ 06_2012_deutschland_im_universal_periodic_review.pdf (accessed on 5 May 2014). 7

HRC (note 3), para. 6.

8

Ibid.

9

Ibid.

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courses for migrants in 2008.10 Germany acknowledged that disadvantages for migrants persisted and that the number of undocumented immigrants in the country was unknown.11 It added that many illegal immigrants did not send their children to school as they would risk disclosing the parents, status.12 Germany suggested a revision of the law – Section 87 Residence Act (Aufenthaltsgesetz)13 – whereby schools would no longer need to report illegal immigrants to the authorities,14 a legal change that eventually came about in late 2011. With regard to the issue of forced marriages, forced prostitution and trafficking in human beings, Germany noted that it worked towards improving the victims’ situation through witness protection programs and that task forces against trafficking of women, domestic violence and forced eviction had been created.15 Apart from these main areas, it stated that the estimated number of 5,000 to 7,000 children living on the street had not increased in recent years and that efforts were being made to integrate them into society.16 Germany mentioned legal and quality control changes aimed at improving the protection of seniors living in nursing homes17 and the creation of a separate statistic for racially motivated crimes in 2001.18 It also answered questions related to anti-terrorism legislation (the permission of online search of computers since January 2009 as ultima ratio and only upon a court decision)19 and to the deaths of two detainees which, according to the delegation, had been thoroughly investigated and were not examples of excessive use of force by the police.20

10

Ibid., paras. 8–10.

11

Ibid., paras. 11–12.

12

Ibid., para. 12.

13

Residence Act (Aufenthaltsgesetz), 25 February 2008, Bundesgesetzblatt (BGBl.) I, 162, as amended on 6 September 2013, BGBl. I, 3556. 14

HRC (note 3), para. 12.

15

Ibid., para. 13.

16

Ibid., para. 15.

17

Ibid., para. 17.

18

Ibid., para. 18.

19

Ibid., para. 19.

20

Ibid., para. 20.

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Germany informed that the Optional Protocol to the Convention against Torture21 had been ratified and entered into force in 2009 and that with regard to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography,22 the procedure at the national level was complete but the ratification process had not yet been completed.23 During the interactive dialogue, 46 delegations made statements.24 A number of delegations thanked the government for its comprehensive and self-critical presentation and for Germany’s commitment to the UPR process.25 The dialogue focused on a wide variety of issues. In particular, the dialogue touched on the recommended ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW)26 and the situation of migrants and the issue of integration (especially for children in the school system) in general.27 It also focused on issues related to gender equality (especially violence against women, the rights of migrant women and of victims of forced marriages, forced prostitution or human trafficking, and income disparity between men and women),28 racism and xenophobia as well as racially motivated crimes, and minority rights,29 freedom of religion and the situation of Muslims,30 and lesbian, gay, bisexual, and transgender rights.31 In the course of the discussion, 44 recommendations were made, many of which focused on the aforementioned areas.32 21 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 18 December 2002, UNTS 2375, 237. 22

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, UNTS 2171, 227. 23

HRC (note 3), para. 21.

24

Ibid., para. 23.

25

Ibid.

26

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, UNTS 2220, 3. 27

HRC (note 3), paras. 25, 27, 31, 33, 35–36, 37, 39–40, 47–49, 55–56, 59–60, 64–65, 67–70, 72–73, 75, 77–79. 28

Ibid., paras. 31–32, 35–37, 41, 48, 52, 54, 57, 65, 71, 77.

29

Ibid., paras. 27–29, 31, 33–36, 38, 43, 47, 50–53, 57, 60, 62–64, 73, 75, 79.

30

Ibid., paras. 27–31, 38, 44, 51, 62.

31

Ibid., paras. 32, 46, 55, 71.

32

Ibid., para. 81.

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Germany responded to these recommendations on 20 May 2009,33 accepting (either fully, in principle, or largely) the majority of the recommendations.34 This acceptance included recommendations aimed at concrete steps like the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance,35 the acknowledgment of the full applicability of the International Covenant on Civil and Political Rights (ICCPR)36 to persons subject to its jurisdiction37 and the ratification of the United Nations Convention against Corruption.38 However, it has been noted that Germany oftentimes also accepted recommendations in general wordings and without agreeing to specific measures.39 An example of this is the following response: “Germany accepts this recommendation and will continue its holistic approach to fighting racism and xenophobia with the goal of reaching all levels of society.”40 With regard to ratifying the ICRMW, Germany stated that fundamental rights were already enshrined in on the Rights of the Child41 due to internal competence issues – the federal States’ exclusive responsibility for areas which the Convention affects – but that the government continued to make an effort to gain the federal States’ approval for a withdrawal.42 Other recommendations it rejected were, inter alia, allowing for dual citizenship for citizens of other countries than European Union Member States and Switzerland, explaining that Germany avoids allowing the acquisition of multiple nationality through naturalization as a matter of principle, like many other States.43 Concerning follow-up measures, it has been critically noted that Germany – unlike a 33

HRC, Report of the Working Group on the Universal Periodic Review, Germany, Addendum, 20 May 2009, UN Doc. A/HRC/11/15/Add. 1 (2009), available via: http://www.ohchr.org/EN/ HRBodies/UPR/Pages/DESession4.aspx (accessed on 5 May 2014). 34

Ibid., paras. 3, 6–15, 17–22, 24–26, 30–41, 43–44.

35

Ibid., para. 3; International Convention for the Protection of All Persons from Enforced Disappearance, GA Res. 61/177 of 20 December 2006. 36

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171.

37

HRC (note 33), para. 6.

38

Ibid., para. 26; United Nations Convention against Corruption, 31 October 2003, UNTS 2349, 41.

39

Follmar-Otto (note 6), 3.

40

HRC (note 33), para. 18.

41

Convention on the Rights of the Child, 20 November 1989, UNTS 1577, 3.

42

HRC (note 33), para. 4.

43

Ibid., para. 28.

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number of other States – has not submitted an optional interim report on the implementation of the accepted recommendations.44 Germany in the UPR – Second Round: The second periodic review cycle of Germany in 2013 was heavily influenced by the events surrounding the discovery of the existence of the National Socialist Underground (NSU) in 2011. The NSU is a German far-right terrorist group believed to be responsible for a series of racially motivated killings that started as far back as 2000. German authorities failed to discover the real reason behind these crimes for years which, upon the NSU’s discovery, led to intense public debates about institutional racism.45 The review of Germany was facilitated by the Republic of the Congo, Kuwait and the United States of America.46 Markus Löning, the Commissioner for Human Rights Policy and Humanitarian Aid of the Federal Foreign Office (Commissioner), stated on 25 April 201347 that the government had consulted the German Institute for Human Rights and had held a hearing with major non-governmental organizations when preparing its national report.48 He mentioned that Germany was aware of its deficits regarding the realization of human rights but that all violations and abuses would be subject to inquiry and would become part of the vibrant human rights debate.49 In this regard, he cited the aforementioned institutional failure to swiftly identify the perpetrators of a series of racially motivated murders, the measures taken to address these failures, and the intense debate on discrimination and racism in German society.50 44

Follmar-Otto (note 6), 3.

45

For more information on this issue, see Andrew Bowen, World from Berlin: NSU Crime Spree Report Finds ‘Devastating’ Errors, Spiegel Online, 23 August 2013, available at: http://www.spiegel.de/ international/report-on-neo-nazi-murders-shows-rare-partisan-consensus-a-918183.html (accessed on 5 May 2014). 46 HRC, Report of the Working Group on the Universal Periodic Review, Germany, 8 July 2013, UN Doc. A/HRC/24/9 (2013), para. 1, available via: http://www.ohchr.org/EN/HRBodies/UPR/ Pages/DESession16.aspx (accessed on 5 May 2014). 47 The webcast of the session is available at: http://webtv.un.org/watch/germany-review-16thsession-of-universal-periodic-review/2326268263001/ (accessed on 5 May 2014). 48 HRC (note 49), para. 7. See for Germany’s report id., National Report, Germany, 7 February 2013, UN Doc. A/HRC/WG.6/16/DEU/1 (2013), available via: http://www.ohchr.org/EN/HR Bodies/UPR/Pages/DESession16.aspx (accessed on 5 May 2014). 49

Id. (note 49), para. 8.

50

Ibid.

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The Commissioner underlined efforts made by Germany to implement recommendations from the first UPR cycle, including the signing or ratification of the following international conventions:51 (a) the United Nations Convention on the Rights of Persons with Disabilities52 and its Optional Protocol;53 (b) the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; (c) the withdrawal of the reservations to the Convention on the Rights of the Child;54 (d) the International Convention for the Protection of all Persons against Enforced Disappearances and the Council of Europe Convention on Cybercrime55 as well as the related Additional Protocol,56 both of which were intended to help fight acts of a racist and xenophobic nature; (e) the Council of Europe Convention on Action against Trafficking in Human Beings;57 and (f) the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.58 The Commissioner stated that new legislation on the issues of forced marriage and the right to ‘re-immigration’, excessive delays in criminal proceedings and investigations and the strengthening of the rights of sexual abuse victims had either entered in force or was in motion.59 During the inter-active dialogue, 96 delegations made statements.60 The general tone of the statements has been described as friendly and constructive, with the harshest comments coming from North Korea, Russia, Belarus, Cuba and China.61 51

Ibid., para. 9.

52

Convention on the Rights of Persons with Disabilities, 13 December 2006, UNTS 2515, 3.

53

Optional Protocol to the Convention on the Rights of Persons with Disabilities, GA Res. 61/611 of 13 December 2006. 54 See Status of Multilateral Treaties Deposited with the Secretary-General, endnotes 31–33, available at: https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=iv-11&chapter=4&lang=en (accessed on 13 May 2014). 55

Convention on Cybercrime, 23 November 2001, ETS No. 185.

56

Additional Protocol to the Convention on Cybercrime, 28 January 2003, ETS No. 189.

57

Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, CETS No. 197. 58 Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, 11 May 2011, CETS No. 210. 59

HRC (note 49), para. 10.

60

Ibid., para. 12.

61

See Petra Follmar-Otto, Nach der UPR-Überprüfung Deutschlands im UN-Menschenrechtsrat: Vorschläge zum Umgang mit den Empfehlungen, May 2013, 3, available at: http://www.institut-fuer-

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The Commissioner noted in response to the statements that racism and prejudices were still present in some parts of German society and mentioned that Germany had put an emphasis on involving all levels of society in the fight against this scourge.62 He added that Germany had worked continuously to improve the educational opportunities for children from migrant families and that the number of foreign students acquiring a higher education entrance qualification had increased by 36 % between 2005 and 2010.63 The Commissioner also mentioned in response to comments that a fully functional internal complaints procedure was in place for all alleged victims of the use of excessive force by the police and that hate speech was punishable under law.64 The participating delegations made 200 recommendations.65 Out of these recommendations, many focused on the ratification of the ICRMW and the situation of migrants,66 on the ratification of the Optional Protocol to the ICESCR67 and on issues related to children’s rights,68 gender equality (especially with regard to equal pay and actions against domestic violence),69 racism and xenophobia70 and issues related to religious tolerance (especially towards Muslims).71 Other recommendations dealt, inter alia, with torture and protection against abuses by law enforcement

menschenrechte.de/uploads/tx_commerce/Nach_der_UPR_Ueberpruefung_Deutschlands_im_UN_ Menschenrechtsrat_Vorschlaege_zum_Umgang_mit_den_Empfehlungen.pdf (accessed on 5 May 2014). 62

HRC (note 49), para. 47.

63

Ibid., para. 49.

64

Ibid., paras. 51–52.

65

Ibid., para. 124.

66

Ibid., paras. 124.1–124.12, 124.15–124.17, 124.28, 124.63, 124.115, 124.118, 124.170, 124.183–124.191, 124.194. 67

Ibid., paras. 124.11–124.13, 124.18–124.21. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, GA Res. 63/117 of 10 December 2008. 68

Ibid., paras. 124.24, 124.32, 124.37–124.38, 124.63, 124.116, 124.119, 124.132, 124.138, 124.142, 124.170, 124.183, 124.193. 69 Ibid., paras. 124.13, 124.29, 124.35–124.36, 124.68, 124.71–124.75, 124.113–124.114, 124.119, 124.133–124.137, 124.149, 124.155–124.164, 124.167. 70 Ibid., paras. 124.33, 124.41, 124.70, 124.76–124.111, 124.115, 124.117–124.118, 124.120, 124.129, 124.131, 124.143, 124.147. 71

Ibid., paras. 124.39–124.40, 124.50, 124.79, 124.109, 124.112–124.113, 124.119, 124.131, 124.150–124.151, 124.182.

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officials,72 the situation of persons with disability,73 corruption,74 human trafficking75 and the situation of minorities.76 On 11 September 2013, Germany responded to these recommendations77 accepting the vast majority of them. However, it has been noted that most recommendations in the review cycle were vague and general, which means they were not linked to concrete and measurable action steps.78 With regard to more specific steps, Germany did not accept the frequently given recommendation to ratify the ICRMW. It again stated that the fundamental rights enshrined in the United Nations Human Rights Covenants directly applied to migrants in Germany and that the inclusion of irregular migrants in the term ‘migrant workers’ was not compatible with German law.79 Another common recommendation it did not accept was the review/withdrawal of existing legislation prohibiting the wearing of religious symbols in public schools. Citing the Federal Constitutional Court’s ‘Headscarf Judgement’ of 24 September 2003,80 Germany declared that the German Constitution81 in principle allowed the banning of religious symbols in schools and that it fell upon the German federal States (Länder) to strike an adequate balance between the conflicting interests (teachers’ freedom of religion and belief, the neutrality of the State, parents’ right of education and pupils’ negative religious freedom).82

72

Ibid., paras. 124.27, 124.43, 124.123–124.130, 124.152, 124.188.

73

Ibid., paras. 124.173–124.178.

74

Ibid., paras. 124.22–124.23, 124.30, 124.61.

75

Ibid., paras. 124.138–124.141, 124.147.

76

Ibid., paras. 124.57, 124.117–124.120, 124.179–124.181.

77

HRC, Report of the Working Group on the Universal Periodic Review, Germany, Addendum, 11 September 2013, UN Doc. A/HRC/24/9/Add. 1 (2013), available via: http://www.ohchr.org/EN/ HRBodies/UPR/Pages/DESession16.aspx (accessed on 5 May 2014). 78

See Follmar-Otto (note 64), 5.

79

Ibid., 2.

80

Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 108, 282. See also Axel Freiherr von Campenhausen, The German Headscarf Debate, Brigham Young University Law Review 7 (2004), 665, 665 et seq. 81 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, BGBl. 1949, 1 as amended on 11 July 2012, BGBl. I, 1478. 82

HRC (note 80), 4.

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Evaluation: Keeping in mind the material presented in the reports, the human rights situation in Germany has arguably further improved over the last four years. Germany has ratified a number of additional international human rights conventions, most notably the United Nations Convention on the Rights of Persons with Disabilities. Efforts have been made to deal with human rights issues in various areas, for instance the aforementioned revision of Section 87 Residence Act and the adoption of the National Action Plan for the Implementation of the United Nations Convention on the Rights of Persons with Disabilities83 in 2011. It is not clear to what an extent the UPR has contributed to human rights improvements, although the external supervision appears to have played some role. Germany itself noted during the first cycle that the UPR process was very useful because of its constructiveness for the national and international debate.84 Concerning the national debate, it is worth pointing out that the press coverage of the second review cycle has not been devoid of ironic undertones: In particular the criticism of Germany’s human rights situation by countries such as North Korea, China, Saudi Arabia, Russia and Belarus (both of whom inter alia complained about excessive police violence) has become the subject of mockery.85 The irony of these incidents is further augmented by the fact that the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, which was established by the UN Human Rights Council,86 recently came to the conclusion “that systematic,

83 See Federal Ministry of Labour and Social Affairs, Persons with Disabilities Should Be at the Heart of Society, press release of 15 June 2011, available at: http://www.bmas.de/EN/Service/Press/pressreleases/Persons-disabilities-should-heart-society.html?cms_searchArchive=0&cms_sortString=score_&cms_searchIssued=0&cms_templateQueryString=national+action+plan (accessed on 5 May 2014); National Action Plan for the Implementation of the United Nations Convention on the Rights of Persons with Disabilities, September 2011, available at: http://www.bmas.de/SharedDocs/Downloads/ DE/PDF-Publikationen/a740-nationaler-aktionsplan-barrierefrei.pdf?__blob=publicationFile (accessed on 13 May 2014) (in German), short version in English available at: http://www.bmas.de/Shared Docs/Downloads/DE/PDF-Publikationen/a740-short-en.pdf?__blob=publicationFile (accessed on 13 May 2014). 84

HRC (note 3), para. 80.

85

See Andreas Ross, Niemand ist ohne Schuld, Frankfurter Allgemeine Zeitung, 25 April 2013, available at: http://www.faz.net/aktuell/politik/ausland/un-menschenrechtsrat-niemand-ist-ohneschuld-12162251.html (accessed on 5 May 2014). 86

See HRC, Situation of Human Rights in the Democratic People’s Republic of Korea, 9 April 2013, UN Doc. A/HRC/RES/22/13 (2013).

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widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea.”87 On a more structural level, the sharp criticism of notorious human rights abusers directed towards Germany in this UPR cycle highlights some of the general limits of this human rights instrument. However, despite the issues that come from its design as a State-driven and therefore highly political process, the UPR might be able to further motivate a country to improve the human rights situation in areas where it is willing or at least not opposed to making changes. Even so, Germany’s continued rejection of recommendations aimed at a ratification of the ICRMW suggests that the UPR process alone is unlikely to convince even progressive countries to change their opinion in areas where they have already established a firm stance. With regard to conclusions that can be drawn from the reports on the UPR process in general, the increase of activity between 2009 and 2013 appears significant: Whereas only 46 delegations participated in 2009, four years later that number had more than doubled (96 delegations). It is even more surprising that the number of recommendations seems to have almost quadrupled (from 44 recommendations in 2009 to 200 in 2013). However, this apparent increase in recommendations is at least partially due to the way the recommendations are being represented in the reports; with the 2009 report placing related recommendations from different States into one group and the 2013 report opting for an individual enumeration of recommendations. Nonetheless, the increased number of delegations might well indicate a growing interest among States to participate in the UPR. Given that the UPR is designed as an ongoing and evolving process – as is reflected in the slight changes to the UPR modalities for the second cycle88 which include an extension of the review time from three to three and a half hours – meant to improve the human rights situation worldwide, this would be good news.

87

Id., Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, 7 February 2014, UN Doc. A/HRC/25/63 (2014), 6. 88

A description of the new UPR modalities is available at: http://www.upr-info.org/sites/default/ files/news/new_upr_modalities_second_cycle_0.pdf (accessed on 5 May 2014).

Germany’s Secret Arms Deals: Compliance of German Arms Export Licensing with International Law MARLITT BRANDES(

Introduction: In recent years, the international trade in arms has time and again engaged the interest of the media and the public both on the national and the international level. Germany, still one of the major arms supplying States, has been criticised for authorising lucrative arms exports to States with questionable human rights records.1 Nevertheless and in apparent contradiction to this, the German government has supported a ‘strong and robust’ Arms Trade Treaty (ATT)2 at the Final Conference on the ATT in March 2013.3 The treaty is to establish “the highest possible common international standards for regulating […] the international trade in conventional arms.”4 This article serves to evaluate the German practice of licensing arms exports with a view to restrictions imposed by international law. The article first outlines the legal framework for German arms export authorisations under German constitutional and administrative law. It continues with addressing their compliance with international ( Doctoral candidate and Research Associate at the Walther-Schücking-Institute for International Law, University of Kiel. 1 See, e.g., Hans Kundnani, Germany’s Contribution to the Arab Spring: Arms Sales, The Guardian, 9 July 2011, available at: http://www.theguardian.com/commentisfree/2011/jul/09/germany-arms-salesaudi-arabia (accessed on 4 May 2014); Gerald Traufetter, Made in Germany: Berlin Under Fire for Tank Deal with Cairo, Spiegel Online International, 27 May 2013, available at: http://www.spiegel.de/inter national/world/berlin-made-dubious-tank-deal-with-cairo-a-902143.html (accessed on 4 May 2014). 2

Arms Trade Treaty, 3 June 2013, UN Doc. A/CONF.217/2013/L.3 (2013) (ATT).

3

Statement by H. E. Ambassador Jörg Ranau, Head of the German Delegation to the UN Conference on the Arms Trade Treaty, at the Opening Session of the final United Nations Conference on the Arms Trade Treaty, 18 March 2013, available at: http://www.un.org/disarmament/ATT/statements/ docs/20130318/20130318_germany_E.pdf (accessed on 1 February 2014). 4

Art. 1 ATT.

526 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

legal standards while focusing on the obligations set out in the ATT. The article concludes with an overall assessment of adherence of the German arms export licensing legislation and practice to international legal standards. Legal Framework for German Arms Exports: In order to illustrate the legal framework for German arms exports, it is first necessary to identify the applicable law.5 German exports fall within the scope of the common commercial policy of the European Union (EU), one of the latter’s exclusive competences,6 and are subject to the freedom of export as specified under its common rules for exports.7 Member States are thus in principle barred from imposing national restrictions on arms exports.8 However, Article 346 (1)(b) Treaty on the Functioning of the EU (TFEU) allows measures of Member States which they deem “necessary for the protection of the essential interests of [their] security which are connected with the production of or trade in arms, munitions and war material.” Germany may thus implement individual restrictions on arms exports under its domestic regulations within the framework of Article 346 (1)(b) TFEU. Requirements for Licensing Arms Exports under German Law: The national legal framework for German arms export authorisations is essentially twofold: Arms exports are subject to different requirements depending on whether the arms are classified as weapons of war or other military equipment.9 The constitutional basis for exports of weapons of war is Article 26 (2) German Basic Law.10 It states that arms designated for warfare may be manufactured, trans5 For a more in-depth analysis, see Patrick Kirchner, Das System der Rüstungsexportkontrolle am Beispiel der Panzerlieferungen nach Saudi-Arabien, Deutsches Verwaltungsblatt (DVBl.) 127 (2012), 336. 6 Art. 3 (1)(e) Treaty on the Functioning of the European Union, 26 October 2012, OJ 2012 C 326, 47 (consolidated version 2012) (TFEU). 7 Art. 1 EC Regulation 1061/2009 of 19 October 2009 Establishing Common Rules for Exports, OJ 2009 L 291, 1. 8 Cf. Art. 2 (1) TFEU; cf. also European Court of Justice, Case 41/76, Suzanne Criel, née Donckerwolcke and Henri Schou v. Procureur de la République au tribunal de grande instance de Lille and Director General of Customs, 1976 ECR 1921, 1937, para. 32; Kirchner (note 5), 336. 9

Cf. Stefan Oeter, Neue Wege der Exportkontrolle im Bereich der Rüstungsgüter, Zeitschrift für Rechtspolitik 25 (1992), 49, 50 et seq. 10 Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 11 July 2012, BGBl. I, 1478 (Basic Law).

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ported or marketed only with the permission of the German federal government.11 The details for such permission are set out in the War Weapons Control Act (WWCA)12 which serves as implementing statute to Article 26 (2) Basic Law.13 Section 1 (1) WWCA makes those weapons of war listed in its annex subject to its regulations. Among them are nuclear, biological and chemical weapons14 as well as other weapons of war such as combat aircraft, warships and battle tanks.15 Any export of these weapons requires a permission16 to which there exists no legal entitlement by the applicant.17 Section 6 (3) WWCA contains a number of obligatory grounds for refusing export licences for weapons of war. Apart from that, it is at the federal government’s discretion to grant export licences in accordance with Section 6 (2) WWCA.18 Those military equipment and armaments which are not listed in the annex to the WWCA but to the Foreign Trade Regulation (FTR)19 established in accordance with Section 4 Foreign Trade Act (FTA)20 also require permission to be exported under Section 8 (1) cl. 1 FTR. Section 8 (1) cl. 1 FTA stipulates that a permit is to be issued if the act in question will not endanger the purpose of the provision requiring the authorisation. In case of such an endangerment, Section 8 (1) cl. 2 FTA provides that the act may still be permitted if its national economic importance outweighs the interference with the purpose of the provision. The wording of Section 8 (1) FTA thus speaks for a margin of discretion on behalf of the permit authority only when it proceeds on the assumption that the purpose of the provision requiring the authorisation is

11

Art. 26 (2) cl. 1 Basic Law.

12

War Weapons Control Act (Kriegswaffenkontrollgesetz), 22 November 1990, BGBl. I, 2506, as amended on 27 July 2011, BGBl. I, 1595 (WWCA). 13

Robert A. P. Glawe, Der Bundessicherheitsrat als sicherheits- und rüstungspolitisches Koordinationselement, DVBl. 127 (2012), 329, 330. 14

Part A Annex to the WWCA.

15

Part B, Secs. 13, 17 and 24 Annex to the WWCA.

16

Sec. 3 (3) WWCA.

17

Sec. 6 (1) WWCA.

18

Klaus Pottmeyer, Kriegswaffenkontrollgesetz, Kommentar (2nd ed. 1994), 339, para. 6; Volker Epping, Grundgesetz und Kriegswaffenkontrolle (1993), 124. 19

Foreign Trade Regulation (Außenwirtschaftsverordnung), 2 August 2013, BGBl. I, 2865, as amended on 25 March 2014, Bundesanzeiger 2014 AT 31.03.2014 V1. 20

Foreign Trade Act (Außenwirtschaftsgesetz), 6 June 2013, BGBl. I, 1482 (FTA).

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endangered by the act.21 To determine the purposes of Section 8 (1) cl. 1 FTR, recourse may be had to the purposes of restrictions on foreign trade stated in Section 4 FTA, namely, among others, ensuring peace in the international community and complying with resolutions of the United Nations (UN) Security Council as well as binding legislative acts of the EU. In practice, decisions on arms exports under both the WWCA and the FTA/FTR regime are governed by the “Political Principles of the German Government governing the Export of War Weapons and Other Military Equipment” (Political Principles).22 As an administrative regulation, the compilation of these Principles is technically only binding upon the administration and does not create any direct external effects for third parties.23 However, whenever an administrative regulation directs the exercise of discretion granted by a provision (ermessenslenkende Verwaltungsvorschrift), it may cause indirect effects according to the general principle of equality stipulated in Article 3 (1) Basic Law.24 The administration may only deviate from a constant manner of application of the regulation if there is a sufficient reason for the derivation (Selbstbindung der Verwaltung).25 With regard to exports of weapons of war, it is assumed that the federal government’s decisions on permits abide by the Political Principles and a self-commitment of the federal government has thus taken place.26

21 See with regard to prior versions of the FTA Armin von Bogdandy, Die außenwirtschaftliche Genehmigung: Rechtsnatur und Rechtsfolgen, Die Verwaltung 83 (1992), 53, 74 et seq.; Walther Ehrlich, § 3 Erteilung von Genehmigungen, in: Hans-Michael Wolffgang/Olaf Simonsen (eds.), AWRKommentar, Kommentar für das gesamte Außenwirtschaftsrecht, vol. II (12th ed. 2006), 5, para. 9. 22

Political Principles of the German Government governing the Export of War Weapons and Other Military Equipment (Politische Grundsätze der Bundesregierung für den Export von Kriegswaffen und sonstigen Rüstungsgütern), annexed to Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahr 2011 (Rüstungsexportbericht 2011), Printed Papers of the Parliament (BundestagDrucksache) 17/11785, 29 (Political Principles). 23

Steffen Detterbeck, Allgemeines Verwaltungsrecht (11th ed. 2013), para. 867; Hans Jarass, Bindungswirkung von Verwaltungsvorschriften, Juristische Schulung 39 (1999), 105, 106 et seq. 24 Jarass (note 23), 107; Barbara Remmert, Rechtsprobleme von Verwaltungsvorschriften, Juristische Ausbildung 26 (2004), 728, 730. 25

Detterbeck (note 23), para. 874; Remmert (note 24), 730.

26

Kirchner (note 5), 342.

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As to the content of the Political Principles, Section I (2) implies a general commitment to human rights: Their observance by the importing State is deemed to be of special importance when deciding on arms export licences.27 Section I (3) states that permits may not be granted if there is sufficient reason for suspecting that the exported arms would be misused for internal repression or other continuous and systematic human rights violations. This prohibition is reiterated in Section III (4) Political Principles which deals with exports to third States which are neither members of the EU nor of the North Atlantic Treaty Organisation (NATO) nor NATOequivalent States (Australia, New Zealand, Switzerland and Japan).28 According to Section III (5), transfers of weapons of war and related military equipment may also not be permitted if the State of destination is involved or about to be involved in an armed conflict. The decision on permitting an export further needs to take into account issues such as the sustainable development of the State of destination, its support of terrorism and international organised crime as well as its compliance with the prohibition of the use of force and international humanitarian law.29 In addition, Section I (1) Political Principles emphasises the commitment of the German arms export policy to the EU Code of Conduct on Arms Exports30 and the subsequent Council Common Position (Common Position)31 and stipulates that the criteria established hereunder are an integral part of the Political Principles. Competence for Issuing Arms Export Licences: The competence to issue export licences for weapons of war is an issue subject to intensive legal debate. Article 26 (2) cl. 1 Basic Law stipulates that any export of weapons designed for warfare must be authorised by the federal government. According to Article 62 Basic Law, the latter consists of the federal chancellor and the federal ministers as a collegial body. The delegation of the power to authorise exports of weapons of war to one minister provided

27

Sec. I (2) Political Principles.

28

Exports to this group of States are in principle not subject to any restrictions, cf. Sec. II (1) Political Principles. 29

Sec. III (6), (7) Political Principles.

30

European Union Code of Conduct on Arms Exports, 8 June 1998, 8675/2/98.

31

Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, OJ 2008 L 335, 99 (Common Position).

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by Section 11 (2) WCCA in conjunction with Section 1 (1) No. 4 of its first implementing regulation32 is therefore predominantly held to be unconstitutional.33 The same holds true for final decisions on export authorisations by the federal security council. This sub-committee of the German federal government established in accordance with its organisational competence34 considers highly sensible authorisations.35 Its sessions are subject to strict confidentiality.36 As is the case with other committees of the federal government, its function is of a preparatory and advisory nature.37 It is composed of the chancellor, the vice chancellor, the head of the chancellery, as well as those ministers whose area of activity is relevant to security and defence issues, notably the ministers of the interior, of economics and labour, foreign affairs, defence, justice, finance, and for economic cooperation and development.38 The composition of the federal security council therefore differs from the one of the federal cabinet.39 Insofar as the federal security council decides on arms export authorisations, it thus infringes upon the exclusive competence of the federal government under Article 26 (2) Basic Law.40 32 First Regulation for the Implementation of the War Weapons Control Act (Erste Verordnung zur Durchführung des Gesetzes über die Kontrolle von Kriegswaffen), 1 June 1961, BGBl. I, 649, as amended on 31 October 2006, BGBl. I, 2407. 33 See, e.g., Epping (note 18), 223; Christian Hillgruber, Artikel 26, in: Bruno Schmidt-Bleibtreu/ Hans Hofmann/Axel Hopfauf (eds.), GG, Kommentar zum Grundgesetz (11th ed. 2008), 781, 787, para. 12. 34

Meinhard Schröder, Artikel 65, in: Hermann von Mangoldt/Friedrich Klein/Christian Starck (eds.), Grundgesetz, vol. II (6th ed. 2010), 1651, 1666, para. 37; Volker Busse, Die Kabinettausschüsse der Bundesregierung, DVBl. 108 (1993), 413, 414 et seq.; Kai Zähle, Der Bundessicherheitsrat, Der Staat 44 (2005), 462. 35 Oeter (note 9), 49; Epping (note 18), 224 et seq.; Pottmeyer (note 18), 431 et seq., para. 5a; KarlAndreas Hernekamp, Artikel 26, in: Ingo von Münch/Philip Kunig (eds.), Grundgesetz, Kommentar, vol. I (6th ed. 2012), 1756, 1776, para. 29. 36

Glawe (note 13), 333.

37

Cf. Steffen Detterbeck, Innere Ordnung der Bundesregierung, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, vol. III (3rd ed. 2005), 1159, 1199, para. 63; Zähle (note 34), 477. 38

Zähle (note 34), 469.

39

Epping (note 18), 224.

40

Kirchner (note 5), 338; Glawe (note 13), 332; Jürgen Beschorner, Die Ausfuhrkontrolle von Rüstungsgütern, Zeitschrift für vergleichende Rechtswissenschaft 90 (1991), 262, 286; Oliver Daum, Licht ins Off: Der Bundessicherheitsrat und die Praxis der Rüstungsexporte, 21 March 2013, JuWissBlog, available at: https://www.juwiss.de/licht-ins-off-der-bundessicherheitsrat-und-die-praxis-der-rustungs exporte/ (accessed on 4 May 2014).

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As regards exports of other military equipment requiring authorisation under Section 8 (1) cl. 1 FTR, the federal office of economics and export control is the competent body deciding on such authorisations in accordance with Section 13 (1) FTA. Compliance with International Legal Standards: Irrespective of the fact that the German practice of permitting arms exports raises doubts as to its conformity with the Basic Law, its compliance with international legal standards is a different matter and has to be examined separately by addressing obligations governing arms transfers binding upon Germany. While a number of treaties concerned with the use of specific weapons provide for prohibitions to transfer them, so far no international agreement conclusively regulates international arms transfers. The ATT is designed to resolve this issue by establishing common rules for international transfers of conventional arms. Prohibitions of Transfer of Specific Weapons: All conventions dealing with weapons of mass destruction contain prohibitions of their transfer.41 Treaties on specific conventional arms prohibit the transfer of anti-personnel mines,42 blinding laser weapons43 and cluster munitions.44 Germany is a party to all of these conventions and explicitly prohibits the production and transfer of all arms concerned but blinding laser weapons.45 In this respect, Section 6 (3) cl. 2 WWCA stipulates that an authorisation of the transfer of weapons of war is to be denied if there are grounds to believe that it would violate or endanger compliance with international obligations of 41

See Art. 1 Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, UNTS 729, 161; Art. 3 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, UNTS 1015, 163; Art. 1 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 3 September 1992, UNTS 1974, 45. 42 Art. 8 (1) Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as Amended on 3 May 1996 (Protocol II as Amended on 3 May 1996) Annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 3 May 1996, UNTS 2048, 93; Art. 1 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on Their Destruction, 18 September 1997, UNTS 2056, 211. 43

Art. 1 Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Protocol on Blinding Laser Weapons (Protocol IV), 13 October 1995, ILM 35, 1218 (Protocol on Blinding Laser Weapons). 44

Art. 1 Convention on Cluster Munitions, 3 December 2008, ILM 48, 357.

45

Arts. 17, 18 and 18a WWCA.

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the Federal Republic of Germany. Blinding laser weapons are among the weapons of war listed in the annex to the WWCA and thus fall within its scope.46 As their transfer to any State or non-State entity is unequivocally prohibited without exception under the Protocol on Blinding Laser Weapons,47 Germany would violate its obligation under the Protocol by permitting such transfer. The authorisation is thus to be denied under Section 6 (3) cl. 2 WWCA. Obligations under the ATT: The ATT opened for signature on 3 June 2013 and will enter into force 90 days after its 50th ratification.48 Germany has been among the first signatories of the treaty. Its ratifying law49 entered into force on 26 October 2013. Together with sixteen other Member States of the EU, Germany ratified the ATT on 2 April 201450 exactly one year after its adoption by the General Assembly.51 At the same time, it issued a declaration providing for the provisional application of Articles 6 and 7 ATT pending its entry into force in accordance with Article 23 ATT.52 Said provisions entail the core substantive obligations enshrined in the ATT53 and apply to conventional arms listed in Article 2 (1) ATT,54 ammunition/munitions 46

Part B, Sec. 62 Annex to the WWCA.

47

Art. 1 Protocol on Blinding Laser Weapons.

48

Art. 22 (1) ATT.

49

Act on the Treaty of 2 April 2013 concerning the Arms Trade (Gesetz zu dem Vertrag vom 2. April 2013 über den Waffenhandel), 25 October 2013, BGBl. II, 1426. 50 Permanent Mission of Germany to the United Nations, New York, Joint Press Communiqué by Bulgaria, Croatia, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Latvia, Malta, Romania, Slovakia, Slovenia, Spain, and the United Kingdom on the Occasion of the Deposit of Their Instruments of Ratification of the Arms Trade Treaty, 2 April 2014, available at: http://www.new-yorkun.diplo.de/Vertretung/newyorkvn/en/__pr/press-releases/2014/20140402-joint-communique-att. html?archive=3759636 (accessed on 20 June 2014). 51

GA Res. 67/234 B of 2 April 2013.

52

Permanent Mission of Germany to the United Nations, New York, Press Release: Foreign Minister Steinmeier on Ratification of the ATT, 2 April 2014, available at: http://www.new-york-un. diplo.de/Vertretung/newyorkvn/en/__pr/press-releases/2014/20140402-steinmeier-ratification-att. html?archive=2990622 (accessed on 20 June 2014). 53

It is beyond the scope of this article to comment on the substantive obligations enshrined in the ATT. For details, see Stuart Casey-Maslen/Gilles Giacca/Tobias Vestner, The Arms Trade Treaty (2013), June 2013, available at: http://www.geneva-academy.ch/docs/publications/Arms%20Trade% 20Treaty%203%20WEB%282%29.pdf (accessed on 4 May 2014), 23 et seq.; Marlitt Brandes, “All’s Well That Ends Well” or “Much Ado About Nothing?”: A Commentary on the Arms Trade Treaty, Göttingen Journal of International Law 5 (2013), 399, 409 et seq. 54

These are battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers as well as small arms and light weapons.

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fired, launched or delivered by them as provided for in Article 3 as well as their parts and components as set out in Article 4. The federal cabinet recently declared that there is no need for changes in the German legislation on arms export authorisations as the latter is already in compliance with and even exceeds the obligations contained in the ATT, in particular its Articles 6 and 7.55 Next to the provisional application of these Articles, the federal government has agreed on a framework paper designed to increase transparency in arms export licensing.56 Absolute Prohibitions of Transfer under Article 6 ATT: Article 6 ATT creates a number of absolute prohibitions of transfer of conventional arms, their parts and components as well as ammunition/munitions. Article 6 (1) ATT forbids any transfer that would contradict the State party’s obligations under measures adopted by the UN Security Council acting under Chapter VII Charter of the United Nations (UN Charter),57 in particular arms embargoes. Within the EU, such embargoes are imposed by Common Positions,58 which have to be implemented by Member States on the national level. In Germany, arms embargoes by the UN Security Council and the EU are implemented through Section 74 FTR, which prohibits arms exports to listed States with regard to which arms embargoes have been established. Section 74 FTR has last been amended in order to incorporate the most recent arms embargo against the Central African Republic.59 Article 6 (2) ATT obliges State parties not to authorise any transfer infringing on their relevant obligations under international agreements, in particular those relating to the transfer of or illicit trafficking in conventional weapons. The provision thus reiterates the transfer prohibitions State parties committed themselves to under other treaties. With respect to Germany, these are the transfer prohibitions contained in 55 Antwort der Bundesregierung auf die Kleine Anfrage der Abgeordneten Katja Keul, Agnieszka Brugger, Volker Beck (Köln), weiterer Abgeordneter und der Fraktion BÜNDNIS 90/DIE GRÜNEN, 20 February 2014, Printed Papers of the Parliament (Bundestag-Drucksache) 18/633, 2. 56

Christoph Hickmann, Schwarz-Rot verspricht mehr Transparenz bei Rüstungsexporten, Süddeutsche Zeitung, 8 April 2014, available at: http://www.sueddeutsche.de/politik/waffenlieferungenschwarz-rot-verspricht-mehr-transparenz-bei-ruestungsexporten-1.1931965 (accessed on 4 May 2014). 57

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

58

Ulrike Brandl, Die Umsetzung der Sanktionsresolutionen des Sicherheitsrates in der EU, Archiv des Völkerrechts 38 (2000), 376, 390. 59 SC Res. 2127 of 5 December 2013, paras. 54 et seq. An EU arms embargo against the Central African Republic was imposed by Council Decision 2013/798/CFSP of 23 December 2013, OJ 2013 L 352, 51.

534 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

treaties on specific weapons referred to above which have been laid down in the WWCA.60 Most importantly, under Article 6 (3) ATT a State party may not authorise a transfer knowing at this point in time that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

It is noteworthy that Article 6 (3) ATT employs a very high standard of certainty that the arms will be used for one of those crimes: State parties must have ‘knowledge’ in respect thereof “at the time of authorization” of the export.61 In comparison, such a strict standard of probability is applied nowhere in the Political Principles and the Common Position which only require ‘probable cause’62 and a ‘clear risk’63 respectively. However, neither the WWCA nor the FTA and the regulation established thereunder provide for prohibitions to transfer arms which would be used for any of the listed crimes. Reference to Section 6 (3) WWCA is not entirely helpful in this regard as not all arms covered by the ATT are also weapons of war under the annex to the WWCA.64 Both the Political Principles as well as the Common Position stay silent on transfer of arms which would be used for such international crimes. Admittedly, there will be a certain overlap with Sections I (3) and III (4) and (5) Political Principles as well as Article 2 (2) Common Position which deal with the importing State’s compliance with human rights and humanitarian law as the crimes referred to above will regularly go hand in hand with serious violations of human rights or humanitarian law.65 Nevertheless, Article 6 (3) ATT imposes an absolute transfer prohibition, which has to be implemented in good faith.66 With a view to the fact 60

See supra, III.A.

61

Art. 6 (3) ATT.

62

Secs. I (3), III (4) Political Principles.

63

Art. 2 (2)(a), (c) Common Position.

64

E.g. small arms and light weapons fall outside the scope of the WWCA.

65

For a detailed examination of the terminologies, see Casey-Maslen/Giacca/Vestner (note 53), 24 et seq.; Brandes (note 53), 412 et seq. 66

This is provided for by Art. 26 Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331.

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that Sections I (3) and III (4) and (5) Political Principles and Article 2 (2) Common Position do not specifically speak of the crimes referred to in Article 6 (3) ATT and only partially provide for prohibitions of transfer, it appears questionable whether reference to them is sufficient in this respect. Export Assessment under Article 7 ATT: Article 7 ATT provides for an assessment to be undertaken before authorising an arms export provided that the latter is not already prohibited under Article 6 ATT. In a first step, State parties have to assess whether the exported arms or items would contribute to or undermine peace and security or could be used to commit or facilitate serious violations of international humanitarian or human rights law or an act of terrorism or transnational organised crime.67 Thereafter, State parties have to consider measures capable of mitigating the risk of any of the listed negative consequences occurring.68 Should the State party conclude that there is still an overriding risk for this to happen, it has to deny authorisation of the export.69 Considering that the treaty does not provide for a definition of the term ‘overriding risk’, State parties enjoy a considerable amount of discretion in making this assessment.70 Negative effects of arms exports on international peace and security constitute grounds for refusal of arms export authorisations both under Section III Political Principles as well as Article 2 (4) Common Position. Furthermore and as indicated above, Sections I (3) and III (4) Political Principles stipulate that authorisations for exports to States are to be denied if there are reasonable grounds for suspecting that the arms would be used for continuous and systematic human rights violations. In this respect, they even go beyond the restrictions contained in Article 2 Common Position, which only obliges States to deny export licences if there is a clear risk that the arms would be used for internal repression.71 With regard to other serious human rights violations, the provision only requires States to “exercise special caution and vigilance in issuing licenses.”72 As to the relationship between the two instruments, Section I (1) Political Principles clarifies that the principles contained therein take 67

Art. 7 (1) ATT.

68

Art. 7 (2) ATT.

69

Art. 7 (3) ATT.

70

Casey-Maslen/Giacca/Vestner (note 53), 29.

71

Art. 2 (2)(a) Common Position.

72

Art. 2 (2)(b) Common Position.

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priority over the ones stipulated in the Common Position where the latter is less restrictive.73 With respect to serious violations of international humanitarian law, Section III (6) Political Principles only provides for consideration of the importing State’s past adherence to the rules governing international and non-international armed conflicts in making the decision on the export authorisation. Much more straightforward, Article 2 (2)(c) Common Position requires Member States to deny an export licence in case of a clear risk that the military equipment might be used in the commission of serious violations of international humanitarian law. Lastly, the importing State’s conduct with respect to terrorism and international organised crime has to be taken into account when deciding upon arms export licences under Section III (7) Political Principles as well as Article 2 (6)(a) Common Position. However, as opposed to the risk of serious violations of human rights or humanitarian law occurring, no prohibition of exports is provided for in case of a clear risk of the exported weapons being used for such crimes. In summary, all of the negative consequences enshrined in Article 7 ATT are already incorporated in the legal act and regulation upon which the federal government and the federal office of economics and export control base their decisions on arms export authorisations. With a view to the great margin of discretion as to what constitutes an ‘overriding risk’ of any of them occurring granted to State parties by Article 7 (3) ATT, replacing the term with ‘reasonable grounds’ or a ‘clear risk’ is covered by the provision and facilitates its strict and effective application. Only the possibility of the exported arms being used for acts of terrorism or international organised crime is handled less strictly in the Political Principles and the Common Position in that no export prohibition follows from it. The provisions should therefore either be interpreted broadly or be amended in order to fully satisfy the obligations set out in Article 7 ATT. Increasing control system regulating the transfer of conventional arms.” Additionally, State parties are obliged to “submit a report for the preceding calendar year on authorized or actual exports and imports of conventional arms covered under Article 2 (1)” according to Article 13 (3) ATT. State parties are not obliged to make the reports publicly available. The federal government already publishes an annual arms 73

More restrictive national policies are allowed according to Art. 3 Common Position.

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export report which is available to the public but to date is only published at the end of the succeeding year. According to its recent framework paper, the federal government intends to publish the report earlier, before the summer recess of the German Bundestag.74 Furthermore, the latter shall be informed of important export decisions within two weeks of the authorisation.75 Conclusion: In conclusion, the German legislative framework for arms export authorisations is already in large part in compliance with existing international legal standards on arms transfer and the new ATT. Prohibitions of specific arms transfers imposed by treaties to which the Federal Republic is a party have been incorporated in the WWCA. The criteria for deciding upon arms export licences contained in the Political Principles as well as the Common Position to a great extent reflect the criteria established under Articles 6 and 7 ATT. Only the absolute transfer prohibition of arms which would be used for international crimes contained in Article 6 (3) ATT is thus far insufficiently incorporated in both the Common Position and the Political Principles. However, the federal government has to consider this risk under Section 6 (3) WWCA when deciding upon export authorisations for weapons of war which significantly limits the negative impact on German compliance with Article 6 (3) ATT. With regard to transparency in arms export decisions only touched upon by the ATT, the federal government already goes beyond what is required by it and has committed itself to further increase transparency by publishing reports earlier and improving parliamentary control. It remains to be seen whether the framework paper will be put into practice in the near future.

74

Cf. Hickmann (note 56).

75

Ibid.

The Procurement and Use of Armed UAVs by the German Military in International and German Law NICHOLAS ENGLISH( AND TIM RAUSCHNING((

Introduction: The rise of unmanned aerial vehicle (UAV) technology to become a mainstay of modern-day warfare, especially over the last ten years, has been readily discernible. This has not gone unnoticed by the German military (Bundeswehr). Recent discussion has revolved around armed UAVs, a topic which has not abated since first being evoked in the early 2000s. The latest debate was initiated by the German air force (Luftwaffe) in August 2012. The procurement of armed UAVs was supported by then Defence Minister Thomas de Maizière and his Christian Democratic Union (CDU) party, and conditionally by shadow defence representatives of the Social Democratic Party of Germany (SPD), while being strongly opposed by the parties of The Greens and The Left.1 The issue was hotly debated in the Federal German Parliament (Bundestag) in January 2013,2 but in the face of huge public opposition the decision on armed UAVs was suspended until after the latest Bundestag election, which took place on 22 September 2013.3 The coalition treaty of the new CDU/SPD government specifically renounces the use of armed UAVs for targeted killings and outlines its commitment to domestic constitutional and interna(

Paralegal at Freshfields Bruckhaus Deringer LLP.

((

Rechtsreferendar at the Higher Regional Court of Hamburg and Research Associate at Luther Rechtsanwaltsgesellschaft mbH. The views expressed herein are solely those of the authors and do not in any way reflect the views of the Higher Regional Court, the authors’ respective law firms or their clients. 1

Johannes Kuhn, Deutschland im Kampfdrohnen-Dilemma, 3 August 2012, available at: http:// www.sueddeutsche.de/politik/bundeswehr-deutschland-im-kampfdrohnen-dilemma-1.1427711 (accessed on 26 November 2013). 2 Argumente gegen Drohnen sind nicht stichhaltig, Frankfurter Allgemeine Zeitung, 1 February 2013, 5. 3

Johannes Leithäuser, Kaufen, entwickeln oder ächten?, Frankfurter Allgemeine Zeitung, 19 April 2013, 5.

540 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

tional law in reaching the decision on procurement of armed UAVs without giving a definitive answer.4 As expected, due to the military’s firm interest in armed UAV technology, the issue did not stay off the agenda for long and is currently (late June 2014) the subject of parliamentary expert hearings with a decision to be expected in 2014.5 It is important to distinguish unarmed UAV technology, generally used for surveillance, and armed UAV weapons systems; the prevalence of the unhelpful blanket moniker ‘drone,’ especially in the media, can obfuscate the functions of the respective technologies. The Bundeswehr already owns and operates many types of German-made unarmed UAVs, among them the Luna, Aladin and KZO systems, which have been used for reconnaissance missions in Afghanistan, Kosovo and Macedonia.6 In addition to this, the German armed forces have rented three Israeli Heron I UAVs until October 2014 for use in Afghanistan.7 The long-term project concerning the American-manufactured Global Hawk undertook a preliminary testing phase under the project name Euro Hawk,8 though this nosedived into a high-profile and costly

4

Coalition Treaty between CDU, CSU and SPD (Koalitionsvertrag zwischen CDU, CSU und SPD, 18. Legislaturperiode, Deutschlands Zukunft gestalten), 178, available at: http://www.bundestag.de/ dokumente/textarchiv/2013/48077057_kw48_koalitionsvertrag/koalitionsvertrag.pdf (accessed on 23 January 2014). 5 SPD-Experte sieht kein Szenario für Kampfdrohnen, Spiegel Online, 30 June 2014, available at: http://www.spiegel.de/politik/deutschland/debatte-umkampfdrohnen-spd-experte-sieht-kauf-skeptischa-978228.html (accessed on 30 June 2014).The use of armed UAV technology may be an imperative part of the current alleged “revolution in military affairs” that European military forces, according to Franke, are falling behind upon in the face of public attitudes, see Ulrike Esther Franke, A Tale of Stumbling Blocks and Road Bumps: Germany’s (non-)Revolution in Military Affairs, Comparative Strategy 31 (4) (2012), 353. The Commander of the German forces in northern Afghanistan, Major General Jörg Vollmer, has since again called for the Bundeswehr to adopt armed UAVs for the protection of German troops on the ground, see Zeit Online, Deutscher General in Afghanistan will bewaffnete Drohnen, 23 October 2013, available at: http://www.zeit.de/politik/ausland/2013-10/drohnen-bundeswehrafghanistan (accessed on 27 November 2013). 6 Franke (note 5), 356–357. Germany owns six Luna (Luftgestützte Unbemannte NahaufklärungsAusstattung) and 115 Aladin (Abbildende Luftgestützte Aufklärungsdrohne im Nächstbereich), both produced by the German firm EMT Penzberg, as well as six KZO (Kleinfluggerät Zielortung), manufactured by the German firm Rheinmetall AG. 7 8

Ibid., 357.

Markus Becker, Super-Drohne der Bundeswehr absolviert ersten Testflug, Spiegel Online, 11 January 2013, available at: www.spiegel.de/wissenschaft/technik/langstrecken-drohne-euro-hawkabsolviert-ersten-testflug-a-877077-druck.html (accessed on 26 November 2013).

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failure in May 2013 due to “incalculable risk.”9 As many as 87 States are reported to own unarmed UAVs.10 However, the use of these technologies has been non-contentious by comparison; controversy really starts when the systems become armed, such as the range of ominously named Predator and Reaper systems, designed and built in the United States (US). Operational control of the first Predator UAV systems were handed over to the US Air Force in 1996,11 to which weapons were first attached in 2002.12 Since then their numbers have increased exponentially. It is difficult to assess how many States have developed armed UAVs due to the covert nature of military technological development, but as many as ten to fifteen States, including Germany,13 are thought to have programmes aimed at their development.14 This article aims to outline those international and German legal provisions that are of interest to the largely political debate on the procurement of armed UAVs, and explore conditions for their use under international and German law if the Luftwaffe’s plans are ever to come to fruition. Relevant International Law Pertaining to Armed UAVs: As far as international law is concerned, the most important norms for these purposes are found in international human rights law (IHRL) and international humanitarian law (IHL). IHRL contains provisions on, for example, the right to life, contained in Article 2 European

9 Markus Becker/Matthias Gebauer, Gescheitertes Drohnen-Projekt: ‘Euro Hawk’ wird zum 500Millionen-Euro-Fiasko, Spiegel Online, 14 May 2013, available at: http://www.spiegel.de/wissenschaft/ technik/euro-hawk-drohne-wird-zum-500-millionen-euro-fiasko-a-899812.html (accessed on 27 November 2013). 10

Guy Taylor, U.S. intelligence warily watches for threats to U.S. now that 87 nations possess drones, The Washington Times, 10 November 2013, available at: http://www.washingtontimes.com/news/ 2013/nov/10/skys-the-limit-for-wide-wild-world-of-drones/?page=all (accessed on 27 November 2013). 11 Sebastian Wuschka, The Issue of Combat Drones in Current Conflicts: A Legal Issue or a Political Problem?, Goettingen Journal of International Law 3 (2011), 891, 892. 12

Ibid., 892–893.

13

Reportedly, Germany is in discussion with Israel as well as the United States and is currently said to favour the latter’s ‘Reaper’ model: Bundeswehr soll waffenfähige Drohnen bekommen, Spiegel Online, 28 June 2014, available at: http://www.spiegel.de/politik/deutschland/von-der-leyen-willentwicklungbewaffnungsfaehiger-drohnen-a-978049.html (accessed on 30 June 2014). Earlier it seems to have focused on the Israeli ‘Heron’ model: Waffenhandel: Bundeswehr erwägt Kauf bewaffneter Drohen aus Israel, Zeit Online, 14 April 2013, available at: http://www.zeit.de/politik/deutschland/ 2013-04/bundeswehr-kampfdrohnen-israel (accessed on 23 January 2014). 14

Wuschka (note 11), 892.

542 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

Convention on Human Rights (ECHR)15 and Article 6 International Covenant on Civil and Political Rights (ICCPR).16 This also applies in wartime, the latter being confirmed by the ICJ’s Nuclear Weapons Advisory Opinion.17 Article 6 ICCPR prohibits the arbitrary deprivation of life: the taking of life has to be necessary and proportionate.18 In order to determine this in times of armed conflict the lex specialis of IHL has to be evaluated; some situations may be exclusively matters of human rights law, some may be exclusively humanitarian law and some may involve the interaction of both strands of law.19 As a basic rule of IHL, Article 35 (1) Protocol I to the Geneva Conventions (Protocol I Geneva Conventions)20 states that “in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited,” a concretisation of the general maxim of customary international law that States are bound to take legal examination of equipment and methods used in warfare. Any government contemplating adding armed UAVs to its armed forces must therefore first evaluate the legality of the system itself under the law of weaponry, i.e. whether it is allowed to procure a weapons system, and secondly the way such a system can legally be used under the law of targeting. Procurement of Armed UAVs under International Law: There is no specific international legal treaty regulating the development or acquisition of autonomous or remotely-controlled technology. As such the relevant IHL on weaponry must be assessed in general. It is not the UAV itself that constitutes a weapon; the weapon is the particular array of, say, missiles or machine guns that it carries.21 As such, it is simply the weap15 (European) Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS No. 5 (ECHR). 16

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171.

17

International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 25. 18

See e.g. United Nations Human Rights Committee (UNHRC), Suarez de Guerrero v. Colombia, Decision of 31 March 1982, UN Doc. CCPR/C/15/D/45/1979 (1979), para. 13. 19

ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 106. 20 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 23 January 1979, UNTS 1125, 3 (Protocol I Geneva Conventions). 21

For further discussion of this point, see Wuschka (note 11), 893–895. For this reason the law of weaponry does not have to be evaluated when procuring unarmed UAVs.

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onry attached to the UAV that has to be assessed against the law of weaponry to adjudge the legality of its procurement. As well as this general evaluation, any weapons attached to UAVs naturally have to conform to the usual treaty prohibitions and restrictions concerning chemical, poisonous, nuclear and biological weapons, as well as any other form of weapon inherently forbidden in IHL. Firstly, Article 48 Protocol I Geneva Conventions epitomises the basic rule that parties to the conflict distinguish between combatants and civilians, conducting operations only against military objectives, which is elaborated on by Article 51 Protocol I Geneva Conventions, amongst others. While some commentators argue that US armed UAVs have been successful in providing greater compliance with IHL,22 others regard this as an academic fallacy.23 The arguments supporting the latter, however, allude more to how the US has deployed its armed UAV programmes and not necessarily to the nature of the systems.24 The question here is not whether armed UAVs have caused unnecessary civilian casualties in the past, but rather whether they can be used in a targeted fashion against purely military objectives. Armed UAVs are not autonomous; they are controlled from flight centres often thousands of miles away. Many people see the video feed,25 meaning many are involved in the decisionmaking process. In addition to this, armed UAVs generally fly at slower speeds than traditional jets, arguably increasing precision.26 Further, given their unmanned nature and surveillance capabilities, armed UAVs are able to monitor a situation for a lengthy 22 Ryan J. Vogel, Drone Warfare and the Law of Armed Conflict, Denver Journal of International Law and Policy (DJILP) 39 (1) (2010–2011), 101, 102; Harold Koh, The Obama Administration and International Law, Address at the Annual Meeting of the American Society of International Law, 25 March 2010, available at: http://www.state.gov/s/l/releases/remarks/139119.htm (accessed on 27 November 2013); Michael W. Lewis, Drones and the Boundaries of the Battlefield, Texas International Law Journal 47 (2012), 293, 297–298. 23

Michael J. Boyle, The costs and consequences of drone warfare, International Affairs 89 (2013), 1, 3–14; more cautiouslyAndrew C. Orr, Unmanned, Unprecedented, and Unresolved: The Status of American Drone Strikes in Pakistan Under International Law, Cornell International Law Journal 44 (2011), 729, 735. 24

This point will be broached further on in the article.

25

O’Connell quotes an unnamed Commander in the US Air Force who is involved in the operation of armed UAVs, saying that “a thousand people see the video feed,” see Mary Ellen O’Connell, Remarks: The Resort to Drones under International Law, DJILP 39 (2010–2011), 585, 586–587. Hyperbole aside, it can be assured that a lot of people are involved in the decision-making process. 26

Peter W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (2010), 34.

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period of time before operators make a definitive decision. Therefore they can facilitate targeted use. Secondly, Article 35 (2) Protocol I Geneva Conventions forbids States from using weapons that cause superfluous injury or unnecessary suffering. If the example of the specially-designed American MQ-9 Reaper system is used here, the weapons attached to the UAV are laser-guided AGM-114 Hellfire missiles, laser-guided GBU-12 Paveway II and GBU-38 Joint Direct Attack Munitions.27 These and similar weapons are already used in other areas of combat, e.g. by fighter jets and ground troops, and in these other circumstances they are accepted by IHL.28 The weapons do not inherently cause superfluous injury or unnecessary suffering and indeed may be used to minimise this. In addition to these points, Germany’s membership of the Missile Technology Control Regime (MTCR), an association of States designed for the non-proliferation of certain types of unmanned delivery systems,29 would be unaffected by the procurement of armed UAVs. Under the soft law guidelines of the MTCR,30 a decision to export items listed in its annex31 is subject to a number of strict factors.32 The objects listed in the annex include “complete unmanned aerial vehicle systems (including cruise missile systems, target drones and reconnaissance drones) capable of delivering at least a 500 kg ‘payload’ to a ‘range’ of at least 300 km.”33 Yet what Germany is 27 U.S. Air Force, MQ-9 Reaper Factsheet, 18 August 2010, available at: http://www.af.mil/About Us/FactSheets/Display/tabid/224/Article/104470/mq-9-reaper.aspx (accessed on 27 November 2013). 28

Ian Henderson, Civilian Intelligence Agencies and the Use of Armed Drones, Yearbook of International Humanitarian Law 13 (2010), 133, 137. 29

See the website of the Missile Technology Control Regime (MTCR) for further information, available at: http://www.mtcr.info/english/index.html (accessed on 27 November 2013). 30

MTCR, Guidelines for Sensitive Missile-Relevant Transfers, 7 January 1993, available at: http://www.mtcr.info/english/guidetext.htm (accessed on 27 November 2013). 31

Id., Equipment, Software and Technology Annex, 17 October 2013, MTCR/TEM/2013/Annex, available at: http://www.mtcr.info/english/MTCR-TEM-Technical_Annex_2013-10-17.pdf (accessed on 27 November 2013). 32

These are contained in Guideline 3 MTCR Guidelines (note 30): “A. Concerns about the proliferation of weapons of mass destruction; B. The capabilities and objectives of the missile and space programs of the recipient state; C. The significance of the transfer in terms of the potential development of delivery systems (other than manned aircraft) for weapons of mass destruction; D. The assessment of the end use of the transfers, including the relevant assurances of the recipient states; E. The applicability of relevant multilateral agreements; F. The risk of controlled items falling into the hands of terrorist groups and individuals”. 33

MTCR, Equipment, Software and Technology Annex (note 31), 16.

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proposing is to procure armed UAVs, not necessarily export them. Germany will therefore not have to apply the factors listed above. The only way in which the MTCR Guidelines will be applicable in this situation is if Germany tries to import armed UAVs that fall within the specifications listed above, in which case the exporting State will have to apply the criteria, assuming it is a member of the MTCR. Germany is thought to favour the Israeli Heron TP system, which has a payload of 2,000 kg and range of 7,400 km, falling within the specifications. However, Israel is yet to become a partner in the MTCR, meaning that it is not even subject to the soft law guidelines listed above. Even if it were, or if Germany were to purchase similar systems from an MTCR partner State, it is unlikely that Germany would find it difficult to assuage any concerns listed in Section 3 MTCR Guidelines. In conclusion, there are no international legal barriers preventing Germany from procuring armed UAVs. Use of Armed UAVs under International Law: The use of armed UAVs is a question steeped in complexity, and this article can only address certain aspects. A lot of literature has focussed on armed UAVs’ deadly operation by civilian intelligence agencies34 or the legitimacy of armed UAV attacks outside areas of traditional armed conflict.35 These more specific issues relate to particular situations; here the question will be explored in a more general manner. Firstly to the deadly use of force by armed UAVs outside of any form of armed conflict. As noted above, under Article 6 ICCPR the deprivation of life has to be necessary and proportionate. National law has to strictly control and limit the circumstances in which a person may be deprived of life by security forces36 and an action to deprive of life is likely to be arbitrary when it is undertaken without first

34 See e.g. Andrew Burt/Alex Wagner, Blurred Lines: An Argument for a More Robust Legal Framework Governing the CIA Drone Program, Yale Journal of International Law Online 38 (2012), 1, available at: http://www.yjil.org/docs/pub/o-38-burt-wagner-blurred-lines.pdf (accessed on 17 February 2014); Henderson (note 28). 35

That is, killing members of Al-Qaeda, the Taliban, and associated forces with armed UAVs in Pakistan and Yemen, amongst others. The literature examines the wider question of whether the ‘war on Al-Qaeda, the Taliban, and associated forces’ constitutes, or can possibly constitute, an armed conflict in international law, see, e.g. Orr (note 23); Lewis (note 22); Milena Sterio, The United States’ Use of Drones in the War on Terror: The (Il)legality of Targeted Killings Under International Law, Case Western Reserve Journal of International Law 45 (2012), 197. The jus ad bellum will not be discussed here. 36

UNHRC, General Comment No. 6: The Right to Life (Article 6), 30 April 1982, UN Doc. HRI/GEN/1/Rev.7 (1982), para. 3.

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giving sufficient warning.37 Given the nature of the armed UAV as being remote from action on the ground, it is unlikely that it can give sufficient warning. For this reason, armed UAVs are unable to play a big role, or more likely any role at all, in e.g. law enforcement in peace time under international law. Secondly to the use of force during an armed conflict, during which the lex specialis of IHL is used to determine what is necessary and proportionate under Article 6 ICCPR. This will have to be evaluated on a case-by-case basis. The first prerequisite is the principle of military necessity38 whereby attacks in armed conflict must offer a definite military advantage. The second, as elucidated above, is the principle of distinction between combatants and civilians. This is something of a grey zone in modern-day warfare, and thus a civilian is somewhat ambiguously protected by provisions only until such time as “they take direct part in hostilities.”39 In order to try to concretise this provision the International Committee of the Red Cross (ICRC) adopted guidance in 200940 stating that direct participation refers to specific acts undertaken by civilians as part of the conduct of hostilities; a civilian must willingly undertake an act that adversely affects military operations.41 Civilians are not afforded protection for the duration of these acts, whereas members of organised armed groups may lose civilian status altogether.42 This must be stringently overseen and armed UAV strikes must not be indiscriminate. The third prerequisite is that the effect of an attack must not cause excessive civilian casualties and damage to civilian property in comparison to the military advantage anticipated.43 The fourth, as again anticipated above, is the principle of prevention of superfluous injury or unnecessary suffering to

37 That was the case in UNHRC, Suarez de Guerrero v. Colombia (note 18), para. 13.2. Similar but distinct reasoning can be found under Art. 2 ECHR, see European Court of Human Rights, McCann and Others v. United Kingdom, Judgment of 29 September 1995, App. No. 18984/91, Series A, No. 324. 38

Art. 52 (2) Protocol I Geneva Conventions.

39

Art. 51 (3) Protocol I Geneva Conventions.

40

Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, International Review of the Red Cross 90 (2008), 991. 41

Ibid., 1013–1031.

42

Ibid., 1034–1037.

43

Found in e.g. Arts. 51 (5)(b) and 57 (2)(b) Protocol I Geneva Conventions, the former prohibiting a form of indiscriminate attack and the latter imposing a need to take precaution in attack. This is often called the ‘proportionality test,’ but that is considered confusing in terms of this article, which discusses the German constitutional principle of proportionality, a different test, further on.

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combatants. These prerequisites must be stringently applied on a case-by-case basis by Germany if it uses armed UAVs in armed conflict. One of the biggest issues raised by the use of armed UAVs is targeted killing, where “lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance by the perpetrator.”44 Assuming an armed conflict, the prerequisites above must be applied to individual situations to determine legality. Outside of armed conflict, a premeditated deliberate killing can never be legal; killing can never be the sole objective of an operation.45 It is in this distinction that the USA’s arguments supporting its targeted killings in, e.g., Pakistan and Yemen find their bite: that the ‘war on Al-Qaeda, the Taliban, and associated forces’ is a genuine armed conflict and IHL can thus be applied to the situation. This is a much wider debate, but the point is that if international law does not accept armed conflict in this situation, the targeted killings represent extrajudicial killings, gross breaches of IHRL and international criminal law. Relevant German Law Pertaining to Armed UAVs: German domestic law contains a number of further restrictions on the possible use of armed UAVs by the Bundeswehr which mainly derive from the German constitution, the Basic Law (Grundgesetz).46 For historic reasons it strictly limits the deployment of armed forces as well as the actual use of armed force. As regards procurement, German law only prohibits the trade and manufacturing of weapons of mass destruction (biological, chemical and nuclear weapons), land mines and cluster munitions47 as well as weapons that cannot be used in a manner consisted with international law or only for purposes of aggression in terms of Article 26 Basic Law.48 Limitations on the Deployment of the Bundeswehr as an Armed Force: Provisions on armed forces (Wehrverfassung) were only inserted into the Basic Law in 44

Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on targeted killings, 28 May 2010, UN Doc. A/HRC/14/24/Add.6, para. 9. 45

Ibid., para. 33.

46

Basic Law for the Federal Republic of Germany (Grundgesetz), 23 May 1949, Bundesgesetzblatt (BGBl.), 1, in the revised version published on 11 July 2012, BGBl. III, 100–101. 47

Secs. 16–18a Military Weapons Control Act (Kriegswaffenkontrollgesetz), 22 November 1990, BGBl. I, 2506, as amended on 6 June 2013, BGBl. I, 1482. 48

Cf. Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 77, 170, 232–233.

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1956,49 about seventeen years after the Federal Republic of Germany came into existence in 1949. The Bundeswehr was established solely for purposes of defence (Article 87a (1) Basic Law); any other use of force must be authorised through separate provisions of the Basic Law (Article 87a (2) Basic Law). Permission for an international deployment of the Bundeswehr as part of peace-keeping or peace-building missions authorised by the Security Council under Chapter VII Charter of the United Nations,50 is contained in Article 24 (2) Basic Law.51 In addition, the actual deployment of the Bundeswehr as an armed force must always be explicitly authorised separately by the Bundestag.52 The Basic Law is even more restrictive on the deployment of the Bundeswehr within Germany. With view to the experiences before and during World War II, the Basic Law strictly separates the activities of the armed forces on the one hand and those of the police on the other. Hence, the Bundeswehr may be deployed internally only in two cases: either “to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land [German State]” (Article 87a (4) Basic Law) or in case of a natural disaster or particularly grave accident (Article 35 (2) and (3) Basic Law). These two scenarios are however to remain exceptions and must be interpreted restrictively and true to their respective wording (Gebot strikter Texttreue).53 Article 35 (2) cl. 2 and (3) Basic Law permits the deployment of the Bundeswehr to assist and support the police forces of the affected Land or Länder in response to a natural disaster or particularly grave accident (Katastrophennotstand). A particularly grave accident is generally understood to be an event triggered by human error or technical inadequacies causing damages of great proportions.54 While this notion seems to imply damage caused by unintentional or at most negligent conduct, the 49

Act Amending the Basic Law (Gesetz zur Änderung des Grundgesetzes), 19 March 1956, BGBl. I,

111. 50

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

51

FCC, BVerfGE 90, 286, 348–349.

52

Ibid., 381–382. Since 2005, this procedure is regulated in detail by the Parliamentary Participation Act (Parlamentsbeteiligungsgesetz), 18 March 2005, BGBl. I, 775. 53 FCC, 2 PBvU 1/11 of 3 July 2012, available at: http://www.bverfg.de/entscheidungen/up 20120703_2pbvu000111.html (accessed on 23 January 2014), paras. 25, 59; id., BVerfGE 115, 118, 142; id. (note 51), 356–357. 54

Id., BVerfGE 115, 118 (note 53), 143–144.

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German Federal Constitutional Court (FCC) has clarified that Article 35 Basic Law applies also in cases of intentional attacks, including terrorist attacks.55 It is, however, very doubtful whether this provision can be used to employ armed UAVs in response to acts of terrorist or other extremists. Whether the Bundeswehr is allowed to use military-type weapons when deployed under Article 35 Basic Law is subject to considerable debate. In 2006, the First Senate of the FCC held that the Bundeswehr, when deployed under Article 35 Basic Law, could use only those means also available to the police. This judgment was, however, overturned in 2012 by a ruling of the Plenary (i.e. the full court). The Plenary argued that neither the wording of Article 35 Basic Law, nor a systematic interpretation or its genesis warranted an absolute exclusion of the use of military weapons in the context of Article 35 Basic Law. The decisive aspect in this context is whether and, if so, to what extent, the use of military-type weapons is reserved to deployments under Article 87a (4) Basic Law. In its report, the drafting committee of the pertinent provisions made clear that Article 87a (4) Basic Law established a high threshold for the deployment of the Bundeswehr as an armed force and that “the armed deployment of the Bundeswehr [should] only be permitted when it is necessary to fight groups of militarily armed rebels (Article 87a (4)).”56 Under Article 87a (4) Basic Law, the Bundeswehr may however only be employed “[i]n order to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land to support the police […] in combating organised armed insurgents.” This high threshold is unlikely to be reached by any isolated terrorist attacks conceivable today.57 While the Plenary recognised that the specific requirements of Article 87a (4) Basic Law may not be 55

Ibid., 143–144, 148–149; id., 2 PBvU 1/11 (note 53), para. 46.

56

Report of the Legal Committee of the German Parliament (Schriftlicher Bericht des Rechtsausschusses (12. Ausschuß) über den von der Bundesregierung eingebrachten Entwurf eines Gesetzes zur Ergänzung des Grundgesetzes (Drucksache V/1879) und über den von den Abgeordneten Dorn, Busse (Herford), Frau Dr. Diemer-Nicolaus, Mischnick und der Fraktion der FDP eingebrachten Entwurf eines Gesetzes zur Sicherung der rechtsstaatlichen Ordnung im Verteidigungsfall (Drucksache V/2130)), 2 May 1968, in: Printed Papers of the German Parliament (Bundestagsdrucksachen), BT-Drs. V/2873, 2, available at: http://dipbt.bundestag.de/doc/btd/05/028/0502873.pdf (accessed on 11 February 2014). 57 Cf. FCC, 2 PBvU 1/11 (note 53), para. 26. For details on the specific requirements, see Volker Epping, Art. 91, in: id./Christian Hillgruber (eds.), Beck’scher Online-Kommentar Grundgesetz (19th ed. 2013), para. 4; Hans Klein, Art. 21, in: Theodor Maunz et al. (eds.), Grundgesetz (69th ed. 2013), para. 520. On the notion of ‘free democratic basic order’ (freiheitliche demokratische Grundordnung), see FCC, BVerfGE 2, 1, 12–13; id., BVerfGE 5, 85, 140.

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circumvented by relying on Article 35 Basic Law to employ military force, it nonetheless considered that, in unspecified exceptional circumstances, as an ultima ratio, the use of military weapons was permissible to fight an armed attacker.58 Thus, according to the FCC, the Bundeswehr may, besides being sent overseas as part of a system of mutual collective defence, also be deployed internally in exceptional circumstances. Restrictions Imposed by German Domestic Law on How UAVs May Be Used by the Bundeswehr: This leads to the question of what restrictions German domestic law places on the way in which armed UAVs may be used by the Bundeswehr. Since pursuant to Article 1 (3) Basic Law all branches of government, including the Bundeswehr as part of the executive, are bound to the basic rights laid down in the Basic Law, armed UAVs may only be deployed in ways that do not violate applicable basic rights. This is not only true for the use of the Bundeswehr internally but also when deployed externally since Article 1 (3) Basic Law does not contain any territorial limitation and is therefore interpreted to cover all acts of German State organs everywhere.59 Moreover, even if the federal territory is under attack by an armed force or imminently threatened with such an attack (the state of defence (Verteidigungsfall), as established in Article 115a Basic Law), all basic rights, except for the right to property (Article 14 Basic Law) and non-deprivation of liberty (Article 104 Basic Law), remain fully applicable;60 in times of internal crises (Article 87a (4) in conjunction with Article 91 Basic Law), there are no limitations on the basic rights at all, not even those permitted by Article 4 ICCPR.61 Most importantly, this means that the infringement upon a person’s right to life is only permitted where provided by law (Article 2 (2) cl. 1 and 3 Basic Law). Because 58

FCC, 2 PBvU 1/11 (note 53), paras. 40–51. Supporting this conclusion Volker Epping, Art. 35, in: id./Hillgruber (note 57), para. 25.2. 59 Matthias Herdegen, Art. 1 (3), in: Maunz et al. (note 57), para. 71; Christian Hillgruber, Art. 1, in: Epping/id. (note 57), para. 76, with further references; Volker Epping, Art. 87a, in: id./Hillgruber (note 57), para. 36; Andreas Zimmermann, Grundrechtseingriffe durch deutsche Streitkräfte im Ausland und das Grundgesetz, Zeitschrift für Rechtspolitik (ZPR) 45 (2012), 116, 117; Klaus Stoltenberg, Auslandseinsätze der Bundeswehr im menschenrechtlichen Niemandsland?, ZPR 40 (2007), 111, 112. 60

Cf. Art. 115c (2) Basic Law.

61

Cf. Theodor Maunz, Art. 91, in: id. et al. (note 57), para. 2.

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of the different legal regimes applicable in situations of armed conflict and those outside, these two scenarios must be distinguished. With regard to situations outside armed conflicts, a further distinction between internal and external deployment is warranted. When employed internally, the Bundeswehr operates under the applicable police laws.62 These permit the killing of a person only as a means of last resort, i.e. once all other less harmful means have been exhausted or will evidently be without success, and only “to avert an immediate danger to life or an immediate danger of serious bodily harm” caused by that person.63 Apart from this, weapons may only be used to render a person unable to attack or flee.64 Prior to any use of armed force against a person, a warning must be issued unless the immediate use of force is necessary to avert the immediate danger to a person’s life or limb.65 Only in the latter case may weapons be used against the person responsible in a way that might injure but not kill innocent people.66 However, the FCC stressed in its 2006 judgment on the constitutionality of a provision authorising the shooting down of a plane in situations like the attack on the World Trade Center in 2001 that the Basic Law does not permit the taking of innocent lives even if they are almost certainly destined to die anyway to save (many) others.67 By such action, the State would treat the loss of the innocent lives as mere objects or, to put it even 62

Ibid., para. 18; Otto Depenheuer, Art. 87a, in: Maunz et al. (note 57), para. 178; Volker Epping, Art. 35, in: id./Hillgruber (note 57), para. 25.2; id.; Art. 91, in: id./Hillgruber (note 57), para. 4. 63 Instead of all Länder, see only e.g. Sec. 66 (1) cl. 1 and (2) cl. 2 Bavarian Police Act (Bayrisches Polizeiaufgabengesetz), 14 September 1990, Gesetz- und Verordnungsblatt 1990, 397, and Secs. 24 (1)(1), 25 (2) Hamburg Police Act (Hamurgisches Sicherheits- und Ordnungsgesetz), 14 March 1966, Hamburgisches Gesetz- und Verordnungsblatt (HmbGVBl.) 1966, 77, as amended on 4 December 2012, HmbGVBl. 2012, 510, 518. The police laws of the Länder Berlin, Mecklenburg-Vorpommern and Schleswig-Holstein do not contain provisions on the lethal use of force, neither does the Federal Police Act (Bundespolizeigesetz), 19 October 1994, BGBl. I, 2978, 2979, as amended on 29 June 2013, BGBl. I, 1602, nor the Act on the Use of Force by Federal Enforcement Officers (Gesetz über den unmittelbaren Zwang bei Ausübung öffentlicher Gewalt durch Vollzugsbeamte des Bundes), 10 March 1961, BGBl. III, 201, as amended on 31 October 2006, BGBl. I, 2407, nor the Act on the Use of Force by the Bundeswehr (Gesetz über die Ausübung unmittelbaren Zwangs durch Soldaten der Bundeswehr), 12 August 1965, BGBl. I, 769, as amended on 21 December 2007, BGBl. I, 3198. 64

See only Sec. 66 (2)(1) Bavarian Police Act and Sec. 24 (2)(1) Hamburg Police Act.

65

See only Sec. 64 (1) Bavarian Police Act and Sec. 22 (1) Hamburg Police Act.

66

See only Sec. 66 (4) Bavarian Police Act and Sec. 24 (2) cl. 2 and 3 Hamburg Police Act. See also Jens Kersten, Die Tötung von Unbeteiligten: Zum verfassungsrechtlichen Grundkonflikt des § 14 III LuftSiG, Neue Zeitschrift für Verwaltungsrecht 24 (2005), 661, 663. 67

FCC, BVerfGE 115, 118 (note 53), 154.

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more drastically, ‘collateral damage’ in its endeavour to save others, thereby severely violating the right to respect their human dignity (Menschenwürde),68 prominently enshrined in Article 1 (1) Basic Law. The operator of the armed UAV and those giving the order to employ the weapon against a person will also be criminally liable pursuant to Section 212 and possibly Section 211 German Criminal Code (Strafgesetzbuch)69 unless they acted in accordance with police law or in self-defence, i.e. their action must have been necessary to “avert an immediate unlawful attack on oneself or another” (Section 32 German Criminal Code).70 Since the police laws are only applicable within the given Land, when deployed overseas in a non-armed conflict type situation (e.g. when the previously existing armed conflict has ebbed away), the use of force is, apart from the Basic Law, regulated by German criminal law, particularly the previously mentioned provisions of the German Criminal Code and those of the German Code of International Crimes (Völkerstrafgesetzbuch)71 applicable outside armed conflicts. In situations of armed conflict, it is IHL, rather than police law, which specifies the situations in which persons may be killed. However, pursuant to Article 2 (2) cl. 3 Basic Law, the right to life may only be interfered with “pursuant to law” (auf Grund eines Gesetzes), i.e. authorised by a parliamentary law, as is clear from the authentic German wording.72 Hence, whether IHL rules can be invoked to justify infringements on the right to life depends on their mode of transformation into the German legal order. For international law treaties this is effected through a national law of assent (Article 59 (2) Basic Law). However, since IHL rather contains prohibitions of certain acts in times of armed conflict, it is doubtful whether it can be seen as

68

Ibid. Critical of this reasoning Matthias Herdegen, Art. 1 (1), in: Maunz et al. (note 57), para. 96.

69

German Criminal Code (Strafgesetzbuch), 13 November 1998, BGBl. I 3322, as amended on 10 October 2013, BGBl. I, 3799. 70

The relationship between self-defence and the police law provisions on the lethal use of weapons is discussed controversially. For an overview, see Volker Erb, § 32 StGB, in: Wolfgang Joecks/Klaus Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch (2nd ed. 2011), paras. 186–200; Walter Perron, § 32 StGB, in Adolf Schönke et al. (eds.), Strafgesetzbuch (28th ed. 2010), paras. 42a–c. 71 72

German Code of International Crimes (Völkerstrafgesetzbuch), 26 June 2002, BGBl. I, 2254.

Udo Di Fabio, Art. 2 (2)(2), in: Maunz et al. (note 57), para. 42; Heinrich Lang, Art. 2, in: Epping/Hillgruber (note 57), para. 68.

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containing a permission to infringe the right to life.73 The same problem exists with regard to customary norms of IHL. Moreover, these are integrated into the German legal order directly through Article 25 Basic Law without any further parliamentary act and thus do not meet the requirements of Article 2 (2) cl. 3 Basic Law.74 Yet, if one was to consider these rules generally capable of limiting the right to life, this limitation would have to be proportionate (verhältnismäßig)75 in order to be constitutional. When making this assessment, three things must be kept in mind. First, there are two seemingly circular rules of interpretation: on the one hand, if multiple interpretations of a law are possible, the interpretation most consistent with the Basic Law must be chosen (verfassungskonforme Auslegung).76 On the other hand, the Basic Law is also ‘friendly’ to public international law and therefore must be interpreted as far as possible in line with Germany’s international obligations (völkerrechtsfreundliche Auslegung).77 Second, the latter is only necessary where the national law can be interpreted in a way that is inconsistent with international law. By imposing more rigid rules than required by international law on its own State organs, a State cannot violate international law because IHL and IHRL only set a minimum standard.78 Third, the FCC allows certain modifications to the scope of basic rights when applied extraterritorially.79 These considerations become particularly relevant in two situations. Firstly, the high value placed by the Basic Law on the right to life as the basis for human dignity 73

Zimmermann (note 59), 119, who also raises concerns regarding the obligation under Art. 19 (1)(2) Basic Law that the law must refer explicitly to the right infringed (Zitiergebot). While the FCC applies this requirement only to laws which “are directed at infringing a basic right beyond its inherent boundaries” (FCC, BVerfGE 28, 36, 46; id., BVerfGE 64, 72, 79), Zimmermann’s concern seems justified since, due to the importance of the right to life for human dignity, the death of innocent people in times of armed conflict should not be considered an inherent limitation to the right to life, see Christian Pestalozza, Inlandstötungen durch die Streitkräfe: Reformvorschläge aus ministriellem Hause, Neue Juristische Wochenschrift 60 (2007), 492, 495, who also casts doubts as to whether IHL can limit basic rights. 74

Zimmermann (note 59), 118.

75

Ibid., 117–118.

76

FCC, BVerfGE 2, 266, 282; id., BVerfGE 7, 120, 126; id., BVerfGE 8, 38, 41; id., BVerfGE 19, 1, 5; id., BVerfGE 30, 129, 148; id., BVerfGE 32, 373, 383–384.; id., BVerfGE 119, 247, 274. 77

Id., BVerfGE 58, 1, 34; id., BVerfGE 74, 358, 370; id., BVerfGE 75, 1, 19; id., BVerfGE 111, 307,

324. 78

Cf. Zimmermann (note 59), 117.

79

FCC, BVerfGE 31, 58, 77; id., BVerfGE 92, 26, 41–42.; id., BVerfGE 100, 313, 363.

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can be used to support the argument80 that the principles of military necessity and humanity warrant that a terrorist who is currently not engaged in active fighting but might be considered a legitimate military target pursuant to the membership approach, should be captured rather than killed. While the issue of targeted killings is too broad to be discussed here fully, the application of IHL on the basis of the Basic Law should lead to the conclusion that the killing of a civilian, directly participating at times in hostilities, can only be lawful if that person nonetheless poses such a danger that he must be killed now rather than captured later.81 Since armed UAVs seem to be most frequently employed to target terrorists,82 this could severely impact the Bundeswehr’s ability to use armed UAVs. The second issue relates to UAVs’ nature as an aerial weapon system and the associated risk of incidental casualties among the civilian population by an otherwise lawful use of force. The loss of civilian lives is a regretfully frequent occurrence in armed conflicts, which is not always entirely avoidable. The inclusion of provisions on national defence (particularly Articles 24 (2), 87a and 115a et seq. Basic Law) can be seen as an indication that the Basic Law acknowledges these realities of armed conflict and accepts certain related limitations to Basic Rights, including the right to life.83 Such conclusion is also not inconsistent with the 2006 judgment of the FCC since the latter expressly limited its findings to situations outside of armed conflicts.84 This, however, does not mean that these situations are exclusively regulated by IHL. Rather, also in armed conflict, the Bundeswehr must give effect to the high value placed on human life and dignity by the Basic Law. Hence, the balancing of military advantage and the loss of civilian lives cannot be a question of merely

80 Nils Melzer, Targeted Killing or Less Harmful Means? Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity, Yearbook of International Humanitarian Law 9 (2006), 87; id., Keeping the Balance between Military Necessity and Humanity: A Response to Four Critiques of the ICRC’s Interpretative Guidance on the Notion of Direct Participation in Hostilities, New York University Journal of International Law & Politics 42 (2010), 831, 902–909; Kai Ambos, Einstellungsverfügung GBA vom 20. 6. 2013 zum Drohneneinsatz in Mir Ali/Pakistan am 4.10.2010 u. Tötung des dt. Staatsangehörigen B.E, Anmerkung zur “offenen Version” vom 23.7.2013, Neue Zeitschrift für Strafrecht 33 (2013), 634, 636, with further references. Critical of this reasoning: Jens David Ohlin, The Duty to Capture, Minnesota Law Review 97 (2013), 1268. 81 Cf. also the criteria of threshold of harm, direct causation and belligerent nexus proposed by the ICRC, Melzer (note 40), 995–996. 82

Ambos (note 80), 636.

83

FCC, BVerfGE 77, 170, 221.

84

Id., BVerfGE 115, 118 (note 53), 153, 157.

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avoiding ‘excessive’ damage (sometimes also referred to as a proportionality test in IHL) but must adhere to a stronger test of proportionality. Conclusion: The procurement of armed UAVs is seemingly unproblematic under international law and the German domestic law that it informs upon. The newly elected representatives are free to make the hugely political decision on whether or not they want to arm the Bundeswehr with armed UAVs. Where international law and German law do lay down restrictions is in relation to the use of armed UAVs. The systems may be deployed outside of armed conflict under IHRL only in very limited circumstances, if at all. Under German law, the Bundeswehr can only be deployed within Germany in response to natural disasters or grave accidents, where armed UAVs would be unsuitable, and in times of internal emergency, which sets a very high threshold. Targeted killing outside of armed conflict contravenes both international and German law and could lead to criminal sanctions under both. In the situation of armed conflict, IHL prescribes a number of prerequisites that must be evaluated on a case-by-case basis to determine what constitutes a necessary and proportionate deprivation of life. German law puts an increased importance on the idea of human dignity, meaning that in some situations the use of armed UAVs may be acceptable under IHL while not being so under German law, which would prefer capture and internment. German law also places more emphasis on the principle of proportionality, which is stronger than its IHL counterpart.

50th Anniversary of the Élysée Treaty JULE SIEGFRIED* AND MARIEKE LÜDECKE**

Historical Background: Président Charles de Gaulle once described the FrancoGerman reconciliation as a “miracle of our time.”1 A few months later, on 22 January 1963 the Treaty on Franco-German Cooperation,2 the Élysée Treaty (Treaty) was signed. Given that Franco-German history since the Franco-German war of 1870/71 was shaped by the ideology of Erbfeindschaft, hereditary hostility, and further shattered by two world wars,3 the conclusion of this Treaty can be assessed to be remarkable. However, the conclusion of the Treaty is no miracle but rather corresponded to the interests of both France and West Germany and to the already ongoing development. The Élysée Treaty is the result of a process of rapprochement and conciliation between West Germany and France which cannot only be attributed to State actors. In fact, it was actors of civil society and business who operated as mediators between France and West Germany in the aftermath of World War II and in the then following years and therewith initiated the reconciliation.4 In 1950, shortly after the first West German chancellor (Bundeskanzler) Konrad Adenauer had claimed that the * **

Research Associate and Doctoral Candidate at the University of Trier. Rechtsreferendar at the Regional Court in Kiel.

1

Horst Möller/Klaus Hildebrand (eds.), Die Bundesrepublik Deutschland und Frankreich: Dokumente 1949–1963, vol. 3: Parteien, Öffentlichkeit, Kultur (1997), 1. 2 Treaty on Franco-German Cooperation (Vertrag über die deutsch-französische Zusammenarbeit), 22 January 1963, Germany-France, Bundesgesetzblatt (BGBl.) II, 707. 3

See on the Franco-German history e.g. Deutsches Historisches Institut Paris (ed.), DeutschFranzösische Geschichte, Vols. 1–11 (2005–2011); Ulrich Lappenküper, Die deutsch-französischen Beziehungen 1949–1963: Von der „Erbfeindschaft“ zur „Entente élémentaire“ (2001). 4

See Corine Defrance/Ulrich Pfeil, Der Élysée-Vertrag und die deutsch französischen Beziehungen: Eine Einleitung, in: id. (eds.), Der Élysée-Vertrag und die deutsch-französischen Beziehungen 19451963-2003 (2005), 9, 38 et seq.

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Franco-German opposition had to be dispersed,5 the Schuman Declaration indicated how strongly the development of the Franco-German relationship was linked to European integration. Robert Schuman stated that the “coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.”6 With the establishment of the ensuing European Coal and Steel Community (ECSC) in 1951, West Germany for the first time appeared as an equal player in Western Europe. Whereas plans for a European political integration were unsuccessful in 1954 together with the failure of a European Defence Community, the Paris Agreements7 were signed in the same year. These agreements consolidated West Germany’s position by repealing the Occupation Statute and effecting West Germany’s admission to the Western European Union and the North Atlantic Treaty Organization (NATO). The economic integration of Europe progressed in 1958 when the European Economic Community8 (EEC) came into being. Yet, the attempt of the first president of the French Fifth Republic de Gaulle for a political integration in the form of a “Union of States”9 did not prove to be successful. His Fouchet plans10 of the early 1960s to build a political union based on intergovernmental cooperation 5 Konrad Adenauer, Government Declaration, 20 September 1949, reprinted in: Ingo von Münch (ed.), Aktuelle Dokumente: Regierungserklärungen 1949–1973 (1973), 7, 27. 6

Robert Schuman, Government Declaration, 5 May 1950, available at: http://www.robert-schuman. eu/en/doc/questions-d-europe/qe-204-en.pdf (accessed on 28 January 2014). 7

The Paris Agreements comprise the Convention on the Presence of Foreign Forces in the Federal Republic of Germany, 23 October 1954, UNTS 334, 3 and the Protocol of Termination of the Occupation Régime in the Federal Republic of Germany (with Schedules of Amendment), 23 October 1954, UNTS 331, 253; the latter amending by its Schedule I the earlier Convention on the Relations Between the Three Powers and the Federal Republic of Germany, 26 May 1952, UNTS 331, 327; by its Schedule II the Convention on the Rights and Obligations of Foreign Forces and Their Members in the Federal Republic of Germany, 26 May 1952, UNTS 332, 3; by its Schedule III the Finance Convention, 26 May 1952, UNTS 332, 157; by its Schedule IV the Convention on the Settlement of Matters Arising out of the War and the Occupation, 26 May 1952, UNTS 332, 219 and by its Schedule V the Agreement on the Tax Treatment of the Forces and Their Members, 26 May 1952, UNTS 332, 387. Additionally, the Protocol to the North Atlantic Treaty on the Accession of the Federal Republic of Germany, UNTS 243, 308 was also signed on 23 October 1954. 8

Treaty Establishing the European Economic Community, 25 March 1957, UNTS 294, 3.

9

See Title I, Art. 1 Draft Treaty Fouchet Plan I, 2 November 1961, available at: http://www.cvce. eu/obj/draft_treaty_fouchet_plan_november_1961-en-485fa02e-f21e-4e4d-9665-92f0820a0c22 (accessed on 18 January 2014). 10 Draft Treaty Fouchet Plan I (note 9) and Draft Treaty Fouchet Plan II, 18 January 1962, available at: http://www.cvce.eu/obj/draft_treaty_fouchet_plan_ii_18_january_1962-en-c9930f55-7d69-4edc8961-4f12cf7d7a5b (accessed on 18 January 2014).

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in the fields of economy, defence and culture failed, particularly because the EEC Member States could not agree on the admission of Great Britain.11 While the idea of a political union was discussed on the European scale, Adenauer and de Gaulle considered a close cooperation between France and West Germany in the form of constant consultations in matters of foreign policy already in September 1958, at their first meeting in Colombes-des-Églises.12 Besides the insight that another war had to be prevented, both Adenauer and de Gaulle had additional interests in a close relationship between their countries. De Gaulle aimed at having a partner to strengthen the European position vis-à-vis the United States and the Soviet Union.13 Adenauer expected to strengthen West Germany’s position in Western Europe. Moreover, both Adenauer and de Gaulle feared a rapprochement of the other with the Soviet Union.14 This first meeting marked the beginning of constant communications between Adenauer and de Gaulle. Between 1958 and 1962 they talked a total of over 100 hours and wrote each other about 40 letters.15 During this time, the two statesmen came to remarkably appreciate each other. This trusting relationship is widely recognised to be an important factor in the conclusion of the Élysée Treaty.16 Although the relationship between West Germany and France had its ups and downs in the late 1950s and beginning of the 1960s,17 Adenauer and de Gaulle revived 11 See e.g. Armin Fuhrer/Norman Haß, Eine Freundschaft für Europa: Der lange Weg zum ÉlyséeVertrag (2013), 262 et seq. 12

Konrad Adenauer, Erinnerungen, vol. 3: 1955–1959 (1967), 424 et seq.

13

See Ulrich Lappenküper, Von der „Erbfeindschaft“ zur „Erbfreundschaft“, Französisch heute 34 (2003), 220, 225. 14

Id., Auswärtige Angelegenheiten: Auf dem Weg zu einer gleichgerichteten Haltung in Fragen gemeinsamen Interesses?, in: Defrance/Pfeil (note 4), 101, 102; Peter A. Zervakis/Sébastien von Gossler, 40 Jahre Elysée-Vertrag: Hat das deutsch-französische Tandem noch eine Zukunft?, Aus Politik und Zeitgeschichte 53 (B 3–4) (2003), 6. 15

Jaques Beriéty, Der französische Weg zum Elysée-Vertrag, in: Defrance/Pfeil (note 4), 61, 68, footnote 21. 16

Bardo Fassbender, Der deutsch-französische Elysée-Vertrag von 1963: Idee und Zukunft eines bilateralen Freundschaftsvertrags im Rahmen der Europäischen Union, Die Öffentliche Verwaltung 66 (2013), 125, 129. 17 In the aftermath of the meeting in Colombes-des-Églises, for instance, the relationship was strained when de Gaulle requested to establish a triumvirate within the NATO excluding West Germany. Shortly after, however, France firmly supported West Germany in the course of the Berlin crisis at the end of 1958. The climate between the two States then again varied until 1961 when the worsening of the relationship

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their idea of a bilateral cooperation when the European political union failed. In July 1962 de Gaulle asked Adenauer whether he would be willing to enter into a bilateral political union in case a European political union was not successful.18 In the following months, de Gaulle and Adenauer concretised their plan. They agreed to focus on the issues of foreign and defence politics, as well as youth and culture.19 With regard to the form of the cooperation, they initially did not consider the form of a treaty, but rather a non-binding document, a ‘gentlemen’s agreement.’20 However, due to doubts of the West German Ministry of Foreign Affairs as to the compatibility with the German constitution, the form of a treaty was chosen.21 In the process of the required ratification, however, the German Federal Parliament (Bundestag) issued a preamble to the law approving the Élysée Treaty (Zustimmungsgesetz)22 which deviated from the intentions of Adenauer and de Gaulle to create a strong Franco-German centre.23 The preamble in particular emphasised West Germany’s rights and obligations deriving from multilateral treaties, the common defence within NATO, the partnership with the United States of America and the inclusion of Great Britain in a unified between West Germany and the USA under President John F. Kennedy led to the afresh improvement of the relationship between France and West Germany. See e.g. Fuhrer/Haß (note 11), 269 et seq.; Reiner Marcowitz, Überwindung traditioneller Stereotype: Die deutsch-französischen Beziehungen 1949–1963, Dokumente: Zeitschrift für den deutsch-französischen Dialog 68 (2) (2012), 37. 18

Conversation between Chancellor Adenauer and President de Gaulle (Gespräch des Bundeskanzlers Adenauer mit Staatspräsident de Gaulle in Paris), 5 July 1962, reprinted in: Institut für Zeitgeschichte (ed.), Akten zur Auswärtigen Politik der Bundesrepublik Deutschland 1962, vol. II (2010), 1231, 1235. 19

Fuhrer/Haß (note 11), 281 et seq.

20

Conversation between Chancellor Adenauer and President de Gaulle (Gespräch des Bundeskanzlers Adenauer mit Staatspräsident de Gaulle), 5 September 1962, reprinted in: Institut für Zeitgeschichte (ed.), Akten zur Auswärtigen Politik der Bundesrepublik Deutschland 1962, vol. III (2010), 1493, 1497. 21 Some jurists considered the envisaged agreement to require the consent of the responsible legislative bodies in the form of a law in accordance with Art. 59 (2) German Basic Law (Grundgesetz), 23 May 1949, BGBl., 1 as amended on 11 July 2012, BGBl. I, 1478. See Note by Undersecretary Carstens (Aufzeichnung des Staatssekretärs Carstens), 10 January 1963, reprinted in: Institut für Zeitgeschichte (ed.), Akten zur Auswärtigen Politik der Bundesrepublik Deutschland 1963, vol. I (2013), 42 and 43, footnote 7; Note by Head of Department von Haeften (Aufzeichnung des Ministerialdirektors von Haeften), 14 January 1963, in: ibid., 73. 22 Law on the Joint Declaration and on the Treaty of 22 January 1963 between the Federal Republic of Germany and the French Republic on Franco-German Cooperation (Gesetz zu der Gemeinsamen Erklärung und zu dem Vertrag vom 22. Januar 1963 zwischen der Bundesrepublik Deutschland und der Französischen Republik über die deutsch-französische Zusammenarbeit), 15 June 1963, BGBl. II, 705. 23

Lappenküper (note 14), 102.

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Europe. The insertion of the preamble was a compromise between the ‘Gaullists’ favouring a strong Franco-German centre and the ‘Atlantics’ who particularly did not want to establish the latter at the expense of the relationship to the United States, to other European States and of the European integration.24 De Gaulle reacted with discontentment: “treaties […] are like young girls and like roses: they last as long as they last. If the Franco-German Treaty was not applied this would not be the first time in History.”25 Content: The Élysée Treaty is basically a bilateral framework agreement which determines the main objectives of the Franco-German cooperation.26 In particular, it codifies the cooperation in the areas of foreign affairs, defence and youth and education affairs through the respectively competent national institutions. The Treaty itself is divided into three sections: organisation, programme and final provisions, which follow a joint declaration. Although the Treaty is partly assessed to be a friendship treaty, there is no such reflection in the title or the wording. However ‘friendship’ aspects of the Treaty may be seen in one of its main achievements: the regular meetings on different levels in order to harmonise and coordinate the political, administrative and economic work of both States. According to the first section of the Treaty, the heads of State and government have to meet twice a year; additionally the ministers of foreign affairs and defence, also responsible for the implementation of the Treaty, are committed to meet every three months, the chief officers of both foreign ministries meet monthly (Section I (2) Élysée Treaty). Furthermore, the Treaty codifies regular meetings concerning youth and educational matters (Section I (3)(c) Élysée Treaty). These provisions on regular meetings are indeed of procedural character but they are of substantial importance as they allow both sides to encounter each other in times of divergence.27 The regular consultations are strengthened by two additional protocols

24

See Peter Borowsky, Die westeuropäische Integration 1963–1974, Informationen zur politischen Bildung 258 (1998), available at: http://www.bpb.de/izpb/10114/die-westeuropaeische-integration1963-1974?p=0 (accessed on 30 January 2014); Lappenküper (note 3), 1907 et seq. 25

In the original: “les traités […] sont comme les jeunes filles et comme les roses: ça dure ce que ça dure. Si le traité franco-allemand n’était pas appliqué ce ne serait pas la premiere fois dans l’Histoire,” reprinted in: Jean Lacouture, De Gaulle, vol. 3, Le souverain 1959–1970 (1986), 308. 26 27

Fuhrer/Haß (note 11), 286.

Manfred Steinkühler, Der deutsch-französische Vertrag von 1963: Entstehung, diplomatische Anwendung und politische Bedeutung in den Jahren 1958 bis 1969 (2002), 196.

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of 1988,28 which constitute a common Defence and Security Council as well as an Economic and Financial Council. Topics Covered by the Élysée Treaty: In the area of foreign affairs the Treaty aims to establish analogous and thus strong positions in particular concerning the European Communities, NATO and East-West relations through regular meetings (Section II (A)(1) Élysée Treaty) . Furthermore, the Treaty deals with the common defence policy in the form of arms cooperation through common strategies and tactics and a strengthened personnel exchange of the armed forces (Section II (B) Élysée Treaty). The establishment of these provisions in the Treaty followed a Franco-German harmonisation, which had started already ten years before, and laid down ambitious aims.29 The wording with regard to defence shows that at the time of the conclusion of the Treaty both States were far away from an analogous position and rather had different strategic interests and positions, apart from Adenauer’s and de Gaulle’s wish of a united Europe with a strong Franco-German centre.30 However, as shown above, the West German Zustimmungsgesetz weakens this purpose.31 The Élysée Treaty also has a focus on social and civil topics, which were included with the objective of eliminating the long-lasting antagonism and distrust in both populations.32 As youth and educational issues were of major interest for Adenauer and de Gaulle,33 an advancement of language teaching, the mutual recognition of degrees and diplomas as well as cooperation in the field of academic research were codified (Section II (C)(1) Élysée Treaty). Furthermore, the foundations for the later successful Deutsch-Französisches Jugendwerk (Jugendwerk) (Franco-German Youth

28

Protocols to the Treaty of 22 January 1963 between the Federal Republic of Germany and French Republic on Franco-German cooperation (Protokolle zum Vertrag vom 22. Januar 1963 zwischen der Bundesrepublik Deutschland und der Französischen Republik über die deutsch-französische Zusammenarbeit), 22 January 1988, BGBl. II, 1152 and BGBl. II, 1155. 29

Florence Gauzy, Die Verteidigung: Von der Anpassung der Doktrien zu gemeinsamen Konzepten?, in: Defrance/Pfeil (note 4), 127, 134, 144. 30 See Recital 5 Joint Declaration on Franco-German Cooperation (Gemeinsame Erklärung), 22 January 1963, BGBl. II, 706; Lappenküper (note 14), 125. 31

See Gauzy (note 29), 136; Lappenküper (note 14), 102.

32

Zervakis/von Gossler (note 14), 9.

33

Fuhrer/Haß (note 11), 288.

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Office) were laid (Section II (C)(2) Élysée Treaty), an organisation for the promotion of exchanges and other such opportunities for youth cooperation. Topics Not Covered by the Élysée Treaty: The Élysée Treaty determines a close cooperation in terms of political and social matters. It is noticeable that there is no independent section on economic and cultural matters, although they were part of prior negotiations. A reason for this might be that these topics, unlike the topics codified in the Treaty, were already covered by several other multilateral agreements such as the General Treaty34 and the Settlement Convention35 as well as by international communities such as the ECSC and EEC and different bilateral agreements between both States.36 Therefore, there was little not covered by existing law. Also, conflicts with this existing law had to be avoided.37 The Treaty itself relates to economic matters only insofar as it determines that negotiations and cooperation concerning the common market will be examined (Section II (A)(4) Élysée Treaty), and thus uses a rather careful wording.38 This can be explained by the failure of the ‘Union of States’ de Gaulle focused on before concluding the Élysée Treaty. Including economic matters in the power of this new ‘Union of States’ was highly controversial, in particular with respect to the already existing European Communities.39 An incorporation into the Élysée Treaty would have brought up the same conflicts again.40 Also, prior meetings in 1954 and the establishment of the Franco-German Chamber of Industry and Commerce had already led to strong economic cooperation between both States,41 thus there was no need for additional bilateral codification. Moreover, although not explicitly codified, 34

Convention on the Relations between the Federal Republic of Germany and the Three Powers.

35

Convention on the Settlement of Matters Arising out of the War and the Occupation.

36

See e.g. Extradition Treaty (Auslieferungsvertrag), 29 November 1951, France-Germany, BGBl. 1953 II, 152; Agreement on Air Transport (Abkommen über den Luftverkehr), 4 October 1955, FranceGermany, BGBl. 1956 II, 1078; Saar Treaty (Vertrag zur Regelung der Saarfrage), 27 October 1956, France-Germany, BGBl. II, 1689. 37 Fuhrer/Haß (note 11), 290; Andreas Wilkens, Warum ist die Wirtschaft nicht Gegenstand des Élysée-Vertrages?, in: Defrance/Pfeil (note 4), 169, 181. 38

Wilkens (note 37), 169.

39

Ibid., 177.

40

Ibid., 181.

41

Guido Thiemeyer, Ein wirtschaftlicher Elysée-Vertrag: Die Vereinbarungen von La Celle-Saint-Cloud am 19.Oktober 1954, Dokumente: Zeitschrift für den deutsch-französischen Dialog 68 (2) (2012), 47.

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the ministers of economic affairs and farming also took part in the regular consultations instituted by the Treaty.42 By including youth and educational affairs, culture was indeed covered. But culture in a classical understanding was not included.43 Nevertheless, the Treaty prescribes monthly meetings between officials of the ministries of foreign affairs responsible for cultural affairs in its section on organisation (Section I (2) Élysée Treaty). In addition, there was already a cultural agreement of 1954 between both States,44 which was seen as the legal basis for cultural cooperation.45 Development: Impact on Franco-German Relations and Politics: The relationship formed by the Élysée Treaty began with some difficulties as it was created during an era of change in the international system inter alia due to the Cold War and because different political concepts prevailed in Paris and Bonn.46 This was especially true following Adenauer’s withdrawal in October 1963. The parties were not able to reach a unified position due to a range of issues including cooperation with the United States, and nuclear weapon policy and defence within the framework of NATO.47 The parties’ positions regarding foreign affairs and defence indeed were incompatible which led to a crisis for the bilateral cooperation.48 During this time the Élysée Treaty seemed to exist only as a formal commitment. However, the parties still held their regular consultations. It took almost twenty years before Adenauer’s and de Gaulle’s wish for a unified position would be on the agenda of both States again.49 It was the era of Président Giscard d’Estaing and Bundeskanzler Helmut Schmidt, which caused a revitalisation 42

See Franco-German Government Consultation (Deutsch-Französische Regierungsbesprechung), 4 and 5 July 1963, reprinted in: Institut für Zeitgeschichte (note 21), 706–717, 718–728. 43

Corine Defrance, Warum ist die Kultur nicht Gegenstand des Elysée-Vertrages geworden?, in: id./Pfeil (note 4), 197, 197 et seq. 44

Cultural Agreement (Kulturabkommen), 23 October 1954, France-Germany, BGBl. II, 885.

45

Defrance (note 43), 206.

46

Lappenküper (note 14), 103.

47

Gauzy (note 29), 137.

48

Hélène Miard-Delacroix, Im Zeichen der europäischen Einigung: 1963 bis in die Gegenwart (2011), 37; Zervakis/von Gossler (note 14), 8. 49

Lappenküper (note 14), 125.

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of the Treaty. This revival of the Treaty was continued by Bundeskanzler Helmut Kohl and Président François Mitterrand,50 who for instance established the FrancoGerman Security and Defence Council by the Additional Protocol in 1988.51 This also laid the legal basis for the Franco-German brigade founded in 1989.52 However, these newly created institutions did not provide for a common Franco-German defence position. Nevertheless, due to the regular consultations, mutual cooperation and exchange took place which caused an indirect progress in this matter.53 When the Common Foreign and Security Policy became part of the EU in 1993,54 the relevant topics were also discussed within a multilateral framework, but never stopped to be part of both States’ bilateral consultations. In the same year the Franco-German brigade was integrated into the Eurocorps founded by Kohl and Mitterrand. The latter provides military forces to NATO, which meant a progress in this disputed matter.55 However, the 1990s were also symbolic for both States’ incapability to deploy their military forces within a bilateral or multilateral framework as the war in the Former Yugoslavia dramatically showed.56 In more recent times, Germany and France have at times been unified in their position, e.g. in their reluctant attitude towards the United States’ war in Iraq, as they stressed on the 40th anniversary of the Treaty.57 However, this has not always been the case in matters of defence and foreign affairs policy. For example, during the military intervention in Libya, France was heavily involved,58 whereas Germany

50

Gauzy (note 29), 140.

51

See Protocol to the Treaty of 22 January 1963, BGBl. II, 1152 (note 28).

52

See Art. 4 Protocol to the Treaty of 22 January 1963, BGBl. II, 1152 (note 28); Bulletin of the German Government (Bundesregierung) No. 11-1988, 27 January 1988, available at: http://www.bundes regierung.de/Content/DE/Bulletin/1980-1989/1988/11-88_Kohl.html?nn=392138#Start (accessed on 30 January 2014). 53

Gauzy (note 29), 141.

54

Established by the Treaty on European Union, 7 February 1992, OJ 1992 C 191, 1.

55

Miard-Delacroix (note 48), 124.

56

Ibid., 125.

57

See TV interview with Bundeskanzler Schröder and Président Chirac, 22 January 2003, available at: http://elysee50.de/Interview-mit-Bundeskanzler,385.html (accessed on 30 January 2014). 58

See SC Res. 1973 of 17 March 2011.

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excluded itself from any military interaction59 and abstained from its vote in the United Nations Security Council. The ambitious aim of an analogous position in these matters certainly will be difficult to reach as both States still have different strategic positions and interests. Nonetheless, the exchange of military personnel, material or technology may be the basis for a pragmatic way of cooperation;60 currently61 a mission of the Franco-German brigade to Mali and an enhancement of the brigade are being discussed. Regarding youth and education affairs the Élysée Treaty set high aims. Not all of them could be fulfilled. For example, in the case of language teaching, due to the increasing importance of the English language, especially in the 1990s secondary education teaching of the language of the other partner dramatically dropped.62 New programmes hope to refresh this aim.63 Certainly one of the most important achievements of the Treaty has been the Jugendwerk, which is the only permanent institution created by the Treaty.64 Even during the time of alienation between both States after the conclusion of the Treaty, this unique binational institution65 was successful. Already in 1950, town couplings between France and West Germany had been initiated. By 1963 130 of these existed.66 The Jugendwerk promoted this kind of cooperation. Today more than 2,200 town couplings between France and Germany

59

See Government Statement by the German Minister of Foreign Affairs Westerwelle (Regierungserklärung durch Bundesaußenminister Westerwelle vor dem Deutschen Bundestag zum Umbruch in der arabischen Welt), 16 March 2011, available at: http://www.auswaertiges-amt.de/DE/Infoservice/Presse/ Reden/2011/110316_BM_BT_arab_Welt.html (accessed on 21 January 2014). 60

Gauzy (note 29), 143.

61

See Zeit Online, Regierung bereitet Einsätze in Mali und Zentralafrika vor, 17 January 2014, available at: http://www.zeit.de/politik/2014-01/bundeswehr-afrika-einsatz (accessed on 30 January 2014). 62 Ansbert Baumann, Erziehungs- und Jugendfragen: die Bande enger gestalten und das Verständnis füreinander vertiefen?, in: Defrance/Pfeil (note 4), 147, 155. 63

See Corine Defrance/Ulrich Pfeil, Die Entwicklung der deutsch-französischen Kulturbeziehungen nach Ende des Kalten Krieges, in: Martin Koopmann/Joachim Schild/Hans Stark (eds.), Neue Wege in ein neues Europa: Die deutsch-französischen Beziehungen nach dem Ende des Kalten Krieges (2013), 179, 193. 64

Zervakis/von Gossler (note 14), 10.

65

Henri Ménudier, Das Deutsch-Französische Jugendwerk: Ein exemplarischer Beitrag zur Einheit Europas (1988), 71. 66

Defrance/Pfeil (note 4), 39.

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exist, more than anywhere else in the world.67 And more than 8 million young people in over 300,000 programmes enjoyed the credits of the Jugendwerk.68 This has considerably affected the increasingly mobile tendency of students within the last twenty years. A new trait has developed by this exchange, namely the capability to be able to put oneself in someone else’s situation, promoting a better understanding of the neighbouring State.69 With regard to culture in a classical sense, although not explicitly mentioned in the Treaty, a pleasant trend occurred. Due to the regular summit conferences in 1986 an intensification and institutionalisation in terms of cultural cooperation started by founding the Franco-German Culture Council, the TV channel ARTE and the Franco-German Hochschulkolleg,70 followed by a further development of the cooperation in the late 1990s.71 The credit of the Élysée Treaty might be the fact that the regular summit conferences and meetings on each level sometimes directly, but far more often indirectly, initiated some kind of development. At times, concrete results emerged. However, some of these were more of a symbolic character. Impact on EU Politics: It is one of the explicit aims of the Élysée Treaty and the Joint Declaration to establish a close collaboration in matters of the European Communities and the European political cooperation in order to further unite Europe.72 The Franco-German contribution to the integration of Europe is undeniable. In fact, the efforts of the Franco-German duo have frequently been referred to as a ‘motor’ for the European integration.73 Indeed, as seen before, the latter has since its initiation 67

Franco-German Youth Office (Deutsch-Französisches Jugendwerk), Municipal Partnerships (Städtepartnerschaften), available at: http://www.dfjw.org/staedtepartnerschaften (accessed on 3 January 2014). 68 Franco-German Youth Office (Deutsch-Französisches Jugendwerk), Overview on Functions, available at: http://www.dfjw.org/aufgaben (accessed on 3 January 2014). 69

Defrance/Pfeil (note 63), 194.

70

See Joint Declaration on Cultural Cooperation (Gemeinsame Erklärung über kulturelle Zusammenarbeit), 28 October 1986, reprinted in: Pierre Jardin/Adolf Kimmel, Les relations franco-allemandes depuis 1963 (2001), 279–283. 71

Defrance (note 43), 213.

72

See para. II A 1 Treaty and Recital 5 Joint Declaration (note 30).

73

See e.g. Ulrike Guérot, Die Bedeutung der deutsch-französischen Kooperation für den europäischen Integrationsprozess, Aus Politik und Zeitgeschichte 53 (B 3–4) (2003), 14; Zervakis/von Gossler (note 14), 11; Miard-Delacroix (note 48), 307 et seq.; Daniela Schwarzer, Der traditionelle Zankapfel:

568 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013

by the Schuman Declaration been closely linked to the Franco-German relationship. The European integration and the Franco-German relationship have since then crossfertilised and benefited from each other. Nevertheless, there were times when the figurative ‘motor’ spluttered or even stood still. The obligatory consultations instituted by the Treaty have, since 1963, ensured that the dialogue between France and Germany in European matters is always sustained. In times of dispute this was the only, but not insignificant, achievement the Treaty produced. As seen above, such a bilaterally difficult period began in the years after its conclusion when Bundeskanzler Ludwig Erhard and de Gaulle were in office. These years also constituted a setback for the European integration. One low point was reached in 1965, when France’s ‘empty chair’ policy precipitated a crisis for the EEC.74 At other times, as was the case during the chancellorship of Willy Brandt and the presidency of Georges Pompidou beginning in 1969, the obligatory consultations arranged for a minimum of compromises. Although the bilateral cooperation then was characterised by conflicts, it proved to be effective and enhanced the European integration process. An Economic and Monetary Union was tackled, a political cooperation was considered and France after years of conflicts on this topic consented to Great Britain’s admission to the EEC.75 In the following years, the consultations instituted by the Élysée Treaty repeatedly had even wider implications. In several instances they provided the basis for a constructive Franco-German cooperation that promoted European matters, whether directly or indirectly. Often, a previously bilaterally agreed position or settled controversy played an important role in finding a compromise on the European level.76 Deutschland und Frankreich streiten über Wirtschafts- und Haushaltspolitik, 21 January 2013, available at: http://www.bpb.de/internationales/europa/frankreich/152434/wirtschafts-und-haushaltspolitik (accessed on 30 January 2014). 74

Borowsky (note 24).

75

Miard-Delacroix (note 48), 314, footnote 547; id., Zwei Partner für mehr Europa, Deutschland.de, 18 September 2012, available at: https://www.deutschland.de/de/topic/politik/deutschland-europa/zweipartner-fur-mehr-europa (accessed on 10 January 2014). 76

Zervakis/von Gossler (note 14), 11; Francesca Vassallo, Sarkozy and Merkel: The Undeniable Relevance of the Franco-German Bilateral Relationship in Europe, German Politics and Society 31 (2013), 92, 99. For instance, the efforts of Schmidt and Giscard d’Estaing with view to the shaping of the monetary system on the European scale were only made possible by their approach to previously settle the German-Franco bilateral disagreements, see Miard-Delacroix (note 48), 315 et seq.

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Achievements of the Franco-German tandem especially worth mentioning are the essential promoting of the establishment of the European Council in 1974 and the shaping of the European Monetary System established by Schmidt and Giscard d’Estaing in 1979.77 Mention should also be made of the furthering of the Single European Act of 1986 and of the promotion of the conclusion of the Maastricht Treaty of 1992,78 establishing the European Union and the Economic and Monetary Union initiating the Euro by Kohl and Mitterand.79 The essential impact of the then President of the European Commission Jacques Delors on this further European integration certainly has to be kept in mind as well.80 Indeed, the Franco-German influence on reforms of the European integration was never again as strong as it was previously to the conclusion of the Maastricht Treaty.81 In the beginning of the 2000s it was often assumed that the Franco-German impact had markedly declined since then.82 However, the couple franco-allemande seems to have regained some of its dynamics since the financial crisis in 2007 when it contributed considerably to the management of the crisis. At least within the eurozone, although at times in conflict, Berlin and Paris again promote European projects.83 Certainly, the Franco-German duo was in this context often criticised for bilaterally taking over European matters without appropriately including their European partners.84 77

Miard-Delacroix (note 48), 315 et seq.

78

Single European Act, 28 February 1986, OJ 1987 L 169, 1; Treaty on European Union.

79

Vassallo (note 76), 100; Miard-Delacroix (note 48), 317–320.

80

Vassallo (note 76), 100; Miard-Delacroix (note 48), 317–320.

81

Joachim Schild, Frankreich, Deutschland und die institutionelle Entwicklung der Europäischen Union seit 1990, in: Koopmann/Schild/Stark (note 63), 19, 23 et seq. 82

See e.g. Guérot (note 73), 14; Zervakis/von Gossler (note 14), 11; Sabine von Oppeln, Ende einer privilegierten Beziehung, Dokumente: Zeitschrift für den deutsch-französischen Dialog 59 (2) (2003), 11. 83

Claire Demesmay, Hat der deutsch-französische Bilateralismus noch Zukunft?, Aus Politik und Zeitgeschichte 63 (1–3) (2013), available at: http://www.bpb.de/apuz/152070/hat-der-deutschfranzoesische-bilateralismus-zukunft#footnode3-3 (accessed on 14 January 2014). 84

See the following quotations by, inter alia: EU commissioner Viviane Reding: “European decisions are not taken in Deauville, also not by two members alone. They are taken in Brussels, Luxembourg and Strasbourg by 27 member states, based on a solid proposal which is in the interest of all 500 million citizens,” as cited in: euobserver.com, ‘Irresponsible’ and ‘insulating’: Reding and France in fresh row, 27 October 2010, available at: http://euobserver.com/political/31137 (accessed on 15 January 2014); President of the Eurogroup Jean-Claude Juncker: “Es darf kein deutsch-französisches Kommando geben,” as cited in: Handelsblatt, Zehn Schritte zur Rettung des Euro, 12 October 2011, available at: http://www.handelsblatt.

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Nevertheless, it is widely accepted that the impact of the couple franco-allemande still is essential to the European Union. The cooperation and consensus of Germany and France is considered to be inevitable for its progress.85 Indeed, it is argued that specifically the different positions France and Germany take up in various matters and the compromises that follow these differences have the potential to stimulate Europe. They serve as a basis for a compromise on the European level, consolidating 28 diverse Member States.86 As Delors put it, “the Franco-German relationship is one of the ‘trees of life’ of Europe.”87 Another 50 Years?: Apart from the official celebrations in honour of the Treaty, its value is assessed divergently. It is frequently argued that the Treaty did not achieve significant results and that it did only play a marginal role within the Franco-German relationship.88 Undeniably, the Treaty does only provide for a few immediate concrete results, such as the Jugendwerk, and at the same time in parts it only pursues already existing treaty law and cooperation between both States. In this sense and taking into account that an analogous position in the codified areas was frequently not realised, the success of the Treaty can be doubted. In spite of this, it is arguable that the Treaty has been a success as it accomplished two things which at first glance may seem less significant. Firstly, it commits both States to regular summits, regardless of their differences. Although the aspired analogous position has often not been reached, the Treaty has been the link for the exchange of ideas and positions and for cooperation, even in times of alienation. Moreover, it has provided the basis for a com/politik/international/jean-claude-juncker-zehn-schritte-zur-rettung-des-euro-seite-all/4743196-all.html (accessed on 15 January 2014); President of the European Parliament Martin Schulz: “[D]ieses deutschfranzösische Direktorium, das sich anmaßt, über alles alleine zu entscheiden, das ist eine echte Gefahr […],” as cited in: Deutschlandfunk, Wir haben den großen ökonomischen Wurf und politisch das kleinste Karo, 30 October 2011, available at: http://www.deutschlandfunk.de/wir-haben-den-grossen-oekonomischen-wurfund-politisch-das.868.de.html?dram:article_id=124667 (accessed on 15 January 2014). 85 See e.g. Joschka Fischer, as cited in: Der Spiegel, Schluss mit dem Sauerkraut, 21 January 2013, available at: http://www.spiegel.de/spiegel/print/d-90638286.html (accessed on 15 January 2014); Guérot (note 73), 19; Zervakis/von Gossler (note 14), 13; Demesmay (note 83). 86 See e.g. Henrik Uterwedde, Franco-German cooperation: productive tension, 3 June 2013, available at: http://www.opendemocracy.net/henrik-uterwedde/franco-german-cooperation-productive-tension (accessed on 15 January 2014); Schild (note 81), 33. 87 Jaques Delors as cited in: EurActivcom, Delors: Franco-German alliance is EU’s ‘tree of life’, 7 April 2011, available at: http://www.euractiv.com/future-eu/delors-franco-german-alliance-eu-interview503851 (accessed on 15 January 2014). 88

For some examples see the compilation in: Defrance/Pfeil (note 4), 36 et seq.

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network between France and Germany which might be unique between States.89 Taking into account the history, the long lasting wars and antipathy between the two neighbour States this is certainly not insignificant. Secondly, the conclusion of the Treaty was and still is of a great symbolic and emotional value. By the Treaty the rapprochement between France and Germany which had already been promoted by different actors was officially appreciated by the States and beyond that encouraged to proceed. A recent survey found that 50 years after the conclusion of the Treaty more than 85 % of the population in each country consider the result of the Treaty and the cooperation between the States in a favourable light.90 The Treaty certainly did not mark the beginning of the Franco-German reconciliation but it has significantly contributed towards it. The main purpose when concluding the Treaty was peace through reconciliation; this in fact can be seen as its most important achievement. This was honoured by Herman van Rompuy, President of the European Council, in his Nobel lecture on the occasion of the bestowal of the Nobel Prize for Peace to the European Union in 2012.91 Van Rompuy used the term ‘friendship,’ to describe the relationship between France and Germany and this is how the relationship is frequently referred to. Whereas this term may be questionable, the Franco-German relationship at any rate was not and is not characterised by constant consent. Indeed, it was and is marked by differences and at times by conflicts. But the occurring differences offer good prospects as they have proved to be and still can be productive, bilaterally as well as on the European level. The impact of the Treaty on the relationship of both States and on the European integration cannot be neglected. Looking towards the future, another allegory of de Gaulle can be cited as he said that the Treaty was like a ‘rosary’ and as such might last “infinite, if one makes an effort to care for it.”92 89

Lappenküper (note 13), 233.

90

Survey on behalf of the German Embassy in Paris, Der Blick auf den Nachbarn: Wie beurteilen Deutsche und Franzosen 50 Jahre nach der Unterzeichnung des Élysée-Vertrags die Beziehung zwischen ihren beiden Ländern?, January 2013, 37, available at: http://www.allemagne.diplo.de/contentblob/ 3776388/Daten/2952847/startteaser2umfragedatei.pdf (accessed on 22 January 2014). 91

Herman van Rompuy/José Manuel Durão Barroso, From War to Peace: A European Tale, 10 December 2012, available at: http://www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu-lecture_en.html (accessed on 23 January 2014). 92

In the original: “[n]otre traité […] est une roseraie. […] une roseraie dure sans limite, si on prend soin de l’entretenir,” reprinted in: Alain Peyrefitte, C’était de Gaulle (2002), 826.

The Swiss-German Treaty on the Effects of the Operation of Zurich Airport on German Territory KATRIN KOHOUTEK(

Introduction: For a long time Germany and Switzerland have been in conflict about the noise in the south of Germany emanating from landing and starting aircrafts that use Zurich Airport. To settle the issue, in September 2012 a treaty has been signed, that is, however, not yet in force. This article will at first describe the factual and legal circumstances surrounding the dispute and in the following explain the regulations of the treaty in detail. It concludes with an evaluation of whether Germany should ratify this treaty, or rather not. Factual Background: Zurich Airport is situated 13 km north of Zurich. The straight-line distance to the Swiss-German border is only 15 km. The airport has been aligned in north-south direction. That means that most of the traffic is organised on runways 14/32 and 16/34 which run from north to south and vice versa.1 On these runways aircrafts start heading north. Approaches take place from north heading south. There is a third runway, runway 10/28, aligned east/west, but planes using this runway cause noise in nearby Swiss localities.2 That is why the airport has been built mainly in north/south direction. Planes landing from north or starting from south usually fly over German territory. It is now technically possible to land from a northern direction without crossing German territory (so-called curved northern approach), but this method requires new navigation technology and causes safety (

Research Associate and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. Many thanks to PD Dr. Marcus Schladebach for his comments concerning the article. 1

Jochen Wehrle, Der Streit um die Nordanflüge: Völkerrechtliche Probleme des Anflugs auf grenznahe Flughäfen (2008), 75 et. seq. 2

Ibid., 71–75.

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concerns with the Swiss authorities. Therefore it is still necessary to cross German air space in order to use runways 14/32 and 16/34 of Zurich Airport. In 2000 more than 90 % of traffic to and from Zurich airport was conducted through German air space.3 That entails the necessity for the air traffic control in Zurich to operate in German air space in order to manage all flights in one unit. For this reason there is an agreement between the German air traffic control, Deutsche Flugsicherung (DFS), and the Swiss air traffic control, Skyguide, that allows Skyguide to operate in the whole air space that is used to manage Zurich Airport.4 Furthermore, the airplanes cause noise in southern Germany. The affected local population there is not willing to accept that the bigger part of noise emanating from Zurich Airport is generated in Germany. That is why Germany had wanted to limit the number of flights over German territory in order to protect its own population from noise of a foreign airport.5 However, a study in 2009 found out that the noise in Germany is less than allowed by German or Swiss noise protection laws, while the Swiss population next to the airport has to endure legally significant amounts of noise.6 For this reason the Swiss side argues that the German population is not affected as badly as the Swiss one. Germany, on the other hand, still wanted to limit the number of flights over its territory. Thus the question arises, who has to bear the burden of noise of the airport? Is Switzerland compelled to deal with this problem on its own or does it have a right to use parts of the German air space for its airport? Legal Background and Legal History: The legal answer depends on the international law applicable. Both Switzerland and Germany are parties to the Convention on International Civil Aviation (Chicago Convention).7 This Convention is applica3

Ibid., 78.

4

Ibid., 100.

5

See, e.g., the Stuttgarter Erklärung of November 2011, available at: http://www.lrasbk.de/fileadmin/ redakteure/Aktuelles/Dokumente/Fluglaerm/Stuttgarter_Erklaerung_vom_25_11_2009.pdf (accessed on 20 January 2014), made by politicians from the affected region who demanded a maximum of 80,000 flights per year over German territory. 6 This study is cited by Joachim Bentzien, Vertrag zwischen der Bundesrepublik Deutschland und der Schweizerischen Eidgenossenschaft über die Auswirkungen des Betriebs des Flughafens Zürich auf das Hoheitsgebiet der Bundesrepublik Deutschland, German Journal of Air and Space Law 61 (2012), 597, 598. 7 Convention on International Civil Aviation, 7 December 1944, UNTS 15, 295. See for the ratification status Multilateral Treaties Deposited with the Secretary-General, available at: http://treaties.un. org/pages/showDetails.aspx?objid=0800000280163d69 (accessed on 20 January 2014).

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ble to civil aircraft, Article 3 (1) Chicago Convention. Thus, it is applicable to the scheduled air traffic of Zurich Airport. The Chicago Convention confirms in Article 1 the complete and exclusive sovereignty of a State over the air space above its territory. Article 6 Chicago Convention therefore requires the special permission or authorisation of a State for scheduled international air service operated over or into its territory. The additional International Air Services Transit Agreement (Transit Agreement)8 in Article 1 (1) No. 1 allows scheduled international air services to fly through the air space of each party without landing. Again both States are parties to the treaty.9 But while the Swiss government believes that landings and starts over German territory are covered by this rule,10 this is disputed by the German side.11 More detailed rules on the use of German air space can perhaps be found in European law. Switzerland is not a Member State of the European Union, but it is party to bilateral agreements with the former European Economic Community (EEC) that render certain parts of European Law applicable for Switzerland as well.12 In one of those seven agreements Switzerland has adopted European air law.13 This agreement does not include a provision on the freedom to fly through the territory of both parties, but presupposes this freedom.14 Furthermore, the Single European Sky as defined in Regulations (EC) 549-552/200415 also comprises the Swiss air space.16 8

International Air Services Transit Agreement, 7 December 1944, UNTS 84, 289.

9

See Multilateral Treaties Deposited with the Secretary-General, available at: http://treaties. un.org/pages/showDetails.aspx?objid=0800000280156f42 (accessed on 9 December 2013). 10

Wehrle (note 1), 187, 186 with further references.

11

Ibid., 188 with further references, see also Stuttgarter Erklärung (note 5) of several district administrators, mayors and members of the German parliament, all stemming from the affected German region. 12

Marcus Schladebach, Luftrecht (2007), 104.

13

See Agreement between the European Community and the Swiss Confederation on Air Transport of 21 June 1999, OJ 2002 L 114, 73 (Agreement on Air Transport). 14

Regula Dettling-Ott, Luftverkehrsabkommen Schweiz, in: Stephan Hobe/Nicolai von Ruckteschell (eds.), Kölner Kompendium des Luftrechts: Werk in drei Bänden, Band 1: Grundlagen (2008), 313. 15

Regulation (EC) 549/2004 of 10 March 2004, OJ 2004 L 96, 1; Regulation (EC) 550/2004 of 10 March 2004, OJ 2004 L 96, 10; Regulation (EC) 551/2004 of 10 March 2004, OJ 2004 L 96, 20; Regulation (EC) 552/2004, OJ 2004 L96, 26. 16 The Swiss Federal Council accepted an amendment of the annex to the Agreement on Air Transport on 3 May 2006 so that the Regulations on the Single European Sky could become part of this Agreement, Decision No. 2/2006 of the Community/Switzerland Air Transport Committee of 18 October 2006, OJ 2006 L 298, 25. See Regula Dettling-Ott, Flugsicherung in der Schweiz, in: Stephan Hobe/Nicolai von Ruckteschell (eds.), Kölner Kompendium des Luftrechts: Werk in drei Bänden, Band 2: Luftverkehr (2008), 1020.

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However, the Single European Sky does not regulate flight levels in detail. Moreover, Article 1 (2) Regulation (EC) 549/2004 declares that national sovereign rights regarding public order and security shall not be touched by this regulation. Additionally, Article 1 (3) of the same Regulation confirms the rights of all Member States of the European Communities deriving from the Chicago Convention. Consequently European law does not give an answer to the above question. As early as 1984 Germany and Switzerland tried to resolve the conflict through an agreement.17 This agreement prohibited flights over German territory between 10 p.m. and 6 a.m., but allowed for several exceptions. German localities later complained that they were confronted with too much noise as the air traffic increased so that Germany terminated the agreement in May 2000.18 As early as 2001 the Swiss and German governments signed a treaty to finally settle the issue.19 In this treaty Switzerland was allowed to control the air traffic to and from Zurich Airport over German territory. Article 6 of this treaty spelled out that no aircraft was allowed to fly below flight level 100 in German territory between 10 p.m. and 6 a.m. on weekdays and between 8 p.m. and 9 a.m. on weekends and holidays. According to the same provision there was to be a maximum of 100,000 approaches per year over German territory below the mentioned flight level. Regarding any changes in the infrastructure of the airport or its procedures, Germany was to be informed and there had to be agreement among both parties about such changes. However, this treaty never entered into force, as it was not ratified by the Swiss government.20

17

This agreement is fully cited in Wehrle (note 1), 310–312.

18

See Joachim Bentzien, Der deutsch-schweizerische Vertrag über die Durchführung der schweizerischen Flugverkehrskontrolle im süddeutschen Luftraum und über die Auswirkungen des Zürcher Flughafenbetriebes auf deutsches Hoheitsgebiet, German Journal of Air and Space Law 51 (2002), 493, 493–494 with further references. 19

This treaty is included in Deutscher Bundestag (German Federal Parliament), Drucksache 14/8731 of 4 April 2002, available at: http://dip21.bundestag.de/dip21/btd/14/087/1408731.pdf (accessed on 24 February 2014). 20 The Council of States of the Swiss Confederation finally disapproved of the treaty on 18 March 2003, see the Council of States, AB 2003, 279, available at http://www.parlament.ch/ab/frameset/d/s/4617/ 78535/d_s_4617_78535_78626.htm (accessed on 20 January 2014).

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In 2001 the German government had enacted national by-laws to limit the noise at the southern German border.21 Based on Section 32 (1) No. 1 Air Traffic Law22 in connection with Section 27 (2) Ordinance on Air Traffic23 several regulations have been issued. The 213th Regulation24 included in Section 2 (6) the prohibition of certain approaches in German air space between 10 p.m. and 6 a.m. during weekdays and between 8 p.m. and 9 a.m. during weekends and certain holidays. In the same periods of time other approaches had to be flown at a height of at least flight level 100. In an amended version25 the 213th Regulation prohibited the former approaches between 9 p.m. and 7 a.m. during weekdays and increased the minimum flight levels for the latter approaches in German air space to flight level 120 during the same periods of time. This limitation of the possibility to use German air space impaired the capacity of Zurich Airport. Hence one airline and the operator of Zurich Airport tried to challenge the Regulation in German courts as they saw their rights from the Chicago Convention, the Transit Agreement, and Regulation (EEC) 2408/9226 violated. Both actions were dismissed, as both companies were not entitled to rights under the agreement and because the ordinance did not discriminate against them or violated any European law.27 The following appeals before the Federal Administrative Court 21 See Joachim Bentzien, Die gerichtlichen Entscheidungen über die Beschränkungen des An- und Abflugs zum und vom Flughafen Zürich im süddeutschen Luftraum, German Journal of Air and Space Law 60 (2011), 68, 68–69, regarding the development until 2005 and Bentzien (note 6), 600, footnote 15 regarding the last ordinance. 22

Air Traffic Law (Luftverkehrsgesetz),1 August 1922, Reichsgesetzblatt I, 681, as amended on 7 August 2013, Bundesgesetzblatt (BGBl.) I, 3154. 23 Ordinance on Air Traffic (Luftverkehrs-Ordnung), 10 August 1963, BGBl. I, 652, as amended on 8 May 2012, BGBl. I, 1032. 24

Sec. 2 (6) 213th Regulation regarding the Ordinance on Air Traffic (213. Durchführungsverordnung zur Luftverkehrs-Ordnung), 15 January 2003, available at: http://www.vfsn.ch/dmdocuments/ Zweihundertdreizehnte_Durchfuehrungsverordnung_zur_Luftverkehrs_Ordnung.pdf (accessed on 24 February 2014). 25

Art. 1 (2) 1st Regulation on the Amendment of the 213th Regulation regarding the Ordinance on Air Traffic (Erste Verordnung zur Änderung der Zweihundertdreizehnten Durchführungsverordnung zur Luftverkehrs-Ordnung), 4 April 2003, available at: http://www.vfsn.ch/dmdocuments/Erste__ Aenderung_der_Zweihundertdreizehnten_DVO.pdf (accessed on 12 March 2014). 26 27

Regulation (EEC) 2408/92 of 23 July 1992, OJ 1992 L 240, 8.

Higher Administrative Court of Baden-Württemberg (Verwaltungsgerichtshof Baden-Württemberg), Judgment of 24 January 2003, available at: http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/ document.py?Gericht=bw&GerichtAuswahl=VGH+Baden-W%FCrttemberg&Art=en&sid=

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have been suspended to await a decision of the Court of Justice of the European Union (CJEU) on the same regulation:28 Switzerland brought an action for nullification before the CJEU against the Commission of the European Union that had decided not to forbid Germany to apply the 213th Regulation. In its judgment of 7 March 2013 the CJEU dismissed the action, as Germany had not (in contravention of Article 9 (1) Regulation (EEC) 2408/92) prohibited the use of its air space but had merely changed the flight path.29 The CJEU explicitly stated that the requirement of minimum flight levels did not amount to a prohibition of the right to fly over foreign air space as this requirement does not prohibit crossing German air space at higher flight levels.30 Rather, the 213th Regulation was a valid use made of the possibility in Article 8 (2) Regulation (EEC) 2408/92 to regulate air traffic for environmental reasons.31 Thus the CJEU confirmed the right of Germany to regulate the use of German air space for environmental and economic reasons. But before the judgment was passed, Germany and Switzerland had tried to find a new solution to the dispute: On 4 September 2012 both governments signed the Treaty on the Effects of the Operation of Zurich Airport on German Territory.32 Content of the Treaty of 4 September 2012: The Treaty contains nine articles. In its preamble the parties refer to the fact that both Germany and Switzerland are parties to the Chicago Convention. Germany and Switzerland strive to improve their collaboration in air traffic and to settle their dispute concerning the starts from and approaches to Zurich Airport. They express their interest in the development of 1e6c67748fa22d1fcda6bf3bd88b248b&nr=3187&pos=0&anz=1 (accessed on 20 January 2014), and id., Judgment of 24 January 2003 available at: http://lrbw.juris.de/cgi-bin/laender_rechtsprechung/ document.py?Gericht=bw&GerichtAuswahl=VGH+Baden-W%FCrttemberg&Art=en&sid= c84c884fa915a49f4e810a6e967e24ad&nr=1954&pos=0&anz=1 (accessed on 20 January 2014). 28

Federal Administrative Court (Bundesverwaltungsgericht), BVerwGE 123, 322.

29

CJEU, Case C-547/10 P, Confédération Suisse v. European Commission, Judgment of 7 March 2013, paras. 60, 127, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX: 62010CJ0547:EN:HTML (accessed on 24 February 2014). 30

Ibid., para. 61.

31

Ibid., paras. 87, 88.

32

Treaty on the Effects of the Operation of Zurich Airport on German Territory, 4 September 2012,Germany-Switzerland, available at: http://www.bmvbs.de/cae/servlet/contentblob/89508/ publicationFile/62078/staatsvertrag-deutschland-schweiz-flugverkehr-zuerich.pdf (accessed on 20 January 2014) (not yet in force).

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international air traffic, their wish to ensure safe air traffic above their common border and their wish to protect people and the natural environment from excessive consequences of air traffic. Germany and Switzerland agree to establish a joint commission on air traffic in Article 4 of this Treaty. It shall be instituted immediately after the entry into force of the Treaty and shall start working subsequently. The commission has to deal with all questions that result from the interpretation and application of the Treaty. Furthermore it shall support the implementation of the Treaty and has to deal with all tasks that are accorded to it in the Treaty. The commission will consist of five members from each party. The members can consult other bodies. The commission has to meet at least annually in regular sessions and may convene special sessions at the request of either party. It has to create its own rules of procedure. Next to this institutional development the Treaty deals with the main controversial subjects regarding Zurich Airport, namely the use of German air space for approaches to and starts from the airport, the possibility of the Swiss Skyguide air traffic control to operate in German air space and the possibility of the affected population in Germany to be involved in administrative procedures regarding the airport. Article 1 (1) deals in detail with the times during which German air space may be used for the airport. There is no maximum number of flights per year that are allowed to be made over German territory. Rather, time slots are used to limit the impacts on the German population. Article 1 (1) Nos. 1 and 2 deal with approaches over German territory. During weekdays in the time between 6:30 a.m. and 6 p.m. German territory may be used for approaches to runways 14 and 16 of the airport in Zurich. This period is shortened to 9 a.m. until 6 p.m. during Saturdays, Sundays and certain holidays which are listed in an annex. Outside of this timeframe there may be no approaches to those runways except in emergencies. The Swiss Confederation has to inform the Federal Republic of Germany about these emergencies. Article 1 (1) No. 2 prohibits the simultaneous use of runways 14 and 16 in order to increase the capacity of the airport. Approaches to another runway of Zurich Airport over German territory may not be made below flight level 80. Article 1 (1) No. 3 deals with starts from Zurich airport. Starts have to be made in such a way that the airplane has reached at least flight level 120 over German territory. Aircrafts that cannot fly so high are exempted from this rule. The following paragraph deals with the use of the waiting

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area RILAX above German territory: Unless an aircraft cannot fly that high, the minimum flight level for RILAX is flight level 130. In those periods of time during which the use of runways 14 and 16 is prohibited RILAX may be used only with consent of the DFS. According to Article 1 (1) No. 5 of this Treaty propeller-driven airplanes that operate with visual flight and weigh no more than 8,618 kg, as well as non-scheduled airplanes and helicopters are exempted from the whole regulation of starts and landings taking place over German territory. Article 1 (2) of the Treaty allows the Swiss Confederation to arrange for approaches to runways 14 and 16 that use only Swiss airspace below flight level 120 and including the most recent approaching methods while staying as far away from German territory as technically possible. The distance to the German border has to be set by the DFS and Skyguide. This provision is remarkable, as it allows Switzerland to introduce the curved northern approach without a minimum distance from the German border. Article 1 (3) declares that the described regimes of Article 1 (1) and (2) shall be valid from the moment when the necessary infrastructure is available at the airport in Zurich, 2020 the latest. Furthermore, Switzerland agrees in that part of the treaty that the extension of runway 14/32 will not lead to a more northern landing point of runway 14. The regime applicable until the point of time mentioned in Article 1 (3) is explained in Article 1 (4) of the Treaty. According to this provision the 220th Regulation33 will continue to apply, albeit with some changes: During weekdays from 8 p.m. until 7 a.m. and during weekends and the holidays mentioned in the annex from 8 p.m. until 9 a.m. approaches to the airport over German territory are prohibited below flight level 100. Germany is allowed in this provision to amend the 220th Regulation according to technical or operational necessities. However, the most relevant regulations, namely the regulations regarding the waiting area RILAX, regulations concerning flight levels or time slots for using German air space, may not be amended. Following the agreement on the most important part of the dispute, Article 2 of the Treaty deals with the common use of airspace by both the German and the Swiss 33 220th Regulation regarding the Ordinance on Air Traffic (220. Durchführungsverordnung zur Luftverkehrs-Ordnung), 10 March 2005, available at: http://www.lrasbk.de/fileadmin/redakteure/ Aktuelles/Dokumente/Fluglaerm/220__DVO.pdf (accessed on 24 February 2014). This is the most recent regulation on the air traffic to Zurich Airport, succeeding the 213th Regulation.

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authorities for air traffic control. According to Article 2 the air space needed to start from and land on Zurich Airport will be planned by both the DFS and Skyguide and they will especially agree upon how to use the German air space. Both authorities will work together based on a written agreement according to Article 10 (2) EC Regulation 550/2004 in the most recent version. They will inform the commission established according to Article 4 of the Treaty about any planned changes to the procedures regarding starts from the airport and landings on it. The commission has the opportunity to make suggestions on how to limit noise from air traffic. If the DFS and Skyguide do not deem these suggestions to be appropriate or feasible, they inform the commission and state the reasons for their conclusion. Article 3 explains the legal position of Germany and its inhabitants regarding new plans to develop Zurich Airport or its operation. The highest aeronautical authority of the Swiss Confederation has to inform the highest German aeronautical authority immediately, if development plans regarding the construction or operation of the airport are made, amended, or extended. The commission can decide on exemptions from this duty. Article 3 (2) gives the German municipalities, entities, and population affected by the airport the same rights of participation and legal position in confederate administrative proceedings as Swiss municipalities and citizens enjoy according to Swiss law. Similarly, Article 3 (3) grants German persons and corporate bodies the same rights as similarly affected Swiss persons or entities regarding monetary compensation for aircraft noise, entitlements for measures of protection from such noise, or other benefits connected with aircraft noise. Either party can request consultations to amend the treaty or discuss its interpretation and implementation, Article 5. Beforehand the commission has to deal with the issue. The consultations start 30 days after the request. According to Article 6 each party may suspend the effects of the Treaty, if the other party evidentially and grossly has failed to fulfill its duties according to Articles 1 and 3. This failure must have led to a direct threat to public order and security. The third condition for such a suspension is that the violating party must have failed to take measures to limit the damage within fifteen days following a notification. Both the suspension and its termination have to be made known via diplomatic channels. Article 7 deals with the period of validity of the treaty. It is valid for an indefinite period of time. Each party may quit the treaty via diplomatic channels in written

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form so that it becomes invalid twelve months later. However, acquittal is prohibited before 31 December 2030. Articles 8 and 9 deal with the registration of the treaty, its ratification and entry into force. The treaty enters into force two months after the exchange of instruments of ratification, Article 9 (2). Assessment and Outlook: The treaty has been heavily criticised by politicians from the affected areas in Germany as not going far enough.34 Especially against the background of the recent CJEU judgment demands grew loud to re-open the negotiations on the issue.35 The Federal Government of Germany declared in July 2013, that it is not possible to schedule the ratification of the treaty yet.36 Switzerland has already ratified the treaty.37 Would it be appropriate for Germany to act accordingly? The answer has to be in the affirmative. It is correct that the Swiss decision to build the airport with a northern alignment and without including the affected German population or its representatives is the true origin of the dispute. Also, there is no general right to use foreign air space for approaches and starts of a national airport. The Transit Agreement offers only the right to cross the air space of another country without landing. The relevant provisions of the Chicago Convention show clearly that there is a distinction between the right to fly over foreign territory and the right to manoeuvre in this air space as when landing or starting.38 Furthermore, it has to be borne in mind that the air space above a country belongs to the space of sovereignty of that country. All these reasons seem to argue against a ratification of the new treaty. 34

See, e.g., Gregor Preiss, Fluglärm Streit und kein Ende, Stuttgarter Nachrichten, 31 October 2012, available at: http://www.stuttgarter-nachrichten.de/inhalt.schweiz-fluglaerm-streit-und-kein-ende. 5c7a7a6a-3a24-44c1-90a3-7c7fa00608dc.html (accessed on 20 January 2014). 35

See, e.g., Federal State of Baden-Württemberg, Im Fluglärmstreit mit der Schweiz ist Minister Ramsauer am Zug, press release of 9 March 2013, available at: http://www.baden-wuerttemberg.de/ de/service/presse/pressemitteilung/pid/im-fluglaermstreit-ist-minister-ramsauer-am-zug/ (accessed on 20 January 2014) and Lena Langbein, Neue Schleife im Fluglärmstreit, 12 March 2013, available at: http://www.swissinfo.ch/ger/politik_schweiz/Neue_Schleife_im_Fluglaermstreit_.html?cid=35208 404 (accessed on 20 January 2014). 36 Deutscher Bundestag (German Federal Parliament), Drucksache 17/14418, 2, available at: http:// dip21.bundestag.de/dip21/btd/17/144/1714418.pdf (accessed on 20 January 2014). 37 The Council of States has approved the treaty on 7 March 2013, see Council of States, AB 2013, 70, available at: http://www.parlament.ch/ab/frameset/d/s/4907/399930/d_s_4907_399930_ 399931.htm (accessed on 20 January 2014). The National Council agreed with this decision on 6 June 2013, AB 2013, 824, available at: http://www.parlament.ch/ab/frameset/d/n/4909/407144/d_n_ 4909_407144_407145.htm (accessed on 20 January 2014). 38

Bentzien (note 21), 71.

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However, there is a tactical reason for Germany to ratify the treaty: For the first time it has agreed on a compromise that does not lead to a numerical limitation of flights in Germany. It will be difficult to convince the Swiss side to waive such progress in any future negotiations about this issue. More importantly, the treaty is the best compromise on the issue that has ever been struck. The periods of time during which approaches above German territory are allowed will become smaller. Eventually it will be only until 6 p.m. that approaches affect the German population (Article 1 (1) No. 1). That the number of flights will increase substantially is prevented by the prohibition to use both runways 14 and 16 at the same time (Article 1 (1) No. 2). Furthermore it is not only Germany that made a concession: While Germany abandoned the requirement of numerical restrictions, the Swiss side agreed to include German inhabitants in Swiss regulations on damages and noise protection measures, Article 3 (3). Additionally, German inhabitants and entities have the possibility to influence future decisions about the airport only according to Article 3 (2) of the new treaty. Switzerland opens its own national planning processes to another State’s inhabitants. That is a remarkable concession regarding Switzerland’s sovereignty. Hence it is this provision that might spare future generations the fate of having to deal with another State’s decisions without any say. The treaty offers planning reliability to both States . Switzerland can start amending the infrastructure so that new approaches from north are possible. German inhabitants can be sure that the landing point on runway 14 will not move in a northern direction. Both aspects will positively influence the development of the region around the airport, and the relationship between Switzerland and Germany. If Germany went on in regulating its air space near the border alone, it could protect the affected people in the short run. In the long run, however, such a one-sided approach to the problem would undermine the relationship between both States. There would be no reason for Switzerland to include Germany in its planning processes or to consider the interests of the German population. This alternative of both Switzerland and Germany enacting their own national regulations only with their own ends in mind has led to a considerable stalemate over the last decades. Now it is time to take the chance to settle this dispute by mutual commitments.

The Hamburg Piracy Trial – A Contribution to the International Aim of Combating Piracy? JULIA MÜLLER(

Introduction: On 19 October 2012 the Regional Court of Hamburg (Landgericht Hamburg) delivered its judgment in the first German piracy trial in 400 years.1 Ten young men of Somali nationality were accused of an attack on maritime traffic (Section 316c German Criminal Code (Strafgesetzbuch))2 and abduction for the purpose of blackmail (Section 239a German Criminal Code) committed off the Horn of Africa. They were convicted and sentenced to prison terms ranging from two to seven years. The verdict became final on 5 March 2013 with abandonment of the initially filed appeal. The trial lasted almost two years and raised questions regarding the handling of the problem of piracy by the international community and the legitimacy and reasonability of a trial before a German court that is geographically and culturally far-off the site of crime. The Prohibition and the Prosecution of Piracy according to International Law: The United Nations Convention on the Law of the Sea3 (UNCLOS) codifies customary international law on piracy.4 The provisions of the UNCLOS do not only define piracy but also give opportunities to take actions against it. According to Article 101 (

Legal Associate (juristische Mitarbeiterin) with the law firm WEISSLEDER EWER, Kiel, and Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1

Regional Court of Hamburg (Landgericht Hamburg), 603 KLs 17/10, Judgment of 19 October 2012. 2

German Criminal Code (Strafgesetzbuch), 13 November 1998, Bundesgesetzblatt (BGBl.) I, 3322.

3

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 396 (UNCLOS). 4

Douglas Guilfoyle, Prosecuting Somali Pirates, Journal of International Criminal Justice (JICJ) 10 (2012), 767, 771; Tullio Treves, Piracy, Law of the Sea, and the Use of Force: Developments off the Coast of Somalia, European Journal of International Law 20 (2009), 399, 401.

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UNCLOS, piracy is “an illegal act of violence, detention or depredation on the high seas committed for private ends by a private vessel against another vessel.” In fact, the definition in Article 101 UNCLOS merely defines the scope of the enforcement powers under the UNCLOS. Thus, criminal prosecutions should not be based on these provisions but, also in respect to the nulla poena sine lege principle, on domestic law.5 As stated in Article 105 UNCLOS, seizing States may decide upon the penalties to be imposed. Nevertheless, States are not obligated to prosecute or extradite suspected pirates.6 The same conclusion can be drawn from Article 100 UNCLOS which imposes on States only a general duty to cooperate in the repression of piracy.7 If a State decides to prosecute piracy, the principle of universal jurisdiction has to be considered. Irrespective of any nexus between the pirate attack and the prosecuting State, every State may bring pirates to trial.8 The jurisdiction reaches as far as the attack matches the definition of piracy under international law (Article 101 UNCLOS).9 Despite the general opportunities to take legal action against pirate attacks, the prosecution of piracy is the crucial point of the subject. The international community obviously agrees in the condemnation of piracy10 but it seems to be at a loss regarding its prosecution. The vast majority of the arrested pirates are brought back to Somalia (without informing Somali authorities) where they simply get released after being disarmed.11 The catch-and-release-practice can be explained inter alia by the fact that 5

See Robin Geiß/Anna Petrig, Piracy and Armed Robbery at Sea: The Legal Framework for Counter-Piracy Operations in Somalia and the Gulf of Aden (2011), 142. 6 See Christian Maierhöfer, Aut dedere – aut iudicare: Herkunft, Rechtsgrundlagen und Inhalt des völkerrechtlichen Gebots zur Strafverfolgung oder Auslieferung (2006), 113 et seq.; Guilfoyle (note 4), 775. 7

See Geiß/Petrig (note 5), 152; Guilfoyle (note 4), 775.

8

See Permanent Court of International Justice, The Case of the S.S. ‘Lotus’ (France v. Turkey), Judgment of 7 September 1927, Dissenting Opinion of Judge Moore, Series A, No. 10, 65, 70; International Court of Justice, Case Concerning the Arrest Warrant (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002, Separate Opinion of President Guillaume, ICJ Reports 2002, 35, 37 et seq. 9

See Geiß/Petrig (note 5), 152; Maggie Gardner, Piracy Prosecutions in National Courts, JICJ 10 (2012), 797, 820. 10

See SC Res. 1816 of 2 June 2008; SC Res. 1838 of 7 October 2008; SC Res. 1846 of 2 December 2008; SC Res. 1897 of 30 November 2009; SC Res. 1918 of 27 April 2010; SC Res. 1950 of 23 November 2010; SC Res. 1976 of 11 April 2011; SC Res. 2020 of 22 November 2011; SC Res. 2039 of 29 February 2012. 11

87 % within the Operation ATALANTA, an EU Military Mission established on 8 December 2008. See House of Commons Foreign Affairs Committee, Piracy off the coast of Somalia, Tenth

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surrendering pirates to Somali authorities would entail a risk of torture and death penalty, thus the violation of several human rights instruments (e.g. Article 3 European Convention on the Protection of Human Rights and Fundamental Freedoms12 (ECHR) and Article 7 International Covenant for Civil and Political Rights13 (ICCPR)).14 However, the lack of prosecution is observed critically by the international community. The Security Council expressed repeatedly its concern over a large number of persons suspected of piracy having to be released without being brought to justice which undermines the efforts of combating piracy undertaken by the international community.15 An international tribunal for piracy was under discussion but has not been put into practice.16 The International Tribunal for the Law of the Sea (ITLOS) does not have the competence to try pirates since it has no criminal jurisdiction.17 In fact, the International Criminal Court (ICC) has criminal jurisdiction over individuals but according to its statute the ICC may only exercise jurisdiction over the most serious crimes (genocide, crimes against humanity, war crimes, and aggression) and not over piracy.18 Furthermore, the ICC would not be the suitable court to try a common crime like piracy that cannot be compared to the most serious crimes in international criminal law.19 Report of Session 2010–2012, Oral Evidence Taken before the Foreign Affairs Committee, 5 January 2012, Ev 18, Q99, available at: http://www.publications.parliament.uk/pa/cm201012/cmselect/ cmfaff/1318/1318.pdf (accessed on 4 April 2014). 12 European Convention or the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5. 13

International Covenant for Civil and Political Rights, 23 March 1976, UNTS 999, 171.

14

See Treves (note 4), 408.

15

Inter alia SC Res. 1918 of 27 April 2010; SC Res. 1976 of 11 April 2011; SC Res. 2020 of 22 November 2011. 16

SC, Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, 26 July 2010, UN Doc. S/2010/394 (2010), paras. 90 et seq. 17

Arts. 20 and 21 Statute of the International Tribunal for the Law of the Sea, Annex VI of the UNCLOS. Consequently the issue of piracy can only be dealt with if there is a dispute between States. See also Helmut Tuerk, Reflections on the Contemporary Law of the Sea (2012), 97. 18 19

Art. 5 Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3.

See Tuerk (note 17), 97. For a different view, see Christopher Totten/Matthew Bernal, Somali Piracy: Jurisdictional Issues, Enforcement Problems and Potential Solutions, Georgetown Journal of International Law 41 (2010), 377, 402.

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The international community would prefer prosecution to take place in Somalia, respectively a ‘Somalization’ of the prosecution.20 Somalia is the source as well as the victim of piracy. Thus, a jurisdictional solution without connection to Somalia would be ineffective.21 However, so far trials in Somalia cannot meet international standards. Therefore, a considerable number of alleged pirates have been tried in other States within the region such as Kenya, the Seychelles and Yemen.22 Kenya, for instance, has concluded an agreement with the European Union23 and has become an important contributor to the international attempts at prosecuting piracy. Supporting procedures and practices have been established to ensure compliance with the evidentiary rules of the criminal justice system.24 Yet, this tempting opportunity to let regional third States prosecute the alleged pirates also entails problems. On 11 November 2011 the Administrative Court of Cologne (Verwaltungsgericht Köln) declared the transfer of a suspected pirate to Kenya unlawful due to the fact that the Kenyan prisons did not comply with the minimum standards of human rights.25 Hence, the transfer constituted inhumane and degrading treatment and violated Article 3 ECHR and Article 7 ICCPR.26 Even if human rights law obligations have been pointed out in written

20

SC, Report of the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Coast of Somalia, 25 January 2011, UN Doc. S/2011/30 (2011), para. 79. 21

Ibid., para. 79.

22

See Geiß/Petrig (note 5), 33.

23

Exchange of Letters between the European Union and the Government of Kenya on the conditions and modalities for the transfer of persons suspected of having committed acts of piracy and detained by the European Union-led naval force (EUNAVFOR), and seized property in the possession of EUNAVFOR, from EUNAVFOR to Kenya and for their treatment after such transfer, 6 March 2009, OJ 2009 L 79, 49, this Exchange of Letters was approved by the Council of the European Union, Council Decision 2009/293/CFSP, 26 February 2009, OJ 2009 L79, 47; Exchange of Letters between the European Union and the Republic of Seychelles on the Conditions and Modalities for the Transfer of Suspected Pirates and Armed Robbers from EUNAVFOR to the Republic of Seychelles and for Their Treatment after such Transfer, 29 September 2009, OJ 2009 L 315, 37; this Exchange of Letters was approved by the Council of the European Union, Council Decision 2009/877/CFSP, 23 October 2009, OJ 2009 L 315, 35. 24

Andrew Murdoch, Recent Legal Issues and Problems Relating to Acts of Piracy off Somalia, in: Clive R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea (2011), 139, 153. 25

Administrative Court of Cologne (Verwaltungsgericht Köln), Judgment of 11 November 2011, 25 K 4280/09, reprinted in: JuristenZeitung 67 (2012), 366. 26 Ibid., 369 et seq. See Tim René Salomon, Menschenrechte und die Strafverfolgung somalischer Piraten: Eine Entscheidung des VG Köln und deren Folgen, Zeitschrift für Öffentliches Recht in Norddeutschland 3 (2012), 124.

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transfer agreements,27 the transferring States cannot ignore their obligations under international human rights law and have to consider the actual situation in the third State. Although every seizing State is permitted to prosecute pirate attacks, States are reluctant to try pirates in their national courts since they seem to fear the expenses, the legal complexities and the human rights implications. A trial being held far away from the site of crime entails many problems, not only regarding the hearing of evidence. The cases actually prosecuted by a seizing State have always had a clear nexus between the pirate attack and the State (as the flag State of the vessel or the State of nationality of the victim).28 One of the cases brought before a domestic court by a non-regional State is the case of the MS Taipan that was put on trial in Hamburg. The Hamburg Piracy Trial: The case of the pirate attack on the MS Taipan had taken place off the coast of Somalia. Somalia is the paradigm of a ‘failed State,’ a State with collapsed power structures unable to provide political support for law and order and unable of being an effective member of the international community.29 The collapse of Siad Barre’s authoritarian socialist dictatorship in 1991 resulted in a civil war. The continuing political unrest caused not only the collapse of the effective authority but also a severe humanitarian crisis.30 Against this background both a ‘culture of violence’ and a so called ‘war economy’ (e.g. human trafficking, robbery, abduction for the purpose of blackmail) could evolve. These circumstances surely promoted the emergence of piracy.31 The direct cause for the development of piracy 27 Exchange of Letters between the European Union and the Government of Kenya (note 23); this Exchange of Letters was approved by the Council of the European Union (note 23). 28 See, e.g., District Court of Rotterdam (Rechtbank Rotterdam), Judgment of 17 June 2010, 10/600012-09, reprinted and translated in: International Law Reports 145, 491; United States Court of Appeal, United States v. Said, Judgment of 23 May 2012, 2012 WL 1868667 (4th Cir.), available at: http://www.ca4.uscourts.gov/opinions/Published/104970.p.pdf (accessed on 6 April 2014). 29 See Daniel Thürer, Failing States, MPEPIL (2009), para. 3, available via: http://www.mpepil.com (accessed on 4 April 2014); Alexander Straßner, Somalia in den 1990ern: Theorien des Staatszerfallkrieges, in: Rasmus Beckmann/Thomas Jäger (eds.), Handbuch Kriegstheorien (2011), 457. 30 See Jan Peter Schmidt, Somalia, Conflict, MPEPIL (2010), para. 16, available via: http://www. mpepil.com (accessed on 4 April 2014); Geiß/Petrig (note 5), 13; Kerstin Petretto/David Petrovis, Fernab jeder Romantik: Piraterie vor der Küste Somalias, Aus Politik und Zeitgeschichte 48 (2012), 10, 11. 31

Regional Court of Hamburg (note 1), 14; Petretto/Petrovis (note 30), 11.

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as organised crime in Somalia in the beginning of the 1990s is not completely clear. Many pirates claim self-defence against the illegal acts of foreign trawlers.32 Indeed, there is evidence that in absence of an effective authority Somali waters were exploited by foreign fishing fleets and polluted by illegally dumped toxic waste.33 The facts and the claim of self-defence in the beginning of the 1990s are hard to verify. Anyhow, even if the thought of self-defence was the pirates’ initial motivation, it cannot be invoked on objective grounds in 2010, the time of the offence.34 Nowadays Somali piracy is a booming industry with strong links to organised crime35 and most of the pirates are not former fishermen but young men lacking another perspective, as are the defendants in the Hamburg piracy trial. In April 2010 the MS Taipan, a container vessel under German flag on its way from Haifa (Israel) to Mombasa (Kenia), was attacked at gunpoint by the defendants around 550 nautical miles east of the Somali coast, thus on the high seas. The Dutch naval forces boarded the ship and overwhelmed the attackers. In the following they were extradited to Germany where the case was brought to court.36 The jurisdiction of the German court for a pirate attack that happened on the high seas off the Horn of Africa committed by Somali nationals is established by the principle of universal jurisdiction as well as by the German Code of Criminal Procedure (Strafprozessordnung)37 and the German Criminal Code. Due to the principle of nulla poena sine lege,38 German law requires a codification of the principle of universal jurisdiction in its national legislation.39 The Regional Court of Hamburg was the competent court since the MS Taipan’s home port is Hamburg. Section 10 (1) Code of Criminal Procedure states that if a 32

See Jatin Dua/Ken Menkhaus, The Context of Contemporary Piracy, JICJ 10 (2012), 749, 764.

33

SC, Report of the Secretary-General on the protection of Somali natural resources and waters, 25 October 2011, UN Doc. S/2011/661 (2011), paras. 40, 48. 34

Ibid., para. 63; Regional Court of Hamburg (note 1), 15.

35

SC (note 33), para. 63.

36

Regional Court of Hamburg (note 1), 71 et seq.

37

German Code of Criminal Procedure (Strafprozessordnung), 7 April 1987, BGBl. I, 1074, 1319.

38

As codified in Sec. 1 Criminal Code.

39

See Tim René Salomon, Die Anwendung des deutschen Strafrechts auf Piraterie: Reichweite und Lücken, Deutsche RichterZeitung (2012), 307, 308.

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criminal offence is committed outside the territorial scope of the Code on a ship authorised to fly the German federal flag, the competent court shall be the court in whose district the ship’s home port is located. The application of German law is established by the German Criminal Code. Two of the attacked seamen on the MS Taipan were German. The crime of attack on maritime traffic was committed on the MS Taipan, a vessel flying the German flag and the defendants were brought to trial for an “attack on maritime traffic.” Section 7 (1) Criminal Code gives the opportunity to apply German criminal law to offences committed abroad against a German national. Section 4 Criminal Code states that German criminal law shall apply to acts committed on a ship under the flag of Germany. Moreover, Section 6 No. 3 Criminal Code also establishes the application of German criminal law regarding the offence “attack on maritime traffic” (Section 316c Criminal Code). The Regional Court of Hamburg was faced with a complex trial. Initially the trial seemed not to be that difficult and it was thought that the trial could be completed within about four months. In the end the defendants had to sit on trial for two years. The reasons for the lengthy duration of the proceedings are diverse. The ten accused Somalis were defended by twenty criminal defence lawyers who submitted several, naturally time-consuming, motions to take evidence. During the trial the defendants changed their testimonies and their statements were contradictory. The Regional Court heard a plurality of material witnesses as well as authorised experts. Plenty of time was simply spent on the age estimation of the defendants (necessary for the criminal responsibility and the applicability of the criminal law relating to young offenders).40 Three interpreters translated the event to overcome the language barrier, however, the cultural barrier remained evident. In the beginning of the trial, one of the defendants asked the chief judge not to torture him. Another answered on the question regarding his origin that he was born under a tree.41 These statements are characteristic for the cultural gap between the Somali defendants and the German legal system. Hence, from the point of view of their criminal defence lawyers, the trial 40

See Patricia Schneider, Piraterie und Recht: Zum Urteil im Hamburger Piratenprozess, Marineforum 3 (2013), 28, 28. 41 See Johannes Ritter, Vor Gericht und auf hoher See, Frankfurter Allgemeine Zeitung, 19 October 2012, available at: http://www.faz.net/aktuell/politik/inland/hamburger-piratenprozess-vor-gerichtund-auf-hoher-see-11931701.html (accessed on 4 April 2014).

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should not have been brought to a German court, as a German trial could not do justice to the situation and living conditions of defendants having their origin in a State like Somalia.42 Evaluation: Necessarily a trial under these circumstances brings up questions concerning the cultural defensibleness and legitimacy of a criminal conviction. Despite the cultural gap, the Hamburg piracy trial was in accordance with international law. The legal basis of the jurisdiction of the Regional Court of Hamburg is the principle of universal jurisdiction that is codified in German laws. The trial and the detention conditions have also been in accordance with international human rights standards. Indeed, the German prosecution system was confronted with a multitude of challenges but managed to comply with the principle of a fair trial. The judgment is balanced and takes mitigating aspects into consideration such as the traumatic experiences made in Somalia, a State ruled by severe poverty and violence.43 Also the long pre-trial detention periods and the special burden of serving a sentence in a foreign country were considered.44 On the other hand the Regional Court also had to consider the danger of the act, the heavy weaponry and the damage to the vessel.45 Yet, it can be questioned whether the verdict has a general deterrent effect on Somali pirates. The likelihood of a criminal conviction is still very low and alternative life prospects are extremely limited. There is an immense political and economical interest in law enforcement and the Hamburg piracy trial can surely be seen as a contribution to the international aim of combating piracy as stipulated in the UNCLOS. Since there is no international court dealing with the question of piracy, the international community must rely on national courts if they want to abandon the catch-and-release practice. Regarding the case of the MS Taipan, Germany was faced with that problem of law enforcement. Germany decided to meet the challenge and try the suspected pirates before national courts. It can be supposed that the enormous effort was made because German interests were concerned and that a clear political signal was intended. Yet, the prosecution of piracy by national courts in Europe cannot substitute prosecution in 42

Ibid.

43

Regional Court of Hamburg (note 1), 232.

44

Ibid., 233.

45

Ibid., 234.

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the country or region generating modern piracy. It is widely recognised that lasting solutions require substantial improvements in the fields of governance, rule of law, security, and economical development in Somalia.46 In respect to the effect of piracy on the life of the seamen and the stability of the region the international community should enhance its efforts regarding the ‘Somalization’ of the prosecution of piracy or alternatives in the region.47 Further piracy trials in Germany are legally possible and might be seen as countering the catch-and-release practice and hence as a contribution to international law enforcement. Yet, other piracy trials are politically only thinkable if there is a strong nexus between the pirate attack and Germany.48 Taking into account the high expenses, the long duration, the strong critics, and the emotional public debate especially on the Hamburg piracy trial it is not very likely that Störtebeker’s49 successors have to stay on trial frequently in Germany.

46

See Murdoch (note 24), 167.

47

See also Ved P. Nanda, Maritime Piracy: How Can International Law and Policy Address this Growing Global Menace, Denver Journal of International Law and Policy 39 (2011), 177, 204. 48 Also the latest piracy trial taking place in Osnabrück, Germany, showed a clear nexus to Germany since it is the flag State of the captured vessel. See Regional Court of Osnabrück (Landgericht Osnabrück), 10 Kls 31/13, Judgment of 17 April 2014. 49 Klaus Störtebeker lived in the 14th century and is the best-known German pirate. He was one of the leaders of the Victual Brothers who captured merchant vessels and shared the goods with the poor. Störtebeker is entwined with various legends. For further information, see Matthias Puhle, Klaus Störtebeker und die Seeräuber der Hansezeit (1992).

The 2011 EU Directive on Preventing and Combating Trafficking: Non-Implementation by Germany? ANDREA MEYER(

Introduction: The phenomenon of trafficking in persons as a transnational organised crime has been recognised by the international community. Consequently, there are numerous international instruments which focus on combating trafficking in persons. During the past twenty years, the international community has focused its activities on counter-trafficking measures. A number of international conventions deal mainly with the criminal prosecution of perpetrators of trafficking. These international conventions are, inter alia, the United Nations Convention against Transnational Organized Crime (UNTOC);1 its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol)2 and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.3 Those instruments focus primarily on prosecuting traffickers, and do not address in a comprehensive manner the violation of human rights entailed by human trafficking. The Council of Europe Convention on Action against Trafficking in Human Beings

( Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel. 1 United Nations Convention against Transnational Organized Crime, 12 December 2000, UNTS 2225, 209 (UNTOC). 2 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, 12 December 2000, UNTS 2237, 319 (Trafficking Protocol). 3

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, UNTS 2171, 227.

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(CoE Trafficking Convention)4 is the first instrument which includes a victimcentred approach next to the law enforcement approach. The topic of human trafficking has also been on the European Union’s (EU) agenda since more than a decade. The EU Directive 2011/36 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims5 is the newest development in this regard. The Directive was signed by the European Parliament (EP) and the Council of the EU on 5 April 2011 and is in force since 15 April 2011. All Member States of the EU, except Denmark,6 are subject to the Directive. They were obliged to implement the requirements of the Directive before 6 April 2013. This article highlights the obligations which result from the new Directive for Member States of the EU, points out new developments and points to existing limitations in the protection of victims of human trafficking. This will be followed by a short examination of the status of implementation of the Directive in Germany. Human Trafficking in International Law: For an analysis of the Directive, it is necessary to illustrate the international legal framework which developed in relation to human trafficking. The Trafficking Protocol was the first international instrument with an agreed definition on trafficking in persons.7 It is one of the supplementing protocols to the 2000 UNTOC. Article 3 (a) Trafficking Protocol provides the aforementioned definition: ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum the exploitation of the prostitution of others or other forms of sexual exploita-

4 Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, ETS No. 197 (CoE Trafficking Convention). 5 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims replacing Council Framework Decision 2002/629/JHA (011), OJ 2011 L101, 1 (Directive 2011/36/EU or 2011 Directive). 6 7

Preamble, para. 36 Directive 2011/36/EU.

Ann D. Jordan, The Struggle for a Rights-Based Response to Trafficking in Human Beings, Gender and Development 10 (2002), 28, 32.

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tion, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

This definition lays down three requirements in order to establish that persons have or are being trafficked. Firstly, there must be an act, or a set of actions that involve the movement or recruitment of a person. Secondly, human trafficking requires means to gain the compliance of victims (threat or use of force, fraud, coercion, deception etc.) and thirdly, the purpose, namely to receive a financial benefit from the recruitment or moving of someone.8 Significantly, Article 3 (b) Trafficking Protocol stipulates that consent to the act of trafficking is irrelevant if any of the means included in subparagraph (a) are applied in the course of the trafficking process.9 This inclusion provides a greater protection for victims.10 Article 5 Trafficking Protocol identifies the act of trafficking as a crime whereas persons who have been trafficked are to be regarded as victims of a crime.11 The Protocol recognises that human trafficking violates core human rights, and that the human rights of the victims of trafficking must be protected.12 Nevertheless, the Trafficking Protocol was not intended to be an international human rights instrument.13 The main objective of the Trafficking Protocol is to combat human trafficking as a manifestation of transnational organised crime.14 Thus, the primary focus of the Trafficking Protocol is on law enforcement.15

8

Mike Dottridge, Introduction, in: Global Alliance against Traffic in Women, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World (2007), 1, 4; Christoph Lindner, Schutz vor Menschenhandel als Menschenrecht, Zeitschrift für Menschenrechte 6 (2012), 136, 138. 9 Tom Obokata, Trafficking of Human Beings from a Human Rights Perspective: Towards a Holistic Approach (2006), 26. 10

Ibid.

11

Ryszard Piotrowicz, European Initiatives in the Protection of Victims of Trafficking Who Give Evidence Against Their Traffickers, International Journal of Refugee Law 14 (2002), 263, 266. 12

Heli Askola, Legal Responses to Trafficking in Women for Sexual Exploitation in the European Union (2007), 139. 13

Ibid., 139.

14

Elizabeth M. Bruch, Models Wanted: The Search for an Effective Response to Human Trafficking, Stanford Journal of International Law 40 (2004), 1, 2. 15

Jordan (note 7), 33; Bruch (note 14), 16.

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The Trafficking Protocol applies the ‘Three Ps’ approach to the legal phenomenon of trafficking in persons.16 This means that the Protocol addresses the notions of ‘prevention’, ‘prosecution’ and ‘protection.’17 Articles 5 Trafficking Protocol refers to the notion of ‘criminalization’ meaning that State parties are bound to criminalise and penalise any activities that constitute human trafficking.18 Articles 6 and 7 urge States to provide sufficient assistance and protection to victims of human trafficking. Additionally, the Trafficking Protocol addresses the issue of compensation to victims.19 It encourages States to ensure that victims can claim compensation for damages suffered. However, all provisions under Article 6 that deal with protecting victims are discretionary, unlike the provisions which refer to the prosecution of human trafficking which are compulsory.20 The discretionary provisions do not bind State parties to provide these forms of protection for the victims.21 Furthermore, the legislative guide to the Protocol points out that States are not obligated to “legislate measures relating to the status of victims,”22 meaning that State parties are not obliged to grant victims of human trafficking residence.23 In the regional context, the CoE Trafficking Convention is a significant development in the combat against human trafficking. It was adopted by the Committee of Ministers in March 2005 and entered into force on 1 February 2008. Today, 41 States have ratified the Convention. All Members of the EU are State parties to the CoE Trafficking Convention. The EU itself did not accede to it.

16 LeRoy G. Potts Jr., Global Trafficking in Human Beings: Assessing the Success of the United Nations Protocol to Prevent Trafficking in Persons, George Washington International Law Review 35 (2003), 227, 239. 17

Art. 4 Trafficking Protocol.

18

Potts (note 16), 241.

19

Art. 6 (6) Trafficking Protocol.

20

Anti-Slavery International, Human Traffic, Human Rights: Redefining Victim Protection (2002), 17, available at: http://www.antislavery.org/includes/documents/cm_docs/2009/h/hum_traff_ hum_rights_redef_vic_protec_final_full.pdf (accessed on 21 March 2014); Lindner (note 8), 139. 21

Askola (note 12), 139.

22

UN Office on Drugs and Crime, Legislatives Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004), 243, para. 68, available at: https://www.unodc.org/pdf/crime/legislative_guides/Legislative%20guides_ Full%20version.pdf (accessed on 31 March 2014). 23

Art. 7 Trafficking Protocol.

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The Convention is divided into ten chapters, and covers a broad range of measures. The intent of the Convention is to combine a human rights perspective on human trafficking with its effective criminalisation.24 Together with other international legal instruments the Trafficking Protocol formed the starting point for the foundation of the CoE Trafficking Convention. The Convention adopted the same trafficking definition as the Trafficking Protocol.25 It complements the Trafficking Protocol. Nevertheless, the CoE Trafficking Convention explicitly states that it aims to enhance the protection measures, which are already provided for in the Trafficking Protocol.26 The CoE Trafficking Convention contains significant innovations, e.g. it outlines an obligation to introduce an identification procedure,27 a non-punishment-clause for trafficking-related offences committed by victims28 and provides for a recovery and reflection period.29 Moreover, State parties are obliged to issue residence permits to trafficking victims in the following situations: A resident permit is issued in cases where the victim of trafficking is assisting the investigation of the case or is involved in a criminal proceeding;30 and furthermore when the competent authorities consider that a particular victim of trafficking should not be deported due to his or her personal situation.31 Unlike the Trafficking Protocol the CoE Trafficking Convention recognises the necessity of granting permits to trafficking victims if law enforcement is to be effective. In contrast to the Trafficking Protocol the CoE Trafficking Convention is regarded as a human rights-based approach to combat trafficking in persons.32 Human Trafficking in EU Law: The 2011 Directive on Combating Human Trafficking replaces the 2002 Framework Decision on Combating Human Traffick24 Julia Planitzer, Menschenhandel: Was hat sich seit Palermo getan?, Juridikum: Zeitschrift für Kritik, Recht, Gesellschaft (2007), 107. 25

Art. 4 (a) CoE Trafficking Convention.

26

Art. 39 CoE Trafficking Convention.

27

Art. 10 CoE Trafficking Convention.

28

Art. 26 CoE Trafficking Convention.

29

Art. 13 (1) CoE Trafficking Convention.

30

Art. 14 (1)(b) CoE Trafficking Convention.

31

Art. 14 (1)(a) CoE Trafficking Convention.

32

Rebecca M. M. Wallace/Fraser A. W. Janeczko, The 2011 EU Directive on Combating Human Trafficking: Does the United Kingdom Comply?, South African Yearbook of International Law 36 (2011), 120, 124.

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ing.33 The Framework Decision emphasised the criminal component of human trafficking and lacked an efficient victim protection.34 In contrast to the detailed provisions regarding the prosecution of traffickers which comprise the definition of offences and penalties concerning human trafficking, jurisdiction and criminal liability, the protection of and assistance to the victims of human trafficking is dealt with in only one provision of the Framework Decision.35 Therefore, the Framework Decision requires EU Member States to criminalise and penalise a full range of trafficking-related offences, but its victim protection is weaker than that of the Trafficking Protocol by only requiring that children have to be considered as “particularly vulnerable victims” when it comes to standing in criminal proceedings.36 The EU still maintained the law enforcement approach in its 2004 Council Directive on Short-term Residency Permits.37 Despite this, one innovation of the 2004 Directive is the introduction of a reflection and recovery period next to a residence permit.38 During the reflection and recovery period victims of human trafficking are not expelled and they are able to decide whether they want to cooperate with the competent authorities.39 Cooperation is required to receive a residence

33 Council Framework Decision 2002/629/JHA of 19 July 2002 on Combating Trafficking in Human Beings, OJ 2002 L 203, 1. 34

Conny Rijken, Challenges to Criminal Justice Co-operation in Combating Trafficking in Human Beings in the European Union, Europäische Rechtsakademie (ERA) Forum 6 (2007), 267, 270 et seq.; Wallace/Janeczko (note 32), 122; Sarah H. Krieg, Trafficking in Human Beings: The EU Approach between Border Control, Law Enforcement and Human Rights, European Law Journal (ELJ) 15 (2009), 775. 35 Art. 7 Framework Decision 2002/629/JHA. See Saadiya Chaudary, Trafficking in Europe: An Analysis of the Effectiveness of European Law, Michigan Journal of International Law 33 (2011), 77, 98; Carolina Villacampa Estiarte, The European Directive in Preventing and Combating Trafficking in Human Beings and the Victim-Centric Treatment of this Criminal Phenomenon, European Criminal Law Review 2 (2012), 291, 300. 36 Art. 7 (2) Framework Decision 2002/629/JHA. See Anne T. Gallagher, The International Law of Human Trafficking (2010), 98. 37 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ 2004 L 261, 19 (Directive 2004/81/EC). 38

Art. 6 Directive 2004/81/EC. See Lindner (note 8), 140.

39

Art. 6 (1) Directive 2004/81/EC.

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permit.40 The residence permit is limited in time – it lasts at least six months.41 It is only issued under the requirement that the victim of trafficking has an intention to collaborate with the authorities, and to end any relationship with the trafficker.42 From the moment the victims decides to cease cooperation with the authorities or further collaboration is not needed anymore, the residence permit is most likely terminated.43 The perpetuation of this law enforcement approach in dealing with the victims of human trafficking has often been criticised as disregarding their human rights and needs.44 Victims are only regarded and treated as witnesses but not as victims of a serious crime.45 Thus, the 2004 Directive cannot be regarded as a human rights-based approach to trafficking in persons, but rather as an instrument in combating illegal immigration.46 Even though the EU followed a law enforcement approach to fight trafficking, the numbers of criminal proceedings and convictions of perpetrators did not rise but the numbers of trafficked persons increased in the EU.47 It took several more years to reach the conclusion that there is a need for a more victim-centred approach to combat this phenomenon. The adoption of a proposal for a Council Framework Decision on preventing and combating trafficking in human beings and the protection of victims in 2009 is to be considered as immediate background of the 2011 Directive.48 One reason for repealing Framework Decision 2002/629/JHA was that the European Commission came to the conclusion that the adoption and entry into force of the CoE Trafficking Convention has led to the establishment of a higher standard in the combat against

40

Art. 8 (1) and (2) Directive 2004/81/EC.

41

Art. 8 (3) Directive 2004/81/EC.

42

Art. 8 (1)(b) and (c) Directive 2004/81/EC.

43

Villacampa Estiarte (note 35), 301.

44

Piotrowicz (note 11), 267; Chaudary (note 35), 97.

45

Lindner (note 8), 140.

46

Krieg (note 34), 788; Heli Askola, Violence Against Women, Trafficking, and Migration in the European Union, ELJ 13 (2007), 204, 212. 47 Proposal for a Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA, 25 March 2009, Europa Press Release, MEMO/09/131. 48

Ibid.

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trafficking in Europe and that the EU did not satisfy this standard yet.49 Although only the EU Member States are parties to the CoE Trafficking Convention whereas the EU itself did not accede to it, the Commission and the Council have committed themselves to international human rights standards in relation to human trafficking by stating that a human rights-based approach is needed to address this phenomenon in an effective manner.50 Therefore, the European Commission detected insufficiencies in four major areas: prosecution of criminals; inadequate victim protection and assistance; insufficient preventive measures and not enough knowledge in general about the phenomenon.51 It never came to the adoption of the aforementioned Framework Decision because of the restructuring of the EU due to the Treaty of Lisbon in 2009. Under the new decision-making procedure the draft of the new Framework Decision was inactivated.52 Nevertheless, negotiations continued and a new proposal for a Directive on trafficking was put forward on 29 March 2010 which was ultimately adopted by the EP on 14 December 2010. Content of the 2011 Directive: The 2011 Directive on Combating Human Trafficking is often considered as a new approach in the fight against human trafficking in the EU-context as it adopts a more comprehensive and integrated approach.53 On the one hand, the Directive focuses mainly on law enforcement – thus the criminal approach again – but on the other hand, it also entails provisions aiming at the prevention of human trafficking and at protecting and assisting victims of human trafficking and therefore follows the ‘Three-Ps’ approach of the Trafficking Protocol and the CoE Trafficking Convention.54 Moreover, the Directive recognises the

49

See Commission of the European Communities, Commission Staff Working Document, Accompanying Document to the Proposal for a Council Framework decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/ 629/JAH, 25 March 2009, SEC(2009) 358, 4, 5. 50

Communication from the Commission to the European Parliament and the Council, Fighting Trafficking in Human Beings: An Integrated Approach and Proposal for an Action Plan, COM(2005)514 final, 18 October 2005, 3. 51

Ibid., 13–14.

52

Gallagher (note 36), 103; Villacampa Estiarte (note 35), 304.

53

Birgit Angela Weixelbaumer/Maria Hadjipavlou/Kalliope Agapiou-Josephides, The EU Facing the Human Trafficking Challenge: Reintegration as a Possible Shift Towards a Victim-Centred Approach, European Yearbook on Human Rights 4 (2012), 185, 189; Lindner (note 8), 145. 54

Arts. 8, 11 et seq. Directive 2011/36/EU.

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gender-specific dimension of the phenomenon55 and contains a child rights approach.56 Victim protection aims to provide victims with the opportunity to recover from their trafficking experiences and to reintegrate into society. This can already be deducted from Article 1 setting out the two objectives of the Directive as being the establishment of minimum rules for the definition of criminal offences and sanctions and the introduction of common provisions to strengthen prevention measures and the protection of victims of trafficking.57 The definition of human trafficking in the 2011 Directive is broader than the definition found in the Framework Decision, the Trafficking Protocol and the CoE Trafficking Convention.58 It adds forms of exploitation like forced begging, exploitation for criminal activities such as drug trafficking or shoplifting and removal of organs.59 Additionally, the Directive covers a broader range of penalties than the Framework Decision.60 The Framework Decision required Member States to punish offences “by effective, proportionate and dissuasive penalties,”61 whereas the new Directive provides that a trafficking offence shall be punishable by a “maximum penalty of at least five years imprisonment.”62 A maximum penalty of at least ten years imprisonment is obligatory in cases of trafficking with aggravating circumstances.63 By this the EU acknowledges that human trafficking is a serious crime and not just a question of irregular migration. From the victim’s perspective it is relevant that, like the CoE Trafficking Convention, the new Directive provides a non-punishment clause: Article 8 of the Directive stipulates that trafficking victims shall not be prosecuted nor have penalties imposed upon them for their “involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to any of the acts referred to in Article 2.” Thereby, the Directive recognises the vulnerability of victims and the fact that victims 55

Para. 3 Preamble Directive 2011/36/EU.

56

Para. 25 Preamble and Arts. 13–16 Directive 2011/36/EU. For a more comprehensive analysis in this regard, see Villacampa Estiarte (note 35), 310. 57

Wallace/Janeczko (note 32), 125.

58

Katarzyna Gromek-Broc, EU Directive on Preventing and Combating Trafficking in Human Beings and Protecting Victims: Will It Be Effective?, Nova et Vetera 20 (64) (2011), 227, 230, available at: http://revistas.esap.edu.co/nova/wp-content/uploads/2012/03/art15-64.pdf (accessed on 21 March 2014). 59

Para. 11 Preamble and Art. 2 (3) Directive 2011/36/EU.

60

Art. 2 Directive 2011/36/EU.

61

Art. 3 (1) Framework Decision 2002/629/JHA.

62

Art. 4 (1) Directive 2011/36/EU.

63

Art. 4 (2) Directive 2011/36/EU.

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fear to be immediately expelled due to infringements of immigration law or national penal law.64 By non-punishing victims for minor crimes the probability increases that victims stop avoiding to approach and to cooperate with national authorities to fight their traffickers. Another significant step forward is the obligation to introduce an identification mechanism which is stipulated in Article 11 (4). Identification is an essential requirement for victims of human trafficking who must be identified as such to receive protection and assistance.65 Victim protection differentiates between measures during criminal proceedings and measures in the context of general victim protection.66 According to these provisions Member States are obliged to provide protection and assistance before, during and after criminal proceedings. Unfortunately, there is no fixed period of time for protection measures after the proceedings have ended. Once again, this is at the discretion of the Member States.67 Necessary measures include medical and psychological care as well as safe and appropriate accommodation for the victims.68 Moreover, specific attention is given to victims with special needs, such as pregnancy, disabilities, mental or psychological disorders or in cases where the victim has suffered a serious form of psychological, physical or sexual violence.69 Support for victims during proceedings is considered necessary so that victims are able to exercise their rights as set out in Framework Decision 2001/220/JHA.70 This Framework Decision deals with the protection of victims of a crime during their standing in criminal proceedings. Rights of victims include, inter alia, immediate access to legal counselling and representation. During criminal proceedings victims have to undergo an individual risk assessment to determine their protection needs.71 This can lead to being given access to witness protection programmes or comparable measures. Another significant requirement is that Member States are required to take

64

Gromek-Broc (note 58), 231.

65

Silvia Scarpa, Trafficking in Human Beings: Modern Slavery (2008), 148 et seq.

66

Arts. 11 and 12 Directive 2011/36/EU.

67

Art. 11 (1) Directive 2011/36/EU.

68

Art. 11 (5) Directive 2011/36/EU.

69

Art. 11 (7) Directive 2011/36/EU.

70

Council Framework Decision 2001/220/JHA of 15 March 2001, OJ 2001 L 82, 1.

71

Art. 12 (3) Directive 2011/36/EU.

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measures to prevent secondary victimisation.72 Granting of a residence permit to victims of human trafficking is still regulated by the provisions of the 2004 Directive and thus there is no broader protection of the victims in this regard. This leaves victims in a vulnerable position, as a possible residence permit also depends on their collaboration with the authorities and is not a question of the need of effective protection.73 This leads to the impression that even though the 2011 Directive includes more victim protection than its predecessor, the main focus is still on criminal proceedings as well as the protection against illegal immigration instead of taking a comprehensive and holistic victim-centric approach.74 Furthermore, the Directive obliges Member States to “ensure that victims of trafficking in human beings have access to existing schemes of compensation to victims of violent crimes of intent.”75 Another novelty of the Directive is the introduction of a National Rapporteur or equivalent mechanisms.76 An institution like this is anticipated to carry out assessments of trends in the trafficking process, successes and failures of anti-trafficking measures, to gather information and to report about it. Additionally, such a mechanism would allow an early identification procedure for the victims in order to provide them with protection and assistance.77 Compliance of Germany: Germany is a source, transit and destination country of human trafficking. It is a State Party to the Trafficking Protocol as well as to the CoE Trafficking Convention. Already during the ratification process of the CoE Trafficking Convention it was Germany’s position that its national laws were essentially compatible with the provisions of the Convention. Therefore, it just had a draft for a national law in which it stated that the Convention is already operating.78 Thus, there was no further need to change national laws and no further implementation 72

Art. 12 (4) Directive 2011/36/EU.

73

Villacampa Estiarte (note 35), 306.

74

Ibid., 317.

75

Art. 17 Directive 2011/36/EU.

76

Art. 19 Directive 2011/36/EU.

77

Gromek-Broc (note 58), 233.

78

German Draft Act concerning the CoE Trafficking Convention (Entwurf eines Gesetzes zu dem Übereinkommen des Europarats vom 16. Mai 2005 zur Bekämpfung des Menschenhandels), 17 October 2011, in: Printed Papers of the German Parliament (Bundestagsdrucksachen) 17/7316.

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required. Contrary to the opinion of the German Federal Government, experts in the field claimed that the national laws were not sufficient to provide the required victim protection of the CoE Trafficking Convention.79 Despite the statements of the experts, the German Parliament (Bundestag) approved the new law without any further changes.80 The following analysis will only exemplify gaps in the implementation process. Therefore, it is not a comprehensive analysis of all existing German national laws that deal with human trafficking. Germany does not have its own overarching anti-trafficking legislation, but employs a piecemeal approach achieved by amending existing national laws whenever it assumes it is necessary to do so to comply with the new Directive and other relevant international instruments. Human trafficking is criminalised under the German Criminal Code (Strafgesetzbuch).81 The Criminal Code prohibits two types of human trafficking, namely human trafficking for sexual exploitation82 and human trafficking for labour exploitation.83 Furthermore, it criminalises aiding and abetting human trafficking.84 The Criminal Code does not prohibit human trafficking for the new forms of exploitation like forced begging, exploitation for criminal activities such as drug trafficking or shoplifting and removal of organs as required by the Directive. The former Bundestag proposed a draft for changes of the Criminal Code and the Trade Regulation Act (Gewerbeordnung)85 to implement the 2011 Directive in June

79

Heike Rabe, Schriftliche Stellungnahme des Deutschen Instituts für Menschenrechte für das öffentliche Fachgespräch „Europaratsübereinkommen zur Bekämpfung des Menschenhandels“ des Ausschusses für Familie, Frauen, Senioren und Jugend am 19. März 2012 (2012), 2 et seq., available at: http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/_DIMR_Stellungnahme_ Anh%C3%B6rung_FSFJ_Ausschuss_Menschenhandel_M%C3%A4rz_2012_.pdf (accessed on 24 March 2014). 80

German Parliament (Deutscher Bundestag), Plenary Protocol (Plenarprotokoll) of the 187th Session, 28 June 2012, Plenarprotokoll 17/187, 22569. 81

German Criminal Code (Strafgesetzbuch), 13 November 1998, Bundesgesetzblatt (BGBl.) I, 945, 3322, as amended on 10 October 2013, BGBl. I, 3799. 82

Sec. 232 German Criminal Code.

83

Sec. 233 German Criminal Code.

84

Sec. 232a German Criminal Code.

85

German Trade Regulation Act (Gewerbeordnung), 22 February 1999, BGBl. I, 202, as amended on 6 September 2013, BGBl. I, 3556.

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2013.86 This enactment introduced the new forms of exploitation to the definition of human trafficking in the Criminal Code in accordance with the requirements of the new Directive. The draft never came into force as the German Federal Council (Bundesrat) hindered its activation in September 2013.87 The rejection of the German Federal Council was based on the argument that the draft law did not fulfil all the requirements of the 2011 Directive. Assuming the Federal Council’s position was correct, Germany is still not in compliance with the definition of trafficking prescribed by the Directive. Despite this, the current Criminal Code complies with the penalty provisions as its current maximum ten-year sentence fulfils the requirements of the Directive. Moreover, German prosecutors are permitted to decline to prosecute victims of trafficking who committed offences during the course of their trafficking experience.88 Thus, there is the possibility to refrain from prosecution for trafficking-related crimes committed by victims in accordance with the non-punishment clause of the Directive. There are no German anti-trafficking laws which explicitly provide for protection and assistance for victims of human trafficking. Third country nationals receive protection and assistance during the reflection and recovery period according to Section 59 (7) Residence Act.89 During the reflection and recovery period victims are given the time to decide whether they want to collaborate with the relevant national authorities. This period lasts for three months. Within this period trafficking victims can claim benefits.90 There is no corresponding provision for benefits for victims who are EU citizens.91 Victims who are EU citizens and who cooperate with the authori86 German Draft Act concerning Human Trafficking (Gesetzesentwurf der Fraktionen der CDU/ CSU und FDP: Entwurf eines Gesetzes zur Bekämpfung des Menschenhandels und Überwachung von Prostitutionsstätten), 3 June 2012, in: Printed Papers of the German Parliament 17/13706. 87

German Federal Council (Bundesrat), Decision of 20 September 2013, in: Printed Papers of the Federal Council 641/13. 88

Secs. 153 et seq. German Code of Criminal Procedure (Strafprozessordnung), 7 May 1987, BGBl. I, 1074, as amended on 23 June 2011, BGBl. I, 1266. 89 Act on Residence, Economic Activity, and Integration of Foreigners in the Federal Territory (Residence Act) (Gesetz über Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet), 25 February 2008, BGBl. I, 162, as amended on 6 September 2013, BGBl. I, 3556. 90 Sec. 1 (1) Nos. 3 and 4; Sec. 3 Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz), 30 June 1993, BGBl. I. 2022, as amended on 22 November 2011, BGBl. I, 2258. 91

Heike Rabe, Stellungnahme: Umsetzung der EU-Menschenhandelsrichtlinie (Richtlinie 2011/ 36/EU des Europäischen Parlamentes und Rates vom 5. April 2011 zur Verhütung und Bekämpfung

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ties can refer to the German Social Security Code II92 to claim benefits, but the situation for EU victims during the reflection and recovery period is not regulated. There is no regulation on whether the Social Security Code II is applicable in this special situation.93 Thus, the protection of all possible victims is not fully determined under the current national laws. Therefore, there is still a need to implement the Directive in a comprehensive manner. The possibility of receiving a temporary residence permit for victims who are third country nationals is regulated in Section 25 (4a) Residence Act. This permit is renewable under the requirements set out in Section 26 (1) cl. 3 Residence Act. Victims might be eligible for a long-term permit on humanitarian grounds.94 Nevertheless, there is still no permanent residence permit for victims of human trafficking available. This leaves victims in Germany in a vulnerable position as numerous victims fear repatriation due to reprisals and retaliation of the traffickers in their home country. Furthermore, the possibility for victims of trafficking to receive compensation is limited in Germany. Section 17 of the 2011 Directive obliges Member States to assure access to existing schemes of compensation. Although Germany has a national law that provides for the possibility to claim compensation for victims of a crime of violence, the Victim Compensation Act,95 only a limited number of victims are actually able to do so. Victims from third countries are most likely excluded because the Victim Compensation Act requires a residence permit.96 Thus victims of trafficking who are not willing to cooperate with law enforcement authorities or who are not regarded as useful for national proceedings will not satisfy this precondition and will not be able to claim compensation even though they are victims of a crime of vio-

des Menschenhandels und zum Schutz seiner Opfer sowie zur Ersetzung des Rahmenbeschlusses 2002/629/JI des Rates gegen Menschenhandel) (November 2012), 5–6, available at: http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/stellungnahme_umsetzung_eu_ menschenhandelsrichtlinie_11_2012.pdf (accessed on 20 March 2014). 92 German Social Security Code II (Sozialgesetzbuch zweites Buch: Grundsicherung für Arbeitssuchende (SGB II)), 24 December 2003, BGBl. I, 2954, as amended on 7 May 2013, BGBl. I, 1167. 93

Rabe (note 91), 5–6.

94

Sec. 25 (3) Residence Act.

95

Act on Compensation to Victims of Violent Crimes (Victim Compensation Act) (Opferentschädigungsgesetz), 7 January 1985, as amended on 20 June 2011, BGBL. I, 1114. 96

Sec. 1 (5) Victim Compensation Act.

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lence.97 Thus, there is no guaranteed access to existing compensation schemes for all victims in Germany. Lastly, there is another provision of the 2011 Directive which is not implemented by Germany, yet. Germany does not have a National Rapporteur on human trafficking or an equivalent mechanism.98 Even though Germany did not establish a National Rapporteur, it does have institutions which deal with the issue of human trafficking. Since 1994, the Federal Police Office (Bundeskriminalamt) publishes reports about the annual situation of human trafficking in Germany.99 Moreover, a Federal Working Group on Trafficking in Women was founded in 1997 which coordinates efforts to fight trafficking of women for mainly sexual exploitation. This Working Group consists of members from various federal ministries. However, these aforementioned structures do not satisfy the requirements of the Directive. Article 19 of the Directive obliges Member States to establish an independent institution, and thus governmental institutions cannot constitute such a mechanism or substitute it. Moreover, the Federal Working Group focuses on trafficking in women and neglects therefore other forms of trafficking and thereby other victims of human trafficking. Nevertheless, it is worth mentioning that Germany is planning to establish an independent institution in the future.100 Conclusion: The 2011 Directive was a necessary step by the EU to approach trafficking in a more holistic way. Instead of continuing solely with the law enforcement approach, the EU follows now a two-pronged approach which has the potential to have an impact on the lives of the victims. It continues with its efforts to criminalise human trafficking and provides victim protection and assistance. This step was based on the conclusion that a more victim-centred approach is necessary to be more efficient in the combat against this phenomenon. The Directive only sets a 97

Rabe (note 91), 7.

98

See European Commission, Together against Trafficking in Human Beings: National Rapporteur for Germany, available at: http://ec.europa.eu/anti-trafficking/National+Rapporteurs/Germany/ (accessed on 21 March 2014). 99 100

Ibid.

Federal Ministry of Family Affairs, Senior Citizens, Women and Youth (Bundesministerium für Familie, Senioren, Frauen und Jugend), Nationale Koordinierung und Berichterstattung „Menschenhandel“ in Deutschland – aktuelle Situation und Überlegungen, Vortrag Dr. Birgit Schweikert anlässlich der datACT-Konferenz, KOK e.V./La Strada, 27 September 2013, 14, available at: http://www.datactproject.org/fileadmin/user_upload/pdf/Birgit_Schweikert.pdf (accessed on 20 March 2014).

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minimum standard of victim protection to be achieved by all EU Member States, except Denmark. Thus, Member States are free to provide more assistance and protection than the minimum standard. Until today, Germany has not implemented all provisions of the Directive and therefore neither fulfils all its obligations under EU law nor under the CoE Trafficking Convention. This is to the detriment of the victims of trafficking. But it also has the effect that trafficking in human beings will continue to be a transnational organised crime with high profits and low conviction rates, as victims will not feel protected against their traffickers under the current national legislation. Therefore, Germany should review and reevaluate its current national laws that deal with human trafficking. At the moment, Germany does not follow a holistic and human-rights based approach to fight human trafficking.

BOOK REVIEWS

Bardo Fassbender/Anne Peters (eds.): The Oxford Handbook of the History of International Law. Oxford University Press, Oxford 2012, xl+1228 pages. ISBN 978-0-19-959975-2. The history of international law has become an autonomous and mature branch of legal history. Thus a handbook, dedicated to the global history of the law of nations in modern times, could be organised by two professors of law from German-speaking Europe, Bardo Fassbender and Anne Peters, as editors, together with more than fifty co-authors. The “Contents” (VII–XII) inform the reader about the division of the voluminous book into six parts, with 65 chapters in total. In their ample “Introduction: Towards a Global History of International Law” (1–24), the editors explain their new approach, “overcoming eurocentrism” and looking out for a global history which necessarily can only be written in an interdisciplinary way. Starting from “modern international law,” the editors excluded the detailed development in the Ancient Near East and in Europe in Antiquity and in the Early Middle Ages (2–3), but not those traditions which were evidently formative in the construction of the modern Law of Nations. The question remains whether this limitation can be maintained in the long run (e.g. when studying the important role of Islam in the historical development of international law). Part I on “Actors” (25–221), begins with a fundamental chapter on “Peoples and Nations” by Jörg Fisch (27 et seq.), followed by the late Antonio Cassese on “States” as “Primary Subjects” of international law (49 et seq.). Randall Lesaffer in the third chapter analyses “Peace Treaties and the Formation of International Law”– a real masterpiece, since the author includes also the lines of development which connect our modern law with Antiquity and the Middle Ages. Chapter 4 discusses “Minorities and Majorities,” by Janne Nijman, and in the fifth chapter Joaquin Alcaide Fernández writes on piracy, slavery and other international crimes. Cornelius G. Roelofsen presents masterly a chapter on “International Arbitration and Courts” (145 et seq.). Chapters 7 and 8, respectively deals with “International Organizations” (Anne Peters and Simone Peter), and civil society actors (Cecelia Lynch) complete Part I. Part II on “Themes” (223–379), opens with an excellent concise chapter 9 on “Territory and Boundaries,” permitting a glimpse also on pre-classical and classical Antiquity (DanielErasmus Khan). The following chapter on “Cosmopolis and Utopia” (Dominique Gaurier) presents a masterly short survey of the various projects for a perpetual peace in Europe and – finally – the world (250 et seq.). A view on “Peace and War” (Mary Ellen O’Donnell), includes the old concept of “just war” (bellum iustum). That leads on to the problems of “Religion and Religious Intervention,” discussed by Antje von Ungern-Sternberg in chapter 12. A modern theme with deep roots in history is dealt with by Robert Kolb in “The Protection of the Individual in Times of War and Peace” (317 et seq.). Pure history is told by Koen Stapelbroek

614 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 in chapter 14 on “Trade, Chartered Companies, and Mercantile Associations.” The last chapter of this part is a concise survey of the law of the sea from Antiquity to the present time owed to the late David J. Bederman. Part III, entitled “Regions” (381–810), comprises the history of nations all over the world and some important “encounters” between Europe and other regions. This explains the unique size of Part III as well as the use of “regions” as subdivisions of the globe. “Africa and Arabia” is the title for the chapters under this subdivision. “Africa North of the Sahara and Arab Countries” by Fatiha Sahli/Abdelmalek El Ouazzani, (385 et seq.), showing the impact of Islam in international law. James Thuo Gathii’s contribution on “Africa” (chapter 17) and Umut Özsu’s on the “Ottoman Empire” (429 et seq.) complete this subdivision. The instalment on “Asia” is the headline for the following three chapters on “China” (Shin Kawashima), on “Japan” (Masaharu Yanagihara) and Bimal N. Patel on “India.” The next subdivision, entitled “The Americas and the Carribean,” begins with chapter 22 on “North America: American Exceptionalism in International Law” by Mark W. Janis (525 et seq.). This is followed by chapters 23 by Jorge L. Esquirol on “Latin America” (553 et seq.) and chapter 24 on “The Caribbean,” by David S. Berry (578 et seq.). The fourth regional unit, “Europe,” comprises four chapters telling the history in chronological order, which is justified, since modern international law was mainly developed in Western and Central Europe. Martin Kintzinger (607 et seq.) guides the reader “From the Late Middle Ages to the Peace of Westphalia.” Whilst Heinz Duchhardt analyses masterly the period “From the Peace of Westphalia to the Congress of Vienna” (628 et seq.). Another masterpiece is also the survey presented by Miloš Vec in chapter 27 “From the Congress of Vienna to the Paris Peace Treaties of 1919.” The last chapter in this section concerning the European development, “From the Paris Peace Treaties to the End of the Second World War” (679 et seq.) was written by the late Peter Krüger. The final subdivision of Part III, “Encounters”, combines five chapters which claim our vivid interest: “China – Europe” (Chi-Hua Tang, 701 et seq.), “Japan – Europe” (Kinji Akashi, 724 et seq.), “India – Europe” (Upendra Baxi, 744 et seq.), “Russia – Europe,” excellently analysed by Lauri Mälksoo (764 et seq.), and chapter 33 on “North American Indigenous Peoples’ Encounters” by Ken Coates. Part IV on “Interaction or Imposition” (811–939) comprises chapters on “Diplomacy” by Arthur Eyffinger (chapter 34), “Discovery, Conquest, and Occupation of Territory” (Andrew Fitzmaurice, 840 et seq.), “Colonialism and Domination” (Matthew Craven, 862 et seq.), “Slavery” (Seymour Drescher/Paul Finkelman, 890 et seq.) and finally chapter 38 on “The Civilized and the Uncivilized” (Liliana Obregón, 917 et seq.). Part V on “Methodology and Theory” (941–1078) will be of fundamental interest for nearly all readers. In chapter 39, Martti Koskenniemi presents in a concise and lucid manner “A History of International Law Histories” (943 et seq.). A general problem of writing legal history follows in the “Doctrine versus State Praxis” (Anthony Carty, 972 et seq.). Oliver Diggelmann discusses “The Periodization of the History of International Law” (997 et seq.).

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In the outstanding chapter 42 Kaius Tuori stresses and analyses “The Reception of Ancient Legal Thought in Early Modern International Law.” Tuori gives the necessary information about the ancient (especially the Roman) roots of the modern international law. This should be kept in mind when entering the discussion on “Eurocentrism in the History of International Law” by Becker Lorca (1034 et seq.). The final chapter of Part V is entitled “Identifying Regions in the History of International Law,” is dealt with by Antony Anghie (1058 et seq.). Part VI on “People in Portrait” (1079–1183), is divided into 21 rather short chapters, i.e. biographical articles about life and work of eminent thinkers and promoters of international law in chronological order, beginning in chapter 45 with the Islamic legal scholar Muhammad al-Schaybani by Mashood A. Baderin. Annabel Brett continues with Francisco de Vitoria and Francisco Suárez in chapter 46. Alberico Gentili covered by Merio Scattola (1092 et seq.), Hugo Grotius by Peter Haggenmacher (1098 et seq.), and other European ‘classics of international law,’ too great in number to list. Part VI ends with the life and work of authors of the last century: Hans Kelsen and Carl Schmitt both by Fassbender, in chapters 63 and 64 respectively, and finally Hersch Lauterpacht covered by Ian Scobbie (1179 et seq.). Of course such a collection of biographies can always be criticised by readers who would prefer here and there some other name (as the present reviewer would have given up Bertha von Suttner for Johann C. Bluntschli, and relinquished Carl Schmitt for Walther Schücking, Karl Strupp or Alfred Verdross). More serious is the empty space before and after the great Hanafite scholar of Islamic Law presented in chapter 45: Shaybani (who lived 749/50 to 805), was a contemporary of Charlemagne, separated by seven centuries from Francisco de Vitoria. So the interested reader will be grateful for the information given in other parts of the Handbook, e.g. by Lesaffer in chapter 3 and Tuori in chapter 42. Readers without knowledge or interest in European history might draw false conclusions from the splendid isolation by Shaybani in Part VI. This leads back to the question posed already above: can we fully value the Islamic contribution to the development of international law, without comparing it with the legal doctrines and rules existing in Christian Europe since Late Antiquity? The early modern “classics” of international law presented in chapters 46 et seq., had been educated and trained in the European legal science which begun about 1100 with the study of Roman law in Bologna. Not less important was the development of Canon Law, where the patristic tradition of Roman ideas on international law was preserved, for example in quotations from Augustine (d. 430) and Isidore of Sevilla (d. 636) which now had the rank of legal rules of the Latin Church. The synthesis of both branches of the medieval scholastic jurisprudence was the foundation of the European ‘Law of Nations’ presented also by Kintzinger in chapter 25. An Italian professor of Roman law, Martinus Garatus (1453), thus wrote (obviously for practical purposes), Latin treatises “on war,” “on alliance, peace and convention of princes,” and “on envoys mainly of princes.” There is no doubt that the Oxford Handbook of the History of International Law will become what editors and authors intended: “the new standard reference work for the global history of international law,” provides the reader with a broad spectrum of useful information

616 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 on a high level which is not easily assembled. Perhaps a later edition will provide the opportunity to add a few chapters on Antiquity and Earlier Middle Ages, where modern States in Africa, Asia and Europe have also mutual deeper roots in history. KARL-HEINZ ZIEGLER Professor (Emeritus) Faculty of Law, University of Hamburg

Maurizio Ragazzi: Responsibility of International Organizations. Essays in Memory of Sir Ian Brownlie, Martinus Nijhoff Publishers, Leiden/Boston, 2013, xlvi+469 pages, ISBN 978-90-04-25607-1. The adoption of the Articles on the Responsibility of International Organizations (ARIO) may be celebrated not only as being just another topic successfully completed by the International Law Commission (ILC), but also as a great occasion for stirring up the debate on the consequences of international personality including the ability to be held internationally responsible. The pace of work on the topic has been indeed breathtaking, especially when compared with the lengthy process of elaborating analogous rules on State responsibility. After merely 9 years of deliberation, the Commission successfully managed to complete its work. Much appreciation in that regard is due to Professor Giorgio Gaja, acting as Special Rapporteur. The outcome, however, does not stand any easy comparison with the Articles on Responsibility of States for Internationally Wrongful Acts. Contrary to its predecessors, the ARIO does not reflect the established customary practice as many of the issues concerned remain highly controversial. If only for this reason, the book under review deserves particular attention. This impressive series of contributions paying homage to the life and work of the late Sir Ian Brownlie aims, in the words of the editor, at “bringing together […] different perspectives from the bench, the Commission, academia, and the world of in-house counsel to international organizations.” This approach resulted in different, sometimes diverging, views on the relatively new area of exploration, to reflect the reality of international law. This is the second time when academic community pays a tribute to Sir Ian Brownlie. The previous Festschrift, edited by Professors Goodwin-Gill and Talmon, consisted exclusively of studies by former pupils of Professor Brownlie. The contributors invited to participate in the volume edited by Ragazzi have different backgrounds, including scholars closely linked to Professor Ian Brownlie, but also other (sometime) members of the ILC and practitioners. Thus, different papers combine eminent academic expertise with the experience of practitioners. They all revolve around the central topic of responsibility of international organizations. Given Sir Ian’s particular interest in international responsibility, as evidenced e.g. by the opening (and regrettably the only) part of his System of the Law of Nations: State Responsibility (1983) or by his engagement in the Commission’s work on ARIO, the title choice comes as no

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surprise. It may be further reinforced by reference to the extensive practice of Professor Brownlie, who was involved on behalf of the government of Serbia and Montenegro in cases before the International Court of Justice regarding the legality of North Atlantic Treaty Organization bombing of Serbia and Montenegro. In the English courts Brownlie was Counsel in the International Tin Council, a groundbreaking case for the responsibility of international organizations. The present book could be regarded as a supplement to International Responsibility Today (2005), also edited by Ragazzi, commemorating the international lawyer, Professor Oscar Schachter, which has become an indispensable point of reference for anybody investigating that domain of international law. The impressive collection of papers by eminent lawyers, including one by Sir Ian, provides the reader with a unique occasion to compare scholarly views on international responsibility. Another such occasion has been provided by the second liber amicorum, presently under review, again concentrating on international responsibility. The 34 contributions within this volume on the responsibility of international organizations are grouped into four highly introspective parts. This could pose several problems, given the specific subject-matters intersect and draw a definite line between the defined parts. However, the organizational order seems deliberate as the editor chooses to guide the reader by means of an introductory structure. The first part: “Setting the Stage” consists of 5 papers addressing in a general manner the issue of codifying the responsibility of international organizations. The authors of this section, members of the International Court of Justice or of the ILC, consider the approaches taken by the Commission towards international organizations (Cançado Trindade, Keith) and the particularity of the Commission’s work with particular exposition of the dangers accompanying the elaborated rules on international responsibility (Murphy, Pellet, Wood). The second part aims at “Assessing the Commission’s Approach” generally (Amerasinghe) as well as from a more specific perspective, for example concentrating on the special relationship existing between a State and an organization (Sarooshi), the lex specialis (Boon, Pronto, compared to Ragazzi in the third part of the book) or the rules of the organization (Roucounas). The natural point of reference and evaluation in this regard is of course the outcome of the ILC work on State Responsibility (Proulx, Scovazzi). Often, the ARIO would be criticised for automatically copying the previous Articles without paying due attention to differences between States and international organizations. Other author (Arcari), by examining the value of non-prejudice clause to the Charter in both sets of Articles, takes the opportunity to delineate the regime of responsibility in either case from one of collective security. The juxtaposition of 2001 and 2011 Articles may suggest a rather pessimistic conclusion (drawn by the late Ambassador Yamada) that the ILC be at a critical phase coupled with a call for reorganising its work and first of all the selection of codification topics (93). The contributions grouped in the third part “Particular Perspectives” confront theory with practice of several organizations and entities (Middle East Quartet, Holy See). Special attention is paid to international financial institutions. Those arguments may of course be

618 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 used to reflect again another point of criticism levelled against the ARIO, for not sufficiently respecting the variety of international organizations. Obviously, the lack of differentiation between the different kinds of international organizations might be problematic for regional economic organizations and those difficulties are also identified in the context of Member States implementing the European Union measures (195–196). The last part on “Special Concerns,” concentrates first on the question of Member State responsibility. The issue attracted the attention of the doctrine of international law for some decades as one getting to the core of independent personality of international organizations. Reference is made to the Lisbon resolution of the Institut de droit international (297, 326). In the already mentioned post mortem tribute to Oscar Schachter also edited by Ragazzi, Brownlie suggested that it would be illogical to suppose that a group of States can manufacture immunity from responsibility toward third States by the creation of an international personality (362). The point was hotly discussed within the ILC (where Brownlie was a member until 2008). Eventually, it has been reflected in Part V of the ARIO and now also in several valuable contributions of the given section. They concentrate mainly on modalities of holding the members responsible for an international organization. Alternatively, members may be expected to cede funds in order to compensate the injured party. This aspect is analysed in a separate contribution by Palchetti (Exploring Alternative Routes: the Obligation of Members to Enable the Organization to Make Reparation) but also in detail by Pellet (International Organizations are Definitely Not States: Cursory Remarks on the ILC Articles on the Responsibility of International Organizations) in part one. In the second section Thirlway addresses the possibilities and the hurdles preventing the ICJ from directly addressing the responsibility of international organizations and particular attention is paid to instances where these organizations are connected with a State in committing an internationally wrongful act (352 et seq.). This piece corresponds with the preceding contribution by Puig on accountability of organizations and the role of global administrative law (Responsibility of International Organizations and Justiciability of Disputes). There is, however, no evident link to the remaining two short studies on countermeasures to justify placing them under a single heading with the preceding ones. No such doubts exist in terms of internal coherence of the last section of part four on the widely discussed issues concerning international peacekeeping operations and the use of force. The dominating aspect to be particularly noticed there is the question of attribution. Certainly, the issue may be traced also in other parts, e.g. in the paper by Martha (Attribution of Conduct after the Advisory Opinion on the Global Mechanism), or within the considerations of responsibility from the perspective of the WHO, EU or financial institutions. Discrepancies in that regard are yet another proof of how difficult it would be to construe a single unified regime to completely address the responsibility of international organizations under international law. It is impossible to cover in this brief review all the aspects raised in the volume. Without any doubt the fortunate decision to edit another Gedächtnisschrift devoted to the new dimension of international responsibility is to attract the attention of all interested in the develop-

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ment of international law in the given field. The book may be regarded an important addition to the existing literature on international responsibility and can be warmly recommended. BARTŁOMIEJ KRZAN Assistant Professor at the Department of International and European Law Faculty of Law, University of Wrocław, and Lecturer at the German-Polish Law School, Humboldt University of Berlin

Duncan B. Hollis: The Oxford Guide to Treaties. Oxford University Press, Oxford 2012, lxviii+804 pages, ISBN 978-0-19-960181-3. For centuries, treaties have regulated relations among nation-States. Today, they are a dominant source of international law. Thus, being adept with treaties and international agreements is an indispensible skill for anyone engaged in international relations, including international lawyers, diplomats, officials of international organisations, and representatives of NGOs. It is a topic of a high academic and practical interest and in this big compendium Hollis together with the highly respected contributing authors joins a number of leading experts who shed light on the rules and practice surrounding the making, interpretation, and operation of these legal instruments. The first part of the book is dedicated to foundational issues. The editor illustrates the defining characteristics of a treaty on two levels (11 et seq.). First demonstrating what a treaty is and what are the consequences for its use which varies by context. Second, the definition of a treaty in the Vienna Convention on the Law of Treaties (VCLT) is explained. This introducing chapter shows how the existing list of treaty ingredients is both incomplete and underdeveloped. Finally Hollis states correctly that defining treaties is not a simple task (44). In the second chapter Aust focuses in an instructive manner on the ability of States to create non-legally binding agreements (46 et seq.), known generally as “Memorandum of Understanding” (MOU). As non-legally binding agreements, MOUs are in a distinct category from treaties, although this often leads to confusion as treaties sometimes have “Memorandum of Understanding” as a title. Thus, attention must be given to the parties’ intentions in identifying which type of commitment was undertaken: legal or political. MOUs offer several distinct advantages over treaty-making (71). Because it is not legally binding like a treaty, it does not have to be published. As a result MOUs offer a greater chance at preserving confidentiality. They are also generally more convenient to make than treaties, as they are frequently less formal, and, often, can be quickly amended or terminated. The following chapters try to answer the fundamental question: who can make treaties? Elias shows in this differentiated contribution that international organisations play a direct role in treaty-making (73 et seq.). The author underlines that there is a continuing tension

620 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 between the status of international organisations as independent subjects of international law distinct from Member States, on the one hand, and the fact that these organisations are the creation of sovereign States who retain that status in several important respects, even as they operate behind the institutional veil. As an outcome of this constant oscillation between the position of the organisation as a party in its own right, and the position of the organisation as a vehicle for its own Member States, issues remain over who is bound and the division of competences, responsibility, and liability. These ambiguities are often masked by the similarities between the provisions of the 1969 and 1986 VCLT (90). For the European Union (EU) Cremona highlights the distinctive features of the EU as an international treaty-making actor (93 et seq.). The early espousal of a doctrine of implied powers by the European Court of Justice enabled the EU from the beginning to use international agreements as well as internal legislation to achieve its objectives, and since then amendments of the EU Treaties have steadily added to its external and internal competence. Although EU external competence may exclude that of Member States, either through a priori exclusivity or through pre-emption, in very many cases, especially complex modern multilateral treaties, the EU and its Member States will participate together and it is these agreements which pose the most difficult challenges, both for EU law and for its treaty partners. The nature of the EU as a treaty-making power – and the distinctiveness and complexity with which third countries are faced – is the result of this incremental and reiterative political and legal process. At the same time, in engaging with and posing these questions, the EU is making a contribution to the development of international law (123). Grant analyzes other subjects of international law in relation to their capacities as treatymaking actors (125 et seq.). Treaty-making practice with these bodies is modest in comparison to that of States, but it is by no means negligible (148). The author describes a number of interesting examples: special administrative regions (Hong Kong, Macao, and Taiwan); indigenous peoples, non-self-governing territories (Bermuda, British Virgin Islands, and Jersey); territories under international administration (East Timor and Kosovo); insurgent groups; and private actors. By saying that an entity has international legal personality suggests that it can enter into international agreements. Grant concludes that the inverse is also true: if there is treaty-making, then, at least to that extent, international personality is to be deduced (148). In the final article of the first part Raustiala discovers that NGOs are ubiquitous in treaty processes today (150 et seq.). While they have been active in one form or another in international lawmaking for well over a century, the quantity and quality of participation today is unprecedented (172). International law has been forever changed by the empowerment of NGOs. While there is no uniform pattern, in a wide array of issue-areas – from global health to environment to labour and to human rights – NGOs have become important and even central players who actively and vigorously participate in the negotiation of new treaties and the implementation and adjustment of existing ones (173). The high practical importance of the guide is especially represented in Part II which focuses on treaty formation. Chapters on “Making the Treaty” (Korontzis, 177 et seq.); on “Treaty Signature” (Bradley, 208 et seq.); on “Provisional Application of Treaties” (Dalton, 220 et seq.);

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on “Depositaries and Registration” (Hinojal-Oyarbide/Rosenboom, 248 et seq.); and on “Treaty Reservations” (Swaine, 277 et seq.) answer every question on drafting international treaties. After concluding a treaty legal questions are not finished, but evolves into questions on how the treaty should be applied. Parts III and IV are dedicated to treaty application (305 et seq.) and interpretation (475 et seq.). With large chapters on “Territorial Application of Treaties” (Karagiannis, 305 et seq.); “Third Party Rights and Obligations in Treaties” (Bederman, 328 et seq.); “Treaty Amendments” (Brunée, 347 et seq.); “Domestic Application of Treaties” (Sloss, 367 et seq.); “State Succession in Respect of Treaties” (Hafner/Novak, 396 et seq.); “Treaty Bodies and Regimes” (Ulfstein, 428 et seq.); “Treaty Conflicts and Normative Fragmentation” (Borgen, 448 et seq.); “The Vienna Convention Rules on Treaty Interpretation” (Gardiner, 475 et seq.); “Specialized Rules of Treaty Interpretation Created by International Organizations” (Brölmann, 507 et seq.); and “Interpretation Rules Directed by Human Rights” (Cali, 525 et seq.). Within these chapters, all the relevant legal aspects are covered by the authors. Part V contains contributions on the termination of treaties. It includes articles with regard to “The Validity and Invalidity of Treaties” (Klabbers, 551 et seq.); “Reacting against Treaty Breaches” (Simma/Tams, 576 et seq.); “Exceptional Circumstances and Treaty Commitments” (Fitzmaurice, 605 et seq.); and “Terminating Treaties” (Helfer, 634 et seq.). The concluding part VI covers the prevailing key treaty issues – with explanations of selected recent treaty clauses. The selected clauses cover over 100 pages (651–769) offering corresponding wordage to the earlier explanation of treaty law and practice. The book presents not only an analysis of how treaty-makers construct their commitments from a legal point of view, but it also provides the reader with insight to the precise wording by which they do so (652). The Oxford Guide to Treaties transfers all legal and practical questions on treaty-making to a new dimension. It provides a comprehensive guide to treaties and an impressive authoritative reference point for anyone involved in the creation or interpretation of international treaties. This fundamental work has established a new monument of international law that will govern the Law of Treaties for the next decades. MARCUS SCHLADEBACH PD Dr. LLM University of Göttingen

Francesco Francioni/James Gordley (eds.): Enforcing International Cultural Heritage Law. Cultural Heritage Law and Policy Series, Oxford University Press, Oxford 2013, 280 pages, 2013, ISBN 978-0-19-968024-5. The book under review gives a fascinating insight into the protection and enforcement of laws concerning international cultural heritage. This includes the underwater heritage discov-

622 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 eries, the destruction of cultural heritage during armed conflict, civil wars, acts of terrorism, and theft. The book consists of twelve chapters divided into three parts. Part one examines enforcement within the remit of international mechanisms and methods, part two focuses on domestic adjudication, and part three analyses the alternative methods of implementation and dispute settlement (such as arbitration; negotiations; practices of museums and development of social norms). All chapters of the book provide an excellent and critical in-depth analysis of existing international and national laws and State practice. The book evidences the difficulties relating to legal issues of cultural heritage. These laws have undergone a great development, and are still evolving. The book also presents a very useful historical perspective. The legal labyrinth of rules concerning the protection of cultural heritage is due to the evolution of its character. As Francioni observes: “black and white view of the role of and significance of cultural heritage is today being replaced by a more sophisticated and pluralistic conception of cultural expressions that transcends the raw distinction between national and international attitudes” (11). In this very important first chapter, the author analyses the plurality and interaction between international and national regimes. For example, regarding peacetime, international law, public law and private law have come together to develop an obligation to prevent and repress the illicit traffic of moveable cultural property. At the level of public law, many States ratified the 1970 UNESCO Convention, and in private international law, the 1995 innovative UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects must be lauded. The 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage is an expression of an interaction between international law and domestic law. It is a successful Convention due to “the careful combination of national legal orders, based on the principle of territorial sovereignty, with international law concept of ‘world heritage’ attached to properties of such exceptional value so as to becoming the object of general interest of humanity to their conservation and transmission to future generations” (15). In chapter two, discussing the historical perspective, Ana Vrdoljak, gives an analysis of peace treaties which were concluded post World War I which dealt with questions such as restitution, reparation in kind and the reconstitution of national patrimony. However, these treaties are not only of historical value but also constitute the foundation for contemporary principles of international law for the protection of cultural property. Obligations contained therein include: the law of armed conflict, humanitarian law, and the law on minorities. Therefore, it may be said that these treaties fostered an environment which gave rise to such treaties as the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention) and the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols. International criminal law experts will find very interesting the third chapter on the role of international and mixed criminal courts in enforcement of international norms concerning the protection of cultural heritage. Lenzerini analyses in particular the situation during the Balkan armed conflict and comes to the conclusion that cultural heritage represent also national and spiritual identity and its destruction during the Balkan conflict was aimed at the destruction of these values. The same author also presents a very competent analysis of the evolutionary and very important jurisprudence of the ICTY in this respect. Rush ends the first

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part of the book with an equally interesting “view from the ground” presented in chapter four which deals with the variety of methods for preventing and combating looting of archaeological sites and illicit traffic in antiquities. A case study on the Italian Corpus of the Carabinieri is used to describe how cultural patrimony is protected. International law is complex in relation to protection of cultural heritage but the real quagmire is enforcement by domestic courts. This is best evidenced by in the chapters of Pavoni, Vigoni, Gernstenblith and Gordley (chapters five to eight) on the defence of sovereign immunity from suit; the execution and on enforcement of foreign law-reclaiming one nation’s cultural heritage in another nation’s courts; the enforcement of underwater cultural heritage by courts; enforcement by domestic courts-criminal law and forfeiture in the recovery of cultural objects. The analysis of certain domestic laws (such as the US Foreign Sovereign Immunities Act) leads Pavoni to the conclusion, shared by the reader, that “[a] clear-cut, all encompassing answer to all existing dilemmas is not forthcoming. Equally, perspective based on cultural human rights is inconclusive” (108). However, the role of national courts is crucial as Vigoni states: “although international law has increasingly provided new instruments for the protection and conservation of underwater cultural heritage, such as the 2001 UNESCO Convention, the role of domestic courts is still essential for coordinating the various norms, whether domestic or international, that are applicable in the disputes affecting these particular goods” (149). Gerstenblith describes how three types of illegal activity are dealt with via civil and criminal cases: the looting of cultural objects from which they were buried or concealed; the theft of such objects from their owners; and their smuggling across international boundaries. Gerstenblith also notes the insufficiency of the law in enforcement efforts, due to the lack of resources and also insufficient knowledge and training. Gordley describes the legal obstacles to civil suits before domestic courts and concludes that in order to be effective, a different sort of property right should be claimed by a State, i.e. a right to guard and preserve cultural objects, which would allow for them to be reclaimed when smuggled abroad. In the third part of the book, covering chapters nine to eleven, the reader is presented with some alternative methods on how to enforce norms for the protection of cultural property and cultural heritage (Chechi, Fincham and Flora respectively).Since there are acknowledged difficulties in bringing suits in domestic courts, there is an option of recourse to negotiation; mediation; and arbitration (Chechi). The same author supports as the most efficient alternative the willingness of domestic courts to recognise special features of suits over cultural objects, the unique character of the art market and to reconcile all interests at stake (legal; financial; cultural; and historical). Fincham observes that the attitudes to observance of standards and social standards have changed in a positive way in museums and other cultural heritage institutions. Similarly, Flora focuses on changes in the formal ethical standards by leading American museums. Arguing that “the notion of a right to one’s own national heritage is one that rings loudly especially in Italy, where the outrage against looting and the possible participation in it by American collectors and museums is palpable” (239). In chapter twelve, the concluding chapter of the book, Yunxia writes about the restrictions on importing of China’s cultural objects, analysing the Sino-US Memorandum of Understanding (MOU) based on the specific provision of Article 9 of the 1970 UNESCO Convention. This MOU

624 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 could be extended to cover other illicit traffic in cultural objects, concerning China’s separate dealings as relates to Japan and then with Korea. In conclusion it must be said the book under review is an excellent study of existing international and domestic regulations on enforcement of international cultural heritage law. Authors presented very well researched and innovative approach to this issue; giving very honest accounts about the insufficient legal protection of cultural heritage, at the international and national levels. The book is a must for all international lawyers, not only experts in the area of cultural heritage. Although written by well- known specialists in this area, it is very accessible. The general view of the existing law is rather discouraging. It can be said that in this area, (as in others, such protection of biological diversity), there is so much law, so little protection. The question arises whether separate courts established in this area would help to overcome these problems. The author of this review is rather sceptical as to the necessity of the establishing of more international courts and tribunals. It might lead to further fragmentation of international law, which as it was investigated recently by Philippa Webb in International Judicial Integration and Fragmentation (2013), 227. Webb states that in selected areas (State immunity; the use of force; and the law on genocide) the proliferation of courts and tribunals, may result in “a small but genuine risk of incoherence in the development of international law.” It is also doubtful whether more courts and tribunals would make the enforcement of cultural heritage law more efficient. In the view of the present author the solution (challenging) would be to make existing laws work. The question is whether it is at all possible. MALGOSIA FITZMAURICE Professor of Public International Law Queen Mary, University of London

Mohamed Elewa Badar: The Concept of Mens Rea in International Criminal Law – The Case for a Unified Approach. Hart Publishing, 2013, xliv+495pp. The mental element of a crime is a fundamental part of every system of criminal law, whether national or international. The complexity of the problem is increased by the fact that, apart from the general relevance of mens rea, the mental element of certain specific crimes acquires increasing importance. The multiplication of the relevant international tribunals, prominently including International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon, Special Tribunal for Sierra Leone and International Criminal Court (ICC), further increases the diversity and complexity in this area. Mohamed Badar’s book on this subject comes in the right time and impresses by its comprehensive and comparative approach to this problem. The systematic arrangement of themes and chapters has been conducted in a helpful manner to ease the reader’s challenges in comprehending such a complex subject operating at

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multiple national and international levels. The introductory chapter focuses on the relevance of “general principles of law” in identification of mens rea aspects of international crimes. The author sets the stage for examining various legal systems by outlining the relevance of general principles of law in the sense of Article 38 of the International Court of Justice Statute. These general principles, to the extent they can be found in this relevant area of law, could then inform the interpretation and application of various sources of international criminal law, including treaties (12). Chapter 2 examines the development of the concept of mens rea from the ancient times onwards. Chapter 3 focuses on common law jurisdictions, such as England and Wales, Australia and Canada. The basic categories of aiding and abetting, participation or joint enterprise are covered interestingly and in detail. The coverage of mens rea issues – intention, recklessness and others – is comprehensive and impressive). Chapter 4 covers the treatment of mens rea in the American Law Institute’s Model Penal Code. Chapters 5 to 7 then examine the legal position in continental European, Islamic, Russian and Chinese legal systems. This way, Badar provides a good preparatory analysis preparing the reader to grasp the legal position as to mens rea in international legal frameworks. Chapter 8 deals with post-World War II trials including those at Nuremberg and Tokyo, and the International Law Commission’s early work on this subject. In this chapter, the author skilfully demonstrates the uneasy process through which the mens rea concepts were applied to complex situations of participation in crime, conspiracy and other forms of joint perpetration, and also the questions related to actual and presumed knowledge of particular acts and membership in criminal organisations. Then the author moves to the more recent developments in the ICTY and ICTR frameworks (Chapter 9), and examines specific categories in detail, in relation to distinct mens rea requirements applicable to particular crimes. The examination of crimes such as terror against population, taking hostages, extermination or persecution is impressive. In relation to the intention underlying the commission of the acts of torture, the author could as well have contextualised this issue in relation to the parallels with human rights law and humanitarian law which also deal with analogous questions. Chapter 9 further singles out wilful crimes (e.g. killing) and wanton crimes (e.g. destruction of towns and property). Chapter 10 is also about ICTY and ICTR regimes, but now more specifically relating to participation situations such as planning, ordering or aiding and abetting. Chapter 11 covers the ICC regime which is still in early stage of its development, and provides a useful analysis of the legal regime under the ICC Statute. A further asset would have been if the author had contextualised and narrativised the ICC regime through comparisons with pre-existing frameworks (as dealt with in previous chapters) even further. Chapter 12 then offers conclusions and recommendations. Overall, Badar has provided a very impressive and comprehensive work, strong in all analytical, comparative and dogmatic senses. That some points of criticism may apply does not detract from the overall quality of this work. This book must be strongly recommended to

626 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 anyone who teaches, researches, or practises in the area of international criminal law or comparative criminal justice. ALEXANDER ORAKHELASHVILI University of Birmingham

Yvonne Dutton: Rules, Politics, and the International Criminal Court – Committing to the Court. Routledge, 2013, 188 pages, ISBN-978-0-415-65810-2. The book under review deals with the ‘enforcement mechanism’ and how it influences State membership to the International Criminal Court (ICC) Rome Statute. The main points discussed are questions relating to: the Statute’s creation and whether States were aware of what they were subscribing to, in the manner of the Rome Statute’s ‘unique’ enforcement mechanism, if the rules set up in this unique document will be adhered to by the same States which helped shape it during the drafting process, and finally questioning whether the ICC as an institution can prove a force to be reckoned with in meeting the set objectives of the Rome Statute, propelling States to enact and put in place their own domestic processes (judicial and enforcement mechanisms) of dealing with human rights abuses contained within the Statute. Hence, can the ICC act as a driving force, to ultimately deter individual perpetrators of crimes against humanity, war crimes and genocide, putting an end to such heinous atrocities? Or will the permanent ICC be seen as another legally strong paper tiger, as stated in the book’s foreword, but weak in its enforcement? Yvonne Dutton starts with an overview of the history, beginning with what the international community envisioned, an international criminal court flowing from the Second World War, culminating to the drafting of the ICC Statute, and the eventual bringing of the Court into existence. Case studies of different countries and their respective political climate are used to access their “commitment to the rules” of the Statute and Court. Dutton examines the different countries’ drive to see the ICC come into fruition and enquires whether their varying political objectives can be interpreted as a will to show their commitment to be part of this unique enforcement mechanism or will these said countries “sit on the sidelines” (x). The author enquires with this commentary, why weak States unlike with those with strong human rights records agreed to join the process. Is it a question of States without good human rights records ‘flocking’ to a party due to extra treaty benefits in the form of aid, trade benefits, or because of external pressure from strong States, not fully appreciating the consequences of the fine print in such a bold contract? Has the issue of State sovereignty been overlooked in place of the gains to be had? And in the reverse, why has the ‘strongest’ State and ‘superpower,’ the United States of America (USA), decided not to join the Statute, if the Court is really perceived as weak? Thus, the author focuses on the “credible threat theory” as a means of assessing whether a State chooses to ratify or not ratify the Rome Statute stemming from its very unique enforcement mechanism. The book is divided into 9 chapters, with the introduction setting the scene in highlighting the near universality of the 6 human rights treaty documents (International Covenant on

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Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the Convention on the Rights of the Child). This discussion is placed here to remind the reader of the relative ease States had (at least in comparison to the Rome Statute) in adopting the 6 human rights regimes. However, Dutton notes that the reason for their quick adoption ranged from their very weak enforcement to moderate enforcement procedures – set within the treaties in the form of self-reporting by States and recommendations by treaty bodies – which have no legal force or enforcement mechanism. These human rights regimes when juxtaposed with the Rome Statute shows the very strong enforcement mechanism the Rome Statute possesses; especially in light of the three triggering mechanisms for prosecution (Articles 13, 14, 15, 18 and 53 (1), (2) and 4). It is the proprio motu investigations by the ICC prosecutor that is brought into sharp focus here, which some States viewed as encroaching on State sovereignty, bringing a new dimension into the equation of the old – where treaties of the past had relied on ultimate State inviolability and minimal United Nations control in the internal affairs of a State without authorised consent – not to interfere in State affairs. The prosecutor’s power does not only end here, but also extend to the complementarity principle (Article 17), allowing the prosecutor the final say when the principle of complementarity is applicable, and not dependent on the State’s agreement. The approach adopted in the book uses the author’s background in empirical research from Dutton’s political science background, tied into legal argumentation garnered from Dutton’s international criminal law, and criminal law and procedure practice backgrounds. Hence, this puts the author well placed to discuss the topic in the format adopted to present this distinctive discussion dealing with the rules and politics of States in relation to the ICC. Thus, the book’s following chapters (3 to 8) bring into focus Dutton’s application of empirical methods in conducting an analysis on the role of the treaty’s enforcement mechanism in deterring States from ratifying the Rome Statute. This centres on testing the ‘commitment theory’ and its impact on the behaviour of States, discussed in chapter 2. Based on this theory, the author posits that States with bad human rights records should be discouraged from adopting the Rome Statute due to its strong enforcement mechanism and States with good human rights practices should not be deterred from its adoption. Noting that State behaviour to human rights abuse does not remain constant, but is subject to change, Dutton argues that this may lead to a change in commitment theory of a State, causing that State which would not have otherwise adopted the ICC Statute to do so, and vice versa. Case studies looking at the different commitment approaches of States are dealt with in chapters 3 to 8, starting with the commitment decision of the strongest States to weaker States with respect to their human rights practices. Each State chosen to show how their commitment to the Rome Statute changed over time with the changing political climate in each respective country, with the “credible threat theory” used as a gauge for assessment for each State. Chapter 3 deals with the USA, a powerful State with fairly good human rights practices, which was a great supporter of the ICC, until it came to the realisation that safeguarding its sovereignty outweighed the benefits of the Court. When the USA proposal for a weaker Court and prosecutor failed, it instead sought to weaken the prosecutorial powers of the Court through

628 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 entering Bilateral Immunity Agreements with 100 countries, some of who are party to the Rome Statute. It also examines the different and changing administrative policies from Clinton to Bush and presently Obama (54–58), which led the USA to be first critical, then overtly distant, and now offering more support for the Rome Statute, depending on its own interests. Four strong States (Canada, France, Germany, and the United Kingdom) are also examined in chapters 4 and 5. However, they are split, with Germany discussed in chapter 4 and the rest in chapter 5. The reason for this stems from the way in which the history and political makeup of the countries shaped their differing commitment approaches to the Rome Statute, even though they unlike the USA chose to ratify the Statute. Dutton surmises that the reason for the States choosing to ratify the Rome Statute is because these States felt that their judicial systems already catered to dealing with the crimes under the Statute and render the need for the application of the complementarity principle unnecessary. However, what is notable is the different lengths in time it took each State to ratify the Statute. Trinidad and Tobago is dealt with in chapter 6. It is not strange to see Trinidad and Tobago in this line up, not only for the reason of being the champion of the initiation of discussions for a new international criminal court in 1990, but also as an area of interest for Dutton who had previously served in the Southern District of New York offices and worked on cases in the Narcotics and Organized Crime Units – narcotics being the chief reason for Trinidad and Tobago’s initial proposal for developing an international criminal court. Rwanda and Kenya are the subjects of chapters 7 and 8, respectively, using them as examples of States with weak human rights records. Rwanda, a country still recovering from the aftermaths of its still recent memory of genocide, coupled with Kagame’s criticism of the international handling of the International Criminal Tribunal for Rwanda process and cases, and Kenya’s post election violence of the 2002 elections and the subsequent 2005 ratification of the Rome Statute by President Kibaki are the talking points. The author is more detailed in dealing with the Rwandan and Kenyan case studies, however, fails to mention the pull-push factors which trouble new and recent democracies born of war or former autocratic governments (with weak human rights practices) in comparison to those of old and more established democracies (with good human rights practices), in the concluding chapter 9. Thus, in the hope of improving democratic and good human rights practices, lessons must be learned from history and all human rights violations, beginning with Herero and Namaqua to Srebrenica and very possibly the ongoing case of Syria. Dutton’s book offers a snap-shot into the very important decisions, meetings and discussions leading to the adoption of the Rome Statute. Thus, readers looking to refresh on the details and history of this formidable treaty document can do so quickly cutting through a time line from the past to the present, with the added benefit of understanding the political reasons behind some States’ motive to adopt or not adopt the Statute. SYLVIA NWAMARAIHE Doctoral Candidate at the Walther-Schücking-Institute for International Law at the University of Kiel

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Anne-Marie de Brouwer/Charlotte Ku/Renée Römkens/Larissa van den Herik (eds.): Sexual Violence as an International Crime: Interdisciplinary Approaches. Series on Transitional Justice, vol. 12. Intersentia, 2013, xxiv+400 pages, ISBN 978-1-78068-002-6. Addressing crimes and human rights abuses committed during armed conflicts is crucial to end impunity and contribute to the establishment of a new political system based on the respect of the rule of law and principles of human rights. However, some crimes such as rape, sexual slavery and other forms of sexual crimes have been often considered as a residual consequence of war or isolated acts rather than a form of gender based violence due to sociocultural patterns of discrimination and exclusion. When systemic patterns are overlooked or dismissed and structural factors unaccounted – with women and girls are most likely to be the victims of these inhuman acts – such events run the risk of being repeated. Over the past 20 years there have been juridical and institutional advances in providing justice to victims of sexual violence in contexts of armed conflict. According to the Rome Statute of the International Criminal Court war crimes include: rape, forced prostitution, forced pregnancy, forced sterilisation and any other comparable forms of serious sexual violence. The International Criminal Courts’ (ICC) recognition of human rights violations associated with sexual violence and their potential relationship to war crimes and crimes against humanity has been a ground breaking step towards the recognition of sexual violence as an international crime. Equally important are the trials brought against people responsible for genocide and other violations of international humanitarian law in Yugoslavia and Rwanda. For the first time, the mandate of these courts focused on a new treatment of war-time sexual violence by creating a solid jurisprudence defining elements of sexual crimes, and to investigate and prosecute it as an independent war crime. These resulted in ground-breaking cases that helped to bring perpetrators to justice but most importantly to develop international standards on the struggle for justice of female victims of sexual violence during armed conflicts. This has stressed the importance of adopting a concerted effort to expose crimes of sexual violence widen the scope of sexual crimes definitions, and provide, at the same time, support services for victims such as medical assistance and counselling. Re-thinking sexual violence as an international crime from different perspectives is the main objective of this volume of the Series on Transitional Justice which compiles more than seventeen articles produced by different actors who have been directly involved in analysing sexual violence cases at different stages. From academic reflections, artists’ views, officers and judges experiences in criminal courts, and victims’ testimonies. The book sheds lights on the advances, challenges and pending issues to ensure the effective investigation and prosecution of these cases as a core element in transitional justice process. The interdisciplinary approach adopted by the editors help to reflect the of innovative mechanisms provided by the inclusion of other disciplines to eliminate obstacles such as discriminatory socio-cultural views, gender bias among prosecutors and judges, and the multiple ways in which acts of sexual violence are rendered invisible specially amongst male actors. An innovative feature of the book is that it includes a gender based approach when analysing the current justice model and the challenges faced in dealing with sexual violence cases. This analytical category used throughout the entire book make it evident that men and women can

630 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 be victims of sexual crimes, but with different impacts. The approach also contributes to the broader discussion on developing innovative tools and mechanisms in order to improve methodologies for collecting data; sensitive ways for recording victims’ testimonies; and protecting victims’ rights during trials. The book is divided into three main parts. The first part, which represents half of the book, offers a general overview of international courts concerning the prosecution of sexual violence. It reviews the experiences of the Criminal Courts of Yugoslavia, Rwanda, Sierra Leone, Cambodia and the ICC as relates to sexual violence crimes to demonstrate that despite the advances in the institutional and juridical framework, most of the cases related to sexual violence still remain invisible due to the lack of suitable methodologies for the investigation and the prosecution of the perpetrators. The complex characteristics of a conflict (non-international or international), challenges the establishment of judicial responsibility against officers belonging to highest levels of responsibility within the armed forces which explains, in some cases, few sentences against the army. The second part of the book raises interesting questions regarding innovative methodologies for social, archival and medical data collection which are core elements during a trial. Consistent evidence supporting the investigation process is key to ensure better results during trial, so juridical advances have to be sustained with appropriate measures supporting the investigation. Best practices on data collection, evidence management as well as different methods for undertaking an investigation process which leads to a successful trail are deeply developed in four chapters. The authors stress that anyone who potentially uses this information must consider the needs of survivors and seek to provide support services whenever victim participation is required. As a great contribution to create awareness of protecting victims’ rights and provide support services for victims, the third part of the book gives voice to the most important actors of the whole process, the victims. In this most sensitive part, the reader is made to recognise the difficulties faced by victims due to socio-cultural patterns of discrimination and victim’s stigmatisation in a community. A gender approach to identifying the causes and consequences of violence during armed conflicts can highlight the ways that violence against women exists in a society and increases during armed conflicts. This concluding part aims to draw the attention of judges, judicial officers and human rights defenders to the first step to ensuring victims’ rights to justice: by respecting and protecting their integrity and dignity. Useful lessons can be drawn for other regions of the world, such as Latin America where sexual violence cases are becoming a crucial part to end impunity and fulfil the victim’s right of access to justice and redress. Both national and regional courts in Latin America such as the Inter-American Court can draw from the international experience and make gainful advances in judging these crimes from a gender perspective and with an interdisciplinary approach. For example, during the transitional justice processes in Peru between the 1990s and 2000, the Truth and Reconciliation Commission (Comisión de la Verdad y Reconcilación) put in place to investigate the causes and consequences of violence during armed conflict, focussed on cases involving torture, forced disappearances and other gross violations of human rights. In most cases, findings have shown that sexual crimes against women were also committed in a systematic way; however they were investigated as human rights violations and not as ‘sexual

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violence as a war crime.’ In the Guatemalan cases, the Commission of Historical Clarification (Comisión para el Esclarecimiento Histórico, Verdad y Justicia en Guatemala) failed to identify sexual violence perpetrated against indigenous Mayan women as a war crime. The Commission officers also did not adopt methodologies to build trust and develop integral forms of psychosocial support for the female victims of sexual violence. These two core elements would have served to encourage the investigations and prosecution of these crimes. In sum, the multiple views provided within this book, especially as relates to such a delicate issue, are presented in a fluid manner which allows readers access to otherwise incomprehensible concepts. This volume will serve as an aperçu for law students, human rights defenders, academics, practitioners and judges; representing a great effort of bringing together international experiences in prosecuting sexual violence as an international crime and ways forward to effectively achieve this. CECILIA TOLEDO ESCOBAR Researcher at Fundar Centre of Analysis and Research Mexico

Stefan Talmon: Über Grenzen. Duncker & Humblot, Berlin, 2012, 230 pages, ISBN 978-3428-13971-2. Matthias C. Kettemann: Grenzen im Völkerrecht. Jan Sramek, Wien, 2013, XIX+297 pages, ISBN 978-3-902638-92-2. Law is often perceived as a limiting factor. Its function, to overcome the “law of the jungle” where the right of the strong prevails and to provide for a reliable order necessarily comes at the price of limitations to individual freedom. Even where the law grants certain rights to its addressees it will often do so by limiting the freedom of others. Needless to say that colliding freedoms have to be balanced and, thus, be limited by the application of legal principles. At the same time law is not without its own (legal) boundaries. The law finds its formal boundaries inter alia in rules on competences and substantive limits in higher ranking norms which result in questions of applicability and validity or legal norms. At the same time considerations of equity, legitimacy and morality may be discussed as possible limits to the law and its exercise. It is apparent that in public international law the issue of boundaries has at least a double meaning. Just like national legal norms, public international law it not without limits. As far as the governing of the behaviour of States and organisation are concerned, the law finds its functional limits in the particularities of this legal order, for example in its limited circle of actors, in specific (and often limited) competences and its principles such as State sovereignty, State immunities or State responsibility. In addition to the limitations inherent to the international legal order the issue of territorial and jurisdictional boundaries between States are issues of particular relevance which are addressed and regulated by law. Boundaries or limits in and

632 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 of law on different levels of the legal order allow for a variety of perspectives, relevant research questions and multifaceted discussions. While the collection edited by Stefan Talmon contains only German essays, the one edited by Matthias C. Kettemann contains three English contributions (out of 14). Both collections of essays subject to this review deal with what – in a first attempt – shall be translated and summarised as ‘boundaries’ or ‘limits’ (Grenzen). A standard German-English dictionary offers a variety of translations for the German word Grenze: border, frontier, limit, threshold, boundary, borderline, limitation – to name only the most relevant. Both publications deliberately make use of the variety of meanings of the German term and use the reference to Grenzen in their respective titles as an umbrella term to comprise a broader range of topics instead of limiting themselves, for example, to the delimitation of State borders or the limits of (international) law. The difficulty to express nuances in the German language with the word Grenze shows clearly in the contribution by Jörn Axel Kämmer to the collection edited by Stefan Talmon. Kämmerer uses the English terms of ‘frontiers’ and ‘border zones’ in his German text to formulate more precisely on what kind of Grenze he is reflecting (40 and 49). The book edited by Stefan Talmon, ‘Über Grenzen’ (on boundaries), does not restrict itself to the relevance of boundaries of, in or for public international law, but goes well beyond that notion and comprises essays on national law and policy as well as international and European Union (EU) law. Contributions relate inter alia to questions of transboundary compliance with anti-corruption policies, the limits of a political dialogue on the rule of law between Germany and China, the consequences of applying international law in a colonial context but also to the question of delimitation between Germany and the Netherlands in the North Sea and limitations to EU legislative competences. In contrast, the collection edited by Matthias C. Kettmann with its title ‘Grenzen im Völkerrecht’ (boundaries or limits in international law) is likewise dealing with a variety of different questions but in doing so maintains the perspective of international law and – in three contributions – European Union law. Yet, in emphasising, in the foreword, that the collection will address both the issue of boundaries in international law and the limits to international law – the subject is sufficiently broad to accommodate a wide range of questions which are worth discussing. Topics include inter alia the limits to extra-territorial application of human rights treaties, EU border surveillance in the seas after the ‘Arab Spring’ and the limits of international law in regulating privacy and personal data as well as the relevance of theoretical limits in international legal thinking. The collection ‘Über Grenzen’, which was published in 2012, is in essence a small and precious liber amicorum for Wolfgang Graf Vitzthum to celebrate his 70th birthday. It contains the written versions of seven of the presentations given at a colloquium in 2011 by the circle of Graf Vitzthum’s closest Schüler and companions as well as a laudatio by Martin Nettesheim, a poem dedicated to Graf Vitzthum by Uwe Kolbe, and a contribution by Graf Vitzthum himself on Stefan George’s references to and understanding of boundaries and limits. Rather than selecting only those articles which are of personal thematic interest to the reader it is the collection of these different reflections on boundaries and limits which gives an impression of what must have been fruitful and lively discussions and which makes the small volume worth reading.

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The reference to boundaries and limits, as the overarching theme of the colloquium, is neither a coincidence nor an attempt to build a rather cumbersome connection between the contributions, as is sometimes the case with a traditional liber amicorum. Instead the colloquium and the relevant publication build upon previous academic events on the occasion of Graf Vitzthum’s 60th and 65th birthdays, respectively, which dealt with issues at or transcending the limits of law on the one hand and questions of boundaries or limits of the State and of statehood on the other (Wolfgang März (ed.), An den Grenzen des Rechts, (2003); Jörn Axel Kämmerer (ed.), An den Grenzen des Staates, (2008)). The third collection ‘Über Grenzen’ takes up the idea of research on and practical experience in frontier regions of law and policy but seems thematically more open to different perspectives than the previous ones. The topic is wisely chosen to reflect both the variety of academic interests of Graf Vitzthum as well as the differing fields of law dealt with by his Schüler, former doctoral candidates and selected companions. The contributions from the perspective of academia are complemented by essays which point out the practitioner’s view on legal questions concerning boundaries and limits. This deliberate mix of different approaches must have proven enriching during the discussions at the colloquium. Only the contribution by Andreas Pohlmann who writes on transboundary compliance does not seem to fit too well into the collection of essays on boundaries. Despite the reference to boundaries in the title (Compliance über Grenzen) the essay lacks focus on limits or cross-border scenarios in the discussion of anti-corruption guidelines in businesses. Jörn Axel Kämmerer takes the setting of borders – in a strict sense – in the colonial context as the starting point for this study on the limits of the Ius Publicum Europaeum in the times of colonialism. The multifaceted character of the term Grenze becomes particularly apparent in this thoughtful and thorough analysis of the limitations of the law – amongst other things by a lack of regulatory interest – and the original meaning (or lack thereof) of borders in a non-European context when colonial powers divided the land. In this respect Kämmerer goes significantly further than the essay by Manuel Brunner on “Drawing Lines upon Maps” (written in German despite the English title) in the book edited by Matthias C. Kettemann. Brunner focuses on the legal protection of African borders by the uti possidetis principle despite doubts concerning their legitimacy. Philipp Molsberger reflecting on the ‘dialogue on the rule of law’ initiated between Germany and China, manages to combine personal experience with the analysis of the law of criminal procedure while examining critically and emphasising the limits of such a political process. Stefan Talmon contributes to the collection in honour of Graf Vitzthum by reversing a common approach to analysing to what extent German (constitutional) law is ‘open’ or ‘friendly’ towards the international legal order. While many authors praise the mechanisms by which international law is integrated into the German national legal order because international law is perceived as ‘good’ – and potentially ‘better’ – law when compared to domestic legal orders, Talmon discusses the risks of this approach. Focusing on the limits of integration and incorporation of public international law, particularly, when – as a first step – the limits of the international legal order are violated and such law would otherwise claim validity as part of the German legal order without further control. In essence, the contribution discusses boundaries or limits from two perspectives: inherent limits of customary international law on

634 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 the one hand and the boundaries of the reception of public international law into the German legal order on the other. Talmon’s prudent conclusion is not to have blind trust in international law as the better legal order but to use the constitution as an important filter and limitation despite all legitimate claims towards ‘openness’ and ‘friendliness.’ Another practitioner’s view concerns the maritime delimitation case between Germany and the Netherlands in the Ems-Dollard region – a boundary case in a strict sense of the meaning. Wolfram Hertel discusses the renewed interest in the ‘forgotten boundary’ in the North-Sea in the course of Germany’s efforts to strengthen the generation of electricity from renewable sources including offshore wind energy. Hertel raises the relevant questions under international law and bilateral policy and national public law but also includes the private law perspective, e.g. specific issues of employment law, into the discussion. Hertel concludes that the German permission to establish a wind-park in the disputed region should be treated as a legal fact by administration and courts as there is no indication of a clear breach of law with regard to the German position on its boundaries. The contribution by Alexander Proelß deals with limitations on EU competences in the protection of marine environment. Analysing the interrelationship between international conventions, to which the EU may or may not be a member, and EU legislation implementing the relevant standards or going beyond what has been agreed on the international level, requires a thorough understanding of the different layers of competences and their limitations. Proelß sheds some light on the question whether the standards enacted by the EU as part of the ‘Erika III’ package are compatible with international law. While Proelß concludes at the end that in this case the EU acted within the limits of their competences, he also warns to take the question of the legal boundaries of EU legislative action lightly because many other examples of EU behaviour can be thought of where the analysis will be of at least comparable complexity. Martin Nettesheim’s contribution deals with the EU in times of crisis and activities at the borders of legitimacy. The example of the crisis of the common currency of many EU member States, the euro, is as obvious as it is complex to analyse. Times of crisis almost necessarily requires strategies which are at the borders of what is considered legitimate decision-making and may even call for a crossing of such borders. As a result, the crisis of the euro goes hand in hand with a crisis of EU legitimacy, which is difficult to overcome – for which Nettesheim discusses different viable approaches. Amongst other ideas, good reasons are given for an ‘open’ process of EU decision-making in times of crisis and a search for solutions to acute problems that can be revised if necessary (187). Graf Vitzthum reflecting on Stefan George’s discussion on boundaries again shows that his expertise is not limited to the various issues of public international law. Graf Vitzthum’s deep knowledge of the oeuvre of George allows for the poet’s writings to be put into historical, political and legal perspective. In doing so he completes the collection of essays on boundaries with expert considerations that – in the truest sense – cross (disciplinary) borders and spark new interest in studying the work of George. In contrast to the collection of contributions from well reputed and ‘established’ scholars and experienced practitioners, the edited book by Matthias C. Kettemann comprises contributions by young researchers at the beginning of their (academic) careers. The publication is the

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result of a workshop organised by the working group of young scholars in international law (Arbeitskreis junger Völkerrechtswissenschaftlerinnen und -wissenschaftler (AjV)) in Graz, Austria, in October 2012. The AjV organises annual workshops on relevant issues of international law and gives a viable and much needed platform to young researchers to present their ideas, discuss and – if necessary – defend them. Likewise, the publication of the contributions presents a good opportunity to doctoral students, post-docs and young professionals in the field of international law to communicate their findings and research interest to a broader audience. A list of authors is appended to the essays and gives an overview on the contributors’ affiliation and state of their academic careers. The collection of 14 contributions, including the introduction, is divided into six chapters. In addition to an introduction by the editor, the other chapters deal with the purpose of international law and the question whether it is designed to protect borders or people (II), with ‘borderline cases’ of international law and questions of asylum, migration and human rights (III), with limits of national sovereignty and questions of legitimacy and responsibility (IV), with technological limits to international law (V), with questions that go beyond traditional theory and boundaries in the thinking on international and EU law (VI). This division clearly reflects and categorises different aspects related to the term Grenze and puts the diverse approaches into perspective. The different contributions vary in their dogmatic approach and in their degree of elaboration. While some seem to be shorter sketches of ideas which are either part of an ongoing larger project or to be continued in the future, others are more thoroughly elaborated indicating that the authors have been working in their specific field of expertise for a longer period of time. The editor’s foreword and introduction, by playing excessively with the term Grenze raises high expectations of moving at or crossing the borders of what has been addressed in scholarly thinking on public international law. While the content of the book may not in essence cross borders – as such an ambition might just be too high – the collection of articles on different aspects of the relevance of boundaries or limits in international law gives a very valuable impression of the capacity and dedication of young scholars at the beginning of their careers. Moreover, it shall not be overlooked that some essays (Ralph Janik, The Responsibility to Protect as an Impetus for Secessionist Movements (41–69), Melanie Fink, Allocating Responsibility through Attribution (193–212), Matthias C. Kettemann, Das Völkerrecht zwischen Rechtsordnung und Machtordnung: eine Abgrenzung (247–273), and Lando Kirchmair, Die autonome Rechtsordnung der EU und die Grenzen von Monismus und Dualismus (275–291)) do in fact leave the common tracks of discussion and go beyond what has already been published in international legal literature and thus demonstrate that a promising generation of young scholars is about to enrich the academic debate. NELE MATZ-LÜCK Professor of the Law of the Sea at the University of Kiel, and Co-Director of the Walther-Schücking-Institute for International Law

636 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 Paparinskis, Martins: The International Minimum Standard and Fair and Equitable Treatment. Oxford University Press, Oxford 2013, 320 pages, ISBN 978-0-19-969450-1. The World Investment Report produced by the United Nations Conference on Trade and Development (UNCTAD) in 2013 stated that global foreign direct investment (FDI) fell by 18 % to $ 1.35 trillion in 2012. The fall reflected continuing fears about global economic volatility and fragility and the view of UNCTAD, shared by many, was that investor confidence would be slow to increase. The year 2012 represented something of a watershed in the sense that for the first time ever, developing countries received a higher level of FDI than developed countries. The continued economic uncertainty was also reflected in the fact that FDI from developed countries remained at, or close to, all time low levels. The rates of return from FDI are comparatively high, but in times of uncertainty transnational corporations (TNCs) in developed countries are unwilling to take risks. The global economic situation makes the publication of Martins Paparinskis monograph on this aspect of investment protection particularly timely. In 1927 Mexico expropriated agricultural land owned by United States (US) nationals. In rejecting continuing claims for compensation made by the US government, the then Mexican Minister of Foreign Affairs argued that foreigners were not entitled to rights other than or more extensive than those of nationals (Eduardo Hay, Mexico – United States, Expropriation by Mexico of Agrarian Properties owned by American Citizens, American Journal of International Law Supplement 32 (1938), 181–207). The Mexican position was not inconsistent with the 19th century Calvo Doctrine (Carlos Calvo, Le Droit International (5th ed., 1896), 267) which rejected the rights of foreign States to intervene diplomatically or by force to enforce private claims of a pecuniary nature. The Calvo Doctrine reflected, to some extent at least, a perception that the concept of ‘minimum standards’ was often little more than a pretext for European reprisals. Yet by the time of the US-Mexico dispute about expropriation of agricultural land the tide had already shifted. Paparinskis refers to the speech delivered in 1910 (Elihu Root, The Basis of Protection to Citizens Residing Abroad, American Journal of International Law 4 (3) (1910), 517) in which Root argued forcefully in favour of an international minimum standard of treatment for foreign nationals. In an article published in the Michigan Law Review (Edwin Borchard, Minimum Standard of the Treatment of Aliens, Michigan Law Review 38 (1940), 445, 457). Borchard referred to the contribution made by Root to the widespread acceptance of the minimum standard yet continued by stating “but the existence of the standard and its service as a criterion of international responsibility in specific instances by no means gives us a definition of its content.” Borchard, there, also characterised the standard as “mild, flexible and variable according to circumstances.” More than seventy years later Paparinskis’s monograph suggests we are not much nearer a fixed definition. The International Minimum Standard and Fair and Equitable Treatment by Martins Paparinskis, is a recent addition to the excellent Oxford Monographs in International Law series. It sets out to “examine the contemporary relationship between two primary rules that are sometimes suggested to typify the development of substantive investment protection law in perhaps the starkest terms: the international minimum standard and fair and equitable

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treatment” (2). Paparinskis identifies two competing positions in relation to the two approaches one of which emphasises the role of customary international law; the other confines itself to interpretation of the treaty rule of ‘fair and equitable treatment’ as it arises. The author then suggests an alternative perspective by arguing that the contrast between the two standards may well be overstated: “treaty rules of fair and equitable treatment refer to, or at the very least require, the customary minimum standard to be taken into account in the interpretative process” (167). Drawing on a wide and varied range of sources Paparinskis traces the development of the protection standard and the legal sources of such protection before attempting to identify the contents of the current standard. Paparinskis identifies six elements that constitute the modern standard – (i) arbitrariness; (ii) good faith, (iii) discrimination, (iv) transparency, (v) due process, and (vi) legitimate or reasonable expectations – and considers each in turn. The suggestion here is that the concept of ‘good faith’ adds little to an understanding of ‘fair and equitable treatment.’ Similarly, Paparinskis argues that considering expectations adds little to prohibitions on arbitrary and discriminatory action or lack of due process. In Martti Koskenniemi’s book, The Politics of International Law (2011), in chapter 10 on “What is International Law For?,” Koskenniemi writes that “[f]ew international lawyers think of their craft as the application of pre-existing formal rules or great objectives. What rules are applied, and how, which interpretative principles are used and whether to invoke the rule of exception – including many other techniques – all point to pragmatic weighing of conflicting considerations in particular cases. What is sought is something practical, perhaps the ‘fairness’ of the outcome, as Thomas Franck has suggested” (253). Paparinskis’s study of investment protection seems to bear this out creating a virtue of the pragmatic flexible nature of the concept of fair and equitable treatment. As the location of economic might shifts and patterns of FDI change it remains to be seen whether this flexible approach can continue. TIM HILLIER Associate Head of Leicester De Montfort Law School De Montfort University

Eleanor M. Fox/Michael J. Trebilcock (eds.): The Design of Competition Law Institutions – Global Norms, Local Choices. Law and Global Governance Series, Oxford University Press, Oxford, 2013, xiv+503 pages. Competition law lacks an international framework. Despite the high practical importance and the immense globalisation of markets, competition law remains within the national sphere. More than 120 jurisdictions have adopted their own competition law. Although these regulations are essentially national, the intense global nature of markets means that a nations’ competition law system can be affected by others, and virtually every national system could impact people and companies beyond its borders. In the recent past a number of scholars have engaged with the question whether there are common structures which offer substantial reasons

638 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 for setting legal rules on an international level. With these developments, the notable Professors Eleanor M. Fox (New York) and Michael J. Trebilcock (Toronto) have started a comparative project; encompassing part of a bigger research programme on “Global Administrative Law,” developed by Professors Richard Stewart and Benedict Kingsbury. In 2010 the list of Global Administrative Law topics expanded also to include competition law. The editors of the book under review, Fox and Trebilcock, became co-directors of the Global Administrative Law Competition Project which finally led to this volume. They have chosen a representative selection of jurisdictions by continent or region and stages of economic development and assembled teams from these States or regions. The institutions represented in the study are Australia and New Zealand, Canada, Chile, China, Japan, South Africa, United States, European Union, and international institutions. Brazil and India, two notable fast-growing economies, are not included in the in-depth studies. As the Brazilian competition system was reorganised after the conclusion of the country studies, and India’s law had seen virtually no enforcement at that time. With regard to a prepared template, the teams reported on their national competition law in accordance with the following schedule: history, structure, mandate, procedural characteristics of the relevant enforcement system, and evaluation. Along this plan the articles describe the legal situation in an instructive manner. They give an illuminating insight into every nominated competition law, especially in the legal bases and enforcement institutions. From an international perspective chapter 10 is of special interest, because there are a number of international organisations dealing with competition issues: World Trade Organization, Organization for Economic Cooperation and Development, United Nations Conference on Trade and Development, International Competition Network. This chapter shows that there are international institutions which could serve as a suitable forum for internationalising competition law. In view of these representations one can expect that the authors try to join comparable aspects of each system, to discover parallel structures, to identify common basic legal questions, to categorise general and special issues with the ambitious aim to create at least a beginning of an international competition law. With regard to this clear and expected point the book unfortunately contains limited legal substance. The summary of the several studies, remarkably given at the first part of the volume (12 et seq.), represent only a short abstract of each analysed region. The attempts to combine the findings of every competition law are rather rarefied (44–46). If the common results of each law system consist in “transparency,” “respect of each nation for the decision-making of each other nation” or “regard produces more harmony” (46), then there are no real comparable results, but only matters of course. Competition law is not a place for harmony, especially concerning the competition between different systems. Should the essential elements of every competition law really exist in these facts, then there are no reasons and no need to work on basic structures of an international competition law. MARCUS SCHLADEBACH PD Dr. LLM University of Göttingen

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Jeffrey L. Dunoff/Mark A. Pollack (eds.): Interdisciplinary Perspectives on International Law and International Relations – The State of the Art. Cambridge University Press, 2013, xv+680 pages, ISBN 978-1-107-68402-7. The past several decades have witnessed the increasing attention paid to the inter-disciplinary analysis to the relationship between law and politics on the international plane. The volume edited by Dunoff and Pollack has come in the right time when these issues have been presenting themselves in an acute manner. The book’s coverage is broad. Part I tries to convey the basics of the normative agenda in this field. Part II focuses on theorising international law, and interestingly covers the various theories of international relations in their relation to international law: liberalism, realism and constructivism. Part III includes several chapters on the problematic topics underlying the nature of international law as such: institutional proliferation, soft law and regulatory networks. Part IV focuses on the interpretation and application of international law and the role of domestic and international organs in this process. Part V focuses on compliance, enforcement and overall effectiveness. Some general methodological remarks are due, however. Any inter-disciplinary approach could be feasible only when it properly ascertains the separate identity of both disciplines and separateness of their methodology. These are too distinct to be able to be fused mutually. On a general plane, working up parameters of any academic discipline requires stating the object of cognition, and methods through which to approach that object. In order for various disciplines to properly talk to each other, they have to understand each other’s aims and methods. And then, in this process the moment may come when the relevant discipline has to recognise the limits on its own methodology, and leave the issues beyond that limit to other disciplines. Overall, it must be admitted that international lawyers have generally been worse in comprehending the methodology of the international relations theory than international relations scholars have been trying to understand the methodology of international law. To illustrate, international lawyers often take concepts such as national interest, power and Realpolitik as self-fulfilling and self-explanatory categories that in practice generate ready-made and obvious outcomes across the board. Yet, it is also known that the international relations theory does not subscribe to such blanket approach. On their side, international relations scholars are justified to treat international law as one of the aspects of international relations. Yet it is a qualitatively distinct aspect, as Hedley Bull has repeatedly reminded us. Against this background, one has to acknowledge that the focus in this edited volume does not always come to terms with the separate identity of the two disciplines and their methods. To illustrate, in Andrew Moravcsik’s essay on the liberal theory, the view is taken that State sovereignty is a social construct (109). If so, however, then no State inherently owns it and every State’s independence and rights are at the mercy of others’ social judgment. Such relativity with fundamental concepts of international law could lead to asking how far the liberal theory has properly reflected upon having been described by Martti Koskenniemi as endorsing the idea of a “neo-liberal Grossraum” under which there could hardly be viable principles shared by all States but everything would instead depend on the interest-driven and policy-based assertions and interpretations by individual States and their groups.

640 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 The two essays written by Steinberg and Helfer focus on essentially similar notions of the relationship between law and power, yet they adopt the posture of treating discretely separate grounds. Steinberg’s essay is highly interesting, and raises the issues of the precise difference between legal and political factors. Steinberg advances the thesis that States compel weaker States to accept international treaties. Coerced treaties such as the Japanese surrender (161), and that States could have the ability to withdraw from treaty and customary rules (162), are invoked as examples. However, whether and how this could be factored in the law-realism discourse is a more nuanced question, because today the legal system does not recognise the possibility for unilateral withdrawals. Through the use of its power the State can violate rules, that is as a matter of fact not comply with them, but it cannot through the very same power withdraw from their binding force which is a normative, not factual, phenomenon. Taking the debate much further than that is a requirement of the current methodological challenges, and the analysis must be much more forward-looking. Streinberg places some important reliance on Morgenthau’s 1940 contribution to the American Journal of International Law regarding the relationship between law, power and interest. Yet, Morgenthau back in 1940 was not just explaining the nature of State interests, but was also trying to conceptually amalgamate the nature and binding force of international law with power and interest patterns. This way Morgenthau placed this discourse in direct contradiction with the doctrine of consensual positivism which today is the language of international law. A further implication for the realist analysis could follow in the ground covered by the chapter by Laurence Helfer on the flexibility of international agreements. Helfer covers the wide ground of what he describes as exit clauses (denunciation, emergency and suchlike provisions) and the patterns of States-parties’ behaviour in relation to such clauses. A conclusion is reached that it is almost in the nature of these things that treaty violations will occur (192). Yet whether this analysis responds to the chapter’s title on the “flexibility of international agreements” is questionable. For, flexibility is the quality of agreements as normative instruments; the conduct of States in relation to them is external to quality, and whether a violation of the agreement occurs is not indicative whether it was a flexible agreement in the first place. Some practical evidence from this area, for instance a greater and more fundamental focus on the 1998 decision of the International Court of Justice on Gabčikovo-Nagymaros would have been more helpful to see how exactly the withdrawal and termination attempts work in practice, and what potential international law possesses to counter the challenges motivated by power and interest. Overall, the fact that States are likely to violate international agreements does not convey much from the inter-disciplinary perspective. Steinberg’s and Helfer’s chapters both touch upon the issues of relationship between law, power and interest, yet tragically miss out on what would have been the true inter-disciplinary focus on these issues. If their analysis had been bridged, and the nature of conduct of States and how States see their interests had been examined at the example of compliance with and exit from international agreements, the focus would have been more complex and innovative, and would have responded better to the interdisciplinary focus of the book.

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On the constructivist front, things are also articulated in a somewhat contestable manner. Brunee and Toope suggest, that “constructivism can speak to international lawyers only to the extent that they are prepared to understand legal norms as social norms, and so as constituted and powered by social practices” (129). This may not necessarily be the case, for if the interdisciplinary angle is maintained, constructivist international relations (IR) scholars would not be expecting international legal scholars to re-define or re-cast the juridical understanding of legal norms as binding prescriptions deriving from the constitutionally empowered authority. Only in that capacity, and the way they are, could legal norms have social constructivist effect. If that separate identity of legal norms is lost, so will be their social impact. More broadly, constructivism is an IR doctrine that has been conceptualised initially, as part of the international relations theory specifically, to improve our understanding of nonmaterial elements in international affairs and their impact, on conduct and attitudes of States. The chapter by Brunee and Toope is somewhat overstretched from the conceptual perspective, because it focuses as part of the constructivist analysis on works of Thomas Franck as well as McDougal and Lasswell. These authors are quite far away from what the constructivist IR doctrine has originally aspired to attain. Overall, the volume edited by Dunoff and Polack will be very useful for researchers in the relevant area, but it is also a vivid and pressing indication that much more remains to be done. The successful analysis of the relationship between international law and politics has to be inter-disciplinary not just in its scope and coverage, but also in its method. ALEXANDER ORAKHELASHVILI University of Birmingham

Kevin E. Davis/Angelina Fisher/Benedict Kingsbury/Sally Engle Merry (eds.): Governance by Indicators: Global Power through Quantifications and Rankings. Oxford University Press, Oxford, 2012, xi+504 pages, ISBN 978-0-19-965824-4. As a fast-growing technology of knowledge production, indicators have specific, significant, and fascinating implications for global governance, of which they form – as amply revealed by this exciting book – one of the most novel and powerful ‘mysteries.’ While some have become notorious, for instance in the World Bank’s Doing Business ratings, others such as the United Nations Millennium Development Goals are distinctly more consensual, whereas still further sets remain tentative or present a lower profile, such as in the context of human rights compliance. Beyond the instructive bigger picture provided here of their unexpectedly ubiquitous use, the (consistently interesting) essays in this volume all pursue the ambitious project of analysing the ways in which this new form of measurement of all kinds of social phenomena has the potential of profoundly altering the exercise and distribution of power within various spheres of global governance. Furthermore, given the controversy of such changes, the authors also strive to imagine forms of regulation not only of their use in

642 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 such contexts, but the very processes of their production. While – as is characteristic of debates on global governance – these issues are of evident interest across the whole board of the social sciences, all represented here among the contributions (from economics to anthropology, sociology or political science). Additionally, from the perspective of Science and Technology Studies, the influence of indicators is steadily expanding in connection with any exercise linked to knowledge production. It is perhaps the implications of ratings by indicators within legal treatise that constitute the most novel findings – conceivably due to the uneasy position of law at the periphery of the social sciences, or, in other words, as a matter of epistemology, its reluctance to resort to experimentalist tools of observation, quantification, testing and rating, which contradict its traditional retreat within an authority paradigm. This studious (or critical) overview of the role, dynamics, construction, semiotics, regulation, contestation, and accountability of indicators, mandates that the accepted arsenal of legal tools is brought into question. Given the novelty of the subject-matter and the inter-disciplinary approach, a short review can do no more than point to some of the most sensitive issues covered in this respect. In a nutshell, the excellent introduction by the editors of the volume suggests that the key inquiries lie in “the effects of quantification […] on decision-making, resource allocation, social categories, forms of contestation and power of experts within and across institutions” (4), and more specifically on “the interplay of power and authority, dynamics of global and local indicators, and relations between indicators and law, including human rights law and global administrative law” (21). This elicits an array of remarkably original responses, varying according to the disciplinary prism adopted. The book is divided into five parts. The first set of contributions, exploring the theoretical dimensions of indicators in relation to law and authority, include a political-economic model for the supply and demand of indicators (Tim Büthe); an analysis in terms of national policy assessment, which calls for a public law inspired open process requirements (Armin von Bogdandy/Mathias Goldmann); a sociological approach which explores the social and psychological factors which confer authority on those indicators which accumulate networks of constituents and technologies (Wendy Espeland/Michael Sander); an appeal to actor-network theory to explain the emergence of measurable and comparable representations of corporate human rights responsibility (Ronen Shamir/Dana Weiss); and a genealogy of indicators as they have emerged in the highly controversial ‘failed State’ hypothesis (Nehal Bhuta). The second part uses social science methods in order to understand how power and authority are exercised through indicators. Thus, Katherina Pistor argues that the availability of an indicator-created data is not in itself problematic, but becomes so when indicators created for a narrow purpose are used as justifications for large-scale development policies, without further scrutiny of the assumptions upon which they rest. A similar critique is developed by Angelina Fisher in the specific field of health care policies and assessment, while Terence Halliday examines the use, and limits, of indicators in inter-country comparison of business law within the ecology of competitive interaction between international financial institutions. A third series of analyses explores the dynamics of the relationship between local, regional and global sets of indicators and the way in which they influence policy process. A case-study on the use of indicators to assess the situation of displaced persons in Columbia shows that

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global indicators may be creatively appropriated for local purposes (René Uruéna), while in the field of police performance or pre-trial detention, Christopher Stone presents a normative case for bottom-up generation of locally usable indicators with real salience in local management, which could then be aggregated incrementally into a more global measurement. The fourth part concentrates on human rights and humanitarian governance. Recognising the highly controversial nature of the association between quantification and frequently under-specified human rights values, AnnJanette Rosga and Margaret Satterthwaite suggest, nevertheless, that human rights indicators might play an essential role in exerting on governments the very pressures that human rights themselves were designed to bring. A somewhat counter-intuitive conclusion is reached by Anne Gallagher and Janie Chung, when they maintain that however undesirable governmental unilateralism may be in the assertion of power to produce indicators and monitors, the United States approach to trafficking may have contributed an otherwise under-provided public good. However, this conclusion may not hold in an authoritarian context, as the study on antitrafficking indicators in Belarus show (Marina Zaloznaya/John Hagan). Indeed, Margaret Sattethwaite’s additional study on the operation and effects of indicators to assess humanitarian relief in Haiti illuminates the political economy of self-regulatory standards, which may be used as leverage to obtain funding or further influence of particular groups. Moreover, in reporting systems on social impact investing as examined by Sarah Dadush, indicators may, while drawing attention importantly on investment impact, cause a shift away from local selfexpression of distinct local initiatives in favour of the standardised structures and language of global markets. Finally, the last contributions focus in the essential issue of regulation. How can indicators be made to enhance accountability and transparency rather than encouraging the reverse, as illustrated by some of the previous contributions? Nikhil Dutta’s analysis suggests the relative efficiency of the ‘supply hypothesis,’ under which (subject to certain corrections) indicator generators provide higher levels of accountability in order to attract users (rather than the reverse hypothesis of generator response to user demand). But should indicators be regulated at all? The last contribution by Sabino Cassese and Lorezo Casini suggests, provocatively, that only certain indicators, in defined contexts, might require protection from a regulatory framework, while others, for which they provide a complete taxonomy, present the opposite need for protection from regulation itself. Whatever the occasional perverse distributional consequences, opaque politics, lack of accountability, or uncertain contribution to the elaboration of scientific standards, indicators are burgeoning in multiple public and private contexts. This pioneering and collective study fills an obvious gap in opening exploration of their implications for global governance, and makes for urgent reading for all those issuing from the diverse disciplines involved. For the lawyer – particularly of the international and comparative breed – its conclusions are however of more particular salience. This is especially so since the rise of indicators and its potential for policy-orientation and conduct-assessment; cross-country comparative use and abuse in qualitative assessment; controversial regulatory effects and its amenability to process require-

644 GERMAN YEARBOOK OF INTERNATIONAL LAW 56 @ 2013 ments, and so much more – which raises the essential issue of the survival of traditional Statemade tools of measurement and coercion as we know them, or in other words of law itself in global context. HORATIA MUIR WATT Professor of Law École de droit, Sciences Po, Paris

BOOKS RECEIVED (Inclusion in this list neither assures nor precludes later review.)

Kai Ambos: Treatise on International Criminal Law – Vol. 1: Foundations and General Part, Oxford: Oxford University Press, 2013, 520 pages. Anthony Aust: Modern Treaty Law and Practice (3rd ed.), Cambridge: Cambridge University Press, 2013, 520 pages. Andrea Bianchi/Anne Peters (ed.): Transparency in International Law, Cambridge University Press, 2013, 642 pages. Laurence Boisson de Chazournes: Fresh Water in International Law, Oxford, Oxford University Press, 2013, 288 pages. Tillmann Rudolf Braun: Ausprägung der Globalisierung, Baden-Baden: Nomos [U.A.], 2012, 354 pages. Andreas Føllesdal/Johan Karlsson Schaffer/Geir Ulfstein (eds.): The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, Cambridge: Cambridge University Press, 2014, 319 pages. Marsha Freeman et al. (ed.): The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (A Commentary), Oxford: Oxford University Press, 2013, 792 pages. Joost Pauwelyn/Ramses Wessel/Jan Wouters (eds.): Informal International Lawmaking, Oxford: Oxford University Press, 2012,584 pages. Suzannah Linton (ed.): Hong Kong’s War Crimes Trials, Oxford, Oxford University Press, 2013, 304 pages.

646

BOOKS RECEIVED

Lucas Lixinski: Intangible Cultural Heritage in International Law, Oxford : Oxford University Press, 2013, 296 pages. George Nolte (ed.): Treaties and Subsequent Practice, Oxford: Oxford University Press, 2013, 432 pages. Roger O’Keefe/Christian Tams (ed.): The United Nations Convention on Jurisdictional Immunities of States and their Property (A Commentary), Oxford: Oxford University Press, 2013, 465 pages. Anne Peters/Lukas Handschin (ed.): Conflict of Interest in Global, Public and Corporate Governance, Cambridge: Cambridge University Press, 2012, 487 pages. Paolo Picone: Communita Internazionale e Obblighi « Ergo Omnes », Jovene Editore: 2013, 755 pages. August Reinisch (ed.): The Privileges and Immunities of International Organizations in Domestic Courts, Oxford, Oxford University Press, 2013, 376 pages. Arman Sarvarian: Professional Ethics at the International Bar, Oxford: Oxford University Press, 2013, 336 pages. Dinah L. Shelton/Paolo G. Carozza (ed.): Regional Protection of Human Rights, Oxford: Oxford University Press, 2013, 1120 pages. Göran Sluiter (ed.): International Criminal Procedure : Principles and Rules, Oxford: Oxford University Press, 2013 XXXVII, 1681 pages. Laura Zoppo: La Soluzione delle Controversie Commerciali tra Strati tra Mutlilateralismo e Regionalismo, Jovene Editore: 2013, 396 pages.