German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 58 (2015) [1 ed.] 9783428550616, 9783428150618

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VOLUME 58 · 2015

DUNCK ER & HUMBLO T · BERLIN

G E R MAN YEAR B O O K O F I NTE R NATI O NAL LAW Volume 58 · 2015

LIST OF PEER REVIEWERS YUTAKA ARAI • University of Kent

AUGUST REINISCH • Vienna University

ALAN BOYLE • University of Edinburgh

NICO SCHRIJVER • Leiden University

THOMAS COTTIER • Bern University

JAMES SHEPTYCKI • York University Toronto

MATTHEW CRAVEN • University of London

CHRISTIAN TOMUSCHAT • Humboldt University Berlin

CHRISTOPHER HARDING • Aberystwyth University GEORG NOLTE • Humboldt University Berlin ASIF QURESHI • Korea University

ANTONIOS TZANAKOPOULOS • Glasgow University EKATERINA YAHYAOUI • National University of Ireland Galway

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 58 · 2015

DUNCKER & HUMBLOT / BERLIN

Founders: RUDOLF LAUN / HERMANN VON MANGOLDT Editors: ANDREAS VON ARNAULD / KERSTIN ODENDAHL Honorary Editor: JOST DELBRÜCK Assistant Editors: AVRIL RUSHE / WIEBKE STAFF Editorial Assistants: NINA BRANDT / CELIA RENZ / CATHARINA UEKERMANN Layout and Production: ANDREA NEISIUS / SYLVIA WEIDENHÖFER

ADVISORY BOARD OF THE WALTHER SCHÜCKING INSTITUTE CHRISTINE CHINKIN London School of Economics JAMES CRAWFORD International Court of Justice, The Hague LORI F. DAMROSCH Columbia University VERA GOWLLAND-DEBBAS † Graduate Institute of International Law, 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 Iran-United States Claims Tribunal, The Hague 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 reviewers. 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. © 2016 Duncker & Humblot GmbH, Berlin Printed by Druckteam, Berlin Printed in Germany ISSN 0344-3094 ISBN 978-3-428-15061-8 (Print) ISBN 978-3-428-55061-6 (E-Book) ISBN 978-3-428-85061-7 (Print & E-Book)

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Printed on non-aging resistant (non-acid) paper according to ISO 9706 ∞ Internet: http://www.duncker-humblot.de

TABLE OF CONTENTS FORUM The Conflict in Ukraine and the ‘Weakness’ of International Law CHRISTIAN MARXSEN: International Law in Crisis: Russia’s Struggle for Recognition

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FOCUS CYBER-SECURITY BEYOND THE MILITARY PERSPECTIVE MARTIN NEY AND ANDREAS ZIMMERMANN: Cyber-Security Beyond the Military Perspective: International Law, ‘Cyberspace’, and the Concept of Due Diligence . . . . .

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CHRISTIAN WALTER: Obligations of States Before, During, and After a Cyber Security Incident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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OLIVER DÖRR: Obligations of the State of Origin of a Cyber Security Incident . . . . . .

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AUGUST REINISCH AND MARKUS BEHAM: Mitigating Risks: Inter-State Due Diligence Obligations in Case of Harmful Cyber Incidents and Malicious Cyber Activity – Obligations of the Transit State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 ROBERT KOLB: Reflections on Due Diligence Duties and Cyberspace . . . . . . . . . . . . . .

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JUTTA BRUNNÉE AND TAMAR MESHEL: Teaching an Old Law New Tricks: International Environmental Law Lessons for Cyberspace Governance . . . . . . . . . . . . . . . . . . . . . . . 129 MATTHIAS HERDEGEN: Possible Legal Framework and Regulatory Models for Cyberspace: Due Diligence Obligations and Institutional Models for Enhanced Inter-State Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

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TABLE OF CONTENTS

GENERAL ARTICLES ECKART KLEIN AND DAVID KRETZMER: The UN Human Rights Committee: The General Comments – The Evolution of an Autonomous Monitoring Instrument . . . . . 189 ALEX G. OUDE ELFERINK: International Law and Negotiated and Adjudicated Maritime Boundaries: A Complex Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 HARALD KLEINSCHMIDT: Decolonisation, State Succession, and a Formal Problem of International Public Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 MARCO LONGOBARDO: The Palestinian Right to Exploit the Dead Sea Coastline for Tourism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317 FENGHUA LI: Safeguarding State Sovereignty: The Relevance of Post-Award Remedies in ICSID and Non-ICSID Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 LAURA SALVADEGO: Witness Protection and Inter-State Cooperation: Current and Emerging Challenges in the Fight Against Transnational Organised Crime . . . . . . 379

GERMAN PRACTICE ELISA OEZBEK: Strengthening the Human Rights Council: The 2015 Presidency of German Ambassador Joachim Rücker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413 HENDRIK SELLE: Confronting the Destruction of Cultural Heritage Used as a Tactic of War: A German-Iraqi Initiative in the UN General Assembly . . . . . . . . . . . . . . . . . 431 STEPHANIE SCHLICKEWEI: The Deployment of the German Armed Forces to the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443 HENNING BÜTTNER AND MARVIN SCHWOPE: The Aftermath of Prism: The International Legal Framework for Surveillance and the Radius of Operation for German Intelligence Agencies from a Human Rights Perspective . . . . . . . . . . . . . . . . . . . . . . . . 465 SARAH BOTHE AND CHARLOTTE GASCHKE: Germany’s Proposal of a “Grexit auf Zeit” 481

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JENS T. THEILEN: Towards Acceptance of Religious Pluralism: The Federal Constitutional Court’s Second Judgment on Muslim Teachers Wearing Headscarves . . . . . 503

BOOK REVIEWS Amal Alamuddin/Nidal Nabil Jurdi/David Tolbert (eds.): The Special Tribunal for Lebanon: Law and Practice (SCHABAS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Aharon Barak: Human Dignity: The Constitutional Value and the Constitutional Right (ROEDER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Majorie Cohn (ed.): Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues (NELSON) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528 Richard K. Gardiner: Treaty Interpretation (DÖRR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

531

Lauri Mälksoo: Russian Approaches to International Law (MORRIS) . . . . . . . . . . . . . . .

533

Marko Milanovic/Michael Wood (eds.): The Law and Politics of the Kosovo Advisory Opinion (HILPOLD) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537 Jens David Ohlen/Kevin Govern/Claire Finkelstein (eds.): Cyberwar: Law and Ethics for Virtual Conflicts (STADLMEIER) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542 Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.): The Oxford Handbook of the Law of the Sea (HAAKE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Carsten Stahn (ed.): The Law and Practice of the International Criminal Court (KRZAN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548 Neil Walker: Intimations of Global Law (WACKERNAGEL) . . . . . . . . . . . . . . . . . . . . . . . .

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Gerhard Werle/Lovell Fernandez/Moritz Vormbaum (eds.): Africa and the International Criminal Court (KRZAN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 BOOKS RECEIVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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FORUM THE CONFLICT IN UKRAINE AND THE ‘WEAKNESS’ OF INTERNATIONAL LAW

International Law in Crisis: Russia’s Struggle for Recognition CHRISTIAN MARXSEN(

ABSTRACT: This article discusses the impact of the conflict between Ukraine and Russia on the international legal system, particularly in regard to the prohibition of the use of force. As an initial approach, the paper reflects on the concrete effects of the crisis on the substance of the provisions of the jus contra bellum. Identifying the distinct legal claims put forward by Russia it is argued that the crisis has left the substance of the law untouched. The crucial dimension of the crisis, which is the main claim of the paper, does not lie on the level of substantive legal provisions, but rather concerns the recognition that States express towards each other in international law – a recognition that is, at the same time, required to uphold the normative power of international law. Taking a series of prior violations of international law by Western States into account, the paper argues that we have to interpret the current crisis as a struggle for recognition in which Russia aims to oppose Western instrumental use of international law and to regain its lost political strength. The paper then discusses Russia’s strategies in this struggle for recognition, through which Russia challenges Western reaction patterns and aims to dominate the rules of the conflict. Ultimately, the paper argues that the crisis exemplifies both – the robustness of international law’s substantive provisions and the fragility of international law vis-á-vis short-term incentives driven by political power. KEYWORDS: Russia, Western States, Crimea, Crisis of International Law, Self-Determination, Hybrid Warfare, Illegality, Struggle for Recognition

I. Introduction The conflict between Ukraine and Russia has long evolved into a polarising international affair. The stakes are high. Russia has engaged in a form of conflict that was considered passé in Europe, namely the use of force aimed at the acquisition of terri-

(

Dr. iur., LL.M. (NYU), Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

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tory. The conflict has created a new dimension of confrontation between East and West that has led some to the assumption of an emerging “new cold war” era.1 International legal scholarship has so far concentrated on the legal assessment of the events that have occurred in Crimea and Eastern Ukraine since early 2014. Russian actions have overwhelmingly been assessed as illegal; very few scholars have made a case for legality. But what effects does the crisis have on international law? Has the crisis exposed a general weakness of international law or have international norms proven to be insufficient to keep up with the factual developments of international relations? This paper aims to reflect on the state of international law in view of the crisis between Russia, on the one hand, and Ukraine and a wide assortment of States on the other. The first step will be a reflection on the concrete effects of the crisis on the substance of the provisions of the jus contra bellum (II.). Identifying the distinct legal claims put forward by Russia, I will argue that the crisis has left the substance of the law untouched. The crucial dimension of the crisis does not lie on the level of substantive legal provisions, but rather concerns the recognition that States express towards each other in international law and that is, at the same time, required to uphold the normative power of international law. Taking a series of prior violations of international law by Western States into account, I argue that we have to interpret the current crisis as a struggle for recognition in which Russia aims to oppose Western instrumental use of international law and to regain its lost political strength (III.).2 In this struggle for recognition Russia employs a certain set of strategies, challenging Western reaction patterns and aiming to dominate the rules of the conflict (IV.). Ultimately, I argue that the crisis exemplifies both the robustness of international law’s substantive provisions as well as the fragility of international law vis-á-vis short-term incentives driven by political power. 1

See Simon Tisdall, The New Cold War: Are We Going Back to the Bad Old Days?, 19 November 2014, available at: http://www.theguardian.com/world/2014/nov/19/new-cold-war-back-to-bad-olddays-russia-west-putin-ukraine (accessed on 2 November 2015); Dmitri Trenin, Welcome to Cold War II, 4 March 2014, available at: http://foreignpolicy.com/2014/03/04/welcome-to-cold-war-ii/ (accessed on 2 November 2015). 2

Using the notion of ‘Western States’ I am aware that there are frictions and dividing lines between the politics of these States. We could witness this, for example, in view of the 2003 Iraq war. However, I assume that the commonalities of approaches to international law and politics are still strong enough to allow for the use of this term.

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II. Effects on the Jus Contra Bellum So far, international legal scholarship has focused on providing a legal assessment of the events that took place in Crimea. This assessment has largely focused on the application of established doctrines of the jus contra bellum to the facts at hand, or at least to the facts that the outside observer could establish, with some uncertainties remaining. The papers and symposiums published have exhausted the material and overwhelmingly agree that Russia’s actions have to be considered violations of international law,3 with only a few voices raising opposite opinions.4 The situation in Eastern Ukraine, by contrast, remains underexplored. With Russia denying any involvement in the conflict and without proper factual exploration, also the legal analysis lags behind. But what has the crisis so far done to the jus contra bellum? Is it possible to anticipate that the crisis is about to trigger changes in the prohibition of the use of force, i.e. of Article 2 (4) Charter of the United Nations (UN Charter)?5 Doctrinally speaking, such changes to the substance of Charter provisions can either be understood to be the result of a reinterpretation of the UN Charter or they can be understood to be the result of the emergence of new customary law, providing for new rules side-lining established Charter provisions.6 In either case, both constellations require that a new

3

See for example Christian Marxsen/Anne Peters/Matthias Hartwig (eds.), Symposium: “The Incorporation of Crimea by the Russian Federation in the Light of International Law”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV)/Heidelberg Journal of International Law (HJIL) 75 (1) (2015), 1; Zoran Oklopcic (ed.), The Crisis in Ukraine, German Law Journal Special Issue 16 (3) (2015), 350; Thomas D. Grant, Annexation of Crimea, American Journal of International Law 109 (2015), 68; Peter Hilpold, Ukraine, Crimea and New International Law: Balancing International Law with Arguments Drawn from History, Chinese Journal of International Law 14 (2015), 237; Christian Marxsen, The Crimea Crisis: An International Law Perspective, ZaöRV/HJIL 74 (2) (2014), 367. 4 See for example the contributions of Russian authors in: Marxsen/Peters/Hartwig (note 3); see also: Russian Association of International Law, Circular Letter to the Executive Council of the International Law Association, 6 June 2014, available at: http://www.mgimo.ru/study/faculty/mp/kmp/ news/n252984.phtml (accessed on 2 November 2015). 5 6

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

Whether the latter is possible depends, however, on an interpretation of Art. 103 UN Charter. Does Art. 103 Un Charter only require the prevalence of Charter provisions over treaty law or does it have to be interpreted as also providing for the prevalence over customary law? See generally Andreas Paulus/Johann Leiß, Article 103, in: Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary (3rd ed. 2012), 2110, paras. 66–69.

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rule has been ‘generally accepted’.7 Such general acceptance does not, however, necessarily require an explicit articulation of endorsement, but – based on the doctrine of acquiescence – also silence may be sufficient, where a State would have been expected to object to a certain practice. In order to assess the effects of Russia’s actions on international law, I will first identify the fields of the law in which Russia has, in fact, suggested substantively new rules or interpretations of international law that depart from established understandings. Secondly, I will analyse how States have reacted to Russia’s challenges to the law. I will then reflect on the effects of the recent crisis on the substance of international law.

A. Russia’s Challenges to International Law

Has Russia challenged established interpretations of international law? Answering this question requires an exegesis of Russian declarations during the crisis. These declarations, however, have not paid much attention to an overall consistency, but have invoked various arguments conditionally and hypothetically, putting forward conflicting arguments. Let us take a look at Russia’s core legal claims.

1. Humanitarian Reasons for the Intervention Russia is a long-standing critic of the responsibility to protect and of outside interventions for humanitarian purposes.8 The recent official foreign policy concept of the Russian Federation explicitly declares: 7 For new custom this rule follows from Art. 38 ICJ Statute (Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355), according to which custom is “evidence of a general practice accepted as law”. In regard to the reinterpretation of the Charter (here Art. 27), the ICJ has also referred to the requirement that a new interpretation of the Charter needs to be “generally accepted by Members of the United Nations” (ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 22, para 22). 8

See e.g. the statement of the Russian representative Lavrov in the UN Security Council (UN SC) debate: UN SC, 3988th Meeting, UN Doc. S/PV.3988 (1999), 2–3: “Attempts to justify the NATO strikes with arguments about preventing a humanitarian catastrophe in Kosovo are completely untenable. Not only are these attempts in no way based on the Charter or other generally recognized rules of international law, but the unilateral use of force will lead precisely to a situation with truly devastating humanitarian consequences”.

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It is unacceptable that military interventions and other forms of interference […] which undermine the foundations of international law based on the principle of sovereign equality of states, [are] carried out on the pretext of implementing the concept of ‘responsibility to protect’.9

Nevertheless, during the recent crisis humanitarian rhetoric played an important role, particularly during the first phase of the conflict. Russia claimed that “the extraordinary situation in Ukraine” would create “threats against the lives of Russian citizens”,10 especially military personnel stationed in Crimea.11 Russia also claimed that Russian-speaking citizens of Ukraine were in danger.12 “Those who opposed the coup were immediately threatened with repression. Naturally, the first in line here was Crimea, the Russian-speaking Crimea”,13 Putin said. On several occasions, Russian representatives treated the fate of Russian-speaking citizens of Ukraine as their own original concern, not as that of Ukraine. The key issue here is, does anyone really think that Russia could allow a repeat of what happened there [during the Maidan protests] in central and eastern Ukraine, where millions of Russians live? I would recall that, years ago, the United States took over Grenada. President Reagan said that they were defending American citizens who resided there. That was 1,000 people, and there was no threat to those citizens from Grenada. We have millions living there. They have concerns.14

9 See Ministry of Foreign Affairs of the Russian Federation, Concept of the Foreign Policy of the Russian Federation, 12 February 2013, para. 31 b), available at: http://archive.mid.ru//brp_4.nsf/0/76 389FEC168189ED44257B2E0039B16D (accessed on 2 November 2015). 10 Request by Vladimir Putin to the Federation Council, UN SC, 7124th Meeting, UN Doc. S/PV. 7124 (2014), 5. 11 In the Security Council, again, the Russian representative pointed out that “the issue is one of defending our citizens and compatriots, as well as the most import[ant] human right – the right to life.” (UN SC, 7125th Meeting, UN Doc. S/PV.7125 (2014), 3); see also the statements of Federation Council chairperson Valentina Matviyenko in ITAR-TASS Press Report, Putin’s Letter on Use of Russian Army in Ukraine Goes to Upper House, 1 March 2014, available at: http://tass.ru/en/russia/721586 (accessed on 2 November 2015). 12

This reference to humanitarian reasons for the intervention was also pointed out by the Ukrainian representative in the Security Council: “Russian troops illegally entered the territory of Ukraine in the Crimean peninsula on the ambiguous pretext of protecting the Russian-speaking population of Ukraine” (UN SC, 7124th Meeting, UN Doc. S/PV.7124 (2014), 3). 13

UN General Assembly (UN GA)/UN SC, Annex to Letter Dated 19 March 2014 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the SecretaryGeneral, UN Doc. A/68/803–S/2014/202 (2014), 5. 14

UN SC, 7125th Meeting, UN Doc. S/PV.7125 (2014), 17.

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However, although such rhetoric was present, it was at no point invoked as a selfstanding legal justification for the use of force. Humanitarian considerations rather formed an explanatory background for another justificatory argument, namely an alleged invitation to intervene.15 Humanitarian concerns were invoked in order to justify why Ukrainian authorities appealed to Russia to intervene in Ukraine and why Russia actually responded to such appeals.

2. Intervention by Invitation The background for this second justificatory strategy is the following: Crimea’s local government, the then new Prime Minister Aksyonov, turned to Russia and requested support in order to prevent Maidan protesters from taking control of Crimea. However, Russia did not rely on the invitation of the local government alone.16 Rather, it also referred to an invitation by ousted Ukrainian President Viktor Yanukovych.17 Russia insisted that Yanukovych’s removal from office was unconstitutional. It concluded that he, therefore, remained the legitimate representative of Ukraine.18 In a letter distributed in the Security Council on 3 March 2014, Yanukovych pointed out that “[c]haos and anarchy reign in the country, and people’s lives, safety and human rights are under threat, particularly in the south-east and in Crimea.” He “appeal[ed] to the President of Russia, V. V. Putin, to use the armed forces of the Russian Federation to restore law and order, peace and stability and to protect the people of Ukraine.”19 15

See the statement of the Russian representative at the Security Council: “In those conditions, Mr. Aksyonov, Prime Minister of Crimea, went to the President of Russia with a request for assistance to restore peace in Crimea. According to available information, the appeal was also supported by Mr. Yanukovych, whose removal from office, we believe, was illegal.” (UN SC, 7124th Meeting, UN Doc. S/PV.7124 (2014), 5); see also statement of Vladimir Putin in UN GA/UN SC, Letter from the Permanent Representative of the Russian Federation, UN Doc. A/68/803–S/2014/202 (2014), 5. 16 See Olivier Corten, The Russian Intervention in the Ukrainian Crisis: Was Jus Contra Bellum ‘Confirmed Rather than Weakened’?, Journal on the Use of Force and International Law 2 (2015), 17, 32. 17

UN SC, 7124th Meeting, UN Doc. S/PV.7124 (2014), 5.

18

Vladimir Putin, Vladimir Putin answered journalists’ questions on the situation in Ukraine, 4 March 2014, available at: http://en.kremlin.ru/events/president/news/20366 (accessed on 2 November 2015). 19

UN SC, Letter from the Permanent Representative of the Russian Federation, UN Doc. S/2014/ 146 (2014).

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Numerous authors have rejected this invitation as a legal foundation for Russia’s intervention. Mainly three arguments have been brought up. Firstly, some point out that Russia did not intend to “restore law and order”, but rather very much focused on promoting an expedited secession of Crimea from Ukraine, consequently going beyond the scope of the invitation and essentially making abusive use of it.20 Others reject Yanukovych’s invitation as a legal foundation for an intervention because his government was not internationally recognised anymore, whereas the interim administration enjoyed more international support.21 Lastly, a number of scholars argue that the invitation was invalid, as Yanukovych had lost effective control over the territory of Ukraine (by leaving the country), which is traditionally considered to be a precondition for inviting outside intervention. Russia’s interpretation of the law departs from this understanding. Russia essentially claims that it is the properly elected government that is allowed to invite foreign intervention, even if the government has been overthrown and does not exert effective control anymore. With this claim, Russia adds to an unsettled and developing field of the law in which the legal requirements are not agreed upon. It is contested which role legitimacy arguments do play in State practice and which role they normatively should play in determining who is allowed to invite outside intervention. While some scholars firmly adhere to the effective control criterion,22 others argue that a superior legitimacy of a government may to some extent compensate for a lack of effective control.23 Thus, Russia presents an interpretation of the ‘intervention by invitation’ doctrine within an unsettled field of the law and presents a straightforward legal view on the issue that departs from established provisions. Since I am, for the scope of this analysis, interested in the abstract legal claims that Russia puts forward, I will not discuss whether Yanukovych could in fact claim a degree of legiti-

20

Marxsen (note 3), 274–279; Veronika Bilková, The Use of Force by the Russian Federation in Crimea, ZaöRV/HJIL 75 (1) (2015) 27, 39–42; Hilpold (note 3), 251. 21

Grant (note 3), 82.

22

See Olivier Corten, The Law Against War (2010), 284.

23

Georg Nolte, Intervention by Invitation, Max Planck Encyclopedia of Public International Law (MPEPIL), January 2010, para. 17, available via: http://www.mpepil.com (accessed on 3 November 2015): “Governments which have been freely and fairly elected under international supervision, or which are universally recognized as having been freely and fairly elected, can arguably preserve their status for the purpose of inviting foreign troops even after having lost almost all effective control”.

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macy that is superior to the one of the new interim government. I have elaborated elsewhere that this is not the case.24

3. Self-Determination The most delicate legal issue, also with view to potential copycats, is Russia’s interpretation of the concept of self-determination. A related question concerns whether a right to self-determination of the people living in Crimea can serve as a justification for Russia’s use of force. The academic assessment, notwithstanding some isolated voices to the contrary,25 has delivered a clear answer here: it cannot. The main arguments of Russia’s critics that point out the current state of the law are as follows: Firstly, international law does not provide a legal basis for a right to secession outside the colonial context.26 Exceptions to this general rule are discussed under the heading of ‘remedial secession’ and proclaim a right to external self-determination where internal self-determination is rendered impossible, particularly because of severe human rights violations. However, such exceptions remain the prerogative of scholarly debates, without any generally accepted case of remedial secession having occurred in State practice so far.27 The concept may, therefore, – if at all – be called emerging, but does not reflect the state of international law. Moreover, it is agreed that the narrow conditions that the concept (as discussed in scholarship) postulates are not fulfilled in Crimea: No severe human rights violations have taken place28 and a danger of human rights violations is not sufficient. 24

Marxsen (note 3), 379.

25

See e.g. the position of the president of the Russian branch of the International Law Association: Anatoly Kapustin, Crimea’s Self-Determination in the Light of Contemporary International Law, ZaöRV/HJIL 75 (1) (2015), 101, 114–115. 26

Theodore Christakis, Self-Determination, Territorial Integrity and Fait Accompli in the case of Crimea, ZaöRV/HJIL 75 (1) (2015), 75, 81–90; Jure Vidmar, The Annexation of Crimea and the Boundaries of the Will of the People, German Law Journal 16 (2015), 365, 367–372. 27 The most authoritative document so far in State practice is the decision of the Supreme Court of Canada in the case Reference re Secession of Quebec. Here the Court did not explicitly acknowledge a right to remedial secession but at least considered that such a right could “possibly” exist (Supreme Court of Canada, Reference re Secession of Québec (1998), 2 S.C.R. 217, 295 para. 154). 28 Organization for Security and Co-operation in Europe (OSCE), Human Rights Assessment Mission in Ukraine, Human Rights and Minority Rights Situation, 12 May 2014, para. 8, available via: http://www.osce.org/odihr/118476 (accessed on 25 November 2015).

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Secondly, even though there is no international right to secession, international law nevertheless generally remains neutral towards secession, i.e. it does not contain a prohibition. Secession concerns the formation of a State, which is, according to the traditional understanding, a matter of fact, not of law.29 The main reason for that is that international law does not impose restrictions on seceding sub-State entities who are – in accordance with the traditional State-centred understanding – no subjects of international law.30 Thirdly, international law’s neutrality ends where the secession is not built on merely sub-State activity, but rather severe violations of international law carried out by other States. As the International Court of Justice (ICJ) has held in its Kosovo Opinion, where declarations of independence rely on jus cogens violations (this includes violations of the prohibition of the use of force), the declaration and the overall secession are in violation of international law.31 This is, as has been pointed out in many papers, the case in Crimea, where the secession is the direct result of Russia’s military intervention.32 The Russian position challenges this traditional assessment. Russia has for many years suggested the legality of remedial secession. During the 2008 conflict in Georgia, Russia recognised South-Ossetia and Abkhazia as independent States, arguing that Georgian politics left the South-Ossetian and Abkhazian people “no other choice but to provide for their own security and to seek to exercise the right to self-determination as independent States”.33 Many States viewed Russia’s position as excessive and considered it to be in violation of the international rules on self-determination.34 Russia then provided an explicit elaboration of its legal standpoint on remedial secession in the Kosovo advisory opinion proceedings before the ICJ. Here, Russia 29

Lassa Oppenheim, International Law, Vol. I (8th ed. 1955), 544, para. 209.

30

See ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, 403, para. 80. 31

Ibid., para. 81.

32

See e.g. Christakis (note 26), 96–99.

33

UN SC, 5969th Meeting, UN Doc. S/PV.5969 (2008), 8.

34

Grace Bolton, International Responses to the Secession Attempts of Kosovo, Abkhazia and South Ossetia 1989–2009, in: Duncan French (ed.), Statehood and Self-Determination (2013), 109, 132– 134; see also Independent Fact-Finding Mission on the Conflict in Georgia, Report, Vol. I (2009), 144–147.

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followed the opinion held in a number of scholarly works, namely to acknowledge the possibility of remedial secession under very strict and narrow requirements. It considered remedial secession to be in accordance with the law only in “truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question.”35 After all, Russia rejected the assumption that at the time of Kosovo’s declaration of independence in 2008 such extreme circumstances were given as the country had been pacified.36 In the recent Crimean crisis, Russia makes reference to the concept again and acknowledges that “the right to self-determination involving separation from an existing State is an extraordinary measure, applied when further coexistence within a single State becomes impossible.”37 The resulting conflict between the principles of territorial integrity and self-determination shall then be resolved by means of balancing the two principles on a case-by-case basis. In the Security Council Russia stated: In each particular case, one must seek the right balance between the principles of territorial integrity and the right to self-determination. It is clear that the achievement of the right to self-determination in the form of separation from an existing State is an extraordinary measure. However, in the case of Crimea, it obviously arose as a result of the legal vacuum created by the violent coup against the legitimate Government carried out by nationalist radicals in Kyiv, as well as by their direct threats to impose their order throughout the territory of Ukraine.38

Accordingly, Russia no longer requires an “outright armed attack” against the people in question to trigger remedial secession but only a threat to impose a certain order imbued with a danger of human rights violations. Thus, Russia proposes a very extensive reading of self-determination. Furthermore, there are declarations in which Russian representatives appear to assume the legality of outside intervention in order to enforce this alleged “right to remedial secession”. The aim to actively promote the secessionist movement in Crimea was already expressed by Putin when he was still denying that Russia was 35

ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Statement of the Russian Federation, 16 April 2009, para. 88, available at: http:// www.icj-cij.org/docket/files/141/15628.pdf (accessed on 25 November 2015). 36

Ibid., paras. 89–104.

37

UN SC, 7138th Meeting, UN Doc. S/PV.7138 (2015), 2.

38

Id., 7134th Meeting, UN Doc. S/PV.7134 (2014), 15.

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actively using force in Crimea. He said that “we had to help create conditions so that the residents of Crimea for the first time in history were able to peacefully express their free will regarding their own future.”39 After Putin acknowledged that Russian military units had operated in Crimea, he also put the use of force in the context of the enforcement of the Crimean population’s alleged right to self-determination: “Our task was not to conduct a full-fledged military operation there, but it was to ensure people’s safety and security and a comfortable environment to express their will. We did that.”40 When a journalist asked Putin whether the Crimean scenario was out of question for repetition in Eastern Ukraine, Putin answered: You know, the Crimean scenario does not reflect Russia’s position; it reflects the position of the people who live in Crimea. All our actions, including those with the use of force, were aimed not at tearing away this territory from Ukraine but at giving the people living there an opportunity to express their opinion on how they want to live their lives. I would like to stress this once again, as I have said many times before: if Kosovo Albanians were allowed this, why is it prohibited to Russians, Ukrainians and Crimean Tatars living in Crimea? And by the way, the decision on Kosovo’s independence was made exclusively by the Kosovo Parliament, whereas Crimea held a region-wide referendum. I think that a conscientious observer could not but see that people voted almost unanimously for reunification with Russia.41

The general and abstract legal position that apparently underlies Putin’s statement goes as follows: States may forcibly intervene in another State’s territory if this is necessary to allow for the establishment and expression of the will of the people living in (parts) of the territory of another State. This right would, taking into account Russia’s emphasis on the humanitarian considerations and the need to protect the Russian-speaking minority mentioned above, not be conceptualised as a general right, but rather as a ‘remedial’, i.e. extraordinary measure, allowed only where the subject of the right to self-determination is prevented to do so. However, Russia’s practice 39

UN GA/UN SC (note 15), 5.

40

Vladimir Putin, Direct Line with Vladimir Putin, 17 April 2014, available at: http://en.kremlin. ru/events/president/news/20796 (accessed on 3 November 2015). 41

Id., Interview to the Italian newspaper Il Corriere della Sera, 6 June 2015, available at: http://en. kremlin.ru/events/president/news/49629 (accessed on 3 November 2015) (emphasis added).

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suggests, as demonstrated above, that the threat of human rights violations is sufficient to trigger the right to remedial secession. As indicated initially, a certain degree of uncertainty remains. It appears theoretically possible to perceive the intervention by invitation argument as the background for these statements. The aim to promote self-determination could just be an additional motivation without being a separate legal justification.42 Putin’s open link between the use of force and the enforcement of the right to self-determination does, however, speak a different language and suggests that Russia is in fact assuming the legality of armed support for – in Russia’s perspective – justified secessionist movements.43

B. States’ Reaction Towards Russian Challenges

Summing this up, we can say that Russia a) has challenged the established interpretations of the doctrine of intervention by invitation and b) has suggested an extremely broad interpretation of the concept of self-determination. But how have States reacted to these challenges? Is there any indication for a general practice or at least partial support for Russia’s interpretation of the law? International reaction towards Russia’s intervention was largely negative. A number of States explicitly rejected Russia’s reliance on Yanukovych’s invitation. In the Security Council debate in March 2014, France stated that Russia was “occupying Crimea, Ukrainian territory, against the will of the Ukrainian Government and in violation of international law.”44 The United Kingdom (UK) regarded Russia’s actions to be “against the express wishes of the legitimate Ukrainian Government” 42

Corten (note 16), 26.

43

This, by the way, recalls the debates surrounding secession that occurred in relation to anticolonial movements. Here, the Soviet Union together with other socialist and Third World States advocated a general right to support the ‘armed struggle’ against the colonial powers with the aim to reach independence. Nikita Khrushchev, for example, stated before the General Assembly: “We welcome the sacred struggle of the colonial peoples for their liberation. If the colonial Powers, instead of heeding the voice of reason, persist in their old colonialist policy of keeping the colonial countries in subjection, the peoples which stand for the liquidation of the colonial regimes will have to give all possible help to those fighting for their independence against the colonialists and against colonial slavery. Moral, material and other assistance must be given so that the sacred and just struggle of the peoples for their independence can be brought to its conclusion.”, UN, 15th Session, 869th Meeting, UN Doc. A/PV.869 (1960), para. 223. 44

UN SC, 7125th Meeting, UN Doc. S/PV.7125 (2014), 6.

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and saw “a flagrant breach of international law”.45 The United States (US) declared that the “intervention is without legal basis”.46 It rejected the argument that there was “a consensual intervention”, though explicitly only dealt with the invitation issued by the Crimean Prime Minister, not the one issued by Yanukovych.47 In the initial Security Council debate six members of the Council explicitly stated the illegality of Russia’s actions.48 Russia’s reliance on self-determination triggered an even more explicit condemnation in the Security Council. In the Security Council debate, Nigeria declared to be “vehemently opposed to unilateral secession”,49 Lithuania declared the “so-called referendum is nothing but an undisguised land grab and a blatant violation by Russia of the Charter of the United Nations”,50 and France pointed out that “the referendum […] was illegal and null and void under international law”.51 Thirteen members of the Security Council supported draft resolution S/2014/189, which – under abstention of China and vetoed by Russia – rejected the Russian arguments and declared “that this referendum can have no validity, and cannot form the basis for any alteration of the status of Crimea”.52 More generally, Russia faced wide spread criticism, inter alia by a number of international organisations. General Assembly Resolution 68/262 called upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.53

45

Ibid.

46

Id., 7124th Meeting, UN Doc. S/PV.7124 (2014), 6

47

Id., 7125th Meeting, UN Doc. S/PV.7125 (2014), 5.

48

Australia, France, Lithuania, Luxembourg, UK, and US (see UN SC, 7125th Meeting, UN Doc. S/PV.7125 (2014)). 49

UN SC, 7138th Meeting, UN Doc. S/PV.7138 (2014), 9.

50

Id., 7144th Meeting, UN Doc. S/PV.7144 (2014), 16.

51

Ibid., 6.

52

Id., Draft Resolution, UN Doc. S/2014/189, (2014).

53

UN GA, 68th Session, UN Doc. A/RES/68/262 (2014), voting record: Yes: 100, No: 11, Abstentions: 58, Non-Voting: 24.

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The Parliamentary Assembly of the Council of Europe refused to recognise “the results of the illegal so-called referendum and subsequent annexation of Crimea into the Russian Federation” but considered them “a grave violation of international law”.54 The Parliamentary Assembly of the Organization for Security and Co-operation in Europe (OSCE) considered “that the actions by the Russian Federation in the Autonomous Republic of Crimea and the city of Sevastopol, as well as in certain areas of the Donetsk and Luhansk regions of Ukraine, constitute acts of military aggression against Ukraine.”55 Taking these aspects together it becomes clear that there is no indication for a general practice emerging that would support Russia’s assumption of an extended doctrine of intervention upon invitation or of the concept of self-determination.56 The general condemnation of Russia’s use of force clearly points out that the invitation argument as well as Russia’s reading of self-determination was rejected. Moreover, even States that remained silent, i.e. who did not expressly state the illegality of Russia’s actions, cannot be understood to have acquiesced in Russia’s interpretation of the law as there is no indication of a silent approval, but rather many potential political and diplomatic reasons for not taking a stand.

C. What Are the Effects on International Law?

In the end, what does the Russian action do to the jus contra bellum? We can, firstly, conclude that it does not change the substance of the law, as there is no general support for Russia’s proposed interpretations. Can we, secondly, assume that international law has been strengthened, as has been suggested by Olivier Corten? Corten bases this argument on the ICJ’s Nicaragua decision. Here, the ICJ held: If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then 54

Council of Europe, Parliamentary Assembly, Resolution 1990 (2014), 10 April 2014.

55

OSCE Parliamentary Assembly, Resolution on the Continuation of Clear, Gross and Uncorrected Violations of OSCE Commitments and International Norms by the Russian Federation, 24th Annual Session, 5–9 July 2015, para. 21, available at: https://www.oscepa.org/meetings/annualsessions/2015-annual-session-helsinki/2015-helsinki-final-declaration/2282-07 (accessed on 25 November 2015). 56

See also Corten (note 16), 35.

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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.57

Corten argues that this is what happened in the Crimean case and that accordingly the general prohibition of the use of force has been strengthened: If we follow the methodology […] derived from the Nicaragua case, the fact that this rule might have been breached does not impede its existence and relevance. In fact, since states deployed legal arguments in order to justify their behaviour, it can be considered that the rule has actually been ‘confirm[ed] rather than weaken[ed]’.58

I would oppose this conclusion. The ICJ’s assumption does in fact only make sense where a State has invoked a norm in its established interpretation. The State must, as the ICJ states, rely on “exceptions or justifications contained within the rule itself”, which can only be understood to be the concrete meaning that is established regarding a specific rule. In addition to that, there are cases in which States invoke an innovative meaning of the rule that challenges established understandings, but which can nevertheless still be subsumed under an existing rule by means of lege artis legal interpretation. In these cases, it is problematic to assume that the law would be strengthened, but we could at least diagnose a general commitment to a certain norm. There is, however, a point when bending the law turns into breaking the law, i.e. into invoking an essentially new norm of international law. Even if applying this differentiation may create challenges, I would argue that Russia’s interpretations of the existing norms depart so strongly from the established meaning that bending turns into breaking. Russia has not simply invoked an established justification, but rather has in its interpretations significantly departed from established notions and has essentially put forward a new content of the law. Russia invoked a new interpretation of the ‘intervention by invitation’ doctrine and it assumed a very extensive interpretation of self-determination. Rather than confirming the established rules, it has proposed new ones, but failed to convince other States of its interpretation. This is by no means a confirmation of the law but rather an unsuccessful challenge and, thus, the rationale presented by the ICJ is not fitting here. Moreover, the mere fact that Russia’s challenges have not been successful does not mean that there could not be any negative long-term effects. Even where no general 57

ICJ, Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 98, para. 186. 58

Corten (note 16), 30.

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practice supports the reinterpretation of the law, the normative power of the law may still be affected where a growing number of States opt for the new reading of the law. Under such circumstances a grey zone of international law might emerge. Admittedly, the number of States that support Russia’s interpretations is still small. Whereas 100 States supported General Assembly Resolution 68/262, only eleven countries sided with Russia and voted “no”.59 However, this seemingly clear picture is blurred considering that 82 countries abstained or did not participate in the vote. There seems to be room for changes in the legal positions of States, particularly since it might also be of interest for other States to redraw borders, making use of an extended notion of self-determination. In that sense, the Crimean case could lay the foundation for a problematic line of precedents, especially as separatist movements exist across the world. A precedent, by the way, which capable lawyers will be able to link to the Kosovo case, even if Western politicians have declared it to be a “nonprecedent”.60 While the facts of the situations in Kosovo on the one hand, and Crimea on the other are different, both cases express a tendency towards a relaxation of the primacy of the principle of territorial protection vis-à-vis the principle of self-determination.61 In any case, after the Crimean crisis, it will be much easier for other separatist movements to make a case for their actions. Thus, there is no acute danger to international law, but we are also far away from a stabilisation and confirmation of the existing law through the crisis itself. Summing up my argument on the effects of the crisis on the jus contra bellum, I shall conclude that the rules remain the same. This legalist assessment, however, does not illuminate what is at the core of crisis. The meaning and main implications of Russia’s actions are not on the level of the substance of the law. Russia has not tried to clearly establish a practice; it has not tried to suggest a clear interpretation of a norm 59

These countries were: Armenia, Belarus, Bolivia, Cuba, Nicaragua, North Korea, Russia, Syria, Sudan, Venezuela, Zimbabwe, see UN GA Voting Records, available at: http://unbisnet.un.org:8080/ ipac20/ipac.jsp?profile=voting&index=.VM&term=ares68262 (accessed on 25 November 2015). 60 See for a discussion of the precedential character of the Kosovo case Anne Peters, Has the Advisory Opinion’s Finding That Kosovo’s Declaration of Independence Was Not Contrary to International Law Set an Unfortunate Precedent?, in: Marko Milanović/Michael Wood (eds.), The Law and Politics of the Kosovo Advisory Opinion (2015), 291. 61

See Brad R. Roth, The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention, German Law Journal 16 (2015), 385, 415.

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that other States could then relate to. Rather, it pursued a strategy of ambiguity, invoking concepts, but not fully spelling them out; claiming hypothetical justifications for actions that Russia denied to have carried out, only to admit them later on. The main implications and also dangers of the crisis exist in relation to larger processes of the application of international law that shall now be considered in more detail.

III. The Crisis as a Structural Lack of Recognition It may be due to the specificities of the legal profession that lawyers tend to take the rather limited perspective of a particular case, which they aim to assess under the established law. And in fact, it is crucial to know whether Russia’s actions are in accordance with or in violation of the law. However, this focus on concrete cases also appears to block the consideration of the dynamic that underlies the development of international law. Whereas the first part of this article has dealt with the crisis as such and the illegality of Russia’s actions, we shall now broaden our perspective and pay closer attention to the narratives that inform the Russian perception of the crisis and which on many occasions make reference to overarching historical developments and dynamics. In the following, I will, firstly, present this narrative in which prior Western violations of international law and a hegemonic attitude towards international law are brought up as allegations against the West. Secondly, I shall explore whether, and to which extent, there is truth to this assessment. Thirdly, I will make the argument that we should understand Russia’s violations of the law in the context of prior Western illegal acts and must perceive them as parts of Russia’s struggle for recognition in international law.

A. Russia’s Rhetoric: Russia as Systematically Neglected by Western States

Besides the legal arguments that have been brought up by Russia in order to justify its intervention, a good part of Russian rhetoric deals with the role of Western States and Russia’s international relations to them. The narrative presented here consists of four main elements and points out that Russia’s current course is essentially a reaction to provocations and illegal actions from the side of Western States. Firstly, Russia

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declares to be a peace-loving country that upholds and defends the principles of international law.62 Putin claims that Russia is “open to the world” and does “not have – and cannot have – any aggressive plans”.63 Avowals to international law as the basis for international relations are common in the speeches and declarations of Russian representatives.64 In contrast to that, Russia diagnoses, secondly, a decline of respect towards international law on the side of other, particularly Western, States. “In recent decades the basic principles of international co-operation have been ignored ever more frequently. We see how a military-bloc mentality is gaining momentum.”65 Over the past decades, Russia has consistently condemned Western violations of international law and warned of a decline of the UN Charter system.66 Thirdly, Russia accuses Western States of applying a set of double standards and undermining a universal application of international law – picking interpretations of the law that favour Western and demote Russian interests. This is an argument that runs through different aspects of international relations, from counter-terrorism activities in Syria,67 to the Western assessment of different coups d’états (e.g. the 2014

62

Lauri Mälksoo, Russian Approaches to International Law (2015), 148–153.

63

Vladimir Putin, Reception in honour of graduates of military academies, 25 June 2015, available at: http://en.kremlin.ru/events/president/news/49763 (accessed on 4 November 2015). 64 Id., Press statement following BRICS summit, 9 July 2015, available at: http://en.kremlin.ru/ events/president/news/49896 (accessed on 4 November 2015) (Putin spoke of “the importance of preserving the central role of the United Nations, the importance of complying with international law, respect for the principles of sovereignty and non-interference in internal affairs”); id., Plenary Session of the 19th St Petersburg International Economic Forum, 19 June 2015, available at: http://en.kremlin. ru/events/president/news/49733 (accessed on 4 November 2015) (“On the international arena, we primarily intend to maintain the principles of international law and its fundamental basis as defined by the United Nations Charter […]”); id., Press statements following Russian-Chinese talks, 8 May 2015, available at: http://en.kremlin.ru/events/president/transcripts/49433 (accessed on 4 November 2015) (“China and Russia, as permanent members of the UN Security Council, are supporting firm compliance with the UN’s rules and the basic norms of international law”). 65 See quotations of Vladimir Putin in Anon., Russia stages massive WW2 parade despite Western boycott, BBC NEWS (online ed.), 9 May 2015, available at: http://www.bbc.com/news/world-europe32668511 (accessed on 4 November 2015). 66 67

See references infra, III. B.

Vladimir Putin, Interview to Al-Ahram Daily, 9 February 2015, available at: http://en.kremlin. ru/events/president/news/47643 (accessed on 4 November 2015).

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coup in Ukraine vs. the 2015 coup in Yemen).68 “If we apply different standards to the same kind of events, we will never be able to agree on anything.”69 Fourthly, Russia sees a Western strategy of expansionism and interventionism that is driven by “geopolitical intentions”70 aiming at “imposing their own designs on sovereign States”.71 The effect of this is, according to Russia, that Russian national interests are ignored.72 The expansion of the North Atlantic Treaty Organization (NATO) and the European Union to Eastern Europe has deprived Russia of large parts of the former Soviet influence sphere. Moreover, Russia claims that the Western strategy of expansionism is responsible for the unrest in Ukraine, creating a division among the people living there.73 Thus, for Russian politicians the crisis has to be interpreted in a larger context of prior Western violations of international law.

B. The Context: Western Violations of the Law

Before considering the relevance of this claim, we should first assess whether there is truth to Russia’s assessment. Obviously, parts of it are policy talk. As recent events demonstrate, Russia is not a peace-loving model State of the international community always adhering to international law. However, if we take a look at the international strategies pursued by Western States after the break-up of the Soviet Union, some truth speaks of the description. In the last two decades, Western States have tried to 68 See for a critical assessment Zachary Vermeer, The Jus ad Bellum and the Airstrikes in Yemen: Double Standards for Decamping Presidents?, 30 April 2015, available at: http://www.ejiltalk.org/thejus-ad-bellum-and-the-airstrikes-in-yemen-double-standards-for-decamping-presidents/ (accessed on 4 November 2015). 69

Vladimir Putin, Press statement and replies to journalists’ questions following talks with Federal Chancellor of Germany Angela Merkel, 10 May 2015, available at: http://en.kremlin.ru/events/president/ transcripts/49455 (accessed on 4 November 2015). 70

UN SC, 6810th Meeting, UN Doc. S/PV.6810 (2012), 8.

71

Ibid., 10.

72

Alexey Pushkov, Don’t Isolate Us: A Russian View of NATO Expansion, The National Interest 47 (1997), 58. 73 See for example the quotation of Vladimir Putin in Anon., Putin: We don’t expect any change in hostile policies toward Russia, RT (online ed.), 3 July 2015, available at: http://rt.com/news/271564putin-west-russia-pressure (accessed on 4 November 2015): “Those who are implementing these restrictive measures toward Russia, sanctions – they are, in fact, the culprits of all the events we are witnessing in the east of Ukraine”.

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de facto amend the processes of international decision-making and have implemented political courses that on many occasions deprived Russia of its veto position as envisioned by the UN Charter – not by changing the rules of UN decision-making, but rather by circumventing the central role that the UN Charter assigns to the Security Council. The cases are well known and have been discussed at length in international legal scholarship. In 1999, NATO members initiated a war against Yugoslavia in order to prevent further severe violations of human rights in Kosovo, without, however, securing a Security Council authorisation and therefore violating international law.74 Russia was “profoundly outraged”,75 not only because of the perceived destabilisation of the situation in Yugoslavia, but also because the NATO campaign “directly undermines the fundamental bases of the entire modern system of international relations, which is based on the primacy of the United Nations Charter”.76 In the Security Council, the Russian representative Lavrov described the situation as one “in which gross force dictates realpolitik”,77 he diagnosed a Western attempt to de facto establish “the primacy of force and unilateral diktat”,78 and warned that “lawlessness would spawn lawlessness”.79 The Kosovo war did not, however, significantly affect the relationship between, above all, the US and Russia. Subsequently, Russia supported the adoption of Security Council Resolution 1244 (1999), which authorised an international civil and military presence in Kosovo as well as the establishment of the UN interim administration (UNMIK).80 The circumstances under which Kosovo gained independence then again sparked huge controversies. Numerous Western States immediately recognised Kosovo’s independence although the legal framework of Security Council Resolution 1244 (1999) explicitly recognised the territorial integrity of Yugoslavia. It is contested in international legal scholarship whether this recognition was premature and therefore vio74 Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, European Journal of International Law 10 (1999), 1. 75

UN SC, 3988th Meeting, UN Doc. S/PV.3988 (1999), 2.

76

Id., 3989th Meeting, UN Doc. S/PV.3989 (1999), 5.

77

Ibid., 6.

78

Id., 3988th Meeting, UN Doc. S/PV.3988 (1999), 2; Boris N. Yeltsin declared: “We are basically talking about an attempt by NATO to enter the twenty-first century in the uniform of the world’s policeman. Russia will never agree to that” (ibid., 3). 79

Ibid., 3.

80

SC Res. 1244 of 10 June 1999.

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lated the principle of non-intervention.81 In any case, Russia once more felt neglected. “The precedent of Kosovo is a terrible precedent, which will de facto blow apart the whole system of international relations, developed not over decades, but over centuries”, Putin stated.82 Taking into account Russia’s current invocation of the independence of Kosovo now in the Crimean crisis, another quotation of Putin from 2008 sounds anticipatory. In reference to Western States he said: “They have not thought through the results of what they are doing. At the end of the day it is a two-ended stick and the second end will come back and hit them in the face.”83 Other significant events evolved regarding the use of force by Western States against Iraq. Already, military actions by the US and the UK in 1998 aimed at enforcing Iraq’s disarmament obligations faced severe Russian criticism. The US and the UK acted based on the unsustainable legal claim to unilaterally enforce Security Council Resolution 678 (1990),84 subsequently overridden by Resolution 687 (1991), which stated enforcement actions were clearly an obligation of the Security Council.85 Russia criticised the “senseless, illegal military action by the United States of America and the United Kingdom”86 and pointed out that “a threat has been made to the entire system of international security, in which the United Nations and the Security Council act as a central link”.87 The US again claimed the possibility of unilateral enforcement of a Security Council resolution in regard to the 2003 invasion of Iraq carried out by a coalition under 81 See for a discussion Christian Tomuschat, Recognition of New States: The Case of Premature Recognition, in: Peter Hilpold (ed.), Kosovo and International Law: The ICJ Advisory Opinion of 22 July 2010 (2012), 31. 82

See quotations of Vladimir Putin in Anon., Putin calls Kosovo independence ‘terrible precedent’, Sydney Morning Herald (online ed.), 23 February 2008, available at: http://www.smh.com.au/news/ world/putin-calls-kosovo-independence-terrible-precedent/2008/02/23/1203467431503.html (accessed on 4 November 2015). 83

Ibid.

84

See for an analysis of the legal claims and their validity Nico Krisch, Unilateral Enforcement of the Collective Will, Max Planck Yearbook of United Nations Law 3 (1999), 59, 66–73. 85 See Jochen Frowein, Unilateral Interpretation of Security Council Resolutions, a Threat to Collective Security?, in: Volkmar Götz/Peter Selmer/Rüdiger Wolfrum (eds.), Liber amicorum Günther Jaenicke, zum 85. Geburtstag (1998), 97, 106–108. 86 Statement by the President of the Russian Federation B. N. Yeltsin, UN SC, Letter from the Permanent Representative of the Russian Federation, UN Doc. S/1998/1206, (1998). 87

UN SC, 3955th Meeting, UN Doc. S/PV.3955 (1998), 4.

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leadership of the US. Again, no Security Council authorisation was given and the US reliance on Security Council Resolution 687 (1991) – aiming to settle the conflict between Iraq and Kuwait in 1991 – has largely been rejected as an unsustainable legal claim.88 Russia condemned the invasion, pointing out that it was “taking place contrary to the world public opinion, contrary to the principles and norms of international law and the Charter of the UN”.89 In parallel to the other constellation, Russia saw a “threat of the disintegration of the established system of international security”.90 Subsequently, Russia did not block the Security Council but supported Resolution 1511 (2003) that authorised a multinational force to be deployed in Iraq.91 A further relevant conflict was the military campaign against Libya in 2011. Russia supported Resolution 1970 (2011) that initiated a set of non-military sanctions against Libya, particularly an arms embargo, because troops of Gaddafi’s military were engaging in brutal measures against internal opposition.92 Russia then abstained in regard to Resolution 1973 (2011), which was taken under Chapter VII UN Charter, most significantly authorising the use of military force (except for ground operations) for the protection of civilians and establishing a no-fly zone.93 Russia generally supported a course that included a military intervention against Gaddafi’s regime to protect civilians.94 However, it insisted on the limited scope of Resolution 1973 (2011) that only aimed at protection of civilians95 and vehemently opposed any

88

The Non-Aligned Movement, representing 116 States, as well as the League of Arab States condemned the attack on Iraq as aggression (UN GA/UN SC, Letter from the Chargé d’affaires a.i. of the Permanent Mission of Malaysia, UN Doc. A/58/68-S/2003/257 (2003); UN SC, Letter from the Permanent Observer of the League of Arab States, UN Doc. S/2003/365 (2003)). 89

Vladimir Putin, Statement on Iraq at a Kremlin Meeting, 20 March 2003, available at: http://en. kremlin.ru/events/president/transcripts/21942 (accessed on 4 November 2015). 90

Ibid.

91

SC Res. 1511 of 16 October 2003.

92

SC Res. 1970 of 26 February 2011.

93

SC Res. 1973 of 17 March 1973, paras. 4, 6.

94

See Dmitry Medvedev, Statement by Dmitry Medvedev on the situation in Libya, 21 March 2011, available at: http://en.kremlin.ru/events/president/news/10701 (accessed on 4 November 2015). 95

UN SC, 6528th Meeting, UN Doc. S/PV.6528 (2011), 9: “We emphasize once again that any use of force by the coalition in Libya should be carried out in strict compliance with resolution 1973 (2011). Any act going beyond the mandate established by that resolution in any way or any disproportionate use of force is unacceptable”.

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attempt to initiate a regime change.96 At first, NATO engaged in military actions that in fact aimed at protecting the civilian population against governmental troops.97 Subsequently, however, the intervening States broadened the campaign and essentially provided air support for the advancement of opposition troops against Gaddafi’s military, arguably going beyond the mandate of Resolution 1973 (2011) and therefore violating the prohibition of the use of force.98 Russia objected to this “arbitrary interpretation”99 and accused the Western States of employing “pseudo-legal tricks […] to open the way for countries to pursue their goals through military force.”100 It called for “resolutions [to] be interpreted literally, rather than broadly”.101 President Medvedev expressed the view that a good resolution was turned into a scrap of paper to cover up a pointless military operation. In any case, if my counterparts had asked me then to abstain at the least so that they could bomb various targets in Libya, I would have certainly issued different instructions to our diplomats in the United Nations.102

The Libyan experience may be regarded to be an important determinant for Russia’s course regarding the conflict in Syria. Western States pushed for a more interventionist course against the Assad regime, but Russia now acted much more reluctant. It vetoed several Security Council resolutions on Syria, even though the majority of those were not even taken under Chapter VII UN Charter. The situation in Syria cannot be considered in the Council separately from the Libyan experience. […] For us, Members of the United Nations, including in terms of a precedent, 96 Dmitry Medvedev, Meeting with Security Council members, 7 October 2015, available at: http:// en.kremlin.ru/events/president/news/12972 (accessed on 4 November 2015): “Russia will continue to oppose any attempts to use the Security Council to legitimise all manner of unilateral sanctions aimed at bringing about regime change. I remind you that the UN was not established for this purpose, and in any case, it is ultimately up to each people to decide their country’s fate, whether in the Middle East, Europe, or America. The Russian Federation will unswervingly respect the UN Charter’s provisions”. 97

See for an overview on the facts and a general legal assessment Geir Ulfstein/Hege Føsund Christiansen, The Legality of the NATO Bombing in Libya, International & Comparative Law Quarterly 62 (2013), 159. 98

See ibid, 169.

99

Medvedev (note 96).

100

Ibid.

101

Id., Interview by Dmitry Medvedev to Financial Times, 20 June 2011, available at: http://en. kremlin.ru/events/president/news/11630 (accessed on 5 November 2015). 102

Ibid.

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it is very important to know how the resolution was implemented and how a Security Council resolution turned into its opposite.103

These events demonstrate that Russia has a point in criticising double standards and Western hypocrisy. The number of violations of the jus contra bellum that Western States are responsible for over the last two decades is certainly much higher than that of Russia. If Obama declares that the United States “consider the Russian incursion into Crimea outside of its bases to be a violation of international law”104, it is also due to these prior Western actions that Putin can reply: “it’s a good thing that they at least remember that there exists such a thing as international law – better late than never.”105

C. Russia’s Struggle for Recognition

A classical international law analysis could certainly express disinterest in this, so to speak, background story. Why would an assessment of the legality of Russia’s behaviour depend on what other States have done before, as long as the conduct of other States has not solidified and crystallised into new rules of (customary) international law? Why should Western illegal actions in regard to Kosovo matter if this practice has not led to an extended concept of self-determination of peoples that could now be invoked, not to speak of the question of whether the constellations are comparable at all? This objection certainly has a point: By no means does one violation of the law justify another one.106 However, such a narrow perspective is not sufficient to fully understand the implications of the current crisis for international law as process, as a developing normative system whose strength very much depends on whether norms are backed by practice.

103

UN SC, 6627th Meeting, UN Doc. S/PV.6627 (2011), 4.

104

The White House, Office of the Press Secretary, Remarks by President Obama and Ukraine Prime Minister Yatsenyuk after Bilateral Meeting, 12 March 2014, available at: https://www.whitehouse. gov/the-press-office/2014/03/12/remarks-president-obama-and-ukraine-prime-minister-yatsenyuk-afterbilat (accessed on 5 November 2015). 105 106

UN GA/UN SC (note 15), 5.

See e.g. Independent Fact-Finding Mission on the Conflict in Georgia (note 34), 141: “The law does not permit arguing that other states have violated international law and then taking the rule created by the alleged violation as a new rule and to apply it (selectively) to other cases”.

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The dynamic of bending and breaking the law, particularly with the (implicit) aim to circumvent a Russian veto, is the result of a shift in the power relations of States. In the UN Charter, States have recognised and legalised a certain general system of interaction and a certain hierarchy of States. The Charter is based on the sovereign equality of States, but the members of the UN have simultaneously recognised the five permanent members of the Security Council as, so to speak, sovereigns among sovereigns. It has become evident in recent years that aspects of this hierarchy have become internationally contested. After the end of the Cold War, Western States have become reluctant to straight out recognise the authority of the Security Council,107 particularly the distinguished role that the UN Charter assigns to Russia as one of the veto powers that can compel the Council to refrain from taking action. In many events Western States have decided to act outside the Security Council framework, and have herein declared that the Russian position is not justified – not justified in terms of political and moral standards in which the West claims to be superior, but, more importantly, also in regard to the power of the State. The numerous open and direct violations of international law that the West has engaged in, and that were affecting Russian interests and circumventing its Security Council veto power, would not have been possible some 30 years ago. Russia, in a state of weakness after the break-up of the Soviet Union, accepted that development quite calmly until the early 2000s. Neither the illegal war against Yugoslavia, nor the one against Iraq kept Russia from playing its role in legalising the de facto situations that these wars had created by supporting subsequent Security Council resolutions. Russia agreed or at least did not object to the new rules. It complained about violations of the law and “the disintegration of the established system of international security”,108 but did not practically oppose these developments. This, however, changed at some point in the 2000s. For a couple of years Russia has now taken an increasingly bolder stand towards Western States and has started to advocate its national interests much more insistently. Russia took a first significant counter position in regard to South Ossetia and Abkhazia, inspired by a logic that Russia found in Western States’ strategy towards Kosovo. The underlying logic suggested that if Western States may carve out new justifications for promoting the 107 108

See Krisch (note 84), 103.

Vladimir Putin, Statement on Iraq at a Kremlin Meeting, 20 March 2003, available at: http://en. kremlin.ru/events/president/transcripts/21942 (accessed on 5 November 2015).

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independence of Kosovo (and incrementally bring it into their sphere of influence), why shouldn’t Russia do the same? In the words of then-President Medvedev: “Our colleagues [Western politicians] said more than once that Kosovo was a casus sui generis, a special case. But in that case, we can also say that South Ossetia and Abkhazia are also sui generis.”109 Russia has declared its willingness to resist the biased Western interpretation and application of international law more openly. The official foreign policy concept of the Russian Federation states: Russia intends to […] counter the attempts of certain countries or groups of countries to revise the universally recognized norms of international law […]. Arbitrary and politically motivated interpretation of fundamental international legal norms and principles such as non-use of force or threat of force […] pose particular danger to international peace, law and order. Likewise, attempts to represent violations of international law as its ‘creative’ application are dangerous.110

In defending its position, Russia seems prepared to enter into confrontations more openly. Strong language was employed by then-president Medvedev in regard to the recognition of Kosovo: “We are not afraid of anything, including the prospects of a new Cold War. Of course we don’t want that.”111 Asked by a journalist how Russia’s seemingly more aggressive stand could play a role in solving the world’s pressing problems president Putin said: I did not like you using the term ‘aggressive’ – we have become more persistent in asserting our interests. For a long time, you could say for decades, we had been calmly and quietly proposing various elements of cooperation, but we were constantly pushed back until we reached a line we cannot cross.112

For Putin, Russia’s newly won self-consciousness means that “the country is conducting an independent policy and doesn’t trade its sovereignty. This is not to everyone’s liking, but it can’t be any other way.”113 109 Dmitry Medvedev, Interview with CNN, 26 August 2008, available at: http://en.kremlin.ru/ events/president/transcripts/1227 (accessed on 5 November 2015). 110

Ministry of Foreign Affairs of the Russian Federation (note 9), para. 31 b).

111

Dmitry Medvedev, Interview with TV Channel Russia Today, 26 August 2008, available at: http://en.kremlin.ru/events/president/transcripts/1226 (accessed on 5 November 2015). 112

Putin, Plenary Session of the 19th St Petersburg International Economic Forum (note 64).

113

See supra, note 73.

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Russia is apparently no longer quietly accepting the Western dominance over the rules of international decision-making. Rather, it has taken up a struggle for recognition. This struggle does not aim for recognition in the technical sense of public international law and diplomatic relations. Russia obviously does not have any problems in being recognised as a State, neither is Putin’s administration in danger of not being recognised as the legitimate government of the Russian Federation. Russia rather struggles for recognition in a much more fundamental sense. An insight that dates back to G.W.F. Hegel is that a dynamic of recognition lies at the heart of all social relationships.114 This is also particularly true for law.115 Mediated through law, subjects are recognised as the bearers of certain rights and responsibilities and the status of a subject depends on the very dimensions of this recognition, i.e. on the specific scope of rights and duties. Boiled down to the concrete provisions of international law this means that States have assigned each other specific roles when establishing the UN Charter. Russia is now struggling to defend the role that it is assigned within this Charter. It aims to prove that it is not only the “regional power” acting “out of weakness” that US president Obama declared it to be,116 but rather a truly global one that deserves its special status as a veto power. Accordingly, Russia takes a reluctant stance in the Security Council and aims, as the Syrian crisis demonstrates, to oppose Western interventionism, and attempts to initiate regime changes from the outset. Russia has also started to advocate its national interests much more strongly and this includes the use of force in violation of international law. The annexation of Crimea, for the time being, marks the climax of Russia’s new strategy of confrontation and of its attempt to enforce its own national interests even against the existing international legal framework.

114

Georg Wilhelm Friedrich Hegel, Phänomenologie des Geistes, Werke in 20 Bänden, Vol. 3 (1970), 145 et seq. 115 116

See id., Grundlinien der Philosophie des Rechts, Werke in 20 Bänden, Vol. 7 (1970), 124.

“Russia is a regional power that is threatening some of its immediate neighbors not out of strength, but out of weakness” (Barack Obama, Press Conference with President Obama and Prime Minister Rutte of the Netherlands, 25 March 2014, available at: https://www.whitehouse.gov/the-press-office/2014/03/ 25/press-conference-president-obama-and-prime-minister-rutte-netherlands (accessed on 5 November 2015)).

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I believe that our tough stand on certain critical situations, including that in the Ukraine, should send a message to our partners that the best thing to do is to stop building walls and to start building a common humanitarian space of security and economic freedom.117

IV. The Elements of Russia’s Struggle for Recognition Russia’s struggle for recognition aims to restore and reconstitute its lost power position by employing activism on numerous fields and by determining the rules according to which the conflict is carried out. A first element in this attempt is to elasticise notions of international law and to employ interpretations that favour Russian interest, thereby opposing a Western dominance in the discourse on international law. Secondly, Russia has shifted the arena of conflict by engaging in hybrid warfare, blurring the lines of the conflict and sidelining established reaction patterns. Ultimately, Russia aims to flaunt its coveted super-power status by being capable of getting away with violations of international law.

A. Disrupting Western Hegemony in the International Law Discourse

A first element of Russia’s struggle for recognition is the way it invokes international law. Since the end of the Soviet Union, Western States have exerted a discoursive hegemony in international law. It is they who are capable of shaping the content of the law, and Russia argues that Western States undermined the general application of the law by constructing special cases or crude legal arguments for extending the scope of Security Council resolutions. And admittedly, Western States have brought up a number of unsustainable legal claims. The US justification of the 2003 Iraq war or the US doctrine of pre-emptive self-defence were convincing legal claims to practically no one. Their role was not about convincing others, but showed that the US was in the position to make such claims, to feed them into the legal discourse and get away with it, even when these claims do not find general international support and are rejected by the majority of international legal scholars.

117

Vladimir Putin, News conference of Vladimir Putin, 18 December 2014, available at: http://en. kremlin.ru/events/president/news/47250 (accessed on 5 November 2015).

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Russia now adopts a similarly flexible approach to international law, making and upholding unsustainable legal claims for the justification of the use of force. In fact, it is hard to believe that even Russian politicians take their legal arguments seriously, as reflective of the state of international law. This is already indicated by the fact that those claims are not precisely spelled out but rather kept in a sphere of ambiguity. A rationalist assessment of these claims that aims to systematise the Russian position ultimately fails in bringing coherence into the bits and pieces of the Russian arguments. It is, in fact, true what the French representative observed in the Security Council: “The violation of international law is so obvious at this point that one almost feels pity at seeing Russian diplomacy – so formalistic, so finicky in its respect for proprieties and its invocation of texts – struggling to find a legal basis for the coup.”118 In its struggle for recognition, Russia does not actually aim to provide a sound legal basis and to generate convincing legal arguments. Russia attempts to impose its interpretations on the legal discourse, taking a pragmatic approach to international law that is blatantly driven by national interests. Thus, Russia’s arguments are not about lege artis interpretations of the law, but rather about playing a game with legal arguments that Russia sees in Western behaviour. At its core, Russia opposes the interpretative authority and discoursive hegemony that Western States exert in international law and has made clear that it will practically oppose them. If Western States are implementing new legal concepts against the established principles of international law, such as humanitarian interventions or extensive readings of self-determination, Russia has decided to engage in the very same game, too, often demonstratively employing the very same language as Western States. When, for example, the US in a Security Council debate condemned the Crimean referendum because it was “carried out against the backdrop of a foreign military incursion”,119 Russia, in the very same debate, highlighted the parallels to the Kosovo scenario in which a declaration of independence took place “against the backdrop of an illegal military operation by NATO countries in a situation in which the majority of the Serbian population was forced to leave the province”.120 Thus, an

118

UN SC, 7138th Meeting, UN Doc. S/PV.7138 (2014), 4.

119

Id., 7134th Meeting, UN Doc. S/PV.7134 (2014), 6.

120

Ibid., 16.

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important dimension of this approach is to feed the discourse with its own arguments and overcome the activist dominance so far exerted by Western States. However, there is one significant difference in the Western and Russian approaches to violations of international law. Western States, particularly the US, have proven to be capable of creating alliances that are strong and broad enough to sanction a certain interpretation of the law and give it some authority within the international legal discourse. The 1999 Kosovo war was supported by the NATO alliance, then comprised of nineteen more or less powerful and well-regarded democratic States. The war against Iraq was led by the ‘coalition of the willing’, consisting of some 40 States. Russia, by contrast, enjoys open support only by a handful of States. It is, consequently, much more difficult for Russia to establish a position of strength that is similar to the one that Western States assume and to effectively shape the legal discourse. This may explain a second element of Russia’s struggle for recognition.

B. Shifting the Arena – Engaging in Hybrid Conflicts

As Russia is not in the position to effectively dominate the legal discourse, it aims to shape and dominate the rules of the conflict by shifting the confrontation onto a new terrain, one which is not yet fully regulated by international law or where at least uncertainties in the application of the law arise. Russia makes use of a strategy of hybrid warfare, in which the victim State – Ukraine – is attacked on many levels, often in a covert way so that direct State control is not provable. The potential of hybrid conflicts has been the subject of debates among top Russian military leaders. In a 2013 article, the Chief of the General Staff of the Armed Forces of the Russian Federation, General Valery Gerasimov, explained what some have understood to be the script for the escalation of the conflict in Eastern Ukraine and Russia’s annexation of Crimea.121 Gerasimov pointed out that even a “perfectly thriving state can, in a matter of months and even days, be transformed into an arena of fierce armed conflict, become a victim of foreign intervention, and sink into a web

121 See Robert Coalson, Top Russian General Lays Bare Putin’s Plan for Ukraine, 2 September 2014, available at: http://www.huffingtonpost.com/robert-coalson/valery-gerasimov-putin-ukraine_b_5748 480.html (accessed on 5 November 2015).

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of chaos, humanitarian catastrophe, and civil war.”122 According to Gerasimov, “asymmetrical actions” have proven to be effective in nullifying an enemy’s advantages in armed conflict. They can be used “to create a permanently operating front through the entire territory of the enemy state”.123 Military means are an important part, but by far not the only aspect of hybrid wars. The very ‘rules of war’ have changed. The role of non-military means of achieving political and strategic goals has grown, and, in many cases, they have exceeded the power of force of weapons in their effectiveness. The focus of applied methods of conflict has altered in the direction of the broad use of political, economic, informational, humanitarian, and other non-military measures – applied in coordination with the protest potential of the population.124

Hybrid warfare, thus, is characterised by a concerted interplay of a variety of mechanisms that create pressure on the opponent on different levels, having the potential to particularly exploit existing weaknesses. This includes the use of traditional State-controlled military force; the involvement of non-State actors, either recruited on the territory of another State or infiltrating the victim State across borders; disinformation and propaganda campaigns that aim to obfuscate State involvement, to disunite international reactions towards a conflict, and to mobilise the domestic and international public against the enemy; economic pressure, particularly import and export sanctions; and cyber-attacks, carried out by the State or by non-State actors. Hybrid warfare is characterised by a high degree of cooperativeness of different levels of the conflict: The different actors are coordinated on a strategic, operational, and tactical level.125 As a consequence, hybrid warfare blurs the temporal and spatial lines of conflict and makes it very difficult for outside observers and even participants to establish a clear understanding of the conflict, which increasingly becomes less distinguishable from the civilian sphere.126 122 Valery Gerasimov, Ценность науки в предвидении (The Value of Science in Prediction), Военно-промышленный курьер (Military-Industrial Courier) № 8 (476), 27 February–5 March 2013, available at: http://www.vpk-news.ru/articles/14632 (accessed on 5 November 2015), the translation quoted here is taken from Coalson (note 121). 123

Ibid.

124

Ibid.

125

Steven Haines, The Nature of War and the Character of Contemporary Armed Conflict, in: Elizabeth Wilmshurst (ed.), International Law and the Classification of Conflicts (2012), 9, 23. 126

Outi Korhonen, Deconstructing the Conflict in Ukraine: The Relevance of International Law to Hybrid States and Wars, German Law Journal 16 (2015), 452, 459.

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Russia’s strategy in Ukraine since 2014 appears to be the prototype of such hybrid warfare. Russia deployed regular military forces on Ukrainian territory, which, however, did not act openly, but rather pulled the strings behind so-called ‘selfdefence’ units that were claimed to be local insurgents. In the meantime – after Putin admitted their role127 – there is no longer any doubt that Russian troops acted on the ground, but Putin only admitted Russian involvement after Crimea was already under secured Russian influence. Until then he denied military presence by, inter alia, stating that everybody could “go to a store and buy any kind of uniform”.128 This strategy of denial appears to continue in Eastern Ukraine. While Russia constantly denies that Russian troops have been sent to the battlefields in Ukraine,129 justificatory explanations for the presence of Russian soldiers appear to be absurd. Russian soldiers participating in the hostilities are declared to be on vacation, engaging in the fight in their spare time;130 members of Russian special forces that were caught by Ukrainian troops were said to have wrongfully navigated onto Ukrainian territory;131 Russia has not provided a sound explanation for how Malaysia Airlines flight MH17 could have been shot by the BUK missile system without Russian involvement. In the course of the conflict, Russia, moreover, created economic pressure on Ukraine by closing the borders for Ukrainian exports to Russia,132 by raising gas prices, and by 127

Anon., Putin acknowledges Russian military serviceman were in Crimea, Russia Today, 17 April 2014, published together with a video documentation of Putin’s statements with simultaneous translation into English, available at: http://www.rt.com/news/crimea-defense-russian-soldiers-108 (accessed on 5 November 2015). 128 Vladimir Putin, Vladimir Putin answered journalists’ questions on the situation in Ukraine, 4 March 2014, available at: http://en.kremlin.ru/events/president/news/20366 (accessed on 5 November 2015). 129 It rather consequently speaks of “self-defence formations”. See e.g. UN SC, 7368th Meeting, UN Doc. S/PV.7368 (2015), 6. 130 Pavel Polityuk/Vladimir Soldatkin/Thomas Grove, Ukraine rebel leader says Russian soldiers in their ranks: Russian state TV, Reuters.com, 28 August 2014, available at: http://www.reuters.com/ article/2014/08/28/us-ukraine-crisis-russia-soldiers-idUSKBN0GS0N120140828 (accessed on 5 November 2015). 131

Karoun Demirjian, Putin denies Russian troops are in Ukraine, decrees certain deaths secret, Washington Post, 28 May 2015, available at: https://www.washingtonpost.com/world/putin-deniesrussian-troops-are-in-ukraine-decrees-certain-deaths-secret/2015/05/28/9bb15092-0543-11e5-93f4f24d4af7f97d_story.html (accessed on 5 November 2015). 132 Andrew E. Kramer, Russia Steps Up Economic Pressure on Kiev, New York Times, 23 March 2014, available at: http://www.nytimes.com/2014/03/24/world/europe/russia-steps-up-economic-pressure-onkiev.html?_r=0 (accessed on 5 November 2015).

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threatening to cut off gas supplies.133 Russian hackers have attacked Ukrainian infrastructure, such as the vote counting system for Ukrainian elections, and continue to publish documents obtained through cyber hacks into the Ukrainian administration computer networks.134 For other States all this has created serious problems in establishing the facts in deciding on an adequate course of action. In particular, NATO members have expressed concern regarding the challenges that hybrid warfare may pose to one of their most ‘sacred’ commitments, namely Article 5 North Atlantic Treaty,135 according to which Member States shall consider an armed attack against one of their member to be an attack against them all, consequently triggering collective self-defence. This challenge obviously does not exist in relation to Ukraine, as Ukraine is not a member of NATO, but is discussed with a view to a potential repetition of the Ukrainian scenario in other States that were formerly under Soviet influence, such as Poland or the Baltic States.136 The US Deputy Permanent Representative to NATO, Lee Litzenberger, pointed out that “hybrid warfare has posed certain challenges. NATO has started discussions about the conditions under which Article 5 should be considered applicable. Currently we do not have an answer to that.”137 The fear is that an attack might occur

133

Michael Birnbaum, Putin threatens to cut gas to Ukraine as showdowns shift to economy, Washington Post, 25 February 2015, available at: https://www.washingtonpost.com/world/europe/putinthreatens-to-cut-gas-to-ukraine-as-showdowns-shift-to-economy/2015/02/25/b0d709de-bcf6-11e49dfb-03366e719af8_story.html (accessed on 5 November 2015). 134 See the declarations of the hacker group CyberBerkut, available at: http://cyber-berkut.org/en/ (accessed on 5 November 2015); see generally on the issue Gertjan Boulet, Cyber Operations by Private Actors in the Ukraine-Russia Conflict: From Cyber War to Cyber Security, ASIL Insights 19 (1) 2015. 135

North Atlantic Treaty, 4 April 1949, UNTS 34, 243.

136

See also NATO, Wales Summit Declaration, 5 September 2014, para. 13, available at: http:// www.nato.int/cps/en/natohq/official_texts_112964.htm (accessed on 5 November 2015): “We will ensure that NATO is able to effectively address the specific challenges posed by hybrid warfare threats, where a wide range of overt and covert military, paramilitary, and civilian measures are employed in a highly integrated design. It is essential that the Alliance possesses the necessary tools and procedures required to deter and respond effectively to hybrid warfare threats, and the capabilities to reinforce national forces”. 137 Quoted in: Eglė Samoškatė, US diplomat acknowledges NATO discussions about hybrid war, DELFI, 28 February 2015, available at: http://en.delfi.lt/lithuania/defence/us-diplomat-acknowledgesnato-discussions-about-hybrid-war.d?id=67299576 (accessed on 5 November 2015).

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“below the radar”138 of the Alliance and consequently, again, “outflank[…] NATO’s reaction patterns”.139 NATO might be paralysed because the authorship of an attack carried out using hybrid methods may be impossible to determine.140 While arguably the jus contra bellum is suitably fit to withstand the challenges of hybrid warfare, and while those challenges are actually not new at all, Russia nevertheless has succeeded in creating a high degree of uncertainty. Facts were not clear from the first moment and therefore slowed down possible international countermeasures. It managed to let its own actions in Ukraine appear in a less decisively illegal manner and helped and still helps to cover up Russian State involvement. At the surface, Russia’s actions did not appear to be an outright aggression but some form of a more subtle influence. It appears very likely that Russia would have faced much more condemnation if it had engaged in an unconcealed military attack. For example, in the initial Security Council debate only six members of the Council explicitly stated the illegality of Russia’s actions,141 and eight did not take a clear position, but rather limited themselves to invoking the prohibition of the use of force and called for negotiations and a peaceful settlement of the conflict.142 It also appears likely that in the event of an open aggression and annexation of Crimea, Russia would have faced a much more consensual condemnation in the General Assembly, without having 84 States abstaining or not-voting on Resolution 68/262. By shifting to methods of hybrid warfare Russia, again, took an active position and dominated the rules of the conflict, keeping Ukraine and Western States in the role of the passive observer until the annexation of Crimea was completed. The hybrid 138 Heidi Reisinger/Alexander Golts, Russia’s Hybrid Warfare: Waging War below the Radar of Traditional Self-Defence, Research Paper, NATO Research Division, NATO Defense College Rome, No. 105 (2014), 1. 139

Ibid., 11.

140

“Russia needs to perceive that in the event of an attack against any NATO state, including a disguised hybrid attack, NATO will reinforce the Ally attacked with substantial conventional forces which it will be able to sustain indefinitely, that it will do so promptly regardless of whether the attack’s authorship is acknowledged, that there will be other repercussions including economic and political, and that NATO’s response will not necessarily be symmetrical or confined to direct defense of the Ally attacked.”, Edgar Buckley/Ioan Pascu, NATO’s Article 5 and Russian Hybrid Warfare, 17 March 2015, available at: http://www.atlanticcouncil.org/blogs/natosource/nato-s-article-5-and-russian-hybrid-warfare (accessed on 5 November 2015). 141 142

See supra, note 48.

Argentina, Chad, Chile, China, Jordan, Nigeria, Republic of Korea, and Rwanda (see UN SC, 7125th Meeting, UN Doc. S/PV.7125 (2014)).

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strategy did not help Russia to have a majority of other States accept its legal claims, but prevented it from being unanimously condemned.

C. Superpower Status and Violations of the Law

Ultimately, there is also the aspect that Russia seeks to underline its power by proving that it is capable of getting away with violations of international law. Doing so is something that Putin has diagnosed to be a strategy of Western States, above all the US: Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. They have come to believe in their exclusivity and exceptionalism, that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle ‘If you are not with us, you are against us.’ To make this aggression look legitimate, they force the necessary resolutions from international organisations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall.143

Russia apparently now aims to demonstrate that it is coequal in that regard. Russia could have maintained the ambiguous factual situation and the denial of Russian military presence in Crimea. While it would not have been able to deceive governments with their own intelligence, such course would nevertheless have had some influence on the public and also the academic assessment, which has become reluctant to rely on the assessments and declarations of Western States alone. Particularly after the US information strategy in the 2003 Iraq war, Western allegations are also often taken with a pinch of salt. However, as already indicated, once Crimea was secured Putin could not help but to make the involvement of Russian troops public. It appears that he was proud that the incorporation of Crimea had run so smoothly, not facing any resistance at all. “Crimean self-defense forces were of course backed by Russian servicemen”,144 he said, implying that only Russia had the power to initiate such a concerted and well-organised coup. Putin points out the Russian strength as manifested in the capability to violate the law. Having the power to violate international law, while other States are being held 143

UN GA/UN SC (note 15), 6–7.

144

Anon. (note 127).

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accountable, distinguishes the great power from ordinary States. In fact, during the recent crisis, no State seriously considered deterring Russia from annexing Crimea although this would have been in accordance with international law.145 US president Obama said that “there is no military solution to this crisis”146 and that “it would not be effective to engage in a military conflict with Russia”.147 Bringing the violations of international law into the open provides further proof of Russian activism and aim to establish a position of strength.

V. Conclusion The recent crisis demonstrates both the solidity and the fragility of international law. International law is rather stable and solid in terms of its substantive provisions. While Russia has challenged some established interpretations of the law, the law remains unchanged because Russia’s proposed interpretations of the law have not found general support but have rather faced widespread criticism. The crisis, nevertheless, also reveals a structural danger of international law, namely that there can be a pull into non-compliance. What we are witnessing is not just an isolated violation, but rather a structural deficit and decline of authority of the UN Charter system in particular, that reaches far behind the current crisis. States struggle over their international role and authority, and Western States notably aimed to deprive Russia of its distinguished role as a veto power in the Security Council. I have argued that we must interpret Russia’s increasingly aggressive stand and its violations of international law as elements of a struggle for recognition; a struggle in which Russia aims to end the systematic neglect of its interests as well as the erosion of the authority of the Security Council, in which Russia enjoys a distinguished role. The current crisis demonstrates how systematic and recurring violations of international law ultimately 145 See Christian Marxsen, Territorial Integrity in International Law: Its Concept and Implications for Crimea, ZaöRV/HJIL 75 (1) (2015), 7, 23–25. 146 Barack Obama, Remarks by President Obama to the People of Estonia, 3 September 2014, available at: https://www.whitehouse.gov/the-press-office/2014/09/03/remarks-president-obama-people-estonia (accessed on 5 November 2015). 147 Anon., Obama: US will consider more steps to stop Russia, CNBC, 25 January 2015, available at: http://www.cnbc.com/2015/01/25/obama-us-will-consider-more-steps-to-stop-russia.html (accessed on 5 November 2015).

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undermine the admittedly rather weak authority of international law as such. International law must be backed by practice or it turns into an empty shell.148 The problematic twist of compliance in international law is that there is – beyond the interest that States take in having good relations amongst one another – no external motivation to comply with the law. Rather, the question whether to adhere to international law or not is completely given into the hands of those who are supposed to be subjected to the law. Consequently, States experience a significant tension between short- and long-term interests. On the one hand, it may be appealing for States to settle a distinctive conflict by invoking not yet established, but arguably ‘emerging’ legal doctrines (such as humanitarian intervention), by invoking ‘single case arguments’ or special circumstances. There is a motivation for Western States to deprive the Security Council of its central role for international peace and security when it grants Russia a veto position that it does not appear to have because of its current international role but rather of its political power after World War II. However, such violations will push other States to do the same, when they are in the power position to do so. Whether Russia is in fact powerful enough to sustain its adversarial stand remains to be seen, but so far it appears that it will be able to manoeuvre through the sanctions regime relatively unharmed. Whereas it may be appealing for short-term goals to violate the law, it may nevertheless be – in the long run – more desirable for States, even for powerful ones, to enjoy the benefits of having stable legal principles guiding the international relations of States. This interest in having collective and universal rules requires putting aside short-term goals in favour of stable long-term relationships. It appears that Western States have acted too long based on short-term perspectives, not expecting that their claimed (and de facto) dominant international position would be challenged. They seem to have assumed that the other States were so dependent on them that they would not have the power to oppose their standing – now proven to be wrong by Russia. It is not at all clear whether Russia would have refrained from annexing Crimea if Western States had been more reluctant in breaking the law in recent decades. There is always a point at which States will consider their immediate national interest to outweigh the gains of a stable legal order, and maybe 148

See Jutta Brunnée/Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2010), 273 et seq.

48

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having secured long-term Russian control over the Crimean naval basis forms such an interest. However, the Western case against Russia would have been stronger, as would have been Russia’s interest in preserving an international legal order that it perceives to promote its own benefits as well. In this latter sense, international law is fragile and it will – as a legal order without a sovereign – always be only as strong as the commitment by its subjects. Is international peace and security law dead after all, as has been suggested? Probably not. What we can hope for at this point is that the current crisis will turn out to be part of a larger dialectical dynamic. Russia’s struggle for recognition, the deterioration of international relations, and the prospect of a new global confrontation could in fact remind Western States and Russia alike that having commonly shared international legal provisions is something that is worth putting off immediate interest for.

FOCUS CYBER-SECURITY BEYOND THE MILITARY PERSPECTIVE

Cyber-Security Beyond the Military Perspective: International Law, ‘Cyberspace’, and the Concept of Due Diligence MARTIN NEY( AND ANDREAS ZIMMERMANN((

I. Introduction This year’s Focus Section of the German Yearbook of International Law (GYIL) contains and documents the results of a scientific conference organised by the German Federal Foreign Office in co-operation with the University of Potsdam in which both legal academics as well as practitioners from around the world participated. Given that Germany has repeatedly underlined that securing the freedom and stability of cyberspace constitutes an important aim of German foreign policy, the German Federal Foreign Office organised (and continues to organise) a series of “Berlin Cyber Conferences”, intending to gather international cutting-edge expertise in the field of cyber security. The conference, the outcome of which is published hereinafter thanks to the efforts of the respective authors as well as those of the editors and the editorial staff of the GYIL for which we are particularly grateful, has been the third in this sequence of conferences, after the conference on “Challenges in Cyber Security – Risks, Strategies and Confidence-Building” held in December 2011,1 and the one on

( Dr. iur. utr., M.A. (Oxon.), Ambassador of Germany to India; formerly Legal Adviser, Federal Foreign Office, Berlin. (( Dr. jur., LL.M. (Harvard), Professor of International and European Union Law, University of Potsdam; member of the Permanent Court of Arbitration. 1 See Federal Foreign Office, Minister of State Hoyer Opens Cyber Security Conference, 12 December 2011, available at: http://www.auswaertiges-amt.de/EN/Infoservice/Presse/Meldungen/2011/ 111212_Cybersicherheit.html?nn=382590 (accessed on 23 September 2015).

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“The Internet and Human Rights: Building a Free, Open and Secure Internet” in September 2012.2 It was already at the just-mentioned cyber conference of September 2012 that the German Foreign Minister Westerwelle had outlined the fundamental principles that guide German cyber foreign policy, and which indeed may be said to continue to do so. Given that these very principles also constituted the framework and overarching theme of the third 2013 Berlin cyber conference, the content and results of which are hereinafter documented, it is appropriate to quote three main points from his 2012 address, namely that: Firstly, freedom has to be our overriding priority in internet matters. Respect for the freedom of expression, freedom of assembly, the rights to access to information and the right to personal privacy must be ensured. Secondly, with freedom comes responsibility. This applies to societies in general. It applies to the global internet society in particular. Self-regulation should be an important principle of its governance. All stakeholders – individuals, companies, governments – have to act responsibly. Therefore, regulation has to step in when our values and rule of law are in danger or democratic legitimation is no longer assured. Finally, transparency and knowledge will help us to make informed decisions in line with our values. We will continue to share information, to include the global public, and to foster transparent policy dialogue.3

II. Cyberspace and General International Law4 Readers of this very piece will read their newspapers online and might purchase some (or even all) of their gifts in the same manner. These simple examples alone, and 2 See id., Conference on the Internet and Human Rights, 12 September 2012, available at: http:// www.auswaertiges-amt.de/sid_D911C8E0F05824607E17EFDF3F489C0E/EN/Aussenpolitik/ Menschenrechte/Aktuell/120912-Konferenz-Internet-Menschenrechte.html (accessed on 23 September 2015). 3

Speech by Foreign Minister Guido Westerwelle at the conference “The Internet and Human Rights: Building a Free, Open and Secure Internet”, 14 September 2012, available at: http://www.auswaertigesamt.de/EN/Infoservice/Presse/Reden/2012/120914-BM_Internet_MR.html?nn=648756 (accessed on 23 September 2015). 4 See as to this issue also already Andreas Zimmermann, International Law and ‘Cyber Space’, ESIL Reflections, 10 January 2014, available at: http://www.esil-sedi.eu/sites/default/files/ESIL%20Reflections %20-%20Andreas%20Zimmermann.pdf (accessed on 23 September 2015).

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many others could obviously be added, demonstrate to what extent communication via the internet shapes our day-to-day-life, far beyond the news that from time to time make the headlines. At the same time, however, there are almost no specific norms of international law that specifically govern ‘cyberspace’ given that the underlying technology is so new. Yet, it is not the first time that international law faces new technological developments. In earlier times, to give but two examples, international law was in a similarly sudden manner confronted with radio waves crossing boundaries, or was confronted with mankind being able to reach extraterrestrial bodies – and each time it was simply taken for granted, and rightly so, that such human behaviour was governed by preexisting norms of international law. And as in those earlier cases, activities in ‘cyberspace’, too, are governed by international law as such, and be it only by the norm that where no (general or specific) rule prohibiting the behaviour in question exists, States have retained their freedom to act.5 This is, inter alia, confirmed by the work of the “Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security”, set up in the framework of the United Nations General Assembly’s First Committee.6 As its report of 7 June 2013 in New York quite rightly confirmed in unequivocal terms, “international law, and in particular the U.N. Charter, is applicable and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT [i.e. information and communications technology] environment.”7 What is more is that the report also emphasised that “State sovereignty and international norms and principles that flow from sovereignty apply to State conduct of ICT-related activities, and to their jurisdiction over ICT infrastructure within their territory.”8

5 See generally on that issue Ulrich Fastenrath, Lücken im Völkerrecht: Zu Rechtscharakter, Quellen, Systemzusammenhang, Methodenlehre und Funktionen des Völkerrechts (1991), passim. 6

Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, Report of 7 June 2013, UN Doc. A/68/98 (2013), available at: http://www.unidir.org/files/medias/pdfs/developments-in-the-field-of-information-andtelecommunications-in-the-context-of-international-security-2012-2013-a-68-98-eng-0-578.pdf (accessed on 23 September 2015). 7

Ibid., 8.

8

Ibid.

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However, as in earlier scenarios, it is for lack, for the time being, of more specific rules that the basic and more general norms of international law govern cyber activities, including concepts such as jurisdiction, attribution, or, in particular, the concept of due diligence. Given however the very general nature of those rules, as well as the lack of generally accepted, efficient, and rule-based inter-State international governance structures concerning the internet, ‘cyberspace’ nevertheless constitutes a major challenge for international law as it currently stands. It is against this background that the various papers contained in this very Focus Section of the GYIL attempt to assess the extent to which, and how, human activities in cyberspace are indeed governed by international law, and what the applicable norms are. When studying the relevance of international law for cyberspace at this conference, it was not the primary objective either of its organisers or its participants to define restrictions or limitations for cyberspace freedom. On the contrary, the principal aim was to secure that cyberspace remains a sphere where individual actors exercise their freedom, where economic activity can flourish, and where States can operate effectively.

III. Notion of ‘Cyberspace’ and its Legal (Ir)relevance Not infrequently, when discussing which rules of international law apply to ‘cyberspace’, it is referred to as a mere virtual space where computer-mediated communication takes place but which cannot be spatially located.9 Yet, to state the obvious, any such communication requires hardware that must be located somewhere. What is more, any such information is then physically routed through the territory of one or more States (and possibly through outer space) before it reaches the addressee, which, again, confirms that there necessarily exists a territorial nexus of any activity in ‘cyberspace’ to at least one State. Accordingly, while ‘cyberspace’ might describe a phenomenon of information being routed through various jurisdictions, it still does not constitute some new form of ‘outer space’ where no State could, as a matter of international law, exercise its jurisdiction.10 Rather, it is more an issue of technical 9 Zimmermann (note 4), 2; see also Nicholas Tsagourias, The Legal Status of Cyberspace, in: id./ Russell Buchan (eds.), Research Handbook on International Law and Cyberspace (2015), 13, 14 et seq. 10

See generally as to jurisdictional issues related to ‘cyberspace’ Joachim Zekoll, Jurisdiction in Cyberspace, in: Günther Handl/Joachim Zekoll/Peer Zumbansen (eds.), Beyond Territoriality: Trans-

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feasibility which State (or international organisation) is in a position to regulate behaviour in ‘cyberspace’, and also an issue of the willingness of States to eventually agree on more specific rules on the matter.

IV. Challenges for International Law in Cyberspace Although communication in cyberspace is under international law de jure subject to the jurisdiction of one or more States, and thus does not constitute a novel phenomenon for international law as such, communication via the internet nevertheless, given its specific technical characteristics, does pose new challenges for international law. For one, and more generally, given the speed by which technological developments concerning cyberspace take place, the more traditional ways of creating norms of international law, be it by way of multilateral treaties, be it by way of developing rules of customary international law, run the danger of being the hare in a new form of ‘hare and hedgehog’ race. As a result, most currently existing norms of international law in this field are of a fairly general nature. This phenomenon is compounded by an unwillingness of many States, as well as non-State actors such as multinational enterprises that have a technological lead in cyberspace, to have their behaviour in cyberspace regulated by specific treaty-based rules; these actors instead see the lack of effective international regulation of their activities as an advantage to be exploited. By the same token, given the enormous technological gap that exists between highly industrialised States and multinational companies, on the one hand, and smaller States on the other, many States might de facto not fully be in a position to exercise even a minimal form of control of cyberspace activities emanating from or affecting their territory; indeed, they might even lack sufficient capabilities to frame an appropriate regulatory (legal) framework governing such activities. Moreover, both the de facto (but de facto only!) de-territorialisation of cyberspace activities (in that information is being routed through a large number of States and territories) and the sheer amount of information being produced might lead to a lack national Legal Authority in an Age of Globalization (2012), 341–369; Uta Kohl, Jurisdiction in Cyberspace, in: Tsagourias/Buchan (eds.) (note 9), 30.

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of effective regulatory mechanisms to be used by States when it comes to detecting, and eventually addressing, harmful activities in cyberspace, regardless of whether they emanate from private actors or from other States. Another aspect of such de facto de-territorialisation of cyberspace activities can be seen in the fact that the effects of activities in cyberspace, even when they emanate from States, often occur abroad, which in many cases raises the question whether the international obligations a State has undertaken (be they treaty-based or of a customary nature) also apply in such cross-boundary and extraterritorial settings. Moreover, given the technological environment in which cyberspace activities occur, it will be often, if not always, difficult or even impossible, to trace back any such activities, even when they emanate from actors whose actions would otherwise be attributable to a given State under applicable norms of international law, as codified in the International Law Commission’s Articles on State Responsibility.11 Accordingly, in many cases, while the general law on State responsibility is applicable as such, it might not be fully adequate to regulate cyberspace-related activities.12 This in turn requires international law to either develop specific norms of attribution (including specific evidentiary norms), or to come up with specific primary norms that can adequately address the matter.13

V. Cyberspace, the Prohibition of the Use of Force, and Jus in Bello Cyber security is, first and foremost, an item of the international law of peace, or, to paraphrase the former German President Gustav Heinemann, who once put it succinctly, albeit in a somewhat different context, ‘peace constitutes the real emergency 11

GA Res. 56/83 of 28 January 2002, Annex.

12

See on this issue Michael N. Schmitt, Cyber Activities and the Law of Countermeasures, in: Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy (2013), 659, 668 et seq; Constantine Antonopoulos, State Responsibility in Cyberspace, in: Tsagourias/Buchan (eds.) (note 9), 55. 13

See as to this issue also the contributions by Robert Kolb, Reflections on Due Diligence Duties and Cyberspace, German Yearbook of International Law (GYIL) 58 (2015), 113; Oliver Dörr, Obligations of the State of Origin of a Cyber Security Incident, GYIL 58 (2015), 87; Jutta Brunneé/Tamar Meshel, Teaching an Old Law New Tricks: International Environmental Law Lessons for Cyberspace Governance, GYIL 58 (2015), 129.

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in which international law has to prove itself.’14 Indeed, it follows from the very Charter of the United Nations (UN Charter)15 that peace and security take precedence in international relations, and this, obviously, holds also true when it comes to inter-State relations in cyberspace. Hence, neither issues of the use of armed force (jus ad bellum) nor jus in bello issues were what the conference, whose proceedings are reproduced here, wanted to address. Rather, it was the peacetime scenario below the threshold of an armed conflict that this conference focussed upon. Moreover, the conference was not about national security electronic surveillance programmes either, which indeed raise very specific issues beyond the realm of general international law. Indeed, we believe that the overall debate on ‘cyber security’ with its main focus on cyber warfare is, to a large degree, so far at least, somewhat one-sided.16 While, obviously, both jus ad bellum and jus in bello rules do apply, as a matter of course, to activities in cyberspace, such activities do not normally reach, and so far have not reached, the threshold of Article 2 (4) UN Charter. Having said this, it is, of course, conceivable that a harmful cyberspace activity that is attributable to a State could amount to a violation of Article 2 (4) UN Charter, given its character and effects. Whenever such use of force even reaches the threshold of an armed attack, as defined by general rules of international law17 and, in particular, the case-law of the International Court of Justice (ICJ),18 in principle, the right of self-defence comes into play. In that regard, ‘cyber attacks’ (provided they do amount to armed attacks in the first place, which will probably be the case only rarely), just like other armed attacks, might raise the question whether such attacks, if they emanate from non14

Gustav Heinemann, Inaugural Address “Dem Frieden dienen”, German Federal Parliament Plenary Protocol No. 05/245 of 1 July 1969, in: Verhandlungen des Deutschen Bundestages 1969, Vol. 70, 13661, 13664, 13665, available at: http://dipbt.bundestag.de/doc/btp/05/05245.pdf (accessed on 5 November 2015): “Nicht der Krieg ist der Ernstfall, […] sondern der Frieden ist der Ernstfall, in dem wir alle uns zu bewähren haben.” “War is not the quintessential emergency […] rather, peace is the emergency in which we all have to prove ourselves” (English text available at: http://germanhistorydocs.ghi-dc.org/sub_ document.cfm?document_id=169&language=english (accessed on 23 September 2015)). 15

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

16

But see most recently the various contributions in Ziolkowski (ed.) (note 12).

17

Albrecht Randelzhofer/Georg Nolte, Article 51, in: Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary (3rd ed. 2012), 1397, MN 17 et seq. 18

Ibid., MN 18.

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State actors whose acts are not attributable to a State, do trigger the applicability of Article 51 UN Charter.19 What is more, in such scenarios the question who carries the burden of proof will usually arise, not only as to the attribution of a given activity to a State or other actor, but also as to its attribution to a specific State. In these respects, the judgment of the ICJ in the Oil Platforms case20 is of particular relevance. By the same token, once the threshold of an (international or non-international) armed conflict has either been reached by a cyber attack as such, or where cyber attacks are being undertaken as part of already ongoing hostilities, applicable norms of international humanitarian law also govern cyberspace-related activities that are undertaken as part of the armed conflict and that constitute an ‘attack’ within the meaning of international humanitarian law. Yet, ‘cyber warfare’ raises significant, and so far largely unresolved, questions, inter alia as to the character of cyber installations as military objects as well as to the legal characterisation of persons involved in cyber operations. State practice has not yet fully addressed these questions.21

VI. Cyberspace, Human Rights, and Data Protection: The Need to Develop Appropriate Legal Standards Foreign policy has the responsibility to ensure that cyberspace remains a basis for communicating freely and for enjoying those rights that are fundamental to any democratic society, most notably the freedom of speech and the freedom of informa-

19 See as to this issue Peter Margulies, Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility, Melbourne Journal of International Law 14 (2013), 1; Dieter Fleck, Searching for International Rules Applicable to Cyber Warfare: A Critical First Assessment of the New Tallinn Manual, Journal of Conflict & Security Law 18 (2013), 331; Wolff Heintschel von Heinegg, Chapter 1: The Tallinn Manual and International Cyber Security Law, Yearbook of International Humanitarian Law 15 (2012), 3; Nicholas Tsagourias, Chapter 2: The Tallinn Manual on the International Law Applicable to Cyber Warfare: A Commentary on Chapter II: The Use of Force, Yearbook of International Humanitarian Law 15 (2012), 19; Robin Geiß/Henning Lahmann, Freedom and Security in Cyberspace: Non-Forcible Countermeasures and Collective Threat-Prevention, in: Ziolkowski (ed.) (note 12), 621; Carlo Focarelli, Self-Defence in Cyberspace, in: Tsagourias/Buchan (eds.) (note 9), 255. 20 International Court of Justice (ICJ), Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment of 6 November 2003, ICJ Reports 2003, 161, paras. 59 et seq. 21

See generally on those issues Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), passim.

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tion.22 Moreover, it also has to ensure the full functioning of cyberspace as a basic pillar of international economic activity and social activity. This is challenged by the ability of States (and indeed private actors) to effectively collect comprehensive information on any given person active on the internet in one way or the other. This reality leads to the question whether human rights standards, and namely guarantees relating to privacy, also apply in ‘cyberspace’ as a matter of their applicability ratione materiae and ratione loci. Apart from specific treaty-based norms that may be applicable in a given case (such as e.g. the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data23), the area lacks specific rules. For one, it might be asked whether de lege lata all electronic data available in cyberspace are comprehensively protected by the concepts of ‘privacy’ and/or ‘correspondence’ under Article 17 International Covenant on Civil and Political Rights (ICCPR),24 one of the issues (not yet conclusively resolved) being whether the 1966 ICCPR (or parallel norms of customary international law) can be interpreted in a manner as to also cover forms of communication not explicitly foreseen in 1966. Furthermore (provided one assumes that the relevant rules of international law do apply ratione materiae to cyberspace), one has to answer an additional question relating to the extraterritorial applicability of the right of privacy. Namely, the question arises whether, under either customary law or under Article 17 ICCPR, an individual who is not present on the territory of a State collecting the private data of this very individual via the internet finds himself “within the jurisdiction” of said State within the meaning of Article 2 (1) ICCPR (or the parallel norm of customary law). It is only if one were to provide a positive answer to this question that the applicability of the right to privacy would be triggered.25 22 See generally as to this issue also the contribution by Dinah PoKempner, Cyberspace and State Obligations in the Area of Human Rights, in: Ziolkowski (ed.) (note 12), 239; David P. Fidler, Cyberspace and Human Rights, in: Tsagourias/Buchan (eds.) (note 9), 94, as well as most recently Marko Milanovic, Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age, Harvard International Law Journal 56 (2015), 81. 23

Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 28 January 1981, ETS No. 108. 24 25

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 177.

See generally as to the extraterritorial applicability of human rights treaties Marko Milanovic, Extraterritorial Application of Human Rights Treaties (2011), passim.

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In view of these and other questions, it is fortunate that Brazil and Germany had launched an initiative within the United Nations to further clarify and develop applicable norms of international law, which led the United Nations General Assembly to adopt, by consensus, a resolution26 requesting the United Nations High Commissioner for Human Rights to present a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale to the Human Rights Council27

which in 2014 was submitted to the 27th session of the United Nations Human Rights Council.28

VII. Cyberspace Governance: Which Way Forward? Unlike most other areas of international law, cyberspace so far lacks any significant inter-governmental governance structure. Rather, key private organisations acting with the aim of preserving the operational stability of the internet, such as ICANN, the “Internet Corporation for Assigned Names and Numbers,” as well as interconnection and peering agreements among internet service providers, provide for some form of self-regulatory capabilities of cyberspace. It remains to be seen whether this form of self-regulation will continue to be able to provide sufficient safeguards as to the functioning of the internet, in line with the applicable principles of international law outlined above, or whether one should not aim at some form of intergovernmental internet governance. Yet, recent initiatives within the International Telecommunication Union’s (ITU) system have shown that such attempts of coming up with universally accepted inter-State governance structures might run the risk of being (mis-)used for subjecting cyberspace-based activities to over-broad governmental regulation (or, in other words, censorship), and thus run the risk of limiting rather than protecting the human rights of internet users.

26 GA Res. 68/167 of 18 December 2013. See also on this Resolution Martin Weiler, The Right to Privacy in the Digital Age: The Commitment to Human Rights Online, GYIL 57 (2014), 651. 27 28

GA Res. 68/167 (note 26), para. 5.

Human Rights Council, The Right to Privacy in the Digital Age, UN Doc. A/HRC/27/37 (2014).

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At the same time, States share an interest in maintaining cyberspace free from interruptions, i.e. a cyberspace which is not misused in a way that unduly affects other States, their infrastructure, or their population. In order to function in such a way, cyberspace presupposes and requires a certain behaviour of States. The set of rules for such behaviour ought to possess a legally binding character. It is submitted that time has come to identify common legal understandings for cyberspace that serve to prevent direct damages caused by cyber activities, as well as to limit harm and loss resulting from such damages. This indeed is what the conference, which led to the various contributions to be found beneath, was all about. In approaching this question, the guiding (and indeed self-evident) principle must be strict adherence to international law including, in particular, human rights, and the established principles of State responsibility.

VIII. Cyberspace and Inter-State Due Diligence Obligations The starting point for any research into States’ obligations in cyberspace has to be its complexity and its interconnectivity as well as the network character of cyberspace. As in other areas where interests of different States are intrinsically intertwined, this requires that States respect legitimate interests of other States within cyberspace and cooperate in responding to threats to the common sphere of interest. Within the international community, there is consensus that there exists a general obligation of States to prevent their territory (and hence also cyberspace-related infrastructure located on their territory) from being used for acts contrary to the rights of other States, unlawfully harming such other States.29 The leading case on this question is, of course, the merits judgment of the ICJ in the Corfu Channel case.30 As the Court then put it, a State breaches this obligation if it fails to act with due diligence.31 This principle of international law is referred to as both the “principle of due

29

Geiß/Lahmann (note 19), 632 et seq.

30

ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4. 31

Ibid., 22, where the Court inter alia refers to “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”.

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diligence”32 and also the “no harm principle”,33 describing two elements of one and the same obligation. No matter how this principle is labelled, it is of particular relevance in cases where harmful actions either cannot be attributed to a particular State or where only insufficient proof for such attribution can be provided by the victim State. As is well-known, historically the concept of due diligence was developed with regard to the responsibility of States for the behaviour of private actors. States are expected to take preventive measures in their sphere of exclusive control, when internationally unlawful harm is being caused by actions of private persons. The respective invocation of due diligence can be traced back to the Alabama Arbitration of 1872.34 Under modern international law, the scope of the due diligence principle transcends its historical origins. There seems to be consensus that due diligence constitutes a general principle of law, both in the field of international environmental law35 and in situations of risk of other transboundary harm.36 It accordingly only seems logical to apply the concept of due diligence also when it comes to situations of risk of transboundary harm within cyberspace. The application of this principle would mean that all States share a common obligation to ensure that neither their territory, nor hardware and cyber infrastructure situated on their territory or under their effective control, is misused to harm other States or their residents.

32 Timo Koivurova, Due Diligence, Max Planck Encyclopedia of Public International Law (MPEPIL), February 2010, paras. 1 et seq., available via: http://www.mpepil.com (accessed on 23 September 2015). 33

Ibid., para. 3.

34

Alabama Claims (United States of America, Great Britain), Arbitral Award of 8 May 1871, Reports of International Arbitral Awards XXIX, 125; see also Tom Bingham, Alabama Arbitration, MPEPIL, October 2006, para. 7, available via: http://www.mpepil.com (accessed on 23 September 2015). 35 36

Koivurova (note 32), para. 9.

ICJ, Corfu Channel (note 30), 4, 22; Günther Handl, Transboundary Impact, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (2007), 531, 541 (with further references); Pierre-Marie Dupuy, Formation of Customary International Law and General Principles, in: Bodansky/Brunnée/Hey (eds.) (note 36), 452; see also Art. 3 International Law Commission Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, Report on the Work of its 53rd Session, UN Doc. A/56/10 (2001), 377, General Commentary, para. 3.

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Due diligence could thus be regarded as a minimum standard providing a test whether a specific State conduct is up to what a ‘good government’ would do in such situations of transboundary risk. Therefore, the argument can validly be made that due diligence does not necessarily require identical measures from all States. As a matter of fact, a certain lack of economic and technological capacity of a particular State might reduce its due diligence obligations.37 Moreover, the requirements due diligence sets out are context-specific. Different measures might be required in different circumstances. It also seems that there can be different legal requirements for a State depending on whether a harmful activity has its origin or its effect in its territory. In all these cases, due diligence could entail both substantive and/or procedural obligations. The latter ones may require States to create specific institutional capacities. Moreover, there could be a duty to cooperate in cases of transboundary harm. Additionally, responsibilities might change during the different stages of harmful activities. Whereas duties of prevention might dominate before any harmful act is committed, during or after such an act, it is cooperation between States that might primarily be required then. Finally, the concept of ‘harm’ inflicted on other States also needs special attention. It seems that not every harm inflicted on another State automatically entails that due diligence obligations have been violated.38 Rather, there appears to be a threshold triggering such due diligence obligations. In light of the results to be found in the various contributions compiled hereinafter as part of this year’s GYIL Focus Section, one might tentatively formulate the following guidelines: Prior to potentially harmful cyber activities, States could be obliged to take all measures necessary to prevent misuse of the cyber infrastructure under their jurisdiction or their effective control. Moreover, they could be required to ensure that any perpe37 Patricia Birnie/Alan Boyle/Catherine Redgwell (eds.), International Law and the Environment (3rd ed. 2009), 149; Brunneé/Meshel (note 13), 134 et seq.; Benedikt Pirker, Territorial Sovereignty and Integrity and the Challenge of Cyberspace, in: Ziolkowski (ed.) (note 12), 189, 208; Dörr (note 13), 92 et seq. 38 Thilo Marauhn, Customary Rules of International Environmental Law: Can They Provide a Peacetime Regime For Cyberspace?, in: Ziolkowski (ed.) (note 12), 465, 472 et seq.; Matthias Herdegen, Possible Legal Framework and Regulatory Models for Cyberspace: Due Diligence Obligations and Institutional Models for Enhanced Inter-State Cooperation, GYIL 58 (2015), 169, 183 et seq.

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trator can be identified. This might encompass an obligation to build up specific institutional capacities. At the same time, for one, States can in any event be only obliged to do what is technically feasible in light of their respective abilities – ultra posse nemo obligatur – and besides, one must carefully balance any such oversight with legitimate privacy rights of individual internet users. During an ongoing cyber attack, considerations of due diligence might require that the State of origin and/or the transit States take all appropriate measures to stop these activities. In order not to jump from the frying pan into the fire, States should probably ensure that their responsive measures intrude as little as possible on the network communications process necessary to stop the attack. In the aftermath of a cyber attack, all States concerned, in particular the State of origin and possible transit States, could be required to take steps necessary to identify the source of the harmful activity and to prevent a repetition of similar future actions. Possible target States should in turn prepare their network infrastructure to ensure that the impact of an attack remains as limited as possible. Probably, States should in particular do all that is necessary to ensure resilience of their critical infrastructure and to prevent the possibility of negative repercussions on critical civil infrastructure, including electricity networks, water supplies, or nuclear power plants. Finally, due diligence might also require States to disclose intelligence concerning harmful acts against their cyber infrastructure, at least as long as national security interests are not compromised. Thereby, a State would enable other States to implement effective preventive measures before becoming the target of similar attacks. This might require establishing national points of contact facilitating the exchange of information between affected States. At the same time two important points warrant underlining: First, none of the principles introduced here should in any way impede the application of the prohibition of the use of force, the right to self-defence, the rules of international humanitarian law, if applicable, or the principles of State responsibility in case damaging activities can be attributed to a specific State. Second, whatever obligations States might have in preventing or minimising harm caused by cyber attacks, it should not be forgotten that cyberspace must remain a place where individual actors exercise their freedom, where economic activity can

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flourish, and where States can operate effectively. Responsible State practice adhering to due diligence could provide a durable and solid basis to ensure such a cyberspace.

IX. Structure and Content of the Focus Section It is in light of these considerations that the conveners of the conference, whose papers are published in this Focus Section, have requested the various authors to address some of the crucial, so far largely unanswered legal questions deriving from the applicability of this generally accepted, but very general concept of due diligence to ‘cyberspace’. More specifically, the opening piece by Christian Walter considers the “Obligations of States Before, During, and After a Cyber Security Incident” as they arise under general international law and notably the concept of due diligence.39 Oliver Dörr then specifically addresses possible “Obligations of the State of Origin of a Cyber Security Incident”,40 while August Reinisch and Markus Beham deal with and analyse the specific obligations of transit States in their contribution entitled “Mitigating Risks: Inter-State Due Diligence Obligations in Case of Harmful Cyber-Incidents and Malicious CyberActivity: Obligations of the Transit State”.41 In turn Robert Kolb reflects more generally on the concept of due diligence duties and their relevance concerning cyberspace from the standpoint of general international law,42 while Jutta Brunnée and Tamar Meshel then consider whether international environmental law, which also deals with an international common good, might serve as a blueprint for cyberspace governance.43 Last but not least, Matthias Herdegen considers the possible international legal framework as well as possible reg-

39

See Christian Walter, Obligations of States Before, During, and After a Cyber Security Incident, GYIL 58 (2015), 67. 40

See Dörr (note 13).

41

See August Reinisch/Markus Beham, Mitigating Risks: Inter-State Due Diligence Obligations in Case of Harmful Cyber-Incidents and Malicious Cyber-Activity: Obligations of the Transit State, GYIL 58 (2015), 101. 42

See Kolb (note 13).

43

Brunnée/Meshel (note 13).

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ulatory models for cyberspace, taking into account general due diligence obligations, but also institutional models for forms of enhanced inter-State cooperation in cyberspace.44

X. Outlook As with other areas of international law which have developed only during the last decades, such as international environmental law,45 only time will tell whether the international community of States will be able and willing to come up with specific and adequate rules of international law applicable to ‘cyberspace’. Yet, as mentioned before, this is nothing peculiar to cyberspace. Rather, one has previously seen similar developments in other areas, international environmental law being a particularly relevant example at hand, before specific treaty regimes were later established. Pending such a development, States and other actors can only rely on general, and thus necessarily relatively vague, rules of international law, such as the concept of due diligence, and attempt to apply them to human activities in cyberspace. It is for that reason that the various contributions to this Focus Section have concentrated on this very concept in considerable detail and from various perspectives. We hope that this year’s GYIL overall Focus Section, by documenting the outcome of the 2013 cyber conference held in Berlin and organised jointly by the two authors of this brief introduction, may contribute to foster and further develop a legal framework for a peaceful use of cyberspace in the interest of the overall international community.

44 45

Herdegen (note 38).

As to the possibility of transposing principles developed within international environmental law to cyberspace, see, apart from the contribution by Brunnée/Meshel in this very Focus Section (note 13), also Marauhn (note 38), 465 et seq.

Obligations of States Before, During, and After a Cyber Security Incident CHRISTIAN WALTER(

ABSTRACT: The article is based on the assumption that States and the principle of territoriality will continue to be decisive factors in international law in the digital age. On the basis of this assumption, the author inquires into possible principles and rules established in general international law which could be relied on in order to address cyber security incidents, i.e. inter-State conflicts relating to cyberspace which remain below the threshold of the notions of use of force or armed conflict. Relying mainly on principles established in international environmental law, it is argued that the principle of good neighbourliness is the most promising candidate for developing obligations of cooperation and assistance in dealing with malicious cyber activities. However, one crucial difference between hazardous activities relating to the environment and threats in cyberspace is spelled out: In contrast to activities with potential dangers for the environment, with regard to the internet it is impossible to distinguish ‘hazardous’ activities from nonhazardous activities. For this reason it is impossible to establish thresholds or activities in cyberspace which could serve as triggers for preventive obligations. As a consequence, the focus must be laid on obligations of cooperation and assistance during and after a cyber security incident, rather than at the preventive stage. KEYWORDS: Cyber Security, Good Neighbourliness, Corfu Channel Case, Burden of Proof, Prevention, Obligations of Cooperation

I. Introduction The internet presents many challenges to international law. Its virtual character is considered to put into question the principle of territoriality which in many areas is fundamental to international law as it currently stands. The rapidity of cyber activity requires swift and often coordinated if not collective action by more than one State. (

Professor for Public and Public International Law, Institute for International Law, LudwigMaximilians-University, Munich.

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Finally, private actors play an important role. This means, on the one side, that issues of State responsibility for private activities have to be addressed, and on the other, that human rights issues must be taken into account. All of this does not fit easily into the inter-State paradigm of mutual obligations between States. The following considerations thus necessarily are of a preliminary, explorative character.

II. General Assumptions A. Concerning the Role of States

A first general assumption relates to the role of States in regulating the internet. In contrast to some positions in literature, in the following the internet is not viewed as a legal space which is distinct from the territory of States and thus subject to its own, independent legal regime. The internet certainly has an important transnational dimension, but that does not mean that it is intrinsically transnational and cannot be made subject to regulations from individual States. Rather, the following considerations are based on a territorial approach according to which ‘the Internet’ is viewed as being – at least in most parts – covered by the authority of the State on whose territory a specific activity in question takes place, i.e. where a person physically conducts his or her malicious activity or where a server or computer on which the activity takes place is located.1 Specific problems may arise in the context of data which move frequently between different servers and different locations. Given the frequency and rapidity with which the location of data may be changed, the situation of such data has been described as a “loss of location”.2 However, these specific problems of ‘data in the cloud(s)’ may 1

Eneken Tikk, Ten Rules for Cyber Security, Survival: Global Politics and Strategy 53 (2011), 119, 121; Johann-Christoph Woltag, Computer Network Operations Below the Level of Armed Force, European Society of International Law (ESIL) Conference Paper No. 1/2011, 12, available via: http:// www.esil-sedi.eu/node/697 (accessed on 31 October 2015); Benedikt Pirker, Territorial Integrity and the Challenges of Cyberspace, in: Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace (2013), 189, 193 et seq. For a similar approach see Art. 22 (1)(a)–(c) Convention on Cybercrime, 23 November 2001, ETS No. 185 (Budapest Convention); specific problems of activities in internationalised territories such as the high seas are left aside, given their presumably small practical relevance. 2

Council of Europe, Economic Crime Division, Cloud Computing and Cybercrime Investigations: Territoriality vs. the Power of Disposal?, Discussion Paper, 31 August 2010, available at: rm.coe.int/

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require specific methods of inquiry and access, but they do not change the fundamental principle of territoriality.

B. Concerning the Term ‘Cyber Security Incident’

The term ‘cyber security incident’ is vague. It competes with other notions such as ‘cyber warfare’, ‘cyber terrorism’, ‘cyber conflict’, ‘cyber threat’, ‘cyber crime’, or ‘cyber attack’.3 Some of these terms go along with certain strategies to ensure cyber security:4 ‘Cyber crime’ suggests a criminal law approach, ‘cyber warfare’ obviously alludes to use of force and international humanitarian law, etc. ‘Cyber security incident’ may cover incidents as different as the distributed denial of service attack (DDoS) on the Estonian public computer system in 2007,5 the Stuxnet worm, which was apparently specifically designed for halting the Iranian nuclear programme,6 the hacking of computer systems of private companies for the purpose of industrial espionage and other cases of internet torts,7 hacktivist actions for the promotion of political ideas,8 etc. One could even include the military dimension under the label of ‘cyber security incident’. However, given that most malicious cyber activity does not reach the level of armed force, only incidents remaining below CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016802fa3df (accessed on 31 October 2015); see also Cybercrime Convention Committee (T-CY), (Draft) Elements of an Additional Protocol to the Budapest Convention on Cybercrime regarding transborder access to data, 9 April 2013, T-CY (2013)14, available at: https://www.coe.int/t/dghl/cooperation/economic crime/Source/Cybercrime/TCY/TCY%202013/T-CY%282013%2914transb_elements_protocol_ V2.pdf (accessed on 11 November 2015). 3 See, for an attempt to clarify the relationship of several competing notions, Oona A. Hathaway et al., The Law of Cyber-Attack, California Law Review 100 (2012), 817, 821–837. On the insufficiencies of a mere ‘cyber crime’ perspective see Eneken Tikk/Kadri Kaska/Liis Vihul, International Cyber Incidents: Legal Considerations (2010), 101–102. 4

See Jason Healey/Hannah Pitts, Applying International Environmental Legal Norms to Cyber Statecraft, I/S: Journal of Law and Policy for the Information Society 8 (2012), 356, 357. 5 Woltag (note 1), 3 et seq.; Mary Ellen O’Connell, Cyber Security without Cyber War, Journal of Conflict and Security Law 17 (2012), 187, 192–193. 6

Woltag (note 1), 7 et seq.; O’Connell (note 5), 194.

7

Holger P. Hestermeyer, Transboundary Harm: Internet Torts, in: Rebecca M. Bratspies/Russell A. Miller (eds.), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2006), 268. 8

See Tikk/Kaska/Vihul (note 3), 31–32.

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the thresholds of ‘use of force’ within the meaning of Article 2 (4) Charter of the United Nations (UN Charter)9 and ‘armed conflicts’ covered by international humanitarian law will be addressed. In order to further clarify the notion of ‘cyber security incident’, it is helpful to look at the Convention on Cybercrime (Budapest Convention).10

C. The CoE Convention on Cybercrime (Budapest Convention)

A few words concerning the Budapest Convention are in place by way of introduction: The Convention is the most comprehensive binding international document relating to cyber security.11 Currently the Budapest Convention has 47 parties, among them several States who are not members of the Council of Europe (USA, Japan, Australia, and the Dominican Republic). There are further non-European signatories which have not yet ratified the Convention (Canada and South Africa). The Convention follows a criminal law approach and seeks to harmonise national laws by defining certain computer-related offences and setting minimum standards for the methods of their investigation and concerning the cooperation between States.12 The definition covers offences against the confidentiality, integrity, and availability of computer-related data and systems (Articles 2–6 Budapest Convention), computerrelated offences (forgery and fraud, Articles 7 and 8 Budapest Convention), contentrelated offences (child pornography, Article 9 Budapest Convention), and finally offences relating to infringements of copyright and related rights (Article 10 Budapest Convention).

9

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

10

See supra, note 1. For a recent account of the Convention see Sophie Kwasny, Lutte contre la cybercriminalité et respect des droits de l’homme: Les instruments du Conseil de l’Europe, in: Société Francaise Pour le Droit International (ed.), Internet et le droit international: Colloque de Rouen (2014), 339. 11

See e.g. Paul Rosenzweig, International Law and Private Actor Active Cyber Defensive Measures, Stanford Journal of International Law 50 (2014), 103, 108; Hathaway et al. (note 3), 862. 12 For an analysis see Michael A. Vatis, The Council of Europe Convention on Cyber Crime, in: National Research Council (ed.), Proceedings of a Workshop on Deterring Cyber-Attacks: Informing Strategies and Developing Options for U.S. Policy (2010), 207; Robert Uerpmann-Wittzack, Internetvölkerrecht, Archiv des Völkerrechts 47 (2009), 261, 269–270.

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Due to its criminal law approach, the Budapest Convention includes issues which are not related to inter-State security or to obligations incumbent upon States to ensure that their territories are not used for purposes which are harmful to other States. A more limited approach is therefore warranted for the purposes of this contribution. Accordingly, I propose to limit the notion of ‘cyber security incident’ to those crimes which relate to the confidentiality, integrity, and availability of computer data and systems. A cyber security incident thus occurs whenever computers or computer systems are illegally accessed or destroyed or when data are illegally intercepted, deleted, or altered.

III. General Obligations of Prevention The first phase of possible obligations relates to the situation prior to a cyber security incident. In this phase obligations of prevention are of interest. These aspects will be dealt with first (III.). In a second step obligations of cooperation and information will be dealt with (IV.). These obligations are mostly relevant during or after a cyber security incident has occurred.

A. Principle of Non-Intervention

The most fundamental principle applicable is the principle of non-intervention. According to the International Court of Justice (ICJ) it is “part and parcel of customary international law”.13 When a State uses the internet in order to destabilise another country, this constitutes a violation of the principle of non-intervention. Similarly, cyber-based activities of organs of one State on computers situated in another country or relating to parts of the web situated in another country would infringe upon the latter country’s sovereignty. In this area, issues such as attribution, standards of proof, etc. are more important than the substantive law, which is quite clear. In that regard, it is necessary to distinguish between computers and computer systems belonging to the government and 13

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, para. 202.

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computers and computer systems owned and operated by private individuals or companies. Computers belonging to the government may be presumed to be controlled by the government. Ideas for distributing responsibility under such circumstances may be borrowed from the jurisprudence and practice of human rights bodies regarding persons who are in complete control of State agents. The European Court of Human Rights, for instance, argues as follows: Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.14

The factor of exclusive control was also taken into consideration by the ICJ in developing its standard of proof in the Corfu Channel case: […] the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.15

Activities on computers owned by the government are “within the exclusive knowledge of the authorities.” Hence, the following assumption may be made: Where a malicious cyber activity creating a cyber security incident can be traced back to a government computer or computer system, the activity may be attributed to the government, unless it provides a satisfactory and convincing explanation that the system was externally used (i.e. has been hacked by someone else).16

14 European Court of Human Rights (ECtHR), Salman v. Turkey, Judgment of 27 June 2000, RJD 2000-VII, 365, para. 100; see also id., Mehmet Emin Yüksel v. Turkey, Appl. No. 40154/98, Judgment of 20 July 2004, para. 25; id., Selmouni v. France, Judgment of 28 July 1999, RJD 1999-V, 149, para. 87. 15 ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4, 18. 16

For similar considerations see Wolf Heintschel von Heinegg, Territorial Sovereignty and Neutrality in Cyberspace, International Law Studies 89 (2013), 123, 137.

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By contrast, activities emanating from private computers can only be attributed to the government on the basis of the general principle laid down in Article 8 Articles on State Responsibility.17 Hence, it is necessary to establish that the activity in question was executed “on the instructions of, or under the direction or control of, that State in carrying out the conduct.” Usually it will be impossible to meet this standard.18 It is therefore necessary to ask whether there are further obligations of control or prevention which include activities of private actors.

B. No-Harm Principle

In the Corfu Channel case the ICJ assumed a general duty to prevent harm. The Court ruled on a general principle to prevent harm as one of the bases for an Albanian duty to warn the British government: “[…] every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”19 The general principle has been developed in more detail in the area of international environmental law where good neighbourliness and a duty to prevent harm are considered to be part of customary law.20 The main sources for this principle are the famous Trail Smelter arbitration21 and Principle 21 Stockholm Declaration/Principle 2 Rio Declaration.22 17

International Law Commission (ILC), Draft Articles on Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 18 Cf. also Terry D. Gill, Non-Intervention in the Cyber Context, in: Ziolkowski (ed.) (note 1), 217, 226–228 and Pirker (note 1), 210–212. 19

ICJ, Corfu Channel (note 15), 22.

20

Id., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 29; see also Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd ed. 2009), 137 et seq.; Philippe Sands/Jacqueline Peel, Principles of International Environmental Law (3rd ed. 2012), 196. 21

Trail Smelter Case (United States, Canada), Arbitral Award of 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards (RIAA) III, 1905; for an overall assessment see the various contributions in Bratspies/Miller (eds.) (note 7). 22 The Stockholm Declaration’s wording: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”, Stockholm Declaration of the United Nations Conference

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These principles allow for the inclusion of harm caused by private actors.23 In the Corfu Channel case mere knowledge by the Albanian authorities of the danger was sufficient, and in the Trail Smelter case the pollution emanated from a private plant. Thus, the principles of good neighbourliness and the duty to prevent harm extend the responsibility of States for private action beyond the strict criteria of Article 8 Articles on State Responsibility. To put the issue more generally: Responsibility of States for private action is not only caused by criteria of attribution, i.e. within the law of State responsibility, but also by the character of the primary obligations of States. Obligations of control and surveillance entail an indirect responsibility for private action if they are not respected. This reflects that there is an interaction in the law of State responsibility between the issue of attribution on the one side and the scope of the obligation of the State on the other.24 In terms of the practical outcome, obligations of surveillance and control may thus constitute a substitute for the attribution of private action to a State. The consequences which flow from the overall responsibility of States for harmful activities on their territory are, however, mitigated to some extent by additional criteria. First, the Corfu Channel formula requires “knowledge” on part of the State concerned. While the ICJ could operate with certain assumptions regarding the overall control of the territorial waters,25 such an overall control certainly cannot be assumed with respect to any cyber activity on the territory of a given State.26 Hence, the requirement of “knowledge” of the harmful activity will only be met in rare cases.

on the Human Environment, UN Doc. A/CONF.48/14 (1972), 3–5; Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992), Annex I. 23 See Christian Tomuschat, International Liability for Injurious Consequences Arising out of Acts not Prohibited by International Law: The Work of the International Law Commission, in: Francesco Francioni/Tullio Scovazzi (eds.), International Responsibility for Environmental Harm (1991), 37, 44 et seq., where the reasons for an overarching approach including public and private actors are spelled out in general terms and beyond the ILC work on transboundary harm. 24 See generally in this regard, Mark A. Drumbl, Trail Smelter and the International Law Commission’s Work on State Responsibility for Internationally Wrongful Acts and State Liability, in: Bratspies/ Miller (eds.) (note 7), 86 et seq. 25

ICJ, Corfu Channel (note 15), 18 et seq.

26

Cf. Pirker (note 1), 204 et seq., also discussing some alternative conceptions.

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Secondly, the Trail Smelter principle27 has originally been restricted in its scope by the requirement of “serious consequence” being established by “clear and convincing evidence”. It does not seem to be excluded, however, that these criteria are met in the context of cyber security incidents. For example, it has been argued that the DDoS attack on Estonia in 2007 constituted a case of “serious consequence”.28 Irrespective of that it is today mostly recognised that international environmental law has developed beyond the Trail Smelter requirements.29 Thus, the no-harm rule as it currently stands in customary international law only requires a certain de minimis threshold to be fulfilled30 and the precautionary principle may be considered to have alleviated the strict Trail Smelter standard of proof.31 Finally, the Trail Smelter principle is further mitigated by the requirement of due diligence.32 Today “there is a clear consensus that although the no-harm principle does not say so explicitly, a State can only breach the principle if it fails to act with due diligence.”33 According to the ILC in its Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (Draft Articles on Prevention of Transboundary Harm) both the magnitude and the probability of harm are to be taken 27 For further elaboration on this see Russell A. Miller, Trail Smelter Arbitration, Max Planck Encyclopedia of Public International Law (MPEPIL), May 2007, available via: http://www.mpepil.com (accessed on 8 June 2015); August Reinisch/Markus Beham, Mitigating Risks: Inter-State Due Diligence Obligations in Case of Harmful Cyber-Incidents and Malicious Cyber-Activity: Obligations of the Transit State, German Yearbook of International Law 58 (2015), 101, 104–107. 28

Healey/Pitts (note 4), 378 et seq.

29

Cf. Principle 2 Rio Declaration (“the responsibility to ensure that activities within [the States’] jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”); ICJ, Nuclear Weapons (note 20), para. 29 (“general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control”) and id., Case Concerning the Gabčikovo-Nagymaros Project (Hungary/ Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 53; see also Birnie/Boyle/Redgwell (note 20), 137 et seq.; Sands/Peel (note 20), 196–199. 30

See for a discussion Günther Handl, Trail Smelter in Contemporary International Environmental Law: Its Relevance in the Nuclear Energy Context, in: Bratspies/Miller (eds.) (note 7), 125, 129. 31

Cf. id., 133.

32

Ulrich Beyerlin/Thilo Marauhn, International Environmental Law (2011), 42 et seq.

33

Timo Koivurova, Due Diligence, MPEPIL, February 2010, para. 15, available via: http://www. mpepil.com (accessed on 8 June 2015). See also Pierre-Marie Dupuy/Cristina Hoss, Trail Smelter and Terrorism: International Mechanisms to Combat Transboundary Harm, in: Bratspies/Miller (eds.) (note 7), 225, 228–231.

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into consideration.34 Further minimum requirements are foreseeability for the State concerned and respect of the best scientific knowledge.35 If these due diligence requirements are taken into consideration, it must be questioned whether one can expect a significant contribution of the no-harm rule to the prevention of cyber security incidents.36 While it may be worthwhile to explore the technological possibilities of prevention to some extent, it cannot be overlooked that a preventive surveillance of all cyber activities neither seems to be a technical possibility nor would it meet human rights standards of freedom of expression and communication. Hence, preventive action by States is both factually and legally considerably limited.

C. Precautionary Principle

A similar scepticism relates to the precautionary principle, which would be the most obvious candidate for imposing preventive action. Indeed, the precautionary

34 See the commentary to Art. 3 Draft Articles on Prevention of Transboundary Harm, para. 11: “The standard of due diligence against which the conduct of the State of origin should be examined is that which is generally considered to be appropriate and proportional to the degree of risk of transboundary harm in the particular instance. For example, activities which may be considered ultrahazardous require a much higher standard of care in designing policies and a much higher degree of vigour on the part of the State to enforce them. Issues such as the size of the operation; its location, special climate conditions, materials used in the activity, and whether the conclusions drawn from the application of these factors in a specific case are reasonable, are among the factors to be considered in determining the due diligence requirement in each instance. What would be considered a reasonable standard of care or due diligence may change with time; what might be considered an appropriate and reasonable procedure, standard or rule at one point in time may not be considered as such at some point in the future. Hence, due diligence in ensuring safety requires a State to keep abreast of technological changes and scientific developments” (ILC, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries (2001), Report on the Work of its 53rd Session, UN Doc. A/56/10 (2001), 377); see also the definition of “risk of causing significant transboundary harm“ in Art. 2 Draft Articles on Prevention of Transboundary Harm: “The definition refers to two types of activities under these articles. One is where there is a low probability of causing disastrous harm. This is normally the characteristic of ultrahazardous activities. The other one is where there is a high probability of causing significant harm. This includes activities which have a high probability of causing harm which, while not disastrous, is still significant. But it would exclude activities where there is a very low probability of causing significant transboundary harm.” (ibid., commentary para. 3). 35 36

Beyerlin/Marauhn (note 32), 43.

For a discussion of the due diligence standard’s applicability in cyberspace regulation (with reference to the ‘duty of prevention’) see also Pirker (note 1), 206–209.

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principle has assumed a prominent place in modern international law.37 Although its legal basis in customary law is still being questioned,38 there are clear indications to the contrary, notably regarding environmental impact assessments. The requirement to undertake an environmental impact assessment has been considered to be rooted in customary international law by several international decisions. The most prominent among them is the Pulp Mills case of the ICJ where the Court held that […] it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context […].39

Similar approaches were taken by arbitral tribunals in the Iron Rhine Arbitration40 and the Indus Waters Project.41 It may therefore be assumed that at least in form of an environmental impact assessment the precautionary principle has entered general international law.

37

Jonathan B. Wiener, Precaution, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), Oxford Handbook on International Environmental Law (2007), 597, 599. 38

See Thilo Marauhn, Customary Rules of International Environmental Law: Can they Provide Guidance for Developing a Peacetime Regime for Cyberspace?, in: Ziolkowski (ed.) (note 1), 465, 474– 476, taking a critical stance on the precautionary principle’s prospects for application in cyber contexts. 39

ICJ, Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, para. 204. 40

Arbitration Regarding the Iron Rhine (‘Ijzeren Rijn’) Railway (Belgium, The Netherlands), Arbitral Award of 24 May 2005, RIAA XXVII, para. 59: “Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm (see paragraph 222). This duty, in the opinion of the Tribunal, has now become a principle of general international law”. 41 The Indus Waters Kishenganga Arbitration (Pakistan, India), Partial Award of 18 February 2013, paras. 449 et seq., available at: http://www.pca-cpa.org/PK-IN%2020130218%20Partial%20Award 18ba.pdf?fil_id=2101 (accessed on 11 November 2015): “There is no doubt that States are required under contemporary customary international law to take environmental protection into consideration when planning and developing projects that may cause injury to a bordering State. Since the time of Trail Smelter, a series of international conventions, declarations and judicial and arbitral decisions have addressed the need to manage natural resources in a sustainable manner. In particular, the International Court of Justice expounded upon the principle of ‘sustainable development’ in Gabčíkovo-Nagymaros, referring to the ‘need to reconcile economic development with protection of the environment.’ Applied to large-scale construction projects, the principle of sustainable development translates, as the International Court of Justice recently put it in Pulp Mills, into ‘a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource’” (footnotes omitted).

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Could one transfer the concept into the cyber world in form of a ‘cyber impact assessment’ requirement?42 There are strong arguments against such a transposition. A starting point is that the environmental impact assessment relates to large industrial projects, which are considered to go along with specific risks for the environment. The possible sources of cyber security incidents cannot be narrowed down according to the scale of the activity. Each and every single computer, notebook, tablet, or smartphone could be the source of a cyber security incident. Hence, preventive cyber impact assessment would practically have to cover all activities in the internet. This would be incompatible with requirements of freedom of expression and communication and thus certainly go beyond what could be seen as part of general international law.

D. Summary Regarding Prevention

In sum, the preventive obligations of States in the absence of concrete cyber security incidents remain rather limited. It is impossible to postulate a general obligation to preventively monitor cyber activities which are linked to the territory of a given State. Therefore, preventive obligations are basically limited to a prohibition to actively engage in malicious cyber activity and to respect due diligence standards regarding computers and systems which are under the control of the State.

IV. Procedural Obligations of Cooperation and Information (During and After a Cyber Security Incident) Does that situation change during or after a cyber security incident?

A. Good Neighbourliness as a General Source

This article has already referred to the principle of good neighbourliness as a general source of cooperation and information. Indeed, Article 74 UN Charter codi42

On the transferability of international environmental law rules to cyberspace activities see generally Marauhn (note 38), 481–482.

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fies the principle of good neighbourliness regarding all matters of social, economic, and commercial matters. Based on the ICJ’s decision in the Haya de la Torre case,43 the legal character of the principle of good neighbourliness is sometimes questioned.44 The better view, however, rests its analysis on the frequent reference to the principle in many international treaties and concludes on a ‘hard-law content’ of the principle.45 Irrespective of its hard law content, two problems remain when the concept of good neighbourliness is to be applied in the context of cyber security. The first relates to geographic proximity and the second to concrete obligations to be derived from the concept. Usually a certain geographic proximity of the States is required when the principle of good neighbourliness is invoked. It should be noted, however, that the United Nations General Assembly, already in 1991 and outside the context of the world wide web, extended the notion of good neighbourliness to all States of the international community “whether or not they are contiguous”.46 Even if this approach is considered too far-reaching in the general context of all inter-State relations, a good point for universal neighbourliness may be made as far as relations through the internet are concerned. Effects of cyber activities are not limited to adjacent States but can be produced anywhere. Therefore, looked at from the perspective of its purpose, i.e. the obligations to duly take into account possible adverse effects on a neighbouring country, transferring the principle of good neighbourliness to the world wide web leads to its application in all inter-State relations, irrespective of the geographical location of the States concerned. As far as concrete obligations under the principle of good neighbourliness are concerned, it is again international environmental law which provides for the best comparison. The most broadly accepted obligation concerns an obligation of information in case of emergency. Apart from that, there exist also general obligations of information, consultation, and notification in the absence of emergency situations. 43

ICJ, Haya de la Torre (Colombia v. Peru), Judgment of 13 June 1951, ICJ Reports 1951, 71.

44

See e.g. Leland M. Goodrich/Edvard Hambro/Anne Patricia Simons, Charter of the United Nations: Commentary and Documents (3rd ed. 1969), 463. 45 Laurence Boisson de Chazournes/Danio Campanelli, Neighbour States, MPEPIL, December 2006, para. 20, available via: http://www.mpepil.com (accessed on 8 June 2015); Ulrich Fastenrath, Article 74, in: Bruno Simma et al. (eds.), UN Charter Commentary (3rd ed. 2012), 1840, MN 2. 46

GA Res. 46/92 of 9 December 1991.

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B. Emergency Information

There is a clear customary duty to inform in cases of emergency. Evidence of this duty is – again – the Corfu Channel case where the ICJ considered Albania under an obligation to warn the British warship of the mines, similar obligations of warning are contained in a number of treaties relating to the environment.47 One may also point to duties of information concerning infections “in the real world”. Article 6 World Health Organization (WHO) International Health Regulations48 requires States to notify WHO, by the most efficient means of communication available, by way of the National IHR [International Health Regulations] Focal Point, and within 24 hours of assessment of public health information, of all events which may constitute a public health emergency of international concern within its territory […] as well as any health measure implemented in response to those events.

Thus, in order to effectively combat their negative effects, virtual and real viruses may be treated alike. Given the rapid connections via the internet, this information duty in cases of emergency may seem of limited value. On the other hand, one of the last epidemic attacks, the so-called conficker worm which primarily attacked Microsoft Windows operating systems, lasted over a period from 2008 to 2010, infecting among other institutions the German Bundeswehr, the French Navy, and the Greater Manchester Police.49 During such a prolonged period, warning not only by the public concerned but also by States may help limiting the consequences.

C. Information, Consultation, and Notification Beyond Emergency Situations

Obligations from the principle of good neighbourliness which relate to activities involving a risk of harm are not limited to the ex ante situation, i.e. before the activity 47

For detailed references see Birnie/Boyle/Redgwell (note 20), 182 et seq.

48

Cf. Arts. 6 and 7 WHO International Health Regulations (2nd ed. 2005), WHA Doc. WHA 58.3, available at: http://whqlibdoc.who.int/publications/2008/9789241580410_eng.pdf (accessed on 8 June 2015). For an analysis see Sara E. Davies, Is There an International Duty to Protect Persons in the Event of an Epidemic?, Global Health Governance (2010), available via: http://www.ghgj.org (accessed on 8 June 2015). 49

For more information on this worm see e.g. http://en.wikipedia.org/wiki/Conficker (accessed on 11 November 2015).

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is started. This is explicitly spelled out in the ILC Draft Articles on Prevention of Transboundary Harm.50 Article 12 Draft Articles on Prevention of Transboundary Harm contains a continuous obligation to exchange information.51 It would seem strange indeed if the obligations concerning information and consultation concerning environmental protection were to end once the project has started. Seen from this perspective, the continued duty to consult and inform once a project has started is basically a prolongation of the precautionary approach which creates obligations of prevention. Against this background one might be tempted to assume that – when transposed to the issue of cyber security incidents – a continued duty to consult and to inform encounters the same problems which have been highlighted concerning preventive action. However, there is an important factual difference which leads to a different analysis: At the preventive stage, i.e. prior to a concrete cyber security incident, it is not possible to limit the obligations to specific activities which may be considered particularly dangerous. By contrast, during or after a cyber security incident it is not unlikely that the State or States where the incident occurred or caused harmful consequences are able to narrow down possible sources and to give information on them. Under such circumstances the duty to provide information and to consult acquires a new and sufficiently specific content. Instead of being related to potentially all activities in the world wide web emanating from a specific country, the duty relates to activities which have proved harmful and thus present characteristics which allow them to be distinguished from other harmless activities. Under such circumstances it seems appropriate to assume a duty of cooperation on the part of the State where the activity allegedly emanated from and to oblige this State to share any information on the matter which is available to its authorities. In other words: While under the principle of good neighbourliness in the real world the size of a certain activity and the risks attached to it trigger general obligations of cooperation, in the cyber world it is the occurrence of a specific cyber security incident which triggers specific obligations of cooperation.

50 51

See supra, note 34.

“While the activity is being carried out, the States concerned shall exchange in a timely manner all available information concerning that activity relevant to preventing significant transboundary harm or at any event minimizing the risk thereof. Such an exchange of information shall continue until such time as the States concerned consider it appropriate even after the activity is terminated”.

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In this context the question arises whether a certain standard of probability must be shown by the requesting State. The standard is not easy to circumscribe. It is certainly not enough if the source of the malicious activity is merely asserted. On the other hand, demanding full proof would most probably be a standard which is difficult to meet. While it is true that the ICJ in the Oil Platforms case demanded full proof by the United States (US) that the missile attack against their vessels constituted an armed attack by Iran on the US, which claimed to have reacted in selfdefence,52 there is a decisive difference in the situation addressed here: The Oil Platforms case was about the justification of an otherwise unlawful use of force against another State. In the current context obligations of investigation and information are at issue. In other words: We are not talking about the legality of cross-border activity by one State against another, but about obligations of a State arising out of a specific situation over which it has at least territorial control. On the basis of the Corfu Channel case the standard of proof is lower: By reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.53

D. Cooperation in Investigation and Prosecution

Another issue concerns obligations of investigation and prosecution. In order to be clear on the previous point of information and cooperation: The obligation to share information can only relate to information which is already available to the authorities. A certainly more far-reaching obligation would concern investigation and collection of information which is not yet available. It is to this point that I now want to turn.

52

ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, ICJ Reports 2003, 161, paras. 57 et seq. 53

See id., Corfu Channel (note 15), 18.

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1. The General Framework for International Criminal Cooperation Under the general framework for international criminal cooperation there are only very limited generally applicable rules. Although the field is moving fast towards closer cooperation,54 in the absence of specific treaty provisions mutual assistance in international criminal law is still dominated by traditional views on sovereignty which give the requested State broad discretion in whether at all, and if so under which conditions, it will meet a request for assistance. The main tools which exist within the framework of international criminal cooperation concern requests for extradition and mutual assistance in other matters of criminal investigation, such as witnesses, evidence, etc. Regarding both institutions there are no general, but only specific obligations concerning either certain crimes (i.e. the application of the aut dedere aut iudicare principle to acts of terrorism) or the respective obligations are contained in specific treaties on mutual cooperation in criminal matters.

2. Obligations Contained in the Budapest Convention The most elaborate treaty relating to international criminal cooperation concerning crimes related to cyberspace is, again, the Budapest Convention. Apart from defining cyber crime offences, the Convention requires its parties to enact certain investigative procedures for the inquiry into cyber crimes: expedited preservation of stored computer data (Article 16 Budapest Convention), preservation and disclosure of traffic data (Article 17 Budapest Convention), search and seizure of stored computer data (Article 19 Budapest Convention), real-time collection of traffic data (Article 20 Budapest Convention), and, finally, the interception of content data (Article 21 Budapest Convention). In its third part the Convention deals with international cooperation in the areas of extradition, mutual assistance, and establishment of permanent points of contact (Articles 23–35 Budapest Convention). These provisions explicitly take up obliga54

Tim René Salomon, Mutual Legal Assistance in Criminal Matters, MPEPIL, January 2013, paras. 36 et seq., available via: http://www.mpepil.com (accessed on 8 June 2015).

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tions which are contained in general treaties on extradition or mutual assistance and extend existing general obligations to cyber crimes as defined under the Budapest Convention (Article 24 (2) Budapest Convention and, with certain limits, Article 25 (4) Budapest Convention concerning mutual assistance). According to the working definition of cyber security incidents given above, every cyber security incident automatically constitutes a cyber crime under the Convention. Hence the procedural obligations of the Convention apply as far as States parties of the Budapest Convention are concerned. Given the fact that the focus of this analysis rests on general international law, the obligations under the Budapest Convention will, however, not be looked into in more detail.

3. Transposing Obligations of Investigation Developed in International Human Rights Adjudication Another area of inspiration for obligations to investigate may be found in the jurisprudence of international human rights bodies relating to positive obligations of States in case of human rights violations. There is a clear and – it seems – widely accepted obligation to investigate in two groups of cases. The first has already been dealt with in the context of a reversal of the burden of proof, namely situations of complete control by the State (i.e. prisons and other institutions for detaining persons). On the basis of this jurisprudence it may be argued that an obligation to investigate arises where malicious cyber activity can be traced back to a computer or computer system controlled by another State. At first sight one might object that the situations of an individual human rights claim on the one side and inter-State obligations on the other are not compatible. There is, however, a common denominator which is the exclusive control of the State. In that regard, the two situations do not differ decisively. Hence, obligations of investigation may be assumed concerning computers and computer systems under the control of the government.

4. Transborder Access to Data The issue of transborder access to data has gained a lot of public attention in recent days. The Budapest Convention left the issue deliberately open. Article 32 Budapest

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Convention only regulates the easy cases of data which is publicly available (lit. a) and consent by the person who has the lawful authority to disclose the data (lit. b). One might be tempted to conclude that the express regulation of only these two instances e contrario precludes any other transborder access to data. However, the explanatory report excludes this argument by referring to Article 39 Budapest Convention according to which other obligations are neither created nor precluded.55 The issue of transborder access to data is currently being discussed in the context of a possible Additional Protocol to the Budapest Convention. If my reading of the papers which are publicly available56 is correct, there are a number of different proposals on the table. Discussing them would probably require a paper on its own. For that reason I do not want to go into details of transborder access to data. I will limit my comments on this issue to one single point: If the analysis above is correct that under certain circumstances obligations of information and even of investigation may arise out of specific cyber security incidents, the argument may be made that transborder access to data may be justified as a countermeasure if a State does not meet its obligations of investigation (and the other conditions for lawful countermeasures are met).

V. Overall Assessment To conclude, the legal obligations of States before, during, and after a cyber security incident can be summarised in two final points: 1. All States are cyber neighbours. Therefore, in general international law the principle of good neighbourliness is the most promising candidate for developing obligations of cooperation and assistance in dealing with malicious cyber activities. The most important challenge consists in the fact that it is impossible to distin55

Council of Europe, Explanatory Report to the Convention on Cybercrime, para. 293, available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0 9000016800cce5b (accessed on 6 November 2015). See also T-CY, T-CY Guidance Note # 3: Transborder Access to Data (Article 32), 5 November 2013, T-CY (2013)7 E, available at: https://rm.coe. int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016802e726a (accessed on 11 November 2015). 56

T-CY, (Draft) Elements of an Additional Protocol to the Budapest Convention on Cybercrime regarding transborder access to data (note 2).

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guish ‘hazardous’ cyber activities to which preventive obligations could be attached from other (less dangerous) activities where prevention is not desirable. 2. As a consequence of this specific characteristic of cyber activities the focus must be laid on obligations of cooperation during and after a cyber security incident, rather than at the preventive stage.

Obligations of the State of Origin of a Cyber Security Incident OLIVER DÖRR(

ABSTRACT: Cyber-security incidents do not as such produce any new obligations for the State of origin under international law, its obligations rather result from rules of general international law. Based on the protection of integrity and sovereignty of States, they comprise obligations to refrain, to prevent, and to co-operate, in order to avoid transboundary harm to other States. The obligation to prevent such harm is a general obligation of due diligence and, as such, provides a flexible regulatory framework to define substantive and procedural duties of conduct and to accommodate the public and private interests involved. KEYWORDS: Budapest Convention, State Sovereignty, Corfu Channel Principle, Obligation to Prevent Harm, Due Diligence Standard, Duty to Co-Operate

I. Introduction Under general international law three kinds of behaviour can be required from a State on whose territory incidents occur which may have a damaging effect on other States: to refrain from the incident, to prevent the incident, and to co-operate with other States in order to control the effects of the incident. If it fails to fulfil any of these obligations, the State of origin may on a secondary level be liable to make reparation for any damage sustained. But before we can try to develop those obligations any further, we need to take a look at the object which they are supposed to have in our context, i.e. at the kind of incidents we are talking about here.

(

Professor for Public Law, International, European, and Comparative Law, European Legal Studies Institute, University of Osnabrück.

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II. The Indicatory Function of the Budapest Convention We all seem to agree that, as international law stands today, there are no binding instruments which deal specifically with cyber security incidents and which would entail inter-State obligations on prevention, information, and co-operation. The Budapest Convention on Cybercrime (Budapest Convention)1 seeks to harmonise national criminal laws, thus refers to the situation after the fact and not, at least not directly, on ‘mitigating the risks’ of cyber incidents. Still, the Convention does have some impact on our subject: It is so far binding upon 47 States (as of 1 October 2015), among them important States, such as the United States of America, Canada, Japan, Australia, the United Kingdom, France, and Germany. Those States express through the Convention that combating cybercrime and the interference with computer systems is an issue for co-operation between States, and thus something the international community should be concerned about. And recent State practice seems to confirm that since States are regularly complaining about their computer systems being hacked or damaged from another State’s territory, and at least some of those statements refer in this respect to an illegal act, thus implying that international law has, or at least should have, something to say on incidents of that kind. Furthermore, the Budapest Convention defines in its Articles 2 to 6 certain forms of interference with computer systems which the States parties are supposed to make criminal offences under their national law. By doing so, the Convention implies that those incidents are considered unacceptable for the international community and should, therefore, be prohibited by law. Since this agreement is contained in an international treaty, we might take it as the seed of an opinio iuris to the effect that the interferences concerned, if caught by a norm of international law, are examples of internationally illegal behaviour. In other words, the categories outlined in the Convention may help to define the scope of international duties of behaviour with regard to computer systems in other States, even if the Convention does not itself contain such duties. Thus, if a rule of international law could be identified to require such behaviour by States, we may safely assume that it encompassed acts like the illegal access to computer systems, the technical interception of non-public transmission of computer data, the damaging, deletion, deterioration, alteration, or suppression of 1

Budapest Convention on Cybercrime, 23 November 2001, ETS No. 185 (Budapest Convention).

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computer data, and the serious hindering of the functioning of a computer system. These are grosso modo the kinds of acts that our topic summarises as ‘cyber security incidents’. Moreover, the common understandings agreed by the Cybercrime Convention Committee (T-CY), set up under Article 46 Budapest Convention, although they necessarily reflect the provisions of the Convention, may with all due care serve as indications on how specific terms and concepts could be understood under general international law. This is also due to the fact that, apart from delegations of the contracting parties, the Committee includes representatives from other States and international organisations.2 The guiding function of the Committee’s work could, for instance, apply to the notion of ‘computer system’, defined in Article 1 (a) Budapest Convention, which the T-CY Guidance Note #1 (2012) clarified by discussing some examples of covered devices, or to the forms of malware which the Committee specified in its Guidance Note #7 (2013).3 However, the above categorisation can only become effective under general international law if the latter does indeed contain ‘carrier obligations’ for States with regard to foreign computer systems. Since State practice so far has not produced specific instruments or obligations with regard to cyber security incidents, we need to refer to general obligations of States under international law and try to apply them to those incidents. Three points can be made in this respect.

III. Obligation to Refrain from Computer Attacks The fundamental obligation for States is, of course, to refrain themselves from interfering with computer systems of another State or situated in another State’s territory. Some authors refer to the well-known principle of non-intervention in

2

Cf. Art. 3.3 T-CY Rules of Procedure, 3 December 2013, T-CY (2013)25 rev, available at: https:// rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900 0016802e7278 (accessed on 6 October, 2014). 3

All T-CY Guidance Notes are available via: http://www.coe.int/en/web/cybercrime/guidancenotes (accessed on 6 October 2014).

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order to specify this obligation.4 Based on the terminology used by the International Court of Justice (ICJ) in the Nicaragua case,5 I would in this respect prefer to simply apply the principle of State sovereignty, which is involved whenever a State willingly produces adverse effects of a certain gravity in another State’s territory. Just as this principle was violated by the laying of mines in the Nicaragua case, it is by manipulating computer devices in another State’s sovereign realm. As opposed to that, the principle of non-intervention applies in the Court’s view only when a State uses methods of coercion against another with respect to matters which are in the domaine réservé of that other State.6 Thus, it seems that interferences which simply, by vis absoluta, produce certain effects in another State’s territory would not easily fit under this concept of intervention. They constitute a different form of violation of State sovereignty. The gravest forms of such violation, if attributable to a State and if resulting in physical harm of a certain scale and effects in another State’s territory, may be considered acts of force, or even armed attacks giving rise to the right of self-defence.7 But, as the focus of this conference is on incidents below that threshold, the various problems raised by the concepts of the use of force and self-defence in this respect are left aside here.

4 Cf. e.g. Christian Walter, Obligations of States Before, During, and After a Cyber Security Incident, German Yearbook of International Law 58 (2015), 67; id., Cyber Security als Herausforderung für das Völkerrecht, Juristenzeitung 70 (2015), 685, 687. 5 International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, paras. 212–213. 6 7

Ibid., para. 205.

Cf. e.g. Albrecht Randelzhofer/Georg Nolte, Article 51, in: Bruno Simma et al. (eds.), The Charter of the United Nations (3rd ed. 2012), 43; Michael N. Schmitt, Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, Columbia Journal of Transnational Law 37 (1999), 885, 914–915; Torsten Stein/Thilo Marauhn, Völkerrechtliche Aspekte von Informationsoperationen, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 60 (2000), 1, 7; Daniel B. Silver, Computer Network Attack As a Use of Force Under Article 2(4) of the United Nations Charter, International Law Studies (ILS) 76 (2002), 73, 92 et seq.; Yoram Dinstein, Computer Network Attacks and Self-Defence, ILS 76 (2002), 99, 103; Katharina Ziolkowski, Computer Network Operations and the Law of Armed Conflict, Military Law and the Law of War Review 49 (2010), 47, 68–75; Russel Buchan, Cyber Attacks: Unlawful Uses of Force or Prohibited Interventions?, Journal of Conflict & Security Law 17 (2012), 211, 217–221; Christian Schaller, Internationale Sicherheit und Völkerrecht im Cyberspace, Stiftung Wissenschaft und Politik-Studien 2014/S 18 (2014), 16–17.

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IV. Obligation to Prevent Computer Attacks The main obligation of the State from whose territory cyber attacks originate, is, of course, the preventive obligation stipulated by the ICJ in the Corfu Channel case.8 With that the Court identified a primary obligation under customary international law which entails a comprehensive responsibility of States for activities on their territory and which does not, therefore, raise the need to attribute those actions to the State in order to hold the State responsible under international law.

A. Duties to Prevent in International Law

It is often pointed out that in Corfu Channel the Court upheld the requirement of positive knowledge of the territorial State for the rule to apply, while assuming such knowledge in cases of an overall control.9 However, it seems to me that the ICJ has abandoned that requirement with respect to environmental damage and, thus, broadened the preventive obligation in its Nuclear Weapons advisory opinion in 1996: Here the preventive obligation of States under customary international law is designated as a “general obligation to ensure that activities within their jurisdiction and control respect the environment of other States”.10 This extensive approach has been confirmed in subsequent ICJ decisions, such as the Gabčikovo -Nagymaros and the Pulp Mills cases.11 The international responsibility of a State is not dependent any more on its positive knowledge of private activities, its responsibility towards other States is now being viewed as ‘a responsibility to ensure’, which entails the obligation to make sure that it knows what is going on in its territory and, at least in principle, the

8 ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4. 9

Cf. e.g. Walter (note 4), Obligations of States; id., (note 4), Cyber Security als Herausforderung,

688. 10

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 29. 11

Id., Case Concerning the Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Merits, Judgment of 25 September 1997, ICJ Reports 1997, 7, para. 53; id., Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Judgment of 20 April 2010, ICJ Reports 2010, 14, para. 101.

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obligation to control private activities that carry in them the risk of causing serious damage in another State. It is in this broad design that the preventive obligation had been put forward in the Stockholm (1972)12 and Rio Declarations (1992),13 and through affirmative State practice became part of customary environmental law. In 2001 the International Law Commission (ILC) formulated the principle as follows: “The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”14 A recent offspring of this broad preventive obligation is the obligation to undertake an environmental impact assessment, stipulated by the ICJ in the Pulp Mills case for industrial activities which may have an adverse transboundary impact,15 and also adopted by various arbitral tribunals. It is submitted that the duty to prevent harm arising from activities in a State’s territory to another State’s environment constitutes a specific expression of the general principles of State sovereignty and integrity. States must not allow private persons to use their territory for causing severe damage in another State’s territory. States are thus not only under an obligation to refrain from acts having a negative impact on another State’s territory, but additionally under a positive obligation to prevent private activities to that effect. Another specific expression of that obligation may be seen in the law on the use of force, where it is recognised that when a State allows its territory to be used for private attacks against another State, this can constitute an illegal act of force by the territorial State or under certain circumstances even amount to an armed attack.16 Other examples of the same principle can be found in Article 194 (2) United Nations (UN) Convention on the Law of the Sea, according to which “States shall 12 Stockholm Declaration of the United Nations Conference on the Human Environment, UN Doc. A/CONF.48/14 (1972), 3–5. 13 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992), Annex I. 14 International Law Commission (ILC), Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (2001), Yearbook of the International Law Commission (2001), Vol. II, Part Two, Art. 3. 15 16

ICJ, Pulp Mills (note 11), para. 204.

Cf. Randelzhofer/Nolte (note 7), paras. 38–41; Christine Gray, International Law and the Use of Force (3rd ed. 2008), 132–133; Yoram Dinstein, War, Aggression and Self-Defence (5th ed. 2012), para. 599. The 1970 Friendly Relations Declaration of the UN General Assembly stipulated to that effect that “every State has the duty to refrain from […] acquiescing in organized activities within its territory directed towards the commission of [acts of force]”, GA Res. 2625 (XXV) of 24 October 1970.

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take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment”,17 or in Article 7 (1) Convention on the Law of Non-Navigational Use of International Watercourses.18 Thus, the preventive obligation of States in respect of harmful private activities in its territory is firmly rooted in general international law and not only a rule of environmental law. It is therefore submitted that the obligation can, as a rule of customary international law, in principle also be applied to transboundary cyber incidents which have their origin in private computers or private activities. This extensive duty of prevention and its application to acts in cyberspace is not only advocated in legal writings,19 but there are also first indications to this effect in the opinio iuris of States: For example, the German Federal Minister of the Interior and the State Secretary in the German Ministry of the Interior have expressed views to that effect,20 and the UN

17

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

18

“Watercourse States shall, in utilizing an international watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other watercourse States”, GA Res. 51/229 of 21 May 1997. 19

Cf. e.g. Matthew J. Sklerov, Solving the Dilemma of State Responses to Cyberattacks: A Justification for the Use of Active Defenses Against States Which Neglect Their Duty to Prevent, Military Law Review 201 (2009), 1, 62–72; David E. Graham, Cyber Threats and the Law of War, Journal of National Security Law & Policy 4 (2010), 87, 93, 94; Wolff Heintschel v. Heinegg, Legal Implications of Territorial Sovereignty in Cyberspace, in: Christian Czosseck/Rain Ottis/Katharina Ziolkowski (eds.), 4th International Conference on Cyber Conflict, Proceedings (2012), 7, 15–18; Thilo Marauhn, Customary Rules of International Environmental Law: Can They Provide Guidance for Developing a Peacetime Regime for Cyberspace?, in: Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace (2013), 465, 473, 482; Schaller (note 7), 23–24; Constantine Antonopoulos, State Responsibility in Cyberspace, in: Nicholas Tsagourias/Russell Buchan (eds.), International Law and Cyberspace (2015), 55, 69. Contrary to that, the International Group of Experts who was responsible for drawing up the Tallinn Manual on the International Law Applicable to Cyber Warfare (ed. by Michael N. Schmitt, 2013) could not agree on whether a duty of prevention exists under international law, cf. ibid., Rule 5, para. 7. 20

Hans-Peter Friedrich, International Co-operation in Developing Codes of Conduct for Cyberspace, Speech by the German Federal Minister of the Interior, 2 May 2012, available at: http:// www.bmi.bund.de/SharedDocs/Reden/DE/2012/05/bm_usa.html (accessed on 18 October 2015); Cornelia Rogall-Grothe, International Co-operation in Developing Norms of State Behaviour for Cyberspace, Speech by the State Secretary of the Ministry of the Interior, 13 December 2011, available at: http://www.bmi.bund.de/SharedDocs/Reden/DE/2011/12/strg_cyber_engl.html (accessed on 18 October 2015).

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General Assembly has underlined the responsibility of States for the use of information technologies in their territory.21

B. The Standard of Due Diligence

However, and this is a big ‘however’, any preventive obligation of the State of origin, be it in respect of the environment or of cyber security, can under current international law only be a due diligence obligation, that is an obligation of conduct, not of result. Due diligence describes an international minimum standard providing a test whereby a State’s conduct is compared to what a reasonable or ‘good government’ would do in a specific situation of transboundary harm.22 It is a flexible and evolving standard which the ILC described as “what is generally considered to be appropriate and proportional to the degree of risk of transboundary harm in the particular instance”.23 Or, as the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea put it, “it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost” to obtain the required result.24 The required degree of care is to be determined in every given case and dependent on the degree of hazard involved, but also the degree of control exercised by the State with regard to the activities in question is important.25 And here things are getting difficult in respect of harmful cyber activities: How would a State, at least one bound by the rule of law, be in a position to control every private access to the internet? Private computers having a wireless access device are different in this respect from large construction projects or industrial plants which may produce hazardous effects to neighbouring countries, but which can alone for physical reasons be detected, 21 “States should ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies”, GA Res. 55/63 of 22 January 2001, para. 1 (a). 22 Timo Koivurova, Due Diligence, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), Vol. III (2012), 236, para. 16; see also ILC (note 14), Commentary on Art. 3, para. 17. 23

ILC (note 14), Commentary on Art. 3, para. 11.

24

International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Seabed Disputes Chamber, Advisory Opinion of 1 February 2011, para. 110, available at: http://www.itlos.org/index.php?id=109 (accessed on 8 July 2015). 25

Koivurova (note 22), para. 19.

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controlled, and regulated by State authorities. It would seem that an autonomous standard of control must be developed for IT activities which is bound to also take into account the specific technical capacities of the State concerned. As the ICJ has ruled in the Armed Activities case, the limited capacities of a State of effectively controlling parts of its territory may, under certain circumstances, limit the attribution of private acts committed on that territory to it.26 Thus, the due diligence standard required by international law with regard to the control of local cyber activities is in all probability different for the United States, as it is, for example, for Liberia. Furthermore, if due diligence is what a ‘good government’ is supposed to do, it must also include reference to the basic human rights obligations to which the State in question is legally bound. Although you might in principle say that the due diligence obligation entails a duty to control and regulate private activities in its territory,27 this duty must find its limits where the private activities concerned are protected by human rights guarantees: To solve the collision, the preventive obligation of the State and its human rights obligation must in every individual case be weighed and balanced against each other.28 Applied to cyber activities, this involves, above all, the right to freedom of information and expression, as it is laid down in Article 19 International Covenant on Civil and Political Rights.29 On account of this human right, the due diligence obligation of the State of origin cannot entail a complete preventive surveillance of private cyber activities in its territory. This is why an obligation of States “to prevent any destructive information originating from their territory”, as proposed by Russia in October 2011,30 would be unacceptable under international law. Nevertheless, what we certainly can say is that the due diligence obligation to prevent transboundary harm requires every State of origin to keep abreast of technological

26

Cf. ICJ, Armed Activities on the Territory of the Congo (DR Congo v. Uganda), Merits, Judgment of 19 December 2005, ICJ Reports 2005, 168, paras. 300–303. 27

Koivurova (note 22), para. 19 at the end.

28

Thus, the protection of human rights does not constitute a valid argument to simply deny the existence of preventive obligations of States; against Walter (note 4), Cyber Security als Herausforderung, 688–689. 29 30

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171.

Art. 6 (2) Concept of a Convention on International Information Security, proposed by the Russian Federation on 28 October 2011, available at: http:// www.rusemb.org.uk/policycontact/52 (accessed on 8 July 2014).

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and scientific developments,31 so that it be prepared to act in case of harmful cyber security incidents originating from its territory. Moreover, the obligation implies that States establish the institutional capacities and the appropriate procedures (e.g. monitoring mechanisms) to be able to fulfil the requirements of due diligence.

C. Consequences of a Breach of Due Diligence

A State that violates the customary due diligence standard of prevention has to make appropriate reparation to injured States in accordance with general rules of State responsibility, and the States concerned may adopt countermeasures according to the same rules. Many new questions arise in this respect which cannot be dealt with here: Which States are legally injured (and thus entitled to countermeasures) by the non- or under-performance of due diligence obligations? Is it only the State on whose territory the incident has resulted in physical damage or also States whose technical facilities or infrastructure are indirectly affected? What could be appropriate and, above all, proportionate measures in response to the failure of prevention?

V. Obligation to Co-Operate with Other States This brings me to my third and final point. It is a general feature of many areas of law that, where the substantive legal standards for regulated behaviour are deficient (or non-existing), that deficit is, at least partially, compensated for by procedural obligations. This compensatory function could in our case be fulfilled, as just mentioned, by procedural obligations of due diligence, but also by autonomous obligations established by treaty or customary law. As for the source of such obligations, many turn to the established principle of ‘good neighbourliness’ and considering the characteristics of the cyberspace expand it to a ‘universal neighbourliness’ applicable to the relation between all States.32 I very much like the idea of a ‘universal neighbourhood’ as a fitting description of fact of 31

Cf. ILC (note 14), Commentary on Art. 3, para. 11 at the end.

32

Cf. e.g. Walter (note 4), Obligations of States; id., (note 4), Cyber Security als Herausforderung,

689.

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how the world wide web transformed international relations. But does this ‘universal neighbourhood’ really give rise to legal obligations? Even if the UN General Assembly purports to apply the concept of good neighbours to States that are not contiguous,33 this appears to be much more of a political idea (‘States should act as good neighbours’) than a legal duty: International law does de lege lata not contain an obligation of States to be nice, friendly, and considerate toward each other. It does know, however, of specific procedural obligations of States that arise from a certain context of geographic proximity: Thus, the concept of good-neighbourliness is essentially of a territorial nature,34 and it is this factor which makes it the source of legal obligations. I find it therefore very difficult to simply apply those obligations to activities in cyberspace only because the latter has made the world a smaller place. Instead, I suggest to use the concept of due diligence described above as a source for procedural obligations, since, as the ILC put it, “the duty of prevention based on the concept of due diligence is not a one-time effort but requires continuous effort”,35 and it requires States not only to set up appropriate control mechanisms in their territory, but also to communicate with other States in case of severe incidents. I think we should think of this obligation as a kind of ‘procedural prolongation’ of the duty to prevent which we have described earlier. What this means in procedural terms, must be established according to the circumstances of every given case. Under customary law, a good case can be made for the duty to inform the States concerned in cases of emergency. Here, the Corfu Channel precedent has been taken up by several treaty clauses in environmental law, but also in Articles 6 and 7 International Health Regulations36 which oblige the States parties to notify the World Health Organization within 24 hours “of all events which may constitute a public health emergency of international concern within its territory”. I would submit that this rule, albeit contained in a specific treaty regime, might be

33

GA Res. 46/62 of 9 December 1991, para. 2.

34

Laurence Boisson de Chazournes/Danio Campanelli, Neighbour States, MPEPIL, December 2006, para. 24, available via: http://www.mpepil.com (accessed on 6 October 2015). 35 36

ILC (note 14), Commentary on Art. 12, para. 2.

World Health Organization, International Health Regulations (2nd ed. 2005), available at: http://apps.who.int/iris/bitstream/10665/43883/1/9789241580410_eng.pdf (accessed on 6 October 2015).

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considered to come close to what the customary rule of due diligence requires all States of origin to do. Moreover, it seems that the same applies in principle outside emergency situations, i.e. during regular public or private cyber activities. As soon as the State of origin discovers that such an activity within its territory proves to be harmful or potentially hazardous for the computer systems in other States, it is under a due diligence obligation to inform those States and consult with them on appropriate measures to contain the damage. This is not so much an analogy to Article 12 ILC Draft Articles on Hazardous Activities,37 since that rule concerns an exchange of information ex ante, before an incident occurs. Instead, the duty to inform in case of a severe security incident strikes me as being simply the procedural element of the general preventive obligation of the State under customary law. As the ICJ held in the Pulp Mills case, co-operation between States is a necessary requirement in order to fulfil the general obligation of prevention,38 and the first step of co-operation is to share any information available with regard to potentially harmful security incidents. Being based on the due diligence obligation, performance of this duty would, however, have to take into account individual rights with regard to the freedom of information and, when it comes to sharing information with other States, with regard to the protection of intellectual property. Obligations of co-operation and mutual assistance for the purpose of criminal proceedings can arise for the State of origin, as for others, only under specific international instruments. An extensive catalogue of such obligations is contained in Chapter III of the Budapest Convention on Cybercrime. Apart from those, I do not see any indication of customary obligations of States to prosecute or to extradite in cases of cyber security incidents, even when those occurred in their own territory.

VI. Summary Cyber security incidents do not as such produce any specific new obligations for the State of origin under international law, but for the most part simply activate 37

Supra, note 14.

38

ICJ, Pulp Mills (note 11), para. 102.

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existing general obligations under customary law which can also be applied to those incidents. The main obligation, based on the protection of the integrity and sovereignty of States, is the obligation to prevent transboundary harm to other States, which, as an obligation of due diligence, provides a flexible regulatory framework to define substantive and procedural duties of conduct and to accommodate the public and private interests involved.

Mitigating Risks: Inter-State Due Diligence Obligations in Case of Harmful Cyber Incidents and Malicious Cyber Activity – Obligations of the Transit State AUGUST REINISCH( AND MARKUS BEHAM((

ABSTRACT: Irrespective of the specific substantive area of regulation, the term ‘transit State’ invokes notions of space and duration. It refers to a territory – usually of a third State – that is crossed for a certain length of time. This contribution looks specifically to the potential obligations of transit States with regard to events that take place in a very particular space and in effect usually only last for a split second: harmful cyber incidents. Concepts originally endemic to ‘ius in bello’ and neutrality as well as the rules on State responsibility have a role to play in determining the applicable rules and extent of obligations. The ambitious Tallinn Manual of 2013 provides a landmark set of rules providing for a framework that comprehensively deals with a number of the most pressing issues concerning cyber warfare. KEYWORDS: Cyber Incidents, Cyber Activities, Cyber Warfare, Tallinn Manual, Neutrality, Ius in Bello, Transit State, State Responsibility, No Harm Principle

I. Introduction Harmful cyber incidents and malicious cyber activities, in particular the threat of outright ‘cyber warfare’, have increasingly become the subject of discussion in international law scholarship. One of the key issues has been how far traditional international law can be directly applied to cyber activities. In particular, the potential application of rules governing military conflicts sometimes adapted as ‘cyber-war’ has been at the heart of this debate. Thus, it is not surprising that the United States (US) Department

( ((

Professor of International and European Law at the University of Vienna, Austria. PhD Fellow at the Section for Legal Philosophy of the University of Vienna.

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of State Legal Advisor1 as well as international expert groups2 mainly frame the debate as one concerning the use of force and humanitarian law. Against the background of vivid scholarly debate3 and numerous ambiguous governmental positions4 regarding the application of international law norms to cyberspace, the beginning of 2013 has seen the publication of a set of rules providing for a framework and comprehensively dealing with a number of the most pressing issues concerning cyber-warfare. The so-called Tallinn Manual,5 which was initiated by the North Atlantic Treaty Organization (NATO) Cooperative Cyber Defense Centre of Excellence, located in Tallinn, Estonia,6 designates itself as “an expert-driven process designed to produce a non-binding document applying existing law to cyber warfare”.7 Furthermore, it has been held that the rules contained therein “are meant to reflect customary international law”.8 The expert group put together in order to draft the manual consisted of an international group of “legal practitioners, academics, and technical experts”9 and was observed by a member of NATO’s Allied Command Transformation and US Cyber Command respectively, as well as two members of the International Committee of the Red Cross.10

1

See Harold H. Koh, International Law in Cyberspace, Harvard International Law Journal 54 (2012), 1–12. 2

Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) (Tallinn Manual). 3

See in particular the annual ‘International Law Studies’ proceedings of the U.S. Naval War College since 1997, available at: http://www.usnwc.edu/Publications/International-Law-Studies-%281%29. aspx (accessed on 12 June 2014). 4

See e.g. The White House, International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World (May 2011), available at: http://www.whitehouse.gov/sites/default/files/ rss_viewer/international_strategy_for_cyberspace.pdf (accessed on 10 June 2014). See also the various initiatives set out in the Tallinn Manual (note 2), 2. 5

Tallinn Manual (note 2).

6

See https://www.ccdcoe.org/ (accessed on 10 June 2014).

7

Tallinn Manual (note 2), 1.

8

Michael N. Schmitt, International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed, Harvard International Law Journal 54 (2012), 15. Cf. also Tallinn Manual (note 2), 6. See, however, ibid., where it is stated in the Tallinn Manual itself that ‘any claim that every assertion in the Manual represents an incontrovertible restatement of international law would be an exaggeration’. 9 10

Tallinn Manual (note 2), 9. For a list of the individual members see ibid., X et seq. Id., 9–10.

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The organisers of this conference, however, rightly pointed out that harmful cyber incidents also occur below the threshold of an international military conflict and that it is therefore necessary to scrutinise more general rules of public international law as to their applicability, too.11 With a view to ascertaining whether they could have some implications for nonmilitary conflict scenarios, ‘ius in bello’ and the rules of neutrality will be addressed, only in passing, however, as the aim of this contribution is specifically to look at the potential obligations of transit States in cases of harmful cyber incidents.

II. The Concept of the ‘Transit State’ One preliminary caveat that needs to be kept in mind is the precarious notion of ‘transit State’ in the context of cyber or internet related activities. The term ‘transit State’ clearly evokes concepts of space and time; it refers to a territory – usually of a third State that is crossed over a certain period of time. Diplomatic law provides examples of transit State duties as regards safe travel conditions for diplomats entailing inviolability and necessary immunities, which are based on the fact that such persons need to move from the sending to the receiving State.12 Trade law also contains numerous rules regarding goods that, while destined for certain States, transit various other States.13 In all of these cases, persons or things move across territory during a certain period of time. 11

Cf. Martin Ney/ Andreas Zimmermann, Cyber Security Beyond the Military Perspective, German Yearbook of International Law 58 (2015), 51. It is noteworthy that the NATO Cooperative Cyber Defense Centre of Excellence (NATO CCD COE) has also recently published a ‘Peacetime Regime for State Activities in Cyberspace’, edited by Katharina Ziolkowski of the NATO CCD COE, which covers “in a multi-disciplinary approach the technical, legal, policy and diplomacy aspects of State activities in cyberspace during peacetime”. See Katharina Ziolkowski (ed.), Peacetime Regime for State Activities in Cyberspace. International Law, International Relations and Diplomacy (2013), available at: http://ccdcoe.org/427.html (accessed on 12 June 2014). Furthermore, there is currently a research project underway on State responsibility for cyber operations, headed by Michael N. Schmitt, who is chairman of the International Law Department at the United States Naval War College and directed the Tallinn Manual project. See Schmitt (note 8), 34, footnote 120. 12 See Art. 40 Vienna Convention on Diplomatic Relations, 18 April 1961, UNTS 500, 95. Cf. also the seminal article by Karl Zemanek, Der durchreisende Gesandte, Österreichische Zeitschrift für öffentliches Recht 4 (1952), 530–541. 13

See e.g., the Convention on Transit Trade of Land-locked States, 8 July 1965, UNTS 597, 3.

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Considering the nature of the internet as a seemingly border-free endeavor allowing data-transfer in an almost instantaneous fashion, the question also arises from a technological perspective whether traditional concepts of transit State obligations are suitable for application. Taking this perspective into account will require answers from technology experts as to whether a transit State is even in a practical position to control harmful cyber activity conducted across its territory at all. In any case, while there is as of yet no consensus as to their legal nature, ‘emerging transit norms’ are considered to be of the ‘utmost importance’ for States.14 The following analysis will first try to ascertain potential primary obligations of transit States before looking at specific aspects regarding State responsibility which are particularly relevant for transit States.

III. Primary Obligations A. The No Harm Principle

The discussion during the conference at which this paper was delivered has clearly shown far-reaching consensus that the no harm rule seems to apply to the field of cyber incidents. It would thus appear only logical to inquire whether this rule could also be relevant for transit States. For the purposes of the following analysis, the dual pedigree of the no harm principle, stemming from 1. environmental law and 2. military conflict related rules, such as neutrality, will be taken into account.

1. Environmental Law The locus classicus establishing the no harm rule as a principle of international law is the Trail Smelter arbitration in which a tribunal held that: under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by

14

See Topi Tuukkanen, Sovereignty in the Cyber Domain, in: Jari Rantapelkonen/Mirva Salminen (eds.), The Fog of Cyber Defence (2013), 39 and 44.

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fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.15

This notion was reasserted by Principle 2 Rio Principles, postulating: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.16

As was discussed by a number of contributors to the conference, the rather strict requirement of ‘serious consequences’ of the transboundary harm which has to be established by ‘clear and convincing evidence’ would often lead to evidentiary problems when applied in the context of cyber incidents. Conversely, the seemingly liberal standard of the Rio Principles, which suggests that any damage to the environment thus caused will lead to responsibility has been limited by an implied due diligence requirement. There was an interesting debate as to the level of due diligence to be exercised by States. While it seems preferable to postulate a uniform international standard, concern was also voiced over the de facto inequality as regards the technological capabilities of States. In addition, it may just be worthwhile to look at other fields of international law in order to see how factual differences in the development of States may impact upon the level of their due diligence obligations. The problem is well-known in the field of investment law, where bilateral investment treaties regularly provide for a due diligence obligation of host States to provide full protection and security to the investments of investors from the other contracting party. In a recent case concerning investors who were harmed by private parties as a result of riots in Albania following a broad pyramid scheme involving public corruption and police failure to protect, an International Centre for Settlement of Investment Disputes (ICSID) tribunal attempted to square the circle between objective and subjective elements in the determination of the level of diligence due. It held that:

15

Trail Smelter (United States, Canada) Arbitral Award of 16 April 1938 and 11 March 1941, Reports of International Arbitral Awards (RIAA) II, 1905, 1965. 16

Principle 2, Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992), Annex I.

106 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 Although the host state is required to exercise an objective minimum standard of due diligence, the standard of due diligence is that of a host state in the circumstances and with the resources of the state on question. […] In practice, tribunals will likely consider the state’s level of development and stability as a relevant circumstance in determining whether there has been due diligence.17

Given the marked differences in the technological advancement of States, it seems that such an approach could also provide a useful guidance to States in the context of determining whether due diligence was exercised in cyber affairs.

2. Conflict-Related No Harm Rules The second most prominent principle from which the modern no harm rule is derived stems from the Corfu Channel case, in which the International Court of Justice (ICJ) referred to “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”18 This fundamental rule was also incorporated into the Tallinn Manual, which postulates that “[a] State shall not knowingly allow the cyber infrastructure located in its territory or under its exclusive governmental control to be used for acts that adversely and unlawfully affect other States.”19 While such an obligation primarily addresses the State of origin, there is nothing in principle that would preclude its application to transit States. Most importantly for the cyber context, it also clearly covers private acts. However, while environmental law emphasises control and (serious) transboundary harm,20 the Corfu Channel principle stresses ‘knowing use’ which leads to tricky questions as to whether actual knowledge is always required or whether constructive knowledge (‘should have

17

International Centre for Settlement of Investment Disputes (ICSID), Pantechniki S.A. Contractors & Engineers v. Republic of Albania, Case No. ARB/07/21, Award of 30 July 2009, para. 81. 18 See International Court of Justice (ICJ), Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4, 22. 19 20

Tallinn Manual (note 2), 26, Rule 5.

Arguably the required harm is less demanding that under the Trail Smelter environmental standard. See also Tallinn Manual (note 2), 27, para. 5 (“the prohibition extends to all cyber activities from one State’s territory that affect the rights of other States and have detrimental effects on another State’s territory. In particular, there is no requirement that the cyber operation in question result in physical damage to objects or injuries to individuals; it need only produce a negative effect”).

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known’) may be sufficient. If the latter applies, the question arises as to what is the proper standard of due diligence. This entails technical issues like defining whether such knowledge was technically feasible. If indeed it was, the question arises whether States may then be required to acquire and maintain cyber technology of a certain sophistication. In consequence, this leads back to the above-mentioned issue of a development dependent due diligence standard.21 In any case, in light of the specifics of cyber technology, it may be questionable to what extent transferring State of origin obligations to the transit State can be feasible.22 Given that internet communication follows no predictable path but rather the most efficient and fastest transfer route available at any point in time, it has been argued that any potential obligation to obstruct the transit of harmful cyber transmission may not only be practically unfeasible, but also effectively useless because it could not prevent the transmission via alternative routes.23 Seemingly, there is no consensus as to the existence of peacetime obligations of transit States, and, should there be such obligations, as to the appropriate due diligence standard.24

21

See ICJ, Corfu Channel (note 18) and accompanying text.

22

Cf. Wolff Heintschel von Heinegg, Territorial Sovereignty and Neutrality in Cyberspace, International Law Studies 89 (2013), 137–138. 23 Tallinn Manual (note 2), 28–29, para. 12 (“whether this Rule [i.e. Rule 5, see note 19] applies to States through which cyber operations are routed. Some experts took the position that to the extent that a State of transit knows of an offending operation and has the ability to put an end to it, the State must do so. These experts took notice, however, of the unique routing processes of cyber transmissions. For instance, should a transmission be blocked at one node of a network, it will usually be rerouted along a different transmission path, often through a different State. In such a case, these Experts agreed that the State of transit has no obligation to act, because doing so would have no meaningful effect on the outcome of the operation. Other experts took the position that the Rule applied only to the territory of the State from which the operation is launched or to territory under its exclusive control. They either argued that the legal principle did not extend to other territory in abstracto or justified their view on the basis of the unique difficulties of applying the Rule in the cyber context”). Cf. also Wolff Heintschel von Heinegg (note 22), 137–138. 24 Cf. Dieter Fleck, Searching for International Rules Applicable to Cyber Warfare – A Critical First Assessment of the New Tallinn, Manual Journal of Conflict & Security Law 18 (2013), 9. See, however, Ziolkowski (ed.) (note 11), 209.

108 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 B. Neutrality Rules

In search of primary norms explicitly addressed towards transit States that may be transposable to the context of cyber incidents one is most successful in the field of neutrality law. The problem being, of course, that such obligations are triggered only by an international armed/military conflict, if not outright traditional war.25 Thus, clearly such obligations would not be strictly relevant in situations, which do not even reach the threshold of a military conflict. However, it might be the case that some transit State-related neutrality rules could still be considered relevant by analogy. One of the rules that appears to have a certain relevance to cyber operations is Article 8 Hague Convention (V) of 1907, which leaves it to the discretion of neutral States whether they wish to restrict the use of communication devices by belligerents.26 Only in the case where neutral States adopt certain restrictions must these be applied in an impartial way.27 This consideration was also espoused by the experts drafting the Tallinn Manual to the extent that they included the impartiality principle in case of

25

It is interesting to note that the Austrian position following its accession to the European Union (EU), in particular regarding its common foreign and security policy, and with regard to measures taken as part of the United Nations (UN) collective security system has been that such actions do not trigger neutrality norms because they are not ‘war’, but rather akin to ‘police actions’. See Waldemar Hummer, Der internationale Status Österreichs seit 1918, in: August Reinisch (ed.), Österreichisches Handbuch des Völkerrechts (2013), 713, para. 2892. This position has also been referred to as ‘avocado doctrine’ according to which the previous extensive interpretation of Austrian neutrality obligations were ‘peeled off’ (as ‘soft’ peripheral application) from the ‘hard core’ rules. See Franz Cede, Österreichs Neutralität und Sicherheitspolitik nach dem Beitritt zur Europäischen Union, Zeitschrift für Rechtsvergleichung 36/4 (1995), 142. 26 Art. 8 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land 18 October 1907, available at: https://www.icrc.org/applic/ihl/ihl.nsf/Treaty. xsp?documentId=71929FBD2655E558C12563CD002D67AE&action=openDocument (accessed on 5 March 2016). (“A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals”). 27

Art. 9 Hague Convention (V) (“Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Arts. 7 and 8 must be impartially applied by it to both belligerents. A neutral Power must see to the same obligation being observed by companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus”).

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communications restrictions.28 Indeed, it seems to also be the US position that this provision applies to modern means of communication.29 One should bear in mind, however, that the cyber technology will not only be used as a means of communication but may become more akin to a weapon if, through its use, a State intends to target and obstruct installations within another State. In such a situation the general duty of neutral States not to allow use of its territory30 for belligerent acts such as transiting weapons might seem more relevant.31 Obviously the precise delimitation between permissible communications over the internet, which need not be restricted, and impermissible use of cyber infrastructure for military purposes will prove difficult in practice.32 As regards the general obligation of a neutral State not to assist States in their belligerent efforts and not to permit use of its territory, the obligation also applies to the cyber context and is explicitly recalled in the Tallinn Manual which states that “[a] neutral State may not knowingly allow the exercise of belligerent rights by the parties to the conflict from cyber infrastructure located in its territory or under its exclusive control.”33 While a full analogous application of neutrality rules to situations concerning harmful cyber incidents in situations outside of the context of an international mili-

28 Tallinn Manual (note 2), 253, para. 3 (“To the extent that a neutral State does place restrictions on the use of such networks, these restrictions must be impartially applied to all parties to the conflict”). 29 See Joshua E. Kastenberg, Non-Intervention and Neutrality In Cyberspace: An Emerging Principle in the National Practice of International Law, Air Force Law Review 64 (2009), 56. 30 Art. 5 Hague Convention (V) (“A neutral Power must not allow any of the acts referred to in Arts. 2 to 4 to occur on its territory”). 31 Art. 2 Hague Convention (V) (“Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power”). In addition, the prohibitions contained in Art. 3 Hague Convention (V) may be relevant. (“Belligerents are likewise forbidden to: (a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea; (b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages”). 32 It seems that this difficulty was one of the reasons why the expert group adopting the Tallinn Manual was divided as to whether the transmission of cyber weapons across neutral territory was prohibited leading to a corresponding duty of neutral States to prevent such transmission. Tallinn Manual (note 2), 253, para. 3. 33

Tallinn Manual (note 2), 252, Rule 93.

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tary conflict would be inappropriate, one may reflect upon the potential value of some underpinnings. For instance, one could consider the a fortiori argument that when a State is not even obligated to impose restrictions on internet use for communication purposes during international military conflicts, it would follow that no such duty could arise in situations falling short thereof.

IV. State Responsibility The attribution of cyber operations follows normal State responsibility principles as codified in the ILC Articles on State Responsibility.34 This implies that a State will incur responsibility for acts of State organs,35 or of private actors under its ‘direction or control’,36 etc. The fact that a cyber operation originates in the territory of a State is not sufficient to attribute such activity to the State. The same would hold true for transit States; the fact that a cyber operation ‘transits’ a State cannot serve as a basis for attribution. In this regard, specific aspects of cyber technology become relevant. Rule 8 Tallinn Manual contains the following secondary rule for ‘Cyber operations routed through a State’, providing with regard to attribution concerning transit States: “The fact that a cyber operation has been routed via the cyber infrastructure located in a State is not sufficient evidence for attributing the operation to that State.”

34 International Law Commission (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 53rd Sess., Suppl.10, 43 (ILC Articles).Tallinn Manual also deals with the issue of State responsibility in its Rules 6 to 9 which are closely shaped pursuant to the ILC Articles. 35 Art. 4 ILC Articles (Conduct of organs of a State) (“1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State”). 36

Art. 8 ILC Articles: Conduct directed or controlled by a State (“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”).

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The commentary thereto further elaborates: 1. This Rule addresses cyber operations launched from the cyber infrastructure located in one State that are routed through government or non-government cyber infrastructure located in another. In such a situation, the latter cannot be presumed to be associated with the cyber operation. This is because the characteristics of cyberspace are such that the mere passage of data through the infrastructure located in a State does not presuppose any involvement by that State in the associated cyber operation. 2. Recall that pursuant to Rule 5 a State must not knowingly allow its cyber infrastructure to be used for acts adverse to the rights of other States. However, the International Group of Experts was unable to achieve consensus as to whether that Rule applies to States through which cyber operations are routed. To the extent that it does, the State of transit will bear responsibility for failing to take reasonable measures to prevent the transit. 3. There may be other criteria according to which the respective act can be attributed to a State (Rule 6). For instance, this Rule is without prejudice to the rights and obligations of neutral States during an international armed conflict (Rules 91 to 95).37

This implies that in the case of transit States, it would be necessary to ascertain to what extent State organs are involved or – in the case of private actors – whether the transit State had some de iure or de facto influence over them. Most importantly, however, it is here that one should recall once more the two general considerations raised when dealing with the notion of the ‘transit State’: the time element and the territorial aspect. Control is usually exercised over a certain period of time. Where transit is ephemeral and fortuitous, the question arises whether control is even possible at all. Similarly, it may be doubtful whether the territorial underpinnings of State responsibility principles are apt to be applied to transit States with regard to cyber incidents.

V. Conclusion Notwithstanding the fact that the obligations of transit States remain largely unclear, one might ask what kind of measures States could take in order to prevent the possibility of being held liable for harmful cyber incidents and malicious cyber activities crossing their respective State territory.

37

Tallinn Manual (note 2), 36.

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It is largely uncontested that a State may “exercise control over cyber infrastructure and activities within its sovereign territory”.38 As a result, cyber infrastructure becomes “subject to legal and regulatory control by the State”.39But what kind of measures could be taken in order to effectively prevent the passing of malicious cyber activities through the cyber infrastructure of a particular State and which result in harmful cyber incidents? If States are required to implement certain measures aimed at controlling transit through their cyber infrastructure, they may be tempted to gather inspiration from the so-called ‘Great Firewall of China’.40 This device basically guards “a handful of gateways through which all foreign internet content and communications enter the country, sniffing through small packets of data to detect and block access to ‘harmful’ foreign content”.41 It is considered ‘the world’s most advanced national firewall’.42 However, it is obvious that such measures are unsatisfactory, not just from a technological point of view, but in particular with regard to human rights, such as the right to privacy and data protection, as well as private autonomy within a liberal democratic conception of the State.

38

Tallinn Manual (note 2), 15, Rule 1.

39

Ibid., 16, para. 5.

40

The term was first coined in a Wired article by Geremie R. Barme and Sang Ye, The Great Firewall of China, Wired 5.06 (1997), available at: http://www.wired.com/wired/archive/5.06/china.html (accessed on 12 June 2014). 41 The Economist, The Great Firewall. The Art of Concealment. Chinese Screening of Online Material from Abroad is Becoming Ever More Sophisticated, 6 April 2013, available at: http://www. economist.com/news/special-report/21574631-chinese-screening-online-material-abroad-becomingever-more-sophisticated (accessed on 12 June 2014). 42

Id.

Reflections on Due Diligence Duties and Cyberspace ROBERT KOLB(

ABSTRACT: This contribution analyses under different angles due diligence duties of States in the context of cyberattacks and cyberwarfare. After having discussed the historical evolution and peculiar content of due diligence, it tries to identify particular problems of the cyberspace in the context of the duties of prevention and suppression by States. KEYWORDS: Due Diligence, Standard of Care, State Responsibility, Cyberspace, Cyberwar, CyberAttacks, Duty of Prevention, Duty of Cooperation

I. Introduction During the conference which gave rise to the contributions of the present publication, I raised a series of questions on legal challenges and the cyberspace outside the context of armed conflicts. I did not provide any answers, for lack of technical knowledge of the cyber-realities. Lawyers come here quickly to their limits, as they lack the proper technical tools to assess what legal principles and rules fit the realities of cyber. In the present short text, I would like to take up only one question I had raised, and also to venture into some short analysis. The question turns around the concept of the due diligence obligations of States for activities in areas under their control and the scope it could be given in the context of that very particular space that is ‘cyberspace’. I must confess that my technical knowledge of the cyberspace has not increased since the conference last year. The answers given can therefore only be at once tentative and generic. They would have to be refined in the light of tighter knowledge of and consideration of shifting technical realities.

(

Professor of Public International Law at the University of Geneva.

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II. The Notion of Due Diligence1 A. Historical Roots

Historically, the term ‘due diligence’ first appeared in the context of the law of neutrality in the 19th century. It was framed in the famous Alabama Claims Arbitration.2 Previously, the notion had not been shaped as such. The civil law term of ‘negligence’ had appeared to be sufficient. In the mentioned arbitration, the question revolved around the duties of a neutral State not to allow the construction and arming of warships on its territory, when these ships were to participate in an armed conflict. The term of due diligence was inserted in the special agreement on the basis of which the Tribunal had to pronounce. In their decision, the arbitrators emphasised that the diligence due is in direct proportion to the dangers the belligerents run as a consequence of the omission and of the means a neutral State possessed to curb such private activities on its territory.3 The term of due diligence was however also avoided in some important conventions of the same period. Thus, in Article 8 Hague Convention XIII of 1907 concerning the Rights and Duties of Neutral Powers in Naval War4 the formulation is rather that [a] neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended […] to engage in hostile operations, against a Power with which that Government is at peace.5

The material and concrete possibilities of the State are here envisaged, but without the term of due diligence, which was judged to be too obscure.

1

See the literature indicated in: Timo Koivurova, Due Diligence, in: Max Planck Encyclopedia of Public International Law, Vol. III (2012), 236, 246. See also Paulos Alexandrou Zannas, La responsabilité internationale des Etats pour des actes de négligence (1952). 2

See John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party, Vol. 1 (1898), 495. 3

The Tribunal stressing mainly the first aspect of the obligation, ibid., 654–655.

4

Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, 18 October 1907, available at: https://www.icrc.org/applic/ihl/ihl.nsf/INTRO/240 (accessed on 16 October 2015). 5

See Dietrich Schindler/Jiři Toman, The Laws of Armed Conflicts (4th ed. 2004), 1409.

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B. Standard of Care

The due diligence formula is based on a standard of care. It is ordinarily engrafted upon a standing primary obligation under international law and can also be considered, in some cases, as a freestanding obligation of its own. In international case law, such standards of care, whether called due diligence or not, have often been mentioned since times long past. Most often, they were formulated in the context of insurrection or other situations in which foreign citizens suffered damage on the territory of a State. In the Baldwin case (1841), the point was to determine whether the government of Mexico had used all the means at its disposal in order to prevent the damage to foreigners from occurring.6 In the Prats case (US/Mexico Claims Commission, 1868), the fulfilment of certain obligations was linked to the extent of the means available and the use of all the means effectively available7 (ad impossibile nemo tenetur). In the Spanish Zone of Morocco Claims (1925), arbitrator Max Huber linked the diligence required to the means a State can dispose of. The State is not required to use means it does not possess, since that would go beyond what could be reasonably expected from it.8 Use of all ‘means at the disposal’ seems to be one key requirement. It has since remained the controlling consideration. Thus, in the Genocide case (2007), the International Court of Justice (ICJ) considered the extent to which a State could and should act in order to prevent genocide on the territory of another State when committed by armed groups over which it displayed a degree of control, allowing influence. The Court said that what is crucial is the material capacity to influence the action of the group9 – once more the criterion is that of the available means. Which means are available is a concrete question which has to be decided on the basis of the relevant circumstances in each case.

6

Albert Geouffre de Lapradelle/Nicolas Politis, Recueil des arbitrages internationaux (1905), 465.

7

Moore (note 2), 2893–2894.

8

Affaire des biens britanniques au Maroc espagnol (Spain, Great Britain), Arbitral Award of 1 May 1925, Reports of International Arbitral Awards (RIAA) II, 644. 9

International Court of Justice (ICJ), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, ICJ Reports 2007, 43, para. 221.

116 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 C. Definition of Due Diligence

Undue diligence is the existence of an unlawful negligence; conversely, due diligence is the absence of such a negligence. The judgement thus goes to a legally imputable difference between a conduct such as it has been and a conduct such as it should have been. The difference is based legally on the required diligence, which would, if followed, have avoided the gulf between both situations. In turn, this difference is necessarily based on a value judgement of what should reasonably have been done. Hence the definitions of (un)due diligence provided by different authors: “omission of the required standard of care”;10 “care that should have been used according to the circumstances”;11 “neglect […] to take all reasonable measures”;12 “necessary efficiency and care”;13 “blameworthiness due to negligence”;14 etc. From the foregoing, it follows that: (i) due diligence is a normative prescription of a required care, it is not simply a descriptive device summing up a point of fact; (ii) due diligence is a standard of care, a general clause, not a specific rule to be immediately applied; it requires a judgement of value of what could and should have reasonably be done under the circumstances; due diligence is thus often directly linked to the concept of reasonableness, in German of Zumutbarkeit, and possibly also with bona fide duties; (iii) due diligence is essentially linked with negligence and sometimes with the maxim that the impossible cannot be required (ad impossibile nemo tenetur); (iv) due diligence is a relative and circumstantial term, since the judgement on it must take account of all the circumstances of the particular case; judgement thus always takes place in concreto; the judgement is also necessarily flexible; (v) due diligence is normally contained in primary norms requiring such a diligence, e.g. with respect to damages done to aliens on the territory, transboundary pollution, etc., but it can also accompany any primary norm (if international

10 Karl Strupp, Die völkerrechtliche Haftung des Staates, insbesondere bei Handlungen Privater (1927), 31. 11

Anton Roth, Das völkerrechtliche Delikt vor und in den Verhandlungen auf der Haager Kodifikationskonferenz 1930 (1932), 177. 12

International Law Commission (ILC), State Responsibility: Report, Yearbook of the International Law Commission, Vol. II (1956), 173, 222. 13

Francisco V. García-Amador/Louis Bruno Sohn/Richard Reeve Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (1974), 26–27. 14

Koivurova (note 1), 236.

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practice establishes that) or constitute a secondary norm of State responsibility (e.g. the duty to mitigate the damages suffered).

D. Elements of Due Diligence

There are at least two controlling elements in any due diligence equation. The first relates to the need of a minimum of proper organisation of the State, so that it is able to face its various duties under public international law.15 A State is not entitled to justify a lack of proper diligence by pointing to an insufficiency of legal or organisational means which are imputable to it as a culpable lack of care. To the same extent that a State may not decline international responsibility by referring to its internal laws, it also cannot escape its due diligence duties by pointing to its internal unruly organisation. This was already noted in the Alabama Claims Arbitration cited above.16 Thus, a State is bound to create and maintain a proper system of internal security; it must supply it with the necessary personal, financial, and technical tools so as to allow it to properly discharge its functions; it must adapt its internal legislation to the needs of protection under international law; it must organise the system in such a way as to allow orders to be carried out effectively and quickly; it must seek to ensure an exchange of relevant information on the possible threats between the competent national services and also look for cooperation with international services; etc. Second, a State must display a certain care in its dealings.17 The degree of this diligence most often depends on the primary norms applicable and on context. It may be a diligence as in one’s own dealings (quam in suis) or a more objectivised diligence (reasonable diligence). The objectivised diligence is of much more common use in international law: first, because it provides an equal yardstick; second, because it avoids the danger of falling beneath a minimum standard to be invariably upheld. The concrete standard of care varies according to the type of threats: abstract or general dangers, or concrete threats. In the latter case, the authorities of the State have been put on notice of the risk of a certain occurrence or have discovered that threat by their 15

See Zannas (note 1), 85 et seq.

16

Moore (note 2), 656, the Tribunal mentioning expressly lack of proper municipal legal means, which is no excuse. 17

Zannas (note 1), 97 et seq.

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own means. In such a situation, the required care is heightened.18 This is also the case when officials of a foreign State are on an official visit in a State and due diligence duties arise for their protection.19

III. Due Diligence and Cyberspace A. General Aspects

It may be recalled that the subject matter of the present contribution is not cyberwarfare but the use of cyber-techniques to perpetrate crimes or to create other nuisances during peacetime, and the related State responsibility. Reflection on this topic has not as yet developed very far,20 especially in public international law. The question has been traditionally linked with the use of force and the laws of war.21 We may take as a starting point Rule 5 Tallinn Manual,22 a rule which is drafted to apply both in times of peace and of armed conflict. It relates to the control over cyber infrastructure and to due diligence duties of the State in this context. Its content is as follows: “A State shall not knowingly allow the cyber infrastructure located in its territory or under its exclusive governmental control to be used for acts that adversely and unlawfully affect other States.”23 The general basis of this rule (or in other words the underlying primary rule) is the old-standing principle whereby a State is not allowed “to allow knowingly its territory to be used for acts contrary to the rights of other States.”24

18

See the cases quoted ibid., 108 et seq.

19

Ibid., 116 et seq.

20

See however e.g. Matthew Richardson, Cyber-Crime: Law and Practice (2014).

21

See mainly Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) (Tallinn Manual). On this Manual see e.g. Wolff Heintschel von Heinegg, The Tallinn Manual and International Cyber Security Law, Yearbook of International Humanitarian Law 15 (2012), 3; see also Marco Roscini, Cyber Operations and the Use of Force in International Law (2014). 22

See supra, note 21.

23

Tallinn Manual (note 21), 26.

24

See e.g. ICJ, Corfu Channel Case (UK v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4, 22. See also the classical statement in the Trail Smelter Case (United States v. Canada), Arbitral Award of 11 March 1941, RIAA III, 1965.

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B. Delimitations

The context is here one of private activities over which the State should exercise some form of control. This is indeed the classical setting of due diligence duties, as evidenced already at the time of their creation (duties of a neutral State to control the activities of private shippers). Conversely, no such duties arise when the State acts itself, i.e. through its organs or agents.25 In such a case, the attribution of the actions and omissions of such organs or agents makes the conduct a conduct of the State itself. The point is then to affirm that the State must not do x or is entitled to do y; but not that it has a due diligence duty not to do x or to do y. The responsibility of the State for its own acts is always direct. It is not embedded in due diligence, the obligation being one of strict result. The responsibility for action of private individuals is conversely never direct, since these individuals are ex hypothesi not organs or agents of the State.26 Thus, the responsibility of the State for their acts or omissions can be only indirect, that is for parallel actions or omissions of the State on occasion of such unlawful private activities. The necessary link to bridge the gulf between the private activities and State action is the due diligence duty. The State must show due diligence in this context in preventing some harm done by private individuals to other States. How far this duty of prevention reaches is a matter of discussion in the context of different sets of primary rules (diplomatic law, environmental law, crime prevention, etc.). We may notice that in no area of general international law there is an absolute duty of prevention of harm, in the way that the occurrence of the harmful fact would trigger itself the responsibility of the State.27 States are not insurers for the noncommission of certain deeds.

25 Thus, we will not raise questions of attribution here, even if they arise with acuteness in the cyberspace. Indeed, these questions are legally relevant only in the context of action by the State and not in the separate context of action by private individuals (which is ex hypothesi not attributable). 26 See Art. 4 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. (ARS). 27

Even if that has sometimes been claimed, see e.g. for injury to the rights of aliens Manuel R. GarcíaMora, International Responsibility for Hostile Acts of Private Persons against Foreign States (1962).

120 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 C. General Issues with Due Diligence in the Cyber Context

Can the classical principles and rules of due diligence apply to cyber criminality or do we need an enlarged concept of such duties? Is the novelty in this area such that the concept would indeed appear to have to be refashioned? The flexibility of due diligence would suggest that this is not the case, but the technical peculiarity of cyberspace would at the same time suggest that some significant problems may arise. Let us scroll through a series of general points, before venturing into some few special ones, more directly linked to cyberspace. First, classical due diligence duties, under the law of neutrality or damages done to aliens, were essentially territorially limited. Classical international law was indeed based on a system of spaces controlled by States with their exclusive jurisdiction. At these times, there was only a limited degree of transnational activity. This has considerably changed since. Today, it is not disputed anymore that the due diligence duties follow any actual or effective control. Cyber infrastructure may be located in most diverse places. What is relevant here is who exercises control over it. The subject exercising such control is also subjected to due diligence duties. The control can be formal (de jure) or informal (de facto). Formal control creates a legal link between the controlling State and the infrastructure so that this State cannot claim to disinterest itself of what is happening there. The legally entitled State has to exercise control and to direct its legal apparatus to function correctly in such control of infrastructure. The same is true, all the more, for a State exercising mere effective control, whatever its legal entitlement. The ICJ has acknowledged important extra-territorial due diligence duties in the Genocide case of 2007 cited above, where it held that Serbia ought to have used its influence over armed groups in Bosnia (to which it was linked) in order to try to prevent genocidal acts.28 Thus, there is no conceptual territorial limitation for such duties. They rather follow control. Notice that this control has neither to be effective control nor overall control. It is sufficient that there is a degree of influence, which is a question of fact; according to the ICJ, there must be a material ability to prevent. Such control is deemed to exist mainly on the territory. It is often more elusive abroad. But this is admittedly only a question of fact and of circumstances. It is not a question of law.

28

ICJ, Genocide (note 9), paras. 425 et seq.

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Second, due diligence duties attempt to prevent the commission of unlawful acts. This unlawfulness has to be reckoned mainly under international law. The (un)lawfulness of the measures taken against the dangerous private activities has however also to be taken into account. Thus, for example, activities on the internet may fall in the protected private sphere of persons or alternatively be covered by the freedom of expression.29 To what extent this is the case depends on an assessment of the context. However, the answers to be given are not necessarily simple. This is true all the more since more than one legal order may be affected when qualifying the relevant acts. In sum, there are different unlawful acts to be considered at the same time and to be squared one with the other. A State may not engage in unlawful behaviour in order to combat another unlawful act. One unlawfulness is not to be weighed up against another unlawfulness. This also signifies that the means to which a State has recourse in order to fulfil its due diligence obligations must be compatible with international (and to a large extent also municipal) law. However, some norms of municipal law could be brushed aside if contrary norms of international law are given precedence in case of conflict. Third, there must be a risk of detrimental effects of the private activities contrary to the legal rights of the other State. This may again be a matter of assessment in single cases, and could give rise to a separate issue of negligence. Conversely, no due diligence duties arise for a State to curb some private activities if there is no risk (or only a too remote risk) of unlawful damages ensuing therefrom for a foreign State. The damage need not be of a physical nature, i.e. damage to objects or bodily injury to persons. Conversely, to affirm that the damage may consist solely of “a negative effect”30 for the injured State is also somewhat vague. The proper answer is that any damage giving rise to State responsibility qualifies. In other words, the question must be resolved by referring to the notion of ‘damage’ under the law of State responsibility.31 The damages aggrieving a third State need not occur on the latter’s territory. They can also affect a space where it has or exercises extraterritorial jurisdiction or on any other 29

On freedom of expression under international law see e.g. Michel Verpeaux, Freedom of Expression in Constitutional and International Case Law (2009); see also Merris Amos, Freedom of Expression and the Media (2012); Deirdre Golash (ed.), Freedom of Expression in a Diverse World (2010). 30 31

Tallinn Manual (note 21), 27.

See the short explanation by James Crawford, The International Law Commission’s Articles on State Responsibility (2002), 29 et seq.

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objects protected under international law. This includes objects and rights of other subjects than States, such as international organisations or the International Committee of the Red Cross (ICRC). A delicate question is whether the duties of prevention apply also with regard to a State that unlawfully, but effectively, controls a part of a foreign territory, e.g. by unlawful annexation. There are two ways of arguing the point. If the principle of effectiveness is controlling, the unlawful title to that territory is irrelevant for due diligence issues (separation between due diligence and rightful title). If the principle of ex iniuria ius non oritur applies, the suspension of due diligence duties for the unlawfully behaving State is a form of sanction of its unlawful behaviour. The question has hitherto not been canvassed in the context of due diligence duties.32 A relevant consideration would certainly be whether the damage to be prevented is only one for the unlawfully occupying State or one which also entails prejudice to the population in the territory, be it the population of the occupied State or perhaps even the one of the occupier. In the first situation, it would be easier to set aside the due diligence duties, in the second it would be harder.33 Fourth, traditionally, due diligence duties applied to each State in the context of its individual obligations to prevent certain harmful results. This is shown by the contexts in which due diligence duties developed, such as the duties of neutral States or of States with regard to aliens on their territory or with regard to environmental damage. In a context of growing interdependence and of shared jurisdictions and responsibilities, in particular in a context of activities which are not any more necessarily neatly delimited from the point of view of their territorial reach, due diligence duties must develop into duties of proper cooperation among the concerned States and international institutions. It may not be sufficient anymore to point out that all the feasible steps have been taken within the national sphere of jurisdiction, when the private activity at stake straddles over many territories or has detrimental effects which cannot be clearly limited in space. By analogy, many modern international régimes concerning internationally shared goods are developed around the notion of a duty of consultation, negotiation, and cooperation (instead of purely unilateral 32 The most thorough study of consequences flowing from unlawful possession concerns Cyprus: Stefan Talmon, Kollektive Nichtanerkennung illegaler Staaten (2006). 33

See by analogy the Namibia opinion, ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 13, para. 56.

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measures), such as, e.g., the régime of international rivers.34 It stands to reason that aspects of international cooperation must also be prominent in a resource like that of cyberspace, which is essentially unbounded from the point of vantage of classical territorial limits. Fifth, it is unclear to what extent due diligence duties also apply to prospective, possible, or future acts. There is always a degree of uncertainty about the future. Private persons, possibly terrorists, might attempt to do a great variety of things (each one detrimental to the rights of other States) on the territory of the State whose due diligence duties we are considering. Must that State take (all?) reasonable measures to prevent such prospective acts? How far can the speculation into such acts reach, and what resources must the State bind for such a huge enterprise? Or does the State not have any preventive due diligence duties in such a context, the damaging conduct being still too speculative to give rise to a duty to act? The problem is particularly acute in the context of cyber-activities, due to their covert nature and their potentially broad reach. The ability to mount comprehensive defences against all possible threats would lead to unreasonable duties, going well beyond what is classically defined as due diligence. It comes as no surprise that the experts in the Tallinn process, who were mainly from North Atlantic Treaty Organization States, could not agree on this issue.35 The proper answer must be to link the duties of the State to what is reasonably possible (zumutbar). This in turn depends on the type and gravity of the prospective threat, on the existing technical possibilities at any given moment, on the devices at the disposal of a particular State (it will be difficult to require as much from Eritrea as from the United States of America albeit there is a duty to organise the State in order to be able to fulfil international obligations), on the fact of being put on notice of a particular risk, and on other circumstantial factors. No State is obliged to do the impossible and none is obliged to venture into the unreasonable. The relation of cost and useful outcome has to be weighed. Sixth, due diligence obligations arise normally if a State has knowledge of the detrimental activities or at least of the risk of such activities. The classical rule is that a 34 See the UN Convention on the Law of Non-Navigational Uses of International Watercourses, GA Res. 51/229 of 21 May 1997, in particular Arts. 8–9. On this Convention see the commentary of Stephen C. McCaffrey/Mpazi Sinjela, The 1997 United Nations Convention on International Watercourses, American Journal of International Law 92 (1998), 97. 35

Tallinn Manual (note 21), 27.

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State may not ‘knowingly’ allow the use of its territory for activities breaching the rights of foreign States. Relevant knowledge exists when another State or institution puts a State on notice that such a detrimental activity, or the risk thereof, exists. Knowledge also exists when the intelligence services of the State, or its police forces, detect the activity or the risk thereof. In our context, this would relate essentially to credible information that a cyber attack or cyber criminality is underway from a territory.36 This aspect triggers two further considerations. First, there is the requirement of a proper organisation of the State, so that the information is transmitted to all the competent services and shared as far as necessary. Practice shows that this is far from always being the case. The information is often sensitive and therefore some services tend to keep it aloof from other services. Or the organisation of the State is insufficient, a not infrequent occurrence in the context of inflated modern bureaucracies. Such a state of affairs would hardly be compatible with the organisational side of due diligence. Second, a careful analysis of the information must take place so as to be able to separate ‘credible’ information from such which is not credible. That may be an easy exercise in one situation, but it also may be a difficult one in another situation. Some degree of international cooperation may be necessary here to fully live up to the due diligence duties. The most difficult question relates to ‘constructive knowledge’, i.e. imputation to the State of what it should have known. Is any negligence, or only grave negligence, imputable to the State (perhaps itself under some due diligence standards) in order to apply the substantive due diligence duties towards another State? In other words: if a State fails to police with due care its own territory and the areas under its control and is therefore unaware of some detrimental private activities, does this State engage its responsibility? The Tallinn experts were unable to agree on this intricate matter.37 The difficulties are indeed considerable, especially in the cyber context. As was written in the Tallinn Manual: Even if constructive knowledge suffices, the threshold of due care is uncertain in cyber context because of such factors as the difficulty of attribution, the challenges of correlating separate sets of events as part of a coordinated and distributed attack on one or more targets [or of criminal activity], and the ease with which deception can be mounted through cyber infrastructure.38

36

Ibid., 28.

37

Ibid.

38

Ibid.

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Such difficulties suggest that a breach of due diligence duties can be affirmed only in most egregious cases, when there is a manifest negligence of the gravest nature. The test seems practically speaking to be of massive negligence, of the type: ‘How could he not have done this or that …’, and not: ‘It would appear that he ought better have done this or that …’. Seventh, the violation of due diligence duties entails the ordinary consequences of State responsibility. The extent to which an aggrieved State may do more than to ask for ex post facto reparation must be related to the applicable primary or secondary norms of international law. Thus, if the conditions for the adoption of countermeasures are met,39 such measures may be taken. The most interesting question relates to the faculty to take direct remedial measures when a State is ‘unable or unwilling’ to act to curb the detrimental activity. The issue has been discussed essentially in the context of self-defence40 but is of more general application. It would appear that in the context of the fight against criminality such measures could not be taken on the territory of another State without its consent, lest the fundamental rules on the protection of territorial sovereignty be completely subverted. However, in the cyber context measures could be taken directly from the territory of the aggrieved State, even if these measures produced some effects on the territory of another State (as the Stuxnet attacks in Iran show). Not implying any activity or presence on the territory of another State, these cyber-related acts are therefore not to be legally analysed as substitutive measures for a defaulting State (Ersatzvornahme). They are rather a category of countermeasures or simply protective measures (not limited by the conditions of countermeasures) for the violation of one’s own rights and/or the concomitant violation of due diligence duties by the other State. It also stands to reason that more than one remedy may be used in parallel. Finally, the question arises as to the number of injured States. There are certainly some directly injured States in a particular context, e.g. the State on whose territories the detrimental and unlawful effects occur. However, since the medium of the cyberspace is unique and the routes of the internet completely inter-linked, it might be possible to consider that there is here a sort of common space. In this case each State has an interest in upholding a situation not detrimental to its security. All States of the world would to some extent be injured (jeopardised in 39

Arts. 49 et seq. ARS; see Crawford (note 31), 281 et seq.

40

See e.g. Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (2010), 419 et seq.

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a common stake) by criminal activities on the net, since these activities could be routed through their territory. The only proper response to such a common interest would be to revert back to the duties of cooperation already mentioned.

D. Specific Issues with Due Diligence in Cyberspace

The particular nature of cyberspace prompts certain particular problems in the context of due diligence duties. Only two of them will be raised here because of the lack of technical knowledge of the author of these lines. First, a State may be put on notice or acquire itself the knowledge that a harmful cyber activity is being mounted and will be routed through its territory. But that State may be unable to identify the signature and timing of the perpetrators. Should it completely block access to services on all the connections through its territory? That can hardly be expected when considering proportionality, reasonableness, and due diligence. The same is true in most cases when a State just acquires the knowledge that a cyber crime is routed through its installations or territory. It may be argued that if there is concrete knowledge of the offending operation and a parallel material ability to put an end to it (through proportional measures, it must be added), the State must exercise that ability.41 However, the peculiarities of cyberspace will make such an operation often somewhat difficult and the result to be obtained speculative. When a transmission is blocked at one point of the network, it will usually automatically be rerouted along a different transmission path, most often through a different State. Any action of the State at one point of the network could then not have the causal effect of avoiding the detrimental result. Such action is then not due from the point of view of diligence: Due diligence is not concerned with measures which have no impact on the prevention of the unlawful outcome. The situation is different when the culprits are located within the territory of a State and there is thus a material possibility of arresting them. The situation might also be different when rerouting can be exceptionally avoided through some available technical devices. All these aspects relate to questions of fact. Moreover, it is once more apparent that a successful fight against such activities presupposes an increased cooperation among States. To the extent the activities at 41

This was the view of certain Tallinn experts: Tallinn Manual (note 21), 28.

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stake refer to private crimes (such as trafficking of human beings, child pornography, etc.), there is some prospect in achieving a greater degree of cooperation. The stumbling block in this context will then not be the lack of inclination towards cooperation. However, there will be the ever-present problem of lack of resources. Conversely, when the criminal activities occur with some State involvement or State interest, such as is often the case with terrorist activities, cooperation will be limited to some States and not extend to those sympathetic to the causes of its authors. Second, the question may arise under due diligence to what extent a State (especially poorer States) must organise and finance measures geared towards possession of a number of cyber-specialists, keeping up with the latest technical advances, and so on. As we have seen since the 19th century, due diligence concerns also the proper organisation of the State, so as to be in a position to properly react to the challenges for the rights of other States. However, the burden of organising properly to display in an orderly way the ordinary functions of a State is one thing; the burden to keep up with the pace of highly sophisticated technologies in a constantly shifting environment is another. The question cannot be easily answered (apart from the recurring point on international cooperation and possibly on transfer of technology), but it is of obvious importance. It stands indeed to reason that the criminal elements will particularly favour States and routes where the control is low or inadequate.

IV. Conclusion One of the questions raised above was the extent to which the concept of due diligence could be applied to cyberspace activities. The answer must be that the concept is of overall usefulness in any context where the State has to monitor private activities in areas under its control so as to avoid harmful effects violating the rights of foreign States. The concept is moreover flexible enough to fit most differing contexts. At the same time, however, cyberspace presents unique characteristics. The point is not so much that due diligence is ill-adapted to such a space, but that it can be applied to such a space only when a series of parameters of the subject matter are taken into account. Due diligence is a concept flexible enough to accommodate such particular needs. To some extent, all the rules of traditional international law are to be reimagined in this unique context. International law is still essentially linked to the

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exclusive jurisdiction of States over pieces of delimited territory in the world. The space of international law is fragmented; without such fragmented jurisdictional space international law would not exist at all. The paradigm of sovereignty and exclusive jurisdiction is politically cherished through self-determination and self-understanding of peoples. It will not be given up in the foreseeable future. However, the paradigm adapts with difficulty to certain activities whose nature is to be fundamentally nonterritorial and ubiquitous. The virtual space is to a large extent interrelated, inseparable, and unique. Uncoordinated State actions to curb activities in such a space promise only a limited degree of success. The necessary complement can flow only from international cooperation and new legal instruments adapted to the unique nature of that peculiar space. But that is, after all, a trite truth.

Teaching an Old Law New Tricks:( International Environmental Law Lessons for Cyberspace Governance JUTTA BRUNNÉE(( AND TAMAR MESHEL(((

ABSTRACT: This article uses international environmental law as a lens for analysing States’ obligations in relation to cyber activities of non-State actors operating under their jurisdiction. We begin by exploring opportunities for borrowing well-established rules of harm prevention and due diligence from the more advanced, but not dissimilar, field of international environmental law. We argue that these rules can provide a legal foundation for the emerging field of international cyber law, and have already made their way into the cyberspace discourse. We then draw on the experience of international environmental law with conceptual notions such as ‘global commons’ and ‘shared resources’, as well as with institutional models such as multilateral environmental agreements and norm-developing bodies. We highlight the risks and drawbacks of the conceptual and institutional leap from States’ transboundary harm prevention duties to protection of a commons in the ‘virtual’ world of cyberspace. KEYWORDS: International Environmental Law, Non-State Actors, State Responsibility, Transboundary Harm Prevention, Due Diligence, Global Commons, Shared Resources, Institutional Framework

I. Introduction For international lawyers, the body of rules that should govern cyberspace and harmful cyber activities is still an emerging field. Much has been written in recent years about the circumstances in which cyber actions by States, or attributable to ( The title is borrowed from Jody Freeman, Teaching an Old Law New Tricks, The New York Times, 30 May 2014, available at: http://www.nytimes.com/2014/05/30/opinion/teaching-an-old-lawnew-tricks.html?emc=edit_ty_20140530&nl=opinion&nlid=28076609 (accessed on 3 July 2014) (commenting on the Obama Administration’s recourse to existing clean air legislation in the face of Congress’ failure to regulate greenhouse gas emissions). (( (((

Professor of Law and Metcalf Chair in Environmental Law, Faculty of Law, University of Toronto.

SJD Candidate, University of Toronto Faculty of Law; Research Fellow, Max Planck Institute for International, European and Regulatory Procedural Law.

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States, should be considered equivalent to ‘armed attacks’ that might trigger another State’s right to self-defence.1 But the legal toolkit of the law on the use of force is not appropriate for dealing with the vast majority of ‘cyber attacks’ and, in any case, is not applicable. Many State-controlled cyber attacks remain below the threshold of the use of force framework, engaging instead the basic rules requiring that States not cause harm to other States or to areas beyond State jurisdiction. Others may amount not to a ‘use of force,’ but to illegal intervention. The legal consequences, as a result, will be governed by the law of State responsibility, not the law on the use of force. The same applies, arguably, in situations in which a cyber attack might be likened to a use of force in violation of Article 2 (4) Charter of the United Nations (UN Charter),2 but not an armed attack within the meaning of Article 51 UN Charter.3 Furthermore, and quite apart from the question whether actions fall within the ambit of the rules on the use of force or another set of rules, many cyber acts are not undertaken by States or their agents, such that States would be directly responsible for them. Rather, a large proportion of such actions are undertaken by non-State actors, who operate within the territories or otherwise under the jurisdiction of various States. It is the legal regime for this wide array of ‘peacetime’ cyber operations that we consider in this chapter, focusing in particular on the primary obligations of States in relation to non-State actions occurring under their jurisdiction. In exploring this terrain, we draw on the evolution and legal building blocks of international environmental law, which we believe holds a number of important lessons for the emerging field of international cyberspace law. International environ1 See e.g., Peter Margulies, Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility, Melbourne Journal of International Law 14 (2013), 1; Michael N. Schmitt, ‘Below the Threshold’ Cyber Operations: The Countermeasures Response Option and International Law, Virginia Journal of International Law 54 (2014), available at: http://ssrn.com/abstract=2353898 (accessed on 3 July 2014); id., (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn Manual) (2013); Wolff Heintschel von Heinegg, Chapter 1: The Tallinn Manual and International Cyber Security Law, Yearbook of International Humanitarian Law 15 (2012), 3; Dieter Fleck, Searching for International Rules Applicable to Cyber Warfare-A Critical First Assessment of the New Tallinn Manual, Journal of Conflict & Security Law 18 (2013), 331; Cassandra Kirsch, Science Fiction No More: Cyber Warfare and the United States, Denver Journal of International Law & Policy 40 (2012), 620; Scott Shackelford/Richard Andres, State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, Georgetown Journal of International Law 42 (2011), 971. 2 3

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

See discussion in Michael N. Schmitt, International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed, Harvard International Law Journal 54 (2012), 13, 20.

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mental law evolved in a way that is not dissimilar to what is now occurring in relation to cyberspace. When the first environmental problems arose, there existed no specific rules on environmental impacts in international law. Recourse had to be had to the general rules that govern the rights and obligations attached to State sovereignty. But dealing with international environmental problems often requires cooperation and finely calibrated response measures that can address complex problems and adapt as the problems or the human understanding of them and technical capacity to solve them evolve. International environmental law and the emerging field of international cyberspace law are similar also in some important structural respects. Notably, one of the distinctive features of international environmental law is that it must almost always deal with impacts that are generated by private actors. Furthermore, like the potential consequences of cyber activities, environmental consequences of actions in one State are often felt in another State’s territory or in areas beyond State jurisdiction – the ‘commons’. However, if one were to undertake an assessment of the state of international environmental law in 2014, one might conclude that, at least in some respects, it is coming full circle. In the 1980s and 1990s, the field experienced rapid growth through the emergence of specialised rules and principles, and the subsequent proliferation and progressive expansion of more and more elaborate treaty regimes and treaty-based standard-setting processes relating to a wide array of regional and global issues.4 Today, new environmental agreements have become a rarity and even the further development of existing regimes through treaty-based international environmental lawmaking seems to have slowed. Indeed, in the case of the perhaps most complex international environmental challenge – climate change – international environmental law appears to be undergoing a fundamental shift from ‘top-down’ standard-setting to a more flexible, ‘bottom-up’ approach.5 Whether by coincidence or in response to these patterns, the foundational principles of international environmental law have seen something of a renaissance. In the last few years, States have invoked basic rules concerning transboundary impacts and have turned to international courts and tribunals for clarification of the attendant procedural obligations and due diligence 4

For an overview on this evolution, see Daniel Bodansky/Jutta Brunnée/Ellen Hey, Mapping the Field, in: Daniel Bodansky/Jutta Brunnée/Ellen Hey (eds.), Oxford Handbook of International Environmental Law (2008), 1. 5

See e.g. Daniel Bodansky, A Tale of Two Architectures: The Once and Future U.N. Climate Change Regime Arizona State Law Journal 3 (2011), 697.

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requirements. In other words, some of the recent developments in international environmental law can be traced all the way back to its roots in basic principles concerning sovereign rights and in the iconic cases that developed these principles, such as the Island of Palmas arbitration or the Corfu Channel case.6 We begin by reviewing States’ responsibilities in relation to harmful conduct attributable to private actors, focusing on the scope of States’ general harm prevention and due diligence obligations and related standards. We first discuss the application of these concepts in the environmental context, considering how they may contribute to the development of norms for the regulation of harmful activities in cyberspace. We will show that the obligations of harm prevention and due diligence have already made their way into the cyberspace discourse. Many cyber security and legal scholars,7 as well as governments8 and international organisations,9 have recognised States’ obligation to exercise due diligence in order to prevent cyber activities 6

Island of Palmas Case (Netherlands, USA), Arbitral Award of 4 April 1928, Reports of International Arbitral Awards (RIAA) II, 829; International Court of Justice (ICJ), Corfu Channel, United Kingdom of Great Britain and Northern Ireland v. Albania, Merits, Judgment of 9 April 1949, ICJ Reports 1949, 4. 7

See e.g., Wolff Heintschel von Heinegg, Territorial Sovereignty and Neutrality in Cyberspace, International Law Studies 89 (2013), 123, 138; Jan Messerschmidt, Hackback: Permitting Retaliatory Hacking by Non-State Actors as Proportionate Countermeasures to Transboundary Cyberharm, Columbia Journal of Transnational Law 52 (2013), 275; Margulies (note 2), 16, 18, 19; Katharina Ziolkowski, Ius ad bellum in Cyberspace – Some Thoughts on the “Schmitt-Criteria” for Use of Force, in: Christian Czosseck/Rain Ottis/Katharina Ziolkowski (eds.), 2012; 4th International Conference on Cyber Conflict: Proceedings (2012), 306, 307; Joanna Kulesza, International Internet Law, Global Change, Peace & Security 24 (2012), 351; Tallinn Manual (note 2), 26–28; Jason Healey/Hannah Pitts, Applying International Environmental Legal Norms to Cyber Statecraft, I/S: A Journal of Law and Policy for the Information Society 8 (2012), 356; Matthew E. Castel, International and Canadian Law Rules Applicable to Cyber Attacks by State and Non-State Actors, Canadian Journal of Learning & Technology 10 (2012), 89; Joanna Kulesza, State Responsibility for Cyber-Attacks on International Peace and Security, Polish Yearbook of International Law 29 (2009), 139. 8 E.g., United States Government, The White House, International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World, May 2011, 8, available at: http://www.whitehouse. gov/sites/default/files/rss_viewer/international_strategy_for_cyberspace.pdf (accessed on 3 July 2014), cited in Jody Prescott, Direct Participation in Cyber Hostilities: Terms of Reference for Like-Minded States?, in: Czosseck/Ottis/Ziolkowski (eds.) (note 8), 251, 262. 9

E.g., Council of Europe, International and Multi-Stakeholder co-operation on Cross-border Internet: Interim report of the Ad-hoc Advisory Group on Cross-border Internet to the Steering Committee on the Media and New Communication Services incorporating analysis of proposals for international and multi-stakeholder co-operation on cross-border Internet (2010), available at: http://www.umic.pt/images/stories/publicacoes5/MC-S-CI%20Interim%20Report.pdf (accessed on 3 July 2014).

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that are harmful to other States from occurring in their territories. We then turn to the notions of ‘global commons’ and ‘shared resources’, concepts that are prominent in international environmental law but have been controversial or of limited relevance in the cyber context. We discuss them mainly to highlight the potential and risks of efforts to regulate not only harm caused by States to other States in relation to cyberspace, but also harm caused to cyberspace itself as a common resource. Finally, drawing on the experience with the design of multilateral environmental agreements and norm-developing bodies, we offer some observations on institutional models, and highlight some of the potential drawbacks of these models in the cyber context. At this point, in any case, multilateral treaty-based regimes are largely absent in the cyberspace context as States have been unable to reach consensus on the nature, content, scope, or even necessity, of global regulation of cyberspace. The argument that we advance in this chapter boils down to this: There exist some well-established rules that can help provide a legal foundation for international cyber law, and some conceptual and institutional models that might seem tempting but are fraught with difficulties in practice. We will suggest that the conceptual and institutional leap from States’ transboundary harm prevention duties to protection of a ‘commons’ is unlikely to be feasible or even desirable. Our goal in this chapter is to explore opportunities and post warning signs for those in the ‘virtual’ world of cyberspace who seek to learn from the ‘real’ world of international environmental law.

II. The No Harm Rule and Related Principles One of the most straightforward approaches to building international cyberspace law may be to apply the legal principles on harm prevention and due diligence to cyberspace issues. These principles are not only well established, but also anchored in foundational principles of international law that are designed to balance competing sovereign interests. For example, in the Island of Palmas case, the Arbitrator held that “[t]erritorial sovereignty […] has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability.”10 Similarly, the International Court of Justice (ICJ), in its decision in the

10

Island of Palmas Case (note 7), 839.

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Corfu Channel case, found that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”11 International environmental law, in the absence of specific rules, adapted these general rules to the environmental setting. The salient principles evolved into the proposition that States’ rights to use their territories and resources are limited by the obligation to ensure that activities under their jurisdiction or control do not cause significant transboundary harm. This ‘no harm’ rule has since been affirmed and fleshed out through a series of multilateral environmental agreements (MEAs) and other international instruments, as well as several arbitral and judicial decisions.12 The ICJ confirmed in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons that the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.13 The Court reiterated this conclusion in its decision in the Gabčíkovo-Nagymaros case and its decision in the Pulp Mills case.14 The International Law Commission’s (ILC) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities too confirmed States’ obligation to “take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”15 The key point for our present purposes is that looking to international environmental law ultimately means turning to basic principles, applicable to any harm 11

ICJ, Corfu Channel (note 7), 22.

12

See e.g., Trail Smelter Case (USA, Canada), Arbitral Award of 16 April 1938 and 11 March 1941, RIAA III, 1905, 1965; Lac Lanoux Arbitration (France, Spain), Arbitral Award of 16 November 1957, RIAA XII, 281; Declaration of the United Nations Conference on the Human Environment, UN Doc. A/Conf.48/14/Rev. 1 (1973) (Stockholm Declaration); Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992), 3 (Rio Declaration); Convention on Biological Diversity, GA Res. 49/117 of 19 December 1994, GAOR, 51st Sess., Suppl. 49, 143, Art. 3; United Nations Framework Convention on Climate Change, 9 May 1992, UNTS 1771, 107, Preamble. 13 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 29. 14

Id., Gabčíkovo-Nagymaros Project (Hungary/v. Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7, 41, para. 53; id., Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 4, para. 101. 15

International Law Commission (ILC) Articles on Prevention of Transboundary Harm from Hazardous Activities, GAOR, 56th Sess., Suppl. 10, 148 et seq., Art. 3.

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caused to States’ territories, including cyber-related harm, without the need for ‘norm creation’. We believe that this fact alone is a crucial advantage. In addition, international environmental law offers rich State practice and judicial opinions that provide guidance on the nature of the due diligence obligations that flow from the exercise of sovereign rights. Two recent cases are of particular interest in this respect – the ICJ’s Pulp Mills case and the advisory opinion on Activities in the Area of the Seabed Disputes Chamber of the International Tribunal of the Law of the Sea (ITLOS Chamber).16 The discussion below focuses on the elements of each decision that flesh out the no harm rule with respect to due diligence, the attendant procedural obligations, and the relationship between harm prevention and precaution. As we proceed, we explore the extent to which the approach in international environmental law finds parallels in the emerging international cyberspace law.

A. Harm Prevention and Due Diligence

1. International Environmental Law and Norm Evolution in International Cyberspace Law In the Pulp Mills decision, the ICJ emphasised two important features of the no harm rule. First, it encompasses an obligation to prevent harm. Second, “the principle of prevention, as a customary rule, has its origins in the due diligence that is required of a State in its territory.”17 This obligation to act with due diligence entails “not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators.”18 The ITLOS Chamber’s advisory opinion on Activities in the Area, in turn, was concerned with the responsibility of States to take appropriate measures to ensure 16

ICJ, Pulp Mills (note 15); International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, available at: http://www.itlos.org/index.php?id=109 (accessed on 3 July 2014). 17

ICJ, Pulp Mills (note 15), para. 101.

18

Ibid., para. 197.

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that private entities operating in the deep seabed do not cause harm in that ‘commons’ area. Perhaps most importantly for present purposes, the Chamber highlighted the contextual nature of the due diligence standard. The Chamber observed that the due diligence standard may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge. It may also change in relation to the risks involved in the activity […] [and] be more severe for the riskier activities.19

Due diligence may vary also in light of the capacity of the State concerned, although this point appears to be more controversial. Some leading commentators on international environmental law, citing numerous international instruments that accommodate developing countries’ lesser technological and regulatory capacity, including the United Nations (UN) Framework Convention on Climate Change,20 compared the flexibility of the due diligence standard to the principle of common but differentiated responsibility.21 However, the ITLOS Chamber made a point of emphasising that different treatment for developed and developing States is warranted only when the underlying international legal obligations provide for it.22 The general requirement of harm prevention, and its attendant due diligence obligation, has already been recognised as a basis for States’ obligations with respect to cyberspace activities. The Ad hoc Advisory Group on Cross-border Internet (Advisory Group), established by the Council of Europe, explicitly referred to the use of the no harm principle in the environmental law context, and relied on it to “underline the primary nature of the proposed commitments of a state to prevent, manage and respond to significant transboundary disruption of or interference with the stability, robustness, resilience and openness of the Internet.”23 Some States have also recognised a general due diligence obligation in cyberspace. The United States (US), for instance, considers cyber security due diligence to be an emerging norm according to which “States should recognize and act on their responsibility to protect informa19

ITLOS, Activities in the Area (note 17), para. 117.

20

See supra, note 13.

21

Patricia Birnie/Alan Boyle/Catherine Redgwell, International Law and the Environment (3rd ed. 2009), 149. 22

ITLOS, Activities in the Area (note 17), paras. 151–163.

23

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 64.

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tion infrastructures and secure national systems from damage or misuse,”24 while recognising that “unique attributes of networked technology require additional work to clarify how these norms apply.”25 A duty “not to use information and communications technologies, including networks, to carry out hostile activities or acts of aggression, pose threats to international peace and security or proliferate information weapons or related technologies” was also recognised by China and Russia in 2011.26 Russia argued for inclusion of a more specific duty to take all necessary steps to prevent any destructive information action originating from their own territory or using the information infrastructure under their jurisdiction, as well as cooperate to locate the source of computer attacks carried out with the use of their territory, to repel these attacks and to eliminate their consequences in a proposed international information security convention.27

The obligation to prevent harm to other States from cyber attacks and other malicious cyber activities conducted in their territories is generally considered to include the obligation to pass stringent criminal laws, conduct vigorous investigations, and prosecute attackers.28 These obligations have been distilled from international judicial decisions, such as in the Corfu Channel case,29 and confirmed by State practice, notably States’ treatment of cyber attacks under their criminal laws, UN and States’ dec-

24

US International Strategy for Cyberspace (note 9), 10.

25

Ibid., 9.

26

United Nations General Assembly, Letter dated 12 September 2011 from the Permanent Representatives of China, the Russian Federation, Tajikistan and Uzbekistan to the United Nations addressed to the Secretary-General, UN Doc. A/66/359 (2001), available at: http://cs.brown.edu/courses/ csci1800/sources/2012_UN_Russia_and_China_Code_o_Conduct.pdf (accessed on 3 July 2014). 27

Russian Federation, The Ministry of Foreign Affairs, Convention on International Information Security (Concept), available at: http://www.mid.ru/bdomp/ns-osndoc.nsf/1e5f0de28fe77fdcc32575 d900298676/7b17ead7244e2064c3257925003bcbcc!OpenDocument (accessed on 3 July 2014), cited in Katharina Ziolkowski, Confidence Building Measures for Cyberspace, in: ead. (ed.), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy (2013), 538, available at: http://www.ccdcoe.org/publications/books/Peacetime-Regime.pdf (accessed on 3 July 2014). 28

Matthew J. Sklerov, Solving the Dilemma of State Responses to Cyberattacks: A Justification for the Use of Active Defenses Against States Who Neglect Their Duty to Prevent, Military Law Review 201 (2009), 62; Katharina Ziolkowski, General Principles of International Law as Applicable in Cyberspace, in: ead. (ed.) (note 28), 136; Benedict Pirker, Territorial Sovereignty and Integrity and the Challenges of Cyberspace, in: Katharina Ziolkowski (note 28), 207. 29

ICJ, Corfu Channel (note 7).

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larations, and the European Convention on Cybercrime (Budapest Convention).30 Hence, a due diligence duty is seen by some observers as forming part of customary international law also in the cyber context.31 The duty has also been interpreted as “an obligation to render best efforts, calling for a state to take all ‘reasonable and necessary’ measures in order to prevent a given event, however, without warranting that such an event will not occur.”32 Some have also argued that an assessment of compliance with this duty would depend on “the conduct of the host-state itself in addressing the potential threat and in attaining a realistic result in light of the factual circumstances.”33 The Advisory Group considered the due diligence duty to mean, in general terms, that States must “take all appropriate measures at [their] disposal to prevent and minimise foreseeable significant transboundary harm.”34 The Group further suggested that the obligation could be satisfied by States’ “accession to relevant international law instruments such as the Budapest Convention and participation in their follow up arrangements;” by their participation in “the development and implementation of Internet user education and public awareness programmes; their promotion and facilitation of dialogue with stakeholders as well as other appropriate measures;” and by informing themselves of “factual and legal components that relate to transboundary disruptions or interferences with the Internet infrastructure” and taking “appropriate measures in a timely fashion to address them.”35 As part of a contextual approach that resembles the one endorsed by the ITLOS Chamber in its advisory opinion concerning Activities in the Area, the Advisory Group noted that “the required degree of care should be proportional to the degree of risks involved or consequences incurred,” although “the commitment ‘to take all reasonable measures’ to prevent and respond to disruptions or interference, or to min-

30 Convention on Cybercrime, 23 November 2001, CETS No. 185; Sklerov (note 29), 63–71; Castel (note 8), 108. 31

Messerschmidt (note 8), 304, footnote 186; Wolff Heintschel von Heinegg, Legal Implications of Territorial Sovereignty in Cyberspace, in: Czosseck/Ottis/Ziolkowski (eds.) (note 8), 18 (noting that cyber security due diligence is considered by a large number of ‘like-minded’ States as already being part of customary international law, but taking the position that it has not yet reached this status). 32

Kulesza, State Responsibility for Cyber-Attacks on International Peace and Security (note 8), 149.

33

Sklerov (note 29), 43.

34

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 72.

35

Ibid., paras. 71–73.

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imise risks and consequences thereof, would be of a continuous nature.”36 The Advisory Group also engaged capacity questions similar to those considered by the ITLOS Chamber in relation to differentiation between developing and developed States in the environmental context. Specifically, it noted that “an efficient observance of a due diligence commitment is understood as the implementation of those measures which would be commensurate with the overall capabilities of the country concerned to address the risks,”37 and that legislative, administrative, or other action necessary to implement a States’ due diligence commitments “should be subject to the capabilities of the state concerned.”38 The scope of States’ harm prevention and due diligence obligations in cyberspace were also considered in the Tallinn Manual on the International Law Applicable to Cyber Warfare (Tallinn Manual), a document prepared by an independent international group of experts comprised of practitioners and scholars (Tallinn Manual Group of Experts).39 While the Manual deals primarily with cyber warfare, it recognises the no harm obligation as a rule of “a general international legal nature” applicable to “the relationship between states, cyber infrastructure, and cyber operations” and extending to “all cyber activities from one State’s territory that affect the rights of other States and have detrimental effects on another States’ territory […] irrespective of the attributability of the acts in question to a State.”40 Again in keeping with the approach in international environmental law, the Tallinn Manual considers that the no harm prevention and due diligence obligations encompass the requirement that States “use all means at [their] disposal to require [private entities]” to take remedial action to terminate a harmful activity.41 The Manual also addresses one important issue that has remained underspecified thus far: the level of harm required to trigger the harm prevention duty. In international environmental law, the Trail Smelter Case posited a “serious consequence” standard

36

Ibid., para. 74.

37

Ibid.

38

Ibid., para. 77.

39

Tallinn Manual (note 2).

40

Ibid., 15, 26, 27.

41

Ibid., 28, para. 9.

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with respect to transboundary air pollution,42 although today a “significant harm” standard, intended to exclude de minimis harm, is more common.43 The Tallinn Manual only requires a “negative effect” to result from the cyberspace activity, which need not involve physical damage to objects or injuries to individuals.44 However, the Manual does not specify what harm would be considered as having a sufficiently “negative effect” in this context.

2. Areas of Controversy It appears then that the duty to prevent harm and the due diligence obligation are already informing the cyberspace discourse, thereby eliminating, at least in part, the need to ‘reinvent the wheel’ with regard to the regulation of harmful conduct in cyberspace. However, while the relevance of these principles in the cyberspace context has been widely recognised, their precise nature and scope remain contested, and therefore in need of further development and clarification. In this regard, there appears to be several broad areas of controversy, all related in one way or another to the challenges of attribution and to questions surrounding how heavy a harm prevention burden to place on States in relation to non-State activities. After all, hackers and other cyber actors can draw from a rich menu of options for concealing their identities and evading attribution.45 Hence, some have doubted the political as well as practical feasibility of no harm and due diligence obligations of States in the cyberspace context, as opposed to reliance on the stringent requirements of the law of State responsibility for direct attribution of harmful actions to States.46 A viable due diligence framework, some argue, may be 42

Healey/Pitts (note 8), 378.

43

ILC Draft Articles Transboundary Harm (note 16), 41–42.

44

Tallinn Manual (note 2), 27, para. 5.

45

For example, Internet Protocol (IP) packets can be intercepted or spoofed mid-route, making it difficult to trace them back to their source. Alternatively, reliance on “botnets”, robot networks of malware-infected personal computers, allows attackers to remain anonymous by assuming the identity of someone else in order to perform malicious actions. See Shackelford/Andres (note 2), 982 and Mauno Pihelgas, Back-Tracing and Anonymity in Cyberspace, in: Katharina Ziolkowski (ed.) (note 28), 46, 47. We are grateful to Alex Ognibene for assisting us with this point. 46

Ziolkowski (note 8), 307.

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difficult to achieve as “it is unclear that any state is prepared (politically or technologically) to take full responsibility for all harm emanating from gateway routers, very small aperture terminals […] wireless mobile devices, and other devices within its territory or jurisdiction.”47 Therefore, States may not be willing to agree on criteria for a more expansive regime of indirect responsibility for non-State actors’ cyber activities, based on the ‘no harm’ principle.48 In short, it may seem sensible and even self-evident that States should enact and enforce criminal laws regarding cross-border cyber attacks, in line with the ICJ’s finding in Pulp Mills that diligence requires States to “adopt appropriate rules and measures” and “take all appropriate measures to enforce” them.49 But it may be exceedingly difficult to define in a concrete and also manageable manner what exactly are “appropriate” standards and efforts to prevent harm from cyber attacks and other hostile acts. And, even if agreed, such a general standard may not suffice. “Because of the speed with which cyber weapons could be deployed,” some observers claim, “relying only upon cyber due diligence presents too great a risk of intrusion by unfriendly actors.”50 This challenge is further complicated by “the nature of harmful cyber acts, especially time and space compression, and their often-unprecedented character,”51 as well as precisely “the ease with which deception can be mounted through cyber infrastructure,”52 which may make it impossible for a State to prevent injury to another State.53 Some interpretations of due diligence in cyberspace have attempted to take the unique nature of cyber acts into account. For instance, the Advisory Group has limited the applicability of States’ “due diligence commitments of prevention, management and response” to situations where the State is the actual operator or manager 47

Sean Kanuck, Sovereign Discourse on Cyber Conflict Under International Law, Texas Law Review (Tex. L. Rev.) 88 (2010), 1571, 1591–1592. See also Kirsch (note 2), 637–638 (arguing that “placing the responsibility on states for cyber attacks committed within their borders potentially unleashes a Pandora’s box of problems, particularly in determining whether the state initiated adequate control measures over the hackers”). 48 Heintschel von Heinegg (note 8), 139; Eric Jensen, Cyber Warfare and Precautions Against the Effects of Attacks, Tex. L. Rev. 88 (2010), 1533, 1568. 49

ICJ, Pulp Mills (note 15), para. 197.

50

Prescott (note 9), 263.

51

Tallinn Manual (note 2), 27, para. 4.

52

Ibid., 28, para. 11.

53

Ibid., 27, para. 4.

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of critical internet resources. Where it is not, the Group suggests that “the principle of subsidiarity or non-involvement of states in the ordinary administration of the network or operational issues” prevails, recognising the fact that “the private sector takes the lead in the day-to-day operations of the Internet.”54 Similarly, according to the Tallinn Manual, “the initiation of an attack using government infrastructure is merely ‘an indication’ that the state is ‘associated with the operation’” since in cyberspace it is more likely that government infrastructure could be taken over by non-State actors without State authorisation.55 This position has been criticised, however, for contradicting the due diligence obligation,56 and even undermining it by adopting the more stringent attribution approach of the ILC Draft Articles on State Responsibility.57 There is also disagreement with regard to the ‘knowledge’ required to trigger a State’s preventive obligations. While the Tallinn Manual’s International Group of Experts agreed that the obligations would be triggered if a State had “actual knowledge” of the acts in question, it could not agree on whether they would also obtain if a State had only “constructive (‘should have known’) knowledge”, for instance where a State fails to use due care in policing cyber activities on its territory and is therefore unaware of the acts.58 Some have argued that “a state’s duty to prevent cyber attacks should not be based on a state’s knowledge of a particular cyber attack before it occurs, but rather on its actions to prevent cyber attacks in general,” since such attacks are “extremely difficult for host-states to detect prior to the commission of a specific attack.”59 While this approach would be in line with the general thrust of the harm prevention and due diligence obligations as they have developed in international environmental law, it has been criticised for going too far in reducing the knowledge requirement in the cyber context.60 Others have contended that “presumptive knowledge is sufficient to trigger the duty” if the cyber attack can reasonably be considered to belong to a series of cyber attacks” originating from a State’s territory.61 The posi54

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), paras. 77, 78.

55

Tallinn Manual (note 2), 34, paras. 3–4.

56

Fleck (note 2), 339.

57

Margulies (note 2), 16–17.

58

Tallinn Manual (note 2), 28, para. 11.

59

Sklerov (note 29), 71.

60

Heintschel von Heinegg (note 8), 136, 137; Pirker (note 29), 205.

61

Heintschel von Heinegg (note 8), 136.

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tion of the Advisory Group in this regard is close to the stance of international environmental law; it is that “the disruption and interference should be foreseeable and the state concerned must know or should have known under the circumstances that the given activity involved a risk of significant consequences.”62 Finally, and relatedly, there seems to be a lack of consensus regarding the precise scope of the no harm and due diligence obligations in cyberspace. Notably, given the “difficulty of mounting comprehensive and effective defences against all possible threats,” the Tallinn Manual’s International Group of Experts could not agree on whether or not these general obligations should be applied to “situations in which the relevant acts are merely prospective” as opposed to those that are already underway.63 In other words, the Group could not agree on a general precautionary duty of States to undertake all appropriate measures with regard to potential cyber threats at an early stage and before a concrete risk of harm occurs,64 a concept with roots in international environmental law that we discuss in more detail below. Furthermore, the Group could not reach a consensus on the application of the no harm and due diligence obligations to States through which cyber operations merely transit, in light of the “unique routing processes of cyber transmissions.”65 By contrast, certain scholars have suggested that “reasonable measures to prevent […] prospective acts are required”66 and that even a mere transit State “has an obligation to prevent a cyber attack.”67 However, there is no consensus on this issue as of yet.68 These contentious issues, among others, must be resolved in order for the no harm principle to effectively regulate activities in cyberspace. International consensus should be achieved on the general content and limits of the due diligence standard applicable to cyberspace. Agreement is also needed on the relationship between States’ responsibility for failure to take diligent harm prevention measures and their responsibility for non-State acts directly attributable to them under the law of State responsibility. Arguably, both types of responsibility obtain, and each applies to a distinct type 62

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 74.

63

Tallinn Manual (note 2), 27, para. 7.

64

Ziolkowski (note 29), 167, 169.

65

Tallinn Manual (note 2), 28, 29, para. 12.

66

Pirker (note 29), 208.

67

Ibid., 209.

68

Heintschel von Heinegg (note 8), 137, 138.

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of ‘failure’ by a State. But, absent consensus on the issue, developing an effective normative and regulatory framework for cyberspace on the basis of the duty to prevent harm and the law of State responsibility will be difficult.69 With the caveats noted above, the development of these principles in the environmental context, and particularly the contextual approach adopted by the ITLOS Chamber’s advisory opinion, may be helpful in this regard. Applying such an approach in the cyberspace context could allow for a flexible, contextual application of the due diligence standard. One might also envision a contextual interpretation of the attribution rules in the law of State responsibility in accordance with new technological developments and the evolving nature of cyberspace. However, as in the debates surrounding the attribution of non-State actor conduct for the purposes of the law on the use of force, many States and other observers will likely have misgivings about modifying (and thereby potentially eroding) what is meant to be a general framework for specific purposes. The due diligence standard is therefore likely to be the most promising conceptual hook for the necessary fine-tuning; the precise contours of this standard could change over time and in accordance with the gravity of the transboundary cyber harm caused.

B. Procedural Obligations

The no harm rule entails a series of procedural obligations, including the obligation to notify or warn potentially affected States,70 the obligation to exchange information, to consult and negotiate,71 and the general obligation to cooperate to prevent harm.72 The Pulp Mills case confirms that these procedural obligations, on the one hand, have a separate existence as customary norms (that can be violated on their own terms – even when harm is ultimately not caused), and, on the other hand, are implied in the substantive obligation to prevent environmental harm (e.g. a State may have to notify

69 Kirsch (note 2), 638; Kanuck (note 48), 1592; Kulesza, State Responsibility for Cyber-Attacks on International Peace and Security (note 8), 151; Gary Brown/Keira Poellet, The Customary International Law of Cyberspace, Strategic Studies Quarterly 6 (2012), 126, 141. 70

ICJ, Corfu Channel (note 7).

71

Lac Lanoux Arbitration (note 13).

72

ICJ, Pulp Mills (note 15), para. 145 (tracing the obligation to cooperate to the good faith principle in international law).

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or consult with another about potential harm in order to meet its obligation of diligent harm prevention).73 In the cyberspace context, similar cooperative requirements and processes have been emphasised in light of its rapidly changing technological nature,74 its “global character”,75 and because protection from cyber threats requires “collaborative relationships for exchanging cyber defense data and an ability to establish trusted relationships.”76 Accordingly, the duty to cooperate has been considered to be relevant as a general principle of international law,77 as well as a legal obligation of States in the arena of cyber security.78 Reliance on traditional means of international cooperation in areas such as cybercrime, however, has been viewed as incapable of offering the timely response needed.79 Therefore, new cooperative mechanisms have been developed in this context, such as the 24/7 international assistance network established under the Budapest Convention for investigations and evidence collection concerning cybercrime.80 This broad duty to cooperate has been recognised as part and parcel of the obligation to prevent harm in the cyberspace context.81 It includes the obligation to undertake a risk assessment, to exchange information, to inform, notify, and consult other States in concrete cases of risk of significant transboundary harm,82 and to cooperate “with the victim-states of cyber attacks that originated from within their borders” during investigations and prosecutions.83 The Advisory Group, for instance, stated as 73

ICJ, Pulp Mills (note 15), paras. 78, 79.

74

Rolf Weber, Future Design of Cyberspace Law, Journal of Politics and Law 5 (2012), 1.

75

Ziolkowski (note 29), 177.

76

Diego Vázquez et al., Conceptual Framework for Cyber Defense Information Sharing within Trust Relationships, in: Czosseck/Ottis/Ziolkowski (eds.) (note 8), 2012, 4th International Conference on Cyber Conflict Proceedings (NATO CCD COE Publications 2012), 429. 77

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 75.

78

Ziolkowski (note 29), 177, 178.

79

United Nations Office on Drugs and Crime, Comprehensive Study on Cybercrime: Draft (February 2013), xi, available at: http://www.unodc.org/documents/organized-crime/UNODC_CCPCJ_EG. 4_2013/CYBERCRIME_STUDY_210213.pdf (accessed on 3 July 2014). 80 Convention on Cybercrime (note 31), Art. 35; Johann-Christoph Woltag, Internet, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), Vol. VI (2012), 227. 81

Ziolkowski (note 29), 186.

82

Ibid., 169; Healey/Pitts (note 8), 376.

83

Sklerov (note 29), 62; Heintschel von Heinegg (note 8), 135.

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general requirements that “States should co-operate mutually, in good faith and in consultation with each other and with concerned stakeholders at all stages of designing and implementing policies in relation to the Internet,”84 and “should take all reasonable measures to provide prior and timely notification and relevant information to states that may be potentially affected.”85 These requirements envision participation of states within whose jurisdiction disruptions or interferences with the Internet stability, robustness and resilience may originate, and states likely to be affected or actually affected, in action aimed at prevention of, preparedness for and response to risks and threats to critical Internet resources.86

In more practical terms, the Advisory Group noted that States should, in particular, “co-operate in the creation of public awareness about the risks and opportunities of cross border Internet traffic and the development of educational tools to enable citizens to share responsibilities for a safer Internet,” as well as take legislative action in order to overcome barriers to international cooperation.87 Moreover, “states may establish mechanisms that are suitable for monitoring the implementation of their preparedness and prevention commitments in respect of disruptions and interference with the infrastructure of the Internet.”88 The Advisory Group also set out detailed standards for information exchange and coordinated action, some of which were explicitly ‘borrowed’ from the international environmental context.89 These include the development of common rules and practices for information sharing, incident reporting, and for deploying internet resilience technologies; timely notification of transboundary risks and vulnerabilities; assessment of possible or actual adverse transboundary effects; coordination of emergency and response policies; and mutual consultations and assistance.90 Some of these obligations have also been included in the Budapest Convention.91

84

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), 18.

85

Ibid., 21.

86

Ibid., para. 75.

87

Ibid., paras. 76, 79.

88

Ibid., para. 80.

89

Ibid., para. 93.

90

Ibid., paras. 91–102.

91

Such as mutual assistance, see Convention on Cybercrime (note 31), Chapter III.

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The reality remains, however, that some States from which cyber attacks originate refuse to accept responsibility or cooperate with investigations,92 that a clear framework for effective and timely exchange of information on critical infrastructure protection is lacking,93 and that outside the realm of cyber crime there has been little international cooperation in reducing the transboundary impact of malicious activities in cyberspace.94 Since States continue to have “wide discretion as to how to fulfill the legal obligation to cooperate in the cyber realm”,95 there is a clear need for consensus to be reached on a uniform standard for cooperation. Such consensus, moreover, cannot include only States. In light of the dominant role of the private sector and civil society in internet governance, a multi-stakeholder approach must be applied in the discussion and formulation of procedural obligations such as the duty to cooperate.96 This approach requires public-private collaboration, including internet service provider assistance, as well as data exchanges and partnerships, to form part of any international legal framework or standard for cyberspace cooperation.97

C. Precaution

In the environmental context, at least, due diligence also appears to have become a conceptual bridge between the duty to prevent harm and the proposition that States, in certain circumstances, also must take precautionary measures. As traditionally conceived, the no harm rule is engaged when there is a known or objectively determined risk of significant environmental harm.98 By contrast, the precautionary principle, as articulated in Principle 15 Rio Declaration,99 is triggered by ‘threats of serious or irreversible damage’ and its lower evidentiary threshold could strengthen the protec92

Kirsch (note 2), 638.

93

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 91.

94

Healey/Pitts (note 8), at 366.

95

Ziolkowski (note 29), 178.

96

Robert Uerpmann-Wittzack, Principles of International Internet Law, German Law Journal 11 (2010), 1245, 1261, 1262. 97 Eneken Tikk, Establishing Rules for Cyber Security, in: Scott Jasper (ed.), Conflict and Cooperation in the Global Commons (2012), 222–224. 98

See Birnie/Boyle/Redgwell (note 22), 153.

99

Rio Declaration (note 13), Principle 15.

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tive potential of international environmental law. However, debate persists among States and academic commentators as to the precise contents of the principle, and whether or not it has acquired customary law status.100 International courts and tribunals, while acknowledging the wisdom of precautionary approaches to environmental protection,101 have avoided pronouncing on its legal status.102 The ITLOS Chamber, in the Activities in the Area advisory opinion, suggested that there was a trend “towards making [the precautionary] approach part of customary international law”,103 and observed that it “is also an integral part of the general obligation of due diligence”.104 This obligation requires States “to take all appropriate measures to prevent damage […] [and] applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.”105 Indeed, a State “would not meet its obligation of due diligence if it disregarded those risks.”106 Nevertheless, it remains to be seen whether this fluid understanding of preventive and precautionary duties will be embraced by international practice.107 This perspective on the precautionary principle seems sensible and builds on the contextual approach to due diligence.108 As such it would seem to be highly relevant 100

See Birnie/Boyle/Redgwell (note 22), 154–164.

101

See ICJ, Gabčíkovo-Nagymaros (note 15), para. 140; id., Pulp Mills (note 15), paras. 164, 185. And see ITLOS, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Order of 27 August 1999, ITLOS Reports 1999, 262, para. 77. 102 See World Trade Organization, European Communities – Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body of 16 January 1998, WT/DS48/AB/R, para. 123; id., European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Reports of the Panel of 29 September 2006, WT/DS291/R, para. 7.89. 103

ITLOS, Activities in the Area (note 17), para. 135.

104

Ibid., para. 131.

105

Ibid.

106

Ibid.

107

The ITLOS Chamber may have spelled out what the ICJ merely alluded to in its Gabčíkovo-Nagymaros and Pulp Mills decisions by noting that ‘in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage and of the limitations inherent in the very mechanism of reparation of this type of damage’. See ICJ, Gabčíkovo-Nagymaros (note 15), para. 140; id., Pulp Mills (note 15), para. 185. See also International Law Association, Legal Principles Relating to Climate Change, Washington Conference (2014), Draft Arts. 7A, 7B, and Commentary. 108

See supra, note 20 and accompanying text.

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to the cyber context. Indeed, it has been suggested that States are obliged “to take (general) precautionary measures with regard to potential cyber threats posing a significant risk of damage of a transboundary nature.”109 This obligation has also been said to form part of States’ due diligence obligation in this context,110 and to include “the duty to undertake all appropriate regulatory measures at an early stage, and well before the (concrete) risk of harm occurs”,111 although the precise degree of knowledge of such a risk required from States in order to trigger the duty, as already mentioned, remains controversial.112 Precautionary measures in this context would include “the implementation of strategic, political, organisational, administrative, legal and technical measures […] aimed at general prevention” of misuse of cyberspace for malicious activities by non-State actors,113 although what precisely such measures would entail remains to be clarified by “future State practice.”114 Such State practice can be seen, for instance, in recent domestic legislative initiatives attempting to impose a legal duty on relevant enterprises to frequently update their systems to the latest security standards and to report cyber incidents.115 Finally, precautionary principles also form part of the ‘good neighborliness’ principle, which in the environmental law context is said to include “the duty to cooperate in investigating, identifying, and avoiding environmental harm.”116 This principle has also been applied to cyberspace in the form of an obligation “to take preventive and precautionary measures” with regard to cyber threats, as well as “to inform, notify, and consult in concrete cases of risk of significant transboundary harm.”117 It is interesting to note the different approaches taken by the Advisory Group and the Tallinn Manual Group of Experts in this regard. A “precautionary approach” was expressly recognised by the Advisory Group, which considered the identification, 109

Ziolkowski (note 29), 167.

110

Ead., Ius ad bellum in Cyberspace (note 8), 307.

111

Ead., General Principles of International Law as Applicable in Cyberspace (note 29), 169.

112

See supra, note 65 and accompanying text.

113

Ziolkowski (note 29), 169.

114

Ibid., 169–170.

115

Robin Geiß/Henning Lahmann, Freedom and Security in Cyberspace: Non-Forcible Countermeasures and Collective Threat-Prevention, in: Ziolkowski (ed.) (note 28), 656. 116

Healey/Pitts (note 8), 374.

117

Ziolkowski (note 29), 171.

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assessment, and notification of possible or actual risks of adverse transboundary effects on the internet, and the prior and timely notification of such risks, to form part of States’ prevention obligation in cyberspace.118 The Tallinn Manual Group of Experts, as we have already noted,119 adopted a more conservative approach and did not encompass prospective acts or acts of which States ‘should have known’ in the obligation to prevent cyber harm to other States.120 Therefore, while both groups of experts seem to agree on the basic need for States to exercise due diligence in order to prevent transboundary cyber harm, their interpretations of the nature and scope of these obligations diverge. One possible explanation for this divergence is the different nature, purpose, and mandate of each of these groups of experts. The Advisory Group, comprised of European experts in fields such as law, information, and telecommunications, was set up by the Steering Committee on the Media and New Communication Service of the Council of Europe. It was instructed to examine “the shared or mutual responsibilities of states in ensuring that critical Internet resources are managed in the public interest and as a public asset” and “make proposals […] relating to the prevention and management of events […] falling within member states’ jurisdictions or territories, which could block or significantly impede Internet access […] with the objective of guaranteeing the ongoing functioning and universal nature and integrity of the Internet.”121 The mandate of the Advisory Group, therefore, was to propose general principles of internet governance, standards of cooperation, and duties of States with respect to cross-border adverse effects on internet infrastructure and operation. In so doing, it focused on States’ due diligence and procedural obligations while excluding such controversial issues as State responsibility, cyber warfare, and countermeasures.122 The Tallinn Manual Group of Experts, on the other hand, was comprised of both European and non-European legal and technical experts (but all from Western States), many of whom with experience or expertise related to armed conflict, national 118

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 95.

119

See supra, notes 59–63 and accompanying text.

120

Tallinn Manual (note 2), 27, 28, paras. 7, 11.

121

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), 5, para. 2.

122

The Advisory Group explicitly drew a distinction between States’ commitments to prevent and manage cross-border disruptions of or interferences with the internet and international law rules governing responsibility for internationally wrongful acts, Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), 20, para. 85.

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defence, or security policy.123 It was set up by the North Atlantic Treaty Organization (NATO) Cooperative Cyber Defence Centre of Excellence, an international military organisation,124 and tasked with producing “a manual on the law governing cyber warfare.”125 Accordingly, the Manual explicitly excluded any detailed discussion of cyber activities “that occur below the level of a ‘use of force’.”126 While it addressed the application of general international legal rules to cyberspace in times of peace, including States’ harm prevention and due diligence obligations, the focus of the Manual was on cyber warfare and the application of international laws of armed conflict to it. Having to decide on such controversial issues, which were avoided by the Advisory Group, as well as the background of some of the experts in the Tallinn Manual Group of Experts, may have influenced the tone of the Manual and its perspective, resulting in a more conservative and narrow stance with respect to States’ obligations in cyberspace.127 As one commentator noted, “the Experts were very cautious to avoid taking any risks when drafting the rules” and, since unanimity was required to formulate the rules, “the most controversial international law aspects of cyber operations were therefore left unresolved.”128 The different approaches taken by the Advisory Group and the Tallinn Manual Group of Experts reflect some of the underlying disagreements and confusion that persist in the cyberspace context with regard to States’ harm prevention and due diligence obligations, what precisely these obligations entail, and when they apply. Some doctrine emanating from the US, as well as European politicians and international law scholars, view cyberspace as “the fifth battlefield” and therefore, like the Tallinn Manual, emphasise States’ obligations in terms of use of force, self-defence, and countermeasures, rather than in terms of harm prevention and due diligence. An opposite view is that said to be represented by the Advisory Group, which “holds that states are obliged to observe due diligence in preventing cyber attacks and they may only be held 123

See “the international group of experts and participants” in the Tallinn Manual (note 2), x–xiii.

124

Although the Tallinn Manual does not represent the views of the NATO Cooperative Cyber Defence Centre of Excellence, its sponsoring nations, or NATO, Tallinn Manual (note 2), 11. 125

Ibid., (note 2), at 1.

126

Ibid., 4.

127

It has been suggested, for instance, that there may be an overtly close connection between the Tallinn Manual Group of Experts and the military and a potential resulting bias in the substance of the Manual, Pirker (note 29), 190. 128

Marco Roscini, Cyber Operations and the Use of Force in International Law (2014), 31.

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responsible for a cyber attack if it can be demonstrated that they have failed to meet the due diligence standard.”129

III. Cyberspace as a Global Commons or a Shared Resource? In the environmental context, it is accepted that States have an obligation to prevent harm to the territory of another State, or to areas beyond national control – global commons.130 However, the full legal ramifications of this ‘commons’ aspect of the harm prevention obligation are far from settled.131 Notably, there is no direct State practice on the question of who can invoke a State’s responsibility for harm to the commons. When it comes to applying the rules concerning harm to the commons to cyberspace, a prior question looms large: Is cyberspace a ‘commons’ in the first place? Alternatively, might it be a ‘shared resource’ of States? Some have identified the cyber domain as a global commons, together with the high seas, air, and space, and view these as “domains that are not controlled by any single state” but are rather “universally needed and thus should be shared.”132 The Advisory Group, for instance, regarded “critical Internet resources” as global commons “under the stewardship of the international Internet community as a whole.”133 The US and Japan have also regarded cyberspace as a global commons; indeed, according to the US, “the global commons consist of international waters and airspace, space, and cyberspace.”134

129

Kulesza, International Internet Law (note 8), 359–360.

130

See Stockholm Declaration (note 13), Principle 21; Rio Declaration (note 13), Principle 2. And see ICJ, Legality of Nuclear Weapons (note 14), para. 29; id., Gabčíkovo-Nagymaros (note 15), para. 53; and id., Pulp Mills (note 15), para. 101. 131

Jutta Brunnée, Common Areas, Common Heritage, Common Concern, in: Bodansky/Brunnée/ Hey (eds.) (note 5), 550. 132

Mika Aaltola/Joonas Sipilä/Valtteri Vuorisalo, Securing Global Commons: A Small State Perspective, The Finnish Institute of International Affairs, Working Paper 71 (June 2011), 9, available at: http://www.fiia.fi/en/publication/198/securing_global_commons/ (accessed on 3 July 2014). 133 134

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 14.

United States Department of Defense, The Strategy for Homeland Defense and Civil Support (2005), 12, available at: https://www.hsdl.org/?view&did=454976 (accessed on 23 October 2015); Ziolkowski (note 29), 183.

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However, the notion of cyberspace as a global commons poses both definitional and conceptual difficulties. From a definitional, or practical, perspective, the cyber domain is distinguishable from the other global commons on account of being a human creation and involving both physical infrastructure located in national territories and intangible features that transcend territorial borders.135 Furthermore, unlike the sea, Antarctica, and outer space, “there is a ‘population’ or community in cyberspace and […] [it] is not an entirely independent international space or concern that is beyond national regulation.”136 According to some observers, in order for cyberspace to become a global commons, “long-established rights of sovereignty and property ownership recognized by the numerous domestic jurisdictions involved” in cyberspace would have to be overridden and legitimate and illegitimate users would have to be positively identified for the enforcement of norms or collective solutions. Neither of these conditions is currently satisfied in the cyberspace context.137 From a conceptual perspective, the identification of cyberspace as a global commons has thus far failed to clarify States’ obligations. The Advisory Group, for instance, emphasised the need for harm to be caused to another State, rather than to cyberspace as a resource, in order to trigger States’ obligations, notwithstanding its explicit reference to the internet as a global commons.138 Moreover, the global commons concept does not necessarily make cyberspace any easier to regulate.139 It has been argued, for instance, that while in the context of other global commons, users have “successfully self-organized for sustainable use of a commons” in the absence of government control, in the case of cyberspace the “affordances of the cyber technologies – that is, the way the technologies enable their use – and the mentalities of the users” have resulted in a “tragedy of the commons” that prevents effective self-organisation for sustainable use of cyberspace.140 The concept of cyberspace as a commons, there-

135

Aatola/Sipilä/Vuorisalo (note 133), 22–23.

136

Kam Wai Chik, ‘Customary internet-ional law’: Creating a body of customary law for cyberspace, Part 1: Developing rules for transitioning custom into law, Computer Law & Security Review 26 (2010), 3, 13. 137

Kanuck (note 48), 1577, 1579.

138

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), para. 69.

139

Aatola/Sipilä/Vuorisalo (note 133), 23.

140

Roger Hurwitz, Depleted Trust in the Cyber Commons, Strategic Studies Quarterly 6 (2012), 20, 21; Healey/Pitts (note 8), 366.

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fore, does not seem to have contributed much to the development of clear norms to regulate its use, and may even hinder this process.141 Some academic observers have warned against what they view as a gradual move away from the perception of cyberspace as a global commons and toward a State-based governance regime, considering it to constitute “norm regression” in the global governance of cyberspace.142 But however intuitive it may seem to think of cyberspace as a type of commons, the idea remains controversial and in any event would not necessarily advance the effort to develop norms for the regulation of cyberspace, such as the duty to prevent harm. Even in the environmental context, the legal status of spaces or resources beyond the exclusive jurisdiction of States tends to be controversial. Aside from well-established examples of geographic areas like the high seas, Antarctica, or outer space, States have avoided the ‘commons’ label, precisely because it implies both the absence of sovereignty and certain collective rights and obligations.143 One might alternatively consider the potential relevance of the notion of ‘shared resource’. This concept certainly fits key aspects of cyberspace, perhaps better than the notion of a ‘commons’, because it applies to resources that are under the jurisdiction of States but are quintessentially transboundary in nature. This paradigm permits States that share such a resource to devise norms and rules that take into account their respective sovereign interests, their mutual interests in the use and protection of the resource, and their obligations under international law. In the environmental context, States have often avoided using this umbrella concept, arguably because of the implication of less than full sovereignty and the broader implications the concept might have for other resources, and have used more issue-specific concepts, like ‘international watercourse’.144

141

But see Scott Shackelford, Toward Cyberpeace: Managing Cyberattacks Through Polycentric Governance, American University Law Review 62 (2013), 1273, 1293 (suggesting that cyberspace be treated as ‘pseudocommons’, “comprised of a shared global infrastructure that is controlled by public and private entities subject to national and international regulations”). 142 Ronald Deibert/Masashi Crete-Nishihata, Global Governance and the Spread of Cyberspace Controls, Global Governance 18 (2012), 341, 343, 345; Joanna Kulesza/Roy Balleste, Signs and Portents in Cyberspace: The Rise of Jus Internet as a New Order in International Law, Fordham Intellectual Property, Media and Entertainment Law Journal 23 (2013), 1320. 143 144

Brunnée, Common Areas, Common Heritage, Common Concern (note 132).

See Jutta Brunnée/Stephen Toope, Environmental Security and Freshwater Resources: Ecosystem Regime Building, American Journal of International Law 91 (1997), 26; Kanuck (note 48), 1580.

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Nonetheless, this conception could be helpful in relation to cyberspace since it would allow States to maintain certain sovereign rights, although these would not be absolute and would be balanced against the interests of other States and the international community.145 While the concept of ‘shared resource’ is not a panacea for the difficulties already discussed with respect to defining and applying the no harm and due diligence obligations to cyberspace, it has been suggested that such a tailored model may present an alternative avenue for establishing States’ legal obligation to cooperate in this context through such principles as the sustainable and equitable use of shared resources. These principles may encourage States to undertake all necessary means in order to preserve the internet for future generations, which implies a proactive countering of cyber threats, an obligation to take precautionary measures, and restraint from any action that could hamper the availability and reliability of the internet.146 In short, a ‘shared resource’ model could promote stewardship in cyberspace, rather than sovereignty.147 While it may not resolve fundamental definitional issues, such a model could provide an alternative conceptual framework that shifts the focus from States’ obligations to each other to States’ obligations to cyberspace as a shared resource, thereby facilitating the development of norms and rules for its governance.

IV. Institutional Frameworks It has been said that “there are structural similarities between the milieus of international law and of the Internet: neither is completely hierarchical and both must deal with ‘commons’ problems.”148 Whether the future cyberspace governance regime will be grounded in the no harm and due diligence framework or in a ‘commons’ framework that may evolve over time, an additional question concerns the appropriate process for developing and maintaining the attendant normative and regulatory 145

Ibid., 1580.

146

Ziolkowski (note 29), 167, 179–181.

147

See Duncan Hollis, Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace, Canada Centre for Global Security Studies, Cyberdialogue 2012: What Is Stewardship in Cyberspace?, Temple University Legal Studies Research Paper No. 2012-25 (June 2012), 2; available via: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2038523 (accessed on 3 July 2014). 148

Charles Siegel, Rule Formation in Non-Hierarchical Systems, Temple Environmental Law & Technology Journal 16 (1998), 173, 178; Chik, Customary internet-ional law, Part 1 (note 137), 13.

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framework. International environmental law offers some models for governance regimes, and we thus turn to an examination of its normative and regulatory structures.

A. International Environmental Governance

In the environmental context, so-called framework agreements have played a prominent role. They help in dealing with complex, evolving issues by allowing parties to begin by defining the common concern at hand, agreeing on principles to guide States’ actions, and establishing institutions and decision-making procedures for subsequent regime-development.149 Many environmental regimes create, or collaborate with, bodies that facilitate exchange among scientific or technical experts. Such bodies are important in building consensus around the nature of collective concerns and the collective action that is required to address them. Scientific or technical expert bodies also make important contributions in the further elaboration, refinement, or adjustment of regulatory strategies.150 In the cyber context one could easily see the usefulness of such an approach, for example in relation to the constantly shifting needs of cyber security and the related due diligence standards. Environmental regime development per se is usually in the hands of a plenary body, which facilitates regular, long-term engagements between technical experts, policy-makers, lawyers, and relevant non-State actors (international organisations, non-governmental organisations, or business entities).151 Although, in a formal sense, law-making remains in the hands of States, non-State actors can provide input into law-making processes or even help shape their outcomes.152 Environmental standard-setting itself occurs through decisions of plenary bodies, without subsequent formal consent by individual States. In most cases, the resulting standards are not legally binding, notwithstanding the mandatory language they may 149

See Jutta Brunnée, Toward Effective International Environmental Law – Trends and Developments, in: Steven Kennett (ed.), Law and Process in Environmental Management (1993), 222–229. 150 For a detailed discussion, see ead., Coping with Consent: Lawmaking under Multilateral Environmental Agreements, Leiden Journal of International Law 15 (2002), 1. 151

Ibid., 15, 16.

152

Ibid., 14.

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contain.153 This approach facilitates agreement on collective action and standards that are applicable to all parties – an important feature for efforts to address collective concerns. Equally important is that soft regulatory processes enable speedier regime development and adjustment than processes that require subsequent ratification by individual States. In the cyber context both of these features could be significant, since (as in the environmental context) cyber problems, or relevant technical understanding or capacity, as well as political dynamics, typically evolve over time, often rapidly. With respect to treaty making, the experience with MEAs shows that even an apparently straightforward matter as agreeing on the nature and scope of the underlying concern and the principles that should govern it may be fraught with difficulties. In the climate context, for example, it took more than twenty years for parties to agree on the precise meaning of the regime objective – to forestall dangerous climate change – and parties are still struggling to achieve consensus on the parameters of one of the regime’s core principles, the notion of ‘common but differentiated responsibilities and capabilities’.154 On the latter concept, the positions of developed and developing countries have diverged quite dramatically, with some developing countries continuing to insist that developed countries shoulder the primary burdens of addressing climate change.155 To be sure, the claims of ‘historical responsibility’ that developing countries have leveled against developed countries in relation to global carbon emissions will have no comparable basis in the cyber context. Still, a global regime-building effort in the cyber context, could also invite arguments by developing countries that States’ common responsibilities should be differentiated so as to lessen their burden or entitle them to technical or financial assistance. It seems sensible, even inevitable; to assist less developed countries in addressing the underlying common concern. In fact, most MEAs today do provide for various kinds of assistance, including through multilateral funds designed to finance conversion to new technologies or otherwise address capacity limitations.156 But it is highly unlikely that major States, such as the US, will be any more inclined to accept formal differentiation or assistance obligations in the cyber con153

Ibid., 25, 26.

154

See Jutta Brunnée/Stephen Toope, Legitimacy and Legality in International Law: An Interactional Account (2010), Chapter 4. 155 See Jutta Brunnée/Charlotte Streck, The UNFCCC as a Negotiating Forum: Towards Common but more Differentiated Responsibilities, Climate Policy 13 (2013), 589. 156

For an overview, see Laurence Boisson de Chazournes, Technical and Financial Assistance, in: Bodansky/Brunnée/Hey (eds.) (note 5), 947.

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text than they have been in the climate context (which is not to say ‘no assistance’).157 Finally, experience with MEAs, especially the climate regime, also shows the potential pitfalls of treaty-based standard-setting. The need for agreement by a significant majority of parties (typically 3/4) and the common practice of consensus decisionmaking can easily stall progress or result in lowest-common-denominator standardsetting,158 a concern that has been raised also in the cyber context and will be further discussed below.

B. International Cyberspace Governance

As with the application of the no harm and due diligence obligations, standardsetting bodies and multilateral agreements for cyberspace governance already exist or are being created. Their precise scope, authority, and norm-developing processes, however, remain unclear and may therefore benefit from considering the environmental governance experience. There are many intergovernmental organisations, both specialised and general, that address different aspects of cyberspace regulation, however their ability to constitute, or form the foundation for, a universal normative or regulatory regime for cyberspace is doubtful. In terms of technical standard-setting, the International Telecommunication Union (ITU), a UN specialised agency, has been active “with regard to International Public Policy Issues Pertaining to the Internet and the Management of Internet Resources, including Domain Names and Addresses.”159 However, it has been criticised for being unable to adjust to the rapid changes in the cyberspace environment,160 being potentially unrepresentative of the views of all of its members, and being ill-equipped to regulate other, non-technical, areas of cyberspace such as international and criminal 157 It is precisely this dimension of the principle that prompted the United States to declare that Principle 7 Rio Declaration (one prominent articulation of ‘common but differentiated responsibilities’) did not ‘imply a recognition or acceptance by the United States of any international obligations or liabilities, or any diminution of the responsibilities of developing countries under international law’, see UN Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August – 4 September 2002, UN Doc. A/CONF.199/20 (2002), 145. 158

See discussion in Brunnée/Toope, Legitimacy and Legality in International Law (note 155).

159

Sabine von Schorlemer, Telecommunications, International Regulation, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Vol. IX (2012), 818 et seq. 160

Ibid.

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law.161 Similarly, the Internet Corporation for Assigned Names and Numbers (ICANN) regards “[p]reserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet” as one of its core objectives, and makes binding decisions and policies on various, mostly technical, internet-related issues.162 However, its powers continue to be largely derived from, and dependant on, the US government; it has therefore been criticised for essentially being a State actor rather than an “international organization with a fully democratic legitimation.”163 These essentially technical bodies,164 moreover, lack any formal law-making ability. Nonetheless, they have become increasingly politicised, and “distrust by some nations may prevent them from making and enforcing any unilateral policy determinations going forward.”165 As for more general intergovernmental and regional organisations active in the cyberspace arena, such as the European Union (EU), Council of Europe, Organisation for Economic Co-operation and Development, Asia-Pacific Economic Cooperation, NATO, Organization for Security and Co-operation in Europe, and others, their activities with respect to cyberspace norm-development include issuing reports, organising conferences and summits, devising and promoting policies and conventions, and establishing working groups.166 However, the respective responsibilities of these organisations, as well as their standard-setting authority, remain unclear; there is often little cooperation among them; and their efforts have been conflicting at times.167 The limited utility of these bodies for cyberspace norm-creation arguably stems from the lack of international consensus on their precise role in cyberspace govern161 David Gross et al., Cyber Security Governance: Existing Structures, International Approaches and the Private Sector, in: Lord/Sharp (eds.) (note 162), 114, 116. 162

Woltag (note 81).

163

Ibid.

164

As well as others, such as the Internet Engineering Task Force (IETF), the Regional Internet Registries (RIRs), and the Internet Assigned Numbers Authority (IANA), the Internet Society (ISOC), the Internet Research Task Force (IRTF), and the World Wide Web Consortium (W3C). 165

Deibert/Crete-Nishihata (note 141), 346, 347; Gross et al. (note 162), 116.

166

A summary of the cyber-related activities of these organisations can be found in the ITU’s Global Strategic Security Report, Abraham Sofaer/David Clark/Whitfield Diffie, Cyber Security and International Agreements, in: National Research Council, Proceedings of a Workshop on Deterring Cyberattacks: Informing Strategies and Developing Options for U.S. Policy (2010), 186, footnote 25. See ITU Global Cybersecurity Agenda, Global Strategic Report (2008), available via: http://www.itu.int/osg/ csd/cybersecurity/gca/docs/global_strategic_ report.pdf (accessed on 3 July 2014). 167

Gross et al. (note 162), 109–114.

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ance and the appropriate institutional character of any future regulatory regime. At the 2003 and 2005 World Summits on the Information Society (WSIS I and II),168 for instance, some developed countries, led by the US, adopted a ‘non-governmental’ approach and regarded the private sector influence and in particular the mandate of ICANN as sufficient for regulatory purposes. A majority of developing countries, including China, however, called for a ‘government-centered’ approach involving intergovernmental management of the internet, for example by the ITU.169 It was ultimately decided to maintain the existing governance system, while establishing a new Internet Governance Forum (IGF) within the UN for future international debate and cooperation.170 But this decision has hardly resolved the debate. The EU and the US continue to object to ITU governance of the internet,171 despite growing calls for “an equal role and responsibility for international Internet governance” for all governments,172 and the IGF remains merely a forum for discussion, without any powers of supervision or decision-making.173 As a result, there is still no effective institutional authority that is universally accepted. Ultimately, it has been said that any intergovernmental institution or regime established to regulate and govern cyberspace must have sufficient expertise and technical capability for norm-creation, be perceived as having sufficient legitimacy by the international community, and be able to generate “both high level and specific behavioral norms that are widely accepted as legitimate.”174

168

See World Summit on the Information Society (WSIS) Outcome Documents: Geneva Declaration of Principles, Document WSIS-03/GENEVA/DOC/4-E (12 December 2003) and Tunis Agenda for the Information Society, Document WSIS-05/TUNIS/DOC/6(Rev.1)-E (18 November 2005), available via: http://www.itu.int/wsis/index.html (accessed on 3 July 2014). 169 Deibert/Crete-Nishihata (note 141), 346; Jovan Kurbalija, E-Diplomacy and Diplomatic Law in the Internet Era, in: Ziolkowski (ed.) (note 28), 398. 170

von Schorlemer (note 160); WSIS, Report from the Working Group on Internet Governance, Document WSIS-II/PC-3/DOC/5-E (3 August 2005), available at: http://www.itu.int/wsis/docs2/ pc3/off5.pdf (accessed on 3 July 2014). 171 Anupam Chander, Challenges and Approaches to Effective Cyberspace Governance in a Multipolar World, Proceedings of the Annual Meeting of the American Society of International Law 107 (2013), 95. 172 Ian Walden, International Telecommunications Law, the Internet and the Regulation of Cyberspace, in: Ziolkowski (ed.) (note 28), 288, 289. 173

Woltag (note 81).

174

Gross et al. (note 162), 114, 116.

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A possible alternative to an intergovernmental or non-governmental regulatory institution is a treaty-based regime resembling the one established with respect to climate change. The development of such a regime was attempted, for instance, with respect to the regulation of cyber crime through the creation of the Budapest Convention. However, the Convention has only been ratified by 47 States thus far,175 and is unlikely to be universally adopted since many nations view it as a ‘European’ document.176 Multilateral treaties to regulate certain aspects of cyberspace, including cyber security, cyber attacks, and cyber warfare, have also been suggested by scholars,177 as well as States such as Russia. However, such initiatives remain controversial;178 they have been rejected by other States, including the US, which seems to prefer bilateral agreements over multilateralism when it comes to issues such as cyber warfare.179 As mentioned in the introduction to this chapter, some international environmental regimes are currently undergoing a shift from centralised standard-setting (negotiated packages of binding commitments) to looser coordination of national standards. It is not clear as of yet whether this apparent shift, notably in the UN climate change regime, reflects significant and lasting structural change in international environmental treaty making from ‘top-down’ to ‘bottom-up’ approaches.180 At any rate, in the cyberspace context, treaty-based standard-setting and norm-creation already has been criticised for being too ‘top-down’ for the needs of the medium and, as in the environmental context, as likely to suffer from the “lowest common denominator effect.”181 175

As of October 2015. Seven additional States have signed but not ratified the Convention, see Chart of signatures and ratifications, available at: http://conventions.coe.int/Treaty/Commun/ ChercheSig.asp?NT=185&CM=&DF=&CL=ENG (accessed on 2 November 2015). 176

Healey/Pitts (note 8), 61.

177

Stephen Moore, Cyber Attacks and the Beginnings of an International Cyber Treaty, North Carolina Journal of International Law and Commercial Regulation 39 (2013), 223; Oona Hathaway et al., The Law of Cyber-Attack, California Law Review 100 (2012), 817; Rex Hughes, A Treaty for Cyberspace, International Affairs 86 (2010), 523; Joseph Nye Jr., Power and National Security in Cyberspace, in: Kristin Lord/Travis Sharp (eds.) (note 162), 20; Sofaer/Clark/Diffie (note 167), 179. 178 See e.g., Charles Dunlap, Perspectives for Cyber Strategists on Law for Cyberwar, Strategic Studies Quarterly 5 (2011), 81; Louise Arimatsu, A Treaty for Governing Cyber-Weapons: Potential Benefits and Practical Limitations, in: Czosseck/Ottis/Ziolkowski (eds.) (note 8), 91. 179

Kirsch (note 2), 639.

180

See supra, note 6 and accompanying text.

181

Duncan Hollis, Re-Thinking the Boundaries of Law in Cyberspace: A Duty to Hack?, in: Jens Ohlin et al. (eds.), Cyberwar: Law & Ethics for Virtual Conflicts (2014), 129; Temple University Legal Studies Research Paper No. 2014-16, 30–31, available via: http://ssrn.com/abstract=2424230 (accessed

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Also, creating a multilateral treaty on cyberspace regulation is bound to be a protracted process, and some observers suggest that “an adequate legal framework is only realisable if the foundation is done on an informal law-making basis.”182 Such informal law-making efforts have in fact been attempted, for instance by China, Russia, Tajikistan, and Uzbekistan, who in 2011 submitted to the UN a proposal for an international code of conduct for information security.183 While this initiative has since been discussed in various international forums,184 its viability is doubtful in light of objections by the US and most Western countries to its State-centric model for internet governance.185 It seems, therefore, that before any international regulatory regime can be devised, a conceptual framework for cyberspace governance must be agreed upon, on the basis of which such a regime could function. It is possible that such a framework could be created around the protection of cyberspace itself, for instance by adopting the notion of a ‘commons’ or ‘shared resource’ regime as discussed above, or in the form of a multilateral treaty regime for the prevention of transboundary impacts, such as that established under the Convention on Long-range Transboundary Air Pollution (LRTAP Convention).186 The LRTAP Convention, one of the earliest MEAs, has been successful in facilitating preventive regulation and integrated policy-making based on scientific assessments and

on 3 July 2014); Chik, Customary internet-ional law, Part 1 (note 137), 7, 15; id., ‘Customary internetional law’: Creating a body of customary law for cyberspace, Part 2: Applying custom as law to the Internet infrastructure, Computer Law & Security Review 26 (2010), 185, 186, 188. 182 Weber (note 75), 7; Martha Finnemore, Cultivating International Cyber Norms, in: Lord/Sharp (eds.) (note 162), 90. 183

Letter to the UN (note 27).

184

See e.g., United Nations Institute for Disarmament Research (UNIDIR), Cyber Stability Seminar 2014: Preventing Cyber Conflict, 10 February 2014, available via: http://www.unidir.org/ programmes/emerging-security-threats/cyber-stability-seminar-2014-preventing-cyber-conflict (accessed on 3 July 2014) (the comments of China’s representatives on “An International Code of Conduct for Information Security” are available at: http://www.unidir.ch/files/conferences/pdfs/acyber-code-of-conduct-the-best-vehicle-for-progress-en-1-963.pdf (accessed on 3 July 2014)); UNIDIR High-Level Seminar, Cybersecurity: Global responses to a Global Challenge (21 March 2014) (comments of Theresa Hitchens, Director, UNIDIR on “Multilateral Approaches to Cyber Security”), available at: http://www.unidir.org/files/files/TH_Madrid_21Mar14.pdf (accessed on 3 July 2014). 185

UNIDIR High-Level Seminar (note 185), 3; Roger Hurwitz, A New Normal? The Cultivation of Global Norms as Part of a Cybersecurity Strategy, in: Panayotis Yannakogeorgos/Adam Lowther (eds.), Conflict and Cooperation in Cyberspace: The Challenge to National Security (2014), 242. 186

Convention on Long-range Transboundary Air Pollution, 13 November 1979, UNTS 1302, 217.

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economic modeling.187 As one commentator has noted, “experience with multilateral environmental treaties has shown that investigation and monitoring can be important tools underlying a dynamic regulatory framework that can adapt to changes in levels of risk identified.”188 In the case of the LRTAP Convention, this ‘science-policy interaction’ has been successful in achieving emission reductions of air pollutants in light of such factors as: the direct link between relevant science and policy preparation; multiple scenarios that present policy options; accessibility of science to all participants; a framework offered for countries to provide their own data; the consensus based way of working; and the ability to adapt scientific and policy frameworks to developments in science and policy.189 Devising a treaty regime along the lines of the LRTAP Convention model may be particularly useful in the cyberspace context, which is similarly dynamic and scientific/technical in nature. However, it seems fair to say that the development of such a conceptual framework or treaty regime is unlikely to be successful at this point in time. This type of normbuilding effort would have to overcome several obstacles, quite apart from State security interests. These range from States’ general reluctance to declare resources to be common or shared or to spell out specific harm prevention obligations, the general reluctance by some States to engage in more ‘big treaty making’, and the particular reluctance of some States to subject cyberspace to an international legal regime that would alter or constrain the self-governing, multi-stakeholder community that has developed the internet. As already mentioned, such reluctance is evident in the disagreements concerning the allocation of a greater governance role to the ITU. Liberal democracies are concerned that the intergovernmental model of internet governance would be “fragmented, slow and not interoperable” and facilitate censorship in authoritarian States.190 In turn, developing States that are not able to deal with cyber threats tend to blame the flaws in internet security on the ICANN-led governance

187

Jae-Hyup Lee, Transboundary Pollution in Northeast Asia: An International Environmental Law Perspective, University of Hawaii Law Review 35 (2013), 769, 779. 188

Ibid., 779, 780.

189

Willemijn Tuinstra/Leen Hordijk/Carolien Kroeze, Moving boundaries in transboundary air pollution co-production of science and policy under the convention on long range transboundary air pollution, Global Environmental Change 16 (2006), 353, 355. 190

Heli Tiirmaa-Klaar, Cyber Diplomacy: Agenda, Challenges and Mission, in: Ziolkowski (ed.) (note 28), 528.

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structure and seek a new, government-controlled model.191 During the 2012 World Conference on International Telecommunications,192 89 governments, including many developing States, supported an enhanced role for the ITU over internet regulation and approved revisions to the International Telecommunication Regulations intended to transfer authority for regulating critical aspects of the internet from ICANN to the ITU.193 54 countries, including the US, the EU, and most other developed countries, however, advocated for the existing model of internet oversight by multi-stakeholder, non-governmental institutions, and refused to sign the revised text of the Regulations.194 While some observers considered the outcome of the Conference to signal a “digital Cold War”,195 the long term implications of these partially adopted revisions have yet to emerge.196 Moreover, any conceptual and/or regulatory framework for cyberspace governance would have to include non-State actors, particularly the private sector, in law-making or norm-development processes, as has been explicitly recognised.197 The 2005 WSIS II Tunis Agenda, for instance, stated that the “international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations.”198 This sentiment was echoed by the Advisory Group on Cross-border Internet, which strongly emphasised the need for multi-stakeholder participation.199 Most recently, in April 2014, the Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial) brought together representatives from civil society, the private sector, academia, and the technical community, supported by several governmental 191

Ibid., 529.

192

For further information see International Telecommunications Union (ITU), World Conference on International Telecommunications (WCIT-12), available at: http://www.itu.int/en/wcit12/Pages/default.aspx (accessed on 3 July 2014). 193 Liina Areng, International Cyber Crisis Management and Conflict Resolution Mechanisms, in: Ziolkowski (ed.) (note 28), 574. See, ITU, Final Acts of the World Conference on International Telecommunications (WCIT-12), Dubai 2012, available at: http://www.itu.int/pub/S-CONF-WCIT2012/en (accessed on 3 July 2014). 194

Tiirmaa-Klaar (note 191), 528, 529; Walden (note 173), 273, 274.

195

Areng (note 194), 574.

196

Walden (note 173), 274.

197

See e.g., Weber (note 75), 8; Gross et al. (note 162).

198

Tunis Agenda (note 169), para. 29; Woltag (note 81).

199

Interim Report of the Ad-hoc Advisory Group on Cross-border Internet (note 10), paras. 58, 59.

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representatives, to “establish strategic guidelines related to the use and development of the Internet in the world.”200 The Meeting resulted in the Multistakeholder Statement, a non-binding document that set out “Internet Governance Process Principles” emphasising inclusiveness, collaboration, meaningful participation, and consensus driven governance.201 Nonetheless, it has been argued that “some nations and [intergovernmental organisations] still must embrace further the value of collaboration beyond merely with state actors,”202 suggesting that there is room for improvement with the involvement of non-State actors in policy-making and norm-development processes relating to cyberspace. In addition, as in the international environmental context, cyberspace governance must also address tensions between the developed and developing worlds, which are reflected in disagreements over cyber governance issues such as the role of the ITU and further complicate efforts to establish a global normative/regulatory regime. The need to bridge the ‘digital divide’, the “social and spatial inequalities in internet access” between developed and developing countries,203 has long been recognised. For instance, the primary objectives of the WSIS I and II conferences were “to build a peoplecentred, inclusive and development-oriented Information Society” and to “pay particular attention to the special needs of marginalized and vulnerable groups of society.”204 Similarly, the recent NETmundial statement emphasised that “Internet governance institutions and processes should support capacity building for newcomers, especially stakeholders from developing countries and underrepresented groups.”205 However, while the risk of the internet “reinforce[ing] or even deepen[ing] existing divisions between the haves and have-nots, betweenthe developed and developing worlds”206 has

200 Global Multistakeholder Meeting on the Future of Internet Governance (NETmundial), NET mundial: The beginning of a process, available at: http://netmundial.br/about/ (accessed on 3 July 2014). 201

NETmundial, NETmundial Multistakeholder Statement, 24 April 2014, available at: http://net mundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf (accessed on 3 July 2014). 202

Gross et al. (note 162), 120.

203

Barney Warf, Global Geographies on the Internet (2013), 19, 118.

204

Geneva Declaration (note 169); von Schorlemer (note 161).

205

NETmundial Multistakeholder Statement (note 202).

206

Warf (note 204), 21.

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been acknowledged, no mechanism for the even distribution of the “benefits of the information technology revolution” has thus far been created, with the exception of a voluntary “Digital Solidarity Fund” established pursuant to the WSIS.207 Therefore, for any truly global regulatory regime of cyberspace to succeed, the interests and capabilities of developing countries must be taken into account both in its development process and in its content. Here, too, lessons may be learned from the environmental context, including concerning the challenges involved.208 In sum, the need for multi-stakeholder involvement and global representation in the development of norms and regulatory mechanisms to govern cyberspace seems to be widely recognised. Less formal frameworks based on ‘soft law’, rather than intergovernmental agreements or institutions, may be more conducive to the development of such norms and mechanisms. Still, the involvement and cooperation of States seems equally important in light of the fact that they retain control over cyberspace infrastructure and the enforcement of cyberspace regulation, and that some form of State responsibility for harmful cyberspace activities emanating from their territories is required. Ultimately, therefore, an effective regulatory framework for cyberspace may require a “multi-layered structure”209 that combines informal norm-developing networks, institutions for multi-stakeholder consultation, technical standard-setting bodies, and treaties for intergovernmental cooperation and regulation. As has been suggested elsewhere, “the legal framework [for cyberspace] is to be based on networks established by the concerned communities and linked together through interconnection mechanisms.”210 Such an interconnected system is necessary in order for international consensus to be achieved on the controversial elements of cyberspace governance discussed in this chapter, including the legal nature and conception of cyberspace and the content and limits of States’ obligations in relation to peacetime cyberspace activities.

207

Antonio Segura-Serrano, Internet Regulation and the Role of International Law, Max Planck Yearbook of United Nations Law 10 (2006), 191, 259, available at: www.mpil.de/files/pdf3/06_ antoniov1.pdf (accessed on 1 March 2015). 208

See supra, notes 153–160 and accompanying text.

209

Weber (note 75), 7.

210

Ibid., 4.

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V. Conclusion And so we return to the no harm rule. Our conclusion is that, at least in the short run, the most promising foundation for international cyberspace law is the harm prevention/due diligence framework that has already gained considerable traction in this context. One of this framework’s main advantages is precisely that it does not require wholesale norm-creation or big normative battles, as would be required in an effort to develop norms for the governance of cyberspace itself as a ‘shared’ or ‘commons’ resource. The basic norms already exist and apply to activities and harms that involve cyberspace just as to any other activity that occurs under the jurisdiction of States. In this regard, the evolution of international environmental law is instructive, especially in relation to the efforts to flesh out the concepts of harm prevention and due diligence. The Interim Report of the Advisory Group on Cross-border Internet is an excellent illustration of how the same could be accomplished in the cyber context. It articulates adaptations of the general principles of prevention, diligence, procedural obligations, and precaution, including to a multi-stakeholder context, and highlights the need for the development of common standards and best practices. Such standards need not be developed in legally binding form or in a multilateral treaty to be influential, or to flesh out the binding prevention and diligence obligations that exist at custom. As we have shown, although international agreements have played a crucial role in global environmental protection, we appear to be witnessing a certain return to basic principles in the regulation of transboundary environmental harm. The harm prevention/due diligence framework may offer the most suitable approach also in the cyber context, where the potential benefits of a treaty-based approach arguably are outweighed by the drawbacks. The development of cyberspace norms can rather take place through relatively informal legal means in an interconnected, multi-stakeholder system that incorporates States and non-State actors, thereby by-passing lumbering and often stalled treaty-based processes. Nonetheless, the development of such norms requires some degree of international consensus on the nature of cyberspace governance, the content of basic principles, and the degree and type of regulation required. Unlike the liberal approach adopted by the Advisory Group, it seems that the Tallinn Manual Group of Experts took a more conservative stance and could not agree on certain issues, notably the question whether there is a duty to take reasonable measures to prevent any cyber activity with a ‘nega-

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tive effect’, or just a duty not to knowingly allow harmful acts that are underway to continue.211 As we have suggested, the different nature, focus, and purpose of these two groups of experts may account for their divergent approaches to States’ obligations in this context. Nonetheless, it is worth noting that some of the Tallinn Manual’s experts have now turned their attention to the application of international law principles, such as the use of countermeasures, to cyberspace activities in peacetime, noting that “few, if any, cyber operations have crossed the armed attack threshold.”212 It will be interesting to see, therefore, if and how the original positions taken in the Tallinn Manual shift in this new context. Notwithstanding the usefulness of analogies with international environmental law, cyberspace really is a different kind of space, perhaps leaving for international law only the relatively limited task of holding States to appropriate standards of diligence. Although consensus has yet to be achieved on the content and limits of these norms as they apply to this unique, virtual ‘ecosystem’, we believe that it is worth teaching an old law new tricks!

211

Tallinn Manual (note 2), 27, 28, paras. 7, 11.

212

Schmitt, Cyber Operations (note 2), 1.

Possible Legal Framework and Regulatory Models for Cyberspace: Due Diligence Obligations and Institutional Models for Enhanced Inter-State Cooperation MATTHIAS HERDEGEN(

ABSTRACT: Cyber security is exposed to different kinds of threats ranging from direct attacks against the integrity of cyber systems to intrusions in digital networks and other systems. Whilst some of these threats are linked to wrongful acts directly attributable to States, many attacks and intrusions are authored by private persons. These threats from nonState actors catalyse the call for due diligence standards for States in terms of prevention, monitoring, and international cooperation. Responsibility of States for acts by private persons should rest on ‘overall control’ rather than ‘effective control’. Due diligence standards with respect to cyber security can draw on several interconnected conceptual bases for due diligence obligations flowing from territorial sovereignty: respect for international common goods, obligations to prevent private acts aiming at transboundary harm (as recognised in the Corfu Channel case), freedom of communication, and the responsibility for shared sources. Due diligence includes the obligation to take appropriate measures which are commensurate with the risk to be averted. It also encompasses vigilance and prevention as well as an exchange of information and warnings. Regulatory approaches must identify responsible actors (private persons, States of origin of cyber threats, and corporate targets). International cooperation can be based on international agreements or instruments of ‘soft law’. For the design of the institutional framework, strong reasons suggest a multi-stakeholder approach which integrates private bodies, non-governmental organisations, or hybrid organisations. KEYWORDS: Cyber Security, State Responsibility, Standards of Control, Due Diligence, Prevention, Warning, International Cooperation

(

Professor for Public Law; Director of the Institute for Public International Law, University of Bonn.

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I. Different Threats to Cyber Security In the design of cyberspace and digital infrastructures unhampered access and free flow of data are key principles when determining function and utilisation. These functional criteria have so far trumped other objectives such as resilience to risks of abuse and security. This makes digital networks an easy and tempting target for attacks which aim at siphoning off data or at functional disruption by States, nongovernmental entities, or individuals. This contribution will not focus on the current debate on legitimate or illegitimate harvesting of data. Nor will it comment on the complex relationship between allied States which includes unilateral or mutual data fishing as well as sharing informations relevant to their national security interests. Discussion in international law on cyberspace1 has, until recently, focused on cyber attacks in context with armed conflicts. Only in recent years, has the debate in public international law extended to threats beyond a military context. It seems appropriate to distinguish between different kinds of threats to security and stability of cyber systems: 1. Attacks directly against the integrity of cyber systems in terms of intentionally inflicted damage to computer systems or networks or digital information and 2. Intrusions intended to abuse and exploit digital networks and other systems without affecting the integrity of the infrastructures as such, e.g. for purposes of cyber espionage (cyber trespassing, cyber exploitation). In both cases, we must further distinguish between wrongful acts attributable to States and responsibility flowing from due diligence standards of monitoring and international cooperation.

1 Catherine B. Lotrionte, Introduction: Strengthening the Norms of State Responsibility, Georgetown Journal of International Affairs (Geo. J. Int’l Affairs) 11 (2010), 101; Oona A. Hathaway et al., The Law of Cyber-Attack, California Law Review (Cal. L. Rev) 100 (2012), 817; Scott J. Shackelford/ Richard B. Andres, State Responsibility for Cyber Attacks: Competing Standards for a Growing Problem, Geo. J. Int’l Affairs 42 (2010), 971.

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II. Responsibility for Wrongful Acts Attributable to States A. Primary Norms Related to Cyber Security

State responsibility, in principle, rests on the violation of a ‘primary’ norm of international law (Article 1 ILC Articles on State Responsibility2). There are a number of such primary norms related to cyber security in specific sectors of international law, especially with respect to treaties and security council resolutions against terrorism, the law of the sea, the law of air transport, and telecommunications law. For present purposes, it seems more important to focus on the principle of nonintervention in internal affairs of other States and, possibly, human rights which prohibit States from threatening or damaging the life and property of persons abroad as well as civil and military assets of other States including clinical infrastructures. As far as these protected rights and goods are affected, customary international law taints attacks against the integrity of computer networks with illegality. The legal situation is quite different with respect to other cross-border intrusions and abuses of digital infrastructures, especially for the purpose of military or industrial espionage. In this context, acts directed against cyber security, as a rule, do not appear on the regulatory screen of international law. The international perspective merely qualifies espionage as acts fraught with high risks for the perpetrators and defers to sanctions under national law.3 In both times of peace and war, espionage is not a regulatory theme of customary international law (which simply leaves the target State free to prosecute the spy or to declare him persona non grata if he is vested with diplomatic immunity). Therefore, protection of confidentiality and privacy of data flows can only be established on the basis of international treaties.

2 International Law Commission (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. (ILC Articles on State Responsibility). 3

Christian Schaller, Spies, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopaedia of Public International Law (MPEPIL), Vol. IX (2012) 435, para. 2; see also Lt. Col. Geoffrey B. Demarest, Espionage in International Law, Denver Journal of International Law & Policy (DJILP) 24 (1996), 321, 330 et seq.; Christopher D. Baker, Tolerance of International Espionage: A Functional Approach, American University International Law Review 19 (2004), 1091; Dieter Fleck, Individual and State Responsibility for Intelligence Gathering, Michigan Journal of International Law 28 (2007), 687.

172 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 B. Attribution and State Responsibility

1. Actions of State Organs As a rule, State responsibility for the violation of international law will be triggered by the acts of State organs (Article 2 ILC Articles on State Responsibility).

2. Actions by Private Persons and Non-Governmental Entities: Control by the State Acts of private persons and non-State entities establish State responsibility only where there is a certain degree of authority and control over the private activities, e.g. hackers instigated and sponsored by their home government. The ILC Articles on State Responsibility simply refer to actions “on the instructions of, or under the direction and control” of the State concerned.4 This necessary degree of “direction and control” is, however, a matter of controversy. At least in the context of armed activities, the International Court of Justice (ICJ) clearly favours very narrow conditions for attribution, e.g. the establishment of ‘effective control’ that also extends to specific operations carried out by private persons or entities.5 By contrast, the International Criminal Tribunal for the former Yugoslavia adopted a more lenient standard of attribution, the ‘overall control’ test.6 There is a growing tendency in international law to follow the more flexible ‘overall control’, which emerged in the context of the attribution of armed attacks to States ‘harbour4

Art. 8 ILC Articles on State Responsibility: “The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct”. 5

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. 115; id., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, 43, paras. 399 et seq. 6

International Criminal Tribunal for the former Yugoslavia (ICTY), Appeals Chamber, The Prosecutor v. Duško Tadić, ICTY-94-1-A, Judgment of 15 July 1999, paras. 120, 145.

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ing’ terrorists and which was consolidated, more recently, for the pupose of establishing State responsibility for cyber attacks carried out by private persons.7 It is already difficult enough to trace cyber attacks back to the country of origin thus if State responsibility for cyber attacks perpetrated by private actors is to have any practical relevance, the ‘overall control’ test should govern attribution. Otherwise the requisite evidence would amount to a kind of probatio diabolica. Of course, traceability is a most complex and contentious issue where concerns of privacy and free communication in an open society clash with interests of national and international security. Traceability vests democratic governments and authoritarian regimes alike with instruments of supervision, albeit for quite different purposes. In any case, traceability can realistically be conceptualised in an asymmetric way. The European debate on the processing of electronic communication and privacy8 amply demonstrates the controversial nature of the issue. In the context of traceability, we must also consider preexisting imbalances in the non-negotiated access of certain governments to transatlantic glass fibre-cables and other communication facilities. The State in which a service provider is incorporated or has its seat of management has usually more leverage as to the disclosure of data by the provider. If a State siphons off electronic communication networks located on its own territory or glass fibre cables running through its territorial sea, it acts within its

7 Johann-Christoph Woltag, Cyber Warfare, in: Rüdiger Wolfrum (ed.), MPEPIL, Vol. II (2012), 988, para. 22; Alexander Kees, Responsibility of States for Private Actors, in: Rüdiger Wolfrum (ed.), MPEPIL, Vol. VIII (2012), 959, para. 18; Stefan Talmon, The Various Control Tests in the Law of State Responsibility and the Responsibility of Outside powers for Acts of Secessionist Entities, International and Comparative Law Quarterly 58 (2009), 493; Shackelford/Andres (note 1), 988; Laurie R. Blank, International Law and Cyber Threats from Non-State Actors, International Law Studies 89 (2013), 406, 415 et seq.; Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013), 32 et seq. 8 European Court of Justice (ECJ), Bodil Lindqvist, Case C-101/01, 2003 ECR I-12971; id., Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, Case C-73/07, 2008 ECR I-09831; id., eDate Advertising and Others, Case C-509/09 and C-161/10, 2011 ECR I-10269; id., Google Spain SL and Google Inc. v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Case C-131/12, available at: http://curia.europa.eu/juris/liste.jsf?pro=&lgrec=de&nat=or&oqp=&dates= &lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR% 252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252C false%252Cfalse&num=C-131%252F12&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&jge= &for=&cid=279555 (accessed on 12 November 2015).

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own territorial jurisdiction. Similary, a State may be tapping into cables running through its exclusive economic zone.9

III. Due Diligence and Cyber Security A. Prevention of Transboundary Harm – Conceptual Basis

In contemporary international law, a general principle has emerged which requires States to exercise due diligence to avoid transboundary harm to life and tangible assets of persons domiciled abroad and of foreign States. This principle can be inferred, by way of extrapolation, from a broad range of due diligence obligations flowing from territorial sovereignty and the possible control of private actors. There are four interconnected conceptual bases for due diligence obligations flowing from territorial sovereignty 1. Respect for international and domestic common goods, such as the environment in inter-State relations, 2. Prevention of private actions directed against assets of foreign States or life and property of persons located in foreign territory, 3. Freedom of communications, and 4. Responsibility for resources shared with other States. Due diligence with respect to cyber security stands in close connection with all four rationales.

1. Respect for the Environment of Other States and for International Common Goods By now, due respect for the environment of other States and global public goods may be considered as part of customary international law. Several United Nations 9

See Arts. 58 (1), 79 United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 1833, 3 (UNCLOS).

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(UN) conferences have endorsed such an obligation. Thus, Principle 2 Rio Declaration on Environment and Development10 declares: States have […] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Principle 21 Stockholm Declaration11 follows the same line: States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

A great number of environmental treaties embody this principle and call for appropriate measures to prevent damage to the environment.12 In its Nuclear Weapons advisory opinion, the ICJ stated:13 The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The 10

Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Vol. I) (1992), Principle 2. 11

Declaration of the United Nations Conference on the Human Environment, UN Doc. A/Conf.48/ 14/Rev. 1 (1973), Principle 21. 12 See e.g., Convention on Long-Range Transboundary Air Pollution, 13 November, UNTS 1302, 217, Art. 2; Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, UNTS 1513, 293, Art. 2; Art. 194 UNCLOS. 13

ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 226, para. 29; see for a general overview of the topic Ulrich Beyerlin/Thilo Marauhn, International Environmental Law (2011); Daniel Bodansky/Jutta Brunnée/Ellen Hey, The Oxford Handbook of International Environmental Law (2008); Michael Bowman/Catherine Redgwell (eds.), International Law and the Conservation of Biological Diversity (1996); Luigi Campiglio et al., (eds.), The Environment after RIO: International Law and Economics (1996); James Crawford, Brownlie’s Principles of Public International Law (8th ed. 2012), 352 et seq.; Rudolf Dolzer/Josef Thesing (eds.), Protecting Our Environment (2000); Michael Faure/Göran Skogh, The Economic Analysis of Environmental Policy and Law: An Introduction (2003); Lakshman D. Guruswamy/Geoffrey W. R. Palmer/ Burns H. Weston, International Environmental Law and World Order: A Problem-Oriented Coursebook (2nd ed. 1999); Matthias Herdegen, Principles of International Economic Law (2013), 118 et seq.; Alexandre Charles Kiss/Dinah Shelton, International Environmental Law (3rd ed. 2004); Elli Louka, International Environmental Law: Fairness, Effectiveness, and World Order (2006); Philippe Sands/ Jacqueline Peel, Principles of International Environmental Law (3rd ed. 2012); Rüdiger Wolfrum (ed.), Enforcing Environmental Standards: Economic Mechanisms as Viable Means? (1996).

176 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States and of areas beyond national control is now part of the corpus of international law relating to the environment.14

More recently, the ICJ recognised a customary obligation of States to prevent transboundary damages to the environment. In the Pulp Mills case,15 the Court held: The Court considers that the obligation laid down in Article 36 [of the Statute on the Rio Uruguay agreed between Argentina and Uruguay] is addressed to both Parties and prescribes the specific conduct of co-ordinating the necessary measures through the Commission to avoid changes to the ecological balance. An obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct. Both Parties are therefore called upon, under Article 36, to exercise due diligence in acting through the Commission for the necessary measures to preserve the ecological balance of the river. This vigilance and prevention is all the more important in the preservation of the ecological balance, since the negative impact of human activities on the waters of the river may affect other components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to co-ordinate, through the Commission, the adoption of the necessary measures, as well as their enforcement and observance, assumes, in this context, a central role in the overall system of protection of the River Uruguay established by the 1975 Statute […].

The Court concluded: It is the opinion of the Court that in order for the Parties properly to comply with their obligations under Article 41 (a) and (b) of the 1975 Statute, they must, for the purposes of protecting and preserving the aquatic environment with respect to activities which may be liable to cause transboundary harm, carry out an environmental impact assessment. […] In this sense, the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the regime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works.

14 15

ICJ, Legality of the Threat or Use of Nuclear Weapons (note 13), 226, para. 29.

Id., Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, 14, paras. 187 et seq., 204.

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The required standard for prevention is due diligence. In the context of environmental risks associated with deep seabed mining and exploration, the International Tribunal for the Law of the Sea (ITLOS) adopted this standard in its advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.16 The Tribunal applied the due diligence standard to the supervision of mining companies by their home State or another sponsoring State and related it to “reasonably appropriate measures” in terms of Article 153 (4) UNCLOS and Annex III Article 4 (4) UNCLOS.17 Cyberspace and the protection of cyber security stand in close analogy with the environment and environmental protection, at least to the extent that they constitute international public goods and global commons.

16 International Tribunal for the Law of the Sea (ITLOS), Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, para. 117, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_ adv_op_010211_en.pdf (accessed on 12 November 2015). 17

Ibid., paras. 118 et seq.: “118. Article 153, paragraph 4, last sentence, of the Convention states that the obligation of the sponsoring State in accordance with article 139 of the Convention entails ‘taking all measures necessary to ensure’ compliance by the sponsored contractor. Annex III, article 4, paragraph 4, of the Convention makes it clear that sponsoring States’ ‘responsibility to ensure’ applies ‘within their legal systems’. With these indications [emphasis added] the Convention provides some elements concerning the content of the ‘due diligence’ obligation to ensure. Necessary measures are required and these must be adopted within the legal system of the sponsoring State. 119. Further light on the expression ‘measures necessary to ensure’ is shed by the Convention if one considers article 139, paragraph 2, last sentence, and Annex III, article 4, paragraph 4, last sentence, of the Convention. The main purpose of these provisions is to exempt sponsoring States that have taken certain measures from liability for damage. The description of the measures to be taken by that State may also be used to clarify its ‘due diligence’ obligation. This description remains in general terms in article 139, paragraph 2, of the Convention which mentions ‘all necessary and appropriate measures to secure effective compliance under article 153, paragraph 4, and Annex III, article 4, paragraph 4’. The latter provision is more specific as it requires the sponsoring State to adopt ‘laws and regulations’ and to take ‘administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction’. 120. More specific indications concerning the content of these measures, including aspects relating to their enforcement, with respect to the contents of these measures will be provided in the reply to Question 3. As regards Question 1, it has been established that the ‘due diligence’ obligation ‘to ensure’ requires the sponsoring State to take measures within its legal system and that the measures must be ‘reasonably appropriate’”.

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2. Prevention of Acts Aimed at Transboundary Harm Under customary international law, States have an obligation to prevent acts carried out within their territory which are designed to cause transboundary harm. The locus classicus is to be found in the judgment of the ICJ in the Corfu Channel case (Merits). The Court recognised that States have obligations as to the notification of the existence of a mine field in their territorial waters and to the warning of approaching warships. It based these obligations on elementary considerations of humanity, even more exacting in peace than in war; […] and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.18

The Corfu Channel judgment made the obligation to prevent acts encroaching on the rights of other States dependent on knowledge of such use of its territory. The dissenting opinions of Judge Winiarski19 and Krylov20 focused on the standard of due diligence (“ought to have seen or heard”). In the context of the obligation to prevent cross-border armed traffic, the ICJ adopted the due diligence standard in the Nicaragua Case.21 The Draft Articles of the International Law Commission (ILC) on Prevention of Transboundary Harm from Hazardous Activities22 require the State of origin to “take all appropriate measures to prevent significant transboundary harm or at any event to minimise the risk thereof” (Article 3 Draft Articles). As a matter of consequential logic this standard, formulated in the context of high-risk activities not prohbited by international law (Article 1 Draft Articles) must apply to acts which purport to cause significant transboundary harm.

18 ICJ, The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, Judgment of 9 April 1949, ICJ Reports 1949, 22. 19

Id., Corfu Channel (note 18), Dissenting Opinion of Judge Winiarski, ICJ Reports 1949, 4, 51.

20

Id., Corfu Channel (note 18), Dissenting Opinion of Judge Krylov, ICJ Reports 1949, 4, 71 et seq.

21

Id., Nicaragua Case (note 5), 14, para. 157.

22

ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, GAOR, 56th Sess., Suppl. 10, 148 et seq.

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NATO’s Tallinn Manual on the International Law Applicable to Cyber Warfare23 states in Rule 5 Tallinn Manual: “A State shall not knowingly allow the cyber instructions located in its territory or under its exclusive governmental control to be used for acts that aversely and unlawfully affect other States.” Rule 5 is an echo of the Corfu Channel judgment. Under current international law, the narrow criterion of positive knowledge of harmful activities as condition for duties of prevention seems to be justified only in the context of activities which 1. affect other States within the territory, the territorial waters, or the exclusive economic zone of the State concerned or which 2. cause no significant physical harm. In cases of transboundary physical harm, the standard of due diligence applies.

3. Freedom of Communication In the Corfu Channel case, the ICJ based the duty of a State to avert damage from activities carried out within its territory (obligations of notification and warning) also on “the principle of the freedom of maritime communication”.24

4. Responsibility for Shared Resources Finally, obligations of States to avert or minimise the harmful effects from activities carried out within their territory can arise from the common responsibilty for shared resources. In this context, cyberspace can be compared to shared resources such as water resources shared by two or more States. Article 7 (1) Draft Articles of the ILC on the Law of the Non-Navigational Uses of International Watercourses,25 reads: “Watercourse States shall exercise due diligence to utilize an international water course in such a way as not to cause significant harm to other watercourse States.”

23

Michael N. Schmitt (ed.), (note 7).

24

ICJ, Corfu Channel (note 18), 22.

25

ILC, The law of the non-navigational uses of international watercourses, Yearbook of the International Law Commission (YILC) 1994, Vol. II (Part Two), para. 222, 102.

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The Convention on the Law of the Non-Navigational Uses of International Watercourses (in force since 17 August 2014) no longer refers to due diligence but obliges watercourse States “to take all appropriate measures to prevent the causing of significant harm to other watercourse States.” In the Pulp Mills case, the ICJ underlined the obligation of vigilance and prevention with respect to private activities which adversely affect a shared resource.26 Cyberspace constitutes a physical and non-physical resource shared by the internet community (Article 1 Statute of the Internet Corporation for assigned Numbers and Names (ICANN)). The dispute settlement panel in ICM Registry v. ICANN classified ICANN’s functions as the administration of “an intrinsically international resource of immense importance to global communications and economies”.27 It therefore seems appropriate to apply the due diligence standard broadly recognised in the context of other sources shared by several States to cyberspace.

B. Significance of Due Diligence

Up to now, no precise criteria have been identified to define due diligence with respect to the prevention of cyber attacks and the maintenance of cyber security. Still, some elements can be distilled from international rulings in other contexts.

1. Obligation to Take Appropriate Measures The starting point for obligations to prevent and avert damage to other States and interference with their rights is the obligation to take appropriate measures. This standard is adopted in a number of international treaties on the protection of the environment,28 the Draft Articles of the ILC on Prevention of Transboundary Harm from Hazardous Activities29 (Article 3 Draft Articles), the ITLOS advisory opinion 26

ICJ, Pulp Mills (note 15), para. 204.

27

International Centre for Dispute Resolution, ICM Registry v. ICANN, Declaration of the Independent Review Panel, 19 February 2010, ICDR Case No. 50 117 T 00224 08, reprinted in: International Legal Materials 956, Vol. 49 (2010), para. 140. 28

See supra, note 12.

29

See supra, note 22.

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on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area30 and the judgment of the ICJ in the United States Diplomatic and Consular Staff in Tehran case.31

2. Commensurability with the Risk to be Averted With respect to obligations to prevent shipments of military equipment under the rules of neutrality, the award in the Alabama Arbitration (1872) held that the required measures must be commensurate with the risk to be averted.32 The same criterion appears in the Pulp Mills judgment of the ICJ.33 In its advisory opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the ITLOS relates due diligence to the degree of risks associated with a particular activity: The content of ‘due diligence’ obligations may not easily be described in precise terms. Among the factors that make such a description difficult is the fact that ‘due diligence’ is a variable concept. It may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or 30

See supra, note 16.

31

ICJ, United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment of 24 May 1980, ICJ Reports 1980, 3, para. 63. 32 Geneva Arbitration Tribunal, Alabama claims of the United States of America against Great Britain, Arbitral Award of 14 September 1872, Reports of International Arbitral Awards XXIX, 125 et seq. 33

ICJ, Pulp Mills (note 15), para. 205: “The Court observes that neither the 1975 Statute nor general international law specify the scope and content of an environmental impact assessment. It points out moreover that Argentina and Uruguay are not parties to the Espoo Convention. Finally, the Court notes that the other instrument to which Argentina refers in support of its arguments, namely, the UNEP Goals and Principles, is not binding on the Parties, but, as guidelines issued by an international technical body, has to be taken into account by each Party in accordance with Article 41 (a) in adopting measures within its domestic regulatory framework. Moreover, this instrument provides only that the ‘environmental effects in an EIA should be assessed with a degree of detail commensurate with their likely environmental significance’ (Principle 5) without giving any indication of minimum core components of the assessment. Consequently, it is the view of the Court that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken”.

182 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 technological knowledge. It may also change in relation to the risks involved in the activity. As regards activities in the Area, it seems reasonable to state that prospecting is, generally speaking, less risky than exploration activities which, in turn, entail less risk than exploitation. Moreover, activities in the Area concerning different kinds of minerals, for example, polymetallic nodules on the one hand and polymetallic sulphides or cobalt rich ferromanganese crusts on the other, may require different standards of diligence. The standard of due diligence has to be more severe for the riskier activities.34

3. Vigilance and Prevention Due diligence includes vigilance and prevention as held by the ICJ with respect to the maintenance of ecological balance in the Pulp Mills case. This vigilance and prevention is all the more important in the preservation of the ecological balance, since the negative impact of human activities on the waters of the river may affect other components of the ecosystem of the watercourse such as its flora, fauna, and soil. The obligation to co-ordinate, through the Commission, the adoption of the necessary measures, as well as their enforcement and observance, assumes, in this context, a central role in the overall system of protection of the River Uruguay established by the 1975 Statute. It is therefore of crucial importance that the Parties respect this obligation.35

In this case, the Court concluded that under customary environmental law, due diligence calls for an environmental impact assessment, when industrial activities risk having a significant adverse impact in a transboundary context, in particular, on a shared resource.36

4. Exchange of Information and Warning Due diligence with respect to the safeguarding of the rights of other States includes an exchange of information and warning, as the ICJ already stated in the Corfu Channel case.37 34 ITLOS, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (note 16), para. 117. 35

ICJ, Pulp Mills (note 15), para. 188.

36

Ibid., para. 204.

37

Id., Corfu Channel (note 18), 22.

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IV. Regulatory Approaches A. Layers of Responsibility

1. Private Actors Including Service Providers The responsibility of private actors which undertake cyber attacks has several dimensions which range from civil liability to criminal responsibility, e.g. under the Council of Europe Convention on Cybercrime.38 However, ‘Corporate cyber-responsibility’ of service providers will not be easy to establish, as requirements of reliable identification of e-mail account holders and of senders encounter political resistance and raise difficult legal issues.39

2. Responsibility of States of Origin of Cyber Threats De lege ferenda, the responsibility of States of origin of cyber threats can be established by treaty-based, institutional arrangements, e.g. for the exchange of risk relevant information. In addition, the establishment of an institutionalised supervision mechanism which monitors individual and corporate activities should be considered. A possible model is the National Contact Points for Corporate Social Responsibility system set out in the Organisation for Economic Co-Operation and Development’s (OECD) Guidelines for Multinational Enterprises.40

38

Convention on Cybercrime, 23 November 2001, CETS No. 185.

39

See Debra Wong Yang/Brian M. Hoffstadt, Countering the Cyber-Crime Threat, American Criminal Law Review 43 (2006), 201; Oona A. Hathaway, The Law of Cyber-Attack, California Law Review 100 (2012), 817, 879 et seq. 40

See Herdegen (note 13), 111 et seq.

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3. Due Diligence of Corporate Targets Corporate targets of cyber attacks should also be deemed to have a duty of diligence to prevent and minimise damages. This is, however, primarily a matter of national policy and domestic regulation.

B. Form of Regulation

While intergovernmental cooperation can be based on international agreements, an alternative might be ‘soft law’ instruments such as guiding principles or codes of conduct of international organisations such as the OECD.

C. Institutional Framework

In the institutional design, an intergovernmental architecture may be constructed with a multi-stakeholder approach which integrates private bodies such as the Internet Engineering Task Force,41 non-governmental organisations, or hybrid organisations (ICANN) into fora for cooperation or for the development of technical standards. While the added value of a multi-stakeholder approach should not be over-estimated, it would enhance the pull to compliance with any international standards on due diligence and foster the effective protection of cyber-security.

V. Conclusion International law is still in a rather early stage in terms of responding to cyberthreats. States must apply due diligence in supervising threats to cyber-security which may affect other States and prevent substantial harm by transboundary activities, however the rules on State responsibility for attacs on cyber-security by private actors are rather rudimentary. It is submitted that ‘overall control’ rather than ‘effective

41

For further information see https://www.ietf.org/ (accessed on 12 November 2015).

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control’ should be the appropriate standard of attribution and regulatory models for international cooperation should include governments, non-governmental organisations, private corporations as well as hybrid organisations such as ICANN.

GENERAL ARTICLES

The UN Human Rights Committee: The General Comments – The Evolution of an Autonomous Monitoring Instrument( ECKART KLEIN(( AND DAVID KRETZMER(((

ABSTRACT: Since the end of the Cold War the “General Comments” of the UN Human Rights Committee have lost their function as an integral part of the reporting procedure (Article 40 ICCPR) and have evolved into a separate monitoring instrument. The purpose of this article is to trace this evolution and to evaluate whether the legal design of the General Comments is suited to enhancement of the international, and indirectly also national, accountability of States for their human rights policies and practices. The competence of the Committee to draft General Comments summarising its work relating to specific articles of the Covenant or dealing with more abstract issues such as the admissibility of reservations is discussed. The legal nature of General Comments is examined. Other parts of the article discuss the material the Committee uses in drafting General Comments which mainly includes references to its own practice, but recently also considers suggestions from outside bodies such as NGOs. General Comments should not be sophisticated academic papers, but rather precise, fairly short, and readable documents. Whilst their potential may in the past have been somewhat neglected, one day General Comments may conceivably be seen as the most sustainable contribution of the Committee to the international protection of human rights. KEYWORDS: Accountability, Evolution of General Comments, General Comments, Purposes and Functions, Human Rights Committee, Human Rights Monitoring, Interpretation, Legal Nature of General Comments, Topics

(

The present article is part of a study on the Human Rights Committee (HR Committee) which was funded by the German-Israeli Foundation for Scientific Research and Development (GIF). A first article titled “The Human Rights Committee: Monitoring States’ Parties Reports” has been published in Israel Yearbook on Human Rights 45 (2015), 133 et seq. (( Dr. iur. habil. (Heidelberg), Emeritus Professor, Faculty of Law of the University of Potsdam, Germany. He served as a member of the UN Human Rights Committee from 1995–2002. ((( LL.B., LL.M (Jerusalem), Dr. jur. (York, Canada) and Dr. h.c. (Potsdam), Ermeritus Professor, Hebrew University of Jerusalem and Professor of Law, Sapir College, Israel. He served as a member of the UN HR Committee from 1995–2002.

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I. Introductory Remarks A. Emancipation from the Reporting System

General Comments as mentioned in Article 40 (4) International Covenant on Civil and Political Rights (ICCPR) were, in the beginning,1 an original part of the State reporting procedure. During the Cold War era the United Nations (UN) Human Rights Committee (HR Committee) did not succeed in drawing specific conclusions from the examination of reports of individual States; it restricted itself to summarising the experience it had gained through the consideration of a multiplicity of State reports in General Comments.2 After 1992, when the Committee began issuing concluding observations distinctly related to the reports of individual States, the General Comments lost their function as an integral and necessary part of the reporting procedure and began to evolve into working instruments of their own. Today, General Comments are undisputedly acknowledged as a specific tool alongside the consideration of reports and communications through which the HR Committee performs its monitoring task.3 While concluding observations on States parties’ reports and views in communications involve the application of the Covenant to concrete situations, General Comments are in most abstract interpretations of the Covenant. These interpretations are generally based on the previous practice of the Committee, though sometimes they go further by proposing interpretations of the Covenant that have not yet been elaborated in the reporting or communication procedures. Publishing such a commentary on the interpretation of the rules that had been applied in the past and will be applied in the future would not only be strange, but completely out of order for a regular court. However, although it is composed of independent experts, acting in their per-

1

International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171 (ICCPR).

2

For these early years of the HR Committee’s activity see Christian Tomuschat, Human Rights: Between Idealism and Realism (3rd ed. 2014), 225 et seq; Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd ed. 2005), 742 et seq. 3 E.g., Philip Alston, The Historical Origins of the Concept of General Comments, in: Laurence Boisson de Chazournes/Vera Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), 763. An analogous development can be observed concerning the General Comments or general recommendations of other human rights treaty bodies as far as they were already established before the end of the Cold War.

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sonal capacity, not as representatives of their home States the HR Committee is not a court.4 It does, however, fulfil two functions, one of which has a close affinity to a judicial function. In considering individual communications the Committee has to examine whether any right protected under the Covenant has been violated by the State party concerned and to forward its views on this question to that State and the individual complainant.5 This task does not in principle differ from the task of a court of law, and over time the Committee has rightly, and at least partially successfully, sought to bring the relevant procedure closer to a judicial procedure.6 On the other hand, consideration of States parties’ reports cannot in any way be regarded as a judicial enterprise. Although here too the Committee applies the provisions of the Covenant as a legal yardstick for formulating its concerns and recommendations in its concluding observations, the discussion with States parties’ representatives and the Committee’s deliberative, sometimes sweeping, assessment whether the State’s measures give effect to the Covenant rights and whether progress has been made in the enjoyment of those rights do not even approximately resemble a judicial activity. Although the adoption of General Comments has lost its original meaning as an integral part of the process of the examination of State reports, it remains closely related to this procedure which is obligatory for all States parties. By adopting General Comments, the Committee is not acting as a (quasi-)judicial body and should not try to do so. Any attempt to resemble such a body as far as its activities under Article 40 ICCPR are concerned would hardly enhance the Committee’s legal standing but rather undermine its capacity to adopt concluding observations and General Comments.7 It is one of the particular challenges for the Committee to adjust to different roles in performing its different functions.

4

Art. 28 (2) ICCPR.

5

Art. 5 (4) Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 302 (OP). 6 See, e.g., HR Committee, Rules of Procedure of the Human Rights Committee, Rules 71 (4), 90, and 91, UN Doc. CCPR/C/3/Rev. 10 (2012). 7

Michael O’Flaherty, The United Nations Human Rights Treaty Bodies As Diplomatic Actors, in: Michael O’Flaherty et al. (eds.), Human Rights Diplomacy: Contemporary Perspectives (2011), 155, 171 distinguishes between quasi-judicial and diplomatic functions of the treaty bodies, assigning General Comments to the first category.

192 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 B. A Short Overview of General Comments

At the time of writing (September 2015) the HR Committee has adopted 35 General Comments.8 Nineteen of them were issued before the end of 1990, when the Cold War came to an end. Thus the Committee had actually made use of this instrument by drawing at least some, though only very general, conclusions from the examination of State reports. Over the years the way the General Comments are drafted has become more sophisticated regarding content, argumentation, and style. However, the General Comments adopted both before and after 1990 are concerned with procedural as well as substantive issues, and although the newer General Comments tend to be longer, the older Comments include some quite extended statements, too.9 The Committee did not hesitate to tackle difficult problems before 1990. A good example is the rather peculiar General Comment No. 14 (1984) on Article 6 ICCPR (right to life), which in a rather bold way hardly reflecting the prevailing standards of international law at the time, declared “(t)he production, testing, possession, deployment and use of nuclear weapons […] as crimes against humanity”.10 After 1990, General Comment No. 24 (1994) on reservations, General Comment No. 26 (1997) on the automatic succession of successor States to the Covenant, and General Comment No. 29 (2001) regarding the definition of non-derogable rights, may likewise be counted as “innovative”.11 As of today, the 35 General Comments deal with most of the provisions contained in Part I to III ICCPR (Articles 1–27). Not yet covered are Articles 5, 8, 11, 15, 16, 21, and 22 ICCPR. Article 13 ICCPR is partly tackled by General Comment No. 15 (1986);12 Article 26 is covered, to a large extent, by General Comments No. 18 (1989)

8 The text of all General Comments/Recommendations of all treaty bodies are available at: http:// www.ohchr.org/EN/HRBodies/Pages/TBGeneralComments.aspx (accessed on 26 February 2016). 9

E.g., HR Committee, General Comments (GC) No. 13/1984, 15/1986, 17/1989, 18/1989, UN Doc. HRI/GEN/1/Rev. 6 (2003), 135, 140, 144, 146. 10

Id., GC No. 14/1984, UN Doc. HRI/GEN/1/Rev.6 (2003), 139. Cf., however, International Court of Justice (ICJ), Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226 et seq. 11 HR Committee, GC No. 24/1994, 26/1997, No. 29/2001, UN Doc. HRI/GEN/1/Rev.6 (2003), 161, 173, 186. 12

Id., GC No. 15/1986 (note 9).

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and No. 28 (2000).13 In seven cases newer General Comments have replaced older ones, the last examples being General Comment No. 34 (2011) on freedom of opinion and expression replacing General Comment No. 10 (1983)14 and General Comment No. 35 (2014) on Article 9 (Liberty and security of person) replacing General Comment No. 8 (1982).15 Recently, discussions started on a new General Comment on Article 6 (Right to life) that will address a broad range of issues from abortion to euthanasia and death penalty and presumably replace General Comment No. 6 (1982).16

C. Intention of this Article

This article examines the role of the General Comments in its present work. We start with the question of the purposes of General Comments and follow up by showing how the legal instrument of the General Comments has developed over time. Finally, we evaluate the result of our research and formulate some recommendations. Our study does not address the question of effectiveness. The degree of effective achievement is very difficult to gauge; it is dependent on the States’ compliance with the lines drawn by the General Comments. Gauging compliance would require an empirical examination of the reactions of the States parties to the General Comments and a comparison of their behaviour before and after their knowledge of those Comments. Such an empirical examination is beyond the scope of the present study. Rather, we are interested in discussing whether General Comments are suited, by their construction and the procedure leading to their adoption, to achieving their ends. Are they suited to enhancing the treaty compliance of the States parties by raising the “levels of awareness about the Covenant not only among public officials and State agents but also among the population at large”?17 Or, to put it in the terms

13

Id., GC No. 18/1989 (note 9), GC No. 28/2000, UN Doc. HRI/GEN/1/Rev.6 (2003), 146, 179.

14

Id., GC No. 10/1983, UN Doc. HRI/GEN/1/Rev.6 (2003), 132; id., GC No. 34/2011, UN Doc. CCPR/C/GC/34 (2011). 15 Id., GC No. 8/1982, UN Doc. HRI/GEN/1/Rev.6 (2003), 130; id., GC No. 35/2014, UN Doc. CCPR/C/GC/35 (2014). 16

Id., GC No. 6/1982, UN Doc. HRI/GEN/1/Rev.6 (2003), 127.

17

Id., GC No. 31/2004, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 7.

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of the so-called spiral-model:18 Do General Comments have the potential to assist States parties to turn from phase 4 (the ‘prescriptive status’), the stage where States have already ratified the Treaty, to phase 5 of the model (‘rule-consistent-behaviour’) where States are at least generally willing to comply with the accepted rules? Is the instrument which the Committee has forged out of the General Comments helpful with regard to the enhancement of international and national accountability?19 Thus our focus is placed on the suitability of General Comments for encouraging States’ compliance with their legal commitments and, correspondingly, for enhancing the Committee’s capability to monitor that compliance. We deliberately do not take up the question and notion of legitimacy which, rightly or wrongly, has become a favourite issue in the area of international political relations and international law itself.20 To be sure, and we shall discuss this in more detail later, the General Comments as such are not binding legal instruments; they cannot directly claim the force of law, and thus their potential is largely dependent on their persuasive force. Persuasiveness may be an element of legitimacy, but persuasiveness as such is important, and we seek to discover, whether and if so under which circumstances, General Comments may attain such persuasive force that would enable them to successfully complement the Committee’s monitoring task.

18 Thomas Risse/Kathryn Sikkink, The Socialization of International Human Rights Norms into Domestic Practises, in: Thomas Risse/Stephen C. Ropp/Kathryn Sikkink (eds.), The Power of Human Rights: International Norms and Domestic Change (1999), 1, 29 et seq. 19 Meaning the duty to account for, or to answer for, one’s actions towards some other person or institution; cf. Mark Philp, Delimiting Democratic Accountability, Political Studies 57 (2009), 34; Jutta Brunnée, International Legal Accountability Through the Lens of the Law of State Responsibility, Netherlands Yearbook of International Law 36 (2005), 21, 24. Others define accountability as “responsiveness to people”; see Joost Pauwelyn, Informal International Lawmaking: Framing the Concept and Research Questions, in: Joost Pauwelyn/Ramses A. Wessel/Jan Wouters (eds.), Informal International Lawmaking (2012), 13, 23. Charles A. Beitz, The Idea of Human Rights (2009), 33–34 rightly points to the difference between the effectiveness of monitoring and its classification as an accountability system. 20 The excellent book of Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012) is focused on this issue; see further Rüdiger Wolfrum/Volker Röben (eds.), Legitimacy in International Law (2008); Andreas Føllesdal/Johan Karlsson Schaffer/Geir Ulfstein (eds.), The Legitimacy of International Human Rights Regimes (2014); Steven Wheatley, The Democratic Legitimacy of International Law (2010); Jutta Brunnée/Stephen J. Toole, Legitimacy and Legality in International Law: An International Account (2010).

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II. Purposes and Functions of General Comments A. General Remarks

The “purposes of the Covenant” to which the Preamble of the Optional Protocol expressly refers, follow from the human rights themselves as enshrined in the Covenant and more generally from the Covenant’s Preamble. According to preambular paragraph 1, the States parties agree that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”, and also agree (paragraph 3) that all may enjoy their civil and political rights. States that have ratified the Covenant have further agreed to accept the monitoring mechanism as provided for in Article 40 ICCPR. The General Comments whose legal basis is found in Article 40 (4) ICCPR, therefore are still related to the monitoring system established by this treaty. The purpose of monitoring is merely auxiliary. It consists in helping the States, maybe even by putting pressure upon them, to fulfil their substantive or procedural obligations under the Covenant, i.e. to respect, to ensure, and to give effect to the rights recognised therein (Article 2 (1) and (2) ICCPR). Monitoring may and should sharpen the States’ awareness and responsibility for the performance of their duties and enhance their accountability.21 If the 168 States parties to the Covenant (June 2015) have also ratified the (First) Optional Protocol, as 115 of them have already done, the Committee is competent not only to examine whether law and practice of a State is generally in conformity with the requirements of the Covenant, but also to consider communications submitted by individuals alleging violations of their Covenant rights. Thus the monitoring task covers two aspects – refining the interpretation of Covenant rights and applying that interpretation in concrete cases. Both aspects are closely intertwined, because every individual decision (Views) not only applies to a specific case; rather, by the interpretation and application of the general norms in concrete cases, the contours of those norms become legally refined and developed, thus contributing to the existing net of legal obligations. The existence of a clear legal standard may enhance the chances that individual justice will be applied equally. However, it is still useful to 21

Beth A. Simmons, Mobilizing for Human Rights (2009), 27 et seq.

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distinguish both perspectives, since the monitoring tools of the Committee differ in their respective emphasis.22 General Comments, as already indicated by the term itself, do not strive at the achievement of individual justice. They are much more closely related to the monitoring task as realised by the reporting procedure (Article 40 ICCPR), notwithstanding the developments that have taken place since the 1990’s. This means that General Comments presumably intend to assist States on a general basis to give effect to the rights of the Covenant and to enhance the progress made in the enjoyment of those rights. Apart from this broad statement to be deduced from the General Comments’ connection with the reporting procedure, it remains necessary to discuss the specific functions of General Comments in order to get a fuller picture of this monitoring tool.

B. Specific Purposes

Before the Committee started to formulate its first General Comment in 1981 (on the reporting obligation) after having examined initial reports from 36 States parties, it adopted on 30 October 1980 a “Statement on the duties of the Human Rights Committee under article 40 of the Covenant” which, i.a., dealt with General Comments. In this respect, the Committee was to be guided by the following principles: – They [the General Comments] should be addressed to the States parties in conformity with article 40, paragraph 4 of the Covenant; – They should promote co-operation between States parties in the implementation of the Covenant; – They should summarize experience the Committee has gained in considering States reports; – They should draw the attention of States parties to matters relating to the improvement of the reporting procedure and the implementation of the Covenant, and – They should stimulate activities of States parties and international organizations in the promotion and protection of human rights.

22

Eckart Klein, Stimmen Zweck und Mittel im internationalen Menschenrechtsschutz überein?, in: Michaela Wittinger/Rudolf Wendt/Georg Ress (eds.), Verfassung – Völkerrecht – Kulturgüterschutz: Festschrift für Wilfried Fiedler zum 70. Geburtstag (2011), 541, 546 et seq.

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The Statement goes further by stating that the General Comments could be related among others to the following subjects: – The implementation of the obligation to submit reports under article 40 of the Covenant; – The implementation of the obligation to guarantee the rights set forth in the Covenant; – Questions related to the application and the content of individual articles of the Covenant; – Suggestions concerning co-operation between States parties in applying and developing the provisions of the Covenant.23

Nine years later, on 19 May 1989, having gained the experience of the examination of 77 initial and 34 periodic reports, the Committee explained the purpose of the General Comments as follows: The Committee wishes to reiterate its desire to assist States parties in fulfilling their reporting obligations. These general comments draw attention to some aspects of this matter but do not purport to be limitative or to attribute any priority between different aspects of the implementation of the Covenant. These comments will, from time to time, be followed by others as constraints of time and further experience may make possible. […]. The purpose of these general comments is to make this experience [sc. which the Committee has gained through the examination of so many reports from all over the world] available for the benefit of all States parties in order to promote their further implementation of the Covenant; to draw their attention to insufficiencies disclosed by a large number of reports; to suggest improvement in the reporting procedure and to stimulate the activities of these States and international organizations in the promotion and protection of human rights. These comments should also be of interest to other States, especially those preparing to become parties to the Covenant and thus to strengthen the cooperation of all States in the universal promotion and protection of human rights.24

It is interesting to compare both statements. The first purpose attributed to General Comments in 1980, namely to promote cooperation between States parties in the implementation of human rights, clearly reflects the prevailing view within the Committee at the time that the monitoring procedure should stress the inter-State cooperation aspect (thus avoiding critical statements that could upset such coopera23 HR Committee, Report of the HR Committee, Supplement No. 40, UN Doc. A/36/40, Annex IV, 101 (c) , and the discussion preceding the adoption on 30 October 1980, Yearbook HRC 1981– 1982, UN Doc. CCPR/3, 46 et seq. 24

UN Doc. HRI/GEN/1/Rev. 6, 123 (2003).

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tion)25 rather than to critically assess compliance or non-compliance by States with their Covenant obligations. While this idea had not yet been completely abandoned in 1989, though it had been given a back seat, the promotion of full implementation of the Covenant by States and drawing their attention to the relevant deficiencies in implementation were the main purposes. In 1980, this idea was only alluded to at the end of the statement. The Committee has not adopted another official declaration on the purposes of General Comments since 1989. Neither the Covenant26 nor the Committee’s current Rules of Procedure27 reveal any relevant information in this respect. However, a careful reading of the 35 General Comments together with the two statements of 1980 and 1989 as well as some indications in the Harmonized Guidelines on Reporting under the International Human Rights Treaties of 2006 (Harmonized Guidelines)28 and the Consolidated Guidelines for State Reports to the Committee itself of 200129 shed sufficient light on the Committee’s perception of the various purposes it is pursuing with its General Comments: (1) The General Comments shall serve the States parties in performing their reporting obligations.30 Responses to issues raised by the Committee in its Concluding Observations on the last report of the State concerned or in its General Com-

25 See the remarks of the members Koulishev (Bulgaria) and Graefrath (German Democratic Republic) in the debate on 30 October 1980, supra, note 16. The views of members from socialist countries could prevail on the basis of the procedural principle of consensus. 26

The travaux préparatoires do not contain any enlightening indications.

27

See supra, note 6. It is interesting to note that the first version of the Committee’s Rules of Procedures would have allowed a more specific comment on the situation in the reporting country; cf. Alston (note 3), 773. 28 HR Committee, Harmonized Guidelines on Reporting Under the International Human Rights Treaties, Report of the Inter-Committee Technical Working Group, Fifth Inter-Committee Meeting of the human rights treaty bodies, Geneva, 19–21 June 2006, UN Doc. HRI/MC/2006/3 (2006) (Harmonized Guidelines 2006). 29 Id., Consolidated Guidelines for States Reports Under the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/66/GUI/Rev. 2 (2001). 30

Statement 1989 (note 24), para. 1.

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ments should be included in the (next) report.31 General Comments themselves quite often expressly point to this function.32 (2) General Comments are also an instrument for the Committee to summarise its experience gained throughout the performance of its monitoring task, be it by examining State reports or communications.33 Thus, General Comments may assist the Committee in gaining a comprehensive picture of its own former interpretation and application of the Covenant, to put the dispersed findings in context and even to eradicate contradictions in statements of the Committee, whether in concluding observations or in Views under the Optional Protocol. General Comments may help the Committee to base its future work on a better, more systematic and carefully thought-out understanding of the rules it has to apply.34 By adopting General Comments the Committee sharpens and refines its own yardstick. (3) These two rather procedural aspects already allude to the interpretive function of General Comments. The interpretation of the human rights or of the respective State commitments aims directly at the protection, guaranteeing, and promotion of these rights. By clarifying the requirements needed for the enjoyment of the rights, General Comments seek to contribute to the fulfilment of the States parties obligation to implement the rights.35 It is true that initially the Committee was quite reluctant to openly accept a general and abstract interpretive power, rather emphasising its role as a monitoring body.36 To bridge this gap the Committee was and still is keen to base the General Comments on its own monitoring experience (State reports and communication procedures).37 However, considering the individual findings and drawing conclusions from the multifaceted material necessarily leads to statements of a certain 31 Harmonized Guidelines 2006 (note 28), para. 29; Statement 1989 (note 24); Statement 1980 (g) (note 23). 32

See, e.g., HR Committee, GC No. 27/1999, UN Doc. HRI/GEN/1/Rev. 6 (1999), 174, and id., GC No. 28/2000, UN Doc. HRI/GEN/1/Rev. 6 (2000), 179. 33

See Statement 1980 (note 23).

34

See GC No. 28 (2000) on Article 3, para. 6 (note 13).

35

Statement 1989 (note 24).

36

Ineke Boerefijn, The Reporting Procedure under the Covenant on Civil and Political Rights: Practice and Procedures of the Human Rights Committee (1999), 295; Committee Against Torture (CAT), GC No. 1/1996: Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and Communications), UN Doc. HRI/GEN/1/Rev. 6 (2008), 374. para. 9. 37

See, e.g., the many footnotes in HR Committee, GC No. 32/2007, UN Doc. CCPR/C/GC/32 (2007).

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abstract and general level. In some cases the Committee has indeed adopted General Comments on issues that do not have any, or at least not much basis in its previous monitoring experience.38 In such cases the competence question must be answered. States parties are certainly the immediate addressees of General Comments. The General Comments may be relevant for the legislative, executive, or judicial branch of government in the States, depending on the existing division of powers and responsibilities within these States according to domestic law.39 However, the interpretive deliberations of the Committee contained in the General Comments are not restricted to the circle of States parties. The Committee expressly widens its perspective to other States, particularly turning to those States that may wish to become parties to the Treaty and should therefore have a clear perception of the duties they might be willing to accept.40 Hence, the Committee reaches out to all States. The intention is “to strengthen the cooperation of all States in the universal promotion and protection of human rights”.41 Apparently, the Committee takes the view that a better knowledge of the Covenant rights as part of a general corpus of human rights might also help States that are not yet parties to the Covenant to get a better understanding of their own obligations by recognising the general human rights context. The interpretive function of General Comments is therefore not restrained to the States parties alone. It is necessary to extend this finding even further in the direction of civil society. In many respects, civil society now plays an indispensable role in the successful implementation of human rights. Paragraph 10 Harmonized Guidelines directly refers to the “relevant actors of civil society” whose constructive engagement should be facilitated by the reporting process “with the aim of advancing the enjoyment by all of the rights protected by the relevant convention.”42 This reference is valid for General Comments too. Still, the Committee has up to now avoided expressly addressing the various actors of the civil society for the understandable reason that it does not and cannot have a clear idea of the legal and political position and policy of the many

38

See id., GC No. 14/1984 (note 10); id., GC No. 24/1994 (note 11); id., GC No. 29/2001, UN Doc. HRI/GEN/1/Rev. 6 (2001), 186. 39

Simmons (note 21), 127 et seq.

40

Statement 1989 (note 24).

41

Ibid.

42

See supra, note 28.

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different national and international non-governmental organisations (NGOs), national human rights institutions, and mass media in all the States. Summing up, General Comments are directed ‘to whom it may concern’. Civil society should take note of the General Comments and use them, together with the Committee’s Concluding Observations and Views, as reference points to monitor the States’ obligations or as basis for claims for legislative, administrative, or judicial improvements. Though it is mainly civil society organisations in the States parties that are expected to take note of the General Comments, actors in all countries may likewise benefit by using the Covenant rights as interpreted by the Committee as a human rights standard worth attaining. (4) Finally, in both of the statements of 1980 and 1989 one of the purposes of General Comments is defined as “to stimulate the activities of these States [States parties] and international organizations in the promotion and protection of human rights”.43 This may be understood as attribution (even usurpation) of a standardsetting, law-creating function for the Committee that is not restricted to interpreting the existing rules but includes the capacity to develop them in a certain direction, too. In fact, General Comments themselves evidence this understanding of the Committee’s role. In the period before 1990, General Comment No. 14 (1984) on Article 6 ICCPR is a particular telling example. Here the Committee holds that “[t]he production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.”44 Later, General Comment No. 24 (1994) on reservations, which in some respects is considered by many to depart from the prevailing rules of public international law, initiated an intensive and vivid debate on the admissibility of reservations to human rights treaties and the effects of their inadmissibility. General Comment No. 29 (2001) on Article 4 ICCPR (states of emergency) widened the definition of non-derogable rights to rights not enumerated in Article 4 (2) ICCPR, by adding rights guaranteed under Article 14 ICCPR (fair trial) as far as they may be claimed for the defence of non-derogable rights as expressly defined in Art. 4 (2) ICCPR. Not all of the purposes are pursued in each General Comment. Some General Comments are evidently restricted to the mode of how States are expected to 43

See supra, notes 23 and 24.

44

Cf., however, ICJ, Nuclear Weapons (note 10), 266.

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report.45 In most cases, however, the underlying idea will be that General Comments are meant to pursue all their various purposes at the same time. The problem we wish to discuss in the following parts of this article is not whether substantive statements of the Committee are right or wrong, desirable or not. Rather we want to answer the question whether the purposes of General Comments as intended by the Committee, widely approved by literature and set out above, can be legally and practically achieved. We shall examine this issue on the basis of the legal framework for the General Comments and the methods used by the Committee for their creation. Or, putting it differently: Is the instrument of General Comments adequately designed for playing its specific role in the Committee’s work?

III. The Elements of the Successful Evolution of the General Comments A. The Issue of Competence

First we have to address the issue of competence. Without a legal basis the Committee cannot pursue its aims, at least not from a legal point of view. Like all international institutions the HR Committee is only vested with specific powers which must not be overstepped (ultra vires). The Committee is not entrusted by the Covenant with the competence to increase its competences.46 Although there are no detailed rules on General Comments, Article 40 (4) ICCPR expressly mentions the term stating that the HR Committee shall transmit the reports of the States parties “and such general comments as it may consider appropriate, to the States Parties”. As far as General Comments are based on the expertise which the Committee has drawn from the performance of its monitoring task, the competence of the Committee to adopt General Comments cannot be seriously disputed. This is also true with regard to the summarising of the Committee’s experience in an abstract manner, since every summary will inevitably include a certain degree of abstractness. 45

E.g., HR Committee, GC No. 1/1996 (note 36) and id., GC No. 2/1981, UN Doc. HRI/GEN/ 1/Rev. 6 (2003), 124, and id., GC No. 30/2002, UN Doc. CCPR/C/21/Rev. 2/Add. 12 (2002). 46

So-called ‘competence-competence’.

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The problem becomes a bit more complicated with General Comments (still based on previous experience from the Committee’s monitoring task) that develop human rights by interpreting their scope of application or limitations or restrictions. It is not really helpful in this respect to refer to Article 40 (1) ICCPR obligating the States parties to also report “on the progress made in the enjoyment” of the Covenant rights. The term “progress” may hardly be understood as envisaging an evolutionary interpretation by the monitoring body; rather it is more related to the growing degree of respect and protection of the human rights already recognised by the States. However, if human rights are, as it is widely acknowledged in human rights law, ‘living instruments’ that must develop over time so as to encompass newly evolving dangers not foreseen by the framers of the treaty,47 a monitoring body must be empowered to extend the scope of a certain right to guarantee protection against new forms of intrusion. Adopting this practice in General Comments can easily be regarded as part of the protective function of the HR Committee as provided for in Article 40 (4) ICCPR. One may question, however, whether this argument is strong enough to cover those General Comments which do not or only very sparingly use the factual experience of the Committee gathered through the examination of reports or communications, but are rather “theoretical exercises”48 in expounding the Covenant, providing novel normative guidance for the States. The adoption of this type of General Comments comes close to the performance of a law-making function, certainly to a greater degree than any interpretation of a legal rule in a concrete case-setting normally does.49 One might argue that in the beginning adopting such General Comments was in fact an ‘act of usurpation’. However, the States parties have never expressed opposition to this practice of the Committee. What they, or at least some of them, did was to deny any legally binding force to the Committee’s statements, including particularly those formulated in the General Comments. There has been no principled opposition to abstract interpretive statements contained in General Comments as such. It is fair to deduce from this behaviour of the States that they have subsequently agreed to or at 47 See, e.g., HR Committee, Roger Judge v. Canada, Views of July 2003, UN Doc. CCPR/C/78/ D/829/1998 (2003), para. 10. 48 Eric Tistounet, The Problem of Overlapping Among Different Treaty Bodies, in: Philip Alston/ James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (2000), 395. 49

Yogesh Tyagi, The UN Human Rights Committee: Practice and Procedure (2011), 301, speaks of “a new species of soft law”.

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least acquiesced in this practice of the Committee.50 Thus it does not seem that today the Committee’s competence to adopt such General Comments is open to challenge. What really is at stake is the normative status of General Comments.

B. The Legal Nature of General Comments

1. No Legally Binding Force If General Comments could be defined as legally binding statements of the Committee, their capacity for granting normative guidance to States would certainly be enhanced. However, we do not have to speculate about such a possibility. The Covenant itself does not grant the Committee such power, and nobody argues that General Comments are legally binding documents. A few States have openly said as much,51 and no State party has given the slightest indication that it would take a different approach. While there are different assessments in the literature on the precise legal character of General Comments, it is universally accepted that they do not possess legally binding force.52 The Committee itself has never taken a different view. During the examination of the initial report of the United States in 1995, the Committee’s chairman, alluding to the observations made by this State on General Comment No. 24 (1994) concerning reservations, argued that: [t]he Committee’s interpretation as set out in its general comments were not strictly binding, although it hoped that the comments carried a certain weight and authority. In the Committee’s experience, States parties often wished to give careful consideration to them for that reason.53

Not even concerning its Views under the Optional Protocol does the Committee claim that they have a legally binding character, but instead speaks of “an authorita50

Cf. Art. 31 (3)(a) Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). 51

Especially France, United Kingdom (UK), and United States of America. See also the partially rather harsh statements by the representatives of Germany, France, Japan, Canada, and Portugal during the 46th–51st meetings of the General Assembly (GA) Third Committee (21–27 November 1984), UN Docs. A/C.3/39/SR.46, 5; SR.48, 10; SR.49, 3; SR.50, 15; SR.51, 3. 52

See e.g. the last two relevant monographies: Christoph A. Spenlé, Die Staatenberichtsverfahren der UNO-Menschenrechtsverträge (2011), 132 and 217; Tyagi (note 49), 301 et seq. 53

HR Committee, UN Doc. CCPR/C/SR. 1406 (1995), 2.

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tive determination by the organ established under the Covenant itself charged with the interpretation of that instrument.54 The term ‘authoritative interpretation’ seems to be the most commonly accepted definition of the character of General Comments. Since, as we have seen, this notion cannot be equated with legally binding force we have to take a closer look at the possible meaning of this definition.

2. Authoritative Interpretation Authoritative interpretation must not be confused with authentic interpretation which may only be given by the authors or ‘masters’ of the treaty, i.e. the States parties.55 However the interpretation of the Committee may lead to “subsequent practice” in the sense of Article 31 (3)(b) Vienna Convention on the Law of Treaties (VCLT),56 if it is actually applied and this application “establishes the agreement of the parties” regarding the Treaty’s interpretation. As far as General Comments are based on the Committee’s practice (reporting and communication procedure) one would have to argue that this practice establishes the agreement of the parties concerning the correct interpretation. This is a difficult task, because Concluding Observations never contain interpretive explanations for their findings, but merely state that a certain national law or practice is not in conformity with a Covenant right or, at least, raises serious doubts as to its conformity.57 Additionally, many States are not willing to follow the recommendations, often because they object to the Committee’s inherent understanding of the relevant right. As far as Views adopted under the 54 See id., GC No. 33/2008, UN Doc. CCPR/C/GC/33 (2008), para. 13. However, it remains unclear whether the standard formulation at the end of the Committee’s Views (“Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that […] the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred […]”) is adequately reflected in this quotation. 55 See Art. 31 (3)(b) VCLT; further Rudolf Bernhardt, Interpretation in International Law, Encyclopaedia of Public International Law (EPIL) II (1995), 1416, 1423. Limits are drawn even to authentic interpreters by jus cogens. 56

See supra, note 50.

57

For a critical view of concluding observations see Alston (note 3), 769.

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Optional Protocol are concerned, we here, too, are confronted with the fact that the rate of compliance of States with the Committee’s recommendations is low. When General Comments do not reflect the Committee’s previous practice, but only express ‘abstract’ interpretations, one would have to find that these interpretations become later accepted by the States parties so as to establish their agreement with these interpretations.58 While this cannot be completely ruled out, it is fair to assume that it will rarely happen. It has been argued that with regard to human rights treaties the States parties cannot claim a monopoly over interpretation. Given the specific nature of these treaties – the guaranteed rights entitle human beings and not primarily the parties to the treaty themselves, and therefore the principle of reciprocity cannot work in the same way as for other treaties – a larger community of meaningful interpreters exists,59 comprised of all actors in the human rights field, including international and national judges, Committee members, civil society groups, and all other interested parties. Their communicative process “would generate, elaborate and refine shared understandings and expectation.”60 While the particular nature of human rights treaties is undeniable, its concrete effects on reservations, denunciation, and interpretation are far less certain. Nevertheless, at the end of the day in the field of human rights everything depends on the attitude of the States. It does not make sense to exclude, at least to a large extent, the States from the interpretation of their obligations, if they have not consented to binding judgments or other determinations handed down by bodies established by their agreement. Of course, this does not prevent all those interested in the respect and promotion of human rights from arguing in favour of strengthening human 58

Cf. Kerstin Mechlem, Treaty Bodies and the Interpretation of Human Rights, Vanderbilt Journal of Transnational Law 42 (2009), 905, 921: “The interpretations of a treaty body may hence establish and reflect the parties’ agreement regarding the interpretation of rights and obligations under a treaty and, where widely accepted, can induce and reflect ‘subsequent practice’ in the sense of Article 31 (3) (b) [VCLT].” See further Helen Keller/Leena Grover, General Comments of the Human Rights Committee and their Legitimacy, in: Helen Keller/Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), 116, 187, about the rejection of specific formulations in the draft of GC No. 33/ 2008 (supra, note 54). 59

Ian Johnstone, Treaty Interpretation: The Authority of Interpretive Communities (1990–1991), Michigan Journal of International Law 12 (1990–91), 371, 390, has developed this idea in a more general way and not just for human rights treaties only. 60

Conway Blake, Normative Instruments in International Human Rights Law: Locating the General Comments, Center for Human Rights and Global Justice Working Paper No. 17 (2008), 36.

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rights, by putting brick on brick in order to make progress by convincing the States and maybe all the other interested parties of the validity of their own views. But to leave the interpretation of legal rules to an ever-flowing process in which a not-clearly defined “community of interpreters” participates,61 affects not only the security of law, but also the role of the obligated States parties as well as that of bodies like the HR Committee which have been specifically entrusted by the parties with the duty of the interpretation and application of the Covenant. Hence any authoritative interpretation reflected in the Committee’s General Comments cannot be deduced from a vague community of interpreters, but must follow, if at all, from the authority of the Committee itself. The Committee is established as a body composed of 18 nationals of the States parties “who shall be persons of high moral character and recognized competence in the field of human rights”. Legal experience is not a mandatory requirement, though the usefulness of the participation of some persons having this experience is acknowledged (Article 28 (2) ICCPR). Since its inception members of the Committee have mostly been persons with a legal education. This has helped to coin the style and content of the Committee’s work. The States parties may nominate a national for membership, but the members are finally elected by the Assembly of States parties for a four years term with the possibility of (unrestricted) re-election. Although the nomination of the candidates by the States governments as well as the elections have a political aspect,62 the Committee members serve in their personal capacity, not as representatives of their States. They must perform their duties “impartially and conscientiously”.63 The Committee’s internal “Guidelines for members” underline the independence of the members as being “essential”.64 Concerning the relationship of members with their governments the Guidelines state:

61 See Peter Häberle, Die offene Gesellschaft der Verfassungsinterpreten, Juristenzeitung 30 (1975), 297 et seq. 62

See the report of the UN High Commissioner for Human Rights (UNHCHR) Navanethem Pillay, Strengthening the United Nations human rights treaty body system (June 2012), 74 et seq., available at: file:///C:/Users/GYIL_1/Downloads/HCReportTBStrengthening.pdf (accessed on 20 March 2016), containing proposals for the nomination process for (future) Committee members by the States parties. 63 64

Art. 38 ICCPR.

HR Committee, Guidelines for the exercise of their functions by Members, CCPR/C/61/GUI, adopted in the October/November session 1997.

208 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 The appearance of impartiality of members of the Committee should not be affected by their connection with governments. They should abstain from engaging in any functions or activities which may appear to be not readily reconcilable with the obligations of an independent expert under the Covenant. Members should abstain from participation in any political body of the United Nations or of any other inter-governmental organisation concerned with human rights. They should also abstain from acting as experts, consultants or counsels for any government in a matter that might come up for consideration before the Committee.65

Members consequently do not participate in the consideration of reports or communications concerning their own States.66 The Committee – and the Committee alone – is entrusted with the consideration of the reports of the States parties and the communications submitted by individuals, necessarily implying a law interpreting and applying function, and likewise with the adoption of General Comments which do not apply the Covenant provisions but focus entirely on their interpretation and related questions.67 It is this legal trust in the Committee as directly reflected in its competencies together with the high degree of independence of the Committee members and their particular experience gained from their intensive involvement with the interpretation of the Covenant rights68 that establish the specific “practical authority” of the Committee69 that distinguishes its emanations from statements of other bodies or persons. The General Comments are not just interpretations that may also be found in books or learned articles written by more or less well-known academics or human rights activists. It is indicative that 65

Ibid., para. 9. See also the Guidelines on the independence and impartiality of members of the human rights treaty bodies (Addis Ababa guidelines), UN General Assembly, 67th session, Implementation of human rights instruments: Note by the Secretary-General, UN Doc. A/67/222 (2012) and Corr. 1, Annex I (2003). 66

For the relationship with NGOs see Guidelines (note 64), paras. 7, 8.

67

Viljam Engström, Understanding Powers of International Organizations: A Study of the Doctrines of Attributed Powers, Implied Powers and Constitutionalism – with a Special Focus on the Human Rights Committee (2009), 227, opines that it is the task of the human rights bodies (in concreto the Inter-American Court of Human Rights) to find the ‘common good’ laid down by the treaties through their interpretation. 68

According to the observations of the UK government on GC No. 24/1994 (supra, note 11), para. 1, GCs while not being legally binding “nevertheless command great respect, given the eminence of the Committee and the status of the International Covenant on Civil and Political Rights”, Report of the HR Committee, UN Doc. A/50/40 (1995), 130, Annex VI, B. GC No. 33/2008, para. 13 (supra, note 54), speaking of the “authoritative determination” made by the Committee’s Views points to the “integral role of the Committee under both the Covenant and the Optional Protocol”. 69

Boerefijn (note 36), 294.

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it is only with regard to the Committee’s General Comments that States parties thought it appropriate, perhaps even essential, to state their disagreement or even strong rejection.70 Thus General Comments gain from the authority of the HR Committee. In this sense they can be rightly addressed as interpretations of the Covenant provisions carrying an authority that may not be neglected in any search for the correct understanding of the subject covered by a General Comment.71 Not being themselves a direct source of law, General Comments are factors that must be taken into account for any serious interpretive work involving the Covenant.72 Despite or rather because of their abstractness General Comments have a significant potential to influence the understanding and development of human rights in a far-reaching and sustainable manner. While General Comments start as soft law they may consolidate and evolve into hard law, if they are affirmatively quoted and applied by other international bodies, particularly courts.73 In this context the International Court of Justice, in its 2010 Diallo judgment, has held: Although the Court is in no way obliged, in the exercise of its judicial function, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body specifically established to supervise the application of that treaty. The point here is to achieve the neces70

Christian Tomuschat, in a personal exchange of views, has held that countries not agreeing with GCs were well advised to enter reservations, because otherwise the phenomenon of acquiescence might arise, Jerusalem Workshop December 2009 (not published). 71

Bruno Simma/Markus Zöckler, Social Protection by International Law: Law-Making by Universal Organizations (Especially the United Nations), in: Bernd Baron von Maydell/Angelika Nußberger (eds.), Social Protection by Way of International Law (1996), 69, 83: “[…] could no longer be regarded as state of art.” According to Christian Tomuschat, Les Observations générales, in: Emmanuel Decaux (ed.), Le Pacte International Relatif au Droits civils et politiques, Commentaire article par article (2011), 11, 16, GCs are “une source de renseignement de premier ordre pour une bonne compréhension de tous les effets juridiques produits par ces dispositions”. Tyagi (note 49), 306, finds: “the general comments are a reliable source of rich experience; they command authenticity and respect; they help in finding appropriate interpretation of human rights provisions […]”. 72 Eckart Klein, Impact of Treaty Bodies on the International Legal Order, in: Rüdiger Wolfrum/ Volker Röben (eds.), Developments of International Law in Treaty Making (2005), 571, 579. 73

See, e.g., European Court of Human Rights (ECtHR) (Grand Chamber), Hirst v. United Kingdom, Judgment of 6 October 2005, RJD 2005-IX, 187, para. 27 relating to GC No. 25/1996 (UN Doc. HRI/GEN/1/Rev.6 (2003), 168) in the section “Relevant international materials”. Cf. also International Law Association, Reports of the 70th Conference New Delhi (2002), 507, 534 et seq. and id., Reports of the 71st Conference Berlin (2004), 621, 650 et seq. on “International Human Rights Law and Practice” containing numerous references of national and international courts to GCs.

210 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 sary clarity and essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.74

General Comments as expressions of an authoritative interpretation of the Covenant articles concerned do not prevent the Committee from adopting another interpretation later on. However, this should be done with considerable restraint, since any departure in concrete cases from the abstract and general interpretations of the General Comments might negatively affect legal security. It is for this reason that it would be preferable for the Committee to generally avoid taking up matters in a General Comment “when the jurisprudence of the area is not highly developed.”75

C. Selection of Topics

The topics to be dealt with in General Comments are not usually selected in advance by the Committee. Until recently, there was no prepared list of articles or issues which the Committee tried to dispose of one after the other. Now, according to recent practice, the Committee’s Bureau seems to approach the selection of topics more systematically.76 The order of selection of topics does not attempt to establish any hierarchy of the Covenant rights.77 The Committee itself has clarified that the General Comments “do not purport to be limitative or to attribute any priority between different aspects of the implementation of the Covenant.”78

74 ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of 30 November 2010, ICJ Reports 2010, 639, para. 66 referring to GC No. 15/1986 (supra, note 9); further id., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, Separate Opinion of Judge Higgins, ICJ Reports 2004, 207, 213, paras. 26, 27. 75

Report of informal meeting of the members of the HR Committee, 27–28 July 1996, quoted from Elizabeth Evatt, The Human Rights Committee’s General Comment on Article 25, in: Nisuke Ando (ed.), Towards Implementing Universal Human Rights, Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee (2004), 181, 201. 76

Cf. Keller/Grover (note 58), 170.

77

For the issue of a possible hierarchy of the rights see HR Committee, GC No. 24/1994 (note 11), para. 10, and Eckart Klein, Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy?, Israel Law Review 4 (2008), 477 et seq. 78

Statement 1989 (note 24), para. 1.

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There are two main reasons to select a topic for treatment in a General Comment. The first is an assessment that a given matter needs clarification. Understandably, when the Committee commenced its work in 1977, there was much uncertainty about the exact procedure of reporting under Article 40 ICCPR. General Comments No. 1 (1981) and No. 2 (1981) responded to these needs as did General Comment No. 30 (2002) after the Committee had instituted new measures of reacting to the failure of States parties to submit their reports. General Comment No. 24 (Reservations) and No. 26 (Continuity of obligations) also reveal this responsive character. General Comment No. 24 (1994) responded to the serious issue of States ratifying the Covenant with a long list of reservations that highly restricted their obligations (and, by the same token, the Committee’s monitoring competence). General Comment No. 26 (1999) reacted to the attempted denunciation of the Covenant by North Korea. On the other hand, General Comment No. 29 (2001) on derogations during a state of emergency was not a response to measures taken by States following the terrorist attacks on 11 September 2001, but had actually been discussed since 2000 and adopted during the July session 2001, i.e. six weeks before those attacks. Of course, it immediately obtained great importance in the worldwide debate on the limits that States parties must respect in their fight against terrorism. The derogation issue, which had already been dealt with in 1981 (General Comment No. 5),79 was selected as a subject for a new General Comment (No. 29), on the initiative of a member who was willing to draft a first version. In fact, most of the General Comments owe their existence to the special interest in a certain question or provision of a particular member, who explains the project to the Committee which remains, of course, free to approve or reject the idea. Usually the same member will be asked to serve as special Rapporteur. If, and this will happen very rarely, another member is also interested in this role, the Committee will have to take the decision by (if necessary: secret) vote.80 Also two Rapporteurs may be appointed as in the case of the proposed General Comment on Article 6 ICCPR (right to life) which is currently under discussion.

79

HR Committee, GC No. 5/1981, UN Doc. HRI/GEN/1/Rev.6 (2003), 127.

80

See Keller/Grover (note 58), 171.

212 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 D. References Used in General Comments

1. Previous Experience The “normative guidance” that the Committee intends to convey to the addressees of its General Comments is usually based on the previous experience the Committee has gained in the exercise of its monitoring functions.81 However, this experience is not always directly reflected in the General Comments. Rather the institutional knowledge of the Committee as a whole and the expertise of its members provide the basis upon which General Comments are discussed and finally adopted. General Comment No. 23 (1994) on Article 27 ICCPR (persons belonging to minorities) was the first General Comment of the Human Rights Committee that used (five) footnotes referring to relevant Views or decisions previously adopted in individual communications.82 The changes in the approach of the Committee may be seen in General Comment No. 35 (2014) on Article 9 ICCPR (Liberty and security of persons) whose 194 footnotes extensively cite Views on communications.83

a) Concluding Observations There are good reasons for the somewhat cautious use of direct references to the Committee’s previous work. When it comes to Concluding Observations, one has to keep in mind that they usually present conclusions from the debate with the representatives of the States parties (mentioning concerns and giving recommendations) without providing reasoning for these conclusions. Reasoning is not completely lacking, though, and may be found in the summary records of the meetings in which the exchange with representatives of the States parties takes place. The quality of this exchange varies from State party to State party, and it sometimes happens that the Committee does not fully grasp the issues on which it expresses criticism. Practice

81 HR Committee, GC No. 28/2000 (note 13), para. 1: “[…] in the light of the experience it has gathered in its activities over the last 20 years”. 82

Id., GC No. 23/1994, UN Doc. HRI/GEN/1/Rev.6 (2003), 158.

83

GC No. 32/2007 (note 37), is coming rather close with 128 footnotes.

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shows that General Comments do not refer to Concluding Observations that often.84 This does not mean that the reporting procedure does not play a role in the drafting of General Comments. On the contrary, it presents a vast field of legal issues that deserve to be taken up and discussed more deeply than is possible during the reporting procedure itself. Thus the reporting procedure is a fine ‘quarry of ideas’ for the drafters of General Comments.

b) Views and Decisions Views (and decisions) on communications are nowadays more commonly referred to in the footnotes of General Comments dealing with a certain article of the Covenant.85 If General Comments deal with more general questions such as reservations (General Comment No. 24/1994), the general obligations under the Covenant (General Comment No. 31/2004), or under the Optional Protocol (General Comment No. 33/2008), the individual communication procedure will probably not provide much helpful material.86 The advantage of views and decisions as reference material rests on the intensive discussion of concrete cases which oblige the Committee to give reasons for its findings and thereby lead to a clearer perception of how the Covenant should be interpreted and applied. The legal issues have to be developed and decided against the background of concrete facts presented by the parties to the case.87 However, as in other aspects of the Committee’s work, the quality of reasoning in the decisionmaking process concerning communications is not consistent. Still, a few questions remain. Reference to Views in communications must take into account that General Comments are intended to give normative guidance to all States parties, although not all of them have ratified the Optional Protocol. This fact, how84

See, e.g., HR Committee, GC No. 32/2007 (note 37), footnotes 52 and 69. A clear exception up to now is id., GC No. 29/2001 (note 38), and id., GC No. 34/2011 (note 14). 85

Most of the 194 footnotes to id., GC No. 35/2014 (note 15) contain references to such Views.

86

Again, as an exception, one may mention the HR Committee’s Views of 2 November 1999 in the case Rawle Kennedy v. Trinidad and Tobago, UN Doc. CCPR/C/67/D/845/1999 (1999), for a future review of the reservation issue. 87

In this context it may be noted that the Committee has made progress in the handling of communications by bringing the procedure closer to a quasi-judicial procedure.

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ever, does not devalue views as reference material. The Optional Protocol intends “to achieve the purposes of the Covenant”.88 Independent of the fact that the Committee’s Views are directed against a certain State89 and are not legally binding even on this State and, of course, still less on other States, they interpret the Covenant rights and therefore add, even if adopted in an individual case, to the general understanding of the specific norm. Thus the procedure has an important standard-setting function. A second question relates to those Views which were not unanimously adopted by the Committee. While the Committee always tries to find consensus, sometimes a minority will not feel able to accept the majority’s view. According to the Rules of Procedure, these members may append their individual opinions to the Views or decisions of the Committee.90 Individual opinions are rather common instruments in adjudication procedures on the international plane. Their purpose is to show that in the eyes of one or more members of the decision-making body other reasons (concurring) should have been given or even different results (dissenting) should have been attained in the case at hand. Individual opinions do not necessarily weaken the majority opinion, especially if they add supplementary reasons for the decision. On the other hand, they may actually expose weaknesses in the majority’s finding, thereby detracting from its persuasiveness, and even opening avenues for another interpretation in the future. In its General Comments when referring to Views or decisions the Committee does not expressly mention concurring or dissenting votes although in at least one case it felt appropriate to phrase the General Comment so as to take into account both the Views of the majority and the minority; this related to a case where the Committee was split almost down the middle.91 To be sure, it is the majority which has the final say in the concrete case. On the other hand, General Comments

88

Preamble OP (supra, note 5).

89

Art. 5 (4) OP.

90

Rule 104 Rules of Procedure of the HR Committee.

91

See GC No. 27/1999 on Freedom of Movement (note 32), para. 20. By interpreting Art. 12 (4) ICCPR dealing with the right of a person not to be arbitrarily deprived of the right to enter his own country, the Committee attempted to find a text consistent with both the majority and minority Views of 1 November 1996 in the case Stewart v. Canada, UN Doc. CCPR/C/58/D/538/1993 (1996). It is interesting to note that in two recent Views the majority as well as the minority invoke GC No. 27/ 1999 as basis of their opinion; Views of 18 July 2011 in the case Nystrom v. Australia, UN Doc. CCPR/ C/102/D/1557/2007 (2011), and Views of 21 July 2011 in the case Warsame v. Canada, CCPR/C/ 102/D/1959/2010 (2010).

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pursue general purposes. It would serve the transparency of the interpretive process,92 if the Committee would mention in the footnotes to its General Comments that individual opinions had been appended to the cited views or decisions. c) General Comments Quite often, the Committee also refers to previous General Comments. This is useful as it may elucidate the interaction of Covenant rights (in the interpretation of the Committee). For example, General Comment No. 27 (1999) on Article 12 ICCPR (freedom of movement) refers to General Comment No. 15 (1986) on the position of aliens under the Covenant,93 which itself had already pointed to the special link consisting between Articles 12 and 13 ICCPR (para. 8). General Comment No. 27 (1999) further draws attention to General Comments No. 23 (1994) on Article 27 ICCPR (para. 7) in order to illustrate the possible admissibility of limitations on the freedom to settle in areas inhabited by indigenous or minority communities.94 General Comment No. 32 (2008) on Article 14 ICCPR refers to General Comments No. 24 (1994) and No. 29 (2001) when discussing the (in-)admissibility of declarations, reservations, and derogations regarding the provision or some of its aspects.95 Particularly interesting in this context is the extensive reference in General Comment No. 34 (2011) to General Comment No. 27 (1999), thereby underlining the importance of the principle of proportionality for the application of restrictions of the rights.96 d) Rules of Procedure In some, albeit rare cases, the Committee also refers to its own Rules of Procedure, adopted on the basis of Article 39 (2) ICCPR. This is useful only where procedural 92

For the issue of transparency see Keller/Grover (note 58), 183.

93

HR Committee, GC No. 27/1999 (note 32), para. 1.

94

Ibid., para. 16, footnote 8.

95

Id., GC No. 32/2007 (note 37), notes 1, 2, and 5. Further id., GC No. 31/2004 (note 17), id., GC No. 29/2001 (note 38), para. 11, and id., GC No. 20/1992, UN Doc. HRI/GEN/1/Rev.1 (1994), 30, para. 18. 96

Id., GC No. 27/1999 (note 32), para. 14; id., GC No. 34/2011 (note 14), para. 34. See also Yutaka Arai-Takahashi, Proportionality, in: Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (2013), 446, 460–61.

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issues are dealt with in General Comments.97 The General Comments do not attempt to interpret these rules; they are merely mentioned in order to give a full picture of the question at hand.

2. Reference to Outside Information and Materials If General Comments are designed to give authoritative guidance for the correct understanding of the rights protected under the Covenant, they have to be as convincing as possible. In composing the General Comments, the Committee would be well advised to take into account relevant opinions found in international or national jurisprudence, emanations of international or national agencies and bodies or NGOs, international judicial bodies or courts, and statements in literature in order to get a full picture of the issue under discussion. In our view these efforts are not connected with the idea of so-called democratisation of decision-making on the international level;98 rather they reflect the demands of any serious attempt to find persuasive legal interpretations. Article 28 International Convention for the Protection of All Persons from Enforced Disappearances elucidates this perception in a way that is valid for all other human rights bodies, too.99 The Article provides for cooperation with all relevant organs, offices, and specialised agencies of the United Nations, the relevant regional intergovernmental organisations or bodies etc., thus embedding the Committee in the broader context of human rights protection. An analogous provision would also fit the Human Rights Committee very well. Actually, the Committee has made use of this opportunity. Thus, e.g., the Committee referred to UN resolutions100 and standards applicable to the treatment of prisoners.101 Various references to other human rights treaties,102 closely connected 97

E.g., HR Committee, GC No. 2/1981 (note 45), and id., GC No. 33/2008 (note 54).

98

For further discussion see Keller/Grover (note 58), 177 et seq.

99

International Convention for the Protection of All Persons from Enforced Disappearances, 20 December 2006, UNTS 2716, 3. 100 E.g., HR Committee, GC No. 12/1984, UN Doc. HRI/GEN/1/Rev.1 (1994), 12, 13 Comment on Article 1, para. 7, refers to the Friendly Relations Declaration, UN Doc. A/RES/2625 (XXV). 101

Id., GC No. 21/1992, UN Doc. HRI/GEN/1/Rev.1 (1994), 33, para. 5.

102

Id., GC No. 18/1989 (note 9), para. 6; id., GC No. 32/2007 (note 37), para. 6, footnote 4.

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with Covenant rights,103 and to the work of other human rights bodies can also be found.104 Of course it would be highly detrimental if contradictions between the emanations of the different treaty bodies were to emerge. The authority of General Comments would seriously suffer if States were to be confronted with contradicting (legal) expectations. A situation like this cannot be absolutely ruled out, since the various human rights treaties partly contain the same guarantees, overlapping each other, and, at the same time, establish different monitoring bodies whose responsibility covers only their own treaty. If the treaty bodies do not harmonise their work, they might put the States into very difficult situations, forcing them to make their own choice between opposing expectations. The Committee has up to now refrained from quoting from learned books and articles. This does not mean that these sources are not taken into account at all. The Special Rapporteur in particular, for the preparation of his or her draft, will check the relevant legal literature which may become an important source for ideas to be worked out and included in the General Comments. The same holds true for information the Committee receives from NGOs. NGOs are not democratic representatives of the population of a country, but their members are often not only very engaged and interested, but also knowledgeable and experienced people in the field of human rights. Listening to their opinions regarding the interpretation of rights can be quite enlightening, although probably less so if general international law questions such as reservations or succession in respect of treaties are on the agenda. The outreach to NGOs was formerly left completely to the discretion of the Special Rapporteur. Beginning with General Comment No. 32 (2007), the Committee now places an invitation on the Office of the High Commissioner for Human Rights (OHCHR) website for observations on the draft after its first reading from States, NGOs, UN entities, and individuals. It seems that on this basis quite a fruitful discussion on the draft and the submitted observations has taken place.105 General Comment No. 33 (2008) even underwent far-reaching modifications on the 103

It might be interesting to note that HR Committee, GC No. 28/2000 (note 13) on Article 3 ICCPR does not refer to the Convention on the Elimination of All Forms of Against Women, 18 December 1979, UNTS 1249, 13 (CEDAW). 104 HR Committee, GC No. 32/2007 (note 37), para. 25, footnote 47; id., GC No. 35/2014 (note 15), para. 58, footnote 164. 105

Keller/Grover (note 58), 186. The report of the UNHCHR Pillay (note 62), 82 also points in this direction.

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basis of critical remarks conveyed by States parties.106 In October 2012, in the context of the preparation of a new General Comment (No. 35) on Article 9 ICCPR, for the first time an open three hours debate took place in which apart from Finland, eight NGOs, the International Committee of the Red Cross, and two other organisations participated.107 After the first reading of the draft in March 2014, all interested parties were invited to comment on it. Many submissions were received, from NGOs, national human rights institutes, individuals, an UN Special Rapporteur, and national governments.108 However, obviously, the HR Committee itself always retains the decision on the final version of a General Comment. One might contemplate the standardisation of this process by amending the Committee’s Rules of Procedure,109 which might also include the publication of all relevant material received by the Committee.110 We support the proposal for such an amendment, which, however, should be restricted to the rule that after the first reading by the Committee the draft should be published on the website of the OHCHR with an invitation for comments and observations. Everything else should be decided according to the discretion of the Special Rapporteur (before the first reading) or the Committee (after the first reading).111 This discretion is particularly important for the question whether there should be a discussion on the proposals with the participation of those who have submitted them to the Committee. We are generally reluctant to encourage such discussions, as they might lead to interpretation of the rights inconsistent with the Committee’s previous practice. Though General Comments may, in 106 See Geir Ulfstein, The Legal Status of Views Adopted by the Human Rights Committee – From Genesis to Adoption of General Comment No. 33, in: Asbjørn Eide/Jakob T. Möller/Ineta Ziemele (eds.), Making Peoples Heard, Essays on Human Rights in Honour of Gudmundur Alfredsson (2011), 159–166. 107

HR Committee, General Discussion on the preparation for a General Comment on Article 9 (Liberty and Security of Person) of the International Covenant on Civil and Political Rights, Palais des Nations, Room XII – 25 October 2012, available at: http://www.ohchr.org/EN/HRBodies/CCPR/ Pages/GConArticle9.aspx (accessed on 21 January 2016). 108

The UN GA Resolution of 21 April 2014 expressly endorses this new approach, GA Res. 68/268 of 21 April 2014, para. 14, available at: http://www.ohchr.org/Documents/HRBodies/TB/HRTD/ARES-68-268_E.pdf . (accessed on 21 January 2016). 109

Tyagi (note 49), 295 is pleading for the elaboration of guidelines for the formulation of GCs.

110

Keller/Grover (note 58), 188 et seq.

111

Members are now, more than in the past, ready for a broad discussion of the drafts also outside the Committee; see, e.g., HR Committee, Summary Records of the 2727th meeting (20 July 2010), UN Doc. CCPR/C/SR.2727, 2.

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principle, also reflect new evolutionary trends, the Committee should refrain from expressing ideas that have not yet been carefully considered against the background of concrete situations or cases.

E. Format and Procedure

1. Comprehensiveness, Precision, Readability As far as General Comments are expected to reflect the Committee’s practice, their comprehensiveness fully depends on the experience which the Committee has gained so far. General Comments on specific rights usually limit their statements to this experience. For example, when the Committee discussed General Comment No. 27 (1999) on Article 12 ICCPR (freedom of movement), it confined itself with regard to paragraph 4 of this Article to repeat what it had already found in a previous case against Canada.112 The Committee did not deepen the issue of the definition of a person’s “own country”, acknowledging the fact that its Views on the relevant communication were disputed among the members, and thus did not go beyond the reproduction of the concrete case. General Comment No. 27 (1999) therefore, does not represent a comprehensive commentary on all the problems that may arise in the context of Article 12 ICCPR.113 Although General Comment No. 32 (2007) on Article 14 ICCPR is much more extensive, it still rests nearly completely on the results of the Committee’s own work. Since the alleged violation of Article 14 ICCPR plays a major role in many individual communications, the Committee has had sufficient opportunity to address many legal issues involved in the interpretation and application of this provision, and could therefore draw from its rich experience, enabling it to draft a rather comprehensive comment. On the other hand, when General Comments tackle more general questions as, e.g., the admissibility of reservations (GC No. 24 (1994)), derogation in times of emergency (GC No. 29 (2001)), the nature of obligations under the Covenant (GC 112 113

Id., Stewart v. Canada (note 91), paras. 12.4 et seq.

See id., Nystrom v. Australia and Warsame v. Canada (note 91), where both the majority and the minority heavily rely on this GC.

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No. 31 (2004)), and the Optional Protocol (GC No. 33 (2008)), the Committee’s attempt to be as complete as possible is apparent, notwithstanding the lack of formerly gained practical experience. In drafting a General Comment, the Committee should try to be as precise as possible. Precision generally “reduces the scope for plausible deniability of violation” and positively influences compliance.114 Treaty provisions are naturally more precise than norms of customary law or general principles of law, but General Comments may still enhance the precision of treaty rules. However, one should not forget that even a norm precisely interpreted in a General Comment, will still have to stand the test of application in an individual case. Precision may suffer from contradictions between statements of the Committee itself or with emanations of other committees. Though each committee is responsible for its own human rights instrument, there is certainly a high degree of substantial and procedural overlap regarding the protected rights that may produce different assessments.115 As far as can be seen, up to the present, evident contradictions have not yet emerged.116 It should be the task of the Rapporteur who prepares the draft General Comment to make sure that there are no inconsistencies. At least he or she should draw the attention of the Committee to any potential inconsistency, granting the Committee the opportunity to clarify the issue, if necessary in direct contact with the other committee.117 Such an individual reaction would at any rate be preferable to the establishment of a general body through which all General Comments would have to pass before adoption in order to confirm the consistency among all General Comments or General Recommendations, as they are sometimes called, of all UN treaty bodies. Recently the idea of Joint General Comments has found some support in Inter-Committee meetings and by members of the Human Rights Committee, 114

Simmons (note 21), 121.

115

See Heike Stender, Überschneidungen im internationalen Menschenrechtsschutz (2004), 115 et seq.; Spenlé (note 52), 294; Tistounet (note 48), 383 et seq. 116

On the contrary, it is interesting to note that HR Committee, GC No. 5/1981 (note 79), paras. 5, 8, and 12, of the Committee on the Rights of the Child (CRC) quite often refers to GCs of the HR Committee stating that they “should be seen as complementary” to its own GCs. See also particularly Art. 28 (2) Convention for the Protection of All Persons from Enforced Disappearance. 117

Concerning co-ordination among the monitoring bodies see Nisuke Ando, General Comments/ Recommendations, Max Planck Encyclopedia of Public International Law (MPEPIL), November 2008, para. 43, available via: www.mpepil.com (accessed on 14 July 2015).

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too.118 In our mind, however, this idea should not be pursued. It implies serious organisational difficulties which would at least considerably delay the adoption of General Comments. Joint General Comments could well engage more than two committees, if the issue at hand were of interest for several committees.119 It seems to be more appropriate to put the task of harmonisation into the hands of the Rapporteurs. As the Committee will naturally wish that note be taken of its General Comments, it should ensure their readability. Readability has something to do with precision that has just been discussed. General Comments should also be readable in terms of length. If General Comments are to be taken into account by the national ministries in their drafting reports under Article 40 ICCPR or by other national institutions like courts, one should not overestimate the willingness of such bodies to read through long and, at least sometimes, somewhat complicated papers. The Committee should not usurp the job of an academic writer. In this aspect, General Comment No. 32 (2007) on Article 14 ICCPR, which runs to 18 pages, and General Comment No. 35 (2014) on Article 9 ICCPR running to 20 pages with 194 footnotes are problematical. We do not share the view recently expressed by a Committee member according to which “(t)he Committee’s most recent general comments were very exhaustive and that made them all the more binding.”120 Rather, General Comments should be both as short as possible and as long as necessary.121 Of course, to be readable, General Comments should comprise a clear and comprehensible order of ideas, not including inconsistencies, be well-organised, and subdivided by headlines. As the Committee usually follows the order of paragraphs of the article under consideration, discussing one paragraph after the other, this condition will generally be fulfilled. It is more difficult where abstract issues are tackled. But one has to acknowledge that even the most disputed General Comment No. 24 (1994) on reservations shows a clear order and line of reasoning. 118 See HR Committee, Summary Record of the 2714th meeting (12 July 2010), UN Doc. CCPR/ C/SR.2714, 2 et seq. 119

Cf. Joint General Recommendation No. 31 of the Committee for the Elimination of all Forms of Discrimination against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, UN Doc. CEDAW/C/G C/31 – CRC/C/GC/18 (2014). 120 121

Michael O’Flaherty on 27 October 2009, UN Doc. CCPR/C/SR. 2678, 4.

GA Res. 68/268 (note 108), para. 15 decided “to establish a limit to 10,700 words for each document produced by the human rights treaty bodies.” HR Committee, GC No. 35/2014 (note 15) runs to about 11,000 words.

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2. Interpretive Methods The interpretation of the Covenant as an international treaty follows the rules for interpretation under the Vienna Convention on the Law of Treaties (VCLT) of 1969 which reflect customary international law.122 We cannot find any indication that the Committee has denied the applicability of the relevant provisions (Articles 31–33 VCLT). While the Committee, in General Comment No. 24 (1994) on the issue of reservations, openly doubted the suitability of the rules of the VCLT on the meaning of State objections in relation to reservations with regard to the Covenant,123 there is certainly no need to argue that the special nature of human rights treaties would also impede the application of the Convention’s articles on interpretation. The Vienna Convention’s highly abstract formulation of the interpretive principles allows sufficient leeway to enable them to do justice to the general understanding of human rights treaties as ‘living instruments’ that evolve over time in order to be able to grant effective protection against new challenges and threats.124 More than other treaty provisions, human rights guarantees, at least partly, evolve with the societal state of awareness. Although Article 31 VCLT presents the criteria for interpretation, it does not place them in hierarchical order. According to the different types of treaties, the focus may be laid on a more literal, narrow interpretation, but also on a more contextual, systematic, or purpose-oriented interpretation. Remaining within the limits of generally recognised rules of interpretation certainly strengthens the persuasiveness of the interpretive results of the Committee.125 Notwithstanding the broadly drawn limits, the Committee must take into account that it is acting on the global level, where many different views exist side by side. No doubt, the Committee has to guarantee the rights that must be respected by all States parties in the context of all the cultures involved. The Committee would fail if its interpretation (and corresponding application) were to be completely unacceptable 122

ICJ, Case concerning the dispute regarding navigational and related rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, ICJ Reports 2009, para. 47. 123

HR Committee, GC No. 24/1994 (note 11), 17.

124

As an example for the ICCPR see HR Committee, Judge v. Canada (note 47), para. 10.3; for the European Convention on Human Rights see ECtHR, Tyrer v. United Kingdom, Judgment of 25 April 1978, Ser. A, No. 23, para. 31. 125

See Malgosia Fitzmaurice, Interpretation of Human Rights Treaties, in: Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (2013), 739, 769.

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for some States parties or their societies, particularly in the fields of public morals and family life. Protection of human rights requires courage and commitment to universal values. However, at the same time it demands patience and modesty.126 Generally, human rights will be better protected by a step by step approach. The Committee should beware of an all-or-nothing maxim in its protective endeavours.127

3. Procedural Issues The General Comments, after two public readings,128 are adopted by the Committee in public session by consensus.129 Consensus does not necessarily mean unanimity, since a formal vote is not taken, but instead means “the absence of formal objection”.130 However, the Committee will always try to remove a serious difficulty that a member might have with certain statements or formulations.131 The discussion is quite often rather challenging, especially for the Special Rapporteur who has to find solutions between divergent opinions which may even suddenly change during the debates. Sometimes the solution will consist in dropping the disputed issue entirely or in restricting the statement to a minimum. Usually it will take several years from the selection of the topic up to the adoption of the General Comment. Of course, if the 126 Eckart Klein, The Universal Protection of Human Rights – Reality or Utopia?, Law and State 59/60 (1999), 11, 26; cf. also the advice of Bruno Simma, Commissions and Treaty Bodies of the UN System, in: Rüdiger Wolfrum/Volker Röben (eds.), Developments of International Law in Treaty Making (2005), 581, 583. 127

See the dissent of members Ando, Bhagwati, Klein, and Kretzmer in HR Committee, Rawle Kennedy v. Canada, Admissibility, UN Doc. CCPR/C/67/D/845/1999, para. 6; Philip Alston, Beyond ‘Them’ and ‘Us’: Putting Treaty Body Reform into Perspective, in: Philip Alston/James Crawford (eds.), The Future of UN Human Rights Treaty Monitoring (2000), 501, 523. 128

Tyagi (note 49), 294 wrongly points out that GCs are formulated in closed meetings.

129

Exceptionally, the CEDAW General Recommendation No. 28 (2010) was adopted by vote, UN Doc. CEDAW/C/GC/28; see also Nowak (note 2), 749. 130

Eric Suy, Consensus, in Rudolf Bernhardt (ed.), Encyclopaedia of Public International Law (EPIL), Vol. I (1992), 759. 131

Thomas Buergenthal, The U.N. Human Rights Committee, in: Max Planck Yearbook of United Nations Law 5 (2001), 341, 388 suggests that the HR Committee should develop a procedure allowing members to attach individual opinions to GCs. We do not favour this idea. At the adoption of GC No. 32/2007 on Art. 14 ICCPR, one member actually dissented on a specific question (military courts), but the Committee rightly neither refrained from the adoption nor agreed to join a dissenting opinion to the Comment, Press Release of 24 July 2007, Doc. CTO7010E, available via: www.unog.ch (accessed on 31 March 2016).

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Committee wishes to react to a specific event, a much more rapid result can be achieved. General Comment No. 26 (1997), reacting to the denunciation of the Covenant by North Korea, was adopted during just one session, immediately after the problem had emerged. The General Comments, as all other emanations of the Committee, are drafted in one of the working languages of the Committee, but have to be translated into the other working languages.132 Each translation presents specific problems, and rather often members complain of its quality. As of today, General Comments are only adopted if the draft is available and accepted in all the working languages used by the Committee. The General Comments are published in the Annual Reports of the Committee,133 directed to the UN General Assembly, and on the website of the UN High Commissioner for Human Rights. As UN documents they will be translated in all official languages of the Organisation.134 However, it is essential for the achievement of their purposes that the General Comments are available in the languages of all States. States parties should therefore be requested, not only in a general way, but by each single General Comment, to publicise the Comment in the State’s official as well as (recognised) minority languages to enable everybody to take cognisance of the Committee’s interpretation of the rights. For this reason a clause calling for publication and wide dissemination should be added to General Comments as has been done with the Committee’s Concluding Observations.135 It has been proposed that the UN General Assembly’s Third (Legal) Committee might not just “take note” of the adopted General Comments as part of the information conveyed by the Annual Report, but express itself more clearly underlining the importance of adopting the General Comments.136 We are not in favour of this proposal, since it would necessarily start a discussion on the content of the General Com-

132

See Rule 28 Rules of Procedure of the HR Committee.

133

Article 45 ICCPR.

134

Article 111 Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

135

E.g., HR Committee, Concluding Observations on Germany, UN Doc. CCPR/C/DEU/CO/ 6/1 (2012), para. 19. 136

References in Keller/Grover (note 58), 149. But it must be noted that serious doubts were raised against GC No. 14/1984 (supra, note 10) in the GA Third Committee.

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ments that can hardly be seriously conducted during the routine meetings of the Third Committee. The General Assembly on the report of its Third Committee has already refused to take note of certain General Comments of the HR Committee (GC No. 33 (2008) on the obligations of States parties under the Optional Protocol) and the Committee on Economic, Social and Cultural Rights (GC No. 20 (2009) on discrimination);137 this “selected approach” was criticised in the Report on the 11th Inter-Committee Meeting of the human rights treaty bodies in 2010, as it “could undermine the independence and integrity of the treaty bodies and challenge the legitimacy of general comments.”138 A better proposal would be to transmit the General Comments directly and immediately after their adoption to the UN Member States expressly pointing to the already mentioned request for publication.139 There has been discussion whether the adoption of a General Comment should be celebrated with some pomp or ceremony in order to draw more attention to this part of the Committee’s work.140 It is true that the lack of public attention generally negatively affects all the Committee’s work. With rare exceptions, the press conferences of the Committee held at the end of each session are not well-attended by the press, which shows little interest in the Committee’s work. A “symbolic validation” of General Comments would not really suit the generally rather sober work of the HR Committee (and the other treaty bodies), as it would give prominence to the General Comments compared with the other tasks of the Committee, this could prove to be counterproductive.141 Apart from the fact that every interpretation of the law entails an aspect of legislation, to stress the adoption of General Comments by e.g., a ceremonial signing of the document would overstate this inherent legislative trait and might merely irritate States without achieving much.

137

GA Res. 64/152 of 18 December 2009, para. 10.

138

UN GA, Effective Implementation of International Instruments on Human Rights, UN Doc. A/ 65/190 (2010), Annex 2, para. 26. 139

See Art. 40 (4) cl. 2 ICCPR.

140

Keller/Grover (note 58), 149.

141

Ibid., 150, take the same view.

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IV. Actual Achievements A. States

Although one of the most prominent and in fact original purposes of General Comments was to give guidance to the drafting of State reports according to Article 40 ICCPR, in many cases reading through the reports does not create the impression that the General Comments have been used in that way. One reason for this might well be the fact that the General Comments are quite often not available in the country’s language(s) and/or have not been circulated to the governmental branches or agencies in charge of the preparation of the report. To the best of our knowledge General Comments were in the past seldom cited in domestic judicial or other proceedings, but recently there has been a growing tendency to refer to the work of the treaty bodies including General Comments.142 Thus, the actual relevance of General Comments for governments is rather low, being used, if at all, for the international presentation of State reports before the Committee. The situation might improve by the rules contained in the Guidelines for the treaty-specific document to be submitted by States parties under Article 40 of the International Covenant on Civil and Political Rights adopted by the Committee in July 2010, where the States, in respect of each article of the Covenant, are expressly reminded of the relevant General Comment.143

B. NGOs and National Human Rights Institutions

Apparently national human rights institutions as well as NGOs are hitherto much more aware and willing to make use of General Comments than governmental bodies. For them, General Comments are often welcome tools in prompting legislative initiatives, in giving policy advice, and in human rights training. They may even take over the responsibility to translate the General Comments, thus making them accessible and 142

See, e.g., Dinah Shelton, The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies, in: Holger P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, Vol. I (2012), 553, 565, and 572; Eckart Klein, “Allgemeine Bemerkungen” der Menschenrechtsausschüsse, in: Detlef Merten/Hans-Jürgen Papier (eds.), Handbuch der Grundrechte in Deutschland und Europa, VI/2 (2009), 395, 414 et seq. 143 HR Committee, Guidelines for the treaty-specific document to be submitted by States parties under Article 40 of the International Covenant on Civil and Political Rights, 22 November 2010, UN Doc. CCPR/C/2009/1, paras. 28 et seq.

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more easily applicable within the State.144 Of course this may also have some favourable effects on the use of General Comments in domestic legal proceedings. C. Human Rights Committee

As has already been mentioned, the Committee itself time and again refers to its General Comments, using them as arguments and thus integrating them in its respective monitoring tasks.145 This practice results in a reciprocal strengthening of the Committee’s monitoring and interpretive tasks. The examination of concrete cases or situations is always based on a legal provision and its interpretation that has already been carefully discussed, and, by the same token, the abstract interpretation expressed in General Comments can prove itself by actual application. The Committee therefore cites General Comments not only in other General Comments,146 but also in its Views on individual communications147 and in Concluding Observations on State reports.148 Committee members also quote General Comments quite frequently during the oral consideration of those reports.149 V. General Appraisal and Conclusions Summarising our paper on General Comments it is appropriate to state that the Committee’s General Comments have generally succeeded in establishing themselves 144 Thus, in 2005, the German Institute for Human Rights translated and published all the GCs and Recommendations existing up to that point. Unfortunately, this valuable activity has not been continued. 145

See Klein (note 142), 412 et seq.

146

See, e.g., references in HR Committee, GC No. 28/2000 (note 13), para. 16 to id., GC No. 27/ 1999 (note 32), paras. 6 and 18, or id., GC No. 31/2004 (note 17), para. 5 to id., GC No. 24/1994 (note 11), or id., GC No. 34/2011 (note 14), paras. 8, 18, 20, 21, 24, 25, 34 to various GCs. 147 Annual Report of the HR Committee, GAOR, 55th Sess., Suppl. 40, UN Doc. A/55/40, Vol. II, Annex XI. A., para. 5 and Appendix paras. 14 et seq. For a more recent case see the Views of 21 March 2012, Communication No. 1782/2008, CCPR/C/104/D/1782/2008, para. 7.11 with reference to HR Committee, GC No. 31/2004 (note 17). 148

References in Klein (note 142), 412, footnote 95. See also the Concluding Observations on the reports of Uzbekistan (UN Doc. CCPR/C/UZB/CO/3) and New Zealand (UN Doc. CCPR/C/ NZL/CO/5). 149

E.g., during the discussion of the 5th periodic report of Ecuador on 6 April 2010 Mr. Amor pointed to HR Committee GC No. 22/1993, UN Doc. CCPR/C/SR.2668 (2010), 5.

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as a third tool beside the examination of State reports and (individual) communications. Divorced from their original and formerly sole function within the State reporting procedure, General Comments today reflect the whole range of the Human Rights Committee’s monitoring tasks. Perhaps still more valuable is that General Comments have evolved into a more or less theoretically well-reasoned underpinning of the Committee’s understanding of the Covenant articles which it has to apply. It is very helpful that the Committee has tried to get a clearer picture of the legal nature of its Views and Concluding Observations as well as of its interpretation of the States parties’ obligations.150 All this serves not only the procedural rationalisation of the Committee’s work, but also, and this is still more important, its persuasive authority. The deliberations and discussions about General Comments, more than any other activity of the Committee, open public insights into its steady endeavour to understand and seriously comply with its tasks. Joining together the results from its various experiences, lifting them onto a rather abstract interpretive level by deducing them from concrete cases and situations, the Committee has forged an instrument which not only helps to sharpen its primary monitoring tools, but, at the same time, assists in the strengthening of human rights standards and their evolution. Seen from this aspect it might well be that the General Comments one day will be seen as the most far-reaching and sustainable contribution of the Committee to the international protection of human rights.151 This appraisal should not be misunderstood in the sense that improvements are not possible and that problems do not exist. We have mentioned quite a few of them in this paper. Apart from the fact that the quality of the members of the Committee – concerning their knowledge, wisdom, and independence – is always of decisive importance, some particular points should be repeated. First, every attempt should be made to avoid contradictions with former statements of the Committee, unless the Committee is expressly revising them. Likewise no contradictions should be created regarding human rights contained in other treaties and/or their interpretation by the respective bodies. International human rights

150 151

See id., GCs No. 31/2004 (note 17) and id., GC No. 33/2008 (note 54).

A similar view regarding the potential of GCs is taken by Philip Alston (note 3), 763, and Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991), 95.

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law should be seen as far as possible as one corpus of law that must not be fragmented, but rather kept together and developed on a common basis. Second, the decision to discuss and adopt new General Comments should not be dependent on a fixed order and timetable, but should develop on the basis of need and interest alike as these elements are probably the best guarantees of a convincing outcome. Third, General Comments should take into account that they are bound to be practically used. The Committee should therefore not draft and adopt too long and too sophisticated academic papers. Finally, the last paragraph of any General Comment should request States to translate the document, if necessary, into the country’s own language, to publicise, and disseminate it to all branches of government. If these points are respected, the General Comments might well serve as a valuable source for relevant (moral and) legal arguments for improving and developing the human rights situation within the States. We think that General Comments have a long neglected potential, particularly in relation to the realisation of the international accountability of States, impacting their national accountability, too.

International Law and Negotiated and Adjudicated Maritime Boundaries: A Complex Relationship ALEX G. OUDE ELFERINK(

ABSTRACT: This article looks at the role negotiations and adjudication have been playing in settling maritime boundaries between neighbouring States and the role international law plays in both processes. As regards the former issue, the complementarity of the two modes of dispute settlement is highlighted. A review of the mode of submission of delimitation disputes to the judiciary points out that unilateral submissions have increased significantly over time. The article considers the implications of that trend. The availability of compulsory dispute settlement may provide States with an effective mechanism to break the deadlock in negotiations with neighbouring States. International law plays a significant role in negotiations and adjudication. The article demonstrates that the application of the law by the judiciary continues to be characterised by inconsistencies and departures from the avowed general approach to delimitation, notwithstanding assertions to the contrary. Assessing the impact of international law on negotiations is much more difficult to gauge. However, as the article sets out, States in negotiating maritime boundaries are operating in the context of a detailed set of legal rules. This implies that political bargaining takes place in a legal framework that puts limits on what States can credibly claim. KEYWORDS: Adjudication, Negotiations, Maritime Boundaries, Unilateral Applications

(

Netherlands Institute for the Law of the Sea and Utrecht Centre for Water, Oceans and Sustainability Law, School of Law, Utrecht University, The Netherlands, K.G. Jebsen Centre for the Law of the Sea, Faculty of Law, University of Tromsø, Norway. I would like to thank Scott Kuester for assisting me in gathering and analysing the materials that have been used in connection with the preparation of this article and Øystein Jensen, Erik Molenaar, and Don Rothwell and the two anonymous reviewers for their comments on earlier versions of this article. Any errors or omissions remain the sole responsibility of the author.

232 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

I. Introduction Although negotiations remain the main avenue for settling disputes over maritime boundaries between neighbouring States, courts and tribunals have dealt with a considerable number of cases and have to a large extent shaped the applicable law.1 This article looks at the role negotiations and adjudication2 have been playing in settling maritime boundaries between neighbouring States and the role international law plays in both processes. The former issue is discussed in section II. and first looks at the place of both modes of dispute settlement in this field of the law. Next, section II. looks at some of the reasons for States preferring either negotiations or adjudication and considers the nature of the complementarity of both modes. The role international law plays in both modes of dispute settlement is discussed in section III. While section III. A. sketches the impact of international law on negotiations in their broader setting, section III. B. primarily investigates the claim that the more recent case law on maritime boundaries is characterised by predictability. Section IV. contains conclusions. Due to constraints of space, the article in this connection of necessity does not provide a review of all negotiated and adjudicated boundaries, but instead focusses on a number of salient examples. 1 At the time of writing of this article, 29 delimitation disputes had been submitted to courts and tribunals (see Table 1 at the end of this article). The focus of the present article will be on a comparison of negotiated and adjudicated settlements. While it is acknowledged that other modes of third-party involvement, such as mediation and conciliation, have also played a role in this respect, that role is much more limited than that of third-party compulsory settlement. While conciliation and mediation have the advantage that they, like direct negotiations, allow taking into account a broad range of considerations (see also Elliot L. Richardson, Jan Mayen in Perspective, American Journal of International Law (AJIL) 82 (1988), 443, 457–458), they do not allow national decision makers to sell the outcome of the case as easily as ‘dictated by the law’ as is the case of a judgment or award (see further below). This makes these modes of settlement less attractive on that count than third-party compulsory settlement (see also David L. VanderZwaag, The Gulf of Maine Boundary Dispute and Transboundary Management Challenges: Lessons to Be Learned, Ocean and Coastal Law Journal 15 (2) (2010), 241, 245). Finally, it should be noted that other modes of third-party settlement may play a role either prior to or following adjudication. A case in point is the Holy See mediating between Argentina and Chile following the Beagle Channel arbitration (see e.g. Eduardo Jiménez de Aréchaga, Argentina-Chile, in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, Vol. I (1991), 719, 720–721). The agreement between Croatia and Slovenia to submit their land and maritime dispute to arbitration was concluded with the facilitation of the European Union (see the Preamble of the Arbitration Agreement between the Government of the Republic of Slovenia and the Government of the Republic of Croatia, 4 November 2009, available at: http://www.assidmer.net/doc/Arbitration_Agreement_ Croatia_Slovenia.pdf (accessed on 27 October 2015)). 2

Any reference to adjudication in this article concerns both standing courts and arbitral tribunals.

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II. The Role of Negotiations and the Judiciary in Settling Maritime Boundaries A. Clauses Contained in Multilateral Conventions

It is axiomatic that direct negotiations are the most important means to manage inter-State relations, and maritime boundary delimitation is no exception. At the same time, the inclusion of a reference to third-party dispute settlement in the general rules for maritime delimitation has a long pedigree. During one of the first discussions of the International Law Commission (ILC) on its draft articles on the regime of the continental shelf, which would eventually result in the Convention on the Continental Shelf,3 Scelle referred to the possibility that direct negotiations between the interested States would not result in a solution. This led him to suggest that: the Commission should state that, if two governments could not reach agreement as to the partition of the continental shelf, neither State was entitled to exploit it. They must either maintain the status quo or they would be under an obligation to refer the question to the International Court of Justice.4

Scelle’s proposition led to the adoption of a draft article providing for arbitration where States could not agree on the delimitation of their continental shelf.5 Subsequently, the scope of this provision was extended to the continental shelf regime as a whole.6 The 1956 ILC draft articles that formed the basis of discussion at the 1958 United Nations Conference on the Law of the Sea provided for referral to the International Court of Justice (ICJ).7 The Conference rejected the possibility of compulsory dispute settlement in relation to the regime of the continental shelf. This did not imply that the delimitation of the continental shelf was altogether beyond the reach of compulsory dispute settlement for prospective parties to the Convention on the Continental Shelf. The 1958 Conference itself adopted the Optional Protocol of

3

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

4

International Law Commission (ILC), Yearbook of the International Law Commission, Vol. I (1951), 288, para. 5; see also ibid,. 292, para. 65. 5

See ibid., 293–294, paras. 100–101.

6

See id., Yearbook of the International Law Commission, Vol. II (1953), 213 and 216–217.

7

See id., Yearbook of the International Law Commission, Vol. II (1956), 300.

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Signature concerning the Compulsory Settlement of Disputes.8 Other instruments, such as the Statute of the International Court of Justice (ICJ Statute)9 with its optional clause jurisdiction, the Pact of Bogotá,10 and bilateral treaties on dispute settlement, may also enable unilateral recourse to third-party settlement. The possibility of judicial settlement of maritime boundaries where negotiations would fail to achieve an agreement was again considered at the Third United Nations Conference on the Law of the Sea (1973–1982). The drafting of a delimitation provision for the continental shelf and the exclusive economic zone was one of the controversial issues at the Conference. It was considered that the content of the substantive delimitation provision was closely related to the regime of compulsory dispute settlement and that they should be treated as one package.11 The outcome of the negotiations as contained in Articles 74 and 83 United Nations Convention on the Law of the Sea (UNCLOS)12 explicitly recognises that negotiations may not lead to an agreement. Common paragraph 2 provides that “[i]f no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.”13 8 Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, 29 April 1958, UNTS 450, 169. 9 10

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 355 (ICJ Statute). American Treaty on Pacific Settlement, 30 April 1948, UNTS 30, 449 (Pact of Bogotá).

11

See further Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation (1994), 27–28. 12

United Nations Convention on the Law of the Sea, 10 December 1982, UNTS 396, 1833 (UNCLOS). 13

The general reference to Part XV not only concerns the compulsory mechanisms contained in section 2 (and the limitations and exceptions to that section contained in section 3), but also covers the general provisions of Part XV contained in its section 1. However, in view of the specific formulation of common paragraph 2, certain provisions of section 1 do not apply unabridged. This concerns among others the obligation to exchange views when a dispute arises that is provided for in Art. 283 (1) UNCLOS. As the Tribunal in Barbados v. Trinidad concluded: “Article 283(1) cannot reasonably be interpreted to require that, when several years of negotiations have already failed to resolve a dispute, the Parties should embark upon further and separate exchanges of views regarding its settlement by negotiation. The requirement of Article 283(1) for settlement by negotiation is, in relation to Articles 74 and 83, subsumed within the negotiations which those Articles require to have already taken place”, In the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago (Barbados, Republic of Trinidad and Tobago), Arbitral Award of 11 April 2006, Reports of International Arbitral Awards (RIAA) XXVII, 147, para. 202. The Tribunal also held that there was no obligation to exchange views on other peaceful means of settlement (ibid., para. 202). The Tribunal reached a similar conclusion in respect of Art. 283 (2) UNCLOS (see ibid., para. 205; see also ibid., para. 206). For a recent and detailed discussion on the implications of Art. 283 UNCLOS see The Matter of the Chagos Marine Protected

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B. Incidence of Negotiations and Adjudication

Unilateral reference of a dispute concerning the delimitation of maritime boundaries to a court or tribunal is possible under Part XV UNCLOS, unless a State party has made use of the option to exclude such disputes from the reach of section 2 of Part XV UNCLOS.14 Only 25 of the 167 parties to the UNCLOS currently have used this option.15 However, the reach of these declarations is much broader than the 25 States concerned, as it also affects their neighbours. Interestingly, more than half (thirteen) of the declarations presently in force have been made subsequent to the State concerned becoming a party to the Convention.16 Possibly, some of these subsequent declarations may have been triggered by the way in which courts and tribunals have been dealing with the interpretation and application of Articles 74 and 83 UNCLOS.17

Area Arbitration (Republic of Mauritius, United Kingdom of Great Britain and Northern Ireland), Arbitral Award of 18 March 2015, paras. 351–386, available at: http://www.pca-cpa.org/MU-UK%20 20150318%20Awardd4b1.pdf?fil_id=2899 (accessed on 12 October 2015). 14

The question could be raised what issues exactly are covered by the exception included in Art. 298 (1)(a)(i) UNCLOS. This provision explicitly refers to “disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles”. This explicit reference to specific provisions of the UNCLOS and historic bays and titles indicates that other provisions of the Convention, such as those concerned with entitlement to maritime zones, were not intended to be covered by Art. 298 (1)(a)(i) UNCLOS (see also International Tribunal on the Law of the Sea (ITLOS), Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, para. 398, available at: https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/C 16_Judgment_14_03_2012_rev.pdf (accessed on 12 October 2015)). 15

This figure is based on the information contained on the relevant page of the website of the Treaty Section of the Office of Legal Affairs of the United Nations available at: https://treaties.un.org/Pages/ ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&lang=en#18 (accessed on 27 July 2015). In addition, a limited number of States have indicated that they only accept a specific means of compulsory dispute settlement for these types of disputes (ibid.). 16

Ibid. In addition, Ghana had made a declaration to this effect on 15 December 2009, but subsequently withdrew that declaration on 22 September 2014 (ibid., footnote 18). 17 Although at first sight it would seem to be difficult to imagine, another explanation might be that some States in becoming a party to the Convention did not consider the implications of sections 2 and 3 of Part XV UNCLOS in detail. For instance, upon ratifying the Convention China declared that it “will effect, through consultations, the delimitation of the boundary of the maritime jurisdiction with the States with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the principle of equitability” (ibid.). This declaration clearly expresses a preference for not resorting to section 2 of Part XV UNCLOS. However, China only subsequently made a declaration in which it explicitly relied on Art. 298 (1)(a)(i) UNCLOS (ibid.).

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Since the entry into force of the UNCLOS in 1994, five maritime delimitation cases have been brought unilaterally under Part XV UNCLOS.18 During this same period, nine cases were submitted jointly or unilaterally under other instruments. Thus, the new avenue for settling delimitation disputes created by the UNCLOS can be said to have contributed significantly to the use of compulsory dispute settlement.19 Recourse to the option of unilateral submission of delimitation disputes under the UNCLOS reflects a broader trend. While until 1988 there had only been one – unsuccessful – attempt by Greece to settle its continental shelf boundaries with Turkey by unilateral recourse to the ICJ, since 1988 fourteen maritime delimitation cases have been started unilaterally.20 By way of comparison, for the same periods the figures for joint submissions are ten and four respectively.21 Whether this trend will continue will depend on whether or not States will close the possibilities of recourse to this avenue for their neighbours by for instance making a declaration under Article 298 (1)(a)(i) UNCLOS22 or withdrawing or varying their optional clause declaration under Article 36 (2) ICJ Statute.23 Notwithstanding the continued use of compulsory dispute settlement mechanisms, negotiations remain the primary mode for dealing with the delimitation of 18

See Table 1 at the end of to this article.

19

A drawback of the UNCLOS in this respect as compared to these other instruments is that it does not allow the concurrent litigation of disputes concerning sovereignty over territory, while such other instruments may allow this, as the UNCLOS does not address issues concerning title to territory. Admittedly, different views exist over the question to what extent a court or tribunal could deal with all aspects of a mixed dispute that is submitted under the UNCLOS (for an overview see e.g. Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals, International Journal of Marine and Coastal Law 27 (2012), 59). It would seem that a court or tribunal in any case would be excluded from dealing with matters concerning the sovereignty over territory to the extent this would imply a ruling on a claim that does not arise directly under the UNCLOS (see also ITLOS, Dispute Concerning the MOX Plant, International Movements of Radioactive Materials, and the Protection of the Marine Environment of the Irish Sea (Ireland v. United Kingdom), Order No. 3 of 24 June 2003, para. 19, available at: http://www.pca-cpa.org/MOX%20Order%20no3a 614.pdf?fil_id=81 (accessed on 15 October 2015)). 20

A further impact of the possibility that a State may unilaterally submit a dispute to a court or tribunal is that it may induce States to seek to agree to joint submission (for an example see Alex G. Oude Elferink, The Delimitation of the Continental Shelf between Denmark, Germany and the Netherlands: Arguing Law, Practicing Politics? (2013), 175). 21

See Table 1 at the end of this article.

22

On this point see supra, text at notes 14 et seq. and infra, note 123.

23

For a further discussion of some of the implications of the unilateral submission of a dispute to a court or tribunal see infra, text at notes 41 et seq.

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maritime boundaries between neighbouring States. A review of the period 2003– 2011 identified 36 agreements related to the delimitation of maritime zones.24 By way of comparison, in the same period seven cases were submitted to compulsory dispute settlement procedures. Still, a comparison with earlier figures suggests an increased role for third-party settlement. A study from 1990 lists 154 maritime boundaries that had been settled between 1925 and 1990.25 Ten boundaries, or some 6.5% of this total, had been settled by adjudication. For the period 2003–2011 the share of adjudicated boundaries in the total is 16.3%.26

C. Perceived Advantages of Negotiations

Negotiations have been viewed as the preferred option for reaching agreement on maritime boundaries. For instance, Anderson lists the following advantages of a negotiated settlement: control of the parties over the outcome as regards the course of the boundary, its definition, and the presentation of the results to the public.27 In addition, negotiations allow the parties to put together ‘packages’.28 On the other hand, “litigation always carries risks for the parties, and the range of legal findings available to a court or tribunal is more restricted than the options open to negotia-

24

Based on a review of Law of the Sea Bulletins Nos. 53–80 and David A. Colson/Robert W. Smith (eds.), International Maritime Boundaries, Vols. V and VI (2005 and 2011). Due to the fact that some delimitation agreements are not in the public domain immediately after their conclusion, it should not be ruled out that the actual figure is higher than 36. The 36 agreements concerned also include two agreements on a joint zone and a number of agreements determining tripoints or transforming a continental shelf boundary into a single maritime boundary. 25

Robert W. Smith (ed.), Maritime Boundaries of the World (Limits in the Seas No. 108) (1990), 3 and 5, available at: http://www.state.gov/documents/organization/58379.pdf (accessed on 27 October 2015). 26 Based on the number of cases that were submitted to a court or tribunal in this period (see Table 1 at the end of this article). 27

David H. Anderson, Negotiating Maritime Boundaries: A Personal View, in: Rainer Lagoni/Daniel Vignes (eds.), Maritime Delimitation (2006), 121, 122–123; id., Maritime Dispute Settlement and the Practitioner, Ocean Yearbook 24 (2010), 51, 65; see also David R. Robinson, The Convergence of Law and Diplomacy in United States-Canada Relations: The Precedent of the Gulf of Maine Case, Canada United States Law Journal 26 (2000), 37, 40. 28

Anderson, Negotiating (note 27), 122–123. For a further discussion of this point see also Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (2015), 266–270.

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tors.”29 Burmester, in discussing the Torres Strait Treaty30 between Australia and Papua New Guinea stresses the multidimensional nature of this boundary situation. The treaty was designed to offer separate solutions regarding: “(1) the people, (2) maritime jurisdiction, (3) the islands, (4) fisheries resources, and (5) navigation”.31 A solution to such a complex problem is “more likely to result from agreement between the parties concerned than from judicial or arbitral decisions”.32 Interestingly, Burmester then adds that negotiations oftentimes also fall short of an optimum outcome: Too often, maritime delimitation disputes are seen simply as a process of drawing a single line on a map. Through failure to have proper regard to all the surrounding circumstances, negotiations often become protracted and fruitless and no durable solution results.33

A similar point is made by VanderZwaag in his discussion of the maritime boundary in the Gulf of Maine between Canada and the United States. While he first submits that “a negotiated settlement of an ocean boundary dispute is generally preferable to international litigation for cost, creativity, and control reasons”,34 his subsequent analysis indicates that direct negotiations have failed to achieve wholly effective transboundary cooperation: Nearly twenty five years after the ICJ Chamber drew a line across Georges Bank, Canada and the United States have yet to develop comprehensive transboundary management arrangements for the Georges Bank and Gulf of Maine region, and a fragmented array of cooperative arrangements, mostly informal, have evolved.35

Although an in-depth analysis of the transboundary management regimes set up in connection with negotiated maritime boundaries is beyond the scope of this article, a cursory review of existing boundary agreements indicates that they seldomly set up a comprehensive transboundary management regime. A number of factors may explain 29

Anderson, Negotiating (note 27), 123.

30

Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, including the Area Known as Torres Strait, and Related Matters, 18 December 1978, available at: http://www.austlii.edu.au/au/ other/dfat/treaties/1985/4.html (accessed on 26 October 2015). 31

Henry Burmester, The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement, AJIL 76 (1982), 321, 322–323. 32

Ibid., 322.

33

Ibid.

34

VanderZwaag (note 1), 244.

35

Ibid., 256 (footnote omitted).

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this state of affairs. The conclusion of an agreement on a maritime boundary may be the consequence of an interest in the development or management of particular resources, i.e. hydrocarbons in the case of the continental shelf and fish stocks in the case of the exclusive economic zone. The relative paucity of activities in ocean space as compared to the land militates against investing too much in the development of mechanisms for dealing comprehensively with transboundary cooperation. In addition, maritime boundary agreements exist in the broader framework of international law, which contains significant obligations on transboundary cooperation,36 thus obviating the need for dealing with those obligations in the context of a delimitation agreement. Finally, the often complex and protracted nature of boundary negotiations would seem to militate against including a further layer of complexity consisting of a comprehensive management regime that in many cases may not be urgently needed to start with. To conclude, although direct negotiations are better-suited for dealing with a maritime boundary relationship comprehensively, the difference to third-party procedures should not be overstated. In both cases, the focus in general will be on arriving at the establishment of a boundary, and in both cases the resolution of the boundary dispute will enable the parties to work out further arrangements in relation to transboundary cooperation subsequently.

D. The Complementarity of Negotiations and Adjudication

Negotiations and adjudication are alternatives, but they can also be seen as being complementary. Different points have been highlighted in relation to the latter point. Anderson observes that the mention of the possibility of litigation during negotiations “may help to concentrate minds on the need to seek agreement across the table”.37 Third-party settlement obviously offers a way out where negotiators are not able to reach an agreement. In this connection, the last-resort nature of such recourse to a third party is regularly emphasised. For instance, Robinson argues that in the case of the United States and Canada, due to the dislike of national constituencies to involve an unpredictable third party, such recourse will not be an option 36 37

See e.g. Arts. 63–67, 194 (2), and 204–206 UNCLOS.

Anderson, Negotiating (note 27), 132; see also Jonathan I. Charney, The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea, AJIL 90 (1996), 69, 71.

240 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 unless and until either the management of the problem becomes so fraught with difficulty and peril or the chance of reaching an acceptable negotiated settlement becomes so minimal and elusive, that resort to third party dispute resolution is literally the only option left […].38

Going to court offers national decision makers a way out of negotiations that are in a deadlock, as they can “dodge blame for not winning an entire claim while attaining the compromise needed to terminate the conflict”.39 The interaction between negotiations and third-party settlement is formulated more positively by Spain in discussing the dispute between Eritrea and Yemen over sovereignty over certain islands and their maritime boundary in the Red Sea: The use of multiple forms of [international dispute resolution] in a sequential process ultimately led to a resolution of the dispute with Eritrea acknowledging that this outcome would “pave the way for a harmonious relationship between the littoral States of the Red Sea” and Yemen noting that the [arbitral] award was the “culmination of a great diplomatic effort”.40

Notwithstanding these differences in tenor, there is no disagreement as regards the basic notion that the different modes of disputes settlement are complementary.41 A major, perhaps even the most important, difference between negotiated and adjudicated settlements may be that cases with a complex legal setting will more often end up in court. As much is suggested by the above discussion. One measure to determine this complexity is what method of delimitation has been used to determine the boundary. Already in the North Sea Continental Shelf Cases, in which the ICJ found that equidistance did not constitute an obligatory method for the parties, the Court 38

Robinson (note 27), 40 (footnote omitted); see also VanderZwaag (note 1), 244; Charles R. Majinge, Emergence of New States in Africa and Territorial Dispute Resolution: The Role of the International Court of Justice, Melbourne Journal of International Law 13 (2012), 462, 492; Beth A. Simmons, Capacity, Commitment, and Compliance: International Institutions and Territorial Disputes, Journal of Conflict Resolution 26 (2002), 829, 831, 835, and 838. 39 Lawrence J. Prelli/Mimi Larsen-Becker, Learning from the Limits of an Adjudicatory Strategy for Resolving United States-Canada Fisheries Conflicts: Lessons from the Gulf of Maine, Natural Resources Journal 41 (2001), 445, 453. Similar considerations led Denmark, the Federal Republic of Germany, and the Netherlands to submit their delimitation disputes in the North Sea to the ICJ in the 1960s (see further Oude Elferink (note 20), 162–175). 40 Anna Spain, Examining the International Judicial Function: International Courts as Dispute Resolvers, Loyola of Los Angeles International and Comparative Law Review 34 (5) (2011), 5, 26 (footnotes omitted). 41

See e.g. ibid., 25; Robinson (note 27), 40.

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emphasised the advantages of the equidistance method in geographically – and hence legally – straightforward situations.42 This same distinction has been observed by Legault and Hankey in a statistical analysis of negotiated boundaries.43 89% of the boundaries between opposite coasts included in their sample are based on the equidistance method. On the other hand, only 40% of the cases in their sample involving adjacent coasts employ the equidistance method. In the latter case this figure was split evenly between strict equidistance and modified equidistance.44 Interestingly, the figures for adjudicated boundaries indicate a larger reliance on the equidistance method than is the case for negotiated boundaries involving adjacent coasts. Eleven out of twenty adjudicated boundaries, or 55%, delimiting the continental shelf and/or the exclusive economic zone are based on the equidistance method.45 This might suggest that the legal complexity of delimitation is not the only factor explaining why States resort to adjudication. However, before turning to other explanations, the figure of 55% requires some qualification. Only three out of these eleven cases – 15% of the total number of adjudicated cases – concern strict equidistance for (almost) the entire boundary.46 In addition, modified equidistance lines at times may have little relationship to the strict equidistance line. In these cases, use of the term modified equidistance line suggests the absence of a complex legal and geographical situation, while the opposite may be true.47 Resort to adjudication may also be explained by a number of factors other than the complexity of the maritime boundary delimitation. Fifteen out of the 29 cases sub42 ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment of 20 February 1969, ICJ Reports 1969, 3, para. 57. 43 A recent review in this respect is contained in Cottier (note 28), 242–250. However, Cottier focusses on the period between 1942 and 1992 (ibid., 242), which is basically the period covered by Legault and Hankey. Unsurprisingly, Cottier concludes that his findings are “roughly appropriate” when compared to the study of Legault and Hankey (ibid., 249). 44

Leonard H. Legault/Blair Hankey, Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation, in: Charney/Alexander (eds.) (note 1), 203, 215–216. 45

This concerns entries A. 8, A. 12, A. 13, B. 2, B. 3, B. 6, B. 7, B. 8, B. 9, B. 10, and B. 11 in Table 1 at the end of this article. In making this count, only boundaries that were established de novo by a court or tribunal have been taken into account. 46 47

This concerns entries B. 3, B. 7, and B. 8 in Table 1 at the end of this article.

In the overview of adjudicated boundaries reference can be made to entries A. 8, B. 2, B. 9, B. 10, and B. 11 in Table 1 at the end of this article. For a further discussion of the equidistance line established by the ICJ in Peru v. Chile see also infra, text at notes 95 et seq.

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mitted to compulsory third-party settlement also include issues other than the delimitation of a maritime boundary.48 This concerns such issues as the location of the land boundary, sovereignty disputes over islands, and disputes over whether or not there already exists an agreement establishing a maritime boundary. Such issues may (further) complicate negotiations over a maritime boundary and submitting them as a package to a court or tribunal has definite advantages. For one thing it avoids that States will have to return to the negotiating table after one of the parties has lost a case in court, which may limit its willingness and scope to compromise in further negotiations. In addition, these issues lend themselves well to third-party settlement as is illustrated by the large number of adjudications dealing with territorial disputes. Another explanation for the resort to adjudication may be that decision makers consider that they run political risks if they abandon entrenched negotiating positions and expose themselves to being accused of ‘selling the national interest’. This may even be the case where the delimitation itself might seem straightforward. For instance, the equidistance line an arbitral tribunal applied to delimit the exclusive economic zone and continental shelf up to the 200-nautical-mile (nm) limit between Guyana and Suriname by most neutral observers likely would be considered to represent an equitable outcome.49 However, the parties for more than 40 years had both claimed a delimitation line that diverged significantly from the equidistance line. In addition, they had a complex dispute over the location of the terminus of their land boundary. The deadlock in the negotiations apparently could only be resolved through recourse to an arbitral tribunal. Finally, as is discussed further in the next section, the possibility of unilateral resort to third-party settlement may constitute an option of last resort for a State where its neighbours are unwilling to engage in meaningful negotiations.

E. Disagreement about Submission to Adjudication

Parties to a dispute may differ over the appropriate mode of dispute settlement. As a number of recent law of the sea cases illustrate, the possibility of unilateral submis48 This concerns entries A. 5, A. 6, A. 9, A. 10, A. 12, A. 13, A. 14, B. 3, B. 4, B. 5, B. 8, B. 9, B. 11, B. 12, and B. 13 in Table 1 at the end of this article. 49 For instance, Gao concludes that “[a]s far as using a strict equidistant line to delimit the single maritime boundary beyond the 12-nm limit is concerned, the decision of the Tribunal is unquestionable”, Jianjun Gao, Comments on Guyana v. Suriname, Chinese Journal of International Law 8 (2009), 191, 197.

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sion of a specific dispute to a third party on the basis of a general dispute settlement clause in a multilateral treaty may not be welcomed by the other party involved in the dispute.50 A number of authors have observed that compliance with a judicial decision may be less likely in the case of unilateral submission of a dispute to a court or tribunal.51 Gent offers the following explanation for this state of affairs: When disputants opt for arbitration or adjudication, they must forgo […] other options [of dispute settlement]. Since States with greater bargaining power are able to guarantee themselves favorable outcomes outside of court, they will be reluctant to submit their claims to arbitration or adjudication unless they can expect a similarly favorable outcome.52

Simmons in analysing territorial disputes has established a correlation between the specificity of the commitment to have recourse to a court or tribunal and the likelihood of compliance: [G]eneral multilateral treaties were inversely associated with achieving a ruling. This suggests that general commitments (which are binding “in principle”) may be of limited use for solving specific problems. General commitments made to a large number of states on a range of issues simply do not function in the same way as a specific commitment designed to overcome a domestic hurdle on a particular issue. […] 50

This concerns the arbitrations initiated by the Netherlands and the Philippines against the Russian Federation and China respectively under Annex VII UNCLOS and the case before the ICJ started by Nicaragua against Colombia in 2001. In the former two cases the respondent is not participating in the proceedings and in the latter case Colombia first raised issues of jurisdiction and admissibility, while after the Court’s 2012 judgment on the merits, Colombia’s President Santos declared that the Court in determining the maritime boundary between the two States made serious mistakes. As a consequence, Santos emphatically rejected that aspect of the Court’s judgment (see Alocución del Presidente Juan Manuel Santos sobre el fallo de la Corte Internacional de Justicia, available at: http://wsp.presidencia. gov.co/Prensa/2012/Noviembre/Paginas/20121119_02.aspx (accessed on 15 October 2015); for an English translation of this text see ICJ, Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Application Instituting Proceedings of 26 November 2013, Annex 1, available at: http://www.icj-cij.org/docket/files/155/17978.pdf (accessed on 15 October 2015)). 51 See Aloysius P. Llamzon, Jurisdiction and Compliance in Recent Decisions of the International Court of Justice, European Journal of International Law (EJIL) 18 (2008), 815, 818–820; Simmons (note 38), 841–842; see also Stephen E. Gent, The Politics of International Arbitration and Adjudication, Penn State Journal of Law & International Affairs 2 (2013), 66, 76. The arguments set out in this paragraph apply similarly to cases in which a party does not participate in the proceedings. Noncompliance with a judgment is likely to follow on non-participation in the proceedings. 52

Gent (note 51), 76.

244 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 [B]ilateral and especially ad hoc agreements to arbitrate showed a strong positive correlation with actually reaching a ruling. The more specific the commitment, the more likely it is to be carried out.53

It seems likely that there also is a correlation between these two explanations. As I remarked elsewhere in respect of the multilateral dispute settlement framework created by the UNCLOS: Acceptance of compulsory dispute settlement as part of the [UNCLOS] was a price certain States had to pay to arrive at a generally acceptable compromise. This did not mean that those States renounced their opposition to compulsory dispute settlement. Even though the [UNCLOS] allows for significant exceptions to compulsory dispute settlement, the two recent arbitrations involving non-appearance indicate that this does not preclude that cases may be brought that touch on fundamental interests of States. In both these cases, the power disparity between the claimant and respondent is also obvious.54

None of the cases on maritime boundary delimitation that have been brought under the UNCLOS thus far has led to a refusal of a respondent State to participate in the proceedings,55 and there do not seem to have been any cases of non-compliance with a judgment or award under the UNCLOS determining a maritime boundary.56 The existence of the option to exclude delimitation disputes from compulsory dispute settlement under the UNCLOS should guarantee that States which oppose this means for settling their maritime boundaries will not be faced with a unilateral application of a neighbouring State.57 Where the respondent State refuses to comply with a decision of a court or tribunal, third-party settlement, instead of finally disposing of the dispute, adds a further layer 53 Simmons (note 38), 841–842. On the former point see also Donald R. Rothwell/Alex G. Oude Elferink/Tim Stephens/Karen N. Scott, Charting the Future for the Law of the Sea, in: id. (eds.), The Oxford Handbook of the Law of the Sea (2015), 888, 911. 54

Rothwell/Oude Elferink/Stephens/Scott (note 53), 911 and 888, footnote 1.

55

It should however be acknowledged that the statement of claim of the Philippines in the arbitration it initiated against China, and in which China is not participating, implicitly seems to be asking the arbitral tribunal to pronounce itself on the delimitation of the continental shelf. China has excluded disputes concerning maritime boundaries from compulsory dispute settlement under the UNCLOS (see supra, note 17). Moreover, in a number of cases the respondent State raised preliminary objections. In no case brought under the UNCLOS did this result in a finding that there was no jurisdiction to deal with the dispute concerned. 56

But see the discussion of Nicaragua v. Colombia, supra, note 50. In this case the jurisdiction of the Court was founded on Art. XXXI Pact of Bogotá. 57

But see supra, note 17.

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of complexity. At first sight, it would seem to be difficult to talk about the complementarity of the different modes of dispute settlement in these instances. However, viewed from the perspective of the applicant, complementarity does exist, as the option of recourse to third-party dispute settlement makes it possible to use that option where it is for instance felt that the other party is unwilling to engage in meaningful discussions. A judgment or award upholding (part of) the claim of the applicant in such a case is bound to change the legal and diplomatic setting of the dispute. Apart from changing the bilateral legal and political landscape, a judgment or award may also have consequences for the boundaries of a party to the case with third parties, notwithstanding the fact that the judgment or award is not binding on third parties. For instance, the decision of the Arbitral Tribunal in Barbados v. Trinidad and Tobago implies that part of the maritime boundary that was agreed upon between Trinidad and Tobago and Venezuela now abuts on areas that have been recognised as Barbadian by the award. It will be on Barbados and Venezuela to agree on the consequences of the award for their boundary relations.58 The judgment of the ICJ in Nicaragua v. Colombia seems to have led to Costa Rica’s decision of definitively not proceeding with the ratification of a delimitation treaty it had concluded with Colombia in 1977.59 This ‘knock-on’ effect of judicial decisions may provide a mechanism to a State that is confronted by a bilateral delimitation between neighbouring States that it considers to be encroaching on its maritime zones. A judicial decision may also impact on the regional boundary landscape in another way, namely in effecting a delimitation between the parties to a case. A court or tribunal may effect a delimitation that takes into account the regional setting of the 58

In addition to these States, Guyana probably claims this area as a part of its continental shelf beyond 200 nm (see Republic of Guyana, A Submission of Data and Information on the Outer Limits of the Continental Shelf of the Co-Operative Republic of Guyana pursuant to Part VI of and Annex II to the United Nations Convention on the Law of the Sea: Executive Summary, available at: http:// www.un.org/Depts/los/clcs_new/submissions_files/guy57_11/GUY_Executive%20Summary.pdf (accessed on 15 October 2015)). A further complication of this case is the existence of a dispute between Guyana and Venezuela concerning the territory of Guyana to the west of the Essequibo River. 59

ICJ, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Application Instituting Proceedings of 25 February 2014, para. 10, available at: http://www.icj-cij.org/ docket/files/157/18344.pdf (accessed on 15 October 2015). As a result of the 2012 judgment of the Court in Nicaragua v. Colombia the maritime boundary between Costa Rica and Colombia defined in their 1977 treaty became located on Nicaragua’s side of the Court’s maritime boundary between Colombia and Nicaragua (see ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, 624, 714, Sketch-map No. 11).

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bilateral boundary. Pronouncing on this regional setting necessarily involves making a judgment call on the relevance of the coastal geography of one or more neighbouring States that are not a party to the case. Although a decision obviously does not affect the rights of those States in a legal sense, it undoubtedly will have an impact on their negotiating position.60

III. The Role of International Law in Negotiations and Adjudication A. Negotiations and International Law

Unlike courts and tribunals, States in concluding a bilateral agreement are not bound to apply the substantive rules applicable to the delimitation of maritime boundaries.61 However, this does not mean that international law has no role to play in bilateral negotiations.62 First of all, international law imposes procedural obligations on States involved in delimitation negotiations.63 As the ICJ observed in the North Sea Continental Shelf Cases “[the parties] are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it”.64 At face value this pronouncement would seem to imply that a party might be 60 For a detailed discussion of this issue see Alex G. Oude Elferink, Third States in Maritime Delimitation Cases: Too Big a Role, Too Small a Role or Both?, in: Aldo Chircop/Ted L. McDorman/Susan J. Rolston (eds.), The Future of Ocean Regime-Building: Essays in Tribute to Douglas M. Johnston (2009), 611, 633–638. 61

As the ICJ observed in Libya/Malta “although there may be no legal limit to the considerations which States may take account of, this can hardly be true for a court applying equitable procedures”, ICJ, Case concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, ICJ Reports 1985, 13, para. 48. 62 It is uncontroversial that States cannot unilaterally impose a maritime boundary on a neighbouring State (see e.g. ICJ, Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 October 1984, ICJ Reports 1984, 246, para. 112). This is also implicated in the relevant provisions of the Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, UNTS 516, 205 (Art. 12), the Convention on the Continental Shelf (Art. 6), and the UNCLOS (Arts. 15, 74, and 83). The UNCLOS in addition specifies the duty to resort to the dispute settlement mechanisms of Part XV UNCLOS where no agreement can be reached (see also Cottier (note 28), 357–358). 63

For a detailed discussion see e.g. Cottier (note 28), 660–690.

64

ICJ, North Sea Continental Shelf Cases (note 42), para. 85 (a).

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required to modify a position based on the law if the other party were to insist on a boundary that is at odds with the substantive rules of delimitation law. However, it is submitted that this observation of the Court has to be read in the context of the circumstances of these specific cases.65 In other delimitation cases, the Court has limited itself to the more general observation that the parties to delimitation negotiations are required to negotiate in good faith.66 In negotiations, international law is seen both as providing States with arguments to justify their negotiating positions and to assess the position of the other party involved.67 As Oxman points out, strong and weak States alike have an interest in credibility. Unless a state is prepared to expend unrelated resources […] to obtain a favourable maritime boundary, its proposal must be grounded in more than unrestrained self-interest. The search for a platform of principle will entail, at least in part, a search for a proposal that has a plausible legal and equitable foundation.68

Grounding one’s position in terms of international law does not mean that the other party will necessarily accept it. This may in part be explained by the indeterminacy of the law. Law in general will allow arguing for different outcomes and the law applicable to the delimitation of maritime boundaries is no exception. Perhaps more importantly, as is also suggested by Oxman’s observation quoted above, international law is only one of the factors that impact on the outcome of negotiations. In a recent case study on the delimitation of the continental shelf between Denmark, Germany, and the Netherlands I looked in detail at the question of what role international law

65

See further Oude Elferink (note 20), 327–328.

66

See e.g. ICJ, Gulf of Maine (note 62), para. 87; id., Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports 2002, 303, para. 244. 67

See Anderson, Negotiating (note 27), 123; Bernard H. Oxman, Political, Strategic, and Historical Considerations, in: Charney/Alexander (eds.) (note 1), 3, 15; Prosper Weil, The Law of Maritime Delimitation: Reflections (1989), 111; Oude Elferink (note 11), 371; see also Iain Scobbie, Tom Franck’s Fairness, EJIL 13 (2002), 909, 924; Davor Vidas, Consolidation or Deviation? On Trends and Challenges in the Settlement of Maritime Delimitation Disputes by International Courts and Tribunals, in: Nerina Boschiero/Tullio Scovazzi/Cesare Pitea/Chiara Ragni (eds.), International Courts and the Development of International Law (2013), 325, 325. 68

Oxman (note 67), 15; see also Keith Highet, The Use of Geophysical Factors in the Delimitation of Maritime Boundaries, in: Charney/Alexander (eds.) (note 1), 163, 165; Oude Elferink (note 11), 370–372; Weil (note 67), 120.

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played in the negotiations between the three States.69 During the negotiations, which started five years before the ICJ’s 1969 judgment in the North Sea Continental Shelf Cases and lasted until 1971, hovering in the background was the spectre of Nazi Germany’s occupation of Denmark and the Netherlands during World War II. Germany was not willing to push its legal case while risking burdening its bilateral relations by pursuing an ‘aggressive’ claim. At the end of the negotiations following the Court’s judgment – the Court had not been requested to establish a boundary, but only to identify the applicable law – the German Foreign Office concluded that the outcome was “a compromise that was still bearable”70 and submitted that a better result for Germany would only have been possible if it would have been willing to face a political confrontation with Denmark and the Netherlands.71 At the same time, the fact that Denmark and the Netherlands took great care to couch their proposals in terms of conformity with international law underlines the law’s relevance.72 A more recent example of the complexity of the interaction between law and politics in maritime boundary making is provided by the 2010 Murmansk Treaty concluded by Norway and the Russian Federation.73 The Treaty put an end to 40 years of negotiations and, apart from determining a boundary, also set up a regime for cooperation in relation to fisheries and transboundary hydrocarbons. In the negotiations the parties held widely diverging positions on what should be their maritime boundary. Norway maintained that an equidistance line constituted an appropriate boundary, but the Russian Federation, and the Soviet Union before it, took the position that a so-called sector line had to be applied.74 This led to an area of overlapping claims

69

Oude Elferink (note 20).

70

Annex to the proposal of the Foreign Office to the Cabinet dated 17 April 1970 (Bundesarchiv Koblenz, Minstry for the Economy folder B102/260036), 3. Translation by the author. The original text reads “ein noch tragbarer Kompromiß”. 71

Ibid.

72

See Oude Elferink (note 20), 342–448 passim; see also ibid., 476–480.

73

Treaty between Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010, Law of the Sea Bulletin 77 (2012), 24. 74 Sector lines follow meridians and meet at the North Pole, dividing the Arctic Ocean in sectors. Sector lines have been used by the Soviet Union and the Russian Federation in connection with claims to territory and the definition of the limits of maritime zones. For a recent discussion see Alex G. Oude

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of approximately 175,200 km2.75 The Murmansk Treaty divides the area of overlapping claims in two equal parts of approximately 87,600 km2.76 Moe, Fjærtoft, and Øverland have in particular focussed on the timing of the conclusion of the Murmansk Treaty. They submit that Norway was ready to accept a compromise on the boundary for a long time. Consequently, an explanation as to why an agreement was reached in 2010 primarily has to be sought on the part of the Russian Federation.77 Moe, Fjærtoft, and Øverland identify a number of explanatory factors, but they conclude that “[t]here are, however, several indications that a desire to reaffirm [the UNCLOS] as the pre-eminent framework for Arctic governance may have been a particularly important motivation for the Russian government.”78 Henriksen and Ulfstein have, based on the limited information available, assessed to which extent the boundary established by the Murmansk Treaty may have been affected by international law.79 They conclude amongst other things that: Use of the less descriptive wording “relevant factors” [included in a Joint Statement of April 2010] rather than the established concepts of “relevant or special circumstances” could suggest that the delimitation process has been different from that used in recent third party adjudications. In addition to international law, the two parties “have taken into account the progress achieved in the course of long-standing negotiations between the parties.” This formulation also suggests that non-legal factors may have been relevant and accorded weight in establishing the final delimitation line.80

Reaching more specific conclusions about the role of international law in arriving at the boundary contained in the Murmansk Treaty would require access to the records related to the negotiations. This should also allow assessing the role political Elferink, Does Recent Practice of the Russian Federation Point to an Arctic Sunset for the Sector Principle?, in: Suzanne Lalonde/Ted L. McDorman (eds.), The Arctic Ocean: Essays in Honour of Donat Pharand (2015), 269. 75 This figure is mentioned in Rolf E. Fife, Le Traité du 15 Septembre 2010 entre la Norvège et la Russie relatif à la délimitation et à la coopération maritime en Mer de Barents et dans l’Océan Arctique, Annuaire Français de Droit International 56 (2010), 399, 402. 76

Ibid., 407.

77

Arild Moe/Daniel Fjærtoft/Indra Øverland, Space and Timing: Why Was the Barents Sea Delimitation Dispute Resolved in 2010?, Polar Geography 34 (3) (2011), 145, 158. 78

Ibid.

79

Tore Henriksen/Geir Ulfstein, Maritime Delimitation in the Arctic: The Barents Sea Treaty, Ocean Developments and International Law 42 (2011) 1, 4. 80

Ibid., 6.

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considerations and economic factors played in the negotiations. It is clear from information in the public domain that the parties took care to argue their claims in the terms of international law and also took care to legitimise the outcome with reference to the law.81 The Russian Federation probably would have had more difficulty in credibly maintaining the position that the boundary had to be a sector line if a deviation from the equidistance line could not have been justified by reference to the applicable law – in particular, the configurations of the mainland coasts and the difference in length of the relevant coasts. Norway probably was faced to a much lesser extent with the issue how to ground its position in the law because of the central role of equidistance in the delimitation process, although this was less the case in the first decades of the negotiations, the start of which more or less coincided with the 1969 judgment of the ICJ in the North Sea Continental Shelf Cases.

B. The Case Law and International Law

In deciding cases, courts and tribunals are bound to apply the law – unless the parties to a dispute would instruct them to do otherwise. In the case of maritime delimitation disputes the application of the law to the individual case has posed particular challenges and there is a general perception that the law has been given its specific content by the judiciary. This is largely explained by the fact that States in negotiating multilateral conventions on the law of the sea were not able to agree upon detailed rules concerning the delimitation of maritime boundaries. The two Geneva Conventions refer to the equidistance/median line and allow for another boundary if this is justified or necessary because of special circumstances.82 The two Conventions neither define special circumstances nor do they indicate what kind of impact they should have on the equidistance/median line. For the territorial sea the UNCLOS repeats the Convention on the Territorial Sea and the Contiguous Zone, but for the continental shelf and exclusive economic zone it fails to provide substantive rules. The development of the law by the judiciary has been a far from linear process. The key issue in this respect has been the role of the equidistance method in the delimita81 82

See further Oude Elferink (note 74), 285–289.

Art. 12 Convention on the Territorial Sea and the Contiguous Zone; Art. 6 Convention on the Continental Shelf.

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tion process. While the ICJ in the North Sea Continental Shelf Cases, the first continental shelf delimitation cases decided in 1969, rejected any particular role for equidistance, starting in the 1980s the judiciary has gradually come around to the view that equidistance in principle always should be the starting point of the delimitation process.83 This trend towards greater predictability generally has been welcomed by legal scholarship. Already in 1989 Weil concluded: It is sometimes said that despite all the talk of law there is really nothing the judge cannot do. There is no doubt that certain trends in the case-law have invited this criticism. But the courts […] have made a good deal of progress and more is within reach.84

In a similar vein, Anderson argues that from the 1970s to the early 1990s the law was controversial, but nowadays is much more settled.85 On the other hand, Scobbie, writing in 2002, still argued that the indeterminacy of the law applicable to the delimitation of maritime boundaries made it difficult for States to ascertain what the outcome of a legal determination of their boundary would be.86 So, how determinate is the law of maritime delimitation really since the ICJ and arbitral tribunals consistently turned to the equidistance method as a provisional starting point in the early 2000s? There are quite a number of indications that the current standard delimitation methodology is not consistently applied and that delimitation to a large extent continues to be dominated by a case-by-case approach. First of all, although as a first step the equidistance line is in principle selected as the provisional delimitation line, courts and tribunals have taken great leeway in selecting 83

In first instance, this only concerned cases involving opposite coasts (see ICJ, Libya/Malta (note 61), para. 62). The ICJ had already recognised that this was the appropriate way of dealing with delimitations between opposite coasts in its judgment in ICJ, North Sea Continental Shelf Cases (note 42), para. 56. The judgment on the merits in Maritime Delimitation and Territorial Questions between Qatar and Bahrain was the first instance in which the Court applied the equidistance line as a provisional line between adjacent coasts, ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001, ICJ Reports 2001, 40, paras. 170 and 216–217. 84

Weil (note 67), 288.

85

Anderson, Negotiating (note 27), 125–126. For a similar view see e.g. Malcolm D. Evans, Maritime Boundary Delimitation: Where Do We Go From Here?, in: David Freestone/Richard Barnes/ David Ong (eds.) The Law of the Sea: Progress and Prospects (2006), 137, 160; Yoshifumi Tanaka, Reflections on Maritime Delimitation in the Cameroon/Nigeria Case, International and Comparative Law Quarterly 53 (2004), 369, 405. 86

Scobbie (note 67), 924.

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the basepoints for calculating that line. One practical explanation for that approach is readily apparent from the Black Sea Case87 – it allowed the ICJ to dodge answering the intensely pleaded and no doubt controversial point whether or not Ukraine’s Serpents’ Island was covered by the provision on rocks contained in Article 121 (3) UNCLOS. However, it can be questioned whether such practical considerations should be allowed to turn the determination of the equidistance line, which avowedly should be an objective exercise,88 into a process fraught with uncertainty. While in the Black Sea Case some justification might be said to exist to ignore a small isolated feature in determining a provisional equidistance line, a similar rationalisation was not present in two other recent cases. In Bangladesh/Myanmar, the International Tribunal for the Law of the Sea (ITLOS) in delimiting the maritime boundary up to the 200 nm limit of Myanmar determined that Bangladesh’s St. Martin’s Island should not be taken into account in establishing a provisional equidistance line.89 In view of the size and other characteristics of St. Martin’s Island there can be no doubt that the island is entitled to a 200 nm zone. The island measures some 6.5 km in length, has a surface area of some 8 km2 and 3,700 inhabitants. The Tribunal’s rejection of St. Martin’s Island as a basepoint for the provisional equidistance line was couched in language that rather was reminiscent of the jurisprudence in relation to the assessment of relevant circumstances than that concerning the selection of basepoints.90 In the second stage of determining this part of the maritime boundary the ITLOS adjusted its provisional equidistance line to account for the relevant circumstance that the concavity of Bangladesh’s coast meant that the provisional equidistance line led to “a cut-off effect on that coast requiring an adjustment of that line”.91 During this stage, the Tribunal also revisited St. Martin’s Island, posing the question whether the 87

ICJ, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, 61. 88 As the Court observed in the Black Sea Case, as a first step in effecting a delimitation it “will establish a provisional delimitation line, using methods that are geometrically objective and also appropriate for the geography of the area in which the delimitation is to take place”, ibid., para. 116. 89

ITLOS, Bangladesh/Myanmar (note 14), para. 265.

90

See ibid. To illustrate my point I refer the reader to the ICJ’s approach to the selection of basepoints and the assessment of islands as relevant circumstances in ICJ, Territorial and Maritime Dispute (note 59), paras. 202–204 and 215–216. 91

ITLOS, Bangladesh/Myanmar (note 14), para. 297.

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island should be considered a relevant circumstance requiring an adjustment of the provisional equidistance line,92 i.e. by giving full or limited weight to it. Considering the Tribunal’s treatment of St. Martin’s Island in the first stage of the delimitation, it should not come as a surprise that it was not considered to be a relevant circumstance requiring an adjustment of the provisional equidistance line.93 It is submitted that the Tribunal’s approach to St. Martin’s Island not only made the determination of the provisional equidistance line unnecessarily subjective, but also resulted in making the relation between the provisional equidistance line and the final boundary much more tenuous than was necessary. The Tribunal’s provisional equidistance line, which gives no effect to St. Martin’s Island, at its intersection with the 200 nm limit of Bangladesh is some tens of nautical miles distant from the Tribunal’s final boundary that was based on the consideration that the concavity of Bangladesh’s coast constituted a relevant circumstance. To the contrary, a provisional equidistance line giving full effect to St. Martin’s Island would only need to be shifted for a limited distance to take into account the concavity of Bangladesh’s coast and St. Martin’s Island as relevant circumstances to arrive at a final boundary similar to that of the Tribunal.94 In Peru v. Chile the ICJ determined that only the landward part of the maritime boundary had been established through the agreement of the parties.95 As a consequence, the remainder of the boundary up to the 200 nm limit had to be established by the Court. In this connection, the Court had to face the issue that the boundary that had been agreed between the parties was a line that departed radically from the equidistance line, raising the question how a provisional equidistance line would have to be linked to the pre-existing boundary, which ended at a point A. The Court’s approach cannot be qualified other than imaginative. For Chile the Court selected a basepoint near the starting point of the maritime boundary with Peru,96 which is a relevant basepoint for determining a strict equidistance line. If the Court would have 92

Ibid., para. 316.

93

For the conclusion of the ITLOS in this respect see ibid., para. 319.

94

These figures are based on a comparison of a number of figures included in the ITLOS’s judgment and the separate opinion of Judge Gao. 95

ICJ, Maritime Dispute (Peru v. Chile), Judgment of 27 January 2014, ICJ Reports 2014, 3, para. 198 (2) and (3). 96

Ibid., para. 185.

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chosen the relevant basepoints for Peru in the same way, the Court’s provisional equidistance line would only have connected to the previously agreed maritime boundary at its starting point. To link its provisional line to Point A of the agreed boundary the Court decided to ignore all Peruvian basepoints and territory that where closer to point A than the basepoint it had selected for Chile.97 In this way, the Court disregards a stretch of coast of Peru measuring some 230 km in length if measured by a straight line. The maximum width of the territory of Peru that lies behind this coast is almost 60 km.98 The only justification the Court provides for its approach is that it had to find a way to arrive at a line that started at point A of the previously agreed boundary.99 Notwithstanding its amputation of the Peruvian coast, the judgment has no hesitation to refer to the resulting line as a “provisional equidistance line”100 and to this part of the final boundary as “the line equidistant from the coasts of the Republic of Peru and the Republic of Chile”.101 That the above criticism of the Court is not merely a splitting of hairs is readily apparent from the alternative the Court could have adopted. That alternative would have consisted of the determination of a provisional equidistance line on the basis of the relevant basepoints along the coasts of Peru and Chile, which is in accordance with the Court’s own preferred methodology.102 In view of the geography of the relevant coasts, there does not seem to be any justification for disregarding any part of the baselines of either Chile or Peru. As was observed above, the resulting provisional equidistance line is a considerable distance from point A – the terminus of the previously agreed boundary. To connect the two lines the Court could have chosen to draw a line from point A to the provisional equidistance line.103 In this case the Court 97

Ibid. The approach of the Court is depicted in Sketch-map No. 3 included in the judgment.

98

To put this figure in perspective, the island of Jan Mayen, which was given partial effect by the Court in the Jan Mayen Case in relation to Greenland (ICJ, Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports 1993, 38), measured by a straight line measures some 53 km where it faces Greenland and the maximum width of Jan Mayen behind this coastline is some 15 km. 99

ICJ, Peru v. Chile (note 95), para. 185.

100

Ibid.

101

Ibid., para. 198 (4) (emphasis added).

102

See supra, note 88.

103

See also In the Matter of an Arbitration between Guyana and Suriname (Guyana, Suriname), Arbitral Award of 17 September 2007, para. 323, available at: http://www.pca-cpa.org/Guyana-Suriname %20Award70f6.pdf?fil_id=664 (accessed on 13 October 2015).

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would have had to determine the bearing of this connecting line, which avowedly would imply a margin of discretion. However, the resulting boundary established by the Court in this case would, apart from the connecting line to point A, have been an equidistance line that is measured from the baselines of both States. The Court’s socalled equidistance line sharply diverges from this line. Apart from these incompatibilities between the judiciary’s avowed delimitation methodology and the actual delimitation methodology applied by it, the recent case law also displays inconsistencies if different cases are compared. For instance, in Cameroon v. Nigeria, the ICJ considered that it was not appropriate to take into account the coast of a third State to determine whether Cameroon was situated at the back of a concave coast – a circumstance that would have justified the adjustment of a provisional equidistance line.104 On the other hand, the ITLOS in Bangladesh/ Myanmar observed: [T]he coast of Bangladesh, seen as a whole, is manifestly concave. In fact, Bangladesh’s coast has been portrayed as a classic example of a concave coast. In the North Sea cases, the Federal Republic of Germany specifically invoked the geographical situation of Bangladesh (then East Pakistan) to illustrate the effect of a concave coast on the equidistance line.105

Interestingly, another such “classic example of a concave coast”106 that was provided by Germany was the Gulf of Guinea,107 on which Cameroon, Equatorial Guinea, and Nigeria abut and it could be argued that the concavity in the case of Cameroon is even

104 ICJ, Cameroon v. Nigeria (note 66), paras. 296–301. For a criticism of the Court’s approach on this point see Oude Elferink (note 60), 629–630. 105

ITLOS, Bangladesh/Myanmar (note 14), para. 291 (emphasis added). Although the language of the Tribunal suggests that the concavity is only due to configuration of the coast of Bangladesh, it is obvious that without the presence of India and Myanmar this concavity would not negatively affect the extent of the maritime zones of Bangladesh. Equidistance gives Bangladesh a more limited area than the other two States because it is located in between them. That this certainly was the German view is apparent from Germany’s pleadings, which in this connection observe that “the equidistance method […] necessarily attributes undue weight to projecting parts of the coast”, ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Memorial submitted by the Government of the Federal Republic of Germany of 21 August 1967, ICJ Pleadings 1968, Vol. I, 13, para. 44. 106

The words “classic example of a concave coast” are those of the ITLOS, Bangladesh/Myanmar (note 14), para. 291, and are not to be found in the German Memorial. 107

See ICJ, North Sea Continental Shelf Cases, Memorial (note 105), 43.

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more marked than in the case of Bangladesh.108 One would be hard pressed if required to defend the consistency of the respective approaches of the ICJ and the ITLOS in these two cases.109 Another example of inconsistency between cases is provided by the Jan Mayen Case and Barbados v. Trinidad and Tobago. In these two cases, the ICJ and an arbitral tribunal respectively found that there was a disparity between the lengths of the relevant coasts of the parties that required the shifting of a provisional equidistance line.110 The ratios of the lengths of the relevant coasts in the two cases were very similar: either 9.2:1 or 9.1:1 for the coasts of Greenland and Jan Mayen and 1:8.2 for the coasts of Barbados and Trinidad and Tobago.111 However, the adjustment of the provisional equidistance line differed dramatically in both cases. The Court shifted that line throughout its length – the final boundary as determined by the Court measures some 600 km – and on average the shift was approximately 50 km.112 This results in an area of roughly 30,000 km2 between the provisional equidistance line

108 A measure to determine the amount of cut-off that results from applying the equidistance method could consist of comparing the length of the relevant coast of the State concerned and the length of equidistance boundaries. If the relevant coasts of Cameroon and Bangladesh as defined by respectively the ICJ and the ITLOS are compared to the distance from that coast to the equidistant tripoint between the States concerned, the ratio is more advantageous to Bangladesh than to Cameroon. For the definition of these relevant coasts see ICJ, Cameroon v. Nigeria (note 66), para. 291 and ITLOS, Bangladesh/Myanmar (note 14), para. 202, respectively. The ITLOS determined that the relevant coast of Bangladesh measured 413 km. If the relevant coast of Cameroon as determined by the Court is measured by two straight lines it measures approximately 80 km. The equidistant tripoint between Cameroon, Nigeria, and Equatorial Guinea is located approximately 28 nm from the baselines and for Bangladesh, India, and Myanmar this distance is approximately 163 nm. 109 The approach of the ITLOS to the delimitation between Bangladesh and Myanmar was subsequently adopted by the arbitral tribunal that had been seized of the delimitation dispute between Bangladesh and India (see The Bay of Bengal Maritime Boundary Arbitration (The People’s Republic of Bangladesh, The Republic of India), Arbitration Award of 7 July 2014, paras. 400–421, available at: http://www.pca-cpa.org/BD-IN%2020140707%20Award2890.pdf?fil_id=2705 (accessed on 15 October 2015)). 110 ICJ, Jan Mayen Case (note 98), paras. 67–68; Barbados v. Trinidad and Tobago (note 13), paras. 337–338. 111 Barbados v. Trinidad and Tobago (note 13), para. 352; ICJ, Jan Mayen Case (note 98), para. 61. In the case of Barbados and Trinidad and Tobago the Tribunal does not itself provide a figure but refers to the figure as provided by Trinidad and Tobago in its pleadings. 112 Figure mentioned in David H. Anderson, Denmark (Greenland)-Norway (Jan Mayen), in: Jonathan I. Charney/Lewis M. Alexander (eds.), International Maritime Boundaries, Vol. III (2004), 2507, 2508.

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and the final boundary.113 The Tribunal in Barbados v. Trinidad and Tobago only adjusted a part of the provisional equidistance line. While Trinidad and Tobago had requested that the equidistance line be adjusted from a point it referred to as A, which was located some 208 km from the intersection of the equidistance line with the bilateral boundary between Trinidad and Tobago and Venezuela, the Tribunal selected a different point that was approximately 55 km from this point of intersection.114 The area located between the equidistance line, the Tribunal’s final boundary, and the bilateral boundary between Trinidad and Tobago and Venezuela is some 4,500 km2. These figures imply that a very similar difference in coastal lengths led to a very dissimilar adjustment of the equidistance line. A couple of arguments might be advanced to explain the difference between the two cases away. For one thing, it might be submitted that the relevant maritime area in the two cases differs. However, that fact alone certainly cannot explain the difference in outcome. In the case of Jan Mayen and Greenland the final boundary determined by the ICJ divides the area of overlapping 200 nm entitlements in a ratio of approximately 3:1 to the advantage of Denmark/Greenland.115 In the case of Barbados and Trinidad and Tobago, the area between the provisional equidistance line and the boundary determined by the Tribunal only constitutes a minimal part of the area of overlapping 200 nm entitlements.116 Another argument that might be advanced to justify the difference between the two cases is the different coastal relationship between the parties to the two cases. In the case of Greenland and Jan Mayen this relationship is primarily characterised by oppositeness for the entire maritime boundary. This makes the difference in the length of the relevant coasts a relevant circumstance for the entire boundary. On the other hand, in the case of Barbados and Trinidad and Tobago only a part of the provisional equidistance line is located between opposite coasts, while for another part this concerns adjacent coasts. Only in the latter case does the marked disparity between 113

For a depiction of both lines see ibid., 2523 and ICJ, Jan Mayen Case (note 98), 80, Sketch-map

No. 2. 114 See Barbados v. Trinidad and Tobago (note 13), paras. 53 and 373 describing the location of these points. For a depiction of these points and the equidistance line see Sketch map VI included in the Award. Point A is identified as point 6 in this figure and the Tribunal’s point as point 10. 115 116

See Anderson (note 112), 2508.

Based on the author’s assessment. In addition, the boundary established by the Tribunal completely cuts off Trinidad and Tobago from the continental shelf beyond 200 nm.

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the coasts of the parties exist.117 The Tribunal adopted the following reasoning to justify the selection of the point on the provisional equidistance line beyond which it should take the difference in the length of relevant coasts into account. First, the Tribunal observes that “[t]here are no magic formulas for making such a determination and it is here that the Tribunal’s discretion must be exercised within the limits set out by the applicable law.”118 It then determines the specific point (point 10) as the point of intersection of the provisional equidistance line and a line between: 1) a point on the baseline of Trinidad and Tobago and 2) the point of intersection of Trinidad and Tobago’s 200 nm limit and its maritime boundary with Venezuela.119 According to the Tribunal “[t]his point gives effect to the presence of the coastal frontages of both the islands of Trinidad and of Tobago thus taking into account a circumstance which would otherwise be ignored by an unadjusted equidistance line”.120 Subsequently, the Tribunal used the line described above as the maritime boundary from point 10 to the 200 nm limit of Trinidad and Tobago.121 A number of things are remarkable about the Tribunal’s approach to determining the part of the provisional equidistance line that should be adjusted. First, there is no logical relationship between the coastal frontages of the islands of Trinidad and Tobago and the intersection of Trinidad and Tobago’s 200 nm limit with the maritime boundary with a third State. That point of intersection is determined by a single point on the baselines of Trinidad and Tobago and as a matter of fact does not say anything about the area into which the coastal fronts of the islands and Trinidad and Tobago project. Secondly, to determine the coastal relationship between Trinidad and Tobago and Barbados, it is necessary to look at the relevant coasts of both parties, not just one of them. Finally, it might be said that the Tribunal’s approach is not devoid of a certain irony. After observing that there are no magical formulas for determining the point beyond which the provisional equidistance line should be shifted,122 the Tribunal seems to engage in just that. The point selected by the Tribunal results in a boundary ending exactly at the 200 nm limit of Trinidad and Tobago, 117

See also Barbados v. Trinidad and Tobago (note 13), para. 372.

118

Ibid., para. 373.

119

Ibid.

120

Ibid.

121

Ibid., paras. 373–374.

122

Ibid., para. 373.

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while ignoring the existence of a continental shelf entitlement extending beyond that limit. As there are no compelling legal arguments for this approach – there rather are compelling arguments against it – one is left with the impression that the Tribunal was not prepared to face the legal complexities involved in the delimitation of the continental shelf beyond 200 nm. It is submitted that in view of the above arguments, the almost diametrically opposed outcomes of the Jan Mayen Case and Barbados v. Trinidad and Tobago cannot be explained away by the different circumstances of the two cases, but by a lack of consistency in applying the law.

IV. Conclusions Negotiations remain the preferred mode for settling maritime boundary disputes, but at the same time States continue to have recourse to adjudication. While some States repeatedly have had recourse to third-party dispute settlement, other States categorically reject this option. One measure of the extent of this opposition is provided by the fact that 25 States currently have used the option to exclude thirdparty settlement of their maritime boundaries by making a declaration under Article 298 UNCLOS. A number of explanations are available to explain this opposition. States may dislike the idea of having a body over which they have no control decide on their maritime boundaries. Secondly, States may be reluctant to accept third-party dispute settlement because of the uncertainty of the outcome of this process. Thirdly, a more powerful State may be reluctant to give up the greater bargaining power it has in dealing with a weaker neighbour. Finally, a State may be unwilling to test a claim that has dubious legal pedigree in court.123 On the other hand, adjudication also offers 123 An interesting example of a State withdrawing its consent to compulsory dispute settlement of maritime boundaries is provided by Australia, which amended its optional clause declaration under Art. 36 ICJ Statute and made a declaration under Art. 298 UNCLOS in 2002 (for a discussion see Gillian Triggs/Dean Bialek, Australia Withdraws Maritime Disputes from the Compulsory Jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea, International Journal for Marine and Coastal Law 17 (2002), 423). This step likely was intended to prevent Timor Leste from submitting the matter of the delimitation of their mutual boundary in the Timor Sea to a third party (ibid., 423). This boundary relation is among others characterised by a complex history, an Australian position on the location of the boundary that perhaps is difficult to square with the applicable law and the existence of a provisional arrangement for hydrocarbon development. All of these factors may have played a role leading up to Australia withdrawing its consent to compulsory dispute settlement of maritime boundaries.

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obvious advantages. It allows reaching a solution where negotiations are deadlocked and provides the justification that the outcome is mandated by international law and not a result of political bargaining. One significant development in relation to adjudication is an increase in the number of cases that are started by a unilateral application, while the number of cases that have been brought by a special agreement has dropped significantly. The availability of compulsory dispute settlement under the UNCLOS, which entered into force in 1994, has significantly contributed to the former development. As is argued in section II of this article, unilateral application poses a certain risk that the respondent may not accept the outcome of third-party dispute settlement. However, even in that case the claimant State may be better off as compared to a continued deadlock of negotiations. Negotiations are generally considered to offer more flexibility to the parties and greater control over the outcome. While this proposition no doubt is correct, this article argues that it should be realised that negotiated settlements – just like court cases do – in general will focus on arriving at a boundary and will pay limited attention to issues of transboundary cooperation. International law plays a significant role in negotiations and adjudication. Although this might even sound like an understatement in the latter case, the current article demonstrates that the application of the law by the judiciary continues to be characterised by inconsistencies and departures from the avowed general approach to delimitation.124 A number of explanations for this state of affairs may be tentatively formulated. Statements on the applicable law will invariably be formulated in the context of a specific case. That context may make a seemingly generally applicable

124 A commentary on a draft of this article suggested that the apparent contradiction in the case law might be explained through an in-depth analysis of the complex structure of equidistance-special circumstances and underlying principles. Having considered this argument carefully I find it unpersuasive. By way of example, the ICJ’s judgment in Peru v. Chile does not provide an explanation based in the law as to why it does not use the actual equidistance line as a starting point for the second part of the maritime boundary, but only relies on a practical consideration to justify an arbitrary provisional line that at best has a tenuous relation to the actual equidistance. As was set out above, the Court did have an alternative that would have been in accord with the three-stage approach to delimitation (see supra, text at notes 95 et seq.).

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rule inapplicable in a subsequent case that is characterised by a different context.125 Second, considerations which do not form part of the applicable law may play a role in arriving at a solution in a specific case.126 Third, the difference in composition of courts and tribunals may lead to a different assessment of how the law should be applied to the individual case.127 As is set out in section III. A., assessing the impact of international law on negotiations is much more difficult to gauge and is only really possible with full access to the negotiating record. A review of a couple of cases does indicate that States in negotiating maritime boundaries are operating in the context of a detailed set of legal rules and that in order to convince their negotiation partners that they are taking these rules seriously – and are not engaging in pure bargaining – they will have to come up with a reasoned justification as to why their position is in accordance with the law. A negotiating partner will be able to assess whether a proposal is in its view credible in this respect. This is not to say that bargaining does not take place – international law is only one of the factors that feed into the negotiation process and because of that the law operates in a much more complex environment in negotiations than in adjudication – but the existence of a legal framework puts limits on what States can credibly claim.

125 For an example in this respect see the critique of the ITLOS’s findings on the appropriateness of equidistance as a provisional delimitation line for the delimitation of the continental shelf beyond 200 nm in Bangladesh/Myanmar in Alex G. Oude Elferink, ITLOS’s Approach to the Delimitation of the Continental Shelf beyond 200 Nautical Miles in the Bangladesh/Myanmar Case: Theoretical and Practical Difficulties, in: Rüdiger Wolfrum/Maja Seršić/Trpimir Šošić (eds.), Contemporary Developments in International Law: Essays in Honor of Budislav Vukas (2015), 230. 126 127

For an example in this respect see Evans (note 85), 279.

This may both concern the individual members of a court or tribunal and the set-up of a court or tribunal. A standing court may want to put its mark on the law and come up with imaginative solutions (see also Oude Elferink (note 20), 244–245 and 325), while an ad-hoc tribunal is likely to first of all look for consensus, resulting in a compromise solution.

262 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 Table 1 – Maritime Delimitations Submitted to Compulsory Procedures entailing Binding Decisions128 A. Joint Submission 1. Grisbadarna Case (Norway/Sweden) BS: SA (1908) O: DM (1909)

2. North Sea Continental Shelf Case (Germany/ Netherlands) BS: SA (1967) O: DM (1969) 3. North Sea Continental Shelf Case (Germany/ Denmark) BS: SA (1967) O: DM (1969)

4. Case concerning the Delimitation of Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic BS: SA (1975) O: DM (1977) 5. Case concerning a Dispute between Argentina and Chile concerning the Beagle Channel BS: SA (1971) O: DM (1977)

B. Unilateral Submission 1. Aegean Sea Continental Shelf Case (Greece v. Turkey) BS: General Act for Pacific Settlement of International Disputes (1928) YA: 1976 O: AJ (1978) 2. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) BS: OC YA: 1988 O: DM (1993) 3. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) BS: OC YA: 1994 O: DM (2002) 4. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) BS: Pact of Bogotá and OC YA: 1999 O: DM (2007) 5. Territorial and Maritime Dispute (Nicaragua v. Colombia) BS: Pact of Bogotá YA: 2001 O: DM (2012)

6. Case concerning the Continental Shelf (Tunisia/ Libya) BS: SA (1977) O: DM (1982)

6. Maritime Delimitation in the Black Sea (Romania v. Ukraine)

7. Case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA)

7. In the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago (Barbados v. Trinidad and Tobago)

BS: SA (1979) O: DM (1984)

128

BS: Additional Agreement to the Treaty on the Relations of Good Neighbourliness and Co-operation (1997) YA: 2004 O: DM (2009)

BS: UNCLOS YA: 2004 O: DM (2006)

The table only lists cases between States and not between entities that form part of federal States. The table does not list incidental procedures unless these resulted in a discontinuation of the proceedings.

INTERNATIONAL LAW AND MARITIME BOUNDARIES 8. Case concerning the Continental Shelf (Libya/ Malta) BS: SA (1976) O: DM (1985) 9. Case concerning the Delimitation of the Maritime Boundary between Guinea and Guinea Bissau BS: SA (1983) O: DM (1985) 10. Case concerning the Delimitation of Maritime Boundary between Guinea Bissau and Senegal BS: SA (1985) O: DM (1989)

263

8. In the Matter of an Arbitration between Guyana and Suriname (Guyana v. Suriname) BS: UNCLOS YA: 2004 O: DM (2007) 9. Maritime Dispute (Peru v. Chile) BS: Pact of Bogotá (2008) YA: 2007 O: DM (2014) 10. Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal BS: UNCLOS129 YA: 2009 O: DM (2012)

11. Case concerning the Delimitation of Maritime Areas between Canada and France

11. In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India)

BS: SA (1989) O: DM (1992)

BS: UNCLOS YA: 2009 O: DM (2014)

12. Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain

12. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia)

BS: SA (1987/1990)130 O: DM (2001)

13. In the Matter of an Arbitration pursuant to an Agreement to Arbitrate dated 3 October 1996 between the Government of the State of Eritrea and the Government of the Republic of Yemen BS: SA (1996) O: DM (1999)

BS: Pact of Bogotá YA: 2013 O: Pending 13. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) BS: Pact of Bogotá YA: 2014 O: Pending

129 The case was initiated unilaterally by Bangladesh. The parties subsequently agreed to joint submission to the ITLOS. 130 The case was referred to the ICJ by an application of Qatar. However, the case is listed as a joint submission because, as was held by the ICJ in a judgment of 1 July 1994, by the terms of two international agreements of respectively 1987 and 1990 “the Parties had undertaken to submit to the Court the whole of the dispute between them”, ICJ, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction und Admissibility, Judgment of 1 July 1994, ICJ Reports 1994, 112, para. 41(2).

264 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 14. Territorial and Maritime Arbitration between Croatia and Slovenia

14. Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

BS: SA (2009) O: Pending

BS: OC YA: 2014 O: Pending 15. Dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana v. Ivory Coast)131 BS: UNCLOS YA: 2014 O: Pending

AJ: finding that there was no basis of jurisdiction; BS: basis of submission; DM: decision on the merits; O: outcome; OC: declarations under Article 36 (2) Statute of the ICJ; SA: agreement between the parties to submit the specific dispute; YA: year of application

131

The case was initiated unilaterally by Ghana. The parties subsequently agreed to joint submission to the ITLOS.

Decolonisation, State Succession, and a Formal Problem of International Public Law HARALD KLEINSCHMIDT(

ABSTRACT: Using the intertemporal approach to international law, the article examines the interconnectedness of legal theories of State succession with the political practice of decolonisation from the late 1940s to the early 1990s. It analyses the influence that these theories have had on the Vienna Convention of State Succession in Respect of Treaties of 1978. Specifically, it scrutinises treaties under international law establishing colonial rule c. 1900, in an effort to trace the continuing impacts that these treaties have had during colonialism and even in the post-colonial period. It reviews contending perceptions on the validity of these treaties, most of which have never been scrapped. The geographical focus is on Africa, while other parts of the world, such as Southeast Asia and the South Pacific, are also taken into consideration. Some political activists have taken treaties establishing colonial rule as the legal basis for their argument that many pre-colonial States have never been dissolved, as these instruments, as a rule, confirmed the sovereignty of treaty partners to the colonial powers. Hence, the lack of attention devoted to these treaties by legal theorists as well as political decision-makers during decolonisation processes has fomented demands for the restitution to sovereignty of pre-colonial States. However, the current focus on the pragmatics of controlling economic relations in the international arena deviates attention from the problem concerning the consequences of the processes of decolonisation. These processes often took place in conjunction with the destruction of pre-colonial States located on the territories which moved from colonial dependency to post-colonial sovereignty and subjecthood under international law. The article starts with an analysis of the legal principles that were applied on the decolonisation processes, moves on to a discussion of the then dominant theories of State succession as part and parcel of theories of international public law, then illustrates the empirical significance of pre-colonial States during decolonisation processes, describes two cases in which State successions were accompanied by State destructions in the context of decolonisation, and concludes with an assessment of the legal consequences and political burdens that have followed for the stability of the post-colonial States from the merging of decolonisation with State destruction as State succession. KEYWORDS: Bonny, Buganda, Decolonisation, State Succession, Treaties, Vienna Convention on State Succession

(

Professor emeritus, History of International Relations, Graduate School of Humanities and Social Sciences, University of Tsukuba (Japan).

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I. Decolonisation as State Succession and the European Public Law of Treaties Among States There were three legal procedures for post-colonial States of acquiring independence as equated with sovereignty and subjecthood under international law:1 through unilateral declaration by a colonial government, through treaty between the withdrawing colonial government and the government seeking independence, and through unilateral declaration of independence of a power holder hitherto in dependence under colonial rule. The first procedure was usually clad in government edicts or parliamentary acts. Both types of instruments had the formulary of acts of grace. They declared the independence of a new sovereign State as a subject under international law, which as a rule came into existence in conclusion of negotiations and often in consensus with more or less militant anti-colonial liberation movements, but always in accordance with the municipal law of the State whose government acted as colonial ruler, and without explicit confirmation by the nationals of the State acquiring independence. The legal and political system of the colonial government was, as a rule, imposed upon the post-colonial State. Post-colonial States emerging from British colonial rule were pressured to accept membership in the British Commonwealth of Nations, almost without exception,2 while, in cases of former French colonial dependencies, sovereignty was granted under the condition of the acceptance of membership in the Communauté Française, which, however, existed only for little more than a year.3 For both communities, structured as associations of States, a special law was seen as in force, regulating relations among member States inter se, placed 1 For a summary see Humphrey Waldock, Fifth Report on Succession of States and Governments in Respect of Treaties, Yearbook of the International Law Commission (ILC Yearbook) (1972, Vol. II), 1, 16. 2

Daniel Patrick O’Connell, Independence and Problems of State Succession, in: William V. O’Brien (ed.), The New Nations in International Law and Diplomacy (= The Yearbook of World Polity 3) (1965), 7, 13–26; Karl Zemanek, State Succession after Decolonization, Recueil des Cours (RdC) 116 (1965-III), 181, 191. 3

Albert Bleckmann, Das französische Kolonialreich und die Gründung von Staaten: Die Rechtsentwicklung in Syrien/Libanon, Indochina und Schwarzafrika (1969), 392; Daniel Patrick O’Connell, Independence and Succession to Treaties, British Yearbook of International Law (BYIL) 38 (1962), 84, 109; id., State Succession in Municipal and International Law, Vol. 1 (1967), 58–88; Rainer Tetzlaff, Das Dekolonisationsparadox: Nationaler Souveränitätsgewinn bei zunehmender internationaler Interdependenz, in: id./Ulf Engel/Andreas Metzler (eds.), Afrika zwischen Staatsversagen und Demokratisierung (1995), 47, 62; Zemanek (note 2), 193.

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between international and municipal law and emerging from legislative institutions in France and the United Kingdom (UK).4 In most cases, this decolonisation procedure was implemented in such a way as to devolve legislative, executive, adjudicative, and administrative institutions from the colonial centres to the former colonial dependencies.5 Prototypes of this frequently applied procedure of acquiring independence through acts of grace are the proclamation of the independence of the Philippines through an edict in the name of United States (US) President Harry S. Truman on 4 July 1946, after the territory had existed as a “self-governing Commonwealth” since the enforcement of the US “Philippine Independence Act” on 24 March 1934,6 and the change of status of British India through the “Indian Independence Act” of 15 August 1947 from a “part of Her Majesty’s dominions”, which had, under British rule, been a member of the League of Nations and became one of the founding members of the United Nations (UN), into a Commonwealth “Dominion”.7 In these and numerous further cases, colonial institutions of rule acquired sovereignty and subjecthood under international law. The second procedure was enacted much more rarely, as it rested upon the existence of specific political circumstances, essentially the availability of an institution of government holding legitimacy to acquire independence. Because, however, such an institution of government could not, prior to the accomplishment of independence,

4

Alfred Lord Milner, Questions of the Hour (1923), 172 et seq.; O’Connell (note 2), 34–40.

5

International Law Commission (ILC), Draft Articles on Succession of States in Respect of Treaties, ILC Yearbook (1972, Vol. II), 230, 250; Francis Vallat, First Report on Succession of States in Respect of Treaties, ILC Yearbook (1974, Vol. II, Part 1), 1, 39–64; Art. 2 (f) Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, UNTS 1946, 3; also in: Andreas Zimmermann, Staatennachfolge in völkerrechtliche Verträge (2000), 866. 6 7

Konrad G. Bühler, State Succession and Membership in International Organizations (2001), 37–42.

Ibid., 42–50; Erik Castrén, Aspects récents de la succession d’états, RdC 78 (1951-I), 379, 424–429; J. Mervyn Jones, State Succession in the Matter of Treaties, BYIL 24 (1947), 360, 370; Arnold Duncan McNair, The Law of Treaties (2nd ed. 1961), 648–650; Daniel Patrick O’Connell, The British Commonwealth and State Succession after the Second World War, BYIL 26 (1949), 454; id., Independence (note 3), 97 et seq; id., State Succession (note 3), Vol. 1, 7 et seq., Vol. 2, 127–131; T. T. Poulose, Succession in International Law: A Study of India, Pakistan, Ceylon and Burma (1974), 11–91; Michael Godeau Robles, Völkerrechtliche Probleme der bei Gewährung der Unabhängigkeit abgeschlossenen Verträge, LLD Thesis, University of Munich (1969), 109–131; Karl Zemanek, Gegenwärtige Fragen der Staatensukzession, Berichte der Deutschen Gesellschaft für Völkerrecht (BDGV) 5 (1964), 56, 60; id. (note 2), 191.

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have the status of a subject under international law,8 it was, in strict terms, not fully capable of entering into treaties, seeming to require approval by the colonial government for the conclusion of any binding legal instrument under international law.9 Consequently, a convention between legal equals could not possibly come into existence, as long as some form of colonial suzerainty prevailed, allowing the colonial government to act as the dependency’s legal representative in the international arena. Formal independence treaties could, therefore, only enter into force when the colonial government treated the dependency as if it was an independent State already. In doing so, the colonial government would have to anticipate the legal situation which was to come about through the treaty to be concluded. As a rule, colonial governments were willing to take that step only in the rare cases, in which autonomy and self-government privileges had been granted to an extent that appeared to warrant the treatment of the dependency as an independent State. The treaty then served the sole purpose of declaring independence in terms of international law. The colonial governments took for granted that they alone had the privilege of determining whether or not these circumstances were given. The prototypes of this legal procedure were the making of the British-Malay devolution treaty of 1957 in conjunction with the British Malay exchange of notes of 196310 and the exchange of notes between Tonga and the UK of 1970.11 In these and several other cases, the practice of the making of independence treaties included the enforcement of new constitutions for the postcolonial States. The third procedure was exceedingly rare and its status as a legal act has been controversial. This has been so because the unilateral declaration of independence by a ruling agency, not recognised as a subject under international law, can neither be based on municipal law, as there is no State as a legal subject, nor on positive interna8

Philip John Noel-Baker, The Present Juridical Status of the British Dominions in International Law (1929), 343; O’Connell, Independence (note 3), 113–118; Anthony Paul Lester, State Succession to Treaties in the Commonwealth: A Rejoinder, International and Comparative Law Quarterly (ICLQ) 14 (1965), 262, 263. 9 Oliver James Lissitzyn, Territorial Entities Other than Independent States in the Law of Treaties, RdC 125 (1968-III), 1, 17 et seq. 10

Werner Morvay, Souveränitätsübergang und Rechtskontinuität im Britischen Commonwealth: Ein Beitrag zur Lehre von der Staatensukzession (1974), 22–24; O’Connell, State Succession (note 3), Vol. 1, 114 et seq.; Robles (note 7), 68–86; McNair (note 7), 650 et seq. 11

Morvay (note 10), 22–24.

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tional law but only on the natural law of resistance against purportedly unjust laws.12 Usually, such acts count as rebellions according to the municipal law governing the State and, if they succeed, they are categorised as secession. Commonly, when such rebellions failed, their protagonists were sanctioned with harsh measures that could include genocide.13 In a few cases, however, the colonial government recognised the secession act ex post or tolerated the rebellious ruling agency. For example, the British government, as holder of the UN mandate over Palestine, accepted the unilateral declaration of independence by the government of Israel in 1948, in defiance of UN General Assembly Resolution 181 of 29 November 1947, which had demanded the division of Palestine into two States.14 In 1965, the British government tolerated the unilateral change of the British Protectorate government over South Rhodesia into the minority government of a new State under immigrant settler control, without, however, recognising the State, and left armed resistance against the minority government to the anti-colonial liberation movements active in Southern Africa. In this case, the State of Zimbabwe acquired independence according to the first procedure through an act of grace by the British legislator in 1980. All three decolonisation procedures feature the well-known commonality that they entailed the transfer of sovereignty and subjecthood under international law upon those institutions of governance that the colonial governments had left behind. That meant that the anti-colonial liberation movements took over institutions of governance that they had fought against as long as colonial rule had prevailed.15 This 12

Thus already: Gustav Radbruch, Gesetzliches Unrecht und übergesetzliches Recht, Süddeutsche Juristen-Zeitung 1 (1946), 105 (reprinted in: id., Gesamtausgabe, edited by Winfried Hassemer, Vol. 3 (1993), 83). 13

Gesine Krüger, Kriegsbewältigung und Geschichtsbewußtsein: Realität, Deutung und Verarbeitung des deutschen Kolonialkrieges in Namibia 1904–1907 (1999); Jürgen Zimmerer, Krieg, KZ und Völkermord in Südwestafrika: Der erste deutsche Genozid, in: id./Joachim Zeller (eds.), Völkermord in Deutsch-Südwestafrika: Der Kolonialkrieg (1904–1908) in Namibia und seine Folgen (2003), 45; id., Colonial Genocide: The Herero and Nama War (1904–1908) in German South West Africa and Its Significance, in: Dan Stone (ed.), The Historiography of Genocide (2004), 323. 14 15

Castrén (note 7), 424–429; O’Connell, State Succession (note 3), Vol. 2, 155 et seq.

Cheikh Anta Babou, Decolonization or National Liberation: Debating the End of British Rule in Africa, Annals of the American Academy of Political and Social Science 632 (2010), 41; Henning Melber, Southern African Liberation Movements as Governments and Its Limits to Liberation, Review of African Political Economy 36 (2009), 451; Daniel Patrick O’Connell, Recent Problems of State Succession in Relation to New States, RdC 130 (1970-II), 95, 124 et seq.; Vrushali Patil, Negotiating Decolonization in the United Nations: Politics of Space, Identity and International Community (2012).

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consequence came about even in those cases in which, such as in Angola, GuineaBissau, Mozambique, Zimbabwe, or Namibia, anti-colonial resistance had taken the form of protracted warfare. Thus, decolonisation took place as State succession in such a way that anti-colonial liberation movements turned into holders of governing competences in colonial institutions of rule. The departing colonial governments purposefully tied their agreement on the implementation of State succession to the condition that constitutional and municipal law, the modalities of legislation, executive government, and adjudication as well as further regulations concerning civil and criminal law as well as administrative practice would be transferred from the colonial centre to the post-colonial State. In by far the largest number of decolonisation processes, the procedure involved the explicit denial of the restitution of pre-colonial States, even when that restitution was formally requested.16 Like political decision-makers, theorists refused to recognise pre-colonial States as such,17 denied citizenship to the resident populations under colonial rule,18 and classed them as ‘ethnic’ groups, whose areas of habitation were allegedly exempted from the application of international legal norms.19 In the view of theorists, then, decolonisation implied the recognition of statehood, sovereignty, and subjecthood under international law solely to the governing institutions that the colonial governments had left behind.20 This position helped burdening anti-colonial liberation movements with the tasks of uniting into the post-colonial States population groups with diverse ‘ethnic’ collective identities and of defending the new State institutions against opposition from members of those groups, which had demanded the restitution of pre-colonial States.21 In some cases, pre-colonial States had been destroyed in the course of the establishment of colonial rule, such as the Kingdom of Kandy in Sri Lanka, which fell under British rule 16

As in the case of Buganda in East Africa. See A Memorandum to Her Majesty Queen Elizabeth II. Submitted by Members of the Lukiiko of the Kingdom of Buganda (1960), in: David Ernest Apter, The Political Kingdom in Uganda (1961), 479–488; also in: Donald Anthony Low, The Mind of Buganda (1971), 203–210. 17

McNair (note 7), 600.

18

Art. 2 Montevideo Convention on the Rights and Duties of States, 26 December 1933, LNTS 165, 19. 19

Jean-François Bayart, The State in Africa: The Politics of the Belly (1993), 41 et seq.

20

Lissitzyn (note 9), 17–18.

21

Audrey Isabel Richards, Constitutional Problems in Uganda, Political Quarterly 33 (1962), 360; ead., Traditional Values and Current Political Behaviour, in: Lloyd Ashton Fallers (ed.), The King’s Men (1964), 294.

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in 1815,22 or the Kingdom of Ashanti, which the British government annexed after the deportation of Asantehene Prempeh I in 1895 and a military defeat of the Ashanti army in 1900.23 But in most other cases, no formal acts of State destruction occurred. For one, the French government, during its assumption of a protectorate over the Kingdom of Madagascar in 1895, did not formally annex the State. Instead, it declared null and void all existing treaties between Madagascar and third parties and, against resistance from the side of the British government, barred the government of the State from maintaining international relations at its own discretion.24 Hence, the Kingdom of Madagascar formally remained in existence as a State, whose sovereignty had not fomally been scrapped. In the same vein, pre-colonial States continued to exist in many other colonial dependencies according to the European public international law of treaties among States, as it had evolved in the course of the 19th century. This was so because hundreds of bilateral agreements had been made out between European governments and governments of States in Africa, West, South, and Southeast Asia as well as the South Pacific. According to the European public treaty law, these agreements implied the mutual recognition of the sovereign equality of the treaty partners.25 As many of these treaties had been written out indefinitely, they continued to be in force, unless they were renegotiated under consensus or scrapped unilaterally. But colonial governments, such as France in the case of Madagascar, chose the latter 22 Treaty Kandy – United Kingdom (UK), 2 March 1815, in: Clive Parry (ed.), The Consolidated Treaty Series (CTS) 63 (1969), 484. 23

See infra, notes 69–75.

24

Treaty France – Madagascar, 1 October 1895, CTS 182 (1981), 74; UK, Instruction by the British Government for Its Ambassador in France, 9 July 1898, Parliamentary Papers, Vol. 109 (C. 9091) (1899), 782; also in: Daniel Patrick O’Connell, The Law of State Succession (1956), 20. The Queen of Madagasacar officially transferred the treaty into Madagascan State law, CTS 182 (1981), 275. On Madagascar see Daniel Bardonnet, La succession aux traités à Madagascar, Annuaire français de droit international 12 (1966), 593; id., La succession d’états à Madagascar (1970), 21–316; Jean Fremigacci, Madagascar, in: Willem Pieter Blockmans/Jorge Borges de Macedo/Jean-Philippe Genet (eds.), The Heritage of the Pre-Industrial European State: The Origins of the Modern State in Europe (1996), 89; id., Etat, économie et société colonial à Madagascar: De la fin du XIXe siècle aux années 1940 (2014); O’Connell (note 24), 18–21; id., State Succession (note 3), Vol. 2, 31–34; Zimmermann (note 5), 137. Throughout the text, I use the word ‘protectorate’ in its various late 19th- and early 20th-century technical meanings denoting types of dependencies under the control of European and the US governments in Africa, West, South, and Southeast Asia as well as the South Pacific (see infra, note 62). This usage should not be read as indicating that this is my own word. 25

Henry Wheaton, Elements of International Law (2nd ed. of the ed. by William Beach Lawrence 1863), 317. Similarly still: McNair (note 7), 116–118; Edward Hertslet, The Map of Africa by Treaty (3rd ed. 1909), lists 392 treaties, known to him from British Foreign Office records.

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procedure usually with regard to agreements that had been concluded between a precolonial State and a third party. By contrast, specifically all those treaties establishing so-called protectorates, which had, in fact, been concluded for the purpose of establishing colonial rule, remained in force as long as colonial rule lasted, so as to serve as its legal base. The implication was that States in Africa, West, South, and Southeast Asia as well as the South Pacific formally continued to exist, as long as protectorateestablishing treaties were valid. Hence, the principle remained in force which Chief Justice John Marshall had pronounced in a US Supreme Court decision on Native American States already in 1831. The Court had then ruled that Native Americans had not acquired their States from some revocable privilege but from natural law and that, by consequence, no one could deprive Native Americans legally of their States.26 At the turn towards the 20th centu-ry, that principle implied that there were hundreds of States located in territories under European colonial and US rule in existence according to the European public law of treaties among States.27 Therefore, it is not possible to categorise governments of continuing pre-colonial States simply as “subjects” of some European colonial government.28 Instead, the framework of European public law of treaties provided the platform on which governments of pre-colonial States could continue to perceive of themselves as sovereigns even under colonial rule. Eventually however, only very few pre-colonial States were restored during decolonisation processes, specifically in 26

US Supreme Court, Samuel Arthur Worcester v. State of Georgia, 31. U.S. (15 Peters) 15 (1832), available via: http:// caselaw.lp.findlaw.com/scripts/getca (accessed on 22 March 2014); printed in: Jill Norgreen, The Cherokees: Two Landmark Federal Decisions in the Fight for Sovereignty (2004), 170. On their website, The Cherokee Nation, The Official Website of the Cherokee Nation, Oklahoma, USA, available via: http://www.cherokee.org/ (accessed on 22 February 2014), the Cherokee insist that their State has never been dissolved, although they were expelled from their traditional homelands on the territory of the US State of Georgia in 1838. This position is based on several treaties under international law, which the US government signed with the Cherokee between 1785 and 1816: Treaty Cherokee – USA, Hopewell, 28 November 1785, CTS 49 (1969), 443; Treaty Cherokee – USA, Holston, 2 July 1791, CTS 51 (1969), 169; Treaty Cherokee – USA, 2 October 1798, CTS 54 (1969), 295; Treaty Cherokee – USA, 7 January 1806, CTS 58 (1969), 373; Treaty Cherokee – USA, 14 September 1816,CTS 66 (1969), 326; Treaty Cherokee – USA, 14 February 1833, CTS 83 (1969), 174; Treaty Chero-kee – USA, New Echota, 29 December 1835, CTS 85 (1969), 410. 27

Helmut Bley, Die Auswirkungen der Kolonialherrschaft in Afrika, in: Renate Nestvogel/Rainer Tetzlaff (eds.), Afrika und der deutsche Kolonialismus: Zivilisierung zwischen Schnapshandel und Bibelstunde (1987), 183, 189; Yilma Makonnen, State Succession in Africa: Selected Problems, RdC 200 (1986-V), 93, 118. 28

Wolfgang Reinhard, Geschichte der Staatsgewalt (1999), 500.

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Burundi, Lesotho, Rwanda, and Swaziland, with some restrictions in Madagascar, in Africa, and in Fiji and Tonga within the South Pacific. By contrast, in most cases, decolonisation entailed not only the allocation of sovereignty and subjecthood to colonial institutions of government but also, and in conjunction, the tacit destruction of pre-colonial States by implication.29 As a rule, then, decolonisation processes, or-chestrated as State successions, prolonged the injustice of colonial rule beyond independence. Another formality further complicated decolonisation processes. The protectorate-establishing agreements, having confirmed the sovereignty of the pre-colonial States under international law, were written out indefinitely, and theorists of international law rejected the unilateral cancellation of valid treaties as a legitimate procedure.30 None of them was actually declared void by a formal act in the course of decolonisation processes. Even retrospective critical legal assessments of decolonisation processes have failed to attribute the mandated significance to the basic problem that there has been no case in which the establishment of a post-colonial State through succession from colonial institutions of governance was accompanied by a binding agreement, arising from consensus between a colonial government and the 29 Even though evidence showing the recognition of pre-colonial States under colonial rule has long been discussed in the relevant literature. See Hersch Lauterpacht, Recognition in International Law (1947), 49 et seq.; Morvay (note 10), 22–24; Waldock (note 1), 8 et seq. During consultations in the ILC in 1968, the delegate from Sri Lanka argued the theory that Sri Lanka had continued to exist as an original State and, upon acquiring independence, had been restored as a subject under international law. However, in 1968, this was a retrospective interpretation, not a current demand for the recognition of the existence as a State for the period when Sri Lanka stood under British colonial rule. For the case see Charles Henry Alexandrowicz, New and Original States: The Issue of Reversion to Sovereignty, International Affairs 47 (1969), 465, 465 et seq. However, in political-science literature, including critical ‘postcolonial studies’, State destruction as a corollary of decolonisation has been overlooked, among others in Joy Asongazoh Alemazung, Post-Colonial Colonialism: An Analysis of International Factors and Actors Marring African Socio-Economic and Political Development, Journal of Pan-African Studies 3 (2010), 62; Robert G. Blanton/T. David Mason/Brian Athow, Colonial Style and Post-Colonial Conflict in Africa, Journal of Peace Research 38 (2001), 473; John L. Comaroff, Governmentality, Materiality, Legality, Modernity: On the Colonial State in Africa, in: Jan-Georg Deutsch/Peter Probst/Heike Schmidt (eds.), African Modernities (2002), 107; Frederick Cooper, Postcolonial Studies and the Study of History, in: Ania Loomba (ed.), Postcolonial Studies and Beyond (2006), 401; Ania Loomba, Colonialism/Postcolonialism (1998), 1–56. 30 Travers Twiss, The Law of Nations Considered as Independent Political Communities, Vol. 1 (1861), 11. Even during its prevailing colonial rule, the British government entered into a treaty with Bunyoro under international law, regulating the conditions of dependence: Treaty Bunyoro – UK, 23 October 1933, in: Neville Turton/John Bowes Griffin/Arthur W. Lewey (eds.), Laws of the Uganda Protectorate, Vol. 6 (1936), 1412.

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government of a post-colonial State, about the status of treaties binding pre-colonial States. Hence, the odd situation has persisted that these treaties have continued to exist in force, essentially until now, even though they cannot have any legal consequences any longer. In this capacity, they can not only become the source of rhetoric in favour of the revision of colonial borders but, more fundamentally, may serve as the platform for revisionist strategies pursuing the restitution of pre-colonial States, and in some cases they are already doing so.31 A remedy of the situation is difficult, because the enforcement of stipulations relating to the status of these treaties would require the restitution of the pre-colonial States as subjects under international law at the expense of the destruction of the post-colonial States. This, for obvious reasons, is not a viable solution. The main argument of the article is that legal defects of the decolonisation procedure have ushered in a lasting problem of international public law and that this problem has the capacity of seriously undermining the stability of post-colonial States.

II. Theories of State Succession A. The Concept of Inheritance

Against the thrust of this argument, theorists of decolonisation have postulated that the use of State succession as the main procedure for orchestrating decolonisation has been beneficial for “newly independent States”, purportedly as a means of assuring “self-determination”.32 Moreover, theorists have treated State succession as a novel concept pertaining to the 20th century.33 But both propositions are untenable. Instead, the accomplishment of “self-determination” subsequent to decolonisation is far from evident, and 19th-, not 20th-century theorists of State succession were responsible for the genesis of the problems arising from the equation of decolonisation with State succession from colonial governing institutions and the lack of 31

See infra, notes 88, 161.

32

Zimmermann (note 5), 23–24.

33

O’Connell (note 24), Vol. 1, 3–8. Throughout the text I use the words ‘inherit’ and ‘inheritance’ as well as the phrase ‘newly independent State’ according to their definition in the international law literature since the 1960s. This usage should not be read as suggesting that these words and this phrase are my own.

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attention towards the legal status of binding protectorate-establishing treaties.34 During the 19th century, theorists redefined the previous, essentially Grotian concept of State succession. Hugo Grotius would define State succession simply in terms either of the making of real unions or secessions as types of transformations of indigenates. He regarded the universal continuation of rights and obligations as a matter of course and took for granted that, in cases of secessions, the previous commonly owned public property would either be administered jointly or divided proportionately among the succeeding parties.35 For Grotius, these principles followed from the basic norm pacta sunt servanda, as enshrined in natural law. Yet, for the numerous and multifarious cases of State succession, which came to be enacted from the end of the 18th century with widely divergent consequences for existing and newly establishing States, such simple principles were hardly applicable, even though Grotian universalism continued to be transmitted well into the second half of the 19th century as an element of international legal theory.36 Because 19th-century State succession processes displayed features ranging far beyond the Grotian principles and entailed deep transformations of collective 34 The legacy of the 19th century has been noticed in the relevant research literature. See Lucius Caflisch, The Law of State Succession: Theoretical Observations, Netherlands International Law Review (1963), 337; Arrigo Cavaglieri, La dottrina della successione di stato a stato e il suo valore giuridica (1910), 5–59; Emilio Gabba, Quistioni di diritto civile, Part X: Successione di stato a stato (2nd ed. 1885), 365; Paul Guggenheim, Beiträge zur völkerrechtlichen Lehre vom Staatenwechsel: Versuch theoretischer Grundlegung unter Hinzuziehung neuerer Staatenpraxis (1925), 29; Amos Shartle Hershey, The Succession of States, American Journal of International Law (AJIL) 5 (1911), 285, 287; Max Huber, Die Staatensuccession: Völkerrechtliche und staatsrechtliche Praxis im XIX. Jahrhundert (1898), 152; Clarence Wilfred Jenks, State Succession in Respect of Law-Making Treaties, BYIL (1952), 105–144, 111–114, 126; Marco G. Marcoff, Accession à l’indépendance et succession d’états aux traités internationaux (1969), 14–35, 48–70. 35

Hugo Grotius, De jure belli ac pacis libri tres (1913), Book II, Chap. 9, nr 9, 10. A stand against universalism was taken by Emer[ich] de Vattel, Le droit des gens ou Principes de la loi naturelle appliquées à la conduite et aux affairs des Nations et des Souverains (1758), 410 et seq. On this theory see O’Connell, State Succession (note 3), Vol. 1, 9 et seq.; Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500– 2000 (2014), 125–170. 36 John Adams, [Letter to Everett, 10 August 1816], in: American State Papers, Foreign Relations, Vol. 5, 603; also in: Herbert Arnold Wilkinson, The American Doctrine of State Succession (1934), 97 et seq.; Johann Caspar Bluntschli, Das moderne Völkerrecht der civilisierten Staten (1868), 75–82; Hershey (note 34), 285; Wilkinson (note 36), 97–116. However, Wheaton (note 25, original ed. 1836), 191, already insisted: “Treaties […] even if perpetual in terms expire of course 1. in case either of the contracting parties loses its existence as an independent state.” Hence, Wheaton took for granted that, in cases of State succession, no treaties were to be inherited.

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identities of large population groups, Grotian theory did not then provide for categories in accordance with which new norms for the regulation of State succession processes might have been formulated. Therefore, these processes were handled pragmatically and ad hoc, without reflection about their fundamental implications. Only specific occasions produced normative statements, such as those enshrined in the US Supreme Court decision in the Johnson v. M’Intosh case of 1823. In its decision about the fundamentals of the US law of landed property, the Court ruled in this year that the United States of America (USA) had succeeded to the Royal Proclamation that had been issued in the name of King George III in 1763. Through this proclamation, the King had unilaterally established a “Protectorate” over some Native American groups in the eastern part of North America, thereby ignoring existing valid bilateral treaties that had been concluded under international law between British and French government representatives, on the one side, and, on the other, Native American State representatives.37 The Court ruled in 1823 that the Royal Proclamation was a valid legal instrument for the regulation of relations between Native Americans and the US government, and concluded that, on principle, only the US government could purchase land from Native Americans for redistribution among settlers, not private individuals.38 Accordingly, the revolutionary Declaration of Independence had been an act of State succession and had not ruled out the continuing validity of pre-revolutionary law. The Court rule, thus, remained within the confines of Grotian universalism. The new concept of State succession achieved prominence towards the end of the 19th century. It was defined as “succession = substitution + continuation”, that meant the replacement of one State by another under partial continuity of rights and obligations from the predecessor to the succeeding State.39 The concept enshrined the formation of new States through extralegal secession from existing States,40 the 37 Treaty Massachusetts Colony – Narragansett, Boston, 22 October 1636, in: The Journal of John Winthrop, 1630–1649: Abridged Edition, edited by Richard S. Dunn/Laetitia Yeandle (1996), 104 et seq.; UK, A Proclamation [in the name of King George III, Single Sheet, 7 October 1763] (1763), in: Clarence S. Brigham (ed.), British Royal Proclamations Relating to America, 1603–1783 (1911), 215. 38 US Supreme Court, Johnson v. M’Intosh, 21 U.S (8 Wheat) 543 (1823), available via: http:// supreme.justitia.com/cases/federal/us/21/543 (accessed on 11 January 2016). 39

Huber (note 34), 18; Hershey (note 34), 285.

40

Walter Schönborn, Staatensukzession (1913), 67.

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inclusion of smaller States into larger ones, and the fusion of States into new unions as well as the reversion of the latter two processes.41 Hence, theorists conceived of State succession as a process by which new States or new unions of existing States “started their international life”42 from previous States, whereby the latter might have been completely destroyed or “lived” on in reduced size. Scottish legal theorist and Sanskrit philologist Arthur Berriedale Keith specified the demand that, in these cases, the destroyer, whom he imagined as a conqueror, would be bound to take over all legal rights but did not have to follow any legal obligations.43 The metaphorical rhetoric of birth remained fashionable in succession theory until the 1970s and served as manifestation for the expectation that succession was identical with the generation of new States from older ones. There was thus continuity in succession theory from the late 19th century to the decolonisation period. Thus, the argument is untenable that seemingly fundamental transformations of international legal theory and State practice since World War I should have stood against the use in post-World War II succession theory of assets of 19th-century thought.44 From the 19th century, succession theory has been focused on the question of whether existing treaties under international law could remain valid under conditions of State succession. Doubts became vocal against the Grotian assumption of the continuing validity of legal instruments beyond State succession already at the end of the 19th century.45 By the 1930s, these doubts formed the platform for the general argument that post-colonial States, when “starting their new international life”, should not be tied by existing treaties, when they appeared to have been established from scratch in areas where previously no States seemed to have existed at all. Theorists of State succesion cited Liberia and the Congo Free State as examples. In both cases, 41

Hershey (note 34), 285.

42

This phrase was used by, among others, McNair (note 7), 600.

43

Arthur Berriedale Keith, The Theory of State Succession: With Special Reference to English and Colonial Law (1907), 17, 19, 20. 44

McNair (note 7), 600; Humphrey Waldock, Fourth Report on Succession of States and Governments in Respect of Treaties, ILC Yearbook (1971, Vol. II), 143, 146. For lines of continuity of international legal theory during the 19th and 20th centuries see Martti Antero Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2002), 179–351; Michael P. Marks, Metaphors in International Relations Theory (2011), 47–51. 45

S. Kiatibian, Conséquences juridiques des transformations territoriales des états sur les traités, LLD Thesis, University of Paris (1892), 35; Keith (note 43), 17.

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however, theorists wrongly assumed that there had been no States before Liberia came into existence in the 1840s and the Congo Free State during the 1880s, thereby ignoring the existence of such old States as those of the Malinke and Bakongo. In the case of the Congo Free State, theorists even approved of King Leopold II’s privately funded mechanism for the suppression and exploitation of African populations.46 In most other cases, in which colonial governments had initially not intended to convert their protectorates into States, theorists retrospectively equipped colonial dependencies with statehood, which was then to be devolved upon the post-colonial States, and opined that these States should be bound by treaties, which colonial governments had previously concluded. Hence, according to this doctrine, post-colonial States were to be tied to their colonial predecessor institutions, from which they were made to inherit the continuing validity of treaties relating to the territory of the post-colonial States. The principle of inheritance was to cover not only multilateral conventions such as the Universal Postal Union and General Agreement on Tariffs and Trade (GATT), to which colonial governments had acceded on behalf of their dependencies, but also bilateral instruments on the exchange of usufruct rights among colonial governments relating to their dependencies, such as between Belgium and the UK about East Africa. However, the doctrine was not to apply to protectorate-establishing treaties of the late 19th and early 20th centuries because pre-colonial States appeared to have ceased to exist in consequence of the estblishment of colonial rule. Inheritance was not to take place in cases where colonial rule had been established through the use of military force.47 In other words, post-World War II theorists of State succession denied statehood to pre-colonial States under protectorate rule and, in doing so, remained within the confines of late 19th-century colonialist international legal theory. Even though critical observers noted contemporarily that this doctrine was concocted in an effort to continue the principles of colonial rule beyond decolonisation,48 46 McNair (note 7), 600, in line with 19th-century theorists such as Travers Twiss, La libre navigation du Congo, Revue de droit international et de législation comparée 15 (1883), 437. On Twiss see Andrew Fitzmaurice, The Justification of King Leopold II’s Congo Enterprise by Sir Travers Twiss, in: Schaunnagh Dorsett/Ian Hunter (eds.), Laws and Politics in British Colonial Thought: Transpositions of Empire (2010), 109. 47

Daniel Patrick O’Connell, State Succession to Treaties in the Commonwealth [Reply to Lester], ICLQ 13 (1964), 1450, 1452; id. (note 2), 25. 48

Thus already Johannes Kirsten, Einige Probleme der Staatennachfolge (1961), 31 et seq.

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succession theorists continued to adhere to the premise that colonial rule had been established through due process in accordance with international law and mainly drew on the decisions of the Berlin Africa Conference of 1884/1885 in conjunction with the practice of concluding protectorate-establishing treaties.49 This petitio principii fused two opposites, first the recognition of the protectorate-establishing treaties as valid legal instruments and, second, the denial of statehood to signatories of these treaties on the sole ground that they happened to be located in Africa, West, South, Southeast Asia, and the South Pacific. Taking this position was useful, as it conveyed the appearance of legality to colonial institutions of governance and turned their acts unassailable. From this position followed the postulate that the scrapping of treaties might “have incalculable consequences for the contractual legal condition of the international community”.50 Adherents to this postulate had to ignore the consequence that all protectorate-establishing treaties and previous 19th-century agreements would also have to be part of that inheritance.

B. 19th-Century International Legal Theory on Pre-Colonial States

Moreover, theorists overlooked the strong ideological bias which participants in the Berlin Africa Conference sheltered against pre-colonial States, specifically those in Africa. Among others, Munich publicists Franz von Holtzendorff and Karl von Stengel together with the criminalist Franz von Liszt, took a stand against the wording of the treaties and claimed that the “pre-colonial States which European governments had subjected to their control, were neither organised as States” nor were they to be regarded as “semi-sovereign” or as “overseas protectorates” at all: First and foremost, no reference can be made to the conditions, here under review, as States newly formed on deserted land or in areas inhabited by nomads. Any contractually agreed distinction between superior and inferior States is impossible for the sole reason that chiefs of barbarian tribes entirely lack elementary concepts of the life of States.51 49

Zemanek (note 2), 196. Final Act of the Berlin Africa Conference, 26 February 1885, CTS 165 (1978), 485. 50 51

Erich Kordt, Gegenwärtige Fragen der Staatensukzession, BDGV 5 (1964), 1, 6.

Franz von Holtzendorff, Staaten mit unvollkommener Souveränität, § 27, in: id. (ed.), Handbuch des Völkerrechts auf Grundlage europäischer Staatenpraxis, Vol. 2 (1887), 98, 115 et seq.; similarly: Franz von Liszt, Das Völkerrecht systematisch dargestellt, § 10 (9th ed. 1913), 98; Karl Michael Joseph

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Holtzendorff, for one, thus took for granted the European perception of population groups in Africa, West, South, Southeast Asia, and the South Pacific as allegedly “uncivilised” “nomadic” “tribes”,52 and added the conclusion that population groups inhabiting these dependencies should not be credited with the status of residents of States. In Holtzendorff’s perspective, territories that appeared neither to be demarcated in terms of linear borders nor inhabited by sedentary population groups, were, when they came under the sway of European colonial governments, not to be considered as subsumable into the then popular European concept of the State. 53 Holtzendorff would not admit the counter-evidence of the wording of most of the treaties, as he denied the status of executive governments to the treaty partners of the European colonial governments in Africa, West, South, Southeast Asia, and the South Pacific. Their representatives were, to him, allegedly non-governmental “chiefs” of “barbarian tribes”, completely lacking “any legal consciousness.”54 Because the treaty partners to the European governments appeared to lack the capability of exercising “stable rule of the entire State”,55 the conclusion was that the treaties were not to be seen as related to the so-called ‘natives’ but to Europeans that happened to be present on the spot. Holtzendorff left no doubt that the treaties did not provide protection to the so-called ‘natives’. Instead, according to Karl Gareis, the “establishment of protectorate power” was to be understood as a “justifiable restriction of the power of a native State” with a “population at a lower level of culture”.56 In this statement implied was Leopold Freiherr von Stengel, Die Deutschen Schutzgebiete, ihre rechtliche Stellung, Verfassung und Verwaltung, Annalen des Deutschen Reiches für Gesetzgebung, Verwaltung und Statistik (1889), 1, 14 (translation by the author). 52

Carl Friedrich Vollgraff, Erster Versuch einer wissenschaftlichen Begründung sowohl der allgemeinen Ethnologie durch die Anthropologie wie auch der Staats- und Rechts-Philosophie durch die Ethnologie oder Nationalität der Völker, Part 2: Ethnognosie und Ethnologie oder Herleitung, Classification und Schilderung der Nationen nach Maasgabe der Cultur- und Raçe-Stufen (1853); Part 3: Polignosie und Polilogie. Oder: Genetische und comparative Staats- und Rechts-Philosophie auf anthropologischer, ethnologischer und historischer Grundlage (1855); id., Staats- und Rechtsphilosophie auf Grundlage einer wissenschaftlichen Menschen- und Völkerkunde, Part 1: Die Menschen- und Völkerkunde als wissenschaftliche Grundlage der Staats- und Rechtsphilosophie (new ed. 1864), 26–34. 53

Johann Caspar Bluntschli, Allgemeines Statsrecht (1868), 261; Conrad Bornhak, Allgemeine Staatslehre (1896), 10; Georg Jellinek, Allgemeine Staatslehre (1900), 394–434. 54 Alphonse Pierre Octave Rivier, Lehrbuch des Völkerrechts (2nd ed. 1899), 4 (translation by the author). 55

John Westlake, Chapters on the Principles of International Law (1894), 103.

56

Karl Gareis, Deutsches Kolonialrecht (2nd ed. 1902), 2 (translations by the author).

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Gareis’s perception that “a native State” continued to be a State within a ‘protectorate’. Political theorists concurred, rejecting the supposition that the same international customs, and the same rules of international morality, can obtain validity between one civilised nation and another, and between civilised nations and barbarians, is a grave error, and one which no statesman can fall into […]. […] In the first place, the rules of ordinary international morality imply reciprocity. But barbarians will not reciprocate. […] In the next place, nations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered or held in subjection by foreigners.57

In this perspective, colonial governments appeared to be legitimised to categorise as “lordless” all land in the protectorates that did not appear to be identifiable as standing in private ownership according to European ownership standards. The land was then classed as res nullius purportedly unused for cultivation by seemingly roving “nomads”58 and could, Stengel believed, be transferred into the ownership of settler colo-nists for agricultural exploitation.59 Holtzendorff even explicitly granted to colonial 57 John Stuart Mill, A Few Words on Non-Intervention, in: id. (ed.), Dissertations and Discussions: Political, Philosophical and Historical, Vol. 3 (1867), 153, 165. 58

On the debate on “lordless” sovereignty and the application of the concept of res nullius see Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2005), 112–149; id., Possessing the Pacific: Land, Settlers and Indigenous People from Australia to Alaska (2007), 47–127; Lauren A. Benton/Benjamin Straumann, Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice, Law and History Review 28 (2010), 1, 2, 7, 38; Matthew C. R. Craven, What Happened to Unequal Treaties? The Continuities of Informal Empire, in: id./Malgosia Fitzmaurice (eds.), Interrogating the Treaty: Essays in the Contemporary Law of Treaties (2005), 43; Jörg Fisch, Die europäische Expansion und das Völkerrecht (1984), 305 et seq.; Andrew Fitzmaurice, The Genealogy of Terra Nullius, Australian Historical Studies 38 (129) (2007), 1; id., Moral Uncertainty in the Dispossession of Native Americans, in: Peter C. Mancall (ed.), The Atlantic World and Virginia, 1550–1624 (2007), 383; id., Discovery, Conquest and Occupation of Territory, in: Bardo Fassbender/Anne Peters (eds.), The Oxford Handbook of the History of International Law (2012), 840; id. (note 35), 256; Anthony Pagden, Law, Colonization, Legitimation and the European Background, in: Michael Grossberg/Christopher Tomlins (eds.), The Cambridge History of Law in America, Vol. 1 (2008), 1, 19–22; Brian Slattery, Paper Empires: The Legal Dimension of French and English Ventures in North America, in: John McLaren/A. R. Buck/Nancy E. Wright (eds.), Despotic Dominion: Property Rights in British Settler Colonies (2005), 50. 59

Karl Michael Joseph Leopold Freiherr von Stengel, Deutsches Kolonialstaatsrecht mit Berücksichtigung des internationalen Kolonialrechts und des Kolonialstaatsrechts, Annalen des Deustschen Reiches für Gesetzgebung, Verwaltung und Statistik (1887), 309, 329 et seq.; id. (note 51), 25. The extent of the discriminatory practice of the making of treaties between European and the US governments on the one side, and, on the other, governments in Africa, West, South, Southeast, and East Asia as well as the South Pacific has not been fully recognised in the research literature on the history of ‘unequal’ treaties under international law. For studies insufficient in this respect see Charles Henry Alexandrowicz,

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European governments some “right of conquest”, apparently equivalent of a right to effect State destruction. Shortly after Gareis, Holtzendorff, Liszt, and Stengel, John Westlake, James Lorimer, and Lassa Francis Lawrence Oppenheim rejected the idea that protectorates beyond the confines of Europe could have a status under international law. Instead, Oppenheim postulated that areas termed protectorates in treaties were simply being reserved for future occupation by European colonial governments,60 while Westlake and Lorimer constructed the American and European ‘family of nations’ as a club of privileged States reaching out to colonial dependencies mainly in Africa, West, South, Southeast Asia, and the South Pacific.61 Religious confession, Oppenheim added, was not decisive alone as a criterion for admission into the ‘family of nations’, but what mattered more was the purported standard of ‘civilisation’ that a population group appeared to have reached. No guarantee of the use of European public law of treaties between States could, by consequence, be extended to treaty partners of European colonial governments, when these treaty partners would not qualify for admission to the ‘family of nations’. According to this doctrine, the victims of European colonial rule were under occupation even when the wording of treaties put on record the recognition of their existence as sovereign States. Oppenheim explicitly referred to Bluntschli and even radicalised the position of the latter: The status of the so-called “colonial protectorates”, allocated to apparently “depending countries” under “chiefs of tribes”, was, he made clear, just an “inchoate title” for future occupation recognised among European colonial governments.62 Hence, Oppenheim summed up his position, treaties between holders of protectorates and those “chiefs” had no binding effect on the relations between the signatory parties. To sum up: International legal theorists The European-African Confrontation: A Study of Treaty-Making (1973), especially 29–105; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2005), especially 65–100; JanHendrik Conrad, Die Geschichte der ungleichen Verträge im neueren Völkerrecht (1999); Gerry J. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004), especially 62–88, 91–131; Urs Matthias Zachmann, Race and International Law in Japan’s New Order in East Asia, 1938–1945, in: Rotem Kowner/Walter Demel (eds.), Race and Racism in Modern East Asia: Western and Eastern Constructions (2013), 453, 453–463. For details see Harald Kleinschmidt, Geschichte des Völkerrechts in Krieg und Frieden (2013), 361–368, 379–386. 60

Lassa Francis Lawrence Oppenheim, International Law, Vol. 1 (1905), 280 et seq.

61

James Lorimer, The Institutes of the Law of Nations, Vol. 1 (1884), 101; Westlake (note 55), 136.

62

Oppenheim (note 60), Vol. 1, 136, 140.

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providing ideologies of the legitimation of colonial rule at the turn towards the 20th century, denied subjecthood, sovereignty, and often even statehood to pre-colonial States and declared the protectorate treaties and previous 19th-century agreements irrelevant for the purposes of international law. These imperialist European theories contained concocted allegations of the lack of governmentality of States in mainly Africa and the South Pacific and were drawn on arguments that already 16th-century apologists of the Spanish conquest of America had used. These apologists had styled the European military intervention as a sequence of pacification missions and pretended that these missions had been conducted to end military conflict among allegedly warlike Native American States.63 But these beliefs were incompatible with the perceptions that many treaty partners shared elsewhere in the world at the turn towards the 20th century, most notably during the ‘Scramble for Africa’. Where it exists, evidence puts on record the firm convictions, widespread notably among African governments linked with their European counterparts through treaties, that international law governed their mutual relations and that both sides were bound to honour the instruments they had made out. In the perspective of governments of the African States, at which European governments targeted their ‘Scramble’ from the mid-1880s, it was the European side which was breaking agreements or misrepresenting them.

C. African Attitudes Towards Treaty Law

For one, King Jaja of Opobo in what is Nigeria today addressed a formal letter of protest to the British Foreign Office in 1886 and filed the following complaint: We, of course, signed [the] Treaty with Her Majesty’s Government upon the sole basis that there should be no interference whatever with regard to our laws, rights and privileges of our markets etc., but at the present we are at a loss to find that we have been misled; that is

63

Gerónimo de Vivar, Crónica y relación copiosa y verdadera de los Reinos de Chile (1558), quoted in: David A. Lupher, Romans in a New World: Classical Models in Sixteenth-Century Spanish America (2003), 309, 91, 73; Lauren A. Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (2010), 233 et seq.

284 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 after gratuitously arranging to come under Her Majesty’s Government Protectorate, and preventing other nations coming in as have been previously agreed.64

The statement is unequivocal in claiming that the relations between Opobo and the UK were based on a treaty,65 that they operated at the level of legal equality, and that, according to the treaty, Opobo had the unrestricted right of autonomous legislation and law enforcement. In other words, King Jaja was not only familiar with the concept of sovereignty, as employed on the European side, but also used that same concept to defend his rights vis-à-vis British government intervention. That the British intervention was neither lawful nor morally acceptable was apparent already to contemporaries. One of them noted that “the King does not in all transactions appear to have been treated with generosity, or his position as a factor in African civilization sufficiently recognized”.66 There can be no doubt that King Jaja and his government fully understood the agreement they had signed and assumed that this agreement had confirmed British recognition of Opobo sovereignty. The government of the neighbouring State of Bonny proceeded similarly when it signed the same type of treaty with the British government in the same year 1884.67 Details of treaty relations between Bonny, Opobo, and the UK have been discussed in the academic world since the 1950s.68 A more dramatic case was the Kingdom of Ashanti. The Kingdom had maintained treaty relations with the UK from the early 19th century.69 After having lost a series of military conflicts against Ashanti in the course of the 19th century, the British government, in 1874, decided to intervene against Ashanti in its conflict with neigh64

Jaya [Jubo Jubogha], King of Opobo, [Letter to Lord Salisbury, 26 March 1886, London: British National Archives, FO 84/1762, nr 1], partly printed in: Sylvanus John Sochienye Cookey, King Jaja of the Niger Delta, 1821–1891 (1974), 120. 65

King Jaja referred to the Treaty Opobo – UK, 1 July 1884, CTS 163 (1978), 158.

66

Anonymous reporter in the African Times, attached to a letter by Jaya [Jubo Jubogha], King of Opobo to Lord Salisbury, 24 January 1887, London: British National Archives, FO 403/73, partly printed in: Cookey (note 64), 121. 67

Treaty Bonny – UK, 24 July 1884, CTS 163 (1978), 163. On the relations between Bonny and the UK see Gwylim Iwan Jones, The Trading States of the Oil Rivers (1963), 112–121. 68 Cookey (note 64); id., Colonialism and the Process of Underdevelopment in Nigeria, in: Victor Chikenzie Uchendu (ed.), Dependency and Underdevelopment in West Africa (1980), 19–31; Kenneth Onwuka Dike, Trade and Politics in the Niger Delta (1956), 65–96, 182–201; Jones (note 67). 69

Treaty Ashanti – UK, Kumasi, 7 September 1817, CTS 68 (1969), 5; also printed in: Thomas Edward Bowdich, Mission from Cape Coast Castle to Ashantee (1819), 126–128.

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bouring Fante. The British government sided with Fante and obliged Ashanti to withdraw from Fante territory. When Ashanti failed to implement the request, the British side launched an invasion, in the course of which British forces occupied the Ashanti capital city of Kumasi. Under threat, Asantehene Karkari signed a peace treaty, obliging Ashanti to pay a war indemnity of 50,000 gold ounces, to renounce any demands for tribute from the Fante, to withdraw from Fante territory, permit “free” trade, keep the road to the coast in good repair, and abstain from the alleged practice of “human sacrifice”.70 The treaty subjected Ashanti to a British ‘civilising’ pacification mission, imposed serious budgetary constraints upon the Ashanti government, interfered in the relations between Ashanti and its neighbours, but left the State intact as a sovereign subject under international law. Yet, the British government soon claimed that Ashanti was failing to implement the treaty, mainly because installments of the war indemnity were not flowing. In 1891, the British government declared its intention to place Ashanti under its protectorate, seeking to implement that plan, invaded the State in 1896 under the stated goal of collecting the war indemnity and deported Asantehene Prempeh I, when he refused to implement British requests.71 When resistance continued, the British side launched another invasion in 1900, in the course of which the Ashanti State was conquered and annexed into British rule.72 In short, the British side propagated the position that it had acted in response against breach of treaties by the Ashanti side. Ashanti took the opposite view. During his captivity in the Seychelles Islands, where he had eventually been deported, Prempeh wrote three statements about the war of 1895, the first in 1913 apparently for the purpose of advancing his return, the second in 1922 for internal purposes, while preparations for his return were being finalised, and the third addressed to the Ashanti people immediately before his return in 1924. The first text is predominantly apologetic, its contents overlap with the British descriptions of the events. The second is thoroughly critical of the British invasion, and the third seeks to defend Prempeh’s actions during and after the war of 1895. While kept in confinement in the Seychelles Islands, Prempeh was unaware of 70

Treaty Ashanti – UK, 13 February 1874, CTS 147 (1978), 271.

71

Robert Stephenson Smyth Baden-Powell of Gilwell, The Downfall of Prempeh: A Diary of Life with the Native Levy in Ashanti, 1895–96 (2nd ed. 1898), 22 et seq., 129; William Walton Claridge, A History of the Gold Coast and Ashanti (1915), 353–355. 72

Mary Alice Hodgson, The Siege of Kumasi (2nd ed. 1901).

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the fact that the British government had annexed the Kingdom in 1901; hence he assumed that Ashanti was still a sovereign State, when he wrote the reports. In the 1922 text, Prempeh acknowledged the Ashanti invasion of Fante territory in 1874 and confirmed Ashanti defeat by the British army in 1895. He listed the main conditions of the 1874 peace arrangement, commented that Karkari had not been careful to keep the road to the coast in good repair, but insisted that Karkari had fulfilled all other treaty obligations. But a domestic revolt had deposed him soon after the conclusion of the treaty and forced him to seek refuge in a remote village. Prempeh then reported that Bonsu, Karkari’s brother and successor, when facing one of his provincial governor’s rebellion, had marched an army against the governor, and admitted that Bonsu, in failing to inform the British representative at Cape Coast Castle in advance, had, in British perspective, acted against a certain rule enforced by the British commander in 1874. According to Prempeh, domestic unrest in Ashanti continued until 1888, when the British government took initiative to place him on the Ashanti throne in order to restore the stability of the State. In 1895, Prempeh continued, the British representative at Cape Coast Castle dispatched a military contingent to promulgate a document on new conditions for the maintenance of peaceful relations with Ashanti. Prempeh said, he had agreed to convene his advisory council to discuss the document, but that the British commander had mobilised the troops against Ashanti before the meeting could take place. In order to inquire about the purpose of the British move, Prempeh had sent a diplomatic mission to London. But British Colonial Secretary Joseph Chamberlain had refused to meet the delegation. Immediately after the delegation’s return, the British government had ordered troops to collect the war indemnity. Prempeh, being unable to provide the demanded cash, had been arrested and deported.73 In his statement, Prempeh made it clear that, like the kings of Bonny and Opobo, he regarded himself as the rightful ruler of a sovereign State, placed on an equal footing with the British government through the sequence of bilateral treaties. He took for granted his sovereign privilege to dispatch a diplomatic mission to his treaty 73 Nana Agyeman Prempeh I, The History of Ashanti Kings and the Whole Country Itself: And Other Writings [text of 1922], edited by Albert Adu Boahen et al. (2003), 153–158. On Ashanti diplomacy see Joseph K. Adjaye, Diplomacy and Diplomats in Nineteenth Century Ashanti (1984); William Tordoff, Ashanti under the Prempehs, 1888–1935 (1965), 61–67; Ivor Wilks, Ashante in the Nineteenth Century: The Structure and Evolution of a Political Order (1975), 641–654.

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partner and displayed familiarity with the basic norm pacta sunt servanda. There can be no reasonable question concerning Prempeh’s and his predecessors’ capability to fully understand and willingness to implement treaties under international law. Hence, he was thoroughly critical of the attitudes of the British government, which appeared to treat him unjustly. During his captivity, he did not have at his disposal the exact wording of the 1874 treaty but interpreted its stipulations as “rules” enforced by the then British military commander. What turned out to be the most crucial of these “rules”, the obligation to inform the British representative about any military action planned by the Asantehene, was, in fact, not part of the written text of the 1874 treaty, which obliged the Ashanti side to withdraw from Fante territory but not to announce military action. In other words, Prempeh admitted that pursuing a rebel with a military force may have been perceived as a breach of “rules”, but insisted that these “rules” had not revoked the Ashanti ius ad bellum as a sovereign right, specifically because the quenching of a rebellion was a domestic matter. Hence, according to Prempeh, accusing the Ashanti of a breach of treaties was unfounded and not a justification for the invasion and subsequent abolishment of the sovereignty of the Kingdom.74 Evidence showing that African governments were thoroughly knowledgeable in matters of the law of treaties and acted upon the same basic legal principles as their European counterparts can also be adduced from East and Southwest Africa. Such evidence confirms, what Lord Lugard, unscrupulous imperialist that he was, already noted, namely that treaty-making was common practice among African governments.75

74

Prempeh (note 73), 158 (text of 1922): “Now the whole Ashanti is governed and ruled by the Governor as we do not see why King Prempeh and his Queen and chiefs should be made prisoner.” For details see Harald Kleinschmidt, Diskriminierung durch Vertrag und Krieg (2013). 75 Frederick John Dealtry Lugard, The Rise of Our East African Empire, Vol. 2: Uganda (1893), 33, 579. On Buganda in East Africa see infra, notes 138–157. See also the case when tensions intensified due to encroachments by German armed forces into Nama territory in 1904. The head of the Nama State, Samuel Maharero, took for granted that he was in possession of the ius ad bellum and declared war on the German Empire. See Maharero, [Letter to Theodor Leutwein, Gouvernor of German South West Africa, 6 March 1904], in: Paul Rohrbach (ed.), Deutsche Kolonialwirtschaft (1907), 333 et seq. (English version in: Jeremy Silvester/Jan-Bart Gewald, Words Cannot be Found: German Colonial Rule in Namibia, An Annotated Reprint of the 1918 Blue Book (2004), 99 et seq.).

288 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 D. Post-World War II Theorists and the Legacy of 19th-Century Legal Theory

In declaring irrelevant 19th-century protectorate-establishing treaties between European colonial governments and governments in Africa, West, South, Southeast Asia, and the South Pacific, post-World War II succession theorists took a stand against evidence confirming the legal validity of these instruments. In doing so during the decolonisation process, they claimed that treaties had to be passed on from the colonial period to the post-colonial newly independent States either because the precolonial States appeared to have discontinued or because existing treaties were not obliging their signatory parties. In arguing this claim, they could draw on the 1928 Permanent Court of Arbitration’s Arbitral Award in the Island of Palmas Case, which explicitly rejected the legal validity of treaties involving States located in colonial dependencies.76 The Arbitral Award implied that the principle of the inheritance of treaties was sanctioned under international law. Consequently, the principle continued to find supporters even after the approval of the Vienna Convention on the Law of Treaties of 1969,77 specifically because the UN, continuing the League of Nations ‘Mandate’ status under the label of ‘Trusteeship’, did not take an explicit stand towards the decolonisation processes. However, the UN did, by implication, recognise the principle of inheritance, when it supported its application during the process of the partition of British India in 1947. The UN treated the acquisition of independence by Pakistan as a case of succession through secession from a sovereign State. Moreover, the UN quickly admitted post-colonial States after they had acquired independence in accordance with the implementation of decolonisation as succession from colonial institutions. Yet, it was only through Resolution 1540 passed by the General Assembly on 14 December 1960, that the UN officially declared unjust all forms of rule over dependent population groups, categorised decolonisation as a legal obligation, and placed State succession with respect to treaties on the agenda of their International 76 Island of Palmas Case (Netherlands, USA), Arbitral Award of 4 April 1928, Reports of International Arbitral Awards (RIAA), II, 829; also in: AJIL 22 (1928), 867, 897 et seq.: “As regards contracts between a state or a private company such as the Dutch East India Company and native princes or chiefs, they are not, in an international law sense, treaties of conventions capable of creating rights and obligation such as may in international law out of treaties”. 77

Daniel Patrick O’Connell, Recent Problems of State Succession in Relation to New States, RdC 130 (1970-II), 95, 124 et seq.

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Law Commission (ILC).78 The ILC started to work on the issue in 196379 and, in 1974, presented its draft proposal for a multilateral convention regulating the status of treaties in cases of State succession. The ILC approved of the Convention in Vienna in 1978, which went into force in 1996.80 The chronology shows that all decolonisation processes took place without positive international legal norms but followed customary norms as established through European State practice in the 19th century. Put differently: All decolonisation processes were based on premises and postulates that pertained to 19th-century international law of European and North American provenance, followed political dictates of the colonial governments, and took place in accordance with culturally specific norms that were criticised as inapplicable early on.81 Moreover, representatives and ideological supporters of colonial governments gave out decolonisation as a suddenly arising event. For one, British Colonial Secretary Oliver Stanley could, as late as in 1943, officially refer to colonial rule as a long-term structural feature of international politics,82 and Daniel Patrick O’Connell, a jurist working successively in Australia and at Oxford between 1956 and 1979, could, as late as in 1965, show surprise at the fact that decolonisation was taking place at all.83 O’Connell agreed with the ILC on the view that decolonisation was to be staged as State succession from colonial dependencies. He further accepted the position that treaties had to belong to the inheritance from colonial dependencies and that they were to be passed on to their post-colonial successor States through devolution 78

UN General Assembly (GA) Res. 1540 (XV) of 14 December 1960.

79

Matthew C. R. Craven, The Decolonization of International Law: State Succession and the Law of Treaties (2007), 29–51, 93–206; Cheikh Tidiane Thiam, Décolonisation et succession d’états en Afrique, LLD Thesis, University of Paris–Sorbonne (1989), 236. 80

ILC (note 5); id., Report of the International Law Commission on the Work of Its Twenty-Sixth Session, 6 May–26 July 1974, ILC Yearbook (1974, Vol. II, Part I), 157; Vienna Convention (note 5). 81 Georges M. Abi-Saab, The Newly Independent States and the Rule of International Law, Howard Law Journal 8 (1962), 95; P. K. Menon, International Practice as to Succession of New States to Treaties of Their Predecessors, Indian Journal of International Law 10 (1970), 459; Surya Prakash Sinha, New Nations and the Law of Nations (1967). For a comment see Ignaz Seidl-Hohenveldern, Völkerrecht (8th ed. 1994), 300–307. 82

Oliver Frederick George Stanley, [Address to the House of Commons, 13 July 1943], Hansard Parliamentary Debates 391 (1943), 48 (partly printed in: Andrew N. Porter/A. J. Stockwell (eds.), British Imperial Policy and Decolonization, 1938–64, Vol. 1 (1987), 156–166). 83

O’Connell (note 2), 7. On him see Ivan A. Shearer, O’Connell, Daniel Patrick (1924–1979), in: Australian Dictionary of Biography 15 (2000), 514.

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agreements.84 Like 19th-century theorists of colonialism, O’Connell was unwilling to consider population groups residing in colonial territories as organised in States of their own and thus had to put before himself the question on what grounds the devolution of colonial institutions and legal instruments on post-colonial States could be considered just, even though the affected population groups had not been involved in the making of the treaties in question. In order to support his devolution plea, he referred to the granting of limited self-government to some ‘native’ rulers, who had been empowered by colonial authorities within the colonial dependencies to carry out local administrative tasks, first and foremost to act as tax collectors. He concluded that, on the eve of independence, indigenous holders of limited self-administrative competences should factually have acquired capability to act, as if they were subjects competent to enter into treaties under international law.85 Indeed, more than a few post-colonial States had come into existence, whose governments explicitly obliged themselves to keep in force all or most bi- and multilateral treaties from the colonial period.86 However, governments of post-colonial States were complaining that the devolution agreements were ‘unequal’ treaties and had been forced upon them during the transition period and under conditions of their continuing economic dependence on the colonial centres.87 The same argument also supported claims that borders drawn by colonial powers were legally invalid. This was the position taken by the Chinese government during its controversy with the government of India about the Chinese-Indian border around 1960. The Chinese government refused to recognise that border arguing that it was a demarcation line drawn by the British government without involving the Chinese counterpart and that, by consequence, its current location had no binding effect on China. Even after the Chinese-Indian Treaty of 1954,

84

O’Connell (note 24), 67; id. (note 2), 25; O’Connell, State Succession (note 3), Vol. 2, 127–134, 141–163; International Law Association, Committee on State Succession, The Effect of Independence on Treaties: A Handbook (1965); Seidl-Hohenveldern (note 81), 302. 85 Daniel Patrick O’Connell, The British Commonwealth and State Succession after the Second World War, BYIL 26 (1949), 454; id., Independence (note 3), 103–122, 165–179; id. (note 2), 34–40. 86

André Gonçalves Pereira, La succession d’états en matière de traité (1969), 74–78; McNair (note 7), 620–622, 648–654; Zemanek (note 7), 58 et seq., 72 et seq.; id. (note 2), 213 et seq. 87

Robles (note 7), 4–47, 132–133; Seidl-Hohenveldern (note 81), 302.

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which established friendly relations between both States, the Chinese government demanded from the government of India the cession of territories south of Tibet.88 O’Connell was not alone in referring to the fact that some multilateral conventions, putting into existence international organisations, such as the Universal Postal Union and the GATT, were covering colonial dependencies together with subjects under international law. As a rule, these international organisations did not call into question the continuing membership of the colonial dependencies, once they had been converted into post-colonial States.89 This practice served O’Connell as evidence to the effect that governments of post-colonial States, by virtue of having entered into the devolution of treaties, had accepted the principle of inheritance as legally viable. However, few theorists argued the objection that, in most cases, dependencies under colonial rule could not be credited with anything equivalent of subjecthood under international law, even if they had acquired some kind of self-government capability prior to independence. Consequently, these theorists took the view that treaties could not possibly be devolved upon post-colonial States.90 Soon after the beginning of its consultations about the convention on State succession, the ILC, contrary to O’Connell, realised the difficulty that the accomplishment of independence from colonial rule was a special case of State succession, not completely compatible with the cases that had been subsumed into this concept since the 19th century. This was so because most decolonisation processes were not secessions in a legal sense. According to 19th-century theory, treaties agreed upon under the former regime might be scrapped solely under the condition of secession. But, given articulate protests against the principle of inheritance, jurists working for the ILC were unwilling to demand that the basic norm pacta sunt servanda should be declared applicable in all types of State succession other than secessions. In an attempt to find a way out of the dilemma resulting from applying the legacy of the 19th-century theory of State succession to 88 Agreement on Trade and Intercourse between Tibet Region of China and India, 29 April 1954, India – People’s Republic of China, UNTS 299, 57; O’Connell, Independence (note 3), 165–170. 89

Rainer Goerdeler, Die Staatensukzession in multilaterale Verträge: Eine Darstellung der Praxis der Gebietsnachfolger Frankreichs in Afrika (1970), 112–120, 168–219; Mudimuranwa A. B. Mutiti, State Succession to Treaties in Respect of New Independent African States (1977), 68–75; Humphrey Waldock, First Report on the Law of Treaties, ILC Yearbook (1962, Vol. II), 27, 37; Zemanek (note 7), 74 et seq. 90

Anthony Paul Lester, State Succession to Treaties in the Commonwealth, ICLQ 12 (1963), 475, 487, 506.

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decolonisation, the ILC decided to create the novel specific category of the newly independent States for the successor institutions to the colonial dependencies. The new term eventually found its way into the Vienna Convention of 1978.91 The term separated from the general concept of State succession among existing sovereigns and international legal subjects all processes of State succession which turned so-called ‘dependent territories’ into new sovereign States, allowed these States to ‘enter’ the socalled ‘international legal community’ as new members, and documented that ‘entry’ through admission to the UN.92

E. The Rejection of Treaty Devolution

As a rule, the concept of the newly independent States excluded the restitution of pre-colonial States, not because these States did not exist, but because the colonial governments refused to apply to them the concept of the newly independent States. In the few cases in which pre-colonial States were actually restored the colonial governments constructed them as novel institutions without legal ties to their precolonial predecessors, yet with institutions of governance continuing from colonial times. The practice of devolving colonial treaties upon post-colonial States remained unchallenged until political opposition against the principle of inheritance became manifest among anti-colonial liberation movements. Julius Nyerere, one of their lea-

91

Supra, Vienna Convention (note 5). See Wilfried Fiedler, Die Konventionen zum Recht der Staatensukzession: Ein Beitrag der ILC zur Entwicklung eines ‘Modern International Law’, German Yearbook of International Law (GYIL) 24 (1981), 9; P. K. Menon, Vienna Convention of 1978 on Succession of States in Respect of Treaties, Revue de droit international, de sciences diplomatiques et politiques 59 (1981), 1; Walter Poeggel/Rolf Meißner/Christel Poeggel, Staatennachfolge in Verträge (1980), 85–117; Walter Poeggel, Konzeptionelle Probleme der beiden Wiener Staatennachfolgekonventionen von 1978 und 1983, Vorträge, Reden und Berichte aus dem Europa-Institut 121 (1987), 21; Renata Szafarz, Vienna Convention of Succession of States in Respect of Treaties, Polish Yearbook of International Law 10 (1979/1980), 77; Hans D. Treviranus, Die Konvention der Vereinten Nationen über Staatensukzession in Verträge, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 39 (1979), 259–300; Karl Zemanek, Die Wiener Konvention über die Staatennachfolge in Verträge, in: Herbert Miehsler/Erhard Mock/Bruno Simma (eds.), Ius humanitatis: Festschrift für Alfred Verdroß zum 90. Geburtstag (1980), 719. 92 Arrigo Cavaglieri, La conception positive de la société internationale, Revue générale de droit international public 18 (1911), 259; John Westlake, International Law, Vol. 1 (1904), 40 et seq.; Robert H. Jackson, Quasi-States: Sovereignty, International Relations and the Third World (1990), 67, still argued along the same lines.

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ders, deposited the following note with the UN Secretary-General on 8 December 1961, the day before the scheduled independence of Tanganyika: The Government is naturally anxious that the emergence of Tanganyika as an independent State should in general cause as little disruption as possible to the relations which previously existed between foreign States and Tanganyika. At the same time, the Government must be vigilant to ensure that where international law does not require it Tanganyika shall not in the future be bound by pre-independence commitments which are no longer compatible with their new status and interests. A suggestion has been made by the United Kingdom Government for the conclusion of an inheritance agreement between Tanganyika and herself, similar to ones previously concluded by the United Kingdom and other countries coming to independence. After examining the proposal in detail the Government has felt unable to accept it. We understand that the effect of such an agreement might be to enable third States to call upon Tanganyika to perform certain treaty obligations from which Tanganyika would otherwise have been released by her emergence into independent Statehood.93

In the name of the government of the future sovereign State of Tanganyika, Nyerere thus contested not merely the validity of bilateral treaties relating to the territory of this newly independent State but also the viability of the dominant theory of State succession with respect to treaties under international law. The factors triggering his initiative were two Belgian-British agreements about the use of transport venues and port facilities by the Belgian colonial government for Congo (Léopoldville) on the territory of Tanganyika, then a ‘Trust Territory’ under British rule.94 Nyerere took these two treaties as evidence supporting his general conclusion that newly independent States could not be obliged to honour agreements between colonial governments relating to their territories. He requested the granting of a period of two years from the day of independence. During this period, the government of Tanganyika would consider each of the bilateral treaties in force on 8 December 1961 and decide which of them it would accept and which not. Moreover, Nyerere principally called into question the validity of the basic norm pacta sunt servanda for this category of legal instruments. He had to do so because that norm prohibited the unilateral abrogation of binding treaties. With regard to Tanganyika, he did not have to demand validity for pre-colonial treaties, as pre-colonial States had fallen victim to German colonial rule there at the turn towards the 20th century. 93

Julius Kambarage Nyerere, [Statement before the Tanganyika National Assembly, 30 November 1961], quoted in: ICLQ 11 (1962), 1210–1214. 94

Earle E. Seaton/Sosthenes T. Maliti, Tanzania Treaty Practice (1973), 85–88.

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Although bilateral treaties had tied the Sultan of Zanzibar with several European governments, the island was governed separately from Tanganyika and accomplished independence as a State of its own. Moreover, the British-German agreement on the exchange of Heligoland against Zanzibar of 1890, through which both signatory parties reduced the Sultan of Zanzibar to an object of international law, was understood as having scrapped the previous treaties between European governments and the Sultan.95 Yet Nyerere did exempt multilateral agreements from his request, well aware of the implications that the abrogation of multilateral treaties by one or several of their parties would have on the rights and obligations of the other parties. While Nyerere’s note became a model in other newly independent States, their governments making announcements to the same or similar effect,96 it raised consternation among theorists. O’Connell commented: The Nyerere doctrine, in essence, embodies the claim that the successor State is free to determine which treaties it wishes to continue and which it wishes to reject: This raises serious questions concerning the legal basis for continuity during the period of review.

He further criticised that the diplomatic exercise of the Nyerere doctrine is “frangled with the following hazards”, that the survey of existing treaties “cannot be completed within the stated period”, that government practice “continues to be based on treaties”, although they are invalid, that “multilateral conventions may” go out of force without replacement, that “adherence to customary law does not allow a strict distinction between valid and invalid treaties”, that the doctrine, applied as a general principle, would have to be applied “not only to newly independent States” but to others as well, that the doctrine “is in itself inconsistent with customary law”, that the “notification may not occur in cases” in which treaties get scrapped, with the consequence that there is an information vacuum, that the scrapping of treaties solicits “the need of other States to repeal a lot of domestic legislation if notified that a treaty is no longer valid”, and 95

Treaty German Empire – UK [Heligoland/Zanzibar], 1 July 1890, CTS 173 (1981), 272; Treaty German Empire – Zanzibar, 20 December 1885, CTS 167 (1978), 137; Treaty Zanzibar – UK (Imperial British East Africa Company), 4 March 1890, CTS 173 (1981), 119. 96

Hanna Bokor-Szegö, La succession des nouveau Etats et les traités internationaux, Acta juridica Academiae Scientiarum Hungaricae 5 (1963), 333, 347; Makonnen (note 27), 121–148; O’Connell, State Succession (note 3), Vol. 1, 116–119, Vol. 2, 119–121; Seaton/Maliti (note 94), 22; Thiam (note 79), 410–417, 423–430; Okon Udokang, Succession to Treaties in New States, Canadian Yearbook of International Law 8 (1970), 123, 142–144; Humphrey Waldock, Second Report on Succession of States and Governments in Respect of Treaties, ILC Yearbook (1969, Vol. II), 45, 63, 67.

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that the completeness of “examinations of treaties” is not guaranteed, “as treaty registers are incomplete.”97 O’Connell thus adduced a variety of all too pragmatic objections, and marginal ones at that, in a futile attempt to reject as unlawful Nyerere’s request. But the International Law Commission was not impressed by such queries and bowed to rising opposition from governments of newly independent States. It established a legal principle, according to which governments of newly independent States, and only governments of these States, could unilaterally declare void all kinds of treaties which colonial predecessor governments had entered into with a bearing on the territory of newly independent States. The ILC thereby formulated the general clean-slate (tabula rasa) principle as a legal entitlement for newly independent States. According to this principle, all newly independent States were to “start their lives” free from legal obligations devolved upon them from predecessor institutions.98 The ILC thus not only accepted Nyerere’s position but even went beyond it in including multilateral treaties into the range of the applicability of the clean-slate principle. The ILC argued that newly independent States, as sovereigns, should not be bonded by obligations derived from their non-sovereign predecessor institutions, and took the view that even grants of limited self-governing competence were no equivalents of sovereign titles, and further maintained that the demand for abidance by the basic norm pacta sunt servanda with respect to treaties from the colonial period should stand behind the right of self-determination, given the strong impact that specifically bilateral agreements might have on the government policy of newly independent States.99 Furthermore, the ILC committed itself to the claim that there had been some long-term practice of adherence to the clean-slate principle since the establishment of the USA, allegedly well attested but actually difficult to trace in historical sources.100 97

O’Connell, State Succession (note 3), Vol. 2, 119–121.

98

Goerdeler (note 89), 233; Leonore Herbst, Staatensukzession und Staatsservituten (1963), 176; Thiam (note 79), 98–143; Udokang (note 96), 154 et seq. 99 Vallat (note 5), 7; Humphrey Waldock, Third Report on Succession of States and Governments in Respect of Treaties, ILC Yearbook (1970, Vol. II), 25, 33; P. K. Menon, The Succession of States in Respect to Treaties, State Property, Archives and Debts (1991), 23; Zimmermann (note 5), 23 et seq. 100 Waldock (note 44), 146. Similarly Giandonato Caggiano, The ILC Draft on the Succession of States in Respect of Treaties, Italian Yearbook of International Law 1 (1975), 69; Walter Poeggel/Rolf Meißner, Staatennachfolge im Völkerrecht (1986), 97–102. For a criticism of this view see Matthew C. R. Craven, The Problem of State Succession and the Identity of States under International Law, European Journal of International Law (EJIL) 9 (1998), 142–162, 147 et seq., 153–158; Zimmermann (note 5), 23 et seq.

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Subsequent theorists added the argument that what they called the “identity”, i.e. legal personality or subjecthood under international law, of post-colonial States was different from that of the colonial institutions and that, by consequence, treaties made out during the colonial period could not be devolved upon post-colonial States.101 In all these debates, the pre-colonial States remained outside the focus, as all participants positioned colonial institutions of governance as predecessors of postcolonial States. Hence, the pragmatics of the handling of decolonisation processes, jointly with international legal theory from the 1960s and the Vienna Convention of 1978, remained within the colonialist perception, according to which there had either been no States at all or no subjects under international law in territories under the rule of colonial governments, even though the wording of extant treaties stood in stark opposition against this perception.102 The Vienna Convention of 1978 cast this perception into law, thereby excluding the restitution of pre-colonial States according to due process, while admitting such restitution solely as an act of secession from postcolonial States. The argument, presented by the ILC in support of that norm, was that the restitution of pre-colonial States could only be considered under ius postliminii. Within that legal framework, the restitution of territory subjected to military occupancy in enemy States during war, should be restored to its previous ruler before the beginning of the war. However, theorists claimed that the ius postliminii could not be applied to decolonisation processes because colonial rule had not been executed in a state of war.103 Hence, the possibilities of implementing State succession in a legally controlled mode were limited. Already early in the 20th century a jurist surmised that governments of sovereign States could not be expected to ever accept a right of secession under international law.104 And in the theoretical perspective of the 1920s, the League of Nations was “a rigid association of existing States”, creating “no procedure according to which State succession might be ordered in legal forms”.105 With the denial of legitimacy to restitution and secession, no more than narrow paths have remained for the peaceful restitution of pre-colonial States. 101

Craven (note 100).

102

McNair (note 7), 117 et seq.

103

Alexandrowicz (note 29), 475–477.

104

Schönborn (note 40), 67.

105

Guggenheim (note 34), 156 et seq. (translations by the author).

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III. Decolonisation as State Succession and Pre-Colonial States Although they did not show any concern for pre-colonial States, close contemporary commentators on the Vienna Convention of 1978 were aware of some of its shortcomings, noting, among other defects, that the Convention was approved after most decolonisation processes had already been implemented.106 Subsequent commentators further identified the Convention as a code of norms which did not appear to become rigorously applied in State practice.107 Moreover, the Convention could not prevent the habit of combining decolonisation with the purposeful imposition of municipal law from outgoing colonial centres onto post-colonial States. In addition, many governments of post-colonial States faced a situation in which they were compelled to consider an excessively large number of treaties under international law relating to territories under their control within a short time, too numerous to allow careful scrutiny about whether or not they should be accepted as legal and useful. In the case of Nigeria alone, more than 300 such agreements were in force at the time of the acquisition of independence, that is, under circumstances when the Nigerian and other post-colonial governments had neither experience nor expertise to examine the treaties carefully.108 Under these constraints, governments often opted for the acceptance of treaties although a thorough consideration of their implications might have led to a rejection. Contemporary, mainly anglophone legal theory added to the pressure with the pretense that the processes of the decolonisation of the former British settler colonies, except the USA, through grants of dominion status should be accepted as the model of decolonisation taking place in other parts of the world as well.109 But the parallelism was bogus because, in the cases of the acquisition of independence by former British settler colonies, rule had been transferred, not to indigenous population groups, but to descendants from immigrants of European origin. Instead, in most post-colonial States in Africa, South and Southeast Asia as

106

Fiedler (note 91); Menon (note 91); Treviranus (note 91).

107

Wilfried Fiedler, Entwicklungslinien im Recht der Staatensukzession, in: Gerhard Hafner (ed.), Liber amicorum Professor Ignaz Seidl-Hohenveldern (1998), 133, 148; Zimmermann (note 5), 23 et seq. 108 Emmanuel G. Bello, Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties 1978, GYIL 23 (1980), 296, 311; Udokang (note 96), 139. 109

O’Connell (note 2), 34–40, especially 40; id., Independence (note 3), 92, 103–113; id., State Succession (note 3), Vol. 1, 36–57.

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well as the South Pacific, newly established ruling elites were indigenous, even though they kept strained relations with the ruling elites of pre-colonial States. Moreover, the International Law Commission excluded from its agenda a discussion of the frequent agreements that colonial governments had arranged among themselves about the delimitation of territories under their respective administrations without the involvement of the local population.110 The ILC exempted these treaties from the Convention mainly with reference to the UN Charter,111 which guaranteed the territorial integrity of its members and thereby imposed constraints against changes of borders of States. The ILC took the further view that these border treaties bound at least two colonial governments and two governments of newly independent States, with the implication that no government of a newly independent State could legally abrogate a border treaty at its own discretion without interfering into the sovereign rights of another State. The Convention also regulated State succesion with minimal transfer costs by simply turning colonial institutions of governance into post-colonial newly independent States. In doing so, the Convention guaranteed the subjecthood of the newly independent States and confirmed their treaty-making capability. Yet, at the same time, it legally sanctioned the identity of the newly independent States with their colonial predecessor institutions.112 Furthermore, governments of newly independent States were being obliged to mould new ‘nations’ from among diverse population groups under their sway, even though, as a rule, these governments were well aware both of the absence of ideologies of nationalism from local political traditions113 and of the frequently close ties of collective identities to pre-colonial States.114 The Vienna 110 O’Connell (note 24), 50 et seq.; id., State Succession (note 3), Vol. 2, 147 et seq.; Thiam (note 79), 493–587; Waldock (note 89), 92 et seq. 111

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

112

O’Connell, Independence (note 3), 109.

113

Julius Kambarage Nyerere, An Address to the Norwegian Students Association in Oslo (1963), 4; also in: Joseph Samuel Nye Jr, Pan-Africanism and East African Integration (1965), 9. 114

Paul Biya, President of Cameroon, [Claim that contemporary African ‘ethnic groups’ are equivalents of small nations with a common language, a common culture and a common pattern of security provision], Cameroon Tribune (2 February 1987). Nevertheless, political scientists as well as historians have commonly treated the post-colonial States as ‘nation States’, ignoring the continuity of collective identities from pre-colonial times. Among many see Veronika Kirschner/Sören Stapel, Does Regime Type Matter? Regional Integration from the Nation States’ Perspective in ECOWAS, in: Tanja Anita Börzel et al. (eds.), Roads to Regionalism (2012), 141. Historians Conrad and Stange even claimed that colonial governments resorted to the “delegation of power to local and regional power holders and elites” for want of capacity and capability of establishing full administrative and military control over the entire

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Convention legalised quests for ‘nation-building’ ex post, thereby cementing domestic conflicts that had continued from the colonial period. Nevertheless, the ILC as well as contemporary theorists of State succession during the 1960s were familiar with the protectorate-establishing treaties laying the basis for the establishment of colonial rule. But, against the wording of some of these treaties,115 the Commission confirmed the late 19th-century theory, according to which precolonial States, when coming under colonial rule, had possessed neither sovereignty nor subjecthood, that governments of pre-colonial States were unfamiliar with the principal norms of the law of treaties, and that, by alleged consequence, there could not be lasting binding agreements among European States and pre-colonial States in Africa, West, South, and Southeast Asia as well as the South Pacific.116 For this perception, the ILC drew on Lassa Oppenheim, the most vocal proponent of this theory in the English speaking world.117 Oppenheim modified the wording of the Final Act of the Berlin Africa Conference, when he created the phrase “colonial protectorate” to denote dependencies bereft of sovereignty and without subjecthood under international law. territories of the dependencies under their sway, see Sebastian Conrad/Marion Stange, Governance and Colonial Rule, in: Thomas Risse (ed.), Governance without a State? Policies and Politics in Areas with Limited Statehood (2011), 39, 48. Even though it is appropriate to point out the fact that colonial government control over the dependencies was thoroughly limited, the treaties under international law between colonial governments and governments in Africa, West, South, Southeast Asia, and the South Pacific contain no evidence whatsoever supporting the claim that some form of power was transferred from colonial governments onto governments in the dependencies. Instead, the treaties have continued to confirm that the latter governments retained not only the governing capabilities but, in many cases, also their sovereignty, while they were forced to apply these capabilities in service to colonial governments. Hence, dependence resulted from the abuse of treaty commitments on the side of the colonial governments rather than from some “delegation of power”. 115

For one, the Treaty Negri Sembilee/Pahang/Perak/Selangor – UK, July 1895, CTS 181, 416, prescribed in Art. 2: “The above-mentioned Rulers and Chiefs of the respective States hereby agree to constitute their countries a Federation, to be known as the Protected Malay States, to be administered under the advice of the British Government.”; likewise in Art. 5: “Nothing in this Agreement is intended to curtail any of the powers or authority now held by any of the above-named Rulers in their respective States, nor does it alter the relations now existing between any of the States named and the British Empire.” That means that both statehood and sovereignty of the heads of the members of the Malay “Federation” were recognised. 116 117

Waldock (note 89), 32; id. (note 1), 4.

Oppenheim (note 60), Vol. 1, 139 et seq. On Oppenheim see Benedict Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, EJIL 13 (2002), 401, 409–416; Mathias Schmoeckel, The Story of a Success: Lassa Oppenheim and His “International Law”, in: Michael Stolleis/Masaharu Yanagihara (eds.), East Asian and European Perspectives on International Law (2004), 57.

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This was Oppenheim’s own idiosyncratic creation replacing the generic term ‘protectorate’ of the Final Act. He added the qualifying attribute to distinguish colonial dependencies from protectorates located in Europe and placed them under international law.118 However, contrary to Oppenheim’s doctrine, many of the protectorateestablishing treaties abrogated neither statehood nor sovereignty nor subjecthood of signatory parties in Africa, West, South, Southeast Asia, and the South Pacific. Instead, they often featured the international legal stipulation that governments of the precolonial States, which were being placed under some generic protectorate, could no longer maintain relations with other States at their own discretion and were bound to entrust conduct of these relations to protectorate holders.119 By contrast, the generally enforceable abrogation of treaty-making capacity was rarely explicit in the texts of protectorate-establishing treaties, although a number of them did request in-advance consent by the protectorate holder to agreements between the government of a pre-colonial State under protectorate and a third party.120 Likewise, there was no generally valid principle demanding that, in cases of the establishment of protectorates, all existing agreements with pre-colonial States had to be scrapped. As late as in 1898, that is, three years after the establishment of the French protectorate over Madagascar, the British government demanded recognition by the French government of the continuing validity of all existing BritishMadagascan treaties.121 And even after World War II, the US government insisted that its agreements with the Moroccan governments had remained in force after the conclusion of the French-Moroccan treaty of 1912,122 and obtained a verdict from the

118

Oppenheim (note 60), Vol. 1, 280 et seq.

119

Arts. I, II Treaty France – Madagascar 1895 (note 24); Art. V Treaty France – Morocco, 30 March 1912, CTS 216 (1981), 20; Art. IV Treaty Buganda – UK, 29 May 1893, CTS 178 (1978), 448; Art. I Treaty Tonga – UK, 18 May 1900, CTS 188 (1981), 415; see O’Connell, State Succession (note 3), Vol. 2, 50 et seq., 143; Waldock (note 70), 37; Zemanek (note 7), 62 et seq.; id. (note 2), 195. 120 Treaty Opobo – UK (note 65); Treaty New Calabar – UK, 4 July 1884, CTS 163 (1978), 159; Treaty Old Calabar – UK, 23 July 1884, CTS 163 (1978), 102; Treaty Bonny – UK (note 67); Treaty France – Tunis, 12 May 1881, CTS 158 (1978), 220, 221, the latter with the stipulation that the French government would be in charge of implementing all existing treaties with these parties in Europe. 121

UK, [British Government Instruction to the British Ambassador in France, 9 July 1898], in: O’Connell (note 24), 20. The view, taken here by O’Connell, that Madagascar should have been annexed into France through the treaty, cannot be confirmed from the text of the instrument. 122

Treaty France – Morocco (note 119).

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International Court of Justice (ICJ) supporting its position.123 Therefore, the protectorate-establishing treaties cannot serve as a legal source for the claims that these instruments should have formed the legal basis for some allegedly regulated renunciation of sovereignty on the side of pre-colonial States and that, henceforth, the latter should not have retained treaty-making capacity. Hence, in supporting these claims, the ILC remained within the unsubstantiable perception, part of late 19thand early 20th-century colonialist legal theory, that pre-colonial States were no States in the sense of international law. Put differently: the ILC did not draw on treaty texts when it determined that governments under protectorates had somehow given up sovereignty and subjecthood when placing themselves under the suzerainty of the protectorate holder or, worse even, were no more than dependent executive agencies holding concessions of limited self-governing capability.124 The ILC took the erroneous view that State destruction had principally occurred in conjunction with the establishment of colonial rule. The ICJ proceeded similarly as late as in 2002, when it decided upon the controversy between Cameroon and Nigeria about control over Bakassi Peninsula. In this case, the federal government of Nigeria demanded the transfer of the peninsula, then on Cameroonian territory, under its control. The Nigerian side argued that the peninsula had once stood under the control of the King of Old Calabar, most of whose territories had become part of Nigeria upon independence. By contrast, Bakassi Peninsula had been transferred from British to German control through a bilateral British-German agreement in 1913. The Nigerian side took the position that this treaty was null and void, as it had been concluded to the disadvantage of a noninvolved third party and as the British government had previously, through its treaty with Old Calabar of 1884, recognised the latter as a sovereign State. As, by consequence, the British government had not been entitled to alienate territory from a sovereign State, the Nigerian government demanded the restoration of Bakassi Peninsula to Nigerian territory. But the Court decided against Nigeria, arguing that Nigeria had failed to produce sufficient evidence to the effect that Old Calabar had been recognised as a sovereign State in 1913, whereas the British government had 123 ICJ, Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), Judgment of 27 August 1952, ICJ Report 1952, 223; see O’Connell, State Succession (note 3), Vol. 2, 51; Westlake (note 92), Vol. 1, 40 et seq., ranked Morocco, next to Turkey, Muscat, Siam, Persia, and China as “partial but not full member of international society” in 1904. 124

Waldock (note 89), 37.

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then manifested itself in control of the peninsula and had thus been entitled to enact the transfer within its own perspective.125 The Court based its decision on Oppenheim’s opinion.126 Indeed, the Nigerian government could only have supported its own stance at the price of the admission that Old Calabar retained its sovereignty until the acquisition of independence by Nigeria as a newly independent State. Hence, the Nigerian side operated within the dilemma, framed by the Vienna Convention of 1978, of either having to confirm the continuing existence of pre-colonial States to the last day of colonial rule or having to recognise the allegedly State-destroying effect of the establishment of colonial rule. As it opted for the latter choice, it lost the case. In other cases of treaties involving pre-colonial States and relating to borders, disputes have turned violent, such as the Cambodian-Thai border near Preah Vihear Temple and sections of the Malaysian-Thai border.127 Theorists categorising decolonisation as State succession, mainly in Africa, have, without exception, shared the position of the ICJ, namely that pre-colonial States were destroyed upon the establishment of colonial rule, and have postulated that decolonisation was identical with State succession from colonial institutions of governance to post-colonial newly independent States.128 Some members of the ILC indeed, took issue with the perception that pre-colonial States should have lacked or lost statehood when they came under colonial rule. Already in 1969, Mohammed Bedjaoui, the ILC’s Rapporteur for aspects of State succession not relating to treaties under international law, made it clear that precolonial States had continued to exist as such under colonial rule: 125 ICJ, Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports 2002, 303. On the case see Matthew C. R. Craven, Introduction: International Law and Its Histories, in: id./Malgosia Fitzmaurice/Maria Vogiatzi (eds.), Time, History and International Law (2007), 1, 19 et seq. 126 According to Art. 38 ICJ Statute (Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 335), the ICJ has been entitled to draw on the opinions of well-established jurists for its decisions, see Alain Pellet, Article 38, in: Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary (2006), 677; Robert Kolb, General Principles of Procedural Law, in: ibid., 793. 127

O’Connell, State Succession (note 3), Vol. 2, 147 et seq.; Treaty Siam – UK, 10 March 1909, CTS 208 (1981), 367. 128

Taslim Olawale Elias, The Modern Law of Treaties (1974), 51 et seq.; Jeffrey Ira Herbst, States and Power in Africa (2000), 35–96; Menon (note 89), 23–46; Mutiti (note 89), 2, 4; Okon Udokang, Succession of New States to International Treaties (1972).

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The truth is that local sovereignties did exist, but the imperial Powers interpreted the concept of a State in accordance with their own juridical criteria and their own canons. […] The next step was to fall back on the argument that a more or less feeble sovereignty existed before the colonization but that the territory was still too backward for the rules of international law of the time to be applied to it.129

Bedjaoui thus reported to the ILC the fact that protectorate-establishing treaties had remained valid under colonial rule. Even contemporary legal theory130 had to follow suit and accept the decision of the British protectorate administration of the Straits Settlements in Southeast Asia to recognise the heads of States in the Malay Peninsula as sovereigns in 1952 and to do so on the basis of a treaty of 1895.131 Therefore, it was not juristic logic but politically motivated connivance that induced the ILC and theorists of State succession to leave unconsidered in their deliberations treaties binding pre-colonial States. These treaties offered the principal possibility of restoring these States upon the end of colonial rule, and neither the ILC nor some theorist was in a position to invalidate them on legal grounds. Hence, the treaties stood against the well attested reluctance of the colonial governments to admit the restitution of pre-colonial States.132 But instead of arguing in support of 129

Mohammed Bedjaoui, Second Report on Succession in Respect of Rights and Duties Resulting from Sources Other than Treaties, ILC Yearbook (1969, Vol. II), 69, 88; Makonnen (note 27), 118. 130

O’Connell, Independence (note 3), 171.

131

Ibid.; Treaty Negri Sembilee – UK (note 115).

132

The key document articulating the demand in the case of the restitution of Buganda is the Memorandum to Queen Elizabeth (note 16). For the popular movement technically known as the ‘Buganda boycott’ of 1960, resulting from the rejection of the demand by the British government, see May Mandelbaum Edel, African Tribalism: Some Reflections on Uganda, Political Science Quarterly 80 (1963), 357; Ian R. Hancock, Patriotism and Neo-Traditionalism in Buganda: The Kabaka Yekka (“The King Alone”) Movement, 1961–1962, Journal of African History 11 (1970), 419; Kenneth Ingham, Uganda: Ein verfassungsrechtliches Problem, Afrika 2 (1960), 103; Matia Semakula M. Kiwanuka, The Uganda National Movement and the Trade Boycott of 1959/60, Makerere Historical Journal 2 (1) (1976), 1; Donald Anthony Low, The Mind of Buganda (1971), 195–202, 211–213; Henry Francis Morris, Buganda and Tribalism, in: Peter H. Gulliver (ed.), Tradition and Transition in East Africa (1969), 323; Richards, Problems (note 21); ead., Values (note 21); Robert I. Rotberg, The Origins of Nationalist Discontent in East and Central Africa, Journal of Negro History 48 (1963), 130; George W. Shepherd, Modernization in Uganda: The Struggle for Unity, in: Stanley Diamond/Fred George Burke (eds.), The Transformation of East Africa (1966), 313; Frederick Burkewood Welbourn, Religion and Politics in Uganda, 1952–1962 (1965), 21–24, 37–41. Already Nye (note 113), 8, as a close contemporary observer, noted the strange coincidence that Buganda was denied restoration as a sovereign State, while at the same time Cyprus received recognition as a newly independent State, even though Buganda featured a more numerous population and a larger territory than Cyprus.

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their strategy, colonial governments proceeded tacitly with the abrogation of the sovereignty and statehood of pre-colonial States in conjunction with decolonisation processes. Rather than recognising this defect as a problem, theorists of State succession adduced the often-manifest lack of compatibility of collective identities in the colonial dependencies with those of the pre-colonial States, argued that therefore both types of identities could not be merged, and concluded that collective identities attached to pre-colonial States had to be given up as collective identities of newly independent States.133 But theorists left unnoticed that that lack of compatibility did not stand in the responsibilty of the governments of post-colonial States but in that of the colonial governments. Practitioners of decolonisation as well as theorists of State succession could even count on approval from those anti-colonial liberation movements whose leaders aimed at taking over colonial institutions of governance in order to allow the removal of colonial suppression at the earliest possible point of time.134 In pursuit of this goal, these anti-colonial liberation movements tied themselves to the former colonial governments in economic and political respects.135 The French government even forced the francophone West African States into a rigid monetary union, the Communauté Financière Africaine (CFA), which pegged the local CFA Franc to the French Franc, subjected these States to French government control of monetary and fiscal policy, and claimed for itself the right to unilaterally modify the exchange rate between the French and the CFA Franc to the disadvantage of West African francophone States.136 In sum, the use of State succession from colonial dependencies as the standard decolonisation procedure was the main factor provoking the instability of post-colonial newly independent States. It is therefore just another inappropriate

133

Lester (note 90), 506; id., State Succession to Treaties in the Commonwealth: A Rejoinder, ICLQ 14 (1965), 262, 263. 134 Rainer Tetzlaff, Fragile Staatlichkeit in der Dritten Welt zwischen Globalisierung und Friedenspolitik, in: Jörg Calließ (ed.), Fragile Statehood: Can Stability and Peace Be Advanced from Outside? (2006), 275, 277. 135 136

O’Connell, Independence (note 3), 113–118; id. (note 47), 1450 et seq.

Rainer Tetzlaff, Die Dekolonisation und das neue Staatensystem, in: Karl Kaiser/Hans-Peter Schwarz (eds.), Die neue Weltpolitik (1995), 34, 38.

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attempt at the ex post legitimation of colonial rule, when some theorists have blamed that instability only on governments of post-colonial States.137

IV. Buganda and Bonny as Examples of Thwarted Restitution of Pre-Colonial States A. Buganda

Through its agreement of 1890 with the German government, the British government obtained a free hand in imposing itself upon most of the Interlacustrine Area of East Africa. The British government decided to subject the area to one single administrative agency and to treat it as one single dependency. The decision eventually resulted in the formation of the “Uganda Protectorate”, which was formally recognised in agreements between Buganda and the UK in 1900,138 between Toro and the UK in the same year,139 and between Ankole and the UK in 1901.140 The Kingdom of Bunyoro, the northern neighbour of Buganda, was included into the “Uganda Protectorate” in 1900, while receiving its own formal treaty with the UK only in 1933.141 There were no treaties involving the States of Busoga, the Langi, Acholi, Kakwa, and Karamojong elsewhere in the protectorate.142 ‘Uganda’, the Swahili name for Buganda, became the name for the protectorate as a whole, making explicit the pre-eminence of the Kingdom of Buganda, whose capital city Kampala (Mengo), the place of the Kabaka’s (King’s) residence, served as administrative centre for the entire protectorate. The 1900 agreements between Ankole and Toro on the one side and the UK on the other 137 Robert H. Jackson/Carl G. Rosberg, Why Africa’s Weak States Persist: The Empirical and the Juridical in Statehood, World Politics 35 (1982), 1; id., Sovereignty and Underdevelopment: Juridical Statehood in the African Crisis, Journal of Modern African Studies 24 (1986), 1, 9. 138 Treaty Buganda – UK, 10 March 1900, CTS 188 (1981), 314; also in: Turton/Griffin/Lewey (eds.) (note 30), 1373. 139 Treaty Toro – UK, 26 June 1900, CTS 188 (1981), 443; also in: Turton/Griffin/Lewey (eds.) (note 30), 1419. 140 Treaty Ankole – UK, 7 August/25 October 1901, CTS 190 (1981), 21; also in: Turton/Griffin/ Lewey (eds.) (note 30), 1365. 141 142

Treaty Bunyoro – UK (note 30).

Treaty Wadelai – UK, 4 February 1894, CTS 179 (1978), 370; Treaty Maswa – UK, 24 March 1894, CTS 179 (1981), 372; Treaty “Chief” Kavalli – UK, 18 April 1894, CTS 179 (1981), 373.

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followed the precedence of the treaty between Buganda and the UK. All three treaties did not feature any stipulation relating to international relations, except that the Kabaka was prevented from taking tribute from other States. Conversely, the agreement explicitly confirmed Buganda’s sovereignty in military matters: “Nothing in this Agreement shall be held to invalidate the pre-existing right of the Kabaka of Buganda to call upon every able-bodied male among his subjects for military service in defence of the country.”143 All four instruments are agreements between sovereign States. At the turn towards the 20th century, the British government, like contemporary international legal theorists,144 took for granted the sovereignty of the then existing African States, even after it had imposed itself as a colonial suzerain over them. Due to the fusion of the recognition of sovereignty and the imposition of suzerainty into one single agreement, the treaty between Buganda and the UK is extant in an unusual form. Its preamble declares the intention of regulating “the government and administration of the Kingdom of Uganda [= Buganda]”, but then continues with a description of the borders of the entire “Uganda Protectorate”.145 The dispositive articles of the treaty combine the commitment to the recognition of the sovereignty of both signatory parties with the enforcement of non-reciprocal specific stipulations. Thus, the Kabaka was forced to transfer essential government capabilities to the British colonial administration, among others to accept the alienation of large parts of State territory for the use by settlers expected to immigrate from the UK. Moreover, the treaty obliged the Kabaka to act as a tax collector for the British colonial administration in the territory under his control and to pledge loyalty to Queen Victoria. On her own part, Queen Victoria received the privilege of approving the chosen successor to Kabakaship.146 Due to the minority of reigning Kabaka Daudi Chwa (in office 1898–1939), the regent signed the treaty on Buganda’s side. The inequality of the East African treaties following the model of the agreement between Buganda and the UK not merely consisted in the lack of reciprocity of 143

Art. II, Art. XIII Treaty Buganda – UK (note 138).

144

Twiss (note 30), 26.

145

Treaty Buganda – UK (note 138), 315. The then Kabaka Mwanga had placed himself under British “Protectorate” through the Treaty between Buganda and the UK (note 119), but had later revoked the treaty. 146

Treaty Buganda – UK (note 138), 316 et seq.

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privileges granted to the British side, but also in the establishment of a hierarchical order among the signatory parties. This hierarchical order did not follow from international legal norms but from norms contained in UK municipal law. It consisted in the reduction of the competence of governing agencies of the pre-colonial States to matters of domestic policy, without explicitly preventing the governments of the precolonial States from concluding treaties under international law. Hence, the treaties left untouched the sovereignty of the involved East African States, including the ius ad bellum for defense, even though their governments came under the suzerainty of the British government. The treaties thereby combined sets of legal entitlements pertaining to sovereignty with those reserved for suzerainty. In contradistinction against earlier 19th-century treaties, these agreements did not feature the formulary of peace treaties, even though they might have been concluded after some military conflict. Instead, the 1900 treaty between Buganda and the UK displays a phraseology, according to which the African side had allegedly requested some “protection” to be provided by the European side,147 with some African governments even being made to have requested “protection” in full use of their own sovereign rights, purportedly in efforts to retain the “independence”.148 Moreover, some, but not all, protectorateestablishing treaties specified the privilege of the ‘protecting power’ to represent the ‘protected’ side in the international arena.149 Yet, from the turn towards the 20th century, not only the British and the German but also other colonial governments ever more often resorted to the practice of entering into treaties among themselves about African States, thereby converting their African treaty partners from subjects into uninvolved objects under international law.150 African States were left unin147

See supra, note 120.

148

Art. I Treaty Rulers of Beteadougou, Farimboula, and Mekhadougou – France, 3 April 1880, CTS 156 (1978), 330; Art. I Treaty German Empire – Togo, 15 July 1884, CTS 164 (1978), 214. 149 150

Treaty France – Madagascar (note 24).

Treaty France – UK, 2/9 February 1888, CTS 170 (1981), 475 [respecting the Golf of Tajourra and Abyssinia]; Treaty German Empire – UK (note 95); Treaty South African Republic – UK [respecting Swaziland], 10 December 1894, CTS 180 (1981), 438; Treaty Egypt – UK [respecting the future administration of the Sudan], 18 January 1898, CTS 187 (1981), 155; Treaty German Empire – UK [respecting Portuguese colonial dependencies in Africa], 30 August 1898, in: Johannes Lepsius/ Albrecht Mendelssohn-Bartholdy/Friedrich Thimme (eds.), Die Große Politik der europäischen Kabinette, Vol. 14 (1927), 347. Entente cordiale between France and the UK, 8 April 1904 [four treaties respecting Egypt, Morocco, Newfoundland, West- and Central Africa, Siam, Madagascar, and the New Hebrides], CTS 195 (1981), 198. For a contemporary comment on this practice see Franz von Holtzendorff, Handbuch des Völkerrechts, Vol. 2 (1886), 256–267.

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formed about the shift from subjecthood to objecthood, as this shift became explicit only in agreements among European colonial governments.151 The incompatibility between form and contents of the protectorate-establishing treaties among African and European governments thus resulted in the subjection of law to political power. The elevation of might over right did by no means end with the establishment of protectorates but continued through the unilateral transformation of the international legal status, which European colonial governments were willing to grant to their dependencies. In the early years of the 20th century, they unilaterally transformed the international legal status of African States and did so by breaking valid agreements. The shift from legal subjecthood to legal objecthood took place through domestic administrative acts of the colonial governments and found its bureaucratic expression in the shift of competences for the conduct of relations with African States. While European foreign ministries had been in charge of making protectorate-establishing treaties, once these treaties were in force, European governments entrusted the further handling of relations with their African treaty partners to colonial ministries.152 The shift implied that, in the perception of European colonial governments, the dependencies no longer stood under international law, even though the protectorate-establishing treaties remained in force. In regard to Buganda, the British government enacted the shift in 1907 without informing its treaty partner. The government of Buganda well understood that, according to the logic of the treaty of 1900, Buganda had been recognised as a sovereign State, and was aware of the implications of the shift of competence within the British government. Buganda, it is true, remained calm well into the 1920s and did not feature immediate violent protests. However, the British government, after it had been entrusted with the League of Nations ‘Mandate’ over Tanganyika (German East Africa to the end of World War I), developed the project to establish an institution it termed “Closer Union” above its East African dependencies and did so in an attempt to reduce the costs of colonial administration, while Daudi Chwa as Kabaka of Buganda voiced opposition against the move. The British government dispatched two Colonial Office commissions to investigate the viability of the project and to submit a detailed imple151 The Treaty France – UK on West and Central Africa 1904 (note 150), 206–216, regulated the transfer of colonial control over territories in the region and featured stipulations implying that the text of the agreement should not be communicated to the affected African governments. 152

Karl Theodor Helfferich, Zur Reform der kolonialen Verwaltungs-Organisation (1905), 7–16.

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mentation plan.153 Before the second commission arrived in East Africa, the Kabaka addressed a letter of protest to the Colonial Office. In the letter, he referred to the treaty of 1900 and emphasised his position as the sovereign ruler of Buganda. He claimed that, as a sovereign, he had to be heard about the implementation of the project, declared that Buganda’s status as a State within the “Uganda Protectorate” was guaranteed under the treaty and that he was not willing to accept the integration of Buganda in any larger entity than that of the “Uganda Protectorate”. Subsequently, he campaigned against what he perceived as excessive foreign influences in Buganda.154 With this position, the Kabaka was by chance in agreement with British settlers who had immigrated to Kenya and also rejected the plans for the establishment of a new administrative agency operating between the existing colonial authorities and the central British government. The settlers were fearful that the new roof agency would reduce their influence in the dependency. The British government, taken by surprise at the resistance, shelved the project.155 Violent resistance emerged only after the British government acted with determination in 1948 and, without further consultations, imposed the new agency under the name East Africa High Commission. The Commission was to be in charge of common issues relating to the three dependencies of Kenya, Tanganyika, and Uganda. Kabaka Mutesa II, who had succeeded to his father in 1939, refused to accept the establishment of the new agency. Although, in his capacity as head of State, he was invited to attend the coronation ceremony for Queen Elizabeth II in 1953, tensions with Sir Andrew Benjamin Cohen, British colonial governor of the “Uganda Protectorate”, intensified. In the same year 1953, Cohen saw reason to remove Mutesa from the office of the Kabaka and to exile him to London. Cohen’s decision triggered violent protest in Buganda, which continued to

153

William George Arthur Ormsby-Gore, East Africa: Report of the East Africa Commission, Cmd 2387 (1925); Edward Hilton Young, Report of the Commission of the Dependencies in Eastern and Central Africa, Cmd 3234 (1929); both texts partly edited in: Donald Sylvester Rothchild (ed.), Politics of Integration: An East African Documentary (1968), 20 et seq., 26–30. 154 Daudi Chwa II, Kabaka of Buganda, [Letter to William Ormsby-Gore, dated 29 October 1927], Papers Relating to the Question of Closer Union of Kenya, Uganda and the Tanganyika Territory, Colonial 57 (1931), 81 et seq.; partly edited in: Rothchild (ed.) (note 153), 21–22; id., Education, Civilisation and “Foreignisation” in Buganda [1935], in: Donald Anthony Low (ed.), The Mind of Buganda (1971), 104. 155

Samuel Wilson, Report of Sir Samuel Wilson on His Visit to East Africa, 1929, Cmd 3378 (1929); partly edited in: Rothchild (ed.) (note 153), 34 et seq.

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1955, when the British government allowed Mutesa to return in triumph.156 From then on, Mutesa emerged as the paramount leader of the anti-colonial liberation movement in East Africa. In Mutesa’s perception, the goal of removing British colonial rule in East Africa was self-evidently identical with the scrapping of the 1900 treaty and the restoration of Buganda to its pre-colonial position as a subject under international law. But this demand met with staunch resistance on the side of the British government, which was determined to admit only the entire “Uganda Protectorate” as a newly independent State.157 In the resulting conflict, which lasted until 1962, the British government was eventually successful. The “Uganda Protectorate” acquired independence as the ‘Republic of Uganda’ on 9 October 1962. Yet, the British government paid a high price for its determination. The price consisted in the acceptance of Mutesa as Kabaka of the traditional monarchy of Buganda within Uganda and, at the same time, as President of the entire new ‘Republic of Uganda’. This marriage between incompatible offices lasted for no more than four years. In 1966, Mutesa was again driven out of the ‘Republic of Uganda’ and had to seek exile once more in London. Here he died in 1969 under circumstances that have remained uncertain. Following Mutesa’s departure from his offices, the ‘Republic of Uganda’ plunged into conflicts, which turned 156 On the death of Daudi Chwa see F. Lykyn Williams, The Kabaka of Buganda: Death of His Highness Sir Daudi Chwa II, K.G.M., K.B.E., and Accession of Edward Mutesa II, Uganda Journal 7 (1940), 176. On succession rules in Buganda see Martin Southwold, Succession to the Throne in Buganda, in: Jack Goody (ed.), Succession to High Office (1966), 82. On the crisis of the years 1953–1955 see Uganda Protectorate: Withdrawal of Recognition from Kabaka Mutesa II of Buganda, Colonial 9028 (1953); partly edited in: Rothchild (ed.) (note 153), 56–59; Reform in Buganda: Background of the Hancock Commission, Round Table 45 (177) (1954), 36; B. D. Bowles, Economic Anti-colonialism and British Reaction in Uganda, 1936–1955, Canadian Journal of African Studies (CJAS) 9 (1975), 51; Andrew Benjamin Cohen, Uganda’s Progress and Problems, African Affairs 56 (1957), 111; id., British Policy in Changing Africa (1959), 31–62; M. A. Danilov, Natsional’ no-osvoboditel’noe dviženie v ugande v 1945–1955 godach, Voprosy istorii 1 (1962), 85; Matia Semakula M. Kiwanuka, Nationality and Nationalism in Africa: The Uganda Case, CJAS 4 (1970), 229; Donald Anthony Low, The Buganda Mission 1954, Historical Studies 13 (1968), 353; Ramkrishna Mukherjee, The Problem of Uganda, Abhandlungen der Deutschen Akademie der Wissenschaften zu Berlin, Klasse für Philosophie, Geschichte, Rechts- und Staatswissenschaften, 1955 Nr. 2 (1956), 275–281; George Padmore, The Buganda Crisis, United Asia 6 (1954), 265; Robert Cranford Pratt, The Anatomy of a Crisis: Uganda 1953–55, International Journal 10 (1955), 267; id., The Crisis of 1953–1955, in: id./ Donald Anthony Low, Buganda under British Overrule (1960), 317–349; Stanley Alexander de Smith, Constitutional Monarchy in Buganda, Political Quarterly 26 (1955), 4. Mutesa II reported on these events in Edward Frederick Mutesa II, Kabaka of Buganda, Desecration of My Kingdom (1967). 157

See supra, note 132.

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into warfare in 1971 and continued well into the 21st century. The lack of stability of the ‘Republic of Uganda’ was thus built into the decolonisation procedure.

B. Bonny

The government of the island State of Bonny in the eastern Niger River Delta entered into its first treaty with the British government in 1836.158 To the year 1884, various bilateral agreements followed, which either both governments made out or which the Bonny government concluded with third parties under British intermediation.159 The treaty of 1884 finally placed Bonny as a sovereign State under a British protectorate: Her Majesty the Queen of Great Britain and Ireland etc., in compliance with the request of the King, chiefs and people of Bonny, hereby undertake to extend to them and to the territory under their authority and jurisdiction her gracious favour and protection. […] The King and chiefs of Bonny agree and promise to refrain from entering into any correspondence, Agreement or treaty with any foreign nation, except with the knowledge and sanction of Her Britannic Majesty’s Government.160

According to this agreement, of which virtually identical versions came into existence with neighbouring West African coastal States in the same year,161 the usual protectorate clause applied to Bonny, whose government was no longer entitled to conduct international relations with other governments except by British government approval. According to the treaty, which was written out indefinitely, the Kingdom of Bonny continued to exist as a sovereign State. Bonny retained its sovereignty, even when the British government unilaterally enacted the so-called ‘Amalgamation’ on 1 January 1914. Through this measure, all British colonial dependencies along the Ri158

Treaty Bonny – UK, 25 January 1836, in: Jones (note 67), 221 et seq.; also in: CTS 86 (1969), 420.

159

Treaty Bonny – UK, 21 November 1848, CTS 102 (1969), 412; Treaty New Calabar/Bonny – UK, 2/3 October 1850, CTS 104 (1969), 319–325; also in: Jones (note 67), 222–225; Treaty Bonny – UK, 23 January 1854, in: Jones (note 67), 225–227; Treaty Bonny – UK, 12/15 September 1855, CTS 113 (1969), 396; Treaty Bonny – UK, 20 January 1869, in: Jones (note 67), 232–233; Treaty Bonny – New Calabar [peace agreement intermediated by the British government], 1871, in: Jones (note 67), 233–235; Treaty Bonny/Opobo – UK, 2/3 January 1873, in: Jones (note 67), 237–239; Treaty Bonny – UK (note 67). 160

Arts. I, II Treaty Bonny – UK (note 67).

161

See supra, note 120.

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ver Niger fell under one colonial government authority in the newly established ‘Protectorate of Nigeria’. The Amalgamation was to be established for a period of 100 years. Under the Act and in accordance with the European public law of treaties among States, the Kingdom of Bonny continued to exist as a sovereign State. The status of Bonny remained unchanged until the Federal Republic of Nigeria obtained independence on 1 October 1960 in succession to the colonial ‘Protectorate of Nigeria’. Only on the day of the independence of the Federal Republic of Nigeria did Bonny formally cease to exist as a sovereign State in Bonny perspective and was reduced to a municipality under Nigerian municipal law. A new militant movement, demanding independence for oil-rich Bonny since 2012, has claimed that Bonny as a State has never been formally dissolved and that the treaty of 1884 should continue to be regarded as in force.162 Again, the lack of stability of a post-colonial State resulted from the choice of decolonisation procedure. The examples of Buganda and Bonny point to many parallels with other African States, which had become subject to European colonial rule. The most significant parallel consists in the contradiction that was manifest between the African and European perspectives on the legal bases of colonial rule. Whereas, in the European perspective, colonial rule was constituted through the unilateral transformation of the legal subjecthood of African States into their objecthood, in African perspective, the sovereignty of pre-colonial States continued under European suzerainty as stipulated by protectorate-establishing treaties. In African perspective, then, European colonial governments acted in breach of treaties. Whereas, in European perspective, the establishment of European colonial rule resulted in the destruction of African States, in African perspective, no change of the international legal status of African States took place at the time of the establishment of European colonial rule. As, in African perspective, pre-colonial States continued in existence where their sovereignty had been confirmed through treaties, the destruction of pre-colonial States did not occur before the time, when colonial institutions of governance succeeded as post-colonial newly independent States. 162 Dokubo Asari, Interview with Nigeria Television Authority (NTA) News, 10 October 2012, available at: http://www.youtube.com/watch?v=rXN9Dpv_Aoc (accessed on 21 January 2016); id., Interview with TVC News, 5 May 2013, available at: http://www.youtube.com/watch?v=s6TpvQOqq0M (accessed on 21 January 2016). I owe these references to the kindness of Frederick Agwaga and Solomon Ubochi. Tayo Oke, The 1914 Amalgamation: Historic Fraud or an Act of God?, Sahara Reporters, 18 February 2013, available at: http://saharareporters.com/2013/02/17/1914-amalgamation-historicfraud-or-act-god-tayo-okephd (accessed on 21 January 2016).

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V. The Post-Colonial Newly Independent States and the Burden of Decolonisation Orchestrated as State Succession Like the Vienna Convention on State Succession with Respect to Treaties of 1978, the theory of State succession has left unattended the problem of the continuing existence of protectorate-establishing treaties and of the continuity of pre-colonial States under colonial rule. In this respect, it has self-evidently classed decolonisation as State succession from dependencies under colonial rule to post-colonial newly independentStates.163 Likewise, the theory of international relations has followed the premise that post-colonial States could only have emerged from dependencies and has downgraded collective identities of pre-colonial States to post-colonial ‘ethnicities’.164 Whereas international legal theorists have attempted to rationalise the ad hoc implemented decolonisation processes as cases of State succession, theorists of international relations have taken a step further and searched for factors, in their view, bringing about the lack of stability of post-colonial States, mainly in Africa. In search for factors of the instability of post-colonial States, they put the blame on the governments of these States. Specifically, theorists of international relations have accused these governments of hijacking public institutions into their property in efforts to alienate State assets. Such “Quasi States”, theorists opined, were “weak”, because ruling elites were isolating themselves from populations under their control but continued to exist because they were serving as sources of elite wealth and power.165 In view of most decolonisation procedures, this theory is untenable, even though corruption and rights abuse are on record in post-colonial newly independent States.166 In order to support allegations of State “weakness”, theorists of international relations have used the alleged “strength” of 19th-century European States as the benchmark, which they have set absolute without concern for culturally specific models and concepts of statehood. In doing so, they have left unnoticed the responsibility of colonial governments for shaping decolonisation processes. They have, 163

Andrew M. Beato, Newly Independent and Separating States’ Succession to Treaties: Considerations on the Hybrid Dependency of the Republics of the Former Soviet Union, American University International Law Review 9 (1994), 525, 534 et seq.; Bühler (note 6); Zimmermann (note 5), 23 et seq. 164

Jackson (note 92), especially 78–82. Contra Jackson see Bayart (note 19), 41 et seq.

165

Jackson/Rosberg, Why Africa’s Weak States Persist (note 137).

166

As emphasised by Bayart (note 19).

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indeed, admitted that colonial governments determined the choice of the decolonisation procedure and bear responsibility for the delineation of international borders.167 However, theorists of international relations have been unwilling to take into consideration that the lack of stability of post-colonial States has resulted, not primarily from arbitrarily drawn colonial borders as such, but essentially from conflicts among incompatible collective identities tied together or separated through these borders, and they have been rash to debunk continuing popular loyalty to pre-colonial States as an indicator of some purported “backwardness”.168 In the light of the theory of “weak” States, ruling elites in post-colonial newly independent States failed to fulfill the externally imposed task of ‘building nations’ from the incompatible collective identities that colonial governments left behind.169 Occasionally, some historians concede that, relating to Africa, the time span of some eight decades available for ‘nation-building’ under colonial rule may not have sufficed to enhance the stability of post-colonial States, even more so because colonial governments themselves did not take any ‘nation-building’ measures. Yet, this observation ignores the well-recorded efforts of some governments, such as in Buganda, to activate pre-colonial collective identities for post-colonial ‘nation-building’. If they looked into the fates of pre-colonial States at all, historians and theorists alike have taken a distanced view towards these efforts, while claiming that pre-colonial States, as a rule, did not form “larger historical communities” and thus seemed hardly qualified as postcolonial States.170 The causal nexus between decolonisation as State succession and the destruction of the sovereignty, as well as in many cases of the statehood, of pre-colonial States has 167

Jackson/Rosberg, Sovereignty (note 137), 9.

168

Rainer Tetzlaff, Das Dekolonisationsparadox: Nationaler Souveränitätsgewinn bei zunehmender internationaler Interdependenz, in: id./Ulf Engel/Andreas Metzler (eds.), Afrika zwischen Staatsversagen und Demokratisierung (1995), 47, 47. 169

Robert H. Jackson, Conclusion, in: id./Peter Duignan (eds.), Politics and Government in African States, 1960–1985 (1986), 408, 415; Karl Wolfgang Deutsch, Nationalism and Its Alternatives (1969), 79–83. For political theorists claiming that decolonisation as State succession from colonial protectorates and the like was everything but surprising and that the newly independent States should be constituted as ‘nation-States’ without any ado see Philip G. Roeder, Where Nation-States Come From: Institutional Change in the Age of Nationalism (2007), 6, 35 et seq.; Mark W. Zacher, The Territorial Integrity Norm: International Boundaries and the Use of Force, International Organization 52 (2001), 215. 170

Reinhard (note 28), 504. Likewise already Karl Wolfgang Deutsch, Nationalism and Social Communication (1953), 70. Contra: Thiam (note 79), 513 et seq.

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thus remained unnoticed in theories of international law and international relations, much to the disadvantage of their explanatory potential. Such neglect is unfortunate, as empirical cases demonstrate that the nexus was virulent during decolonisation processes affecting, for example, Buganda, which lost sovereignty but not statehood in defiance in 1962, or in Bonny, which lost sovereignty and statehood in 1960 but featured the beginning of militant resistance more than 50 years after the accomplishment of the independence of Nigeria. These acts of State destruction, which were imposed in large numbers throughout Africa, West, South, and Southeast Asia as well the South Pacific, took place neither as acts under positive international law rules, the relevant of which were not codified before 1978 and went into force only in 1996, nor within the municipal law of the newly independent States, as their legal systems went into force only after the destructions of pre-colonial States had been implemented tacitly during ongoing decolonisation processes. As problems resulting from the continuing validity of protectorate-establishing treaties have been left unattended, the question has remained formally unanswered, when and how pre-colonial States have ceased to exist as sovereigns in post-colonial times. Hence, it has remained arguable that most of the pre-colonial States have never been dissolved and that sovereignty has not been removed from them through any formal binding procedure. On the contrary, in all cases in which the establishment of colonial rule consisted mainly in the assemblage of monopolies for the conduct of international relations in the hands of colonial governments through the conclusion of bilateral treaties, the restitution of pre-colonial States by way of the revocation of these monopolies and the consensual abrogation of protectorate-establishing treaties would actually have been the mandated decolonisation procedure. In the perception of groups demanding the restoration of pre-colonial States, colonial governments dictated both the unilateral abrogation of the sovereignty of pre-colonial States as well as the decolonisation procedure and, in doing so, acted in breach of treaties. That this conclusion can spark recourse to the right of resistance against unlawful acts goes without saying. Therefore, the lack of stability of newly independent States is the consequence not only of colonial rule, but also of the decolonisation procedure imposed by the withdrawing colonial governments.171 In sanctioning this procedure, the Vienna Convention on State Succession with Respect 171

Frank Füredi, The New Ideology of Imperialism (1994), 94; Obiora Chinedu Okafor, ReDefining Legitimate Statehood: International Law and State Fragmentation in Africa (2000), 39.

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to Treaties of 1978 has rendered unassailable State successions from colonial dependencies within their borders. Consequently, pre-colonial States can, within the currently valid law of State succession, only be restored through unregulated, and often violent, secessions from post-colonial States. The hope that the force of the factual might, in the long term, allow pre-colonial States to fade from collective memories, is an illusion, as, for example, the continuing claim for the uninterrupted existence of the Cherokee State and the movements for the restoration of Bonny and Buganda have demonstrated. After all, treaties confirming the subjecthood of States under international law cannot be deleted from the records.

The Palestinian Right to Exploit the Dead Sea Coastline for Tourism MARCO LONGOBARDO(

ABSTRACT: Scholars in the past decades have paid little attention to the exploitation of the Dead Sea coastline for tourism purposes. The Dead Sea’s Israeli and Jordanian shores are famous touristic attractions at the basis of a quickly expanding industry. In contrast, the Palestinian portion of the Dead Sea coastline is not exploited for tourism; it falls into the socalled Area C of the West Bank, where the government of Israel maintains total control and construction permits for tourism-related investments have been constantly denied to Palestinian investors. The present essay aims to analyse the Palestinian right to exploit the Dead Sea coastline in light of the relevant international law framework, based on international humanitarian law, on the principles of self-determination of peoples, and of permanent sovereignty over natural resources. Moreover, the situation will be evaluated in light of the Oslo accords, which embody provisions regarding the Palestinian Dead Sea exploitation. The result of the analysis is that, according to international law, Palestinian investors have the right to exploit the Dead Sea coastline, which falls into the West Bank. Israel, as an occupying power, cannot deny the Palestinians access to their coastline, and its current policy rises to the level of an international wrongful act. KEYWORDS: Dead Sea, Israel, Natural Resources, Occupation, Palestine, Tourism

(

PhD Candidate, International Law and European Union Law, School of Law, University of Rome ‘Sapienza’; Teaching Assistant, International Law, School of Law, University of Messina. I wrote this article during a research period as Visiting PhD Fellow at the School of Law, Middlesex University of London. Mail: [email protected]. I wish to thank Anthony Cullen, Marcella Distefano, Ardi Imseis, Federica Violi, and the anonymous reviewers of this Yearbook for their helpful comments on previous drafts of this paper. I am also grateful to Alessandra Lanciotti, who chaired the legal workshop “Lakes: The Mirrors of the Earth”, 5 September 2014, Perugia, where the ideas for this article first came up in my mind. Obviously, the responsibility for any mistakes rests with the author.

318 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 But, Father, here was a people rooted in its land, and land it is not for God to give, but for hunger and love to have it.1 Roberto Vecchioni, Shalom

I. Introduction The management of fresh water sources in the Occupied Palestinian Territory (OPT) has been extensively debated among scholars in the past few decades and it is widely considered one of the most complex issues related to the Israeli-Palestinian conflict.2 Because all human beings have to drink, cook, and wash, water sources are indispensable for living; accordingly, as stated by the United Nations (UN) Committee on Economic, Social and Cultural Rights’ General Comment No. 15,3 there is room to argue about the existence of a human right to water,4 a right that is enjoyed also by civilian populations during armed conflicts.5 This essay will focus on an issue related to the use of a water source in Palestine, long untreated in the literature: the Dead Sea. Scant attention has been paid to the rules about the exploitation of the Dead Sea waters and coastlines, which can ease human needs in a number of ways: Dead Sea waters are neither drinkable nor suitable for agricultural uses due to their salinity, but the Dead Sea’s Israeli and Jordanian shores attract many tourists every year, fuelling a rich industry in both countries. On the other hand, the Palestinian portion of the Dead Sea coastline is not exploited for touristic purposes, since it falls into a part of the West Bank where the government of Israel maintains total control over both civil and military administration, resulting in 1 These lines are from the song “Shalom” of the Italian singer-songwriter Roberto Vecchioni (Il lanciatore di coltelli, 2002) (translated by the author). The original text is: “Ma Padre, qui c’era un popolo piantato nella terra, e la terra non può darla Dio, ma la fame e l’amore di averla”. 2 Among others, see Iain Scobbie, H2O After Oslo II: Legal Aspects of Water in the Occupied Palestinian Territory, Palestine Yearbook of International Law (PYBIL) 8 (1994–1995), 79; Laurent Calligé (ed.), De l’eau et de la paix: conflit et coopération israélo-palestiniens (2008); Amanda Chill Ripley, The Human Right to Water and Its Application in the Occupied Palestinian Territories (2011). 3

United Nations (UN) Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant), UN Doc. E/C.12/2002/11 (2003). 4

See, generally, Inga T. Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation (2012). 5

See, recently, Mara Tignino, L’eau et la guerre: éléments pour un régime juridique (2011).

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construction permits for tourism-related investments being systematically denied to Palestinians. This essay will analyse the Palestinian right to exploit the Dead Sea coastline in light of the relevant international law framework, especially through the lens of the international rules on belligerent occupation. According to these rules, the occupying power must take all the measures available to restore and ensure, as far as possible, public order and civil life. Consequently, there is room to argue that Israel must guarantee a sustainable economic development of the West Bank, allowing Palestinian investors to exploit the Dead Sea coastline for touristic ends. Moreover, the role of the principles of self-determination of peoples and of permanent sovereignty over natural resources will be examined. It will be argued that the Palestinian people has not lost the right to use the natural resources of its land due to the prolonged Israeli occupation, even if the Israeli belligerent occupation restricts the exercise of this right, and that today the State of Palestine is entitled to exercise its rights on the Dead Sea coastline. In addition, other international treaty law norms will be taken into account, such as those of the human rights conventions ratified by Israel and of the Oslo accords. The result of the analysis is that the Palestinian people, today through the State of Palestine, has the right to exploit Palestine’s Dead Sea coastline under both international customary and treaty law.

II. The Situation of the Dead Sea Coastlines: An Overview The Dead Sea is a salt lake bordered by Jordan, Palestine, and Israel. It lies in the Jordan Rift Valley and the Jordan River is its main tributary. The Dead Sea is famous for being the Earth’s lowest elevation on land, the deepest hyper-saline lake on Earth, and one of the world’s saltiest bodies of water. Such a high percentage of salt obviously prevents the flourishing of fish and other animals, accounting for the lake’s name.6 The level of the water has constantly reduced in recent years, due to the overexploitation of the water of the Jordan River Basin; this exploitation, though, is essential for 6

See, generally, Encyclopædia Britannica, Dead Sea, available at: http://www.britannica.com/place/ Dead-Sea (accessed on 12 November 2015).

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agriculture and farming in Israel, Jordan, Lebanon, and Syria.7 However, these States’ overexploitation endangers the delicate environmental balance of the Dead Sea, while at the same time the decrease in the water level causes the emergence of new elevations that were covered by the water before.8 The mining of Dead Sea mud, rich in minerals with extraordinary curative effects, is a secondary source of danger for the Dead Sea ecosystem because the evaporation of the Dead Sea water is part of the extracting process and polluting chemical products are used in the same process.9 The Palestinian Dead Sea coastline is part of the West Bank, one of the main areas of the OPT.10 Since 1967, the Palestinian Dead Sea shore has been under Israeli control and administration, a situation that did not cease with the Oslo accords, a number of agreements between Israel and the Palestine Liberation Organization (PLO).11 According to the terms of these agreements, the Palestinian Dead Sea shore and the surrounding land are situated in the so-called Area C, and, therefore, are un-

7 See Stephen C. McCaffrey, The Shrinking Dead Sea and the Red-Dead Canal: A Sisyphean Tale?, Global Business and Development Law Journal 19 (2006), 259, 259 et seq. On the legal regime of the Jordan Basin, see George Pring/Donald E. Frick, Jordan River, Max Planck Encyclopedia of Public International Law (MPEPIL), January 2008, available via: www.mpepil.com (accessed on 30 October 2015). 8 See Al-Haq, Pillage of the Dead Sea: Israel’s Unlawful Exploitation of Natural Resources in the Occupied Palestinian Territory (2012), 23. 9

Ibid., 23 et seq.

10

This expression commonly refers to all the areas that were under the expired British Mandate from 1920 to 1948 and which are not included within the Israeli territory. The international community embraces the notion that the territory of Israel does not include the Gaza Strip, the West Bank, and East Jerusalem, which together form the OPT; usually, commentators refer to the so-called Green Line, the armistice border created in 1949, but the exact position of Israeli and Palestinian borders is an issue still to be negotiated. See 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. 72. On the definition of these borders, see Michael Bothe, Drawing Borders as a Means to Restore and Maintain Peace: From Palestine to Kosovo and Back, in: Peter Hilpold (ed.), Kosovo and International Law: The ICJ Advisory Opinion of 22 July 2010 (2012), 181, 185. More generally, see Peter Malanczuk, Israel: Status, Territory and Occupied Territories, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (MPEPIL), Vol. II (1990), 149. 11

The most important agreements forming the Oslo accords are the following: Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993; Agreement on Gaza Strip and Jericho Area, 4 May 1994; Israeli-Palestinian Interim Agreement, 28 September 1995; Protocol Concerning the Redeployment in Hebron, 17 January 1997; Wye River Memorandum, 23 October 1998; Agreement on Movement and Access, 15 November 2005 (all these agreements are available via: www. mfa.gov.il (accessed on 30 October 2015)). For an overview, see Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Agreements (2000).

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der total Israeli military and administrative control.12 The partition of the West Bank in different areas (A, B, C) was supposed to be temporary and to cease upon the conclusion of a final-status agreement that has not been concluded so far. Since the beginning of the occupation, the Israeli administration has passed a number of legislative acts related to the regulation of civil life in the area. These acts were mainly military orders, dealing with both the security needs of the Israeli citizens dwelling in the occupied territory and the activities of the Palestinian residents.13 Today, there are a number of Israeli settlements in the proximity of the Palestinian Dead Sea shore, built on lands which were owned by Palestinians in the past;14 according to the Independent International Fact-Finding Mission established by the UN Human Rights Council, “[e]ighty-six per cent of the Jordan Valley and the Dead Sea is under the de facto jurisdiction of the settlement regional councils. Settlements exploit mineral extraction and fertile agricultural lands, denying Palestinians access to their natural resources.”15 Israel mainly managed to seize these areas by declaring them ‘State land’, dispossessing the Palestinian population in order to build settlements and related infrastructures (e.g. roads); in addition, some areas were declared closed military areas or natural reserves.16

12

See Arts. XI (3) and XVII Israeli-Palestinian Interim Agreement.

13

On the Israeli administration, see Raja Shehadeh, The Legislative Stages of the Israeli Military Occupation, in: Emma Playfair (ed.), International Law and the Administration of Occupied Territories (1992), 151; Eyal Benvenisti, The International Law of Occupation (2nd ed. 2012), 212 et seq. 14

See Al-Haq (note 8), 13.

15

UN Human Rights Council (HRC), Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem, UN Doc. A/HRC/22/63 (2013), para. 36. 16

Israel appropriated portions of land by declaring them closed military areas through Military Orders No. 151 (1 November 1967), No. 377 (19 March 1970), No. 378 (20 April 1970); other zones were declared natural reserves by Military Orders No. 363 (22 December 1969) and No. 373 (8 February 1970). Palestinian land has been seized also by Military Order No. 58 (22 December 1969), which declared as ‘State land’ abandoned land and, therefore, all property belonging to Palestinians living in Israel who fled or were expelled in 1948, or who left the West Bank before 7 June 1967. For an overview on the Israeli policies about the seizure of Palestinian lands, see Raja Shehadeh, Occupier’s Law: Israel and the West Bank (1985), 17 et seq.; George E. Bisharat, Land, Law, and Legitimacy in Israel and the Occupied Territories, The American University Law Review 43 (1994), 467.

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According to other sources, Israel prevents Palestinians from visiting the Dead Sea shore and Israeli soldiers have been reported to have stopped Palestinians at checkpoints without any military or security needs but only with the aim of excluding them from the beaches and the proximity of Israeli tourists.17 In addition to the physical hindrances for Palestinians trying to visit the Dead Sea shore, the Israeli administration has systematically denied construction permits for Palestinian tourism-related investments on the shore.18 Conversely, both Israel and Jordan have intensively developed the Dead Sea as a tourist destination and are reaping huge economic benefits: According to the World Bank, on the Jordanian and Israeli shores, there are about twenty 5-star or 4-star hotels, with hotel revenues of $291 million accruing to Israel and $18 million accruing to Jordan in 2012.19 Palestinian investors and the population in general are deliberately precluded from this source of economic development. It is therefore necessary to evaluate Israeli policy related to the Palestinian Dead Sea shore in light of applicable international law.

17 See UN Office for the Coordination of Humanitarian Affairs, Protection of Civilians Weekly Report, 17–23 October 2007, available at: www.ochaopt.org/documents/weekly%20briefing%20note% 20230.pdf (accessed on 30 October 2015). See also Donald MacIntyre, Palestinians Barred from Dead Sea Beaches to ‘Appease Israeli Settlers’, The Independent, 14 June 2008, available at: www.independent. co.uk/news/world/middle-east/palestinians-barred-from-dead-sea-beaches-to-appease-israeli-settlers846948.html (accessed on 30 October 2015); Jessica Purkiss, Tourism as a Tool to Erase Palestinian Identity, Middle East Monitor, 22 March 2014, available at: https://www.middleeastmonitor.com/ articles/middle-east/10456-tourism-as-a-tool-to-erase-palestinian-identity (accessed on 12 November 2015). 18

World Bank, Poverty Reduction and Economic Management Department, Middle East and North Africa Region, West Bank and Gaza: Area C and the Future of the Palestinian Economy, 2 October 2013, Report No. AUS2922, para. 46, available via: http://documents.worldbank.org/curated/en/2013/ 10/18836847/west-bank-gaza-area-c-future-palestinian-economy (accessed on 12 November 2015). 19

Ibid., para. 47.

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III. The Law of Belligerent Occupation as the Principal Relevant Legal Framework A. Positive Obligation of the Occupying Power to Encourage the Economic Development of the Occupied Territory

In June 1967, Israel took control of the West Bank, East Jerusalem, and the Gaza Strip, then held by Jordan and Egypt, during the international armed conflict commonly referred to as the Six-Day War.20 Accordingly, the OPT is under belligerent occupation, a situation in which a State gains effective control over a territory outside its boundaries through the use of military force.21 The concept of belligerent occupation is set out in Article 42 Hague Regulations,22 as well as in international customary law.23 Despite the fact that the Israeli government argues that the OPT is not occupied but simply administered,24 the rest of the international community shares the view that Israel is an occupying power bound by the relevant rules of international law,25 an opinion affirmed by the International Court of Justice (ICJ) in 200426 and 20

See, generally, John Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War (2012). 21 The literature about belligerent occupation is very rich. See, for instance, Yoram Dinstein, The International Law of Belligerent Occupation (2009); Robert Kolb/Sylvain Vité, Le droit de l’occupation militaire: Perspectives historiques et enjeux juridiques actuelles (2009); Vaios Koutroulis, Le début et la fin de l’application du droit de l’occupation (2010); Alessandra Annoni, L’occupazione “ostile” nel diritto internazionale contemporaneo (2012); Benvenisti (note 13); Tristan Ferraro (ed.), Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (2012). 22 See Art. 42 Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, available at: https:// www.icrc.org/ihl/INTRO/195 (accessed on 15 November 2015) (Hague Regulations): “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”. 23

See ICJ, Wall Opinion (note 10), para. 78.

24

See the so-called Levy Report, 9 July 2012, available at: www.pmo.gov.il/Documents/doch090712. pdf (in Hebrew, accessed on 1 December 2015), an unofficial English translation of the conclusions and recommendations is available at: unispal.un.org/UNISPAL.NSF/0/D9D07DCF58E781C585257A3 A005956A6 (accessed on 30 October 2015). This opinion cannot be analysed here in depth but has been envisaged in the past by Yehuda Z. Blum, The Missing Reversioner: Reflections on the Status of Judea and Samaria, Israel Law Review (ILR) 3 (1968), 279; Meir Shamgar, The Observance of International Law in the Administered Territories, Israel Yearbook of Human Rights 1 (1971), 262. 25 See, among others, GA Res. 56/204 of 22 February 2002; GA Res. 69/93 of 16 December 2014; SC Res. 608 of 14 January 1988; SC Res. 726 of 6 January 1992; SC Res. 1322 of 7 October 2000. 26

See ICJ, Wall Opinion (note 10), para. 78.

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by the Supreme Court of Israel itself.27 The Dead Sea coastline is clearly under occupation as it is part of the West Bank and, consequently, the international rules governing belligerent occupation, embodied in the Hague Regulations and in the Fourth Geneva Convention,28 apply to the area.29 The dire life conditions of Palestinian inhabitants are a crucial part of the problem. It should be noted that the whole Palestinian economy is on the verge of bankruptcy due to the prolonged Israeli occupation and long-standing overexploitation of natural resources,30 the limitation of Palestinian export, the Gaza blockade,31 and repeated Israeli decisions to retain taxes collected on behalf of the Palestinian Authority in the OPT, most recently as a reprisal for the Palestinian accession to the Rome Statute of the International Criminal Court (ICC).32 Consequently, the issue is whether Israel, 27 See Supreme Court of Israel, Beit Sourik Village Council v. The Government of Israel, HCJ 2056/04, 30 June 2004, $"5 (0*$ *825, Israel Supreme Court Reports) 58(5) (2004), 807, para. 23, available in English at: http://elyon1.court.gov.il/Files_ENG/04/560/020/A28/04020560.A28.pdf (accessed on 30 October 2015). Many Israeli scholars consider the Palestinian territory to be under belligerent occupation, see, e.g., Dinstein (note 21), 20 et seq.; Benvenisti (note 13), 203 et seq. 28 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS 75, 287 (Fourth Geneva Convention). 29 See ICJ, Wall Opinion (note 10), para. 101. See also Ardi Imseis, On the Fourth Geneva Convention and the Occupied Palestinian Territory, Harvard International Law Journal 44 (2003), 65. 30 For some records of the effects of the occupation on the Palestinian economy, see Palestinian Ministry of National Economy, The Economic Costs of the Israeli Occupation for the Occupied Palestinian Territory, September 2011, available at: www.un.org/depts/dpa/qpal/docs/2012Cairo/ p2%20jad%20isaac%20e.pdf (accessed on 30 October 2015); International Labour Office, The Situation of Workers of the Occupied Arab Territories, ILC.102/DG/APP (2013), available at: http://www. ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_213298. pdf (accessed on 15 November 2015). More generally, see Mandy Turner/Omar Shweiki (eds.), Decolonizing Palestinian Political Economy: De-development and Beyond (2014). 31

See HRC, Report of the United Nations High Commissioner for Human Rights on the Implementation of Human Rights Council Resolutions S-9/1 and S-12/1, 2 March 2015, UN Doc. A/HRC/ 28/80 (2015), paras. 7 et seq. See also UN Food and Agriculture Organization, Consolidated Appeals 2013: West Bank and Gaza Strip (2013), available at: www.fao.org/fileadmin/user_upload/emergencies/docs/CAP_2013_WBGS.pdf (accessed on 15 October 2015). 32

See Ruth Eglash, Israel Withholds Tax Revenue from Palestinian Authority as Dispute Escalates, The Washington Post, 3 January 2015, available at: www.washingtonpost.com/world/middle_east/ israel-withholds-tax-revenues-from-palestinian-authority-as-dispute-escalates/2015/01/03/3718e5c49378-11e4-a66f-0ca5037a597d_story.html (accessed on 30 October 2015). In March 2015, Israel transferred part of the money to the Palestinian Authority, which rejected them arguing that the sum was too heavily reduced (see Mohamad Torokman, Abbas Rejects Israel’s Partial Transfer of Palestinian Tax Revenue, Reuters, 5 April 2015, available at: www.reuters.com/article/2015/04/05/us-israel-palestinians-idUSKBN0MW0JU20150405 (accessed on 30 October 2015)). Rome Statute of the International Criminal Court, 1 July 2002, UNTS 2187, 3 (Rome Statute).

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as the occupying power, has the duty to alleviate this economic situation even through measures aimed at developing the Palestinian economy, and whether granting access to the Dead Sea shore would, in part, accomplish this goal. On the first point, one should take into account that Article 43 Hague Regulations, an important provision related to duties and rights of the occupying power,33 provides: L’autorité du pouvoir légal ayant passé de fait entre les mains de l’occupant, celui-ci prendra toutes les mesures qui dépendent de lui en vue de rétablir et d’assurer, autant qu’il est possible, l’ordre et la vie publics en respectant, sauf empêchement absolu, les lois en vigueur dans le pays.34

This provision is crucial in order to verify whether the occupying power has a duty, under international humanitarian law, to ameliorate the life conditions of the civilian population of the occupied territory, particularly in the form of legislation facilitating investment and economic development. A close analysis of Article 43 leads to the conclusion that this duty does indeed exist. Great attention should be paid to the words “rétablir et d’assurer, autant qu’il est possible, l’ordre et la vie publique”. The ‘vie publique’ concerns the “whole social, commercial and economic life of the community”35 and the obligation encompasses “a variety of aspects of civil life, such as the economy, society, education, welfare, health,

33 “Article 43 is a sort of mini-constitution for the occupant administration” according to Benvenisti (note 13), 69. 34 According to the English text: “The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” The English translation is misleading since it calls for the respect for “public order and safety” whilst the word “safety” does not mean the same as “vie publique”. Since only the French text is authortative, it is necessary to translate “vie publique” into “civil life” rather than “safety”, following an established trend in the academic literature (see Edmund H. Schwenk, Legislative Power of the Military Occupant under Article 43, Hague Regulations, Yale Law Journal 54 (1945), 393; Benvenisti (note 13), 68; Yoram Dinstein, Legislation Under Article 43 of the Hague Regulations: Belligerent Occupation and Peacebuilding, Program on Humanitarian Policy and Conflict Research Harvard University, 1 Occasional Paper Series (Fall 2004), 2, available at: www.hpcrresearch.org/sites/default/files/publications/ OccasionalPaper1.pdf (accessed on 13 January 2016)). 35 See Germany, British Zone of Control, Control Commission Court of Criminal Appeal, Grahame v. Director of Prosecutions, Annual Digest and Reports of Public International Law Cases 14 (1947), 228, 232.

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[and] transport”.36 According to an authoritative interpretation, ‘ordre publique’ thus refers to the duty to take proper steps to protect the civilian population from attacks and crime, while the ‘vie publique’ implies a duty for the occupying power to promote the economic interests of the population.37 In order to respect and ensure public life, the occupation should not cause the freezing of the economic development of the occupied territory, but rather, the occupying power should foster the social and economic dimension of public life38 in accordance with its separate – but in any case relevant – duty to provide for the basic needs of the population of the occupied territory, embodied in Articles 55 and 56 Fourth Geneva Convention. It is to be observed that in a short-term occupation maybe the occupying power has no positive obligation to adopt measures in order to develop the economy of the occupied territory; since the drafters of the Fourth Geneva Convention had not envisaged a prolonged occupation,39 there is no explicit reference to the duty to foster the economy of the occupied territory in the treaty. However, a positive duty can be constructed through implication on the basis of the assumption that the Israeli prolonged occupation per se disrupts the civil life of the OPT so that only a positive measure – such as allowing Palestinian access to the Dead Sea shore – could fulfil the Israeli obligation to preserve civil life of the protected population. This author does not argue that the so-called prolonged occupation is governed by different rules than belligerent occupation tout court, an assumption rejected by a number of scholars;40 in 36

Supreme Court of Israel, A Cooperative Society Lawfully Registered in the Judea and Samaria Region v. Commander of the IDF Forces in Judea and Samaria Region et al., HCJ 393/82, 25 July 1982, 28 December 1983, $"5 37(4) (1983), 785. 37

Dinstein (note 21), 93 et seq.

38

Ibid., 94; Benvenisti (note 13), 78 et seq.

39

See Adam Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories since 1967, American Journal of International Law (AJIL) 84 (1990), 44, 47; Benvenisti (note 13), 244. 40 This point has been masterfully assessed by Antonio Cassese, Powers and Duties of an Occupant in Relation to Land and Natural Resources, in: Playfair (ed.) (note 13), 419, 419 et seq. See also Roberts (note 39), 51; Iain Scobbie, International Law and the Prolonged Occupation of Palestine, 20 May 2015, available at: papers.ssrn.com/sol3/papers.cfm?abstract_id=2611130 (accessed on 30 October 2015). The former UN Commission on Human Rights Special Rapporteur John Dugard emphasised this idea in many reports, e.g. in HRC, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, John Dugard, 29 January 2007, UN Doc. A/HRC/4/ 17 (2007), para. 62, and id., Report of the Special Rapporteur on the Situation of Human Rights in the

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my opinion, however, the prolonged character of the Israeli occupation is a factual – and not legal – element that should be taken into account in the interpretation of the rules governing belligerent occupation, above all in light of the aforementioned principle according to which occupation does not confer sovereignty on the occupying power.41 Consequently, the obligation to preserve and maintain civil life pursuant to Article 43 Hague Regulations, in light of the prolonged character of the Israeli occupation and its actual repercussions on the Palestinian economy, can be interpreted in a manner that requires Israel, inter alia, to grant Palestinian access to the Dead Sea shore in order to develop the Palestinian economy. This conclusion should not be overemphasised because it could be used by an occupying power to overcome the limits of Article 43 Hague Regulations and thus transform the legal order of the occupied territory by adopting legislation related to the economic development of that territory as if it were the sovereign.42 On the contrary, the international law governing belligerent occupation does not grant sovereignty to the occupying power, which cannot alter the status of the occupied territory;43 since belligerent occupation is concerned with powers over a territory and its population caused by de facto effective control and not by sovereignty, the occupying power is only an usufructuary or administrator of the occupied territory,44 with

Palestinian Territories Occupied Since 1967, John Dugard, 21 January 2008, UN Doc. A/HRC/7/17 (2008), para. 8. 41 Commentators have recognised that changes in the administration of an occupied territory during a prolonged occupation can be made in the interest of the original population, see, e.g., Benvenisti (note 13), 147 et seq.; Dinstein (note 21), 120; Ferraro (note 21), 72 et seq. In addition, according to Richard Falk, “[t]he passage of time under the status quo has not been a neutral factor for Palestinians”, HRC, Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, Richard Falk, 13 January 2014, UN Doc. A/HRC/25/67 (2014), para. 25. 42

See Christine Chinkin, Laws of Occupation, in: Neville Botha/Michèle Olivier/Delarey van Tonder (eds.), Multilateralism and International Law with Western Sahara as a Case Study (2010), 167, 178. 43

See, e.g., Art. 47 Fourth Geneva Convention, and Art. 4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, UNTS 1125, 3. See also Affaire de la Dette Publique Ottomane (Bulgaria, Irak, Palestine, Transjordan, Greece, Italy, and Turkey), Reports of International Arbitral Awards I, 529, 555. For a modern overview, see Dinstein (note 21), 94 et seq. 44

See infra, III. C.

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no right to conquer it.45 Today, belligerent occupation is no longer a means of acquisition of territory and the entire system of relevant rules implies that it is a temporary and exceptional situation.46 Accordingly, despite the fact that Israel could alleviate the economic hardship in the OPT by allowing Palestinian investors to exploit the Dead Sea coastline for tourism, its acts must not create confusion between its position as an occupying power and the sovereign rights of the Palestinian people. Since the occupying power is not the sovereign, Israel has a duty to ensure stability and development of economic life in the occupied territory but must implement it while respecting the laws in force in the territory and, above all, in a manner consistent with the interests of the legitimate sovereign, since respect for the sovereign rights of the occupied territory is the fundamental criterion of the legality of the occupying power’s acts.47 In other words, the duty to ameliorate the economic situation of the occupied territory cannot lead an occupying power to adopt policies that could lead to the de facto annexation of the occupied territory. In order to verify the lawfulness of an occupying power’s positive measures, a good test should rely on the concrete advantage of the new policy. If it benefits only the occupying power, it should be considered unlawful, whilst if it benefits the local population, there is room to argue that it is lawful, provided that it does not strengthen the occupying power’s claims over the territory.48 This test could dispel the understandable suspicion surrounding every positive action taken by the occu45 See SC Res. 262 of 22 November 1967. For an analysis of the demise of the right of conquest in the context of the OPT, see Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996), 218 et seq. and 250 et seq. 46

See Christopher Greenwood, The Administration of Occupied Territory in International Law, in: Playfair (ed.) (note 13), 241, 244 et seq.; Yutaka Arai-Takahashi, The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law (2009), 48; Orna Ben-Naftali, Belligerent Occupation: A Plea for the Establishment of an International Supervisory Mechanism, in: Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (2012), 538, 546. 47

For this opinion, see Alain Pellet, La destruction de Troie n’aura pas lieu, PYBIL 4 (1987–1988), 45, 65 et seq., reprinted in English in: Playfair (ed.) (note 13), 169. 48 See also Institut de Droit International, Bruges Declaration on the Use of Force, 2 September 2003, available at: www.idi-iil.org/idiE/declarationsE/2003_bru_en.pdf (accessed on 30 October 2015): “the Occupying Power can only dispose of the resources of the occupied territory to the extent necessary for the current administration of the territory and to meet the essential needs of the population” (emphasis added).

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pying power.49 A positive action in the economic dimension could both preserve the distinction between the legitimate sovereign and the occupying power, and protect and enhance the living conditions of the civilian population. A policy allowing Palestinian investors to access the Dead Sea coastline, thereby encouraging the growth of Palestine’s tourism industry, would respect the duty not to consolidate sovereignty over the occupied territory (since the beneficiaries would be Palestinian investors and not Israeli companies) and implement the obligation to restore and ensure the civil life of the Palestinian population. However, it should be acknowledged that the assessment of such benefits can lead to different outcomes due to its value-laden and subjective character. In view of the above, Israel is under a duty to ensure that the areas of the OPT under its control do not suffer poverty and economic stagnation and, because of the prolonged character of the occupation, this aim can be achieved only by encouraging the development of the Palestinian economy. Granting Palestinian investors access to the Dead Sea coastline would significantly improve the Palestinian situation in this regard since, as demonstrated by the aforementioned World Bank study, Palestine could enjoy significant financial benefits from the development of a new sector of its tourism industry. The main problem related to this conclusion is that an occupying power enjoys, to a certain extent, discretionary power in relation to the measures it can adopt to implement Article 43 Hague Regulations. It seems unlikely that the occupying power is specifically under an obligation to conclude concessionary contracts related to the exploitation of natural resources, not even if they were under negotiation at the beginning of the occupation.50 However, in the broader context of the precarious 49

For the contrary position, according to which there is no positive duty at all for the occupying power to ameliorate the economic conditions of the occupied territory in light of Art. 43 Hague Regulations, see Stefano Silingardi, Occupazione bellica e obblighi delle Potenze Occupanti nel campo economico, Rivista di diritto internazionale 89 (2006), 978, 1020 et seq. Such an opinion does not take into any account the fact that barely all the treaty provisions about a duty to ‘ensure’ a right imply positive duties, e.g. in human rights conventions. 50

See Iain Scobbie, Natural Resources and Belligerent Occupation: Mutation Through Permanent Sovereignty, in: Stephen Bowen (ed.), Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories (1997), 221, 235. Writing about the duty of ensuring food and supplies pursuant to Art. 55 Fourth Geneva Convention, Jean Pictet commented that: “the Convention does not lay down the method by which this is to be done. The occupying authorities retain complete freedom of action in regard to this”, Jean Pictet (ed.), Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), 310.

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economic conditions of the entire OPT that are a direct consequence of the prolonged occupation, it is reasonable to affirm that the general duty for Israel to ensure the economic livelihood in the occupied territory, especially in Area C, could be partly addressed by allowing Palestinian investors to develop a tourism industry on the Dead Sea shore.

B. Assessing Israeli Denials of Access to Palestinian Investors to the Dead Sea Coastline Under International Humanitarian Law

After having analysed the issue of Israeli positive duties, the legality of its denial of access to the Palestinian Dead Sea shore has to be addressed. The Israeli policy is not grounded on the powers conferred to Israel by international law, particularly those embodied in Article 43 Hague Regulations and in Article 64 Fourth Geneva Convention, the latter of which provides “an amplification and clarification”51 of the former. Article 64 Fourth Geneva Convention states in its second paragraph: The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.52

According to Article 43 Hague Regulations and Article 64 Fourth Geneva Convention, the occupying power has the right to provide for its security needs and to maintain control over the occupied territory, but all its actions that are not justified by security needs should be considered legitimate only if they aim to ameliorate the life conditions of the civilian population of the occupied territory or to fulfil humanitarian law obligations.53 The security needs of the occupying power and the basic life 51

Joyce A. C. Gutteridge, The Geneva Conventions of 1949, British Yearbook of International Law 26 (1949), 294, 324. See also Pictet (note 50), 335. 52 Emphasis added. Despite its title (‘Penal Legislation’), the criteria of Art. 64 Fourth Geneva Convention are applicable also to civil legislation, see Pictet (note 50), 335. 53

See Marco Sassòli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers, European Journal of International Law (EJIL) 16 (2005), 661, 678 et seq. See also Alessandra Lanciotti/Annalisa Giansanti, Il processo elettorale iracheno alla luce del diritto internazionale, Federa-

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conditions of the civilian population are not the only legal interests protected by these norms, which also reflect the attempt to preclude the occupying power from asserting sovereignty at the expense of the actual sovereign.54 On these bases, the Israeli policy of denying Palestinian investors access to the Dead Sea coastline appears to be inconsistent with international humanitarian law for the following reasons. First, banning the Palestinian people and investors from the Dead Sea shore is not justified by any necessity of the occupying power to maintain order in the occupied territory nor to ensure Israel’s security. The development of a Palestinian tourism industry cannot objectively be regarded as a threat to public order in the OPT nor can it endanger the occupying power’s security. Neither can the general condition of Israeli settlers be invoked to deny Palestinian investors access to the Dead Sea coastline, because the settlements are illegal under international law55 as recognised by the ICJ,56 and the principle ex injuria jus non oritur precludes the author of an illicit act from invoking consequences arising from its own violation in order to evade another international obligation.57 However real security concerns related to the Israeli settlements may be, they have been created by Israel through promoting and building the settlements, a policy that is a violation of Article 49 Fourth Geneva Convention58 and lismi.it 5 (2005), 1, 5, available at: www.federalismi.it/federalismi/document/10032005030732.pdf (accessed on 30 October 2015). 54

See Chinkin (note 42), 178.

55

See Art. 49 (6) Fourth Geneva Convention. See also HRC, Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements (note 15). For the relevant State practice, see International Committee of the Red Cross, Customary IHL, Practice Relating to Rule 130. Transfer of Own Civilian Population into Occupied Territory, available at: www.icrc.org/customary-ihl/eng/docs/v2_rul_rule130 (accessed on 30 October 2015). See also Jean Salmon, Les colonies de peuplement israéliennes en territoire palestinien occupé au regard de l’avis consultatif de la Cour internationale de Justice du 9 juillet 2004, in: Andreas Fischer-Lescano et al. (eds.), Frieden in Freiheit, Peace in liberty, Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (2008), 285. 56

See ICJ, Wall Opinion (note 10), para. 120.

57

On this principle, see John Dugard, Recognition and the United Nations (1987), 132 et seq.

58

Art. 49 (6) Fourth Geneva Convention does not distinguish between direct and indirect transfer of population. The ICJ in the Wall Opinion considered that all the Israeli settlements are unlawful, a conclusion that is correct since the absence of a distinction in Art. 49 (6) Fourth Geneva Convention implies that both settlements that were directly created by the occupying power and those that were only sponsored by it through measures such as fiscal benefits are prohibited, see HRC, Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements (note 15),

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a violation of the duty to preserve the status quo in the occupied territory as spelled out in Article 43 Hague Regulations.59 Accordingly, measures taken with the intention of protecting the illegal settlers cannot be considered justified by military necessity since this conclusion would undermine the norm on the illegality of the settlements.60 Second, Israeli policy related to access to the Dead Sea should be analysed in light of the needs of the Palestinian civilian population living in the area, due to the provision of Article 43 Hague Regulations relating to the civil life of the population of the occupied territory. According to international humanitarian law and contrary to the Supreme Court of Israel’s opinion,61 Article 43 Hague Regulations should be interpreted as protecting only the indigenous Palestinian population and not the Israeli citizens illegally transferred by the occupying power because Article 43 Hague Regulations must be read in light of Article 4 Fourth Geneva Convention, which defines protected persons in a way that precludes Israeli settlers from being considered the protected population.62 Article 43 Hague Regulations does not provide any distinction between native protected population and occupying power’s nationals, since the concept of protected population was envisaged only 40 years later by Article 4 Fourth Geneva Convention. However, according to Article 154 Fourth Geneva Convention, the Convention completes the Hague Regulations63 and therefore Article 43 Hague para. 21.This conclusion is confirmed by Art. 8 (2)(b)(viii) Rome Statute, which punishes both direct and indirect transfers. Totally voluntary settlements with no link to the occupying power’s administration (the so-called outposts) are illegal as well since the occupying power has a duty to prevent its own population from committing wrongful acts in the occupied territory (Arai-Takahashi (note 46), 348). 59

See Shehadeh (note 16), 45 et seq.; Benvenisti (note 13), 241.

60

See Ardi Imseis, Critical Reflections on the International Humanitarian Law Aspects of the ICJ Wall Advisory Opinion, AJIL 99 (2005), 102, 112, footnote 52, where this author replies to the opposite opinion offered by David Kretzmer, The Advisory Opinion: The Light Treatment of International Humanitarian Law, AJIL 99 (2005), 88, 93 et seq. 61 See, among others, Supreme Court of Israel, Hass v. Commander of the IDF Forces in the West Bank, HCJ 10356/02, 4 March 2004, $"5 58(3), 443; id., Beit Sourik Village Council (note 27); id., Mara’abe v. The Prime Minister of Israel, HCJ 7957/04, 15 September 2005, $"5 60(2), 477 (2005); id., Yesh Din v. The Commander of IDF, HCJ 2164/09, 26 December 2011, available at: http://elyon1.court. gov.il/files/09/640/021/n14/09021640.n14.pdf (accessed on 8 January 2016). 62

See Aeyal M. Gross, The Construction of a Wall between The Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation, Leiden Journal of International Law (LJIL) 19 (2006), 393, 418; id., Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?, EJIL 18 (2007), 1, 13 et seq.; Martti Koskenniemi, Occupied Zone: “A Zone of Reasonableness”?, ILR 41 (2008), 13, 40. 63

See Art. 154 Fourth Geneva Convention: “complètera”.

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Regulations must be interpreted in the light of Articles 4 and 49 (6) Fourth Geneva Convention, through the prism of the systemic interpretation envisaged by Article 31 (3)(c) Vienna Convention on the Law of Treaties (VCLT).64 As a conclusion, it can be argued that the occupying power’s duty to ensure civil life in the occupied territory pursuant to Article 43 Hague Regulations regards only the life conditions of the native protected population (the Palestinians in the Dead Sea area), since the inclusion of the Israeli settlers under Article 43’s umbrella would be in conflict with the Fourth Geneva Convention’s rules. Consequently, the Israeli policy is lawful as long as it enhances the civil life of the Palestinian population, ameliorating their life conditions, whilst at the same time not endangering the sovereign rights of Palestinians over the West Bank. The Israeli policy related to the Dead Sea shore does not meet the criteria of Article 43 Hague Regulations since, as noted above, it only worsens the life conditions of the Palestinian people and, at the same time, consolidates the presence of illegal settlers in so far as it allows them to exploit the Palestinian Dead Sea coastline. Third, the Israeli policy should be examined in light of the aforementioned principle that the occupying power must refrain from modifying the laws in force and altering permanently the status of the territory. The settlements’ regime as a whole, but including in the Dead Sea area, has been created on land seized through new legislation that has changed the law in force in the territory beyond the limits embodied in treaty law65 and could assume the features of a fait accompli and lead to the de facto annexation of a portion of territory.66 As a result, the Dead Sea area faces an alteration in the demographic composition of its population, with a dramatic decrease in the Palestinian residents and a constant increase in the number of Israeli settlers.67 There is therefore no room to argue that the Israeli denial of access to the Palestinian Dead Sea shore is justified by the rules on belligerent occupation, as developed in customary law and enshrined in the relevant treaties.

64

Vienna Convention on the Law of Treaties, 23 May 1969, UNTS 1155, 331 (VCLT). According to Art. 31 (3)(c) VCLT, “[t]here shall be taken into account, together with the context: […] (c) any relevant rules of international law applicable in the relations between the parties”. 65

See supra, II.

66

See HRC (note 41), para. 16. The ICJ stated that the wall built in the West Bank and the related regime (settlements included) can lead to de facto annexation of some portions of the West Bank, ICJ, Wall Opinion (note 10), para. 121. 67

HRC (note 15), para. 66; Al-Haq (note 8), 19.

334 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 C. The Norms Regarding the Exploitation of Natural Resources Under Belligerent Occupation and the Development of Tourism on the Palestinian Dead Sea Coast

The norms governing the exploitation of natural resources in an occupied territory can be relevant for the analysis of the Dead Sea situation. The first provision deserving attention is Article 53 (1) Hague Regulations: An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.68

The test spelled out in Article 53 Fourth Geneva Convention for the destruction of State property is particularly narrow: Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.69

Despite the fact that international humanitarian law conventions do not offer any definition of State property,70 it is clear that these provisions are relevant in a discussion about the legality of Israeli exploitation of natural resources in the Palestinian territory. Therefore, these provisions are applicable to the exploitation of Dead Sea curative mud by Israeli settlements and companies, as well as the seizure of the lands in the area of the coastline and the correlated use of water.71 These rules are relevant even if the exploitation is carried out by private persons and commercial entities. According to the ICJ, the occupying power has the duty to control that legal and natural persons under its jurisdiction do not illegally exploit natural resources in the occupied territory pursuant to Article 43 Hague Regulations.72 All these activities should be performed 68

Emphasis added.

69

Emphasis added.

70

See Scobbie (note 50), 232.

71

Arai-Takahashi (note 46), 211.

72

See ICJ, 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, paras. 178 et seq., 219 et seq., and 248 et seq.

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only as a response to the military needs of the occupying power, which has no sovereign right but only the powers of an usufructuary pursuant to Article 55 Hague Regulations, according to which: The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Article 55 Hague Regulations is inspired by the principle that the occupant does not displace the sovereign in the occupied territory.73 On the basis of all the aforementioned treaty provisions, it is clear that Israel has a duty not to expend the curative mud and the waters of the Dead Sea coastline, since, at the end of the occupation, the Palestinian population should be able to enjoy the exploitation of those resources. This conclusion is clearly consistent with the said temporary and exceptional characters of belligerent occupation.74 By contrast, Israeli industries go beyond their right of use and overexploit the Dead Sea curative mud, while depleting its water in the process. The Dead Sea Works Ltd., for example, has pumped more than 200 million cubic metres water per year out of the Dead Sea, while wastewaters from Israeli factories flow directly into the basin.75 However, the legal framework relating to the protection of State property during an occupation does not provide useful answers to the problem of the Israeli policy prohibiting Palestinians from developing a tourist industry on the Dead Sea coastline. The main problem is that although these norms limit the scope of the occupying power’s ability to exploit the natural resources of the occupied territory, they are silent about an occupying power’s obligations to encourage or prevent the protected population of the territory from accessing the resources. The reference to the role of usufructuary is not crucial because a usufructuary can lawfully decide not to derive profits from a portion of the goods administrated, renouncing to the ‘fruits’.76

73

See Scobbie (note 50), 233.

74

See also Cassese (note 40), 428 et seq.; Silingardi (note 49), 1020; Valentina Zambrano, Il principio di sovranità permanente dei popoli sulle risorse naturali tra vecchie e nuove violazioni (2009), 130. 75 76

See Al-Haq (note 8), 23 et seq.

According to Iustiniani Institutiones Digestum Vetus D.7.1.1: “Usus fructus est ius alienis rebus utendi fruendi salva rerum substantia”, available at: http://amshistorica.unibo.it/176 (accessed on 7 January 2016).

336 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 D. Brief Remarks on the Impact of International Human Rights Law on the Palestinian Access to the Dead Sea Shore

According to well-established international case law, international human rights law applies along with international humanitarian law in time of belligerent occupation, with the only exception of the invocation of clauses of derogation embodied in some human rights conventions.77 In the case of unavoidable conflicts between human rights law and international humanitarian law, the ICJ affirmed that, in the context of an armed conflict, the latter prevails on the former as a matter of lex specialis.78 However, the reference to the lex specialis principle has been recently omitted by the ICJ dealing with a situation of belligerent occupation,79 and many scholars consider that international human rights law and international humanitarian law both apply complementarily in similar cases.80 Eventual conflicts must be solved through the application of the rules on treaty interpretation embodied in the VCLT, especially the aforementioned systemic criterion embodied in Article 31 (3)(c) VCLT.81 For the situation of the Palestinian Dead Sea shore it is particularly relevant that Israel is party to the International Covenant on Economic, Social and Cultural Rights (ICESCR),82 which is binding upon Israel also for its activities in the OPT.83 77

See, e.g., ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para. 25; id., Wall Opinion (note 10), para. 106; id., Armed Activities (note 72), para. 216. See also Orna Ben-Naftali/Yuval Shany, Living in Denial: The Application of Human Rights in the Occupied Territories, ILR 37 (2004), 17; Noam Lubell, Human Rights Obligations in Military Occupation, International Review of the Red Cross 94 (2012), 317. 78

See ICJ, Legality of the Threat or Use of Nuclear Weapons (note 77), para. 25; id., Wall Opinion (note 10), para. 106. 79

Id., Armed Activities (note 72), para. 216.

80

See Kolb/Vité (note 21), 334; Marko Milanovic, A Norm Conflict Perspective on the Relationship between International Humanitarian Law and Human Rights Law, Journal of Conflict and Security Law 14 (2010), 459, 464; Annoni (note 21), 126. 81

See Jean d’Aspremont/ElodieTranchez, The Quest for Non-Conflictual Coexistence of International Human Rights Law and Humanitarian Law: Which Role for the Lex Specialis Principle?, in: Robert Kolb/Gloria Gaggioli (eds.), Research Handbook of International Human Rights and Humanitarian Law (2013), 223, 235 et seq. 82 International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNTS 993, 3. 83

ICJ, Wall Opinion (note 10), para. 112. See also UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Israel, UN Doc. E/C.12/ISR/CO/3 (2011).

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According to Article 6 ICESCR, Israel must “recognize the right to work” by providing “technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment.”84 Israeli policy regarding the Palestinian Dead Sea shore violates this provision since it prevents Palestinians from gaining economic development through the exploitation of natural resources. Article 12 (1) International Covenant on Civil and Political Rights (ICCPR) is also particularly relevant, since it provides that “[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”85 Israel is party to this treaty, too, and must implement it also in its activities in the OPT.86 The ban on the Palestinian access to the Dead Sea coastline is clearly a violation of liberty of movement of the Palestinians. All these human rights law provisions must be applied along with international humanitarian law in the OPT and, specifically, in the Dead Sea area. Moreover, treaty international humanitarian law must be interpreted in light of international human rights law, especially when the former is not crystal-clear about the duties of the occupying power, such as in the case of the obligation to encourage the economic life of the occupied territory. In the present author’s view, there are thus sound reasons to argue that the existence of this duty is supported also by the aforementioned relevant obligations embodied in the human rights conventions.

E. Partial Conclusion on the Impact of the Law on Belligerent Occupation on the Palestinian Access to the Dead Sea Coastline

In light of the relevant rules on belligerent occupation – in particular those concerning the faculties and obligations of the occupying power – it is not possible to conclude that Israel has a specific duty to grant access to the Dead Sea shore to the Palestinian population and investors. However, pursuant to Article 43 Hague Regulations, Israel must ensure the economic well-being of the Palestinian population. Because of the dramatic economic situation in the OPT, the prolonged character of 84

Emphasis added.

85

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171.

86

ICJ, Wall Opinion (note 10), paras. 107 et seq.

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the occupation, and the likely benefits from the exploitation of Dead Sea tourism potential, the Israeli policy of systematically preventing Palestinian access and exploitation of the Dead Sea shore constitutes a violation of the obligation to ensure and protect civil life in the occupied territory. In addition, the Israeli policy appears to lack any legal justification under the rules of belligerent occupation and is also inconsistent with international human rights law.

IV. The Principles of Self-Determination of Peoples and Permanent Sovereignty over Natural Resources Applied to Palestinian Access to the Dead Sea Coastline A. Self-Determination of Peoples and Permanent Sovereignty over Natural Resources in the Palestinian Context

The application of international human rights law along with international humanitarian law in situations of belligerent occupation demonstrates that the law governing belligerent occupation is not a ‘self-contained regime’87 but, rather, is affected by other international law rules. One pivotal rule of international law to be taken into account for the purpose of the present paper is the principle of self-determination of peoples.88 This principle is one of the most important rules of international law; it is embodied in Articles 1 (2) and 55 UN Charter,89 as well as in Article 1 common to the ICCPR and the ICESCR, and it is clearly part of international customary law.90 The ICJ has ruled that the self-

87 On self-contained regimes in international law, see Bruno Simma, Self-Contained Regimes, Netherlands Yearbook of International Law 16 (1985), 111. See, more recently, Lorenzo Gradoni, Regime failure nel diritto internazionale (2009). 88

On the relations between the law of occupation and the principle of self-determination, see Jorge Cardona Llorens, Le principe du droit des peuples à disposer d’eux-mêmes et l’occupation étrangère, in: Angelet Nicolas et al. (eds.), Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (2007), 855. 89 90

Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

On the self-determination principle, see, among others, Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1999); Joshua Castellino, International Law and Self-Determination (2000); Duncan French (ed.), Statehood and Self-Determination (2013).

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determination principle entails obligations erga omnes,91 whilst many scholars consider the principle to be jus cogens.92 Today, no State or scholar seriously doubts the existence of a Palestinian people. In a number of instances, the UN has recognised that the Palestinian people is entitled to exercise its right to self-determination.93 For many years, the PLO has been exercising self-determination on behalf of the Palestinian people, with the strong support and acknowledgment of the UN.94 Furthermore, in 2012 the UN General Assembly conferred on Palestine the status of UN non-member State.95 Today, also due to Palestinian participation in a number of multilateral conventions only open to States, there are sound reasons to argue that a Palestinian State under belligerent occupation exists in light of international law.96 The relevance of the self-determination principle in relation to the exploitation of natural resources in the Palestinian territory cannot be underestimated. In the last half century, the international community has realised that the availability of natural resources is one pivotal component of the principle of self-determination. A people can actually gain independence, determine its constitutional architecture, and choose an international policy only if it has full control over its resources. A people or a State lacking the possibility of exploiting their own resources due to the activity of another 91 ICJ, Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, ICJ Reports 1995, 90, para. 29; id., Wall Opinion (note 10), para. 88. 92

See Jochen A. Frowein, Self-Determination as a Limit to Obligations Under International Law, in: Christian Tomuschat (ed.), Modern Law of Self-Determination (1993), 211, 218 et seq. See also the International Law Commission’s opinion in Commentaries to the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 59 et seq., Art. 26 commentary para. 5; id., Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.702 (2006), para. 33. 93

ICJ, Wall Opinion (note 10), para. 118. See also GA Res. 43/177 of 15 December 1988 and GA Res. 58/163 of 4 March 2004. 94 On the evolution of the PLO’s role in the UN system, see Leo Gross, Voting in the Security Council and the PLO, AJIL 70 (1976), 470; Giancarlo Guarino, The Palestine Liberation Organization and its Evolution as a National Liberation Movement, Rivista della cooperazione giuridica internazionale 10 (2008), 13. 95 96

GA Res. 67/19 of 4 December 2012.

See Marco Longobardo, Lo Stato di Palestina: emersione fattuale e autodeterminazione dei popoli prima e dopo il riconoscimento dello status di Stato non membro delle Nazioni Unite, in: Marcella Distefano (ed.), Il principio di autodeterminazione dei popoli alla prova del nuovo millennio (2014), 9. See also John Quigley, The Statehood of Palestine: International Law in the Middle East Conflict (2010).

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State is likely under a different form of colonial domination, thus in a situation of diminished self-determination.97 As a consequence, the self-determination principle has evolved beyond the political right to decide the internal and international status of a community, to also encompass the so-called principle of economic self-determination.98 According to Article 1 (1) common to the ICCPR and ICESCR, “[b]y virtue of th[e] [right of self-determination, all peoples] freely determine their political status and freely pursue their economic, social and cultural development.” After the principle of self-determination, a new and partially autonomous customary norm, i.e. permanent sovereignty over natural resources, emerged, first as a political goal of the UN, but later as a legal norm.99 The principle has its roots in the economic development of Third World countries and in the right of self-determination of colonised peoples, but is still relevant in post-colonial situations as a component of State sovereignty.100 More recently, developing countries have invoked it to secure benefits arising from the exploitation of natural resources and to provide developing States with a legal defence against infringements of their economic sovereignty as a result of property or contractual rights claimed by other States and foreign investors.101

97

For an overview over the current debate, see Federica Violi, Autodeterminazione dei popoli e nuove forme di colonialismo, in: Distefano (ed.) (note 96), 105. 98 On the economic dimension of the self-determination principle, see Alice Farmer, Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in Resource-Rich Countries, International Law and Politics 39 (2006), 417; Marco Pertile, Economic Self-Determination in the 21st Century: Tracing the Origin and the Evolution of a Chameleonic Concept, in: Peter Hilpold (ed.), Autonomie und Selbstbestimmung in Europa und im internationalen Vergleich (2016), 335. 99 The literature about this principle is vast. See, generally, Ian Brownlie, Legal Status of Natural Resources in International Law, Recueil des Cours de l’Académie de Droit International de La Haye (RdC) 162 (1979-I), 249; Nico J. Schrijver, Sovereignty over Natural Resources (1997); Zambrano (note 74). 100 The principle of permanent sovereignty originates from the principle of self-determination according to GA Res. 1803 (XVII) of 14 December 1962. Generally, on the relations between the selfdetermination and the permanent sovereignty principles, see Valentina Zambrano, A proposito del rapporto tra l’autodeterminazione dei popoli e la sovranità degli Stati sulle risorse naturali, in: Distefano (ed.) (note 96), 85. 101 See, generally, Federica Violi, The Practice of Land Grabbing and Compatibility with Exercise of Territorial Sovereignty, in: Francesco Seatzu/Angelica Bonfanti/Francesca Romanin Jacur (eds.), Natural Resources Grabbing: An International Law Perspective (2015), 15.

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The permanent sovereignty over natural resources relies on a number of Genera, 102 which are not themselves binding acts, but rather are important evidence of the States’ opinio juris due to the broad consensus they have gathered in the Assembly.103 However, this principle is also embodied in treaty provisions, which are directly binding upon the State parties. According to Article 1 (2) common to the ICCPR and ICESCR, [a]ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.104

These international acts, both of soft law and hard law, along with a consistent State practice, are the basis on which it is possible to build the normative content of the principle of permanent sovereignty over natural resources that is part of customary international law.105 The core content of the principle is set out in Article 1 General Assembly Declaration on Permanent Sovereignty over Natural Resources (Natural Resources Declaration),106 according to which: “The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.” In the Palestinian context, Palestinian sovereignty over natural resources, notwithstanding the occupation, has been affirmed a number of times by the General Assembly.107 It is clear that the prolonged Israeli occupation raises serious concerns re102 GA Res. 1803 (XVII) (note 100); GA Res. 2158 (XXI) of 25 November 1966; GA Res. 3171 (XXVIII) of 17 December 1973; GA Res. 3201 (S-VI) of 1 May 1974; GA Res. 3281 (XXIX) 12 December 1974. 103

For an overview of the different hypotheses about the legal effects of these resolutions, see Manlio Frigo, La sovranità permanente degli Stati sulle risorse naturali, in: Paolo Picone/Giorgio Sacerdoti (eds.), Diritto internazionale dell’economia (1982), 245, 259 et seq. In broader terms, about the nonbinding character of the General Assembly declarations of principles, see Gaetano Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, RdC (1972-III), 137, 419. 104

Emphases added.

105

See ICJ, Armed Activities (note 72), para. 244.

106

GA Res. 1803 (XVII) of 14 December 1962.

107

See, among the most recent, GA Res. 60/183 of 31 January 2006; GA Res. 61/184 of 25 January 2007; GA Res. 62/181 of 31 January 2008; GA Res. 63/201 of 28 January 2009; GA Res. 64/185 of

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garding the natural resources of the Palestinian territory, since an occupying power that exploits the natural resources of the occupied territory even for military necessity – therefore lawfully, according to international humanitarian law – nonetheless exploits and reduces the natural resources of a people, especially if the occupation lasts for many decades.108 The present author does not want to enter the complex debate about who possesses permanent sovereignty over natural resources – States or peoples – an issue which arises from the different wording of the relevant provisions.109 Suffice to say, according to Article 1 (2) common to the ICCPR and ICESCR, peoples, not only States, are entitled to sovereignty over natural resources; this is consistent with the principle of self-determination and relevant to the Palestinian situation, since the international community conferred both the related rights of self-determination and sovereignty over their natural resources to the Palestinian people through the British Mandate.110 It should be noted that the dissolution of the League of Nations cannot be seen as the end of the rights conferred by this organisation through the mandate system since, according to Article 80 UN Charter, all the rights conferred under the mandate system must be presumed still in force under the UN.111 Accordingly, Palestinian self-determination and sovereignty over natural resources are still legally valid and binding. In the past the PLO was the only actor that has exercised these rights on behalf of the Palestinian people, whilst the State of Palestine stepped in recently, enjoying sovereignty over natural resources just like all other States.112

29 January 2010; GA Res. 66/225 of 29 March 2012; GA Res. 67/229 of 9 April 2013; GA Res. 68/235 of 7 February 2014; GA Res. 69/241 of 2 February 2015. 108

See Tignino (note 5), 261 et seq.

109

For an overview of the different positions, see Emeka Duruigbo, Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law, George Washington International Law Review 38 (2006), 33, 43 et seq. 110 On the Palestinian people’s sovereignty over the OPT since the Mandate, see Quigley (note 96), 66 et seq. 111

See Jean-Robert Henry, Article 80, in: Jean-Pierre Cot/Alain Pellet/Mathias Forteau (eds.), La Chartre des Nations Unies: Commentaire article par article (3rd ed. 2005), 1845, 1845 et seq. 112 Writing almost two decades ago, Scobbie (note 50), 253, affirmed that the right to exploit natural resources in the OPT “remain[s] vested in the population as a corollary or accompaniment of the right to self-determination”.

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Article 1 (2) common to the ICCPR and ICESCR is also relevant since it is bin ding upon Israel and Palestine, both of which are parties to the Covenants.113 In addition, the Covenants emphasise that in no case may a people be deprived of the basic means of subsistence, reinforcing the aforementioned international humanitarian law obligations not to starve the population of an occupied territory. On these premises, it is now possible to analyse whether the principles of selfdetermination and permanent sovereignty over natural resources are applicable to the Dead Sea coastline and whether they could be used as the legal framework on which to base a Palestinian right to exploit its potential for tourism.

B. The Application of the Principles of Self-Determination and Permanent Sovereignty During Belligerent Occupation

The principle of self-determination is applicable even in situation of belligerent occupation, as confirmed by the ICJ in relation to the OPT.114 Consequently, according to Article 31 (3)(c) VCLT, the principle of self-determination must be regarded as an interpretative tool of the treaty-based rules on belligerent occupation. As noted afore, the rules on belligerent occupation attempt to preserve the rights of the legitimate sovereign, resulting in the possibility of a systematic and harmonic interpretation between the principle and international humanitarian law. It is, however, important to emphasise that a situation of belligerent occupation can be seen as a violation of the self-determination of a people, but this essay is not the proper occasion to discuss the lawfulness of the occupation itself.115

113 On the shared responsibility between Israel and Palestine for the protection of human rights in West Bank and Gaza after the Palestinian accession to the principal international conventions, see Marco Longobardo, La recente adesione palestinese alle convenzioni di diritto umanitario e ai principali trattati a tutela dei diritti dell’uomo, Ordine internazionale e diritti umani 4 (2014), 771, 778 et seq. 114 115

ICJ, Wall Opinion (note 10), para. 88.

On this topic, see Orna Ben-Naftali/Aeyal M. Gross/Keren Michaeli, Illegal Occupation: Framing the Occupied Palestinian Territory, Berkeley Journal of International Law 23 (2005), 551; Yaël Ronen, Illegal Occupation and Its Consequences, ILR 41 (2008), 201.

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Conversely, the application of the principle of permanent sovereignty over natural resources in times of belligerent occupation is more controversial.116 According to the ICJ: [T]he Court notes that there is nothing in [the] […] General Assembly resolutions [about permanent sovereignty] which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the DRC’s third submission. The Court does not believe that this principle is applicable to this type of situation.117

This passage resulted in many criticisms. According to the prevalent reading of the judgment, the Court means that the principle of sovereignty over natural resources does not apply during armed conflict or belligerent occupation,118 probably because international humanitarian law rules would trump it as a matter of lex specialis. However, this conclusion seems to be inconsistent with the aforementioned practice of the General Assembly, which emphasised the application of the principle during the Israeli occupation. Moreover, this passage does not take into account the fact that the principle of sovereignty over natural resources originated as a corollary of the principle of self-determination, which the Court considers applicable during belligerent occupation. The Court’s position is also in conflict with a number of binding Security Council resolutions, adopted during the occupation of Iraq, wherein the Council affirmed the right of the Iraqi State to sovereignty over its natural resources, notwithstanding the occupation.119 The Security Council invoked respect for the per-

116 On the application of the principle of permanent sovereignty over natural resources during armed conflicts, see, generally, Phoebe N. Okowa, Natural Resources in Situations of Armed Conflict: Is There a Coherent Framework for Protection?, International Community Law Review 9 (2007), 237; Marco Pertile, La relazione tra risorse naturali e conflitti armati del diritto internazionale (2013); Daniella Dam-de Jong, International Law and Governance of Natural Resources in Conflict and PostConflict Situations (2015). 117

ICJ, Armed Activities (note 72), para. 244 (emphases added).

118

See Philip Weckel, Arrêt du 19 décembre 2005: Activités Armées sur le territoire du Congo (République démocratique du Congo c. Ouganda), Revue Général de Droit International Public 110 (2006), 173, 183; Emanuele Cimiotta, Conflitto armato nella Repubblica Democratica del Congo e principio della sovranità permanente degli Stati sulle proprie risorse naturali, in: Aldo Ligustro/Giorgio Sacerdoti (eds.), Problemi e tendenze del diritto internazionale dell’economia: Liber amicorum in onore di Paolo Picone (2011) 55, 55 et seq. 119

See SC Res. 1483 of 22 May 2003, preamble and paras. 14 and 20; SC Res. 1511 of 16 October 2003, preamble; SC Res. 1546 of 8 June 2004, preamble and para. 3.

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manent sovereignty over natural resources even during the conflict in the Democratic Republic of the Congo.120 As noted afore with regard to international human rights law, the most recent case law of the ICJ clearly implies that the application of international humanitarian law is not a hindrance to the application of other relevant treaty provisions as a matter of principle. Consequently, the Court’s position on the application of the principle of permanent sovereignty appears to be inconsistent both with the States’ and the UN’s practice, as well as with the Court’s own jurisprudence. The ICJ’s decision should not be overestimated. Notwithstanding the prestige and the influence of the Court, its decisions are binding only on the parties to each dispute. Since there is room to argue that its position is not in line with the practice and opinio juris of States and international organisations, it is possible to conclude that, according to customary international law, permanent sovereignty over natural resources is a principle applicable even during armed conflicts and occupations.121 Moreover, the fact that the principle of permanent sovereignty over natural resources is mentioned also in treaties (ICCPR and ICESCR), which the Court considers binding upon Israel even during the occupation, is sufficient to suggest that the principle of permanent sovereignty over natural resources is applicable even in times of belligerent occupation as a matter of international human rights treaty law, at least when it does not conflict with international humanitarian law in a way that cannot be resolved through the rules of interpretation.122 This conclusion is consistent with the fact that permanent sovereignty over natural resources is a principle strictly related to self-determination, and, therefore, it would be unreasonable to consider only the latter applicable when the two share a common origin. Moreover, in the field of the economic development of an occupied territory, an accurate analysis of the belligerent occupation rules shows that they are largely consistent with, when not clearly inspired 120 See, e.g., SC Res. 1291 of 24 February 2000, preamble; SC Res. 1304 of 16 June 2000, preamble; SC Res. 1457 of 24 January 2003, preamble and para. 4; SC Res. 1533 of 12 March 2004, preamble. 121 See ICJ, Armed Activities (note 72), Declaration of Judge Koroma, para. 11. This opinion is popular among scholars. See, e.g., Cimiotta (note 118), 76 et seq.; Tignino (note 5), 259 et seq.; prior to the ICJ’s decision, this idea has been supported by Cassese (note 40), 426 et seq.; Scobbie (note 50), 247 et seq.; Schrijver (note 99), 143 et seq. 122

See Nico J. Schrijver, Permanent Sovereignty over Natural Resources, MPEPIL, June 2008, para. 22, available via: www.mpepil.com (accessed on 30 October 2015).

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by, the need to preserve the original population’s sovereignty over natural resources.123 The nature of the principles of self-determination and permanent sovereignty makes them particularly suitable to function as interpretative guidance when applying international humanitarian rules.124 Consequently, it is reasonable to argue that international law on belligerent occupation, self-determination, and permanent sovereignty over natural resources should be applied during belligerent occupation and can be interpreted in a coherent way.

C. Partial Conclusion on the Palestinian Self-Determination and Sovereignty over Natural Resources Related to the Access to the Dead Sea Coastline

In the present author’s view, there are scant doubts that the related principles of self-determination and permanent sovereignty form a legal basis for Palestinian claims to accessing the Dead Sea coastline125 in order to develop a rich touristic industry, since the curative mud of the Dead Sea as well as the white sunny beaches and the waters are natural resources. The Palestinian people enjoys these rights and can exercise them today through the State of Palestine, since the General Assembly, the body which most contributed to the development of the two principles, considers Palestine to be a State.126 Consequently, since the occupying power does not enjoy sovereignty over natural resources in the occupied territory, it is illegal under international law for Israel to exploit said resources and deny access to them to Palestinian investors.

123

According to Cardona Llorens, “lorsque nous parlons de développement, nous parlons aussi des droits de l’homme, du droit des peoples à disposer d’eux-mêmes et du droit à la pleine souveraineté sur toutes leurs richesses et ressources naturelles”, Cardona Llorens (note 88), 865. 124 Even the ICJ in the Armed Activities case seems to consider that the principle of sovereignty over natural resources, albeit not directly applicable, is a decisive interpretative tool of the international humanitarian law conventions, see Vaios Koutroulis, L’affaire des Activités armées sur le territoire du Congo (Congo c. Ouganda): une lecture restrictive du droit de l’occupation, Revue Belge de Droit International 39 (2006), 701, 739. 125 “Ce principe protège l’accès à ces ressources dans le territoires occupés”, according to Tignino (note 5), 266. 126

See the abovementioned GA Res. 67/19 of 4 December 2012.

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International humanitarian law confers to the occupant certain powers which must be exercised only to ensure its safety in the occupied territory; in this respect, the law of belligerent occupation can be considered lex specialis in relation to the principle of sovereignty over natural resources, but without any justification grounded in international humanitarian law the occupying power cannot prevent the people of the occupied territory from enjoying their rights.127 Moreover, according to the Natural Resources Declaration, a violation of the principle of permanent sovereignty over natural resources “is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international cooperation and the maintenance of peace”.128 This is particularly true in the broader Palestinian context, where natural resources played a great role in fuelling the conflict.

V. The Relevant Treaty Provisions of the Oslo Accords According to Article 1 (2) common to the ICCPR and ICESCR, the principle of permanent sovereignty over natural resources should be exercised “without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit”. In the Palestinian context, the most relevant bilateral agreement on economic cooperation is the Protocol on Israeli-Palestinian Cooperation Programs, Annex VI to the Interim Agreement (Annex VI).129 Article V (6) Annex VI provides: a. In order to best utilize the unique advantages provided to the tourism industry in conditions of stability, the two sides shall examine ways to: […] (5) encourage joint ventures in the tourism field in all areas of mutual benefit including on the Dead Sea. In this regard

127

Cardona Llorens (note 88), 867 et seq.

128

GA Res. 1803 (XVII) (note 100), para. 7.

129

The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Annex VI, Protocol Concerning Israeli-Palestinian Cooperation Programs, 28 September 1995, available at: http://www.mfa.gov.il/MFA/ForeignPolicy/Peace/Guide/Pages/THE%20ISRAELIPALESTINIAN%20INTERIM%20AGREEMENT%20-%20Annex%20IV.aspx (accessed on 29 November 2015).

348 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 Palestinian private projects as well as joint ventures in accordance with the DOP, will be located as agreed on the shore of the Dead Sea.130

Moreover, the Annex also demands the free movement of tourists in the area, since Article V (6)(c) Annex VI prescribes that: “The two sides shall facilitate and encourage smooth movement of tourists between their respective areas”. These are the key bilateral provisions related to the development of tourism on the Palestinian Dead Sea coastline. The Annex, as well as all the Oslo accords, are proper international agreements between Israel and the PLO, thus their norms are binding for both the parties.131 Since embodied in an international treaty, the duty to encourage investments on the coastline of the Dead Sea, also from Palestinian private investors, is an obligation independently chosen by Israel, which it can only derogate from in the cases allowed by treaty law.132 However, in this field, the Annex puts forward only obligations of cooperation, i.e. the parties have only the duty to discuss in good faith the exploitation of the Dead Sea coastline, but are largely free to disagree on the measures that should be adopted and whether or not to reach an agreement. Other general rules of the Annex are also relevant for the Dead Sea coastline. According to Article IV (4) Annex VI “[…] a. developing the infrastructure and a strong base for the Palestinian economy; […] d. working together to promote social development and foster the rise of Palestinian standards of living […]” are some of the aims of the economic cooperation between the parties. These provisions must be taken into account in the interpretation of the entire Annex, since they underscore its scope.133 Article III Annex VI establishes a Standing Cooperation Committee, with the mandate of ensuring the implementation of the Annex. Unfortunately, the Committee ceased its work in 2000, when tensions between the two parties arose after a period of relative calm.134 Its brief life is the major shortcoming of the Annex, since it does not provide for other implementation mechanisms.

130

Emphases added.

131

See Watson (note 11), 55 et seq.

132

The rules on termination and suspension of a treaty are codified in Arts. 54–64 VCLT. The rules embodied therein, as a matter of customary law, are applicable also to the Oslo accords, even if they are beyond the scope of the VCLT, since they are not treaties between States. 133

See Art. 31 (1) and (2) VCLT.

134

See World Bank (note 18), para. 46.

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It is clear that the Oslo accords, despite their vague drafting, show that the Palestinian investors have the right to participate in the exploitation of the Dead Sea shore, with the cooperation of the Israeli military administration. This conclusion is consistent with the aforementioned idea that Israel has to adopt positive measures to allow Palestinians to access their coastline. At least a further inquiry would be necessary, in order to evaluate whether Israel and/or the Palestinian State are responsible for having suspended the activity of the Committee, a fact that is per se a breach of an obligation enshrined in the Annex.

VI. Concluding Remarks on the Legal Consequences of the Israeli Policy and the Available Remedies After having affirmed that the Israeli policy related to Palestinian access to the Dead Sea coastline violates a number of international norms, the legal consequences should be briefly addressed, as well as the remedies available for Palestinians. Firstly, Israel is under a duty to cease the wrongful act, to offer assurances of nonrepetition, and to make full reparation.135 Secondly, there is room to argue that some of the violated norms (possibly some international humanitarian law rules136 and more likely the principle of self-determination)137 are jus cogens and entail obligations erga omnes.138 However, the special regime related to these kinds of norms is not applicable in the present case, since the denial of access to the Dead Sea shore cannot be considered a ‘serious breach’ of the aforementioned norms given that Israel enjoys some 135

See Arts. 30 and 31 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq. 136 The ICJ affirmed that international humanitarian law entails obligations erga omnes in the Wall Opinion (note 10), para. 157. The peremptory nature of some international humanitarian law rules is much more debated. Kolb/Vité (note 21), 245 et seq., consider the international humanitarian law rules regarding belligerent occupation to be peremptory; on the contrary, the jus cogens nature of international humanitarian law is denied by Rafael Nieto-Navia, International Peremptory Norms (Jus Cogens) and International Humanitarian Law, in: Lal Chand Vohrah et al. (eds.), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (2003), 595. 137 138

See supra, IV. A.

On the relations between these two categories, see Paolo Picone, The Distinction between Jus Cogens and Obligations Erga Omnes, in: Enzo Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention (2011), 411.

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discretional powers related to the measures that should be adopted pursuant to Article 43 Hague Regulations – a circumstance that could be a hindrance in assessing the seriousness of the breach.139 Conversely, the whole regime of the settlements in the area and their overexploitation of the natural resources of the coastline functions as the broader framework for serious violations of international peremptory norms in which the denial of access could be properly addressed. In addition, it should be noted that international humanitarian law specifically lacks an effective institutional mechanism for implementation.140 Furthermore, an intervention of the Security Council, in the form of a binding resolution and coercive enforcement measures,141 does not seem realistic, since Israel enjoys the support of the United States and every attempt to adopt similar resolutions would likely be vetoed. Accordingly, Israel will probably continue to ignore all the General Assembly recommendations. Since Article 1 common to the Four Geneva Conventions142 provides that all the States must respect and ensure respect of the Conventions, all the States could invoke Israeli responsibilities and demand the cessation of the wrongful acts in case of serious violations, consistently with the erga omnes and erga omnes partes character of international humanitarian law norms.143 However, so far no State has complained specifically about the Dead Sea situation.

139

Art. 40 Articles on the Responsibility of States.

140

See generally Antonio Cassese, Current Challenges to International Humanitarian Law, in: Andrew Clapham/Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), 3. For the proposal to establish a monitoring mechanism for the situation of belligerent occupations, see Ben-Naftali (note 46). 141 For an overview of the role of the Security Council in the enforcement of international humanitarian law, see Marco Roscini, The United Nations Security Council and the Enforcement of International Humanitarian Law, ILR 43 (2010), 330. 142 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, UNTS 75, 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, UNTS 75, 85; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, UNTS 75, 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS 75, 287. 143

ICJ, Wall Opinion (note 10), para. 158. See also Luigi Condorelli/Laurence Boisson de Chazournes, Quelques remarques à propos de l’obligation des États de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances”, in: Christophe Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (1984), 17.

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Unfortunately, international law provides no satisfactory remedy against these violations, since currently there is not an international tribunal with jurisdiction over the wrongful acts committed by Israel on the Dead Sea shore. Even assuming that the State of Palestine will join the ICJ’s Statute,144 the jus cogens and/or erga omnes character of the violated norms is not sufficient to establish the jurisdiction of an international court, which requires the consent of all the States involved.145 It is even more unlikely that Israel will agree to settle any disputes about the Dead Sea shore voluntarily. Maybe the ICC would be the forum in which the issue of the Dead Sea exploitation would be addressed as a matter of individual criminal responsibility but not the specific issue of denial of access. The ICJ affirmed that the overexploitation of natural resources in an occupied territory constitutes pillage,146 one of the offences prosecuted according to the Rome Statute. In January 2015, the State of Palestine acceded to the Statute and its accession entered into force on 1 April 2015.147 Therefore, the State of Palestine can refer the situation of the West Bank, Dead Sea shore included, to the ICC and trigger an investigation and maybe the prosecution of the individuals responsible for the exploitation policy.148 However, such proceedings would not address the specific issue of the denial of access. In addition, the prosecution of individuals before domestic courts of Member States to the Four Geneva Conventions149 is unlikely since Article 147 Fourth Geneva Convention does not include the overexploitation of natural resources into the socalled ‘grave breaches’. Moreover, many domestic legal systems have adopted restrictions to the exercise of universal criminal jurisdiction.150 144

Statute of the International Court of Justice, 26 June 1945, UNCIO 15, 335.

145

ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment of 3 February 2006, ICJ Reports 2006, 6, para. 64. 146

Id., Armed Activities (note 72), para. 250.

147

For an overview of the main issues related to the prosecution of international crimes in Palestine, see Marco Longobardo, Some Developments in the Prosecution of International Crimes Committed in Palestine: Any Real News?, Polish Yearbook of International Law 35 (2015), forthcoming. 148

This is the view of Al-Haq (note 8).

149

This possibility has been envisaged by Imseis (note 29), 127 et seq.

150

On the current limitations to the exercise of universal criminal jurisdiction see, e.g., Naomi RohtArriaza, Universal Jurisdiction: Steps Forward, Steps Back, LJIL 17 (2004), 373; Ignacio de la Rasilla del Moral, The Swan Song of Universal Jurisdiction in Spain, International Criminal Law Review 9 (2009),

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Finally, it is highly improbable that the Supreme Court of Israel, sitting as High Court for the Israeli acts in the Palestinian territory, would declare the illegality of the Israeli policy. From the examination of its case law, even in relation to the exploitation of natural resources,151 the Supreme Court appears reluctant to pass judgments against the occupying power, choosing to rely on proportionality tests that are in conflict with international humanitarian law in order to justify the violation of Palestinian rights.152 In conclusion, the Israeli policy of denying access to the Dead Sea shore to Palestinian investors is unlawful under international law, Israel must put an end to it, and Palestine and maybe other States can invoke Israel’s responsibility, but at the moment there is no international court with direct jurisdiction over the issue. It is well-established in international law that the lack of a competent tribunal does not affect the legal content of the primary obligations of States,153 but it is clear that this is of scant consolation for the Palestinian State and people. On the contrary, the issue of the exploitation of the Palestinian Dead Sea shore can be addressed more appropriately in the wider context of the Israeli activities in the West Bank, particularly in relation to the settlements. The end of the occupation and the withdrawal of every settlement will obviously bring the Palestinians free access to their Dead Sea coastline, but this is not an easy aim to achieve.

777; Raphael Ben-Ari, Universal Jurisdiction: Chronicle of a Death Foretold, Denver Journal of International Law and Policy 49 (2014–2015), 165. 151 For an overview see Cassese (note 40), 433 et seq. See also Valentina Azarov, Exploiting A “Dynamic” Interpretation? The Israeli High Court of Justice Accepts the Legality of Israel’s Quarrying Activities in the Occupied Palestinian Territory, EJIL: Talk!, 7 February 2012, available at: http://www. ejiltalk.org/exploiting-a-dynamic-interpretation-the-israeli-high-court-of-justice-accepts-the-legality-ofisraels-quarrying-activities-in-the-occupied-palestinian-territory/ (accessed on 29 November 2015). 152 See the authors mentioned supra, note 62, and, more generally, David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002); Orna Ben-Naftali, PathoLAWgical Occupation: Normalizing the Exceptional Case of the Occupied Palestinian Territory and Other Legal Pathologies, in: ead. (ed.), International Humanitarian Law and International Human Rights Law: Pas de Deux (2011), 129, 162 et seq. 153

See, e.g., ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, para. 86, available at: http://www.icj-cij.org/ docket/files/118/18422.pdf (accessed on 7 January 2016).

Safeguarding State Sovereignty: The Relevance of Post-Award Remedies in ICSID and Non-ICSID Arbitration FENGHUA LI(

ABSTRACT: Post-award remedies in International Centre for Settlement of Investment Disputes (ICSID) and non-ICSID arbitration have been thrust into the limelight due to the Yukos case and have aroused considerable concerns in the Chinese arbitration community in view of the recent Ping An decision. The divergence of post-award remedies in ICSID and non-ICSID arbitration has momentous implications for the safeguarding of national interests, since international investment arbitration is a vehicle for the exercise of sovereign authority. States should consider in what ways and to what extent they would transfer their alienable sovereign rights to ad hoc committees in ICSID arbitration and to national courts in nonICSID arbitration. Such deliberation relies on an inspection of the authority to review of ad hoc committees and national courts particularly by examining the inconsistency of the review, the rigorousness of the review and the review on the merits. KEYWORDS: State Sovereignty, Post-award Remedies, ICSID Arbitration, Non-ICSID Arbitration, Inconsistency, Rigorousness, Review on the Merit

I. Introduction On 18 July 2014, the Tribunal constituted under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).1 decided unanimously that the Russian Federation had breached Article 13(1) Energy Charter Treaty2 by taking a series of measures that amounted to a “devious and calculated” indirect expropriation of three majority shareholders of the OAO Yukos Oil Com-

(

Shizi Research Fellow at Renmin University of China.

1

The Arbitration Rules of the United Nations Commission on International Trade Law, Resolution 31/98 adopted by the General Assembly on 15 December 1976, available at: https://www.uncitral. org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf (accessed on 11 February 2016). 2

Energy Charter Treaty, 17 December 1995, UNTS 2080, 95.

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pany (Yukos).3 The Yukos case has been thrust into the limelight not only because of the amount of compensation ($50.2 billion) which was ordered by the Tribunal in the largest compensation award in the history of arbitration, but also due to the highly complex political, economic and legal circumstances. One of the remarkable circumstances relates directly to post-award remedies. On 28 January 2015, the Russian Federation filed three writs with the Hague District Court that sought to set aside the Yukos awards on the following grounds: (i) pursuant to the Dutch Code of Civil Procedure there was no valid arbitration agreement; (ii) the Tribunal was not properly composed; (iii) the Tribunal failed to fulfil its mandate; and (iv) the Tribunal violated public policy and good morals.4 The writs were duly served on the three claimants in the UNCITRAL arbitration cases, thereby commencing proceedings to seek post-award remedies. The recent landmark ICSID arbitral decision in Ping An v. Kingdom of Belgium5 where Ping An’s claim was dismissed due to lack of jurisdiction, has also aroused considerable concerns as regards post-award remedies in the Chinese arbitration community. While it was the first international investment arbitration case in which Belgium served as a respondent, it was also the first time that an investor from mainland China had recourse to ICSID arbitration. However, the Chinese insurer failed to draw the case into a substantive adjudicative procedure. As the ICSID tribunal observed, the question whether Ping An still had a remedy under the old China-Belgium-Luxembourg bilateral investment treaty (BIT)6 was not and could not be before the Tribunal, but the dispute resolution clause, the sunset clause, and the expiration of the old BIT should be taken

3 Three majority shareholders of Yukos initiated three separate arbitration cases against the Russian Federation under the UNCITRAL Arbitration Rules pursuant to the Energy Charter Treaty, which were later consolidated and heard in parallel before the same tribunal. See Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA Case No. AA226, Final Award of 18 July 2014; Yukos Universal Limited (Isle of Man) v. The Russian Federation, PCA Case No. AA227, Final Award of 18 July 2014; Veteran Petroleum Limited (Cyprus) v. The Russian Federation, PCA Case No. AA228, Final Award of 18 July 2014. 4 Veteran Petroleum Limited (Cyprus) v. The Russian Federation, Writ of Summons of 28 January 2015. 5

Ping An v. Kingdom of Belgium, ICSID Case No. ARB/12/29, Award of the Tribunal of 30 April 2015. 6

Bilateral Investment Treaty, 4 July 1984, Belgium-Luxembourg-China, available at: http:// investmentpolicyhub.unctad.org/IIA/country/42/treaty/471 (accessed on 27 January 2016).

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into account.7 In addition, given that the decision is an award declining jurisdiction,8 it can be brought before an ad hoc committee within the purview of annulment. Post-award remedies, though obtainable in both ICSID and non-ICSID arbitration,9 demonstrate one of the most distinguishing features between ICSID and nonICSID arbitration. The divergence of post-award remedies not only has the potential to be the decisive factors in foreign investors’ selection between ICSID and nonICSID arbitration,10 but also has momentous implications for the safeguarding of national interests. In particular, practically speaking, the divergence plays a critical part in the pursuit of a successful settlement of an investment dispute, and of more primary but less tangible interests underlying the individual dispute such as the government’s regulatory right for protection of public welfare, health and safety, labour rights, and the environment. Accordingly, though the dichotomy between foreign investors’ interests and State sovereignty serves as a traditional paradigm for structuring the debate about investor-State arbitration, the importance of emphasising State 7

See supra, note 5, para. 209.

8

A request for annulment of a preliminary decision affirming jurisdiction and paving the way for a subsequent award is entirely unavailable under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, UNTS 57, 159, (ICSID Convention). 9 ICSID arbitration refers to sui generis arbitration under the aegis of the ICSID Convention. The ICSID Convention provides a secure and self-contained system of resolving investment disputes in which the Convention, complemented by a set of its institutional rules, is the only source of regulation of all aspects of arbitral proceedings. ICSID arbitration is thus thoroughly autonomous and explicitly independent of any legal system at the national level. Non-ICSID arbitration commonly comprises arbitration under the UNCITRAL Arbitration Rules, the International Chamber of Commerce (ICC) and the Stockholm Chamber of Commerce (SCC). The effectiveness of non-ICSID arbitration rests, in principle, upon a patchwork of international and national laws. E.g., insofar as lex arbitri is concerned, non-ICSID adjudicatory proceedings are subject to various procedural rules, depending on the applicable legal system at the arbitral situs. The application of lex arbitri also extends to the post-award remedies and the enforcement procedure where national courts at the arbitral situs are vested with authority to review arbitral awards in accordance with national statues, while national courts before which the enforcement is sought are conferred broad discretionary powers under national statutes or conventions (such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, UNTS 330, 38 (the New York Convention)) to resist the enforcement of awards. 10 E.g., scepticism concerning the annulment had been expressed by Feldman who maintained that it was more important for the ICSID to be efficacious and that awards be final rather than correct since parties valued informality, expeditiousness and economy (Mark Feldman, The Annulment Proceedings and the Finality of ICSID Arbitral Awards, ICSID Review-Foreign Investment Law Journal (ICSIDRFILJ) 2 (1987), 85, 87). Accordingly, some commentators advocated a greater use of non-ICSID arbitration with judicial review by national courts (see, e.g., Bernard Hanotiau/Olivier Caprasse, The Review of Arbitral Awards by Domestic Courts: Introductory Report, in: Emmanuel Gaillard (ed.), The Review of International Arbitral Awards (2010), 7, 18, 19).

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sovereignty cannot be overstated and an inquiry into the divergence of post-award remedies between ICSID and non-ICSID arbitration from the perspective of safeguarding State sovereignty is of practical consequence for a better understanding of recalibrating rights and obligations of States.11 The roles that States play in international investment arbitration are not limited to claimants, respondents, or non-disputing parties as amicus curiae in specific cases; instead, they can be multiple and tremendously complex, and could profoundly affect the international investment regime on the whole.12 Treaty negotiation, in particular, is a primary role from a macro perspective, since State sovereignty would be a focal point in the negotiation process and the extent of sovereign rights transferred to international tribunals would substantially affect the framework of investor-State arbitration. International tribunals’ discretionary use of adjudicative power on regulatory disputes seems to conflict with ‘principles of judicial accountability and independence in democratic societies’ and infringe the integrity of a legal system by contracting out the judicial functions in public law.13 Nonetheless, most legal systems in the modern world have accepted that State sovereignty is not inalienable and some sovereign functions can be transferred to supranational or international entities.14 In 11

The term ‘recalibrating’ was used by Alvarez in analysing whether it was necessary to recalibrate the international investment regime or BITs, given the emerging challenges that the regime faced in recent times (José E Alvarez, Why Are We “Re-Calibrating” Our Investment Treaties, World Arbitration & Mediation Review 4 (2010), 143). While traditional investment treaties typically contain succinctly formulated rights and obligations of States, new treaties have adopted more complex approaches. E.g., some treaties contain non-precluded measures (NPM) provisions to exempt certain actions taken by States in response to extraordinary circumstances from the substantive protections of the treaties (William W. Burke-White/Andreas von Staden, Investment Protection In Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, Virginia Journal of International Law 48 (2008), 307). Though a number of the approaches remain controversial, it appears that a trend towards recalibration (or at least a certain form of recalibration) is under way. 12 E.g., first, States act as legislators to create statutory frameworks for international arbitration, especially when it comes to their functions to legitimate and support non-ICSID arbitration and further promote arbitration venues. Second, States as contracting parties negotiate and ratify international or regional arbitration conventions and multilateral or bilateral investment treaties, which are of the utmost importance in shaping the formulation of international investment law and in setting up the foundation of investor-State arbitration. In addition, certain functions of States are undertaken by national courts, including, inter alia, issuing arbitration injunction, implementing awards, and controlling non-ICSID awards. 13 14

Gus Van Harten, Investment Treaty Arbitration and Public Law (2007), 4.

Guglielmo Verdirame, A Normative Theory of Sovereignty Transfers, Stanford Journal of International Law 49 (2) (2013), 371.

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the international investment arbitration context, when verifying consent to investorState arbitration jurisdiction, States automatically transfer or surrender15 part of their judicial sovereignty in favour of investment protection; in other words, international arbitration removes, de facto, a substantial component of national courts’ jurisdiction.16 As more cases have proved that investor-State arbitration is not simply about seeking compensation for the damage but rather the challenging of sovereign rights,17 it can be contended that the element of transferring State sovereignty is the linchpin of the whole investment arbitration mechanism. Intriguingly, the extent of the sovereignty that States have to transfer or surrender to ICSID or non-ICSID arbitration is different. In terms of jurisdiction and enforcement, States have to transfer, by and large, more sovereign rights in ICSID arbitration.18 However, the matter seems to be more complicated when it comes to post-award remedies.19 It is unequivocal that ad hoc committees in ICSID annulment proceedings 15 The diction of ‘transfer’ emphasises that States willingly give up their alienable sovereign rights so as to receive some benefits in return, while the term ‘surrender’ implies a voluntary but passive attitude towards the loss of some sovereign rights. 16 Santiago Montt, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (2009), 125–126. 17

E.g., in July 2014 Newmont Nusa Tenggara and its majority Dutch shareholder Nusa Tenggara Partnership BV filed an ICSID arbitration request against the Indonesian government over its mineralexport ban policy, seeking interim and injunctive relief to resume exports (see Nusa Tenggara Partnership B.V. and PT Newmont Nusa Tenggara v. Republic of Indonesia, ICSID Case No. ARB/14/15). In the on-going UNCITRAL case, the claimant alleged that the Australian Tobacco Plain Packaging legislation constituted an expropriation of its valuable intellectual property and goodwill, and failed to provide investments with ‘fair and equitable treatment’, ‘unreasonable impairment’, and ‘full protection and security’ as guaranteed by the Australia-Hong Kong BIT, 15 October 1993, available at: http:// investmentpolicyhub.unctad.org/Download/TreatyFile/152 (accessed on 11 February 2016), see Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12, Notice of Arbitration of 21 November 2011. 18 First, consent to ICSID arbitration jurisdiction would prevent disputing parties from seeking relief from national courts in the course of the arbitral proceedings. Second, the place where ICSID arbitral proceedings take place is irrelevant to the validity of awards. Third, national courts charged with the enforcement of ICSID arbitral awards have no power to review awards for procedural irregularities or substantive correctness. Fourth, respondent States in ICSID arbitration may be confronted with a threat of impliedly waiving its sovereign immunity. 19

Though a variety of possible remedies are provided under the ICSID Convention and national statutes respectively, a number of remedies, including supplementation, rectification, interpretation, and revision, normally involve mere incidental, trivial, or minor issues that would have little relevance to the final decision of the claims for compensations and any other kind of relief. These remedies, though important and necessary, are instruments that are too blunt and insignificant by themselves to substantively distinguish ICSID arbitration from non-ICSID arbitration. Therefore, only the annulment

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and national courts at the arbitral situs20 in non-ICSID vacatur proceedings21 will be in charge of the review process at the stage of post-award remedies, which indicates that the sovereign authority to review arbitral awards which are binding on States are virtually transferred to ad hoc committees and national courts. Hence, the focus in a critical analysis of the safeguarding of State sovereignty in the field of post-award remedies has to be shifted to the scrutiny, evaluation, and interpretation of the review authority of ad hoc committees and national courts.

II. The Inconsistency of Review A. The Non-Uniformity of Standard in ICSID Annulment Proceedings

ICSID arbitration shall carry, at first sight, less risk stemming from the inconsistency in annulment proceedings in view of the fact that the review authority of ad hoc committees is set forth explicitly in Article 52 ICSID Convention.22 However, it seems that a substantial dearth of consistency in annulment proceedings is also a thorny issue in mechanism in ICSID arbitration and the vacatur mechanism in non-ICSID arbitration, which are thoroughly radical but limited remedies enabling parties to challenge the finality of awards, will be examined in this article. 20 Given that most non-ICSID investor-State arbitral awards are recognised and enforced by virtue of mechanisms provided by the New York Convention, and that the recognition and enforcement may be rejected under the New York Convention if the award has been set aside by a competent court of the State ‘in which, or under the law of which, it was made’ (Art. V (1)(e) New York Convention), the courts of the State that supplies arbitral law under which the award is made can also be entitled to set aside an award under the New York Convention. Although the New York Convention specifically contemplates the possibility that an award could be rendered in one State but under the arbitral law of another State, this situation may be so rare as to be a ‘dead letter’ (Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation (1981), 28). 21

In addition to ‘vacate’, other dictions such as ‘annul’, ‘set aside’, ‘revoke’, or ‘nullify’ may be adopted by different national arbitration statutes; e.g., the Code of Civil Procedure of Netherlands adopts the terms ‘reversal and revocation’ (see Dutch Arbitration Act, Code of Civil Procedure – Book Four: Arbitration, effective 1 December 1986, sec. 5). In this article the dictions of ‘set aside’ (verb) and ‘vacatur’ (noun) will be adopted in accordance with the common usage in international commercial arbitration. 22 Under the ICSID Convention, ad hoc committees are entitled to annul arbitral awards on one or more of the following grounds: (a) that the tribunal was not properly constituted; (b) that the tribunal had manifestly exceeded its powers; (c) that there was corruption on the part of a member of the tribunal; (d) that there had been a serious departure from a fundamental rule of procedure; (e) that the award had failed to state the reasons on which it was based.

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ICSID arbitration as the standard of review adopted by different ad hoc committees is far from uniform. In terms of the extent to which ad hoc committees have implemented their review authority under Article 52 Convention, Schreuer classified the ICSID annulment jurisprudence into three generations: the first generation of ICSID annulment decisions, consisting of Klöckner v. Cameroon I23 and Amco v. Indonesia I,24 was widely condemned for re-examining the merits of the decisions since they virtually amounted to appeal proceedings. The concern of substantive review aroused in the first generation was alleviated in the second generation of decisions which included MINE v Guinea, Klöckner v. Cameroon II,25 and Amco v. Indonesia II.26 The ad hoc committees in the third generation of decisions appeared to find the proper balance in Wena Hotels v. Egypt, Vivendi v. Argentina, and CMS v. Argentina where they only intervened in ‘serious and important case’.27 The three generations of ICSID annulment jurisprudence have demonstrated a great deal of inconsistency which would, in turn, affect the finality, certainty, and predictability of ICSID arbitration. Though the third generation of annulment decisions wins praise for navigating between the Scylla of complete fairness and the Charybdis of absolute finality,28 the standard of review established in the third generation will not be applied compulsorily to future cases since there is no legally binding precedent in ICSID arbitration. In fact, a number of annulment proceedings that have been initiated in the past few years might be a watershed that marks the beginning of the fourth generation of ICSID annulment jurisprudence.29 Nevertheless, the features of the fourth generation would be particularly difficult to define since it is like a mixed bag containing considerably different criteria of review. For example, the ad hoc committees in Sempra Energy International 23

ICSID Case No. ARB/81/2, Ad Hoc Committee Decision on Annulment of 3 May 1985.

24

ICSID Case No. ARB/81/1, Ad Hoc Committee Decision on Annulment of 16 May 1986.

25

ICSID Case No. ARB/81/2, Second Ad Hoc Committee Decision on Annulment of 17 May 1990.

26

ICSID Case No. ARB/81/1, Decision on the Application by Parties for Annulment and Partial Annulment of the Arbitral Award of 5 June 1990 and the Application by Respondent for Annulment of the Supplemental Award of 17 October 1990. 27 Christoph Schreuer, Three Generations of ICSID Annulment Proceedings, in: Emmanuel Gaillard/Yas Banifatemi (eds.), Annulment of ICSID Awards (2004), 17, 17–20. 28 Pierre Lalive, Absolute Finality of Arbitral Awards?, Revista Internacional de Arbitragem Conciliaçao-Año I-2008 (2009), 109, 122. 29

Promod Nair/Claudia Ludwig, ICSID Annulment Awards: The Fourth Generation?, Global Arbitration Review 5 (5), 28 October 2010.

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v. The Argentine Republic30 and Enron Corporation and Ponderosa Assets, L.P. v. The Argentine Republic31 blurred the boundaries between review on a full-fledged error of law and limited review provided under the ICSID Convention by holding that manifest errors of law could amount to a failure to apply the applicable law and thus constitute an annulment ground of manifest excess of powers. By comparison, the approach adopted by the ad hoc committee in Continental Casualty Company v. The Argentine Republic went in the other direction. As the Committee observed, the erroneous application of principles of treaty interpretation was an error of law, rather than a manifest excess of powers, at least where the error related to the substantive issue rather than a jurisdictional issue.32 As the main traits of the fourth generation of ICSID annulment jurisprudence is heterogeneity, it can be assumed that the inconsistency resulting from the divergent interpretation and application of the grounds for annulment set forth in Article 52 ICSID Convention will continue, and the lack of uniformity increases, indubitably, the risk of challenges to ICSID arbitral awards.

B. The Uncertainty of Standard in Non-ICSID Arbitration

As compared to the self-contained and centralised system that vests ad hoc committees with powers to annul ICSID arbitral awards on the basis of a number of specific grounds, the vacatur of non-ICSID arbitral awards will be reviewed by national courts at the arbitral situs where the standards applicable to set aside awards vary from jurisdiction to jurisdiction. Such relatively decentralised framework indubitably indicates different standards of review in non-ICSID arbitration; and, more importantly, the disparity found in national statutes as regards the various standards of review entail, prima facie, a remarkable degree of uncertainty. Certain ‘problem jurisdictions’ even demonstrate a tendency to set aside arbitral awards for unforeseeable reasons, in particular in the case where the home State is involved as a party.33 30

Sempra Energy International v. The Argentine Republic, ICSID Case No. ARB/02/16, Decision on Annulment of 29 June 2010, paras. 121–125. 31

Corporation and Ponderosa Assets, L.P. v. The Argentine Republic, ICSID Case No. ARB/01/3, Decision on Annulment of 30 July 2010, para. 405. 32 33

ICSID Case No. ARB/03/9, Decision on Annulment of 16 September 2011, para. 90.

Juan Fernández-Armesto, Different Systems for the Annulment of Investment Awards, ICSIDRFILJ 26 (1) (2011), 128, 130.

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Admittedly, the area of uncertainty in investor-State arbitration remains large,34 some of which (such as annulment) are inherent in international arbitration as long as post-award remedies are necessary for investors to pursue justice.35 Therefore, the debate on post-award remedies in ICSID and non-ICSID arbitration is not directed to the utter avoidance of uncertainty but rather to the scrutiny of the degree of uncertainty in different fora that reflects the risks of challenging arbitral awards. Arguably, unlike the more consistent ICSID system that relies merely on one set of rules, a multi-layered system of review provided in a variety of national statutes with respect to the vacatur in non-ICSID arbitration gives rise to a greater degree of uncertainty.36 Nonetheless, a number of factors to which uncertainty is attributable can be predicted ex ante, and thus the uncertainty in non-ICSID arbitration can be and is being mitigated through a range of paths. One of the major paths depends on the convergence of national arbitration statutes. Notwithstanding the noticeable divergences, it can be asserted that a convergence of national arbitration statutes emerges. Insofar as post-award remedies are concerned, a similar approach limiting the review of setting aside arbitral awards to the grounds that are generally parallel to those set out in Article V New York Convention in the context of non-recognition and non-enforcement of foreign arbitral awards has been adopted in a number of national arbitration regimes. The adoption of such similar approach can be attributed, in part, to multilateral conventions37 and the UNCITRAL Model Law.38 Obviously, the convergence of

34

Investment treaties are indeterminate to the extent that ‘they provide standards of compliance, the content of which is left to be specified by arbitral tribunals’. The vague nature of standards by which arbitral tribunals are expected to adjudicate investment claims, the ad hoc nature of arbitral tribunals, and the decisions which were reached on various controversial issues (e.g., the unavoidable role of policy element in the decisions) have brought to the fore the issue of uncertainty. See Andrés Rigo Sureda, Investment Treaty Arbitration: Judging under Uncertainty (2012), 7–19. 35 This is because to establish an optimal level of review between finality and correction of arbitral awards will be extremely difficult, in particular given the increasing complexity of investor-State arbitration cases. 36

R. Doak Bishop/Silvia M. Marchili, Annulment under the ICSID Convention (2012), 261.

37

E.g., the European Convention on International Commercial Arbitration is the only multilateral convention that provides the specific grounds for setting aside international commercial arbitral award. See Art. 9(1) European Convention on International Commercial Arbitration, 21 April 1961, UNTS 484, 364. 38 In fact, the grounds for setting aside arbitral awards set forth under the UNCITRAL Model Law are taken from Art. V New York Convention which provides grounds for refusing to recognise and enforce arbitral awards.

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national legislation can reduce, to some degree, the area of uncertainty in non-ICSID arbitration and thus mitigate the effects resulting from inconsistency.

III. The Rigorousness of Review A. The Discretion in Ruling on Annulment

Under the ICSID Convention, ad hoc committees shall ‘have the authority to annul’ awards or any part thereof,39 which implies that committees are not under an obligation to annul but are endowed with discretion to annul if one of the grounds for annulment listed in the Convention is found to exist. Though the discretion accorded to ad hoc committees was not recognised in some early cases,40 committees at the present time have embraced the standpoint that the text of the Convention can be interpreted ‘as giving committees some flexibility in determining whether annulment is appropriate in the circumstances’.41 Such discretion is not unlimited but should be exercised to the point of not defeating the object and purpose of the remedy of annulment.42 More specifically, the discretion function can be exercised if and when annulment is perceptibly not needed to remedy procedural injustice and annulment would unjustifiably jeopardise the binding force and finality of ICSID arbitral awards. For instance, the Tribunal in MINE v Guinea43 held that Guinea had breached the principle of good faith set forth in Article 1134 French Civil Code. In the annulment proceeding, the ad hoc Committee found that the tribunal had erroneously applied 39

Art. 52 (3) ICSID Convention.

40

E.g., the ad hoc committee in Klöckner v. Cameroon I found that, save under exceptional circumstances, annulment would have to be automatic. The Committee considered that Art. 52 ICSID Convention could be interpreted in two ways: firstly, as triggering inevitable and automatic annulment on a finding that one of the grounds set forth in Art. 52 ICSID Convention existed; and secondly, as containing a sort of space between the finding under Art. 52 (1) ICSID Convention that there was a ground for annulment and the declaration of annulment under Arts. 52 (3) ICSID Convention and 52 (6) ICSID Convention. In the second way, the Committee had the power to abstain from annulment if it believed that the ground for annulment either did not harm the applicant nor substantially affect the arbitral award taken as a whole. See supra, note 23, para. 179. 41

Vivendi v. Argentina, ICSID Case No. ARB/97/3, Decision on Annulment of 3 July 2002, para. 66.

42

MINE v. Guinea, ICSID Case No. ARB/84/4, Decision on Annulment of 22 December 1989, paras. 4.09–4.10. 43

MINE v. Guinea, ICSID Case No. ARB/84/4, Decision on Annulment of 22 December 1989.

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French law rather than the applicable Guinean law. However, the annulment was rejected by the committee on the ground of a failure to apply the proper law since the relevant provisions referred by the tribunal were identical in the two legal systems.44 Thus, the committee refused to attribute decisive importance to a technical error in the service of material justice. A pragmatic justification for national courts’ judicial discretion becomes more convincing as the main conclusions of debate on the technical necessity for judicial discretion in the 20th century follow either from envisaging the possibility of judges taking into account moral criteria when they identify norms, or from acknowledging a much less restrictive thesis on the limits of law.45 In the context of post-award remedies in non-ICSID arbitration, national courts retain a measure of discretion in deciding whether an award tainted by a defect will lead to an outcome of vacatur. Such judicial discretion is subject to structural and doctrinal constraints contained in relevant conventions and statutes;46 however, it appears that constraints are insufficient to utterly prevent national courts from tackling with ambiguity in conventions and statutes in ways that expanded their judicial powers.47 Similarly, the trends in ICSID annulment jurisprudence have been depicted in terms of ‘generations’, reflecting various levels of review where ad hoc committees may be ultra vires. Considering that the cumulative effect of regular or unorthodox exercises of discretion can be farreaching, more emphasis should be placed upon an assessment of discretion accorded 44

Ibid., para. 6.40.

45

Marisa Iglesias Vila, Facing Judicial Discretion: Legal Knowledge and Right Answers Revisited (2001), 1–2. 46 There has been a conscious effort in many States to structure judicial discretion by exerting constraining effects upon the discretion to follow traditional doctrine, legal culture, public policy, and if in common law jurisdictions, binding precedents. Besides, judges can only rely upon persuasive power, through offering an explanation of their judgments with a rationale, for the purpose of enforcement of the judgments. In some States (such as China), a decision setting aside an arbitral award is subject to a review process by higher courts, which also places external constraint upon the exercise of judicial discretion. 47 E.g., the Swiss Federal Tribunal rendered in 2008 a decision to extend an arbitrator’s jurisdiction to parties that the International Chamber of Commerce (ICC) International Court of Arbitration had excluded under Art. 6.2 The Rules of Arbitration of the International Chamber of Commerce, 1 January 1998, available at: http://www.jus.uio.no/lm/icc.arbitration.rules.1998/ (accessed on 11 February 2016). The Tribunal’s review was not only contrary to the ICC Rules but also challenged the due process in the constitution of arbitral tribunal, which could be characterised as judicial activism (see Christopher Koch, Judicial activism and the limits of institutional arbitration in multiparty disputes, ASA Bulletin 28 (2) (2010), 380).

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to ad hoc committees and judicial discretion when it comes to the sovereign choice of ICSID and non-ICISD arbitration, and one feasible and cardinal approach would be to probe into the extent to which grounds for annulment are applied by ad hoc committees and national courts in practice.

B. The Degree of Rigorousness

Notwithstanding the inconsistent standards employed by ad hoc committees in different generations of ICSID annulment jurisprudence, the way that a number of committees exercise their discretion reflects a characteristic of the rigorousness of review to a very significant degree. As compared to review by national courts, the inquiry by ad hoc committees into ICSID tribunals’ application of grounds for annulment is at times more stringent in at least three respects. First, ad hoc committees ordinarily do not restrict themselves in their search for interpreting the texts of the ICSID Convention, and a wider search and a deeper look into details of cases at hand will give rise to a strict standard of review. The most common ground on which ad hoc committees rely to annul ICSID arbitral awards is that the tribunal in question had manifestly exceeded its powers. According to the methodological approach, the term ‘manifest’ only relates to the cognitive process that makes it ‘self-evident’, ‘obvious’, or ‘apparent’.48 However, the committee in Vivendi v. Argentina considered it as a qualitative matter, determining that the term ‘manifest’ implied that the excess of powers should make a difference to the result.49 Without insisting on particular rhetoric, the committee in Soufraki v. United Arab Emirates50 created a more rigorous approach under which the inquiry that ad hoc committees should undertake was to require an excess to be at once ‘textually obvious and substantively serious’ based on a two-step method or a prima facie test.51 In non-ICSID arbitration, if an allegation 48

The ICSID committees in Wena Hotels Limited v. Egypt, CDC Group v. Seychelles and Repsol v. Petroecuador applied this approach. See ICSID Case No. ARB/98/4, Decision on Annulment of 5 February 2002, para. 25; ICSID Case No. ARB/02/14, Decision of the ad hoc Committee on Annulment of 29 June 2005, para. 41; ICSID Case No. ARB/01/10, Decision on Annulment of 8 January 2007, para. 36. 49

See supra, note 41, paras. 104–112.

50

ICSID Case No. ARB/02/7, Decision on Annulment of 5 June 2007.

51

Ibid., para. 40.

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of manifest excess of powers is argued as a ground for setting aside an arbitral award, a de novo review of the arbitral tribunal’s jurisdictional determination will be conducted by national courts in some main arbitration jurisdictions, in which the test of courts is ‘was the tribunal right or wrong in asserting or refusing to assert jurisdiction under the treaty or contract as it did’ rather than ‘was the tribunal entitled to reach the decision that it did’.52 The approach is very concise and avoids dragging the question into a swamp of confusion and debate. Second, there is evidence that the inquiry made by ad hoc committees into tribunals’ application of the proper law53 is, on occasion, more stringent and rigorous than that by national courts. The distinction of different degrees of rigorousness can be indicated by a comparison of the decisions in MTD Equity v. Chile (ICSID arbitration)54 and CME v. Czech (UNCITRAL arbitration)55 where the ICSID ad hoc committee scrutinised whether the tribunal had not applied the governing law to the questions which were necessary for its determination,56 while the Svea Court of Appeal, conversely, refused to examine whether the tribunal had applied the governing law to the right questions but just verified whether any of the laws listed in the 1991 NetherlandsCzech and Slovak BIT57 (including laws that parties agreed on to be applicable and laws that the tribunal decided as amiable compositeur or ex aequo et bono with parties’ explicit permission) had been applied to any of the relevant questions.58 In fact, based on the 52

The approach of a de novo review is adopted in England, Canada, Sweden and Switzerland. See Gaëtan Verhoosel, Annulment and Enforcement Review of Treaty Awards: To ICSID or Not to ICSID, in: Albert Jan van den Berg (ed.), 50 Years of the New York Convention: ICCA International Arbitration Conference (2009), 285, 296–297. 53

The ad hoc committee in CDC Group plc. v. Seychelles stated that failure to apply the law specified by the parties was an excess of powers; essentially, a tribunal’s legitimate exercise of power was tied to the consent of the parties, and so the tribunal exceeded its powers where it acted in contravention of that consent (see supra, note 48 (the CDC Group case), para. 40). Thus, in view of its general obligation to apply the proper law to the dispute under Art. 42(1) ICSID Convention, a tribunal’s failure to do so amounts to a manifest excess of powers. 54

ICSID Case No. ARB/01/7, Decision on Annulment of 21 March 2007.

55

Svea Court of Appeal, The Czech Republic v. CME Czech Republic B.V., Challenge of Arbitral Award of 15 May 2003, International Legal Materials (ILM) 42 (2003), 919. 56

See supra, note 54, para. 72.

57

Bilateral Investment Treaty, 29 April 1984, Netherlands-Czech and Slovak BIT, available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/968 (accessed on 11 February 2016). 58

As the Svea Court of Appeal stated, the Court did not believe that the various sections in the arbitral award were to be reviewed in order to ascertain which of the sources of law listed in Art. 8.6 had

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rigid inquiry, an ICSID award faces the risk of annulment on the ground of failure to apply the proper law under a number of circumstances when a tribunal: (i) fails to apply the proper law; (ii) applies a different law other than that agreed by the parties;59 (iii) makes errors that are so gross or egregious as substantially to amount to non-application;60 and (iv) decides ex aequo et bono without an authorisation by the parties.61 Third, unlike the other grounds provided under the ICSID Convention which contain limiting terms such as ‘properly’, ‘manifestly’, ‘serious’, or ‘fundamental’, such terms are absent in the failure to state reasons ground; accordingly, the ICSID Convention leaves a great deal of discretion to ad hoc committees. A number of ad hoc committees have exercised their discretion without restricting their powers to the investigation of the absence of reasons (for a particular aspect of the award). Several committees extend their understanding of stated reasons to consistent reasons. In the view of ad hoc committees, the mandate of committees is to look at the coherence of the reasons.62 In addition, the inquiry of ad hoc committees is occasionally extended to a determination of the adequacy or persuasiveness of reasons. This approach is taken by the ad hoc committee in Klöckner I, which had developed a standard that reasons should be ‘sufficiently relevant’ or ‘reasonably sustainable and capable of providing a basis for the decision’.63 Applicants infrequently invoke the ground of failure to state reasons to set aside non-ICSID awards, but the ground seems not to be necessarily a scarce ground in the setting aside proceedings. This is because major non-ICSID arbitration rules norbeen applied by the arbitral tribunal. In the Court’s opinion, when assessing whether the arbitrators had exceeded their mandate, it was sufficient to clarify whether the arbitral tribunal applied any of the sources of law listed in the choice of law clause or whether the tribunal had not based its decision on any law at all but, rather, judged in accordance with general reasonableness. See supra, note 55, 965. 59

See supra, note 42, para. 5.03.

60

See supra, note 50, para. 86. A careful distinction must be made between ‘gross or egregious misinterpretation or misapplication of the proper law’ and ‘erroneous application of the law’ because a mere error in the application of the proper law, even though it leads to incorrect result, does not constitute a ground for annulment. See supra, note 24, para. 23. 61

As an exception from the rules of applicable law, tribunals may decide on the basis of equity in accordance with Art. 42(3) ICSID Convention, but such power of tribunals is restricted to cases where explicit permission by the parties is given. A decision ex aequo et bono without parties’ permission amounts to an excess of powers for failure to apply the governing law. See supra, note 24, para. 59. 62

See supra, note 48 (the CDC Group case), para. 70.

63

See supra, note 23, paras. 119–120.

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mally contain an obligation of tribunals to state reasons, though such obligation is subject to parties’ otherwise statement.64 Failure to state reasons is one of the grounds upon which the Russian Federation relied for its application for setting aside the Yukos arbitral awards. The Russian Federation alleged that the award should be set aside pursuant to Article 1065 (1)(d) Dutch Code of Civil Procedure65 because the arbitral tribunal failed to provide reasons for a number of key aspects of its rulings, including a lack of comprehensible reasoning for its determination of the Damage Award,66 its failure to consider the voluminous evidence supporting Yukos’ corporate profit tax assessments,67 its openly and explicitly grounding conclusions in the Tribunal’s own impermissible speculation,68 and its internally inconsistent findings concerning the auction of Yukos’ largest production subsidiary Yuganskneftegaz.69 In the Yukos case, the UNCITRAL Arbitration Rules (1976) severed as the applicable procedural rules, which indeed required the tribunal to state the reason upon which the award was based, unless the parties had agreed that no reasons were to be given.70 It is intriguing that the UNCITRAL Model Law does not include the failure to state reasons as a ground for setting aside awards.71 This might be partially relevant to the longstanding amiable composition and ex aequo et bono in non-ICSID arbitration, which either confer authority on tribunals to determine the case at hand on the basis of what they consider to be fair and equitable or provide that arbitrators act as amiable compositeurs. In practice, the failure to state reasons in a decision rendered by the French Cour de Cassation was not in itself contrary to the French understanding 64

E.g., Art. 34 (3) UNCITRAL Rules, Art. 31(2)The Rules of Arbitration of the International Chamber of Commerce, 1 January 2012, available at: http://www.iccwbo.org/products-andservices/arbitration-and-adr/arbitration/icc-rules-of-arbitration/#article_34 (accessed on 11 February 2016) and Art. 36(1) The Rules of Arbitration of the Stockholm Chamber of Commerce, 1 January 2010, available at: http://www.sccinstitute.com/media/40120/arbitrationrules_eng_webbversion.pdf (accessed on 11 February 2016 ( SCC Rules). 65 Art. 1057 (4)(e) Dutch Code of Civil Procedure provides that an arbitral award must contain ‘the reasons for the decision rendered in the award’ available via: http://www.dutchcivillaw.com/civil procedureleg.htm (accessed on 27 January 2016). 66

See supra, note 4, paras 524–525.

67

Ibid., paras. 526–528.

68

Ibid., paras. 529–531.

69

Ibid., paras. 532–535.

70

Art. 32 (3) UNCITRAL Rules.

71

Art. 34 (2)(iii) UNCITRAL Model Law.

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of international public policy.72 In Italy, the Court of Appeal of Florence rejected the contention of the defendant that the lack of reasons in the arbitral award violated the Italian public order since a violation should be determined on the basis of the decision rather than the reasoning of the award.73 In general, national courts in many jurisdictions74 would reject a request for setting aside an arbitral award on the ground of failure to state reasons, or take a particularly restrictive approach.75 In fact, applicants seldom rely on the ground of failure to state reasons when seeking to set aside awards in non-ICSID treaty-based arbitration. Therefore, how the Hague District Court reviews the reasoning given by the arbitral tribunal in the Yukos awards will contribute to the non-ICSID arbitration jurisprudence in the form of a precedent or example.

IV. Review on the Merit The terms ‘manifestly’, ‘serious’, and ‘fundamental’ adopted in the ICSID Conventure from a fundamental rule of procedure, is not rare in practice since hyperactive ad hoc committees typically have a wide perception of their functions.76 Based on the extensive approach, a number of ad hoc committees engage in greater substantive review of awards than that permitted under the ICSID Convention. The first generation of annulment decisions actually reviewed arbitral awards in a manner approaching appeal, and such unauthorised appellate review was resurrected in the ‘second viral phase’77 of annulment decisions in Enron v. Argentine,78 Sempra v. Argentine,79 72 Yas Banifatemi, Defending Investment Treaty Awards: Is There an ICSID Advantage?, Albert Jan van den Berg (ed.) (note 52,) 318, 322. 73

Italy No. 29, Bobbie Brooks Inc. v. Lanificio Walter Banci s.a.s., Corte Di Appello Di Firenze, 8 October 1977, Yearbook Commercial Arbitration IV (1979), 289, 291. 74

E.g., Belgium, Canada, England, Switzerland, and the United States.

75

See Verhoosel (note 52), 302.

76

On occasion, ad hoc committees even ex officio searched for additional reasons for annulment that had not been raised by the applicants. See Christoph Schreuer, From ICSID Annulment to Appeal Half Way Down the Slippery Slope, Law and Practice of International Courts and Tribunals 10 (2011), 211, 215–225. 77 78

See Friedland/Brumpton (note 79), 730.

In this case, the core issue was the ICSID tribunal’s interpretation of the necessity defense. The ad hoc committee held that the tribunal accepted the evidence of the claimant’s expert ‘to the effect that Argentina had other options available to it for dealing with the economic crisis’. The reasoning of the

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and Fraport v. Philippines80 where the ad hoc committees seemed unable to defy the temptation of excessive annulment. Some commentators even inquire into whether the contemporary annulment of ICSID arbitral awards is back to the first generation.81 Basically, annulment proceedings are not supposed to be conducted to the detriment of the finality, stability, and integrity of the awards rendered by arbitral tribunals, and ad hoc committees should be conscious of the potential risk of acting like a court of appeal. Otherwise, the objective of the annulment will be undermined if the ad hoc committees exceed their competence to review awards on the merits (except for a few extremely limited reviews on the merits of awards as mentioned

tribunal did not address a number of issues that were essential to the question of whether the ‘only way’ requirement was met (see supra, note 31, paras. 367–368, 376). In this way, the ad hoc committee not only examined the failure to apply the applicable law (which amounted to an excess of power) but also scrutinised the improper application of the applicable law. 79 The controversial issue in this case was also the tribunal’s treatment of the necessity defense. The tribunal had analysed the Art. XI U.S.-Argentina BIT and customary international law (Art. 25 International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq.). However, as the ad hoc committee stated, the tribunal erroneously determined that the legal obligations under Art. XI U.S.-Argentine BIT and customary international law were identical, and such error was a failure to apply the applicable law (rather than the error in the application of the applicable law) (see supra, note 30, para. 208). 80 In this case, the Philippines’ Anti Dummy Law prohibited intervention by non-Philippine entities in the control of Philippine public utilities. The ICSID Tribunal found that Fraport (a German investor) had entered into secret shareholders’ agreements to control Philippine International Air Terminals Co, which breached the Anti Dummy Law. Fraport argued that Philippines had informally accepted its investment and thus waived the right to rely on the violation of the Anti Dummy Law. However, the Tribunal declined such argument and arrived at its decision on the basis of the evidence of a resolution of the Philippines Public Prosecutor after the proceedings had been closed (see ICSID Case No. ARB/03/25, Award of 16 August 2007, paras. 319–327, 368, 382, 387, 401.) In the annulment proceedings, Fraport alleged that the tribunal had breached its right to be heard by admitting and substantively relying upon the evidence of the Resolution of the Philippines Public Prosecutor after the close of proceedings without giving Fraport an opportunity to address the new material. The submissions of the applicant focused on the waiver of the Philippines, but the reasoning of the ad hoc committee was developed by examining whether the Tribunal properly interpreted the Anti Dummy Law on the basis of the Resolution of the Philippines Public Prosecutor. The ad hoc committee concluded that the Tribunal should have re-opened the proceedings under Rule 38 ICSID Arbitration Rules to allow further submissions on the proper interpretation of the Anti Dummy Law, but its failure to do so could be classified as a serious departure from a fundamental rule of procedure (see ibid., Decision on Annulment of 23 December 2010, paras. 129, 211, 230–232, 243–245). Following the annulment, Fraport initiated another arbitration against the Philippines in 2011. A new Tribunal rendered a decision, dismissing Fraport’s claims for lack of jurisdiction of ICSID Centre and competence of the tribunal (see ICSID Case No. ARB/11/12, Award of 10 December 2014). 81

Antonio Crivellaro, Annulment of ICSID Awards: Back to the “First Generation”?, in: Laurent Levy/Yves Derains (eds.), Liber Amicorum en L’honneur de Serge Lazareff (2011), 145–175.

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above). When making observations on such substantive questions, ad hoc committees ought to exert their powers prudently and make a distinction between annulment and appeal. All told, review on the merits in ICSID arbitration is, in general terms, unacceptable under the Convention and undesirable in practice. By comparison, though a significant number of jurisdictions adopt the limited and exclusive grounds of recourse laid down in the UNCITRAL Model Law, there are also numerous jurisdictions permitting international arbitral awards to be set aside on grounds that are broader than those set forth in the UNCITRAL Model Law, in which judicial review on the merits of arbitral awards may be legitimate. Review on the merits occurs in two circumstances where the intervention of national courts includes a limited right of appeal. In the first circumstance, the mistake of law can be a ground for setting aside arbitral awards. The English Arbitration Act explicitly provides that disputing parties to arbitral proceedings in a few categories of cases can appeal to the court on substantive errors of law.82 The United States Federal Arbitration Act83 does not expressly enumerate review on the basis of mistake of law, but national courts have followed the dictum in Wilko v. Swan that a ‘manifest disregard of law’ is justified to set aside arbitral awards.84 The second circumstance in which arbitral awards would be subject to appellate review rests on the existence of a mistake of fact. In LaPine v. Kyocera, the Court of Appeals allowed judicial review because the contract permitted judicial scrutiny of award when parties agreed that review would be for errors of fact or law.85 In addition, a number of jurisdictions have provided a variety of grounds for substantive review of arbitral awards on the merits. For instance, Chinese national courts may set aside arbitral awards if the court concluded that the evidence that was sufficient to affect the impartiality of the award had been concealed by the other party, or that the proper law had been applied erroneously.86 82

Sec. 69 The Arbitration Act 1996 (of England), 17 June 1996, available at: http://www. legislation.gov.uk/ukpga/1996/23/data.pdf (accessed on 11 February 2016). 83

The Federal Arbitration Act, 30 July 1947, available at: https://www.gpo.gov/fdsys/pkg/US CODE-2011-title9/content-detail.html (accessed on 11 February 2016). 84

Wilko v. Swan, 346 U.S. 427 (U.S. S.Ct. 1953). See Michael H. LeRoy, Are Arbitrators above the Law? The “Manifest Disregard of the Law” Standard, Boston College Law Review 52 (2011), 137, 140. 85 LaPine v. Kyocera, 139 F. 3d 884 (9th Cir., 1997). See Eric van Ginkel, “Expanded” Judicial Review Revisited: Kyocera Overturns LaPine, Pepperdine Dispute Resolution Law Journal 4 (2003), 47. 86 Art. 58 (5) Arbitration Act of the People’s Republic of China, 31 1994, unofficial English translation is available at: http://www.jus.uio.no/lm/china.arbitration.law.1994/ (accessed on 11 February 2016) and Art. 20 The Interpretation of the Supreme People's Court concerning Some Issues on Appli-

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Furthermore, while public policy (or ‘ordre public’) consideration is not enumerated under the ICSID Convention as a ground for annulment, public policy, which would include but not be restricted to peremptory rules of international law such as prohibition of slavery, piracy, drug trade, terrorism, genocide, and the protection of basic human rights, can be invoked in the form of a general failure to apply international law which amounts to an excess of powers.87 Nonetheless, in practice it is much far-fetched that international public policy will be applied to an investment contract.88 In contrast, public policy is a standard ground for setting aside non-ICSID arbitral awards in most jurisdictions. The UNCITRAL Model Law also provides that an award may be set aside if the court ex officio finds that the award is in conflict with public policy of the State involved.89 In the Yukos case, the final ground which the Russian Federation invoked for the setting aside of the awards was the violation of public policy. As the Russian Federation claimed, the arbitral tribunal not only based many of its rulings on what it openly described as its own speculation as to the Russian Federation might have done and what Russian tax law should provide, but also relied on its own speculation in finding that the auction of Yukos’ subsidiary Yuganskneftegaz was ‘rigged’.90 Although the public policy arguments in vacatur actions are rarely successful,91 there is still a possibility that the Yukos awards would be set aside on the ground of violation of public policy, in particular taking into account the following factors. First, despite the convergence of legislation in developed jurisdictions, the nebulous nature of the concept of public policy makes it possible that public policy is inappropriately and occasionally used since the Hague District Court may set aside an arbitral

cation of the Arbitration Law of the People’s Republic of China, Interpretation No. 7 [2006] of the Supreme People’s Court, 26 December 2005. 87

Christoph H. Schreuer et al., The ICSID Convention: A Commentary (2nd ed. 2009), 975–976.

88

One exception is that the ICSID tribunal in World Duty Free v. Kenya based its decision partially on international public policy, stating that bribery was contrary to the international public policy in most States and thus claims based on contracts of corruption or obtained by corruption could not be upheld. See ICSID Case No. ARB/00/7, Award of 4 October 2006, para 157. 89

Art. 34 (2)(b)(ii) UNCITRAL Model Law.

90

See supra, note 3, paras. 552–578.

91

E.g., the Indonesian State-owned oil corporation lost public policy arguments before the U.S. Court of Appeals, Fifth Circuit in Karaha Bodas Co. (Cayman Islands) v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Indonesia), 364 F.3d 274 (5th Cir. 2004).

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award which is valid in terms of public policy in other States. Second, it is intriguing that national courts in France may set aside an arbitral award if it is contrary to ‘public policy’ in accordance with the 2011 French Decree reforming the law governing arbitration,92 as compared to the terms ‘international public policy’ (rather than ‘domestic’ or ‘local’public policy) adopted in the old French Code of Civil Procedure.93 It is also noteworthy that the traditional viewpoint that public policy should be construed narrowly and merely refers to ‘international public policy’ in the context of setting aside arbitral awards rests primarily on the French law and practice.94 Since the French law has been revised, it becomes ambiguous as to whether the revision would ostensibly disrupt the justification that structures the line drawn between ‘international public policy’ and ‘domestic public policy’ in vacatur proceedings. Third, a misapplication of mandatory statutes of the arbitral situs may amount to, on occasion, a violation of the underlying public policy. The judgment of the Hague Court of Appeal in Marketing Displays International v. VR95 lends itself to severe criticism under both competition law and arbitration law and has been regarded a deplorable step back on the road towards the finality of arbitral awards;96 however, it at least reflects the relatively tendentious safeguard of underlying public values on the part of the sovereign States, and reveals the risk of non-ICSID arbitral awards being 92 Art. 1492 (5) French Code of Civil Procedure, Decree No. 2011-48 of 13 January 2011. However, as to the ground for refusal of recognition and enforcement, the terms ‘international public policy’ are still retained in the new French Code. See Arts. 1514 and 1520 French Code of Civil Procedure. 93

Arts. 1502 (5) and 1504 French Code of Civil Procedure, Decree No. 81-500 of 12 May 1981.

94

The French courts draw a clear distinction between ‘international public policy’ and ‘domestic public policy’, pointing out that no account should be taken of the domestic public policy for the purpose of setting aside arbitral awards. See Emmanuel Gaillard/John Savage (eds.), Fouchard Gaillard Goldman on International Commercial Arbitration, (1999), 954; also see Banifatemi, (note 72), 325. 95

In the case one of the objections of the respondent was based on public policy on the ground that the patent, trademark, and know-how licence in question was contrary to European Community (EC) antitrust rules since the licence agreement was entered into without being notified to the EC Commission under Regulation (EC) 17/62 in force at the time. The Hague Court of Appeal determined that the licence was in breach of Art. 81 (1) Treaty Establishing the European Community, Rome Treaty, 25 March 1957, (EC Treaty) and thus a national court must set aside the arbitral award. As the Court observed, Art. 81 (1) EC Treaty was a fundamental provision that was essential for the fulfilment of the tasks of the Community for the functioning of the internal market. See Netherlands No. 29, Marketing Displays International Inc. (US) v. VR Van Raalte Reclame B.V. (Netherlands), Gerechtshof [Court of Appeal], The Hague, 24 March 2005, Yearbook Commercial Arbitration (YCA) XXXI (2006), 808, 815–816. 96 Alexis Mourre/Luca G. Radicati di Brozolo, Towards Finality of Arbitral Awards: Two Steps Forward and One Step Back, Journal of International Arbitration 23 (2) (2006), 171, 181–185.

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set aside on the ground of a violation of mandatory rules at the arbitral situs. Last but not least, public policy of a foreign State (other than the State of the arbitral situs) has a potential to play a role in the vacatur process. In fact, an application of foreign public policy is available under private international law in numerous jurisdictions.97 Accordingly, if domestic public policy demands giving effect to public policy of a foreign State in accordance with rules of choice of law, national courts can give effect in vacatur actions to that foreign public policy.

V. The Implication for Sovereign Choice The scrutiny of somehow inconsistent, rigorous, and substantive review undertaken respectively by ad hoc committees and national courts has demonstrated disparate levels of the review authority in ICSID and non-ICSID arbitration, which further reveals different extent of judicial sovereignty that has been transferred to ICSID and nonICSID arbitration at the stage of post-award remedies. The divergence of post-award remedies in terms of the safeguarding of State sovereignty is not only a theoretical question but also an intensely practical and delicate matter which appears more crucial in light of its implication for sovereign choice of ICSID and non-ICSID arbitration. Insofar as developing countries are concerned, in view of the controversy surrounding the effect of investor-State arbitration contained in BITs on foreign direct investment inflows,98 it has become more essential for developing countries to revalue BITs 97

E.g., Art. 187 (2) U.S. Restatement of the Law Second, Conflict of Laws (1971) stipulates that the law of the State chosen by the parties will be applied unless ‘application of the law of the chosen State would be contrary to a fundamental policy of a State which has a materially greater interest than the chosen State in the determination of the particular issue and which, under the rule of § 188, would be the State of the applicable law in the absence of an effective choice of law by the parties’. This provision is similar to Art. 7 (1) (regarding the mandatory rules)Rome Convention on the Law Applicable to Contractual Obligations, 19 June 1980, 19 ILM 1492 (1980). 98

Yackee found only inconsistent evidence that BITs might succeed in attracting additional Foreign Direct Investment (FDI), and emphasised that the effectiveness of BITs in performing such role depended on the particulars of dispute settlement mechanism in BITs (see Jason Webb Yackee, Sacrificing Sovereignty: Bilateral Investment Treaties, International Arbitration, and the Quest for Capital, USC Centre in Law, Economics and Organization Research Paper No. C06-15, 8). Berger’s study, however, revealed that investor-State arbitration would not increase FDI between developed countries and it might incur serious economic and political costs (see Axel Berger, The Transatlantic Free Trade Agreement – The Dispute over Dispute Settlement, The Current Column, 4 March 2014 available via: http://www.die-gdi.de/en/publications/the-current-column/page/13/?tx_kesearch_pi1%255BsortB

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and investment arbitration and further consider to what extent they decide to transfer State sovereignty. As developing countries concede sovereignty only in the belief that they would benefit from the global capital market since the resulting investment inflows will promote economic development, there is a possibility that they abandon ICSID or non-ICSID arbitration and resume their regulatory rights if such promises are not achieved. Bolivia, Ecuador, and Venezuela have respectively denounced the ICSID Convention,99 triggering their withdrawal from the investor-State dispute resolution mechanism under the auspices of the Centre.100 Bolivia, the first State to yField%255D=sortdate&tx_kesearch_pi1%255BsortByDir%255D=asc&tx_kesearch_pi1%255Bpag e%255D=7&tx_kesearch_pi1%255Bfilter%255D%255B2%255D= ). Generally, simply containing investor-State arbitration in BITs is insufficient in particular considering that the impact of investorState arbitration on the development of host States’ economies and institutions is still debatable (see Organisation for Economic Co-operation and Development (OECD), Government Perspectives on Investor-State Dispute Settlement: A Progress Report’, Freedom of Investment Roundtable, 14 December 2012, 12–13). 99 The World Bank received written notices of denunciation from the Republic of Bolivia on 2 May 2007, from the Republic of Ecuador on 6 July 2009 and from the Republic of Venezuela on 24 January 2012. In accordance with Art. 71 ICSID Convention, the denunciation took effect six months after receipt of the notice. 100 The impact of the denunciation on the ICSID arbitral claims has been a subject of debate for a couple of years, and much of the debate has centred on whether foreign investors would have rights to continue initiating new claims against States that have withdrawn from the ICSID Convention on the basis of States’ unilateral prior consent contained in a BIT, a FTA or other investment treaty that remains in force. Gaillard drew a distinction between States’ ‘unqualified consent’ and ‘agreement to consent’ to ICSID arbitration in BITs, and the underlying terminology used in the arbitration clause dictated whether the clause was an expression of an unqualified consent or an agreement to consent. E.g., Art. 8 UK-Bolivia BIT, 16 February 1990, available at: http://investmentpolicyhub.unctad.org/ IIA/country/24/treaty/595 (accessed on 11 February 2016 provided that disputing parties ‘may agree to refer the dispute either’ to ICSID, ICC, or ad hoc arbitration, which indicated that a further agreement was required to commence ICSID arbitration. By contrast, Art. 11 Germany-Bolivia BIT, 9 November 1990, available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/454 (accessed on 11 February 2016) stated that after both States had become contracting parties of the ICSID Convention, the dispute ‘shall be submitted’ to ICSID mediation and arbitration, which unequivocally expressed State’s consent to ICSID jurisdiction. Where an unqualified consent existed, investors could rely on such consent to initiate ICSID arbitration against the State even after it had denounced the Convention (see Emmanuel Gaillard, The Denunciation of the ICSID Convention, New York Law Journal 237 (122) (2007), 26 June 2007). Tietje also observed that the most far-reaching understanding of Art. 72 ICSID Convention provided for the possibility of accepting State’s consent to ICSID jurisdiction contained in a BIT so long as the BIT remained effective, and then the decisive issue was under what conditions the ICSID arbitration clause in a BIT remained unaffected by the State’s denunciation of the Convention. Normally, the conditions were that the consent stipulated in a BIT needed to be unconditional and required no further action on the part of the State (see Christian Tietje/Karsten Nowrot/Clemens Wackernagel, Once and Forever? The Legal Effects of a Denunciation of ICSID, Beiträge zum Transnationalen Wirtschaftsrecht 74 (2008), 8–9, 28–30). Intriguingly, Garibaldi argued that applying the contract analogy to Art. 72 ICSID Convention became an instance of the fallacy of false analogies. He presented observations on the limits of the contract analogy and on the inadequacy

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denounce the ICSID Convention, asserted that ICSID arbitration was an infringement of national sovereignty.101 The Foreign Ministry of Venezuela also underlined State sovereignty, reiterating that Venezuela acceded to the ICSID Convention in 1993 ‘by order of a provisional government weak and lacking popular legitimacy, pressured by transnational economic sectors involved in the dismantling of Venezuela’s national sovereignty’.102 Furthermore, as a considerable number of BITs in force contemplate, in addition to ICSID arbitration, alternative arbitration fora such as arbitration under the aegis of the UNCITRAL Arbitration Rules or other available rules,103 foreign investors are entitled to bring their claims against Bolivia, Ecuador and Venezuela before non-ICSID arbitral tribunals. In fact, several cases have been commenced against Bolivia in the non-ICSID arbitral proceedings.104 Given that of other theories that might tempt commentators who attempted to search for an extra-textual justification for construing the ‘consent’ in Art. 72 ICSID Convention as an ‘agreement to arbitrate’ (see Oscar M. Garibaldi, On the Denunciation of the ICSID Convention, Consent to ICSID Jurisdiction, and the Limits of the Contract Analogy, in: Christina Binder, et al. (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (2009), 252–277). Currently, there is a scarcity of case law concerning the effect of denunciation. E.g., the ICSID tribunal in Pan American Energy LLC v. Plurinational State of Bolivia (ICSID Case No. ARB/10/8) had refused to throw out the claim filed against Bolivia simply on the ground that the investor initiated arbitration more than two years after Bolivia’s denunciation of the Convention had taken effect. The tribunal might revisit the issue in subsequent arbitral proceedings, thus turning the debate from an academic question into a practical issue. However, the predominant academic observation indicates that no new claim should be permitted to be filed before an ICSID arbitral tribunal against a State if the State has withdrawn from the ICSID Convention, despite the fact that recourse to ICSID arbitration still retains an option as a dispute resolution forum in the text of the BIT or other applicable treaty that remains in force (Christoph Schreuer, Denunciation of the ICSID Convention and Consent to Arbitration, in: Michael Waibel, et al. (eds.), The Backlash Against Investment Arbitration: Perceptions and Reality (2010), 353–368). 101 Fernando Mantilla-Serrano, The Effect of Bolivia’s Withdrawal from the Washington Convention: is a BIT-Based ICSID Jurisdiction Foreclosed, Mealy’s International Arbitration Report 22 (8) (2007), 21. 102

Rodrigo Polanco Lazo, Is There a Life for Latin American Countries After Denouncing the ICSID Convention?, Transnational Dispute Management 11 (1) (2004), 1, 20. 103 E.g., only Germany-Venezuela and Chile-Venezuela BITs provide for ICSID arbitration as the sole valid forum available for investors to resolve investment disputes, and the other 25 BITs concluded by Venezuela in force commonly contain a variety of arbitral venues, in particular the UNCITRAL arbitration. 104 Guaracachi and Rurelec initiated an UNCITRAL arbitration administrated by the Permanent Court of Arbitration (PCA) against Bolivia under the U.S.-Bolivia BIT, 6 June 2001, available at: http://investmentpolicyhub.unctad.org/Download/TreatyFile/463 (accessed on 11 February 2016) and the UK-Bolivia BIT, claiming compensation resulting from the nationalisation in 2010 (Guaracachi America, Inc. and Rurelec PLC v. Plurinational State of Bolivia, UNCITRAL, PCA Case No. 2011-17, Award of 31 January 2014). Other arbitral proceedings are still underway, including South American

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BITs still contribute to the coherence, predictability, and stability of host States’ investment framework105 and that the effectiveness of BITs in attracting foreign investment arguably depends in part on the commitment of providing foreign investors with direct access to investor-State arbitration, developing States should pay more attention to the selection between ICSID and non-ICSID arbitration. Bolivia and Venezuela’s withdrawal from ICSID arbitration has shown their moderate resistance to sovereign rulings being conceded to international tribunals. Their selection of nonICSID arbitration in which State sovereignty would be transferred in a less drastic way will have a significant implication for other developing countries, especially those who have been sceptical of the effect of BITs and investor-State arbitration. Since BITs are reciprocal, developed countries also give up some sovereign rights to conclude BITs that contain investor-State arbitration. Such transfer seems to have been inconsequential over the past decades in that as traditional capital-exporting countries, developed countries focus more on the protection of their nationals’ overseas investment and thus guaranteed access for their nationals to international investment arbitration is ordinarily in line with their expectation. Be that as it may, the Ping An case shows that developed countries still face risks of being sued by investors from developing countries. In addition, given that developed economies are also traditional Foreign Direct Investment recipients106 and some of them are members to international or regional treaties that provide for recourse to investor-State arbitration,107 there is also a possibility that developed countries are respondents in investment arbitration cases brought by investors from other developed countries. In 2013, almost half of the new treaty-based investor-State arbitration cases were filed against developed States, most of which were initiated by investors from developed coun-

Silver Limited v. Bolivia (UNCITRAL arbitration based on the UK-Bolivia BIT) and Albertis v. The Government of Bolivia (UNCITRAL/PCA arbitration based on the Spain-Bolivia BIT). 105 United Nations Conference on Trade and Development (UNCTAD), The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries, UNCTAD/DIAE/IA/2009/5, (2009), 25. 106

E.g., The United States and European Union’s combined share of FDI inflows accounted for 50% of global inflows before the financial crisis. As their economic recovery strengthened, direct investment to these regions rose to 30% of global inflows in 2013. See UNCTAD, World Investment Report 2014 – Investing in the SDGs: An Action Plan, UNCTAD/WIR/2014, (2014), x. 107 E.g., the Energy Charter Treaty (ECT) and the North American Free Trade Agreement, 1 January 1994, 32 ILM 289, 605 (1993) (NAFTA).

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tries.108 The relative share of new cases against developed countries is still on the rise in 2014.109 The unusually high number of cases commenced against developed countries might arouse their concerns about the relinquishment of State sovereignty. For instance, Canada’s ratification of the ICSID Convention has been criticised for relinquishing more elements of Canada’s judicial sovereignty.110 In view of the availability of UNCITRAL arbitration under NAFTA prior to Canada’s ratification of the ICSID Convention and commentators’ argument that joining ICSID will relinquish more State sovereignty, it can be seen that an emphasis has been put upon the disparate extent of sovereignty that may be transferred to ICSID and non-ICSID arbitral tribunals.

VI. Conclusion As an extraordinary post-award remedy, the annulment in ICSID arbitration is an internal and centralised mechanism in which ad hoc committees are endowed with powers for reviewing awards on the basis of a rather limited number of specific grounds. Despite the specific grounds for annulment under the ICSID Convention, there is a substantial lack of consistency in annulment proceedings. Conversely, nonICSID arbitral awards are subject to judicial review by national courts at the arbitral situs where applicable standards of setting aside awards vary from jurisdiction to jurisdiction. Such external and decentralised framework entails, prima facie, a remarkable degree of uncertainty in vacatur jurisprudence which, however, can be and is being mitigated by a range of paths such as the convergence of national legislation. The discrepant standards of review applied by ad hoc committees and national courts also appear in the form of the rigorousness and substantive review, namely the more stringent inquiry made by ad hoc committees into tribunals’ application of grounds for annulment and the further potential of national courts exercising their review 108 UNCTAD, Latest Developments in Investor-State Dispute Settlement, IIA Issues Note, N 1, 2014, 2–4. 109 UNCTAD, Latest Developments in Investor-State Dispute Settlement: Review of Developments in 2014, IIA Issues Note, N 2, 2015, 2. 110

Gus Van Harten, Harper Moves to Give up More Canadian Sovereignty, 12 November 2013, available at: http://thetyee.ca/Opinion/2013/11/12/Harper-Gives-Up-Sovereignty/ (accessed on 26 June 2015).

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authority on the merit. Disparate levels of review authority and different extent of sovereign rights transferred to ICSID and non-ICSID arbitration at the stage of postaward remedies have a significant implication for sovereign choice of ICSID and nonICSID arbitration from a perspective of safeguarding State sovereignty. The difference as to how far these sovereignty transfers can go becomes essential when States consider joining or withdrawing from the ICSID Convention. In what ways and to what extent would States consider transferring their sovereign authority to ICSID and non-ICSID arbitration are of principal importance in their pursuit of balanced approach between prevailing parties’ concern for finality and the counterparts’ desire for procedural safeguards (and even substantive justice), and for construction of an efficient, accountable, and viable instrument for resolution of investment disputes in the long run.

Witness Protection and Inter-State Cooperation: Current and Emerging Challenges in the Fight Against Transnational Organised Crime LAURA SALVADEGO(

ABSTRACT: The paper provides an overview of different regulatory approaches related to inter-State cross-border cooperation in witness’ protection both at the universal level and in the European context. First, it analyses multilateral framework instruments and arrangements elaborated by the UN, the EU and the CoE in the fight against transnational organised crime, which determine the international legal regime for both procedural and non-procedural protective measures to be provided to ‘protected witnesses’. Then some specific procedural protective measures, e.g. anonymity, are discussed with specific reference to ICTY, ECtHR, and IACtHR case law. Also non-procedural protective techniques are analysed, such as witness relocation abroad and the implementation of specific protection programmes. The paper emphasises that inter-State cooperation in this field displays some specific features and suggests going beyond the traditional approach based on the idea that ‘horizontal’ judicial cooperation must always be granted on a voluntary basis. KEYWORDS: Witness Protection, Inter-State Cooperation, Transnational Organised Crime, Shared Responsibility, Fair Trial, Procedural Protective Measures, Witness Protection Programmes, UNTOC

I. Introduction Over the last number of decades transnational organised crime has become a top policy priority for criminal justice systems in most European jurisdictions and global-

( Senior Research Fellow, University of Ferrara (Italy). This study was developed during a research stay at the New York University School of Law – Centre for Research in Crime and Justice, funded by Unicredit bank, by five per thousand income tax contributions given to the University of Ferrara in 2010 and by Regione Emilia-Romagna. It is based on her paper “The Joint Obligation to Protect Witnesses in the Fight against Transnational Organized Crime”, 20 August 2013, available at: http://opinio juris.org/2013/08/20/emerging-voices-the-joint-obligation-to-protect-witnesses-in-the-fight-againsttransnational-organized-crime (accessed on 8 March 2016).

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ly.1 One effect of this policy priority has been a trend towards the use of criminal informants and witnesses2 as the central approach in the investigation and prosecution of transnational organised crime;3 in fact, in spite of advances in technology, witnesses still represent an irreplaceable source of information in criminal proceedings.4 Thus, appropriate protection of witness-victims and collaborators of justice is an essential part of the fight against transnational organised crime,5 since there is an increased risk of witnesses being subjected to intimidation,6 which in turn may result in the criminal justice system failing to bring offenders to trial and obtain judgments

1 See Nicholas Fyfe/James Sheptycki, International Trends in the Facilitation of Witness Co-operation in Organized Crime Cases, European Journal of Criminology 3 (2006), 319; United Nations (UN) Office on Drugs and Crime, The Globalization of Crime: A Transnational Organized Crime Threat Assessment, UN Sales No. E.10.IV.6 (2010), ii. 2 Reference is made to the ‘autonomous’ notion of witness outlined in international law, including any person giving declarations that may be useful, to some extent, for the final judgment, irrespective of the status recognised by national law: see, among others, Simone Lonati, Il Diritto dell’Accusato a ‘Interrogare o Fare Interrogare’ le Fonti di Prova a Carico, Studio sul Contraddittorio nella Convenzione Europea dei Diritti dell’Uomo e nel Sistema Processuale Penale Italiano (2008), 178; Jean-Claude Soyer/Michele de Salvia, Article 6, in: Louis-Edmond Pettiti et al. (eds.), La Convention Européenne des Droits de l’Homme: Commentaire Article par Article (2nd ed. 1999), 239, 275. The notion, first outlined by the European Court of Human Rights (ECtHR) in the Bönisch case (ECtHR, Bönisch v. Austria, Judgment of 6 May 1985, Series A, No. 92, para. 15) is largely accepted in both the ECtHR and the InterAmerican Court of Human Rights (IACtHR) case law (see, among others, id., Kostovski v. The Netherlands, Judgment of 20 November 1989, Series A, No. 166, para. 40; IACtHR, García Prieto et al. v. El Salvador, Judgment of 20 November 2007, Preliminary Objections, Merits, Reparations, and Costs, Series C, No. 168, para. 54), and has been emphasised by both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR): cf. ICTY Manual on Developed Practices, 2009, available at: http://www.icty.org/x/file/About/Reports%20and% 20Publications/ICTY_Manual_on_Developed_Practices.pdf , 21 (accessed on 8 March 2016). 3

Fyfe/Sheptycki (note 1), 320.

4

Council of Europe (CoE), Committee of Ministers, The Protection of Witnesses and Collaborators of Justice, Recommendation Rec(2005)9, and Explanatory Memorandum (2005), 18, para. 16. 5

The need to strengthen the protection of witnesses and collaborators of justice first arose in the context of the fight against terrorism, where the Multidisciplinary Group on International Action against Terrorism (MGT) identified this activity as one of the six priorities for further counter-terrorism action: ibid., 15, para. 1. 6 The notion of intimidation has been defined in a ‘flexible’ manner by the CoE (note 4), 21, para. 23: “‘Intimidation’ of witnesses may be carried out in a number of ways, but its purpose is the same: to unduly interfere with the willingness of a person to give testimony freely, or to react against a given testimony. The threat must be ‘real’ and ‘perceived’ at the same time and not imaginary or unreasonable under the circumstances. [...] The propensity towards intimidation increases with the seriousness of the offence and its ‘efficiency’ is enhanced if carried out by organised crime [...] groups, or where the offender is in a position to exercise power or influence over the witness”.

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when witnesses are discouraged from testifying freely and truthfully.7 When organised crime is at stake, it is, in fact, very common that witnesses refuse to make their deposition at trial without adequate protective measures because of a well-founded fear of retaliation against them or against people close to them. Due to the crucial role played by witnesses and collaborators of justice in criminal proceedings related to organised crime in securing the conviction of offenders,8 it is of the utmost importance for States to protect them against any interference by providing specific protection measures to ensure their safety.9 This response is not only a practical necessity, but it is also a legal obligation for States,10 imposing a number of challenges upon them due to the need for wide and intensive cooperation in several respects, including information exchange and the effective implementation of procedural and nonprocedural witness protection measures. The idea that witnesses in criminal trials enjoy specific rights has gradually gained acceptance in international law,11 leading to the explicit acknowledgement of a positive obligation for States to adopt specific legislative and operative measures to assure witnesses’ self-determination and safety.12 It is actually possible to reconstruct an overall, coherent ‘statute’ for witnesses under international law by drawing on the various binding rules set by a number of different instruments dealing with the matter, both at the universal level and in the regional context.13 Article 31 (3)(c) Vienna Convention on the Law of Treaties (VCLT), 7

Ibid., 15, paras. 1 and 19, para. 17.

8

Helen Fenwick, Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process?, Modern Law Review 60 (1997), 317, 318. 9

Council of Europe (note 4), 15, para. 2.

10

Piotr Bąkowski, Witness Protection Programmes: EU Experiences in the International Context, available at: http://www.europarl.europa.eu/RegData/bibliotheque/briefing/2013/130408/LDM_BRI %282013%29130408_REV2_EN.pdf, 1 (accessed on 8 March 2016); Council of Europe, Extradition: European standards (2006), 152. 11

Fenwick (note 8), 318; id., Rights of Victims in the Criminal Justice System: Rhetoric or Reality, Criminal Law Review (Crim. L. Rev.) 17 (1995), 843, 845–851; Charles Pollard, Victims and the Criminal Justice System: A New Vision, Crim. L. Rev. 22 (2000), 5; Andrew Sanders/Richard Young, Discontinuances, the Rights of Victims and the Remedy of Freedom, New Law Journal 151 (2001), 44, 46–47. 12

Cf. CoE, Committee of Ministers, Concerning Intimidation of Witnesses and the Rights of the Defence, Recommendation (Rec.) No. R (97) 13, 80: “Member States have a duty to protect witnesses against such interference by providing them with specific measures of protection that effectively ensure their safety”; Resolution of the Council of the European Union, The Protection of Witnesses in the Fight against International Organized Crime, Res. No. 95/C 327/04 of 23 November 1995, and, among others, ECtHR, Artico v. Italy, Judgment of 13 May 1980, Series A, No. 37, 15, paras. 33–36. 13

See infra, II.

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providing that in interpreting treaties, “[t]here shall be taken into account, together with the context […] any relevant rules of international law applicable in the relations between the parties,”14 lays down the ‘principle of systemic integration’ which constitutes the regulatory footing for this hermeneutic approach15. Thus, for example, the 2000 United Nations (UN) Convention on Transnational Organized Crime (UNTOC)16 and the Protocols thereto17 set forth innovative rules concerning measures to be adopted by parties to provide for the protection and assistance of witnesses and victims subjected to reprisals and intimidations.18 However, procedural protective measures19 need to be complemented by non-procedural remedies,20 such as the provision of specific long or medium term protection programmes.21 Furthermore, there is a need for appropriate cooperation among States to ensure the effective implementation of both procedural and non-procedural protective measures. In fact, in transnational organised crime trials, cooperation among States is a distinctive feature, since the existence of links between the offence and a 14

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

15

See, among others, Duncan French, Treaty Interpretation and the Incorporation of Extraneous Legal Rules, International and Comparative Law Quarterly (Int’l & Comp. L. Q.) 55 (2006), 281, 284; Campbell McLachlan, The Principle of Systemic Integration and Article 31 (3)(c) of the Vienna Convention, Int’l & Comp. L. Q. 54 (2005), 279. 16 UN Convention against Transnational Organized Crime, 15 November 2000, UNTS 2225, 209 (UNTOC), was developed by an ad hoc Committee in July 2000 and adopted by UN General Assembly Res. 55/25 of 15 November 2000. The text entered into force at the international level on 29 September 2003, as stated in Art. 38 UNTOC. 17

Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 12–15 December 2000, UNTS 2237, 319 (Trafficking Protocol); Protocol against the Smuggling of Migrants by Land, Sea and Air, 15 November 2000, UNTS 2241, 507 (Smuggling Protocol); Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, 31 May 2001, UNTS 2326, 208 (Firearms Protocol). 18

See, e.g., Arts. 24, 25, and 26 (4) UNTOC; Art. 6 Trafficking Protocol and Art. 16 Smuggling Protocol. 19

Procedural protective measures may be used both to support the ability of a witness to testify as well as to enhance his safety before and during the trial: Karen Kramer, Witness Protection as a Key Tool in Addressing Serious and Organized Crime, available at: http://www.unafei.or.jp/english/pdf/PDF_ GG4_Seminar/Fourth_GGSeminar_P3-19.pdf, 5 (accessed on 8 March 2016); see infra, IV. 20 21

See infra, V.

Cf. UN Office on Drugs and Crime, Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime (2008), 5 (c), available at: http://www.unodc.org/documents/ organized-crime/Witness-protection-manual-Feb08.pdf (accessed on 8 March 2016); CoE, Rec(2005)9 (note 4), Sec. I. See infra, V.

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State other than the one in which the trial is held is inherent in the very definition of ‘transnational crime.’22 After all, the recourse to international cooperation among States regarding transnational organised crime assumes the protection of interests that overstep State boundaries.23

II. The ‘Statute’ of Protected Witness in International Law A protected witness ‘statute’ under international law may be coherently outlined on the basis of a number of interlaced rules. A primary point of reference relating to the protection of witnesses in criminal proceedings has stemmed from the International Criminal Tribunal for the Former Yugoslavia (ICTY),24 which was created under the auspices of the UN. The experience of the ICTY is wholly comparable to that of the International Criminal Tribunal for Rwanda (ICTR),25 since their Statutes,26 Rules of Procedure and Evidence,27 and case law are almost identical.28 The Statute of the International Criminal Court (ICC)29 also contains some rules concerning the protection of witnesses appearing before the Court, based on the experiences of the ICTY and ICTR, which have shown how crucial it is for any international criminal tribunal to arrange for protection and assistance to be provided to witnesses so as to 22

See Art. 3 (2) UNTOC.

23

Rolando Quadri, Diritto Penale Internazionale, in: Prospero Fedozzi/Santi Romano (eds.), Trattato di Diritto Internazionale, Vol. XI (1944), 4. 24 See Security Council (SC) Res. 808 of 22 February 1993 and SC Res. 827 of 25 May 1993. Cf., among others, Flavia Lattanzi, L’Applicazione dei Diritti dell’Uomo ad Opera dei Tribunali Penali Internazionali, in: Adriana Di Stefano/Rosario Sapienza (eds.), La Tutela dei Diritti Umani e il Diritto Internazionale (2012), 529, 535 and Yvonne M. O. Featherstone, The International Criminal Tribunal for the Former Yugoslavia: Recent Developments in Witness Protection, Leiden Journal of International Law (Leiden J. Int’l L.) 10 (1997), 179. 25

See SC Res. 955 of 8 November 1994.

26

Cf. Arts. 15 and 22 Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993, UN Doc. S/25704 Annex (1993) and Arts. 19 and 21 Statute of the International Tribunal for Rwanda, 8 November 1994, SC Res. 955 Annex (1994). 27 Cf. Arts. 69 and 75 ICTY Rules of Procedure and Evidence (ICTY, Rules of Procedure an Evidence, UN Doc. IT/32/Rev.7 (1996)) and Art. 69 ICTR Rules of Procedure and Evidence (ICTR, Rules of Procedure and Evidence, UN Doc. ITS/3/Rev.1 (1995)). 28 Bruno Fransen/Jan Beldé/Gert Vermeulen, European and International Legislation, in: Gert Vermeulen (ed.), EU Standards in Witness Protection and Collaboration with Justice (2005), 19, 50. 29

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3 (Rome Statute).

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contribute to the establishment of truth about the most serious crimes.30 The issue, however, still remains a central concern of the ICC. Symptomatic appear the events relating to the trials of the main political leaders of Kenya accused of crimes against humanity in relation to the widespread violence in the country following the presidential elections of 2007. Only a few weeks after the trial began, indeed, several ‘key’ witnesses against William Samoei Ruto and Joshua Arap Sang renounced the making of statements at the hearing, claiming to have been subjected to serious intimidation and threats against them.31 The extent of the phenomenon has also recently forced the ICC to terminate the trial against the President of Kenya32 as there was insufficient evidence available in order to continue the proceedings against him.33 Legal instruments elaborated by the UN are prominent among international texts dealing with witness protection.34 At a global level, Article 24 (2) UNTOC35 and Article 32 UN Convention against Corruption (UNCAC)36 oblige the parties to take “appropriate measures” to provide protection for witnesses. In particular, Convention provisions indicate, in a non-exhaustive manner, some measures that have to be adopted by parties concerning procedural and non-procedural measures designed to provide protection and assistance to witnesses subjected to reprisals and intimidations37 while testifying with respect to offences covered by the Conventions. Article 23 UNTOC and Article 25 UNCAC also oblige the parties to criminalise the ‘obstruction of justice’, i.e. 30

Art. 43 (6) Rome Statute. See Silvana Arbia, The International Criminal Court: Witness and Victim Protection and Support, Legal Aid and Family Visits, Commonwealth Law Bulletin 36 (2010), 519, 520; Åsa Rydberg, Case Analysis: The Protection of the Interests of Witnesses – The ICTY in Comparison to the Future ICC, Leiden Jounral of International Law 12 (1999), 455. 31 See ICC, Trial Chamber, The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Press Release of 18 September 2013, ICC Trial Chamber V(a) States that Interfering with Witnesses is an Offence against the Administration of Justice and May Be Prosecuted, ICC-CPI20130918-PR941. See also ICC, Pre-Trial Chamber, The Prosecutor v. Walter Osapiri Barasa, ICC-01/09-01/13, Warrant of Arrest of 2 August 2013 Issued under Seal against Walter Osapiri Barasa. 32 See The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, Decision of 13 March 2015 on the Withdrawal of Charges against Mr. Kenyatta, ICC-01/09-02/11. 33

Ibid., para. 2.

34

Bąkowski (note 10), 4.

35

See also Art. 6 Trafficking Protocol and Art. 16 Smuggling Protocol.

36

UN Convention against Corruption, 31 October 2003, UNTS 2349, 41 (UNCAC).

37

See infra, IV–V.

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the use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences covered by this Convention.

By requiring each party to adopt “appropriate measures within its means” for the purpose of providing protection to witnesses, the UNTOC and UNCAC set up a particular due diligence obligation38 that is not easy to appreciate. In fact, no specific or analytical indication is given concerning the so-called ‘risk factors’ which are significant for the purpose of deciding whether and to what extent the protection is necessary. Rules provided by international human rights instruments have been clarified through the work of their respective control mechanisms:39 their findings have helped to define appropriate protection standards in this context, also through systemic interpretation of treaty obligations.40 Moreover, the European Court of Human Rights (ECtHR) has recently recognised this possibility in the Rantsev case with regards to the international obligation to prevent and punish trafficking of human beings.41 An analogous systemic interpretation of treaty rules enables UNTOC’s provisions to be read on the basis of other relevant international rules and the case law of their pertinent mechanism of control.42 In spite of the absence of formal links between different international courts, they are not self contained systems and do not operate in isolation from each other.43 There is rather a tendency on the part of inter38

See Riccardo Pisillo Mazzeschi, ‘Due Diligence’ e Responsabilità Internazionale degli Stati (1989) and Viviana Waisman, Human Trafficking: State Obligations to Protect Victims’ Rights, the Current Framework and a New Due Diligence Standard, Hastings International and Comparative Law Review 33 (2010), 385, 409–410. 39 See, ex multis, ECtHR, Breukhoven v. The Czech Republic, Appl. No. 44438/06, Judgment of 21 July 2011, para 45; id., Štefančič v. Slovenia, Appl. No. 18027/05, Judgment of 25 October 2012, para. 37; IACtHR, García Prieto (note 2), para. 14. 40

See supra, I.

41

ECtHR, Rantsev v. Cyprus and Russia, Appl. No. 25965/04, Judgment of 7 January 2010, paras. 285–286. On the judgment see, among others, Roza Pati, States’ Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus and Russia, Boston University International Law Journal 29 (2011), 79, 94. 42 Cf. also Giulio Illuminati, Transnational Inquiries in Criminal Matters and Respect for Fair Trial Guarantees, in: Stefano Ruggeri (ed.), Transnational Inquiries and the Protection of Fundamental Rights in Criminal Proceedings (2013), 15, 18. 43 Contra ICTY, Appeals Chamber, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995, reprinted in: International Legal Materials 35 (1996), 32, para. 11.

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national courts and tribunals to adopt common approaches and convergent practices on the issues, revealing the existence of a significant level of cross-fertilisation of principles of procedure and practices among different international tribunals44. The focus on witness protection in transnational organised trials is not new in the European context.45 Significant guidelines were first set forth in the 1997 Committee of Ministers of the Council of Europe (CoE) Recommendation46 and in the 2004 European Union Council Resolution,47 which are both still useful for choosing the protection measures to be preferred in a specific case, and in the CoE Convention on Action against Trafficking in Human Beings (Warsaw Convention).48 These instruments join a number of other rules focusing on victims’ protection, elaborated by European bodies since the early 1980s to assist States in dealing with the needs of victims of organised crime.49 44

Chester Brown, The Cross-Fertilization of Principles Relating to Procedure and Remedies in the Jurisprudence of International Courts and Tribunals, Loyola of Los Angeles International and Comparative Law Review 30 (2008), 219, 221. 45 For more than 50 years, the fight against crime has been at the heart of the efforts of the CoE to build a common legal area based on the respect for human rights, the development of democracy, and the promotion of the rule of law: cf. CoE, Victims – Support and Assistance (2007), Foreword. 46 CoE, Rec. No. R (97) 13 (note 12), Secs. III–IV. The Recommendation does not contain a comprehensive (procedural and non-procedural) set of measures to protect witnesses in any case. Indeed, it sets out basic definitions and principles to guide CoE members in their formulation of relevant policy and legislation, paying particular attention to measures to be taken in relation to vulnerable witnesses, especially in cases of organised crime: cf. Fransen/Beldé/Vermeulen (note 28), 28–29. 47

Cf. Council of the European Union, Res. No. 95/C 327/04 (note 12), (a).

48

Art. 28 CoE Convention on Action against Trafficking in Human Beings, 16 May 2005, ETS No. 197 (Warsaw Convention). Cf. Venla Roth, Defining Human Trafficking and Identifying Its Victims: A Study on the Impact and Future Challenges of International, European and Finnish Legal Responses to Prostitution Related Trafficking in Human Beings (2012), 106. 49

Cf., among others, CoE, Committee of Ministers, The Position of the Victim in the Framework of Criminal Law and Procedure, Rec. No. R (85) 11, and id., Assistance to Victims and Prevention of Victimisation, Rec. No. R (87) 21, and in the European Union context, Directive 2012/29 of 25 October 2012 of the European Parliament and of the Council, Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA of 14 November 2012, OJ 2001 L 315, 57. For further references see Giovanni M. Armone, La Protezione delle Vittime dei Reati nella Prospettiva dell’Unione Europea, in: id. (ed.), Diritto Penale Europeo e Ordinamento Italiano (2006), 99; Jonathan Doak/Louise Taylor, EU Tools for the Protection of Victims of Serious and Organized Crime, in: Stefano Ruggeri (ed.) (note 42), 345; Tony Peters/Ivo Aertsen, Towards ‘Restorative Justice’: Victimisation, Victim Support and Trends in Criminal Justice, in: CoE (ed.), Crime and Criminal Justice in Europe (2000), 35, 39; Jane Morgan/Frans Willem Winkel/Katherine S. Williams, Protection of and Compensation for Victims of Crime, in: Phil Fennell et al. (eds.), Criminal Justice in Europe: A Comparative Study (1995), 301.

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At this point of the analysis, it is necessary to outline which States are obliged to grant the above-mentioned protection. In this regard, recent developments concerning international cooperation among States suggest the production of effects partially disconnected from territorial influence.50 Once the State to which the request is addressed agrees to grant judicial cooperation, both the requesting State and the requested State have the obligation erga omnes partes51 to afford the protection. Thus, for example, Article 18 UNTOC sets forth a particular due diligence obligation for States resorting to the ‘mutual legal assistance’ mechanism both under the Convention and in the context of an ad hoc bilateral or multilateral agreement. Primary protection has to be granted by the State where the trial is held; however, a subsidiary responsibility is incumbent on the requested State: that is the case, for example, for the examination of witnesses relocated abroad in a ‘protected location’ in response to letters rogatory. A similar ‘fragmented’ obligation also comes into play as regards nonprocedural protective measures that have to be performed across geopolitical boundaries of the State affording primary protection.52 A fortiori the same conclusion applies to forms of cooperation among States negotiated in specific bilateral or multilateral agreements, also in the context of regional organisations.53 In this respect, for example, the Council of the European Union Res. No. 95/C 327/04 calls on member States “to facilitate judicial assistance in this field, even in the absence of any such provisions in the legislation of the State to which the request is addressed, save where compliance with the request for assistance would be contrary to the general principles of that State’s law.”54 In general, cooperation among States has “to allow witness protection programmes to be implemented across borders,”55 for example by means of measures aimed at 50 Günther Handl, Extra-Territoriality and Transnational Legal Authority, in: id./Joachim Zekoll/ Peer Zumbansen (eds.), Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (2012), 3, 4. 51

International Court of Justice (ICJ), Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), (New Application: 1962), Judgment of 5 February 1970, ICJ Reports 1970, 3, 32, para. 33; Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (1997); Paolo Picone, Comunità Internazionale e Obblighi ‘Erga Omnes’: Studi Critici di Diritto Internazionale (3rd ed. 2006). 52

See infra, V.

53

See Art. 36 UNTOC.

54

Cf. Council of the European Union, Res. No. 95/C 327/04 (note 12), (B).

55

Cf. CoE, Rec. No. R (97) 13 (note 12), para. 30.

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granting adequate “assistance in relocating protected witnesses abroad and ensuring their protection [and] exchange of information between authorities responsible for witness protection programmes.”56

III. Witness Protection and the Fair Trial Principle Whenever particular elements considered by national57 and international58 courts are present, the application of specific procedural protective measures is usually ordered. These measures are taken at the request of the prosecutor, the witness, or motu proprio by the court in order to provide safe conditions for the main trial to take place and to ensure that the witness can testify free of intimidation and fear.59 Some of these measures may be applied to enhance security and help the witness to feel safe while in the courtroom.60 In fact, the examination of a witness could be strongly influenced by face-to-face confrontation with the defendant in the courtroom.61 Therefore, appropriate procedural measures should provide for alternative methods of giving evidence to spare witnesses any unnecessary strain or distress when testifying.62 Furthermore, trials should be organised in such a way as to avoid, to the extent

56

Ibid., para. 30.

57

Relevant elements are the nature of the offence, the victim’s characteristics, the connections between witness and the defendant, the degree of fear and distress shown by the witness, the relevance and importance of the testimony in the trial: see UN Office on Drugs and Crime (note 21), 32. 58

Cf., among others, ICTY, Trial Chamber, The Prosecutor v. Drazen Erdemović, IT-96-22, Order for Measures of Protection for Witness ‘Y’ of 13 November 1996, available at: http://www.icty.org/x/ cases/erdemovic/tord/en/61113PM113744.htm (accessed on 8 March 2016); id., Trial Chamber, The Prosecutor v. Slobodan Milosević, IT-02-54-T, Decision on Prosecution Motion for Closed Session Testimony for Witness B-1804 of 23 January 2004, available at: http://www.icty.org/x/cases/slobodan_ milosevic/tdec/en/040123-3.htm (accessed on 8 March 2016); id., Trial Chamber, The Prosecutor v. Radovan Karadžić, IT-95-5/18-T, Decision on Motion for Protective Measures for Witness KW 456 of 12 October 2012, available at: http://www.icty.org/x/cases/karadzic/tdec/en/121012.pdf (accessed on 8 March 2016). 59

Kramer (note 19), 6.

60

Drazen Tripalo, Procedural Protection Measures, in: CoE (ed.), Protecting Witnesses of Serious Crime (2006), 311, 315. 61

UN Office on Drugs and Crime (note 21), 32.

62

Tripalo (note 60), 315; UN Office on Drugs and Crime (note 21), 33.

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possible, unnecessary confrontation, inappropriate influences on the quest for truth, and, in particular, on witnesses’ willingness to give evidence.63 In this regard, as previously noted,64 international case law has helped to develop a well-structured protective system for organised crime trials that includes traditional procedural ‘remedies’, such as a set of special rules concerning the gathering of evidence. Such rules may include, for example, limiting witness exposure to media or not admitting the public65 (in camera sessions), evicting the accused from the courtroom,66 and other more incursive measures, including video conferencing,67 voice and face distortion,68 using a witness’s previous declarations as evidence in the trial,69 and, in extreme cases, witness anonymity.70 63

Cf. CoE (note 4), 23, para. 27.

64

See supra, I.

65

Tripalo (note 60), 326; cf. Art. 6 (1) Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005, UNTS 213, 222 (ECHR); UN Office on Drugs and Crime (note 21), 36. 66

Cf. Tripalo (note 60), 330.

67

Cf. Art. 24 (2)(b) UNTOC and Art. 32 (2)(b) UNCAC. In several States the use of technological means aimed at concealing witnesses’ physical characteristics is not permitted in every circumstance. In fact, their use could sometimes unduly limit the defendant’s right to protection and it would prevent judges from being able to evaluate witnesses’ characteristics which can play a crucial role: cf. Committee of Experts on Criminal Law and Criminological Effects of Organized Crime of the European Committee on Problems of Crime of the Council of Europe, Report on Witness Protection of 15–17 February 1999, Best Practice Survey No. 1, Doc. PC-CO (1999) 8 REV, available via: http://www.coe.int/t/ dghl/cooperation/economiccrime/organisedcrime/BestPractice1E.pdf (accessed on 8 March 2016). Art. 18 (18) UNTOC suggests that State parties should use the audio-visual link to facilitate the examination whenever the witness has his residence in a different State party. In this regard, an interpretative note included in the travaux préparatoires of the UNTOC and the Protocols thereto (Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, Interpretative Notes for the Official Records (travaux préparatoires) of the Negotiations of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, UN Doc. A/55/383/Add.1 (2000), 8) contains a proposal of the Italian delegation in which extensive use of this technique is recommended (cf. also UN Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nation Convention against Transnational Organized Crime and the Protocols thereto, UN Sales No. E.06.V.5 (2006), 227–228). Unless otherwise agreed upon, costs should be borne by the requesting State: cf. UN Office on Drugs and Crime (note 21), 38, footnote 13; Tripalo (note 60), 348. 68

See Art. 24 (2)(b) UNTOC; UN Office on Drugs and Crime (note 21), 36.

69

Cf. UN Office on Drugs and Crime (note 21), 33.

70

ECtHR, Doorson v. The Netherlands, Judgment of 26 March 1996, RJD 1996-II, 446, 470; see, ex multis, Muriel Guerrin, Le Témoignage Anonyme au Regard de la Jurisprudence de la Cour Européenne des Droits de l’Homme, Revue Trimestrielle des Droits de l’Homme (Rev. Trim. Dr. H.) 49 (2002), 45, 47; Bąkowski (note 10), 1. According to the Office of the High Commissioner for Human

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However, the guarantees provided to witnesses must not jeopardise the fulfilment of different procedural requirements outlined by human rights mechanisms of control, such as the ‘systemic’ components of the right to a fair trial,71 including the principle of equality of arms.72 Thus, Article 24 (2) UNTOC establishes that protective measures must be “without prejudice to the rights of the defendant, including the right to due process.” Therefore, the need to protect witnesses must always be put in balance with other procedural and substantive safeguards to ensure observance of the fair trial principle, as set forth by Article 14 International Covenant on Civil and Political Rights (ICCPR)73 and other relevant instruments (e.g. Article 6 European Convention on Human Rights (ECHR),74 Article 8 American Convention on Human Rights (ACHR),75 and Article 7 African Charter on Human and Peoples’ Rights).76 In fact, international human rights instruments all define the right of the accused to a fair trial

Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002), available via: http://www.ohchr.org (accessed on 8 March 2016), guideline 6 (6): “[t]here should be no public disclosure of the identity of trafficking victims and their privacy should be respected and protected to the extent possible, while taking into account the right of any accused person to a fair trial”; cf. Tripalo (note 60), 339; UN Office on Drugs and Crime (note 21), 38. Similar measures were recently granted by the ICJ: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015, para. 24 et seq., available at: http:// www.icj-cij.org/docket/files/118/18422.pdf (accessed on 8 March 2016). 71 ECtHR, Al-Khawaja and Tahery v. The United Kingdom [GC], Appl. No. 26766/05, Judgment of 15 December 2011, para. 118. The CoE has shown particular awareness of the need to balance the rights of the defence and interests of the witness for the purpose of a fair trial: cf. Eugenio Selvaggi, Il Difficile Bilanciamento tra Esigenze di Difesa della Società e Diritti della Difesa: il Teste Anonimo davanti alla Corte Europea dei Diritti dell’Uomo, Cassazione Penale 36 (1996), 2419; Doorson (note 70), 470. On the fair trial principle in the context of the ECHR see Sarah J. Summers, Fair Trials: The European Criminal Procedural Tradition and the European Court of Human Rights (2007), 97. 72

ECtHR, Vidal v. Belgium, Appl. No. 12351/86, Judgment of 22 April 1992, para. 33.

73

International Covenant on Civil and Political Rights and Optional Protocol, 16 December 1966, UNTS 999, 171, Art. 14 (ICCPR). 74

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 5, Art. 6 (ECHR). Cf. Chenal, Article 6, in: Sergio Bartole/Pasquale De Sena/ Vladimiro Zagrebelsky (eds.), Commentario Breve alla Convenzione Europea per la Tutela dei Diritti dell’Uomo e delle Libertà Fondamentali (2012), 172, 283. 75 American Convention on Human Rights: ‘Pact of San José, Costa Rica’, 22 November 1969, OAS Treaty Series No. 36 (ACHR). For an analysis of the drafting history of the ACHR preceding the San José Conference, see Karel Vasak, La Commission Interaméricaine des Droits de l’Homme (1968), 175; see also José A. Cabranes, The Protection of Human Rights by the Organization of American States, American Journal of International Law 62 (1968), 889, 897–904. 76

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

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in very similar terms;77 furthermore, the case law of their mechanisms of control highlights the similarities and interconnections in the application of this principle. In the regional context, although the ECHR does not explicitly deal with rights of victims and witnesses, their right to adequate protection was first acknowledged based on their right to respect for their private lives, as recognised by Article 8 ECHR, almost in juxtaposition with fair trial rules.78 However, the right to a fair trial plays a crucial role in the ‘rule of law’79 and it allows a restrictive interpretation only in extraordinary cases,80 with strict respect for proportionality.81 In practice, the necessity of providing effective protection to witnesses often entails a ‘departure’ from procedural guarantees attached to the rights of the defence, both in relation to the crossexamination principle and the adversarial system. The need to balance witness protection measures with the rights of the defence for the purposes of a fair trial imposes a case-by-case verification82 concerning the proportionality of the protective measure adopted in the specific case.83 The principle implies a choice of appropriate 77

For further considerations see Illuminati (note 42), 17.

78

Cf. ECtHR, Viola v. Italy, Judgment of 5 October 2006, RJD 2006-XI, 123, 136; X and Y v. The Netherlands, Judgment of 26 March 1985, Series A, No. 91, 11, paras. 21–23; Doak/Taylor (note 49), 348. 79 Francesco Salerno, Il Rispetto delle Garanzie Processuali nell’Attuazione delle Misure del Consiglio di Sicurezza contro il Terrorismo Internazionale, in: Francesco Salerno (ed.), Sanzioni ‘Individuali’ del Consiglio di Sicurezza e Garanzie Processuali Fondamentali (2010), 161. 80 ECtHR, Delcourt v. Belgium, Judgment of 17 January 1970, Series A, No. 11, para. 15; id. De Cubber v. Belgium, Judgment of 26 October 1984, Series A, No. 86, 14, para. 30 and id., Moreira de Azevedo v. Portugal, Judgment of 23 October 1990, Series A, No. 189, para. 66. On Art. 6 ECHR see, among others, Summers (note 71), 129; Annemarieke Beijer/Cathy Cobley/André Klip, Witness Evidence, Article 6 of the European Convention on Human Rights and the Principle of Open Justice, in: Phil Fennel et al. (eds.) (note 49), 283, 288. 81 According to the ECtHR, restrictions on a specific right are proportionate whenever the means is proportionate to the specific aim pursued: cf. ECtHR, Markovic and Others v. Italy [GC], Judgment of 14 December 2006, RJD-XIV, 235, 273. 82

On the case-by-case nature of ECtHR case law see, among others, Vladimiro Zagrebelsky, Corte Europea dei Diritti dell’Uomo e Processo Equo, in: id. et al. (eds.), Processo Penale e Giustizia Europea (2010), 13, 14; Goran Klemenčič, European and International Standards in the Field of Witness Protection, in: CoE (ed.) (note 60), 35, 43. 83 Cf. Enzo Cannizzaro, Il Principio della Proporzionalità nell’Ordinamento Internazionale (2000), 76. According to the well-established case law of the ECtHR, the admissibility of evidence is regulated by States’ legal orders; the role of the ECtHR is not to evaluate whether witnesses’ declarations have been correctly admitted but rather to verify whether the proceedings as a whole, including the way in which evidence has been admitted, is consistent with the principle of the right to a fair trial. See, among others, ECtHR, Doorson (note 70), 470; id., Schenk v. Switzerland, Judgment of 12 July 1988, Series A, No. 140,

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protection measures, which will enable the witness to give free testimony in the criminal proceedings and which will keep the witness safe before, during, and after the proceedings.84 These considerations remain true also in particular contexts, such as the fight against transnational organised crime, where the need to ensure strong repressive activity could result in an infringement of some fundamental rights of the defendant.85 As most procedural measures relating to protect witnesses by definition limit, to a different extent, the fundamental right of the defence to test evidence and the principle of immediacy, the ECtHR has, over the past three decades, developed an important body of case law on witness procedural protection measures defining acceptable limits to the restriction of the rights of the defence enshrined in Article 6 ECHR,86 most of which have been incorporated in the CoE recommendations.87 In the context of entitlement to a fair and public trial, the ECHR guarantees, above all, that Court proceedings shall be, in principle, public in order to protect the accused against the secret administration of justice.88 However, the conclusions of both the ECtHR and the European Commission of Human Rights in the cases of Golder89 and Deweer90 were that this right is not an absolute right and it is therefore subject to implied limitations.91 The media and the public may thus be excluded from 29; id., Barberà, Messegué and Jabardo v. Spain, Judgment of 6 December 1988, Series A, No. 146, 31 and id., Lüdi v. Switzerland, Judgment of 15 June 1992, Series A, No. 238, 21. 84 Cf. CoE (note 45), 28. Assistance and support measures should be employed also before, during, and after a trial to help witnesses in coping with psychological and practical issues they may have in testifying: cf. UN Office on Drugs and Crime (note 21), 21; Kramer (note 19), 5. 85 See also the considerations set forth in the context of the XVI International Congress of Penal Law supported by the International Association of Penal Law on “[t]he Criminal Justice System Facing the Challenge of Organized Crime” (Budapest, 5–11 September 1999), Sec. II, para. 6, available via: http:// www.penal.org (accessed on 8 March 2016) and Giulio Ubertis, Crimine Organizzato, Collaborazione Internazionale, Tutela dei Diritti Umani, Diritto Penale e Processo (Dir. Pen. Proc.) 5 (1999), 1548. 86

Klemenčič (note 82), 37.

87

Cf. CoE, Rec. No. R (97) 13 (note 12) and CoE, Rec(2005)9 (note 4); see Klemenčič (note 82), 43.

88

Thus, for example, in the Kostovski case, the ECtHR ruled that “[t]he right to fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency” (ECtHR, Kostovski (note 2), para. 44). However, the ECtHR considered measures such as physical separation of the accused from the witness or anonymous testimony to be compliant with the ECHR (Fransen/Beldé/Vermeulen (note 28), 37 et seq.) 89

ECtHR, Golder v. The United Kingdom, Judgment of 21 February 1975, Series A, No. 18.

90

Id., Deweer v. Belgium, Judgment of 27 February 1980, Series A, No. 35.

91

Cf. id., Golder (note 89), paras. 36, 38–39 and id., Deweer (note 90), para. 49.

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all or part of a trial when the interests of justice so require, for example in order to ensure the protection of witnesses. A crucial role in this regard is played by Article 6 (1) and 6 (3)(d) ECHR, similar in its formulation to Article 14 (3)(e) ICCPR,92 which establishes the necessity of granting the defendant’s counsel an adequate and proper opportunity to question a witness against him, either when giving his declarations or later at trial.93 In particular, the rights of the defence are jeopardised to a degree that is incompatible with Article 6 ECHR if the conviction is based “only, or in a decisive manner” on the declaration of a witness who the defence had no opportunity to examine in the course of the investigation or during the trial.94 Furthermore, following well-established ECtHR case law, this guarantee is supported by the party States’ obligation to adopt ‘positive measures’ to permit the effective exercise of the defendant’s right to examine or have witnesses testifying against him examined by his defence counsel.95 Thus, for example, in the Breukhoven case,96 the ECtHR stated a violation of Article 6 (1) and 6 (3)(d) ECHR occurred because the conviction for the trafficking of human beings was based only on declarations of a witness who had never appeared at trial and who the defendant had no opportunity to examine during national proceedings.97 What 92 Art. 6 ECHR also recalls Arts. 10 and 11 Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948, reproducing and sometimes upgrading the guaranties already recognised by these provisions. Such guaranties are also recognised by Arts. 47 and 48 Charter of Fundamental Rights of the European Union, 7 December 2000, OJ 2000 364, 1, joined to the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, OJ 2007 C 306, 1. 93

See ECtHR, Van Mechelen and Others v. The Netherlands, Judgment of 23 April 1997, RJD 1997III, 691, 711; id., Lüdi (note 83), para. 49. 94 Id., A.M. v. Italy, Judgment of 14 December 1999, RJD 1999-IX, 45, 55; id., Van Mechelen (note 93), para. 55; id., Unterpertinger v. Austria, Judgment of 24 November 1986, Series A, No. 110, 14–15. For the notion of ‘key evidence’ in the case law of the ECtHR see, among others, Cristiana Valentini, La Prova Decisiva (2012), 24. Testimony is not considered key (thus the conviction is not based solely or in a determinant way upon it) when it only has the function of corroborating other evidence against the defendant (see, e.g., ECtHR, Carta v. Italy, Appl. No. 4548/02, Judgment of 20 April 2006, para. 52), or when other elements, read together with the testimony de qua agitur led national judiciary authorities to affirm the defendant’s criminal liability: id., Jerinò v. Italy, Appl. No. 27549/02, Decision of 7 June 2005. 95

See id., Sadak and Others v. Turkey (No. 1), Judgment of 17 July 2001, RJD 2001-VIII, 241, 286; id., Barberà, Messegué et Jabardo (note 83), para. 78. 96

Id., Breukhoven (note 39).

97

Ibid., paras. 54, 57.

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is more, the national courts made no effort to ensure the presence of the witness or to counterbalance to some extent the handicap the defence was obliged to face.98 In the opinion of the Court, these measures are part of the diligence that States parties have to exercise in order to permit the effective enjoyment of rights enshrined in Article 6 ECHR;99 the specific circumstances of the case, which concerned a serious crime of trafficking and sex exploitation, were not considered sufficient to justify the State’s procedural failure. This principle must also apply to evidence obtained abroad,100 such as in case of a witness examination abroad by video conference. In this case, the implementation of the fair trial principle depends on both States involved in the witness examination; it can only be achieved through judicial cooperation and must be jointly guaranteed. Thus, for example, notwithstanding that the letter of the ACHR suggests that witnesses who are not present, for example because abroad, are not subject to crossexamination,101 the Inter-American Court of Human Rights (IACtHR) has on occasions expanded rights beyond the letter of the ACHR in cases involving the choice of defence counsel102 and the principle of legality.103 In a global landscape where the sources, nature, and purpose of criminal actions have changed and expanded,104 fairtrial guarantees still represent the core of the legal struggle against transnational crime.105 The structure of renewed cooperation between States in criminal matters also

98

Ibid., paras. 56, 57.

99

Id., Colozza v. Italy, Judgment of 12 February 1985, Series A, No. 89, 15, para. 28.

100

Javier Dondé-Matute, The Inter-American System of Human Rights and Transnational Inquiries, in: Stefano Ruggeri (ed.) (note 42), 41, 48. 101 Art. 8 (2)(f) ACHR states: “the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts” (emphasis added). 102 See Inter-American Court of Human Rights (IACtHR), Castillo Petruzzi et al. v. Peru, Merits, Reparations, and Costs, Judgment of 30 May 1999, Series C, No. 52, para. 143, where the Court insisted that an attorney needs to be present from the time of detention, despite the fact that the ACHR allows persons accused of a crime to be their own council. 103

Cf. IACtHR, Fermín Ramírez v. Guatemala, Merits, Reparations, and Costs, Judgment of 20 June 2005, Series C, No. 126, paras. 92–98. 104

Paola Maggio, The Fight against Organized Crime: Amid Contrasting Strategies and Respect for Human Rights, in: Stefano Ruggeri (ed.) (note 42), 193, 200. 105

Cf. Illuminati (note 42), 17.

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requires a ‘denationalisation’ of guarantees.106 In fact, they no longer reflect the sovereignty of States but rather universally recognised rights107 that can be fully realised only in the framework of a joint effort by States.

IV. The Joint Implementation of Procedural Protection Measures Similarly, appropriate procedural protection measures would be greatly jeopardised without adequate cooperation among States for their implementation. Thus, for example, in trafficking trials, the necessity to ensure a witness’s privacy108 and safety109 implies a wide use of video links to examine victims who returned back home before the beginning of the trial110 or to examine witnesses for the prosecution located in a 106 Lorenzo Pulito, La Destatualizzazione delle Garanzie nello Spazio Giudiziario Europeo, Dir. Pen. Proc. 16 (2010), 891. 107

Alessandra Di Martino, Principio di Territorialità e Protezione dei Diritti Fondamentali nello Spazio di Libertà, Sicurezza e Giustizia, Osservazioni alla Luce della Giurisprudenza Costituzionale di alcuni Stati Membri sul Mandato d’Arresto Europeo, Legalità Costituzionale e Mandato d’Arresto Europeo (2007), 69, 100; Barbara Piattoli, Mandato di Arresto UE: Istanze di Armonizzazione Processuale, Distonie Applicative e Tutela Multilivello dei Diritti Fondamentali, Dir. Pen. Proc. 13 (2007), 1105. 108 Art. 6 (1) Trafficking Protocol states: “[i]n appropriate cases and to the extent possible under its domestic law, each State Party shall protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential”. See Art. 11 Warsaw Convention; Art. 12 (1) Directive 2011/36 of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision 2002/629/JHA, OJ 2011 L 101, 1 (Directive 2011/36) makes reference to the rights granted to victims by the Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings, OJ 2001 L 82, 1: see Marco Scoletta/Susana Oromi Vall-Llovera, Il Diritto delle Vittime alla Protezione, in: Teresa Armenta Deu/ Luca Lupária (eds.), Linee Guida per la Tutela Processuale delle Vittime Vulnerabili (2011), 65. Furthermore, Art. 15 Directive 2011/36 lays down a number of measures that member States have to implement in the case of underage victims of human trafficking. 109 Cf. Art. 24 (2)(b) UNTOC and Arts. 24 (4), 28, and 30 Warsaw Convention, stating particular protection obligations for victims that decide to collaborate with the investigator authority; see also Art. 12 (3) Directive 2011/36. 110 The practice of the United States of America, allowing for witness testimony via videoconferencing, is mostly based on bilateral mutual legal assistance treaties. Thus, for example, under Art. 6 Agreement on Mutual Legal Assistance between the European Union (EU) and the United States of America, 19 July 2003, OJ 2003 L 181, 34, the “[c]ontracting Parties shall take such measures as may be necessary to enable the use of video transmission technology between each Member State and the United States of America for taking testimony in a proceeding for which mutual legal assistance is available of a witness or expert located in a requested State”: cf. Meetings of Ministers of Justice or other Ministers or Attorneys General of the Americas, Fourth Meeting of the Working Group on Mutual Assistance in Criminal Matters and

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different State or in a ‘protected location’ because their life is truly in danger,111 thus imposing judicial cooperation among States to ensure that protection is provided.112 One of the major concerns in this context is therefore to define how international standards on procedural protection measures should be jointly implemented by States. Without more specific ad hoc bilateral or multilateral agreements,113 strongly favoured in regional contexts,114 the mechanism of mutual legal assistance among UNTOC States parties is regulated by Article 18 (17) UNTOC, stating [a] request [of mutual legal assistance] shall be executed in accordance with the domestic law of the requested State Party and, to the extent not contrary to the domestic law of the requested State party and where possible, in accordance with the procedures specified in the request.115

To this end the request has to contain, among other things, “a description of the assistance sought and details of any particular procedure that the requesting State Party wishes to be followed,”116 and “additional information when it appears necessary for the execution of the request in accordance with its domestic law or when it can facilitate such execution.”117 When a State implements legal assistance mechanisms, its obligation to guarantee adequate protection of witnesses is extended across national boundary lines, with a resulting ‘surveillance obligation’ on the part of the State requested to provide assistance. This aspect should be considered by the requesting State when deciding to have recourse to legal assistance both when a protected witness has to be heard abroad in a State that is not party to the UNTOC and whose legislation provides for lower guarantees for witnesses, and when the requested State, albeit party to the Convention, does not offer adequate guarantees of ‘equivalent’ protection. Extradition, Study on Cooperation on the Protection of Victims and Witnesses, 23 March 2009, 5, available at: http://www.oas.org/juridico/MLA/en/Study_Cooperation_Protection_Victims_%20Witnesses_ ing.pdf (accessed on 8 March 2016). 111

Cf. UN Office on Drugs and Crime (note 21), 77, 82.

112

Kramer (note 19), 7.

113

Cf. Arts. 18 (6) and 18 (7) UNTOC (note 16).

114

Thus, for example, Art. 28 (5) Warsaw Convention states: “[e]very State Party considers the conclusion of agreements with other States to grant adequate protection towards people willing cooperate with judicial authorities”. Cf. also Meetings of Ministers of Justice or other Ministers or Attorneys General of the Americas (note 110), 3. 115

Emphasis added.

116

Cf. Art. 18 (15)(d) UNTOC.

117

Art. 18 (16) UNTOC.

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It should be the case, e.g., in the event of State involvement in transnational organised crime activities or State-organised crime with transnational effects. Particular problems may arise in legal cooperation among States aimed at obtaining an examination of anonymous prosecution witnesses abroad118 (e.g. the questioning of agents involved in undercover activities119 whose lives and ongoing investigations would be endangered if their true identities were disclosed)120 every time the required State does not provide for this type of evidence within its legal system. Witness anonymity, which serves to limit the risk of retaliation against the witness also after the conclusion of the proceedings,121 is expressly provided for in Article 24 (2)(a) UNTOC and is by now envisaged, albeit with specific limits and different regulations, by most legal systems.122 Thus, for example, due to the growing concern 118

In this case the requiring State should omit the indication of the identity of the witness to exam in the required State party: under Art. 18 (15)(e) UNTOC “[a] request for mutual legal assistance shall contain: […] where possible, the identity, location and nationality of any person concerned” (emphasis added). 119 In the Court’s language, an undercover agent is a member of the police force or somebody who collaborates with them in a formal way and who acts in the context of an official inquiry of which the authorities are informed. For further information, see Andrea Tamietti, Agenti Provocatori e Diritto all’Equo Processo nella Giurisprudenza della Corte Europea dei Diritti dell’Uomo, Cass. Pen. 42 (2002), 2920; anonymity for the purpose of this review and in reference to the case law of the ECtHR is to be understood as the absence of disclosure of a witness’s real identity to the defendant and his counsel, that is, ‘full anonymity’: see Stefano Maffei, Le Testimonianze Anonime nella Giurisprudenza della Corte Europea dei Diritti dell’Uomo, Cass. Pen. 43 (2003), 1700; id., The European Right to Confrontation in Criminal Proceedings: Absent, Anonymous and Vulnerable Witnesses (2006), 47; id., The Right to Confrontation in Europe: Absent, Anonymous, and Vulnerable (2012), 55. 120

Kramer (note 19), 6.

121

Francesco Caprioli, La Tutela del Testimone nei Processi di Criminalità Organizzata, in: Associazione tra gli studiosi del processo penale (ed.), Verso uno Statuto del Testimone nel Processo Penale (2005), 37, 44. 122 This possibility is for example admitted in Austria (cf. Arts. 166, 258 (3), and 323 (2) Code of Criminal Procedure (Strafprozessordnung (StPO)), 9 December 1975, as amended by the Bundesgesetz (BGB)) I, No. 33/2011) and in the Netherlands (cf. Arts. 136 (c), 226 (a), and 226 (b) Code of Criminal Procedure (Wetboek van Strafvordering (Sv)), 15 January 1921, as amended by the Staatsblad (Stb) No. 660/1997, available at: http://www.wetboek-online.nl/wet/Wetboek%20van%20Strafvordering. html (accessed on 8 March 2016). Other States, such as Lithuania and Hungary, are considering the possibility of including anonymous witnesses: cf. Selvaggi (note 71), 2423. In the United Kingdom anonymous witnesses were expressly admitted by the 2008 Criminal Evidence Act, replaced by the 2009 Coroners and Justice Act: see Ormerod D.C. David, Blackstone’s Criminal Practice (2012), 1709. For further examples concerning UN member States see UN Office on Drugs and Crime (note 21), 38. Cf. García Prieto et al. (note 2), paras. 54–59.

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for witness protection, the possibility of (procedurally) guaranteeing full anonymity has been recognised in the context of the CoE, meaning “that the identifying particulars of the witness remain totally unknown to the defendant”123 or “revealing the identity of witness at the latest possible stage of the proceedings and/or releasing only selected details”124 (partial or ‘weak’ anonymity).125 Since the CoE Resolution No. R (97) 13 was adopted, almost all Member States have provided for specific rules concerning witness anonymity in organised crime trials.126 The guidelines it lays down are reminiscent of those elaborated by the ECtHR starting from the Kostovski case127 on the balance between the rights of the defence and the need for protection where anonymity is concerned.128

123

Cf. CoE, Rec. No. R (97) 13 (note 12), Secs. I and III, paras. 11, 13.

124

Ibid., Sec. III, para. 9.

125

This option is widely employed by ad hoc tribunals: see Lucia Catani, La Protezione delle Vittime e dei Testimoni nei Processi Penali Internazionali, Dir. Pen. Proc. 16 (2000), 246. Cf. also Art. 68 (3) Rome Statute and Rule 81 (4) ICC Rules of Procedure and Evidence, 9 September 2002, available via: http://www.icc-cpi.int/en_menus/icc/Pages/default.aspx (accessed on 8 March 2016). Full anonymity has been recognised by the ICTY only once, in the Tadić Case (ICTY, The Prosecutor v. Duško Tadić, IT-94-1, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses of 10 August 1995, para. 86, available via: http://www.icty.org (accessed on 8 March 2016)). The decision to recognise full anonymity for some prosecution witnesses, taken by majority vote, was criticised because of the strong limitation of the right to a fair trial (cf. ibid., Dissenting Opinion of Judge Stephen). See, among others, Salvatore Zappalà, Ammissibilità dell’Anonimato come Misura per la Protezione dei Testimoni, Dir. Pen. Proc. 3 (1997), 1090 and, for a negative view, see Michele Caianiello, Il Processo Penale nella Giustizia Internazionale: Casi Giurisprudenziali dall’Esperienza dei Tribunali ad hoc, in: Giulio Illuminati et al. (eds.), Crimini Internazionali tra Diritto e Giustizia: Dai Tribunali Internazionali alle Commissioni Verità e Riconciliazione (2000), 137, 153. 126

Cf., for example, Arts. 75bis, 155bis, 155ter, 315bis Belgian Code of Criminal Procedure (Code d’Instruction Criminelle (C.I.Cr.)), 17 November 1808, entry into force on 7 December 1808, as amended, available via: http://www.ejustice.just.fgov.be (accessed on 8 March 2016); Arts. 706/57706/63 French Code of Criminal Procedure (Code de procédure pénale (C. pr. pén.)), 31 December 1957, as amended, available via: http://www.legifrance.gouv.fr (accessed on 8 March 2016). 127

For further information see Johan Callewaert, Témoignages Anonymes et Droit de la Défense, Rev. Trim. Dr. H. 3 (1990), 270. It is worth underscoring that when the facts occurred, the Netherlands did not explicitly regulate anonymity. Its use hinged only upon judicial case law; the conviction expressed by Strasbourg’s judges then led the legislator to discipline expressis verbis the use of this protective measure in trials: cf. Lonati (note 2), 224, footnote 56. 128

Laura Scomparin, La Tutela del Testimone nel Processo Penale (2000), 114.

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According to Article 18 (21)(b) UNTOC, containing the ordre public provision,129 the requested State may refuse tout court to provide assistance when an anonymous witness is involved.130 However, that is not the case whenever the requesting member State agrees on different procedural protection measures compatible with the requested member States’ legal order. In fact, under Article 18 (26) UNTOC, “before refusing a request pursuant to paragraph 21 of this article […], the requested State Party shall consult with the requesting State Party to consider whether assistance may be granted subject to such terms and conditions as it deems necessary […].” In such a case, the requesting State has to evaluate if the testimony could be given in the requested States adopting some procedures capable of assuring an ‘equivalent’ guarantee; in the event that the request is not fulfilled by the requested State, the offer for assistance must be rejected. The same issue arises with respect to mutual legal assistance among member States of the European Union (EU) since anonymous testimony is not yet universally recognised in their legislation and case law, and above all it has not acquired the same features across Europe.131 Therefore, for example, a limited recognition of anonymous testimony was recently introduced in Italy with Law No. 136/2010,132 which allows for anonymous testimony only in the case of police and private individuals involved in undercover operations who are being asked to testify upon undercover activities.133 In fact, Article 4 (1) European Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000,134 and Arti129

Under Art. 18 (21)(b) UNTOC, the request for mutual legal assistance may be rejected “if the requested State Party considers that execution of the request is likely to prejudice its sovereignty, security, ordre public or other essential interests” (emphasis in the original). 130

See also Art. 18 (17) UNTOC.

131

Cf. Selvaggi (note 71), 2423.

132

Cf. Law No. 136/2010 (Legge n. 136/2010), Piano Straordinario contro le Mafie, nonché Delega al Governo in Materia di Normativa Antimafia, 13 August 2010, Official Gazette (G.U.) No. 196 of 23 August 2010 (Law No. 136/2010). 133 Art. 8 (3) Law No. 136/2010, which amended, among others, Art. 497 (2bis) Code of Criminal Procedure (codice di procedura penale), 22 September 1988, dPR No. 447/1988, Official Gazette (G.U.) No. 250 of 24 October 1988 – Suppl. Ord. No. 92. 134 Council Act Establishing in Accordance with Art. 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000, OJ 2000 C 197, 1; cf. Frank Zimmermann/Sanja Glaser/Andreas Motz, Mutual Recognition and Its Implications for the Gathering of Evidence in Criminal Proceedings: A Critical Analysis of the Initiative for a European Investigation Order, European Criminal Law Review 1 (2011), 56, 59.

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cle 8 Second Additional Protocol thereof,135 which to a large extent determine mutual legal assistance among EU member States,136 also consider the need to respect the “fundamental principles of law in the requested Member State” and to agree upon the methods of gathering evidence.137

V. Non-Procedural Protection Measures: Witness Protection Programmes and Relocation Abroad In the field of witness protection it is not possible to devise easy solutions.138 Traditional remedies of a procedural nature, usually provided for under agreements among States, are often not sufficient to take action against more serious intimidations and reprisals against witnesses.139 They could thus prove inadequate to assure witness protection unless associated with some non-procedural remedies, such as the provision of specific medium or long term witness protection programmes (WPPs).140 135 Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, 8 November 2001, ETS No. 182. 136 The development of international mutual legal assistance in criminal matters has been a major concern of the Council of Europe and its conventions on mutual legal assistance in this field have been seen as ‘mother conventions’ giving birth to mutual legal assistance on a European level because they are the basis for numerous bilateral and multilateral agreements and crime-related conventions: cf. Bernd Hecker, Mutual Recognition and Transfer of Evidence: The European Evidence Warrant, in: Stefano Ruggeri (ed.) (note 42), 269, 272; Zimmermann/Glaser/Motz (note 134), 57. 137 Art. 4 (3) Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union. 138

UN Office on Drugs and Crime (note 21), iii.

139

See supra, I.

140

The first WPP was established in the United States of America by the 1970 Organized Crime Control Act (Pub. L. No. 91–452, 15 October 1970, 84 Stat.) as a new tool in the up-to-then unsuccessful fight against Italian-American Mafia persistently intimidating and murdering witnesses. It soon became subject to criticism concerning inter alia security issues and non-recognition of rights of persons victimised by the Programme (such as local communities hosting protected witnesses with criminal convictions and persons whose debts were left unpaid following relocation); this led to the Programme being reviewed by Congress in 1984 by the Witness Security Reform Act, which introduced the provisions in force today (H.R. 4249-98th Congress: United States Marshals Service and Witness Security Reform Act of 1984, available via: http://www.GovTrack.us (accessed on 8 March 2016)), giving more attention to interests of the public when they clashed with the purpose of the Programme: see UN Office on Drugs and Crime (note 21), 8; Fyfe/Sheptycki (note 1), 321 et seq.; Fred Montanino, Unintended Victims of Organized Crime Witness Protection, Criminal Justice Policy Review 2 (1987), 392, 394 et seq.; Neppi Modona, Maxiprocessi e Pentiti alla Luce dell’Esperienza Nordamericana (1988). The United States Federal Witness Security Program (WITSEC) has been described as the paradigm

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States have perceived the importance of providing for further remedies of an administrative nature in order to ensure witness security and safety. Therefore, for example, together with or separately from procedural protection measures they usually adopt non-procedural measures, for example in the context of specific WPPs.141 These programmes are based on the principle of neutrality, which means that participation should never be seen as a reward for testimony142 and witnesses are admitted according to a set of predetermined criteria.143 The main objective of WPPs is to safeguard the life and personal security of witnesses, collaborators of justice,144 and people close to them.145 On this basis, it is possible to arrange – whenever it is necessary deemed and with the consent of the person concerned146 – for direct police monitoring,147 a witness programme because of its influence on the development of witness protection arrangements elsewhere in the world, such as in Canada and Australia, where similar federal programmes coexisting with those set up by the individual States operate. This is also the case for several US States: cf. UN Office on Drugs and Crime (note 21), 9. 141

Caprioli (note 121), 39. In the UN context WPPs have been defined as “[a] formally established covert program, subject to strict admission criteria that provides for the relocation and change of identity of witnesses whose lives are threatened by a criminal group because of their cooperation with law enforcement authorities”: cf. UN Office on Drugs and Crime (note 21), 5, and by the CoE as “[a] standard or tailor-made set of individual protection measures which are, for example, described in a memorandum of understanding, signed by the responsible authorities and the protected witness or collaborator of justice”: cf. CoE, Rec(2005)9 (note 4), Sec. I. 142

Fyfe/Sheptycki (note 1), 347.

143

Thus, for instance, the level of threat to the witness’s life, the importance of the case, the decisive relevance of the testimony for the prosecution, the impossibility of obtaining the information from another source, the personality of the witness and his potential to adjust to a new life, and the person’s family situation: Bąkowski (note 10), 3. 144 The testimony of persons involved in criminal activities and closely connected to the offender may have crucial value in the prosecution of organised crime. This explains why these so-called ‘collaborators with justice’ or pentiti are a sizeable part, if not a majority, of persons admitted to WPPs. However, in many jurisdictions pentiti are also subjected to specific regulation concerning, inter alia, benefits granted in exchange for information: Bąkowski (note 10), 2. Cf. also UN Office on Drugs and Crime (note 67), 165, 174–175. 145 Fyfe/Sheptycki (note 1), 331–332. Some protection measures may also be applied to those persons who permanently cohabit with the witness and to those who are exposed to serious, present, and concrete danger because of the relationship they maintain with him: cf. CoE (note 4), Introduction, 22, para. 25. 146 147

Cf. Montanino (note 140), 393; Kramer (note 19), 5.

In this respect, basic police measures, such as patrolling around the witness’s residence, are often sufficient to guarantee the physical safety of the witness: see Bąkowski (note 10), 1.

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identity change148 and witness relocation to a different place within the same State or abroad.149 Witness participation in such programmes is mainly considered a measure of last resort restricted to more serious cases,150 also given the financial burden on the State,151 the drastic changes in the life of the persons concerned, and the possibility of negative effects on third parties;152 nevertheless, States with legal systems based upon an adversarial system153 often prefer to adopt non-procedural protection measures and regulate, in an extremely inflexible way, the use of special evidence-gathering rules so as to minimise the otherwise unavoidable limitation of the rights of the defence in the trial.154 An increasing number of European countries have established WPPs,155 but there is some variety in the way those schemes are organised, arguably due to differences in member States’ legal systems and traditions, as well as in the extent of organised criminal activities; the range of crimes in relation to which witness protection is applicable also varies from country to country.156 148

Many witnesses are given a new identity, with the number of personal details changed varying from country to country, e.g. in the United Kingdom and the Netherlands only essential elements are modified, while in Italy the changes are more extensive: ibid., 3. 149

UN Office on Drugs and Crime (note 21), 82.

150

Ibid., 27.

151

Cf. CoE (note 4), 23, para. 30; Fyfe/Sheptycki (note 1), 332.

152

Cf. Montanino (note 140), 404; Bąkowski (note 10), 2. Thus, the decision to adopt WPPs is subject to respect for the principles of subsidiarity and proportionality (cf. CoE (note 4), 27, para. 48); such measures are mostly restricted to very important cases in which a witness’s testimony is crucial to the prosecution and there is no alternative way of ensuring the security of the witness: cf. Bąkowski (note 10), 2. 153

John Hostettler, Fighting for Justice: The History and Origins of Adversary Trial (2006), 9–10.

154

Cf. Caprioli (note 121), 69–71. The Italian administrative regulation of witness protection measures was reformed with Law No. 45/2001 (Legge n. 45/2001), Modifica della disciplina della protezione e del trattamento sanzionatorio di coloro che collaborano con la giustizia nonché disposizioni a favore delle persone che prestano testimonianza, 13 February 2001, Official Gazette (G.U.) No. 58 of 10 March 2001 – Suppl. Ord. No. 50 (Law No. 45/2001), which establishes different protective regimes for victims and witnesses and for collaborators with justice (Law No. 45/2001); cf. UN Office on Drugs and Crime (note 21), 19. For further information see Roberto Alfonso, Criminalità Organizzata, Vittima di Reato e Testimone, I Quaderni Europei 26 (2010), 76, 81; Francesco De Leo et al., Treatment of Persons Co-operating with the Judicial Authorities and Witnesses: The Italian System and Good Practices, in: CoE (ed.), Crime Policy in Europe: Good Practices and Promising Examples (2004), 189, 190. 155 156

Kramer (note 19), 11.

In Belgium and Italy, for example, protection measures can only be used in the case of specific crimes, while under Lithuanian legislation they may be used for ‘serious crimes’; furthermore, whereas

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The need to adopt non-procedural protection measures was broadly considered in the Statutes of the ICTY and ICTR and in their respective Rules of Procedure and Evidence157 and later in those of the ICC,158 in particular thanks to the lato sensu administrative role played by the Victims and Witnesses Section (VWS) with regards to the adoption of more convenient protective measures.159 In both cases these measures were then implemented with the required cooperation of States on the basis of specific bilateral agreements drawn up with the particular State requested to provide assistance.160 However, there are some non-negligible peculiarities. Firstly, due to the peculiar process by which ad hoc tribunals have been established,161 the obligation to cooperate with their jurisdiction concerns all UN member States162 and is legally based upon the obligation to cooperate with the United Nations under Article 25 UN Charter.163 The Rome Statute also subjects the parties to a general obligation to cooperate

most member States have established one national or federal programme, some (e.g. Germany and the United Kingdom) run several regional or local programmes: cf. Gert Vermeulen et al., Concluding Comparative Analysis, in: Gert Vermeulen (ed.) (note 28), 233, 235. 157

Cf. Rule 34 ICTY and ICTR Rules of Procedure and Evidence.

158

Cf. Rules 16–19 and Rules 87–88 ICC Rules of Procedure and Evidence.

159

Further indications in Scomparin (note 128), 372 and 382; Fransen/Beldé/Vermeulen (note 28), 53.

160

In the ICTY and ICTR experience, State cooperation for witness relocation under a new identity in protected localities before or after their deposition has been of particular importance; the United Kingdom was the first State to conclude a specific agreement with the ICTY for the implementation of a specific WPP, which includes relocation under a new identity for witnesses whose lives are in serious danger: cf. ICTY, Press Release of 7 November 1997, United Kingdom becomes first State to agree to provide enhanced assistance to witness protection efforts of International Tribunal, available at: http:// www.icty.org/sid/7448 (accessed on 8 March 2016). Cf. also Colin Warbrick/Dominic McGoldrick, Cooperation with the International Criminal Tribunal for Yugoslavia, International & Comparative Law Quarterly 45 (1996), 947, 948. 161 In fact, the UN Security Council established the ICTY and ICTR with resolutions adopted under Chapter VII Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter): see supra, notes 24 and 25. 162 Under Art. 29 (1) ICTY Statute: “States shall cooperate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. Cf. also Art. 28 (2) ICTR Statute. 163 Under Art. 25 UN Charter: “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. This is tied to the particular conditions under which the ICTY and ICTR were established: the obligation to cooperate with the Tribunals concerns all members of the UN because of the adoption in both cases of a UN Security Council resolution under Chapter VII UN Charter (cf. note 161).

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with the ICC164 but Article 87 Rome Statute, which governs in detail the requests for assistance in this context, refers only to the States parties to the Rome Convention because of the conventional nature of the Statute.165 Those who drafted the UNTOC have learnt an important lesson from this experience; the possibility of relocating a witness abroad, envisaged under Article 24 (2)(a) UNTOC, depends on the conclusion of a specific cooperation agreement among States.166 The same applies when it comes to cooperation among EU States167 and among EU and non-EU States.168 Witness protection authorities wishing to cooperate for the purpose of witness relocation will need some form of informal agreement reached directly between the authorities themselves, which may be modified on a case-by-case basis. Thus, special agreements or memoranda of understanding are concluded directly between protection authorities of the respective countries and they do not require ratification.169 However, a number of countries need some additional level of agreement which can be at the institutional level (e.g. between the police force and

164

Under Art. 86 ICC Statute: “States Parties shall, in accordance with the provision of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. 165

For further considerations see also Antonio Cassese, On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, European Journal of International Law 9 (1998), 2, 13; Paola Mori, L’Istituzionalizzazione della Giurisdizione Penale Internazionale (2001), 253; Flavia Lattanzi, La Primazia del Tribunale Penale Internazionale per la ex-Iugoslavia sulle Giurisdizioni Interne, Rivista Italiana di Diritto Internazionale 79 (1996), 597, 611, 615. 166

Under Art. 24 (3) UNTOC: “States Parties shall consider entering into agreements or arrangements with other States for the relocation of persons referred to in paragraph 1 of this article”. 167

In this context, Art. 23 Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters offers a basis for international cooperation in non-procedural protective measures and for cooperation between witness protection programmes. Furthermore, in Europe, a network coordinated by European Police Office (Europol) has been established; it is made up of the heads of specialised witness protection units participating on a voluntary basis but has no real mandate in this field. Europol and its network of witness protection experts has developed two non-binding documents for improving cooperation among member States: the Basic Principles of European Union Police Cooperation in the Field of Witness Protection, 11 September 2000 and the Common Criteria for Taking a Witness into a Protection Programme, December 2002. 168

EU member States enter into specific bilateral agreements not published in official national journals for security reasons: cf. Commission Working Document on the Feasibility of EU Legislation in the Area of Protection of Witnesses and Collaborators with Justice, COM(2007)693 final, 13 November 2007, 7, para. 6.1.3. 169

Cf. UN Office on Drugs and Crime (note 21), 82.

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ministry). Furthermore, States can ratify bilateral or multilateral treaties170 or join framework agreements entered into as part of regional organisations.171 Witness relocation abroad is, however, only an example of a non-procedural protection measure;172 a number of further protective measures can be adopted, including some ‘assistance measures’173 applied to witnesses irrespective of their willingness to be examined during the proceedings.174 The efficiency of the cooperation between the States involved in the relocation abroad influences the likelihood of success of the measures agreed on. Transferring a witness to the jurisdiction of a State other than the one in which the trial is held also transfers the primary responsibility for the safety of the ‘protected witness.’175 The territorial link is in fact the key element to providing efficient protection. Thus, for example, Article 6 (5) Trafficking Protocol obliges the States parties to ensure the security and safety of trafficking victims within their territory.176 In this case, however, the State on whose territory the 170 The sole multilateral agreement in Europe on cooperation in criminal matters has been concluded by Baltic States and provides for the extinction of criminal liability or the reduction in the penalty for people co-operating with authorities of another State party: cf. Agreement between the Government of the Republic of Latvia, the Government of the Republic of Estonia and the Government of the Republic of Lithuania on Co-operation in Protection of Witnesses and Victims, 17 March 2000, available at: http://m.likumi.lv/doc.php?id=209214 (accessed on 8 March 2016). For further information see Raimundas Jurka, Lithuania, in: Gert Vermeulen (ed.) (note 28), 120, 144–146. 171

Cf. UN Office on Drugs and Crime (note 21), 82; Kramer (note 19), 12–13.

172

Art. 28 (2) Warsaw Convention envisages some measures such as witness relocation, identity change, and assistance in finding a new job. The establishment and functioning of WPPs is sometimes entrusted to the police function (e.g. Australia, Austria, Canada, New Zealand, Norway, Slovakia, and the United Kingdom: cf. UN Office on Drugs and Crime (note 21), 45); sometimes the programmes operate within the executive or the judiciary (e.g. Colombia, the Netherlands, Philippines, South Africa, and the United States). However, their concrete implementation is mostly left up to a number of authorities, such as in Italy, Belgium, and Serbia (ibid., 46; cf. Fyfe/Sheptycki (note 1), 5–11; Vermeulen et al. (note 156), 235). It is argued that a WPP can operate within any of those structures as long as protection remains separate from investigation to ensure objectivity and minimise the risk of admission to the programme becoming an incentive for witnesses to give false testimony: cf. Kramer (note 19), 11. 173

Art. 6 Trafficking Protocol and Art. 16 Smuggling Protocol foresee, for example, particular witness protection and assistance measures for victims, such as housing allocation and medical, legal, or psychological assistance. 174 Art. 12 Warsaw Convention, for example, points out that assistance to a witness is not conditional on his decision whether to testify. 175 Costs linked to witness protection measures are mostly incurred by the receiving State but different arrangements are however possible: cf. UN Office on Drugs and Crime (note 21), 84 (b). 176

Under Art. 6 (5) Trafficking Protocol: “[e]ach State Party shall endeavour to provide for the physical safety of victims of trafficking in persons while they are within its territory”.

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trial is held has particular obligations towards the witness, for example with regards to the privacy of ‘sensitive’ information about the new identity. Furthermore, Article 33 (1) CoE Convention on Action against Trafficking in Human Beings provides for a specific obligation to transmit information among the parties concerning the socalled ‘risk factors’, i.e. situations endangering the life, freedom, or personal integrity of victims and witnesses of trafficking-related offences, in order to enable the host State to adopt more appropriate witness protection measures.177 There is also a specific obligation to inform other parties concerning the measures adopted or the reasons that have prevented the party from adopting appropriate measures for this purpose or to provide for similar measures within a reasonable amount of time.178 In this context, the obligation to inform State authorities serves to ensure the effectiveness of the joint obligation to protect witnesses, also for the purpose of establishing the responsibility of the first State for its inaction.

VI. Conclusion Currently operating networks of organised crime are a threat for international society as a whole,179 and more so because of their transnational ramifications.180 Due 177

Under Art. 33 (1) Warsaw Convention, “[w]hen a Party, on the basis of the information at its disposal has reasonable grounds to believe that the life, the freedom or the physical integrity of a person referred to in Article 28, paragraph 1, is in immediate danger on the territory of another Party, the Party that has the information shall, in such a case of emergency, transmit it without delay to the latter so as to take the appropriate protection measures”. 178

Cf. Art. 34 Warsaw Convention; the establishment of a regional information exchange mechanism is also encouraged in the context of the Organization of American States (OAS), where mechanisms to exchange information directly among the national authorities responsible for victim and witness protection programs are suggested: cf. Meetings of Ministers of Justice or other Ministers or Attorneys General of the Americas (note 110), 5. Similar efforts have been initiated in other regions, such as the Australasian Heads of Witness Protection Forum established in Asia and the Pacific; furthermore, Europol, which originally included the authorised representatives of eight States not yet members of the EU and 12 international organisations operating in the region, has gradually expanded to include representatives from other countries with extensive experience in witness protection, such as Australia, Canada, New Zealand, South Africa, and the United States: cf. UN Office on Drugs and Crime (note 21), 84. 179 In this regard, one need only consider “the serious threats posed in some cases by drug trafficking and transnational organized crime to international security in different regions of the world”: cf. Highlevel Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, Report of 2 December 2004, available via: http://www.un.org/en/events/pastevents/a_more_secure_

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to the global nature of the threat, States’ efforts must be coordinated in a multilateral repressive project.181 In the fight against such criminal networks, a crucial role is played by witnesses of the crimes considered because of their contribution to ascertaining the so-called ‘procedural truth’; however, the possibility of fruitfully involving them in the trial is usually thwarted because of the absence of appropriate mechanisms for ‘neutralising’ retaliatory and intimidating dynamics widely encountered in this field.182 In this regard, international instruments both in a regional context and on a universal level outline a joint obligation for States concerning the implementation of the complex witness protection system required under international law. The cross-fertilisation among different instruments in this regard, both on a global and regional level,183 has contributed to the development of a complex ‘statute’ concerning witness protection in the context of transnational organised crime trials. This circumstance has given rise to an evolving interpretation of primary obligations in this area and is decisive for the efficiency of procedural mechanisms aimed at verifying that they are fulfilled.184 In fact, according to recent case law of the ECtHR, the control mechanisms provided by human rights instruments assume a crucial role in assuring compliance with obligations provided for under international instruments aimed at fighting transnational organised crime. The failure to adopt the measures provided for in the UNTOC and its Protocols can be considered an index of a State’s negligence in fulfilling its obligations under international conventions on human rights.185 The concrete efficiency of the protection world.shtml (accessed on 8 March 2016); cf. Stefano Betti, New Prospects for Inter-state Co-operation in Criminal Matters: The Palermo Convention, International Criminal Law Review 3 (2003), 151, 156. 180 In the context of the UN it has been recently affirmed: “in a globalized society, organized crime groups and networks, better equipped with new information and communication technologies, are becoming more diversified and connected in their illicit operation, which in some cases may aggravate threats to international security”: cf. High-level Panel on Threats, Challenges and Change (note 179). 181

UN Office on Drugs and Crime (note 1), iii. In his introduction to the UNTOC the former UN Secretary-General Kofi Annan emphasised the political will to answer a global challenge with a global response (note 16), iii. Cf. Kramer (note 19), 3–4. 182

For a critique of some mechanisms aimed more at preserving the efficiency and authenticity of evidence rather than ensuring witness safety see Caprioli (note 121), 40. 183 For similar considerations with regard to trafficking in human beings see Serena Forlati, I Meccanismi Internazionali di Controllo, in: Serena Forlati (ed.), La Lotta alla Tratta degli Esseri Umani fra Dimensione Internazionale e Ordinamento Interno (2013), 29, 45. 184 185

Ibid., 45.

Cf., with specific regard to trafficking in human beings, Alessandra Annoni, La Tratta di Donne e Bambine nella Recente Giurisprudenza della Corte Europea dei Diritti dell’Uomo, Deportate, Esuli, Profughe (DEP) 16 (2011), 87, 97; cf. CoE (note 10), 153.

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system requires strong inter-State cooperation. This is evident in relation both to the wide use of letters rogatory concerning the examination of protected witnesses, and the implementation of non-procedural protection measures beyond the boundary lines of States.186 Effective international cooperation in this field is perceived as a current challenge.187 In fact, States have always jealously guarded their territory to defend their sovereignty; moves towards cooperation and the pooling of resources and powers have always met with both political and constitutional resistance,188 also because they often require to amend internal legislation and to agree on common policies among States. Nevertheless, in the contemporary globalised world this approach makes States more vulnerable because they have to look beyond borders to protect their sovereignty.189 Regional and international responses are both enabled and favoured by the UNTOC.190 The need to strengthen international cooperation among States in this area for the implementation of both procedural and non-procedural protection measures is also highlighted by regional organisations.191 However, in those countries where 186 Cf. UN Office on Drugs and Crime, Digest of Organized Crime Cases: A Compilation of Cases with Commentaries and Lessons Learned (2012), 51. 187 In the EU context, the fight against transnational organised crime was taken into account also in the so-called “Stockholm Programme”, which outlines EU 2010–2014 priorities in the areas of freedom, security, and justice, European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, 4 May 2010, OJ 2010 C 115, 1. 188

Christopher Harding/Bert Swart, Intergovernmental Co-operation in the Field of Criminal Law, in: Phil Fennell et al. (eds.) (note 49), 87. 189

UN Office on Drugs and Crime (note 1), iii.

190

Ibid., ii.

191

Thus, for example, the MGT recommended to the Committee of Ministers of the CoE that it be given the task of examining, in cooperation with the European Committee on Crime Problems, the possibility of developing guidelines and, if necessary, a convention to strengthen the protection of witnesses and collaborators of justice, including through improved international cooperation in this area: CoE (note 4), 15, para. 3; cf. Meetings of Ministers of Justice or other Ministers or Attorneys General of the Americas (note 110), 1–3. Within the Caribbean, there are two instruments that address the issue of witness protection, the 2000 Caribbean Mutual Legal Assistance Treaty in Serious Criminal Matters, available at: http://www.caricom.org/jsp/secretariat/legal_instruments/mutual_legal_assistance.pdf (accessed on 8 March 2016) and the 1999 CARICOM Agreement Establishing the Regional Justice Protection Programme, available at: http://www.caricom.org/jsp/secretariat/legal_instruments/ regional_justice_protection.jsp?menu=secretariat (accessed on 8 March 2016). The Caribbean Mutual Legal Assistance Treaty Chapter III includes provisions on a victim and witness protection programme. Each State party has to adopt appropriate measures within its means to provide witnesses with effective protection against potential retaliation or intimidation. This instrument encourages the use of communications technology, such as video links, which allow testimony to be given through these means. Another option to be considered is to enter into arrangements with other State parties for the relocation of witnesses. The CARICOM Agreement also provides, among other things, for States parties and the

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practical difficulties arise due to their geographical or demographic characteristics, it is very difficult to protect witnesses and collaborators of justice properly192 and international cooperation could be the only means by which to fulfil international obligations in this field, especially as far as relocation abroad is concerned.193 This is the case when the limited size of the territory or its characteristics do not allow the implementation of an effective protection programme for the witness, including relocation in a safety area within the State. In this case, despite the absence of a formal agreement concerning relocation abroad, States should conclude informal agreements through their witness protection authorities using the UNTOC or UNCAC194 as the sole basis for mandatory cooperation.195 Article 18 (17) UNTOC read together with Article 24 (1) UNTOC, indeed, should provide for the legal basis for inter-States cooperation in the specific case. Overall, witness protection, especially in terms of its practical implementation, should therefore be viewed on a case-by-case basis; adequate protection cannot be achieved with too rigid a set of rules.196 Thus, the joint obligation to protect witnesses set forth by the above-mentioned UN Conventions in several cases restricts the States parties’ freedom to enter (or not enter) into inter-State (formal or informal) cooperation agreements in this field. Moreover, Article 18 (9)–(29) UNTOC provides for the legal basis for mutual legal assistance between the parties even if they have not signed ad hoc cooperation agreements. At the regional level, inter-State cooperation could benefit from the introduction of a uniform regime governing procedural witness protection measures, with similar methods for taking protected testimony, such as that given by an anonymous witness, as well as the adoption of a uniform WPP. In fact, discrepancies still present even among EU member States to some extent reduce the effectiveness of these measures Board of Governors to the Regional Programme to cooperate with each other in the relocation of participants in witness protection programmes: cf. Meetings of Ministers of Justice or other Ministers or Attorneys General of the Americas (note 110), 3. 192

CoE (note 4), 15, para. 3.

193

Ibid., para. 3.

194

Art. 24 (1) UNTOC, and Art. 32 (1) UNCAC.

195

When Slovenia drafted its witness protection law, it did not include a provision that mentioned international cooperation for the relocation of witnesses. However, Slovenia was a party to the UNTOC, so it used this Convention as a basis for cooperation with a country for this purpose until it was able to amend its own witness protection legislation: cf. Kramer (note 19), 13. 196

Common Criteria for Taking a Witness into a Protection Programme (note 167), 2.

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and consequently weaken the repressive efficiency against transnational criminal organisations. Thus, e.g., the arrangement of a WPP in the requested State is easier if the requirements for its establishment are basically the same in the requesting State and in the requested State. Some problems may arise whenever these requirements, including the range of crimes in relation to which witness protection is applicable, are largely different. At the European level, it would seem appropriate to adopt a directive aimed at ensuring the implementation of non-procedural protection measures decided by one member State across the whole EU, if the protected witness has changed his residence or domicile. After all, an analogous mechanism has already been put in place for victims of serious crimes by Directive 2011/99 on the European protection order.197 The goal of uniform protection remains ambitious at the regional level and undoubtedly is not realistic on a global level; however the joint obligation outlined by international sources in this area serves to limit discrepancies among national legislations at least to some extent, hence enabling witnesses to take advantage at least of the minimum standard of protection defined by international obligations binding the State where the proceedings are held.

197 Directive of the European Parliament and of the Council 2011/99 of 13 December 2011, OJ 2011 L 338, 2, on the European Protection Order. In fact, the directive states expressis verbis that it should not apply to measures adopted with a view to witness protection: see Marco Venturoli, La Tutela della Vittima nelle Fonti Europee, Diritto Penale Contemporaneo 3–4 (2012), 86, 95. See also Doak/ Taylor (note 46), 348, who consider the Directive also applicable to intimidated witnesses.

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Strengthening the Human Rights Council: The 2015 Presidency of German Ambassador Joachim Rücker ELISA OEZBEK(

I. Introduction The United Nation’s (UN) human rights pillar stands on solid grounds comprising: – The Human Rights Council (HRC),1 the main intergovernmental body responsible for the promotion and protection of human rights, with its Special Procedure mandate-holders and the Universal Periodic Review Working Group. – The Universal Declaration on Human Rights (UDHR)2 epitomising the indivisibility and universality of human rights. – International human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)3 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),4 with their respective treaty bodies driving the process of integrating individual rights into our societies and acting as a constant reminder of States’ human rights obligations. (

Special Advisor to the President of the Human Rights Council 2015.

1

United Nations General Assembly (UN GA) Res. 60/251 of 3 April 2006.

2 Universal Declaration of Human Rights, 10 December 1948, GA Res. 217 A (III) of 10 December 1948 (UDHR). 3 International Covenant on Civil and Political Rights, 19 December 1966, UNTS 999, 171 (ICCPR). 4

International Covenant on Economic, Social and Cultural Rights, UNTS 993, 3 (ICESCR).

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– The High Commissioner for Human Rights and his or her Office (OHCHR)5 acting as guardian of these commitments and as a source for assistance and advice. On 8 December 2014, Ambassador Joachim Rücker, Permanent Representative of Germany to the United Nations Office and the other international organisations in Geneva was elected to be President of the Human Rights Council for its 9th cycle in 2015.6 Since 1 January 2013, Germany has been a member of the Human Rights Council,7 serving for a period of three years, and it was re-elected by the General Assembly in fall 2015.8

II. The Human Rights Council The Human Rights Council emerged in response to the failures of the former Commission on Human Rights with a view to strengthen the UN’s human rights pillar and to implement the normative framework that had been further developed, in particular after the end of the Cold War and following the Vienna Declaration and Programme of Action of 25 June 1993.9 Following the World Summit in 2005, Heads of States and Governments decided therefore through General Assembly (GA) Resolution 60/251 to follow Kofi Annan’s

5

GA Res. 48/141 of 7 January 1994.

6

See Statement of the then President-elect to the Human Rights Council, 8 December 2014, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15423&Lang ID=E (accessed on 27 December 2015). 7

GA, 67th Session, 34th Plenary Meeting, UN Doc. A/67/PV.34 (2012).

8

Id., 70th Session, 42nd Plenary Meeting, UN Doc. A/70/PV.42 (2015).

9

Outcome of the World Conference on Human Rights, “Vienna Declaration and Programme of Action”, organised by the United Nations between 14–25 June 1993, UN Doc. A/CONF.157/23 (1993). See also Meghna Abraham, A New Chapter for Human Rights: A Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council (2006); Theodor Rathgeber, Performance and Challenges of the Human Rights Council: an NGO View, International Policy Analysis, Friedrich-Ebert-Stiftung, February 2013, available at: http://library.fes.de/pdf-files/iez/ global/09680.pdf (accessed on 17 February 2016); Hanns Schumacher, Living Up to Our Own Standards?, URG Insights (2013), available at: http://www.universal-rights.org/blog/living-up-to-our-ownstandards-ambassadorschumacher/ (accessed on 11 February 2016).

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proposal outlined in his report “In Larger Freedom: Towards Development, Security and Human Rights for All”, where he stated that [t]he establishment of a Human Rights Council would reflect in concrete terms the increasing importance being placed on human rights in our collective rhetoric […] would raise human rights to the priority accorded to it in the Charter of the United Nations […] and would offer architectural and conceptual clarity.10

The Council was tasked to, inter alia, promote and protect human rights, to respond to urgent and chronic human rights violations in specific country situations in a timely manner, to promote mainstreaming of human rights, and to provide a platform for human rights defenders and civil society as well as for victims when their rights have been violated by governments.11 The HRC as the main body responsible for the promotion and protection of human rights was also equipped with an innovative and unique peer-to-peer review mechanism for human rights – the Universal Periodic Review (UPR). Complementing the Special Procedure mechanisms, it represents an additional instrument available to the UN human rights system. Special Procedures, i.e. Working Groups, Special Rapporteurs, and Independent Experts, are experts created and mandated by the HRC that are dealing with specific human rights issues, thematic and/or countrysituations, reporting usually once per year in Council sessions.12 The UPR on the other hand is a State-driven process, which provides the opportunity for each State to present their human rights record, to explain what actions they have taken to improve it, and to fulfil their human rights obligations.13 The UPR is designed to ensure equal treatment for every country when its human rights situations is assessed. The UPR will, at the end of 2016, conclude its second cycle and up to today, all UN Member States scheduled for review have presented their human rights

10 GA, Report of the Secretary-General, “In Larger Freedom: Towards Development, Security and Human Rights for all”, UN Doc. A/59/2005/Add.1 (2005), 1. 11

GA Res. 60/251 of 3 April 2006, paras. 1–5.

12

Marc Limon/Ted Piccone, Policy Report: Human Rights Special Procedures: Determinants of Influences, March 2014, available at: http://www.universal-rights.org/urg-policy-reports/specialprocedures-determinants-of-influence/ (accessed on 27 December 2015). 13

GA Res. 60/251 of 3 April 2006, para. 5 (e).

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track record to the international community. Germany’s last review, when more than 130 recommendations were addressed to Berlin, took place in 2013.14 In addition, the Human Rights Council also has a complaint mechanism to address consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms occurring in any part of the world and under any circumstances; this so-called Working Group on Situations which is composed of one representative per region can refer cases to the HRC which are then reviewed in private meetings of the Council. Furthermore, the Council has an Advisory Committee, composed of eighteen experts that are elected by the HRC, which is mandated to provide expertise to the Council upon request, focusing in particular on studies and research-based advice. The first session of the 47-member HRC took place in June 2006 and was opened by the then President of the General Assembly, Jan Eliasson. Ever since, the Council has held three sessions per year – each March for four weeks, when the high-level segment takes place, and each June and September for three weeks. In addition, by the end of its 9th cycle, 24 Special Sessions were held by the HRC.15 The Council’s working methods and procedures are laid out in the institutionbuilding package, adopted in 2007 through HRC Resolution 5/1.16 A first review of the HRC took place in 2011.17 14

Human Rights Council (HRC), Report of the UPR Working Group on Germany, UN Doc. A/HRC/24/9 (2013). See also 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, German Yearbook of International Law 56 (2013), 513; Petra Follmar-Otto, Nach der UPR-Überprüfung Deutschlands im UN-Menschenrechtsrat: Vorschläge zum Umgang mit Empfehlungen, 2013, available at: http://www.institut-fuer-menschenrechte.de/fileadmin/_migrated/tx_ commerce/Nach_der_UPR_Ueberpruefung_Deutschlands_im_UN_Menschenrechtsrat_Vorschlaege_ zum_Umgang_mit_den_Empfehlungen.pdf (accessed on 17 February 2016). 15 See Office of the High Commissioner for Human Rights (OHCHR), United Nations Human Rights Council Sessions, available at: http://www.ohchr.org/EN/HRBodies/HRC/Pages/Sessions.aspx (accessed on 11 January 2016). 16 17

HRC Res. 5/1 of 18 June 2007.

HRC Res. 16/21 of 12 April 2011 and GA Res. 65/281 of 20 July 2011. See also Kamelia Kemileva/Benjamin Lee/Claire Mahon/Chris Sidoti, Expertise in the Human Rights Council: A Policy Paper Prepared under the Auspices of the Geneva Academy of International Humanitarian Law and Human Rights (2010), available at: http://www.geneva-academy.ch/docs/expertise.pdf (accessed on 17 February 2016); Theodor Rathgeber, Reviewing the Human Rights Council: Perspectives from Civil Society, International Policy Anaysis, Friedrich-Ebert-Stiftung, November 2010, available at: http:// library.fes.de/pdf-files/iez/07625.pdf (accessed on 17 February 2016).

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III. The Human Rights Council Before Its 10th Cycle: Achievements and Challenges Ten years on, the Council has managed to shed light on grave country-specific human rights situations and managed to put timely thematic human rights challenges on the agenda. On country situations the Council has achieved notable successes: Through the establishment of a Commission of Inquiry on the human rights situation in the Democratic People’s Republic of Korea, for instance, the international focus, including in the Security Council, shifted from a purely security-driven outlook to a much more human rights-based one.18 Furthermore, since 2011, the Commission of Inquiry on the human rights situation in Syria has documented and reported on the gross human rights violations and abuses committed during the ongoing conflict and may one day help to establish accountability for the Syrian people.19 Another example includes the de facto or de jure abolishment of the death penalty in a number of countries as a result of UPR recommendations received.20 On thematic issues, the Human Rights Council contributes, shapes, and initiates many important debates on human rights, including on timely topics such as climate change, sustainable development goals, terrorism, and the freedom of religion or belief. For instance, the HRC affirmed, as the first UN body, that the same rights people enjoy offline must be protected online,21 be it with regard to the right to privacy or the right to freedom of expression. Despite such achievements, challenges for the young institution continue to impede its efficiency and effectiveness due to increasingly diverging aspirations. In particular among Western policy-makers and media, the HRC is criticised for not living up to its normative claim or providing effective remedies for human rights

18

See HRC, Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, UN Doc. A/HRC/25/63 (2014), and HRC Res. 22/13 of 9 April 2013. 19

See latest and 10th Report of the Commission of Inquiry on Syria, UN Doc. A/HRC/30/48 (2015), and HRC Res. S-17/1 of 22 August 2011, para. 13. 20

See HRC, Press Release, Human Rights Council Holds High-Level Panel on the Death Penalty, 4 March 2015, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx? NewsID=15640&LangID=E#sthash.bzNaTgC3.dpuf (accessed on 11 January 2016). 21

HRC Res. 20/8 of 16 July 2016, para. 1.

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violations.22 In addition, it is criticised for overemphasising the Israeli-Palestinian conflict by devoting a sole agenda item to this human rights situation. Others, in particular in the global South, remain sceptical of the Council, arguing that the body exceeds its mandate by interfering in domestic affairs, promoting thereby doublestandards, and, allegedly, impeding the principles of ‘genuine dialogue’ and ‘cooperation’ which ought to govern the HRC.23

A. First Challenge: Membership

A first and important challenge to the HRC is the issue of membership. In 2006, then Ambassador of the United States to the United Nations, John Bolton, justified the American vote against GA Resolution 60/251 first and foremost with the fact that the resolution did not sufficiently address how to prevent the world’s worst human rights abusers from becoming members in the HRC.24 Indeed, past, present, and future members of the HRC hold the main responsibility for pursuing and fulfilling the body’s important mandate, and thereby of “promoting universal respect for the protection of all human rights and fundamental freedoms for all.”25 Membership in the Council is based on equitable geographic distribution among the UN regional groups and members are elected for a period of three years.26 Reelection is possible, but after two consecutive terms a minimum pause of one year

22 See, for instance, the position of the European Union as expressed at the 72nd GA meeting of the 60th session of the GA, GA, 60th Session, 72nd Plenary Meeting, UN Doc. A/60/PV.72 (2006), 9, reiterated at the 100th GA meeting of the 65th session of the GA, GA, 65th Session, 100th Plenary Meeting, UN Doc. A/65/PV.100 (2011), 24. 23 See, for instance, the positions of Cuba as expressed at the 72nd GA meeting of the 60th session of the GA, GA, 60th Session, 72nd Plenary Meeting, UN Doc. A/60/PV.72 (2006), 3, and of China at the 100th GA meeting of the 65th session of the GA, GA, 65th Session, 100th Plenary Meeting, UN Doc. A/65/PV.100 (2011), 11. 24 See the position of the United States of America as expressed at the 72nd GA meeting of the 60th session of the GA, GA, 60th Session, 72nd Plenary Meeting, UN Doc. A/60/PV.72 (2006) and reiterated at the 100th GA meeting of the 65th session of the GA, GA, 65th Session, 100th Plenary Meeting, UN Doc. A/65/PV.100 (2011). 7. 25

GA Res. 60/251 of 3 April 2006, paras. 2 and 8.

26

Ibid., para. 7.

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needs to be observed.27 For instance, the United States of America will not be a member in 2016 after two consecutive terms; Germany will have to pause in 2019. Until today, the question of membership remains a topic of debate that lets many question the overall credibility of the body in dealing with the promotion and protection of human rights worldwide.28 Much attention was paid when in 2013 Saudi Arabia was elected by 140 votes to become a member of the Council29 and even more when in 2015 the Saudi Ambassador took up a function in his personal capacity in the Consultative Group of the HRC, which is responsible for interviewing candidates for Special Procedure mechanisms.30 Burundi received 162 votes in October 2015 to sit on the Council for the next three years as well.31 At the same time, it is noteworthy that members need to position themselves – for instance on women’s rights, LGBTI rights, or on the death penalty – in front of the world community. Furthermore, through a HRC membership that reflects overall the composition of the entire community of States represented in the United Nations, the body can unfold more impact. Especially decisions of the Council that are reached through an inclusive, transparent, and cooperative process (approx. 70% of the Council’s resolutions are adopted by consensus), are more likely to be implemented as well, instead of being only declared. GA Resolution 60/251 did stipulate that “members elected to the Council shall uphold the highest standards in the promotion and protection of human rights, fully cooperate with the Council, and be reviewed under the universal periodic review 27

Ibid., para. 7.

28

For further information see also Ronen Steinke, Kompromisse mit Autokraten, Sueddeutsche Zeitung, 13 September 2015; BBC News, Concerns over new UN Human Rights Council members, available at: http://www.bbc.com/news/world-24922058 (accessed on 11 February 2016); Ashley Cowburn, Cartoons highlight anger at Saudi Arabia’s position as head of key UN human rights panel, The Independent, 3 January 2016, available at: http://www.independent.co.uk/news/world/middleeast/saudi-arabia-execution-sheikh-nimr-al-nimr-cartoons-un-human-rights-a6794391.html (accessed on 11 February 2016); Lauren Vriens, Troubles Plague UN Human Rights Council, Council on Foreign Relations, available at: http://www.cfr.org/international-organizations-and-alliances/troublesplague-un-human-rights-council/p9991 (accessed on 11 February 2016). 29

GA, 68th Session, 51st Plenary Meeting, UN Doc. A/68/PV.51 (2013), 3.

30

See HRC Res. 5/1 (2007) of 18 June 2007, II. A., paras. 47–52 and OHCHR, Press Release, Clarification issued in response to media queries on the role of the Saudi Arabian Ambassador in the Consultative Group, 24 September 2015, available at: http://www.ohchr.org/en/NewsEvents/Pages/ DisplayNews.aspx?NewsID=16496 (accessed on 11 January 2016). 31

GA, 70th Session, 42nd Plenary Meeting, UN Doc. A/70/PV.42 (2015), 4.

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mechanism, during their term of membership”.32 In fact, the GA decided that while the Council shall be open to all Member States of the UN, countries should take into account, when making their choice, the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto.33 To put this into practice, civil society organisations launched public hearings with candidate countries on a voluntary basis to examine their commitments and voluntary pledges. Furthermore, the Universal Rights Group, a Geneva-based nongovernmental organisation (NGO), has launched a website providing detailed information on a candidate’s human rights profile, including its track record in cooperating with the Council’s mechanisms and procedures.34 In addition, Resolution 60/251 provides that the General Assembly, by a twothirds majority of the members present and voting, may suspend the rights of membership in the Council if that member commits gross and systematic violations of human rights.35 Until today, this has happened only once in the history of the Council, when Libya’s membership, upon recommendation by the HRC, was suspended in March 2011.

B. Second Challenge: Relationship Between Geneva and New York

A second challenge faced by the HRC is the relationship between Geneva and New York, which is linked to the overall institutional human rights architecture within the UN system.36 Institutionally, the HRC is a subsidiary body of the GA. Every year, the President of the HRC presents the report of the Council to the universal body in New York; 32

GA Res. 60/251 of 3 April 2006, para. 9.

33

Ibid., para. 8.

34

See the Universal Rights Group’s website, available at: www.yourhrc.org (accessed on 27 December 2015). 35 36

GA Res. 60/251 of 3 April 2006, para. 8.

See also Bacre Ndyiah, Wien +20: Menschenrechte sind immer noch unteilbar, Vereinte Nationen 61 (2013), 147; Permanent Mission of Norway/Switzerland/Universal Rights Group, Glion Human Rights Dialogue: Reflections on the Future of the UN Human Rights Pillar, September 2014, available at: http://www.universal-rights.org/urg-policy-reports/glion-human-rights-dialogue-reflections-on-the-future-of-the-un-human-rights-pillar/ (accessed on 17 February 2016).

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any recommendation made to the GA is followed up by the Third Committee; and the Council’s financial demands are to be met by the Fifth Committee. In practice, the legal status of the HRC as a subsidiary body of the GA does not reflect “the centrality of human rights to the broader mission of the United Nations”37 and the body’s growing political weight. The current set-up also lacks conceptual and architectural clarity, given that the human rights pillar is standing next to the other two main pillars of the United Nations – peace and security and development – that are both governed by a principal Charter-based organ.38 In 2021, at the time of the next review of the HRC, this matter, i.e. the institutional arrangement governing the Council, will be discussed again.39 Other important facets of the relationship between Geneva and New York in the field of human rights relate to the resources made available to the UN human rights pillar, and the Council in particular. In this context, it is noteworthy that the UN regular budget devotes only around 3% to human rights.40 This figure demonstrates that the financial reality has not kept pace with the political demand for promoting and protecting human rights worldwide. Other important issues are the linkages between security and human rights, mainstreaming of human rights within the UN, for instance in its development policies and programmes, and the Human Rights Up Front initiative of the SecretaryGeneral.

C. Third Challenge: Efficiency and Functionality

The third challenge is the Council’s ongoing struggle with its efficiency and functionality, primarily caused by the increasing ‘inflation of the agenda’, risking that the

37 GA, Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for all, UN Doc. A/59/2005/Add.3 (2005), 1. 38

Ibid., 5.

39

GA Res. 65/281 of 20 July 2011, para. 3.

40

GA, Proposed Programme Budget for the Biennium 2016–2017, Section 24 Human Rights, UN Doc. A/70/6(Sect.24) (2015).

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Council may become a victim of its own success.41 The annual programme of work of the HRC reflects this phenomenon.42 For instance, the Council adopts on average around 100 resolutions per year and deals with thematic issues as broad as climate change, sustainable development, privacy, the freedom of religion, racism, terrorism, violent extremism, migration, children’s and women’s rights, water and sanitation, the rule of law, etc.43 Moreover, around 55 Special Procedures mandates, which have continued to expand in scope and sophistication, monitor, advise, and report on human rights issues on an annual basis.44 In 2015, two new mechanisms – a Special Rapporteur on the Right to Privacy and an Independent Expert on the Enjoyment of Human Rights by Persons with Albinism – were established to promote, protect, and further advance these human rights issues and impact surrounding debates.45 While it is important for the Council to be responsive to new challenges like privacy, (too) many mandates are simply continued year after year without genuine review or assessment whether the mandate should be maintained given the scarce resources and developments in specific areas.46 Since the establishment of Special Procedures in 1967, and despite finite resources, the Universal Rights Group found that “only once have thematic mandates ever been discontinued: with the merger of the independent expert on structural adjustment policies and the Special Rapporteur on the effects of foreign debt (in 2000)”.47

41 Subhas Gujadhur/Toby Lamarque, Ensuring Relevance, Driving Impact: The Evolution and Future Direction of the UN Human’s Rights Council’s Resolution System, January 2015, available at: http://www.universal-rights.org/wp-content/uploads/2015/02/URG_Report_ERDI-Jan2015print_layout.pdf (accessed on 29 December 2015). 42

HRC, Extranet, Calendar of Human Rights Council and Council related meetings 2015, available at: https://extranet.ohchr.org/sites/hrc/PresidencyBureau/Pages/CalendarPoW.aspx (accessed on 28 December 2015, username: hrc extranet, password: 1session). 43

GA, Report of the Human Rights Council, UN Doc. A/70/53 and Add.1 (2015).

44

OHCHR, Special Procedures of the Human Rights Council, available at: http://www.ohchr.org/ EN/HRBodies/SP/Pages/Welcomepage.aspx (accessed on 29 December 2015). 45

GA, Report of the Human Rights Council, UN Doc. A/70/53 (2015), 45, 77.

46

See also Limon/Piccone (note 12), 9 and 16.

47

Ibid., 16.

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D. Fourth Challenge: Effectiveness

The fourth challenge relates to the effectiveness of the HRC. Progress with regard to efficiency, the relationship with New York, or the question of membership is not an end in itself, but a means to better focus on the substance of the Council’s mandate and to be more effective. More effectiveness implies more time to respond to emerging and urgent crises and more opportunities to improve the Council’s impact on the ground. Obviously, it is not only morally necessary to address human rights violations and to “name the shame”, as the High Commissioner said at the opening of the 2015 June Council,48 but it is also in the international community’s interest, as a glance at current crises shows: At the beginning of the civil wars in Libya and Syria was the flagrant disrespect of human rights, further propelled in the course of the disintegration of these authoritarian States. This applies mutatis mutandis to the refugee crises: “No one who is safe from arbitrary arrest, torture or rape, no one who has clean water and enough to eat, no one who is able to find decent work – in short, no one whose fundamental human rights are respected, would embark on such a perilous journey.”49 Of course, proper implementation of the Council’s decisions is in part also a question of means available to the young institution, that is, a question of political will, resources, and tools.

IV. The German Presidency 2015 Over the course of the year, the Presidency devoted much attention to these core challenges and set clear priorities and goals beyond acting as ‘Chair’ of the Council’s meetings.50

48

High Commissioner for Human Rights, Opening Statement to the 29th Session of the Human Rights Council, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?News ID=16074&LangID=E (accessed on 9 February 2016). 49

Joachim Rücker, Weniger Worte machen: der Menschenrechtsrat, Frankfurter Allgemeine Zeitung, 28 May 2015, available at: http://www.faz.net/aktuell/politik/staat-und-recht/gastbeitrag-wenigerworte-machen-13614868.html (accessed on 11 January 2016). 50 See Statement attributable to President of the Human Rights Council, 9th cycle, 21 December 2015, available at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID= 16912&LangID=E#sthash.bNZYNtPk.dpuf (accessed on 6 January 2016).

424 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015 A. Membership

On membership, States play a key role with regard to the Council’s credibility in fulfilling its mandate. Despite an increasingly polarised world, the Presidency strongly advocated for constructive engagement and cooperation with the Council, its mechanisms, and procedures and welcomed, in New York and Geneva, the public hearings organised by NGOs prior to the HRC elections in the GA.51 In this context, it is of particular relevance how countries interact with the Council, its mechanism, and procedures. For instance, “[a]s of 11 November 2015, 114 UN Member States and 1 non-Member Observer State had extended a standing invitation to thematic special procedures.”52 To strengthen cooperation, the Chair of the Coordinating Committee of Special Procedures was for the first time invited to present the annual report of the Special Procedures to the Council,53 including providing a comprehensive picture of what these procedures did in 2014, which States cooperated, and which key problems for the system’s functionality were identified. By creating more transparency regarding cooperation of States with the Council and its procedures, as well as through the UPR mechanism that serves as a yardstick for progress over time, the UN and its Member States have the tools and instruments at their disposal to effectively address and implement the requirements for membership under GA Resolution 60/251.

B. Civil Society Participation

In the wider context of membership, the Presidency also put a particular emphasis on civil society participation. Civil society at large helps the Council to stay responsive and relevant. In today’s interconnected world, universal access to information means that people know better what they want; and people want their human rights. Civil society is at the core of human rights and at the core of the Human Rights Council’s 51 See Statement attributable to the President of the Human Rights Council, GA, 70th Session, 53rd Plenary Meeting, UN Doc. A/70/PV.53 (2015). See also Statement of the President of the Human Rights Council at the Organizational Session, 7 December 2015, available at: http://www.ohchr.org/EN/News Events/Pages/DisplayNews.aspx?NewsID=16850&LangID=E (accessed on 28 December 2015). 52 See Statement attributable to the President of the Human Rights Council, GA, 70th Session, 53rd Plenary Meeting, UN Doc. A/70/PV.53 (2015). 53 HRC, Report on the Twenty-First Annual Meeting of Special Rapporteurs/Representatives, Independent Experts and Working Groups of the Special Procedures of the Human Rights Council, UN Doc. A/HRC/28/41 (2015).

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work. It provides a mirror for States while at the same time it keeps States’ eyes and ears focused on early warning signs of impending crises. Undeniably, a strong civil society can help the HRC to have a strong impact on the ground. Therefore, reprisals or intimidation against those who cooperate or seek to cooperate with the Council and its mechanisms are unacceptable. The Presidency committed itself to proper follow-up in all cases that were brought to its attention throughout 2015, which were in relation to the Council, its mechanisms, and procedures, in order to ensure a safe environment for human rights defenders and civil society.54 Proper follow-up included detailed documentation of each case, appropriate follow-up with States concerned, the Bureau, and the Council as well as submission of the documented cases and follow-up actions to the UN Secretary-General for inclusion of these cases in his report to the HRC.55

C. Bridging the Institutional Gap Between New York and Geneva

In addition, the Presidency invited key actors from New York to Geneva to bridge the institutional gap between New York and Geneva and was actively engaged in strengthening the relationship with New York by raising the visibility of the Council’s work and by devoting much time and effort to address institutional questions. In this context, the Presidency established regular exchanges with the President of the GA, the Secretary-General, and the wider UN Secretariat, delegations in New York, and the Third and the Fifth Committee. The Presidency engaged, in particular, with the President of the GA and the Secretary-General to find a solution regarding HRC Resolution 24/24 on “Cooperation with the United Nations, Its Representatives and Mechanisms in the Field of Human Rights”.56 The Resolution provides, inter alia, for the establishment of an UNwide focal point on reprisals. Following the adoption in the HRC in September 2013, the Third Committee adopted a text later that fall to “defer consideration of and action 54

Id., Report of the Secretary General on Cooperation with the United Nations, Its Representatives and Mechanisms in the Field of Human Rights, 17 August 2015, UN Doc. A/HRC/30/29 (2015), paras. 5, 31, 37, 48. 55

Ibid.

56

HRC Res. 24/24 of 9 October 2013, in particular para. 7.

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on Human Rights Council resolution 24/24”.57 This was confirmed by the GA.58 At the end of the 69th session of the GA, however, the matter was closed and not deferred to the 70th session of the GA.59 Implementation of the Resolution is therefore expected soon.60 On resources, the Presidency advocated for a strong and independent High Commissioner and Office that is adequately resourced and able to meet the rising demand for ‘more human rights’ worldwide. Furthermore, the Presidency briefed for the first time the Organization of American States, and met with the European Parliament, the Working Party on Human Rights of the Council of the EU, in addition to addressing the Council of Europe. This was part of an effort to better inform these organisations about the Council’s ongoing work and priorities and to create synergies with regional human rights mechanisms. This will be followed up in 2016, pursuant to a Council resolution on “Regional Arrangements and the Protection of Human Rights”61 taken in 2015.

D. Efficiency

With regard to efficiency, 2015 witnessed the first sustained quantitative contraction in the output of the Council since the body’s establishment in 2006. For example, the number of resolutions adopted dropped compared to 2014 by 15%.62 Furthermore, the Council adopted – by consensus despite difficult negotiations – a President’s Statement on “Enhancing the Efficiency of the Human Rights Council”,63 deciding inter alia to have a more comprehensive and transparent overview of the work of the 57

GA Third Committee, Draft Resolution: Report of the Human Rights Council, UN Doc. A/ C.3/68/L.75 (2013), para. 2, adopted by vote 87-66-22. 58

GA Res. 68/144 of 18 December 2014, para. 2, adopted by vote 94-71-23.

59

GA, 69th Session, 105th Plenary Meeting, UN Doc. A/69/PV.105 (2015), 6–7.

60

See Statement attributable to the President of the Human Rights Council, GA, 70th Session, 53rd Plenary Meeting, UN Doc. A/70/PV.53 (2015). 61

HRC Res. 30/3 of 8 October 2015.

62

Marc Limon, The UN Human Rights Council in 2015: from Efficiency to Effectiveness, from Reaction to Prevention?, 31 December 2015, available at: http://www.universal-rights.org/blog/the-councilin-2015-from-efficiency-to-effectiveness-from-reaction-to-prevention/ (accessed on 16 February 2016). 63

HRC, Presidential Statement of 2 July 2015, UN Doc. HRC/PRST/29/1 (2015).

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Council, its mechanisms, and procedures, also in relation to the Third Committee of the GA, where much duplication takes place, and to develop a more distinguishable website for the HRC. Furthermore, it was decided to introduce improved modalities for the appointment of Special Procedures. This was the first adoption of a text, outside of a formal review, dealing with institutional reform. These achievements were also a result of continuous informal discussions, involving all relevant stakeholders.64

E. The Council’s Institutional Responsiveness

As part of the institutional responsiveness of the Council, 2015 saw new and improved ways of realising the Council’s mandate. For instance, the Presidency, jointly with the High Commissioner for Human Rights, introduced a new – though contested – format of more flexible and informal Council briefings, when deemed appropriate between the sessions. Accordingly, the Council addressed the migration and refugee crisis from a human rights perspective already in May and through an enhanced interactive dialogue in June. Other examples relating to responsiveness include Ukraine and Burundi. On Ukraine, the Council adopted by vote a resolution on “Cooperation and assistance to Ukraine in the field of human rights”,65 inviting the High Commissioner to present the findings of each of the periodic reports of the Human Rights Monitoring Mission in Ukraine, as part of interactive dialogues, even between formal Council sessions. On Burundi, the Council discussed the human rights situation in June, adopted a resolution in September, and acted again in December through a Special Session to uphold the pressure and to establish a human rights mechanism to monitor and report on the situation in Burundi. Both situations, Ukraine and Burundi, will further be discussed at the 31st session of the HRC in March 2016. The latter is also a good example on how the HRC and the UN Security Council can complement each other and mutually reinforce their actions. In the wider context of institutional responsiveness, the growing importance of the relationship between human rights, peace and security as well as the linkages between the 64 See e.g. Permanent Mission of Norway/Switzerland/Universal Rights Group, Glion Human Rights Dialogue: The Human Rights Council at 10: Improving Relevance, Strengthening Impact, September 2015, available at: http://www.universal-rights.org/wp-content/uploads/2015/08/Glion-2015Report.pdf (accessed on 4 January 2016). 65

HRC, Resolution 29/23 of 3 July 2015, para. 10.

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Human Rights and the Security Council were debated at a side event organised by Germany and Jordan, moderated by Ambassador Rücker, in the margins of the highlevel week of the 70th session of the GA and are also part of a recently published research report by the think tank Security Council Report.66

F. Effectiveness

On effectiveness, it is important to note, as it is often forgotten at the international level, that States are the primary recipients of calls made by the Council. States are first and foremost asked to take action and to cooperate with the Council, its mechanisms, and procedures. Throughout 2015, the Presidency aimed at raising awareness about this fact and to better enable the Council to address the long-standing ‘implementation gap’ – the difference between international norms and local reality – by focusing increasingly on implementation on the ground. For instance, as mentioned above, the Chair of the Coordinating Committee of Special Procedures was for the first time invited to present the annual report of the Special Procedures to the Council, resulting in a debate on key issues of effectiveness among members. In addition, the Presidency actively encouraged States to provide success stories and insights during general debates and side events to focus more on implementation, achievements, and best practices. Furthermore, Germany initiated a series of informal discussions outside of the formal session of the Council to reflect on how to improve the bodies’ effectiveness. More specifically, Council members and observers gathered to informally discuss effectiveness in regard to civil society participation, the overall architecture of the UN human rights pillar as well as the Universal Periodic Review. The informal discussion on the third cycle of the UPR, to start in 2017, focused thereby primarily on strengthening domestic implementation and on improving the measurement thereof. Overall, participants recognised that the UPR served as an important catalyst for discussions at the national level and facilitated coordination on human rights policies.

66 Security Council Report, Human Rights and the Security Council: An Evolving Role, 25 January 2016, available at: http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/research_report_human_rights_january_2016.pdf (accessed on 16 February 2016).

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In a world that is primarily occupied with managing acute crises, a human rightsbased view to conflicts provides a much-needed medium to long-term perspective: It can contribute to identifying the causes of future crises before a catastrophe occurs and it can therefore help to define interests. In this sense, human rights policy is Realpolitik. Strengthening the HRC and making it more efficient and effective is a permanent challenge for all stakeholders involved – States, civil society, the Presidency as well as the UN. And a stronger HRC and a stronger, more agile UN Human Rights pillar are needed if we want to uphold the universality of human rights and all fundamental freedoms and if we want to better implement the impressive normative framework established over the past seven decades – in the interest of the right holders, in the interest of all victims of human rights violations.

Confronting the Destruction of Cultural Heritage Used as a Tactic of War: A German-Iraqi Initiative in the UN General Assembly HENDRIK SELLE(

I. Three Thousand Years of History, Gone in a Single Day Several months after Sunni militants fighting under the banner of the ‘Islamic State in Syria and the Levant (ISIL)’ had captured Mosul, Iraq’s second largest city, word got out that some of its most venerable historic remains had been destroyed, among them the Shrine of the Prophet Jonah and Mosul’s library, which housed an important collection of ancient manuscripts. But it was a video distributed online on 26 February 2015 which alerted the world to ISIL’s aggression not only toward anyone connected to the secular administration or otherwise differing from their radical brand of Islam, but also toward the unique cultural heritage of Mesopotamia. The five-minute footage1 shows bearded men smashing statues and reliefs in Mosul’s museum with sledgehammers. An introductory explanation invokes the polytheism of the ancient Assyrians and Accadians, along with the historic precedent of the prophet Muhammad razing the idols in the Kaaba after taking Mecca. March 2015 brought further videos of bulldozers and explosives being used to demolish artefacts at the ancient Assyrian city of Nimrud and the world heritage site of Hatra. The shocking images of some of humankind’s most treasured heirlooms wantonly annihilated revived recent memories of similar atrocities: of the Buddhas of Bamiyan, blown to pieces by the Afghan Taliban in 2001, or the ancient manuscripts of Tim( 1

Counsellor, Permanent Mission of Germany to the United Nations, New York.

Originally released on Twitter by the self-proclaimed ISIL “Media Office of the Welayat of Niniveh”, now deleted, but available e.g. at: https://www.youtube.com/watch?v=174xwpnvcKA (accessed on 14 July 2015).

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buktu, incinerated by the Ansar el-Din militia in 2013. Together they point to a trend of targeted destruction of cultural heritage. What was new about the events in Iraq was the use of the media, designed – much like the filmed executions of hostages – to provoke shock and horror in the Western world and to impress followers attracted to the religious zeal of ISIL. The common trend lies in the use of such destruction as an instrument of terrorist warfare, which strives to intimidate and subjugate the population by erasing the outward signs of their identity. In Iraq this national identity is fragile to begin with, barely held together by weak institutions and memories of a common past. Like the persecution of the Yezidi or Christian communities, these acts of destruction are part of a larger conflict that has been ravaging the Middle East for years, bent on the segregation of previously intertwined ethnic and religious groups. The Director-General of the United Nations Educational, Scientific and Cultural Organization (UNESCO) has aptly described it as “cultural cleansing”.2 “It is because Daesh [ISIL] wants to destroy the people, that Daesh is destroying culture”, she said.3 In a medieval guise, the angry endeavour to vindicate a pure identity against the forces of globalisation is turning against its own past, unwittingly hastening rather than deflecting the onslaught of modernity. In the case of Iraq, this main driving force is compounded by two further motivations – one spiritual, the other very material. While mainstream religious scholars have consistently condemned such destruction as contrary to the teachings of Islam, the justification invoked by its perpetrators is rooted in the opposition to idolatry inherent in all monotheistic religions. Historically, Christians have not shrunk from similar acts against pagan art or, in the case of Byzantine and Calvinist iconoclasm, their own. On the other hand, reports indicate that what is presented as destruction is in fact often used to facilitate or camouflage the looting of antiquities, which are trafficked and sold to foreign collectors as a source of revenue for ISIL.

2

See United Nations Educational, Scientific and Cultural Organization (UNESCO) Media Services, Irina Bokova calls for immediate protection of the cultural diversity of Iraq, 8 August 2014, available at: http://www.unesco.org/new/en/media-services/single-view/news/irina_bokova_calls_for_ immediate_protection_of_the_cultural_diversity_of_iraq/#.VZ_oBJqkePA (accessed on 10 July 2015). 3

See UNESCO Media Services, “We stand together” to protect Iraq’s cultural heritage, says French President with UNESCO Director-General, 18 March 2015, available at: http://www.unesco.org/new/ en/media-services/single-view/news/we_stand_together_to_protect_cultural_heritage_says_french_ president_with_unesco_director_general/#.Vi-QA26o3_k (accessed on 27 October 2015).

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II. International Response As intended, news channels around the world picked up on the videos as vivid testimony of ISIL’s barbarism, adding a further dimension to the inhumanity of abductions and executions. Spontaneous outrage and condemnation soon became infused with an acute sense that this was about more than the fortunes of conflict in Iraq: It risked extinguishing forever a part of the collective memory of human civilisation – just as the expulsion of the Christians and Yezidis marked the abrupt end of communities and cultural traditions reaching back many centuries. It also highlighted the mortal danger which the crimes of ISIL pose to the identity, stability, and the very existence of Iraq. The United Nations (UN) system promptly denounced the destruction. UNESCO issued statements of increasing urgency condemning the events as “incitement”, “a turning point in the appalling strategy of cultural cleansing”, and “war crimes”, which UNESCO had brought to the attention of the Prosecutor of the International Criminal Court (ICC).4 The Organisation’s Director-General, Irina Bokova, visited Baghdad on 28 March 2015 to launch a social media campaign entitled “#Unite4 Heritage” as well as a Japanese-funded project to protect endangered archaeological treasures.5 On 21 April 2015, the UNESCO Executive Board passed a decision, drafted 4 See UNESCOPRESS, Director-General requests UN Security Council meeting on destruction of heritage in Mosul, 26 February 2015, available at: http://www.unesco.org/new/en/unesco/aboutus/who-we-are/director-general/singleview-dg/news/unesco_director_general_expresses_outrage_ following_terrorist_attacks_against_the_mosul_museum/#.Vabo8PmQP4o (accessed on 30 July 2015); id., UNESCO Director-General condemns destruction of Nimrud in Iraq, 6 March 2015, available at: http://www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/singleviewdg/news/unesco_director_general_condemns_destruction_of_nimrud_in_iraq/#.Vabou_mQP4o (accessed on 30 July 2015); id., UNESCO Director-General condemns destruction at Nimrud, 13 April 2015; available at: http://www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/ singleview-dg/news/unesco_director_general_condemns_destruction_at_nimrud/#.VaboTvmQP4o (accessed on 30 July 2015); ODG, UNESCO Director-General, “Destruction of Hatra marks a turning point in the cultural cleansing underway in Iraq” say Heads of UNESCO and ISESCO, 7 March 2015, available at: http://www.unesco.org/new/en/unesco/about-us/who-we-are/director-general/singleviewdg/news/destruction_of_hatra_marks_a_turning_point_in_the_cultural_cleansing_underway_in_ iraq_say_heads_of_unesco_and_isesco/#.VaboqfmQP4o (accessed on 30 July 2015). 5 See UNESCOPRESS, #Unite4Heritage campaign launched by UNESCO Director-General in Baghdad, 28 March 2015, available at: http://www.unesco.org/new/en/unesco/about-us/who-we-are/ director-general/singleview-dg/news/unite4heritage_campaign_launched_by_unesco_director_ general_in_baghdad/#.VabodfmQP4o (accessed on 30 July 2015); id., New UNESCO project launched in Baghdad to protect Iraqi cultural heritage, 28 March 2015, available at: http://www.unesco.org/new/

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by Italy and Spain, condemning destruction in Iraq, Syria, and Libya and “taking note” of a proposal for “protected cultural zones”.6 The UN Secretary-General went on record on 6 March 2015 calling on “political and religious leaders in the region to raise their voices” and stating that “the deliberate destruction of our common cultural heritage constitutes a war crime.”7 On 23 March 2015, the Polish delegation to the UN Human Rights Council read a statement on behalf of 137 UN Member States urging an immediate halt to the intentional destruction of cultural and religious heritage sites.8 Even before the attacks in Iraq, the UN Security Council (SC) had become concerned with the revenues which international terrorist groups were reported to gain by looting and trafficking Syrian antiquities. In late 2014, Russia had floated a draft Presidential Statement calling for measures against the oil trade which provides much of the financing of ISIL. The initiative, which equated the conflicts in Syria and Iraq and reinforced the Russian view of terrorism as the main cause of the Syrian crisis, was perceived as a quid pro quo for the Western demand to allow cross-border humanitarian deliveries into Syria, eventually enshrined in UN SC Resolution 2165 (2014). After initial hesitation by the United States (US), the Russian draft was considerably expanded in protracted Permanent Five (P5) consultations to include trafficking in cultural objects, kidnapping for ransom, banking, and the arms trade. It was finally adopted on 12 February 2015 as UN SC Resolution 2199 (2015). Reacting to the destruction in Mosul, the Council followed up with a press statement on 27 February 2015, strongly condemning the “barbaric terrorist acts” and repeating concern over the income generated by the looting of antiquities.9 Two months later, France and Jordan en/unesco/about-us/who-we-are/director-general/singleview-dg/news/new_unesco_project_launched_ in_baghdad_to_protect_iraqi_cultural_heritage/#.VabocvmQP4o (accessed on 30 July 2015). 6

UNESCO Executive Board Decision 196 EX/29, 24 March 2015.

7

UN Secretary-General, Statement Attributable to the Spokesman for the Secretary-General on the destruction of Nimrud in Iraq, 6 March 2015, available at: http://www.un.org/sg/statements/index. asp?nid=8439 (accessed on 30 July 2015). 8 Permanent Representation of the Republic of Poland to the United Nations Office in Geneva, Poland’s statement on the destruction of cultural heritage, 23 March 2015, available at: http://www. genewa.msz.gov.pl/en/news/poland_s_statement_on_the_destruction_of_cultural_heritage_?search Category=Text&search=true (accessed on 30 July 2015). 9 Security Council Press Statement on ISIL’s Destruction of Religious and Cultural Artefacts in Mosul, 27 February 2015, UN Doc. SC/11804-IK/700 (2015), available at: http://www.un.org/press/ en/2015/sc11804.doc.htm (accessed on 10 July 2015).

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convened an informal Arria formula meeting of Council members with representatives of the International Criminal Police Organization (INTERPOL) and UNESCO to discuss export control and prevention. In conformity with its remit under the UN Charter,10 however, the Security Council limited its deliberations on cultural destruction to aspects affecting international peace and security.

III. The General Assembly Initiative In early March 2015, a group of six UN Member States, including Iraq and Germany, met privately in New York to discuss a more comprehensive way ahead. On the one hand, there was a strong desire for further authoritative and vocal international counter-messaging. On the other, repeated statements by the Security Council without any perspective of enforcement risked weakening this response, while possibly fuelling the attention sought by ISIL and even provoking similar crimes. The General Assembly (GA), comprising all Member States, including the Islamic world, seemed a more suitable forum for promoting an initiative which was to express unified global rejection. But the way to get there would be rockier if the objective was consensus among 193 delegations on a meaningful text. Germany has a long history of archaeological cooperation with Iraq, especially through the German Archaeological Institute. It had initiated a GA resolution on the destruction of the Buddha statues at Bamiyan in Afghanistan in 2001.11 However, a considerably more ambitious text would be necessary this time. Against this background, Iraq readily agreed when Germany proposed a joint initiative for a new GA resolution. It was officially announced on 20 April 2015 at a High-Level Debate on Promoting Tolerance and Reconciliation by Iraq’s Foreign Minister Ibrahim alJaafari, who underlined that “the destruction and looting of Iraq’s cultural heritage is not only tantamount to war crimes and an irreplaceable loss to humanity, but also a vile attack on the efforts of the Iraqi government to achieve reconciliation and social cohesion between all Iraqis”.12 The Chargé d’Affaires of Germany, Ambassador 10

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

11

GA Res. 55/243 of 1 May 2001, entitled ‘The destruction of relics and monuments in Afghanistan’.

12

See Permanent Mission of Germany to the United Nations, Iraq and Germany Launch UN Initiative Against ISIS Vandalism of Cultural Heritage, Press Release, 21 April 2015, available at:

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Thoms, delivering his remarks in Arabic as a gesture of solidarity, stated that the attacks on Iraq’s cultural heritage were a test case for all of us; their own recent history had taught Germans that where books and works of art are burnt, human beings could be next.13

IV. Conceiving a Text Except for the short Bamiyan resolution, there was no precedent on which to model a new draft. The few UN GA resolutions which touched on related matters such as culture and development, crime prevention, or terrorism offered little help. In order to produce a zero draft as a starting point for negotiations, Germany and Iraq had to face three main questions: 1. How can the General Assembly usefully react to events on which its influence is so obviously limited? Let alone the fact that its resolutions are not legally binding, they would also carry little or no moral weight for the perpetrators of the crimes in question, acting in a territory in which neither Iraq nor any other Member State of the UN is currently able to exercise control. And even if they could make a difference, would it not be more pressing to address the killing and persecution of civilians before concerns over cultural property? 2. How could a balance be struck between a political message of support, which Iraq’s embattled government was hoping for, and advancing the international framework for the protection of cultural heritage in general? While no one was interested in a mere exercise of short-term publicity, the luxury of open-ended negotiations as ideally needed for a comprehensive landmark document was not available either. 3. And most difficult of all: How could a specific resolution on Iraq pass without addressing similar problems in many other parts of the world, including http://www.new-york-un.diplo.de/Vertretung/newyorkvn/en/__pr/press-releases/2015/20150421germany-and-iraq-on-cultural-heritage.html?archive=2984660 (accessed on 28 October 2015). 13

See id., General Assembly: Statement by Ambassador Heiko Thoms on “The promotion of tolerance and reconciliation”, 21 April 2015, available at: http://www.new-york-un.diplo.de/Vertretung/ newyorkvn/en/__pr/speeches-statements/2015/20150421-thoms-on-promotion-of-tolerance-andreconciliation.html?archive=3759636 (accessed on 3 November 2015).

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Iraq’s immediate neighbourhood? A generic text would not have answered the demand for a clear reaction to the recent outrage committed by ISIL, whereas any wording limited to a particular country was certain to elicit requests for the addition of further concerned cases, which in the charged atmosphere of Middle Eastern politics would be fiercely contested and might derail negotiations altogether. On this last question, the initiators decided to follow a two-pronged approach: The events in Iraq would be referred to specifically as the occasion of the resolution and its most blatant example (Preambular Paragraph 5, first half of Operative Paragraph 1, Operative Paragraph 7),14 but this reference would be followed by a general clause pointing to the global rise of similar incidents and measures to address them (Preambular Paragraph 6, second half of Operative Paragraph 1, Operative Paragraphs 12–14). While short of satisfactory for the systematic mind, this solution made the draft as water-tight as possible for negotiations. On substance, two main messages were aimed at. First, cultural destruction is used as a tactic of war; this is a new global trend which needs a global response. And second, such attacks need to be described and prosecuted for what they are – war crimes. These two messages would advance the international consensus on the protection of cultural heritage. The draft also mentioned a number of tangible measures that could be taken outside the areas controlled by ISIL, such as ensuring accountability for perpetrators beyond Iraq’s borders (Operative Paragraph 6), raising awareness among the population (Operative Paragraph 8), stopping the trafficking in antiquities (Operative Paragraphs 9, 11, 12, 14), and protecting endangered heritage (Operative Paragraphs 15 and 16).

V. Negotiations and Adoption The zero draft was presented to a cross-regional core group of countries with a known interest in the issue. This intermediate stage helped prepare the ground in the regional groups and win potential co-sponsors. On the basis of a consolidated text, the customary process of ‘informal informal’ consultations with the entire membership commenced with one round of general comments, followed by two full readings

14

GA Res. 69/281 of 28 May 2015, entitled ‘Saving the cultural heritage of Iraq’.

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in the space of three weeks. Input was also provided by UNESCO, the UN Office on Drugs and Crime, and INTERPOL. While the initiative was greeted with overwhelming support in general, delegations raised a number of specific concerns on substance which had to be addressed. Some questions concerned the scope of the resolution, specifically the extent of references to other actors beyond ISIL. Consensus was reached on the inclusion of some broader terms (Preambular Paragraph 7, Operative Paragraph 3, Operative Paragraph 10) when talking about future threats. Another discussion revolved around the call on Member States to ratify certain international conventions (Preambular Paragraph 2, Operative Paragraph 13), where the reluctance of some delegations to commit themselves had to be taken into account while preserving a meaningful appeal. The most difficult negotiations related to international humanitarian law, in particular the questions of war crimes and accountability (Operative Paragraphs 5–6). Could a general statement be made regarding war crimes without delving into the particulars of specific cases, which would have to be determined by a court of law? Should recourse to the ICC in The Hague be explicitly mentioned or remain implicit? The final text of the resolution restates a provision of customary international law using the words of the Rome Statute15 and calls on States to ensure accountability for violations of this and other relevant international legal instruments within their jurisdiction. In addition to Iraq’s own justice system, this could also include the application of universal jurisdiction in countries which provide for this – such as Germany – or a referral to the ICC under the conditions of the Rome Statute.16 All these points were ironed out in bilateral consultations. The partnership with Iraq as the concerned country helped Germany steer through the informals with the necessary urgency. The resolution was tabled under Agenda Item 14 ‘Culture of Peace’, moving directly to the plenary without first passing through a committee. Until the date of adoption it had won the sponsorship of a total of 91 Member States, including major

15 Cf. Art. 8 (2)(b)(ix) Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 90 (Rome Statute); Rule 38 Customary International Humanitarian Law compiled by the International Committee of the Red Cross, available at: https://www.icrc.org/customary-ihl/eng/docs/v1_ rul_rule38 (accessed on 30 July 2015). 16 While the text of the resolution contains no explicit reference to the ICC, of which Iraq is not a member, it could be seen as alluding to it by quoting the Rome Statute in Operative Para. 5 and mentioning “other relevant international legal instruments” in Preambular Para. 2.

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Islamic countries such as Saudi Arabia, Turkey, Indonesia, or Iran.17 Remarkably, the list of co-sponsors brought together the protagonists of the Sunni and Shia camps in the Middle East as well as Israel. On 28 May 2015, Deputy Secretary-General Jan Eliasson opened the meeting of the General Assembly by highlighting the historic responsibility of the international community to halt the destruction of its common heritage. At stake, he said, are the core values of the United Nations.18 Maria Böhmer, Minister of State of Germany, introducing the draft to a full General Assembly hall, stressed that ISIL’s attacks target not only antiquities, but Iraq’s national identity itself. The world needed to rise united against such attempts to erase its history and prosecute them as war crimes.19 After adoption without a vote (‘by consensus’), UNESCO Director-General Irina Bokova praised the resolution as a turning point in the international approach to cultural heritage as a factor of stability. “The deliberate destruction of cultural heritage is a war crime – it is used as a tactic of war, in a strategy of cultural cleansing that calls on us to review and renew the means by which we wish to respond and to defeat violent extremism.”20

17

In addition to all European Union and Western European and Other Group members, the resolution was co-sponsored by ten Eastern European (Albania, Armenia, Bosnia and Herzegovina, Georgia, Former Yugoslav Republic of Macedonia, Moldova, Montenegro, Russia, Serbia, Ukraine), eleven African (Algeria, Angola, Egypt, Eritrea, Ethiopia, Libya, Mali, Morocco, Nigeria, Somalia, Tunisia), 21 Asian-Pacific (Afghanistan, Bahrain, China, Indonesia, Iran, Iraq, Japan, Jordan, Kuwait, Lebanon, Mongolia, Oman, Palau, Timor-Leste, Saudi Arabia, Sri Lanka, Syria, Tajikistan, Turkmenistan, United Arab Emirates, Yemen) and eight Latin-American/Caribbean countries (Argentina, Bolivia, Chile, Costa Rica, Cuba, Dominican Republic, Peru, Venezuela). 18

UN GA, 91st Plenary Meeting, UN Doc. A/69/PV.91 (2015), 3–4.

19

Ibid., 4–5.

20

UNESCO Director-General, “Saving the cultural heritage of Iraq” – Director-General welcomes Adoption of the UN General Assembly Resolution, 28 May 2015, available at: http://www.unesco.org/ new/en/unesco/about-us/who-we-are/director-general/singleview-dg/news/saving_the_cultural_ heritage_of_iraq_director_general_welcomes_adoption_of_the_un_general_assembly_resolution#. VZ_ifJqkePA (accessed on 10 July 2015).

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VI. Follow-Up On the very day the resolution was adopted, reports from Iraq suggested that ISIL had blown up part of the citadel of Ashur, another world heritage site.21 Around the same time, the group had conquered the Syrian city of Palmyra with its world-famous archaeological remains, where similar acts of vandalism were later reported.22 While it would probably have been fanciful to expect that ISIL would be deterred by the UN General Assembly’s pronouncements, these events underlined the urgency for Iraq and its partners to implement the provisions of the resolution practically. In June, UNESCO launched an updated Emergency Red List of Iraqi Cultural Objects at Risk, some of which had apparently already been advertised on eBay. Later that month, the Global Coalition ‘Unite for Heritage’ was inaugurated during the 39th session of the World Heritage Committee meeting in Bonn, Germany, including UNESCO, INTERPOL, Iraq, the International Council of Monuments and Sites, museums, and others.23 Germany intensified its work for an overhaul of its domestic as well as EU legislation in order to make certificates of provenance mandatory for importers of cultural property.24 Italy has offered its experience with a specialised police force for cultural heritage protection. Work also continued on documenting, digitising, and updating inventories of Iraqi cultural heritage items under threat. As Iraq’s security forces begin to reclaim territory from ISIL, attention will need to be given to the question of how to ensure the protection of antiquities from conflict and

21

Gianluca Mezzofiore/Arij Limam, Iraq: Isis ‘blows up Unesco world heritage Assyrian site of Ashur’ near Tikrit, International Business Times, 28 May 2015, available at: http://www.ibtimes.co.uk/ isis-blows-unesco-world-heritage-assyrian-site-ashur-near-tikrit-1503367 (accessed on 30 July 2015). 22

BBC, Islamic State militants ‘destroy Palmyra statues’, 2 July 2015, available at: http://www.bbc. com/news/world-middle-east-33369701 (accessed on 30 July 2015); The Guardian, Isis militants destroy 2,000-year-old statue of lion at Palmyra, available at: http://www.theguardian.com/world/ 2015/jul/02/isis-militants-destroy-palmyra-stone-lion-al-lat (accessed on 26 October 2015). 23

UNESCO, Launch of Global Coalition “Unite for Heritage” in Bonn, available at: https://en. unesco.org/news/launch-global-coalition-unite-heritage-bonn#sthash.UCeiG3Os.dpuf (accessed on 30 July 2015). The ‘Bonn Declaration’ adopted at the meeting on Germany’s initiative reiterated the condemnation of ISIL’s destruction in Iraq, while highlighting events in neighbouring Syria in different terms as “exposure of and use of cultural heritage sites in military operations by the parties”, available at: http://www.39whcbonn2015.de/highlights-and-results/bonn-declaration.html (accessed on 26 October 2015. 24

The federal government is in the process of drafting a new Law on the Protection of Cultural Property (Kulturgüterschutzgesetz).

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looting. This could also be an issue for the stabilisation task force set up in the framework of the international anti-ISIL coalition. In a less visible but equally important way, GA Resolution 69/281 has created a reference point for States and international organisations in formulating a global response to the threats facing cultural heritage and their implications for peace and security. Only an emerging international consensus on the importance of protecting culture for the survival of humankind – as in the cases of human rights, biodiversity, or climate – will ultimately empower societies and States to withstand the barbarism of ISIL and any of its future reincarnations.

The Deployment of the German Armed Forces to the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) STEPHANIE SCHLICKEWEI(

I. Introduction On 13 November 2015, heinous terrorist attacks in the French capital Paris rattled not only the Republic of France and its European partners but put the whole world in a kind of shock. The reaction taken by the French authorities in a military way was not long to be waited for. Already in the following days France struck back by notably intensifying the direct attacks on the Syrian State undertaken by its armed forces proclaiming its right to self-defence. Foreseeing the need for a unified and coordinated approach in the long run, only a few days later, on 17 November 2015, the French Minister of Defence, Jean-Yves Le Drian, officially called upon his European Union (EU) Member States’ counterparts for the support of their States in the fight against the terrorist organisation, the so-called Islamic State, which had claimed responsibility for these attacks, referring to the European mutual assistance clause enshrined in Article 42 (7) Treaty on European Union (TEU),1 which the French President, François Hollande, had officially invoked the previous day.2 It had been the first time

( Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg and Doctoral Candidate at the Walther Schücking Institute for International Law at the University of Kiel. 1 Anon., EU verspricht Frankreich jede Hilfe – Paris beansprucht Beistandsklausel, Frankfurter Allgemeine Zeitung (FAZ), 18 November 2015, 1; Michaela Wiegel, Allein unter Freunden, FAZ, 18 November 2015, 3; Treaty on European Union, 24 December 2002, OJ 2002 C 325, 5 (consolidated version). 2 Anon., Discours du président de la République devant le Parlement réuni en Congrès, 16 November 2015, available at: http://www.elysee.fr/declarations/article/discours-du-president-de-la-republiquedevant-le-parlement-reuni-en-congres-3/ (accessed on 2 January 2016).

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in history that an EU Member State availed itself of this right.3 Among the remaining 27 EU Member States besides France,4 also Germany generally followed the request assuring its support to its French neighbours. While still refraining from going into greater details about how Germany’s support may be realised, it was nevertheless already implied that it would rather be geared towards military operations in other countries but Syria, such as the Repulic of Mali5, as well as limited to air transportation in lieu of direct support to the combat operations.6 In view of the prevailing assumption that Germany generally exercises a policy of reluctance regarding its military contributions to international missions, this approach did not come as a surprise. Since the French troops were also actively involved in Mali, an expansion of Germany’s military contribution to the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA) would also greatly contribute to the relief of the French troops on the whole. However, already prior to the attacks in Paris, the German Minister of Defence had proclaimed a corresponding plan of the German government to expand the German deployment in the following months.7 Therefore, by this reaction the impression was created that the German government was seeking a way out of any direct involvement of the German Armed Forces in the fight against the so-called Islamic State preferring an engagement in Mali to Syria.8 With MINUSMA’s deployment being considered as the most dangerous mission which the United Nations (UN) are currently undertaking, any such statement needs to be scrutinised, especially since the German Federal Cabinet currently envisages to increase the number of German troops from 150 to 650 German soldiers.9

3

See supra, note 1.

4

Anon., Remarques introductives de la Haute Représentante et Vice-Présidente Federica Mogherini lors de la conférence de presse avec Jean Yves Le Drian, Ministre de la Défense Français, 17 November 2015, available at: http://www.eeas.europa.eu/statements-eeas/2015/151117_01_fr.htm (accessed on 2 January 2016). 5

FAZ, EU verspricht Frankreich jede Hilfe (note 1).

6

Anon., Lieber Mali als Syrien, FAZ, 18 November 2015, 2.

7

Anon., Bis zu 700 Soldaten der Bundeswehr nach Mali, FAZ, 28 October 2015, 1; Marco Seliger, Erkundung einer neuen Welt, FAZ, 28 October 2015, 2. 8

FAZ (note 6).

9

Anon., Bartels: Mali ist so gefährlich wie Afghanistan, FAZ, 4 January 2016, 4.

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Germany has been supporting the endeavours of MINUSMA to restore the constitutional order in Mali since 2013. Since the developments following the Paris attacks, the deployment of the German Armed Forces in Mali is once again increasingly appearing on the agenda of German policy. While by now the German government also yielded to requests regarding the engagement of the German Armed Forces against the so-called Islamic State,10 the expansion of the German contribution to MINUSMA is not off the table yet. Therefore, the contribution Germany has been rendering in Mali until the present day deserves a closer examination. This article will analyse Germany’s engagement in the Republic of Mali supporting MINUSMA from the start of the international involvement in 2013 leading to a direct evaluation and assessment of this involvement in light of German constitutional law as well as international law.

II. (Initial) Situation in Mali A growing presence of terrorist and other extremist groups in the Northern part of the Malian Republic has been recorded for more than a decade.11 As a result, the governmental structure in the Republic of Mali has been eroding for a long time. The fragmentation of Mali exacerbated in the beginning of 2012, by the time clashes were unleashed in the Northern part of the country.12 The Tuareg rebel movement known as National Movement for the Liberation of Azawad (MNLA) launched several attacks against Malian governmental forces with the support of other Islamic armed

10 With talks continuing on a bilateral basis between France and Germany, it may or may not come as a surprise that the German government about-faced on its prior assessions: In a joint statement of 26 November 2015, the German Minister of Defence and the German Minister of Foreign Affairs declared that Germany’s military support would – against all prior indications – not only be limited to the efforts undertaken within the Malian Republic itself but would also involve a direct military support of the French authorities in their fight against the so-called Islamic State in Syria. Bundesministerium der Verteidigung, Gemeinsames Statement zur Unterstützung im Anti-Terror-Kampf, 27 November 2015, available at: http://www.bmvg.de/portal/a/bmvg/!ut/p/c4/NYvBCsIwEET_aLcBweKtoRcvHg Sp9SJps4SFJinrtl78eJNDZ-DB8Bh8YWlyOwennJNb8InjzJfpC1PcA0RO_FES3iJ4kvexQchTwqHe PcGcE2mlUlIuDOI0C6xZdKlmEykG2OPYmN42pjlift3pZofHuW37q73jGmP3B7609-c!/ (accessed on 2 January 2016). 11 12

International Crisis Group (ICG), Mali: Avoiding Escalation, Africa Report No. 189 (2012), 1.

UN Security Council (SC), Report of the Secretary-General on the Situation in Mali, UN Doc. S/2012/894 (2012), para. 4.

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movements and deserters from the Malian military.13 Since that time Mali is facing a severe internal crisis. On 22 March 201214 the country’s fragile situation additionally deteriorated with a military coup d’état staged by a military junta, the National Committee for the Rectification of Democracy and the Restoration of the State, led by Captain Amadou Sanogo,15 against Amadou Toumani Touré, elected president at that time.16 With the seizure of power, the military junta did not only suspend the Constitution of the Malian Republic but also dissolved any former governmental institutions driving the country into a power vacuum.17 This inner turmoil was being exploited by the armed Tuareg rebels in the North MNLA, who already on 6 April 2012 proclaimed their new State, the independent State of Azawad.18 However, it goes without saying that this ‘new State’ was never recognised internationally.19 In the following weeks, close allies of Al Qaida Islamic extremists managed to seize control of major parts of the Northern part of Mali, amounting to about two thirds of Mali’s overall land surface towards the end of the year.20 The following engagement and mediation efforts of the Economic Community of West African States (ECOWAS)21 led to the signing of a Framework Agreement under the auspices of ECOWAS with the revolters on 6 April 2012, which aimed at the restoration of the constitutional rule and order as well as the national unity among 13

Ibid.

14

Ibid., para. 5; UN SC Res. 2056 of 5 July 2012, Recital 3 Preamble.

15

UN SC (note 12), para. 5.

16

ICG (note 11), i; Economic Community of West African States (ECOWAS), Press Release No. 074/2012, ECOWAS Reaction to the Coup d’Etat in Mali, 22 March 2012, available at: http:// news.ecowas.int/presseshow.php?nb=074&lang=en&annee=2012 (accessed on 2 January 2016). 17

UN SC (note 12), para. 5.

18

Ibid., para. 6.

19

UN SC Res. 2056 of 5 July 2012, Recital 9 Preamble.

20

UN SC (note 12), para. 6.

21

Already five days after the military coup in Mali the ECOWAS Heads of State and Government agreed to alleviate the crisis in Mali with a mediation procedure led by the President of Burkina Faso, Blaise Campaoré. Nevertheless, in case Campaoré would not succeed in his efforts, ECOWAS Heads of State and Government further decided to activate the ECOWAS Standby Force to stand ready for a prompt deployment if needed, Final Communiqué from the extraordinary summit of ECOWAS Heads of State and Government, No. 083/2012, 27 March 2012; see also UN SC (note 12), para. 7.

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the country, listing as a Roadmap several measures to be taken to achieve this goal.22 Inter alia, the agreement stipulated the establishment of the Transitional Government23 as well as the implementation of free, transparent, and fair presidential elections by April 2013 or as soon as technicalities allow.24 Unfortunately, the Roadmap lacked detailed provisions for an effective transition since a timeline for the realisation and adoption of the relevant legislative and operational measures was lacking, as were concrete organisational steps for the implementation of the elections.25 While the Transitional Government, the Government of National Unity, was successfully announced on 20 August 2012,26 the internal situation within the following months further worsened when the Prime Minister resigned and the Transitional Government was already dismissed again on 11 December 2012.27 These developments led to an enormous suffering of Mali’s population and also to broad destructions of valuable parts of Mali’s world cultural heritage.28 Furthermore, it was also implied that any additional deterioration of the situation weakening the Malian State’s stability might lead to the country becoming a safe haven for terrorist groups as well as to an increase of human trafficking, arms trade, and drug dealing capable of threatening the stability within the whole Western African region.29 The security situation in the North did not only remain fragile with continuous attacks by the terrorist and extremist movements but underwent further significant deterioration in January 2013.30 On 10 January 2013, the terrorist, extremist, and armed groups were even able to make some advances into the Southern part of the 22 UN SC (note 12), para. 7; UN SC Res. 2056 of 5 July 2012, Recital 4 Preamble; UN SC Press Statement on Mali, 10 April 2012, available at: http://www.un.org/press/en/2012/sc10603.doc.htm (accessed on 2 January 2016); UN SC Res. 2071 of 12 October 2012, Recital 15 Preamble. 23

UN SC (note 12), para. 7.

24

UN SC Res. 2085 of 20 December 2012, para. 1; UN SC Res. 2071 of 12 October 2012, Recital 15 Preamble. 25

UN SC (note 12), para. 7.

26

Ibid., para. 9.

27

UN SC Res. 2085 of 20 December 2012, para. 4.

28

German Parliament (Deutscher Bundestag), Deployment of German Armed Forces to Support AFISMA, 19 February 2013, Bundestagsdrucksache (BT-Drs.) 17/12368, 4. 29 30

Ibid.

UN SC, Report of the Secretary-General on the Situation in Mali, UN Doc. S/2013/189 (2013), para. 3.

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country.31 In response, the Transitional Authorities of Mali, a former French colony, directly called on the Republic of France for its support to stop the offensive and advancement of the Islamist enemies towards the Malian South.32 Subsequently, after only one day, on 11 January 2013 France started to despatch troops for a military combat operation on the request of the Malian Transitional Authorities called Opération Serval,33 officially deployed with the aim to support the Malian Armed Forces in blocking the advance of the Islamists towards the Southern part of the country and also recapturing the occupied territories in the North.34

III. United Nations Reaction In comparison to the direct and active response to the military overthrow of the Malian government in March 2012 by ECOWAS,35 it took a few months until the UN itself decided to get actively involved in the events on site by the end of 2012. Nevertheless, the Security Council (SC) of the UN was already previously aware of the rapidly deteriorating security and humanitarian situation in the country and determined that the situation in Mali constituted “a threat to international peace and security in the region” in July 2012.36 While acting under Chapter VII Charter of the United Nations (UN Charter),37 the SC still refrained from mandating proactive measures regarding the involvement of an external military deployment.38 However, in its following Resolution 2071 (2012) of 12 October 2012 the SC held out the prospect 31

UN SC Res. 2100 of 25 April 2013, Recital 4 Preamble.

32

UN SC (note 30), para. 4; Anon., Hollande schließt Kampfeinsatz in Mali nicht aus, FAZ, 12 January 2013, 1. 33

The operation named after the wild African small cat serval had retrospectively been approved and authorised by UN SC Res. 2100 of 25 April 2013, para. 18. Today Opération Serval is converted and replaced by Opération Barkhane which comprises the former operation by the French military in Mali as well as Opération Epervier, which was the former French mission in Chad. More information on Opération Barkhane by the French Ministry of Defence is available at: http://www.defense.gouv.fr/operations/ sahel/dossier-de-presentation-de-l-operation-barkhane/operation-barkhane (accessed on 2 January 2016). 34

UN SC (note 30), para. 4.

35

See supra, note 21.

36

UN SC Res. 2056 of 5 July 2012, Recital 16 Preamble.

37

Charter of the United Nations, 26 June 1945, UNCIO 15, 335 (UN Charter).

38

Compare to UN SC Res. 2056 of 5 July 2012, paras. 1 et seq.

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of the authorisation of such a deployment.39 Before, in Resolution 2056 (2012), the SC had already officially taken note of a motion brought forward by ECOWAS and the African Union requesting the authorisation of an ECOWAS stabilisation force by a UN SC mandate.40 Following, analogous queries were also sent by the Transitional Authorities of Mali to ECOWAS and to the Secretary General of the UN.41 With the aggravating security situation in the occupied territories of the Northern part of the country and the further growing threat caused by the terrorist groups, the Transitional Authorities in Mali were aware that they were in great need of active international support in the form of military assistance supporting the Malian troops in their efforts to restore the constitutional order and territorial integrity of the country. In December 2012, the SC finally followed these official requests filed by the Transitional Authorities of Mali and by ECOWAS and decided to authorise an African-led International Support Mission in Mali (AFISMA) with UN SC Resolution 2085 (2012) of 20 December 2012.42 However, in January 2013, when the situation in Mali further deteriorated, the deployment of the mission under the auspices of ECOWAS had not yet been realised, which prompted the SC in view of the aggravating security situation in Mali to directly and precisely once again call for a rapid deployment of AFISMA reiterating its own determination to pursue the full implementation of its Resolution 2085 (2012) on 10 January 2013.43 This led to an acceleration of the deployment of the AFISMA mission44 considering that already the next day the Chairman of ECOWAS Authority of Heads of State and Government announced his decision to immediately deploy ECOWAS troops in line with UN SC Resolution 2085 and according to the previous decisions taken by the Authority of Heads of State and Government on Mali and within the framework of AFISMA.45 39

UN SC Res. 2071 of 12 October 2012, paras. 6, 7.

40

UN SC Res. 2056 of 5 July 2012, para. 17.

41

UN SC (note 12), para. 49; UN SC Res. 2071 of 12 October 2012, para. 2.

42

UN SC Res. 2085 of 20 December 2012.

43

UN SC Press Statement on Mali, 10 January 2013, available at: http://www.un.org/press/en/ 2013/sc10878.doc.htm (accessed on 2 January 2016). 44 45

UN SC (note 30), para. 4.

Communiqué of the Ecowas Chairman, His Excellency Alassane Ouattara Chairman of the ECOWAS Authority of Heads of State and Government, on Mali, No. 005/2013, 11 January 2013, available at: http://news.ecowas.int/presseshow.php?nb=005&lang=en&annee=2013 (accessed on 2 January 2016). This statement was reindorsed by the President of the ECOWAS Commission with his statement on the next day, Statement of the President of the Ecowas Commission on the situation

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AFISMA was authorised to “take all necessary measures” when undertaking its efforts to support the Malian authorities in their endeavours to recapture control over all parts of the Malian country, to protect the population, and to restore security.46 While ECOWAS from then on actively worked on the rapid positioning of the AFISMA troops, nevertheless in the following month the deployment of a mission under the auspices of the UN was directly requested by the Transitional Authorities of Mali as well as by the President of the ECOWAS Commission.47 The UN SC once again followed the demand and accepted the request deciding on 25 April 2013 with its Resolution 2100 (2013) to establish MINUSMA and to authorise the transfer of the authority from AFISMA to MINUSMA on 1 July 2013.48 The UN mission was authorised to comprise up to 11,200 military personnel49 alongside 1,440 police personnel,50 thus constituting the third largest UN peacekeeping mission in Africa at that time.51 With the formation of MINUSMA and the transfer of power, AFISMA’s mandate was being terminated and parts of AFISMA’s contingent were being integrated in the new mission. Adopting the Resolution under Chapter VII UN Charter, the SC allowed for the use of force with MINUSMA troops being authorised “to use all necessary means, within the limits of its capacities and areas of deployment.”52 In comparison to AFISMA’s mandate, which was mainly geared towards the support of the Malian authorities in recovering control over all parts of the country to restore the overall territorial integrity of Mali while also rebuilding their capacities, MINUSMA’s in Mali, H.E Kadre Desiré Ouédraogo President of the ECOWAS Commission, No. 006/2013, 12 January 2013, available at: http://news.ecowas.int/presseshow.php?nb=006&lang=en&annee=2013 (accessed on 2 January 2016). 46

UN SC Res. 2085 of 20 December 2012, para. 9.

47

A letter dated 12 February 2013 from Dioncounda Traoré, interim President of the Republic of Mali, transmitted with a letter dated 25 February 2013 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2013/113 (2013); see also the reference to the letter in UN SC (note 30), para. 1; UN SC Res. 2100 of 25 April 2013, 3. 48

UN SC Res. 2100 of 25 April 2013, para. 7.

49

Ibid., para. 12.

50

Ibid.

51

African Union, Press Release, AFISMA Transfers its Authority to MINUSMA, 1 July 2013.

52

This time, however, the authorisation for the use of force did not comprise all parts and elements of its mandate, UN SC Res. 2100 of 25 April 2013, para. 17.

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mandate was designed broader and more comprehensively. In view of the successful developments following AFISMA’s and the French troops’ fielding, which led to the recovery of control over major parts of the Northern country, the new mandate was also aiming at a long-term political solution supporting the Malian authorities in their endeavours to implement the political processes planned by the Transitional Roadmap while continuously endeavouring to stabilise and restore the security situation on the ground. However, despite some positive developments, the country was still in need for continued assistance on an international basis. Therefore, MINUSMA was inter alia mandated to re-establish the Malian State authority across the country and stabilise key population centres53 (specifically in the Northern part of the country),54 to further assist the Malian government in the implementation of the Roadmap Agreement aimed at transition,55 to further promote and protect human rights,56 and to protect not only the Malian population but also UN personnel57 as well as to further deliver support for humanitarian assistance,58 cultural preservation,59 and national and international justice.60 Within the same Resolution the SC additionally also authorised France directly “within the limits of their capacities and areas of deployment, to use all necessary means.”61 The French Opération Serval was accordingly deployed as a parallel mission to MINUSMA assigned to support the UN Mission whenever necessary due to “imminent and serious threat upon request of the Secretary-General”.62 On 25 June 2014 the SC in its Resolution 2164 (2014) further extended the mandate of MINUSMA until the end of June 201563 authorising the peacekeeping oper53

UN SC Res. 2100 of 25 April 2013, para. 16 (a).

54

Ibid., para. 16 (a)(i).

55

Ibid., para. 16 (b).

56

Ibid., para. 16 (d).

57

Ibid., para. 16 (c).

58

Ibid., para. 16 (e).

59

Ibid., para. 16 (f).

60

Ibid., para. 16 (g).

61

Ibid., para. 18.

62

Ibid.

63

UN SC Res. 2164 of 25 June 2014, para. 11.

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ation once again “to take all necessary means to carry out its mandate within its capabilities and its areas of deployment”.64 Its primary responsibilities stayed almost the same, namely the stabilisation of the key population centres,65 the promotion of the national reconciliation and dialogue process,66 as well as the re-establishment of the Malian State authority, especially regarding the redevelopment of the Malian security sector.67 Accordingly, as Mali further continued with appropriate action to restore its State sovereignty, MINUSMA remained in the field to support the political process concerning the national dialogue and the reconciliation efforts among the Malian society, greatly needed in view of its various diverse demographic groups. In the following year on 29 June 2015, the SC once more extended MINUSMA’s mandate through its Resolution 2227 (2015),68 developing and aligning the mission’s tasks with the national political developments recently undertaken in Mali especially in view of the signing of the Agreement on Peace and Reconciliation in Mali in May and June 2015, while once again authorising MINUSMA “to take all necessary means to carry out its mandate, within its capabilities and its areas of deployment”.69 The peace agreement includes various reforms that shall help the country in its long-term stabilisation. Accordingly, the SC authorised MINUSMA inter alia “to support, monitor and supervise the implementation of the ceasefire arrangements”,70 “to support the implementation of the Agreement on Peace and Reconciliation in Mali”,71 to further promote reconciliation and dialogue,72 to further work towards the stabilisation of the key population centres and the protection of civilians,73 as well as to pro-

64

Ibid., para. 12.

65

Ibid., para. 13 (a)(i).

66

Ibid., para. 13 (b).

67

Ibid., para. 13 (c).

68

UN SC Res. 2227 of 29 June 2015.

69

Ibid., para. 13.

70

Ibid., para. 14 (a).

71

Ibid., para. 14 (b).

72

Ibid., para. 14 (c).

73

Ibid., para. 14 (d).

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mote and protect human rights,74 and to contribute to a stabilised environment to ensure the delivery of humanitarian assistance.75 Currently, the mandate of MINUSMA is due to end on 30 June 2016.76

IV. Legal Assessment of Germany’s Contribution to the UN Mission in Mali77 A. Procedural Aspects

Following the reiterated call of the UN SC in January 2013 in terms of the deployment of AFISMA in direct reaction to the terrorist groups gaining ground towards the Southern part of Mali, the German federal government decided on 19 February 2013 to file a request to the German Parliament (Deutscher Bundestag) for the authorisation of the despatch of German Armed Forces in support of AFISMA as well as the French troops on the basis of SC Resolution 2085 (2012).78 Such a request is generally a necessary procedure for any armed deployment of the German Armed Forces abroad, as only with the German Parliament’s consent to a military mission the German Armed Forces are entitled to legitimately execute their mission.79

74

Ibid., para. 14 (e).

75

Ibid., para. 14 (f).

76

Ibid., para. 12.

77

Beyond the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), the Federal Republic of Germany is rendering support in Mali in a number of other areas. Up to 350 additional soldiers of the German Armed Forces are for example also in the field as part of the European Union Training Mission Mali (EUTM Mali), which is implemented by the European Union and geared to restore the manpower of the Malian military forces. German police officers are also rendering assistance in the civilian capacity building mission in Mali (EUCAP Sahel Mali), which is aimed at training and advising the Malian police. While MINUSMA may be classified as a military mission, both European-led missions are concentrating on the civilian field. In addition to this, Germany is also delivering support in the humanitarian field promoting the general development within the country. 78 79

German Parliament (note 28).

Silja Vöneky/Rüdiger Wolfrum, Die Reform der Friedensmissionen der Vereinten Nationen und ihre Umsetzung nach deutschem Verfassungsrecht, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) 62 (2002), 569, 598 et seq.

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This legal procedure does not derive from the wording of the German Basic Law (Deutsches Grundgesetz, BL)80 itself, since the BL is silent on the relevant procedure regarding the deployment of the German Armed Forces abroad.81 This gap was filled by a decision of the German Federal Constitutional Court (Bundesverfassungsgericht, FCC) in 1994,82 in which it established the principles on the deployment of the German Armed Forces abroad. In this first decision on the armed deployment of the German Armed Forces abroad, the Court decided that each and every armed deployment of the German Armed Forces abroad requires the constitutive consent of the German Parliament and that this consent, in principle, needs to be applied for and obtained in advance, before the mission is deployed.83 Based on the overall context of the military constitutional regulations in the Basic Law (such as Articles 45a, 45, 87a (1)(2), and 115a (1)(1) BL) and in light of the German constitutional tradition since 1918, the FCC legally explained this concept with the deduction of the Parliament’s consent as a general principle of the BL.84 For this very reason the German Armed Forces are also being called an army of the parliament (Parlamentsheer).85 Since that time, the FCC reiterated the, in principle, absolute necessity of the parliamentarian consent on several occasions.86 On the basis of this established jurisprudence the procedure was transformed into the German Parliamentary Participation Act (Par-

80

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 23 December 2014, BGBl. I, 2438 (BL). 81 This may be explained through historical reasons since such an external deployment was not being foreseen when the Armed Forces were established in the 1950s. At a time when Germany was still suffering from the aftermath of the horrible atrocities of Hitler Germany and World War II, the reintroduction of the German Armed Forces was primarily justified with being mandated and foreseen for the national defence of the country. 82

Federal Constitutional Court (Bundesverfassungsgericht, FCC), BVerfGE 90, 286.

83

Ibid., 387 et seq.

84

Ibid., 381 et seq.

85

Ibid.

86

See e.g. ibid.; id., BVerfGE 100, 266; id., BVerfGE 108, 34; id., BVerfGE 118, 224; id., BVerfGE 121, 135; id., BVerfGE 124, 267.

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lamentsbeteiligungsgesetz, PPA)87 entering into force in 2005.88 Since that day the case law of the FCC is codified in the PPA with Section 1 (2) PPA explicitly stipulating that the consent of the German Parliament is an indispensable prerequisite regarding any armed deployment of the German Armed Forces abroad.89 It therefore lies in the hands of the Parliament whether an armed deployment may be legitimately exercised (Section 3 (3) PPA) or not. According to the FCC and also in line with Section 4 (1) PPA such a relevant armed deployment may at least be assumed in cases where the use of weapons is possible and probable as it not necessarily requires the actual use of weapons in the end.90 Consequently, there was also a need for such a constitutive and prior approval of the German Parliament for the deployment of the German Armed Forces to support AFISMA in 2013 as the deployment could be classified as an armed deployment in this context as the use of armed force could not absolutely be precluded.91 However, one must pay attention to the fact that the German Parliament is not able to impose the deployment of the German Armed Forces all by itself as the German Parliament is depending on the former initiative of the German government (Section 3 (1) PPA) as the Parliament is not in the position to command the mission from the German government.92 Accordingly, in the present case the formal request filed by the German federal government on 19 February 2013, in which it called for the deployment of up to 150 soldiers of the German Armed Forces to Mali, was necessary to trigger the constitutional procedure for the deployment of the troops.93 87 German Parliamentary Participation Act (Gesetz über die parlamentarische Beteiligung bei der Entscheidung über den Einsatz bewaffneter Streitkräfte im Ausland, Parlamentsbeteiligungsgesetz), 18 March 2005, BGBl. I, 775. 88 Wolfgang Weiß, Die Beteiligung des Bundestags bei Einsätzen der Bundeswehr im Ausland: eine kritische Würdigung des Parlamentsbeteiligungsgesetzes, Neue Zeitschrift für Wehrrecht (NZWehrr) (2005), 100, 100. 89

Ibid., 103.

90

FCC, BVerfGE 121, 135, 164 et seq. For a detailed assessment of the term ‘deployment’ see also Klaus Dau, Die Streitkräfte in der Rechtsprechung des Bundesverfassungsgerichts, NZWehrr (2011-1), 1, 15 et seq. 91

Cf. FCC, BVerfGE 90, 286, 387 et seq.

92

Ibid., 389; see also regarding the power of initiating a mission e.g. Konrad Hummel, Rückrufrecht des Bundestages bei Auslandseinsätzen der Streitkräfte, NZWehrr (2001-6), 221, 224. 93

German Parliament (note 28), 3.

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With the following consent of the German Parliament giving the green light for the implementation of the intended mission on 28 February 2013, the deployment of the German Armed Forces was finally in the position to be legitimately executed, at least regarding the procedural requirements.94 Following its formal voting procedure, the German Parliament permitted, as requested by the German federal government, air transportation from neighbouring countries to and within Mali as well as air transportation of the French forces and aerial refuelling of French fighters and reconnaissance aircrafts supporting AFISMA.95 However, as outlined above, the African-led AFISMA mission did not even last for half a year in consequence of the SC having decided in its Resolution 2100 (2013) of 25 April 2013 to establish a new UN-led mission, MINUSMA, which was assigned to take over the authority from AFISMA on 1 July 2013.96 In the following, the German Federal Cabinet decided that Germany should also continue its support within the new mission, however, from now on with the German soldiers being integrated as part of MINUSMA, continuing the endeavours to restore the constitutional order and the integrity of the country as it had done with AFISMA before.97 The decision was unveiled in a new formal request filed by the German federal government to the German Parliament in which the Cabinet once again asked for the continued deployment of the German Armed Forces in Mali, henceforth as part of MINUSMA.98 However, it has to be kept in mind that at the time the deployment of the German Armed Forces had already been approved by the German Parliament on 28 February 2013. As it was generally intended that the mission in Mali would more or less go ahead as before, now simply under UN command with MINUSMA keeping up the responsibilities priorly fulfilled by AFISMA, it may be called into question whether there was a need for a new request from the German government to the German Parliament to trigger a new voting on the continued deployment of the armed forces in Mali.

94

Id., Protocol of the Plenary 17/225, 28 February 2013, 27976–27979.

95

Ibid., 27958 et seq.

96

UN SC Res. 2100 of 25 April 2013, para. 7.

97

German Parliament, Deployment of German Armed Forces to Participate in MINUSMA, 5 June 2013, BT-Drs. 17/13754. 98

Ibid.

GERMAN PRACTICE

457

In principle, a new approval decision is considered to be required in case any legal or actual circumstance regarding the former approval ceases to exist if they were considered as a relevant condition for the former consent.99 The conjunction of the approval with the validity of a resolution of the SC may be considered as such a sine qua non.100 In the situation at hand, the deployment of the German Armed Forces in Mali was from the outset tied to the continued existence of the mandate of AFISMA.101 As this was being dropped with the new SC Resolution 2100 (2013) establishing MINUSMA, there was also a need for a new legitimisation of the German support in line with the applicable German constitutional law. Therefore it was indispensable that the German government once again filed a formal request to the German Parliament to call for the continued deployment in Mali as the consent of the German Parliament also lapsed eo ipso with the replacement of the initial mandate under international law for AFISMA with the new MINUSMA mandate.102 While an existing decision for the deployment of a mission not generally lapses in case of any legal or factual changes regarding the mission, the opposite applies in case the decision is obviously tied to the continued existence of a UN SC mandate.103 Furthermore, the previous engagement of the German troops in Mali had been limited in its scope to support the AFISMA mission while the new mandate would lead to a full integration of the German Armed Forces in MINUSMA, which also endorses the need for a new formal request and subsequent approval of the German Parliament that may also be evaluated as a relevant condition for the prior consent of the Parliament which ceased with the establishment of the new UN-led mission. On 27 June 2013 the German Parliament also decided in favour of the deployment of the German troops contributing to MINUSMA by once again allocating up to 150

99 100

FCC, BVerfGE 124, 267, 276. Ibid., 277.

101

Already the heading of the request of the German government directly states the deployment of the German armed troops for the support of AFISMA on the basis of UN SC Res. 2085 (2012), see German Parliament (note 28). 102

Cf. FCC, BVerfGE 124, 267, 279.

103

Cf. ibid., 278 et seq.

458 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

soldiers to support the mission in the field predominantly with aerotransport and aerial refuelling.104 In respect of the duration of the mandate, the mission was limited to up to one year at the utmost105 and if the deployment of the German Armed Forces is still necessary beyond this time, the German government needs to file another formal request to the German Parliament to ask for approval of the continued deployment and the extension of the mandate. The continuation of the mission is consequently only permissible and in accordance with German constitutional law if the German Parliament accepts the request. Therefore, on 14 May 2014, the German government requested the extension of the German Armed Forces contribution to the MINUSMA troops.106 The approval of the German Parliament followed on 6 June 2014.107 The same passed in 2015; following the formal request of the German government of 3 June 2015,108 the German Parliament decided once again in favour of the deployment of the German Armed Forces to Mali within MINUSMA on 19 June 2015 following the recommendations of the Committee for Foreign Relations of the German Parliament.109

B. Substantive Aspects

However, the proceedings explained above could only legitimise the deployment of the German Armed Forces in view of the procedural requirements set up by German constitutional law. Beyond these procedural requirements, there is also a need for a substantive legal basis under constitutional law on which the deployment may be based. In all of its requests regarding the deployment of the German Armed Forces in Mali the German government referred to Article 24 (2) BL as legal basis according to German national law. 104

German Parliament, Protocol of the Plenary 17/250, 27 June 2013.

105

Id. (note 97).

106

Id., Continuation of the Participation of German Armed Forces in MINUSMA, 14 May 2014, BT-Drs. 18/1416. 107

Id., Protocol of the Plenary 18/40, 6 June 2014.

108

Id., Continuation of the Participation of German Armed Forces in MINUSMA, 3 June 2015, BT-Drs. 18/5053. 109

Id., Protocol of the Plenary 18/113, 19 June 2015.

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459

Article 24 (2) BL allows for the deployment of the German Armed Forces if the mission is imbedded in a system of collective self-defence providing its constitutional basis.110 Once again this does not explicitly derive from the wording of the Article itself since Article 24 (2) BL simply provides that “with a view to maintaining peace, the Federation may enter into a system of mutual collective security” without directly mentioning the legitimisation of a deployment of the German Armed Forces abroad. However, the FCC once again shed light on this issue declaring that the Article does not only allow for Germany to enter into such a system of mutual collective security but consequently also covers the carrying out of the duties that come along with it.111 Therefore, Article 24 (2) BL would also allow and serve as legal basis for the deployment of the German Armed Forces if it is taking place within the scope and according to the rules of such a system.112 Since the first key decision of the FCC in this context, the UN are recognised to constitute such a system within the meaning of Article 24 (2) BL.113 Accordingly, if the SC through a resolution acting under Chapter VII UN Charter authorises a mandate for a mission calling for the support of its Member States to fulfill the mandate, the SC is carrying out its duties as assigned in the UN Charter so that it may also be assumed that the deployment of the German Armed Forces under such a mandate is exercised within the scope and according to the rules of the UN.114 Certainly the existence of such a resolution does not exempt the mission’s need to be fulfilled in accordance with applicable constitutional and international law.115 However, each and every of the four mandates at hand were authorised by a SC resolution which clearly allowed for the use of force calling upon UN Member States to take all necessary means and authorising them to do so, declaring the situation in

110

FCC, BVerfGE 90, 286, 345.

111

Ibid., 286 (1st Headnote).

112

Ibid., 345 et seq.; BVerfGE 121, 135, 156 et seq.

113

Id., BVerfGE 90, 286, 349; see also e.g. Vöneky/Wolfrum (note 79), 594; Volker Röben, Der Einsatz der Streitkräfte nach dem Grundgesetz, ZaöRV 63 (2003), 585, 595 et seq. 114 115

Cf. FCC, BVerfGE 90, 286, 352.

In this respect see Dieter Wiefelspütz, Der Auslandseinsatz der Bundeswehr gegen den grenzüberschreitenden internationalen Terrorismus, ZaöRV 65 (2005), 819, 832 et seq.

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Mali a threat to international peace and security under Chapter VII UN Charter.116 Such a resolution constitutes one of the rare recognised legitimate exceptions to the prohibition of the use of force,117 which is codified in Article 2 (4) UN Charter and also acknowledged as “one of the cornerstones of the modern international legal order”118 as customary international law.119 Accordingly, these resolutions could therefore also be referred to as the international legal basis for the deployment and the enforcement actions of the German Armed Forces. In view of the deployment of the German Armed Forces in Mali from the beginning being embedded in a system of collective self-defence, the deployment was also in accordance with national constitutional law as Article 24 (2) BL legitimises such a proceeding. This does not only apply to the troops despatched to support MINUSMA but also regarding AFISMA due to the fact that even though AFISMA itself was not run as a UN Blue Helmet mission, the mission was nevertheless implemented within and on the basis of a UN mandate as it was clearly authorised by SC Resolution 2085 (2012) under Chapter VII UN Charter.120 All of these requests filed up to date contained more or less the same details regarding the mandate of the mission and the functions assigned to the soldiers in the field. The first mandate in 2013 to support AFISMA was aimed at aerial transportation from the neighbouring States to Mali and within Mali as well as at aerial transportation and aerial refuelling of the French Armed Forces within the framework of operations to render assistance to AFISMA,121 as the German Armed Forces are deployed with so-called ‘multifunctional aircrafts’ (Multi Role Transport Tanker, MRTT) that 116

UN SC Res. 2085 of 20 December 2012, Recitals 15 et seq. Preamble; UN SC Res. 2100 of 25 April 2013, Recitals 23 et seq. Preamble; UN SC Res. 2164 of 25 June 2014, Recitals 27 et seq. Preamble; UN SC Res. 2227 of 29 June 2015, Recitals 29 et seq. Preamble. 117 Oliver Dörr, Prohibition of the Use of Force, Max Planck Encyclopedia of Public International Law (MPEPIL), para. 40 et seq., available via: http://www.mpepil.com (accessed on 8 March 2016). 118

Ibid., para. 1.

119

E.g. International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, 392, para. 73; id., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment of 27 June 1986, ICJ Reports 1986, 14, paras. 187–190; id., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, 136, para. 87. 120

UN SC Res. 2085 of 20 December 2012, para. 9.

121

German Parliament (note 28), para. 4.

GERMAN PRACTICE

461

can even operate as flying gas stations. The following mandate to support MINUSMA was still mainly geared towards support by aerial transportation and the allocation of ‘capacities for refuelling’ for the French forces and comprised additional support, connecting, consulting, and supporting functions.122 The same applies for the following mandates of 2014123 and of 2015.124 The number of the German armed troops to be deployed was limited to 150 soldiers.125 However, if the German government proceeds as announced during the last weeks, the MINUSMA deployment of the German Armed Forces will be expanded in the beginning of 2016. The expansion shall not only affect the quantity of the deployed military personnel but also the mandate itself.

V. Evaluation and Prospects The German Armed Forces have been actively engaged in MINUSMA’s efforts to restore peace in the Republic of Mali for almost three years. Since the involvement of the international community, the overall security status in the country improved notably. However, up to date, the situation in the country still stays highly volatile. The territorial integrity of the country is not completely restored yet and terrorists still pose a threat not only to Mali’s stability, its governmental authority, and its civilians’ safety but also to the Blue Helmet soldiers in the field, who are repeatedly exposed to assaults carried out by the Islamist and terrorist groups, especially in the Northern part of the country. Up to date this has led to more than 50 casualties among the mission’s soldiers, who are every day in the field risking their lives,126 and the UN mission is even considered to constitute the most dangerous of the Blue Helmets’ deployments at present.127

122

Id. (note 97).

123

Id. (note 106), para. 3.

124

Id. (note 108), para. 3.

125

Id. (note 28), para. 9; id. (note 97), para. 9; id. (note 106), para. 8; id. (note 108), para. 8.

126

UN MINUSMA, Facts and Figures, available at: http://www.un.org/en/peacekeeping/missions/ minusma/facts.shtml (accessed on 2 January 2016). 127

FAZ (note 9).

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By the time of the official foundation of the German Armed Forces on 12 November 1955128 the new military was established as a pure defence force, responsible for the protection of the Federal Republic and serving as deterrence against any belligerent threats directed against the German territory from the outside. By that time any deployment of the German Armed Forces in the field abroad was not yet intended. Accordingly, the German MINUSMA deployment may serve as a prime example to demonstrate that the mandate and the area of deployment of the German Armed Forces has clearly shifted in this regard. For Germany, the MINUSMA operation is only one of fifteen deployments abroad which are currently carried out by the German Armed Forces around the globe.129 Despite this rather high number, it is said that the German government still exercises restraint regarding any deployment of the German Armed Forces abroad and Germany’s security policy is even evaluated as revealing a general passivity with a limitation of the international contribution, especially militarily, to an absolute minimum.130 With an operational strength of about ten German soldiers being currently deployed in MINUSMA, the German contribution at stake is still rather small.131 However, if the German government feels further obliged to expand the deployment of the German Armed Forces this will not only lead to a significant increase of the number of German military MINUSMA personnel in the field, but also to an increased risk for the soldiers to face more dangerous challenges throughout the mission since the soldiers shall predominantly be involved in MINUSMA’s actions in the rather unstable Northern part of the country also undertaking greater responsibility.132 Therefore, the developments in the past months may reveal a new trend taken by the German government; especially as some weeks ago any involvement of the German armed troops in fighting the so-called Islamic State seemed unimaginable. Today the mission to fight the so-called Islamic State comprises a military strength of up to 1,200 German troops so that this engagement constitutes one of the largest numbers 128

Bernhard Fleckenstein, 50 Jahre Bundeswehr, Aus Politik und Zeitgeschichte 21 (2005), 5, 6.

129

See Bundeswehr, Einsatzzahlen: Die Stärke der deutschen Einsatzkontingente, as of 14 December 2015, available at: http://www.bundeswehr.de/portal/a/bwde/!ut/p/c4/04_SB8K8xLLM9MSSzPy8x Bz9CP3I5EyrpHK9pPKUVL3UzLzixNSSqlS90tSk1KKknMzkbL2qxIyc1Dz9gmxHRQDYLHC-/ (accessed on 2 January 2016). 130

Volker Rühe, Deutschland muss führen, FAZ, 21 January 2014, 8.

131

Bundeswehr (note 129).

132

FAZ, Bis zu 700 Soldaten (note 7); Seliger (note 7); FAZ (note 9).

GERMAN PRACTICE

463

of German military personnel currently deployed in a mission.133 Already in 2014 at the 50th anniversary of the Munich Security Conference, the German Federal President Joachim Gauck called for a greater involvement of Germany in foreign affairs assuming a greater responsibility internationally, which might also mean by the deployment of armed forces, at least the option should not be denied simply as a matter of principle.134 However, while a more active engagement of Germany may be internationally appreciated in view of the increasing threats being provoked by terrorists all over the world, this new approach, with an increase of the military personnel being deployed e.g. in Mali and in view of the great number of soldiers being despatched within the new mission to fight the so-called Islamic State,135 will entail very simple and practical challenges for the German Armed Forces overall and the German Ministry of Defence, respectively, in terms of the availability of staff and equipment. Currently, there are about 3,084 German troops directly deployed in foreign assignments of the German Armed Forces.136 This means that if the deployment in Mali to support MINUSMA will increase from 150 to up to 650 German soldiers in 2016, as currently envisaged, along with the 1,200 soldiers being deployed for the fight against the so-called Islamic State this will lead to an increase of about 50% of German soldiers who are going to be deployed abroad at the time. The Parliamentary Commissioner for the Armed Forces of the German Parliament, Hans-Peter Bartels, recently expressed his concerns that these new developments may be overdemanding 133

See German Parliament, Deployment of German Armed Forces to Prevent Terrorist Acts by the Terrorist Organisation IS, 1 December 2015, BT-Drs. 18/6866. Further information on the mission is available at: http://www.bundeswehr.de/portal/a/bwde/!ut/p/c4/04_SB8K8xLLM9MSSzPy8xBz9CP 3I5EyrpHK9pPKUVL3UzLzixNSSqlS94sqizNQ8_YJsR0UAPldpNQ!!/ (accessed on 22 March 2016). 134

Anon., Gauck: Mehr Verantwortung übernehmen, FAZ, 1 February 2014, 1.

135

In its application to the German Parliament, the German government asked for the deployment of up to 1,200 German soldiers to support the Republic of France and Iraq as well as the international alliance for the prevention and prohibition of terrorist acts by the so-called Islamic State, see German Parliament (note 133). Already three days later, on 4 December 2015, following the first parliamentary debate on 2 December 2015 (German Parliament, Protocol of the Plenary 18/142, 2 December 2015), the German Parliament decided in favour of the government’s motion and approved the request by deciding to authorise the deployment of 1,200 German soldiers to support the endeavours of the international community to fight and eventually defeat ISIS, id., Protocol of the Plenary 18/144, 4 December 2015. 136

An overview of the present numbers of the German contingent can be found at Bundeswehr (note 129).

464 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

for the German Armed Forces.137 Allegedly, the German Armed Forces are by now already facing their limit concerning the capacity of the military personnel.138 Furthermore, in the past intensified accusations were being reported in the German print media that the full range of military equipment within the German Armed Forces was also showing substantial deficits.139 Also in view of the suspension of compulsory military service in 2011,140 it seems like the German Armed Forces are domestically not receiving the necessary attention to sufficiently guarantee their appropriate operational readiness. In view of the further expansion of the deployments of the German Armed Forces abroad imperilled to face increasing risks, this is a surprising result. Accordingly, in view of these allegations, another expansion of the deployment in Mali as well as the engagement of Germany in the fight against the so-called Islamic State may reveal whether Germany is in the position to effectively cope with the newly-shouldered responsibilities in the long run or not. By the end of 2015, marking the 60th anniversary of the German Armed Forces, the defence policy is at a crossroads. With a changing world and emerging new threats, also the German government needs to adjust itself to the new developments. The trend taken by the German federal government since the Paris attacks revealed that Germany at least sees the need for an increased military engagement from its side by now. Therefore and with these current developments regarding the expansions of the deployment of German Armed Forces abroad, this will now finally force Germany to decide whether it wants to continue to follow this trend with a more active and extensive involvement of the German Armed Forces in missions abroad in the future. If so, Germany needs to make a clear statement, to take respective decisions, and to demonstrate a long-term commitment also with providing the necessary budget to carry out a sufficient upgrade of the German Armed Forces so that they are in the position to meet the defined requirements. Otherwise all the individual soldiers will be the ones paying the price for this inconsistent behaviour. 137

Anon., Wehrbeauftragter Bartels fordert mehr Soldaten, FAZ, 28 December 2015, 2.

138

Johannes Leithäuser, Bundeswehr ausgebucht, FAZ, 20 November 2015, 1.

139

See e.g. anon., Bundeswehr braucht „mittelfristig mehr Geld“, FAZ, 29 September 2014, 1; anon., Berlin kann Zusagen an die NATO nicht einhalten, FAZ, 29 September 2014, 2; Nikolas Busse, Arme Truppe, FAZ, 29 September 2014, 1; Johannes Leithäuser, Bundeswehr in der Krise, FAZ, 30 September 2014, 1. 140

Law amending the Military Legal Provisions (Gesetz zur Änderung wehrrechtlicher Vorschriften 2011, Wehrrechtsänderungsgesetz 2011, WehrRÄndG 2011), 28 April 2011, BGBl. I, 678.

The Aftermath of Prism: The International Legal Framework for Surveillance and the Radius of Operation for German Intelligence Agencies from a Human Rights Perspective HENNING BÜTTNER( AND MARVIN SCHWOPE((

I. Introduction In summer 2013, former Central Intelligence Agency (CIA) employee and National Security Agency (NSA) contractor Edward Snowden leaked 1.7 million top secret documents that revealed the existence and the scope of the unprecedented mass surveillance programmes of the United States of America (USA) and the ‘Five Eyes Alliance’, which were operated with the help of private companies and European governments.1 Under the pretext of the ‘war on terror’, US surveillance programmes such as PRISM, XKeyscore, UPSTREAM, and others stored tens of thousands of terabytes of data per day, originating from communication services, social networks, and cloudcomputing worldwide.2 The dimension of those far-reaching programmes remains unknown – but as Keith Alexander, the NSA director at the time of the whistleblowings in 2013, put it: “You need the haystack to find the needle.”3 (

Student of law at Christian Albrechts University, Kiel, and research assistant at the Walther Schücking Institute for International Law. ((

Student of law at Christian Albrechts University, Kiel.

1

Glenn Greenwald, Keith Alexander Unplugged: on Bush/Obama, 1.7 million stolen documents and other matters, The Intercept, 8 May 2014, available at: https://theintercept.com/2014/05/08/keithalexander-unplugged-bushobama-matters/ (accessed on 22 March 2016); Jason Leopold, Pentagon report: scope of intelligence compromised by Snowden ‘staggering’, The Guardian, 22 May 2014, available at: http://www.theguardian.com/world/2014/may/22/pentagon-report-snowden-leaks-national-security (accessed on 22 March 2016). 2 For an overview of those different programmes see Glenn Greenwald, Die Globale Überwachung: der Fall Snowden, die amerikanischen Geheimdienste und die Folgen (2014), 151 et seq. 3

Barton Gellman/Ashkan Soltani, NSA collects millions of e-mail address books globally, The Washington Post, 14 October 2013, available at: https://www.washingtonpost.com/world/national-security/

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In the following, the international human rights legal framework concerning masssurveillance will be analysed and the US and German measures will be reviewed under these criteria. The impact of the NSA mass surveillance on German citizens will be evaluated. Furthermore, it will be analysed which mass surveillance competences the German intelligence agencies have and which consequences arise from the agencies’ far-reaching participation4 in the NSA surveillance. In other words, seen from the perspective of public international law – what is true about German Chancellor Angela Merkel’s statement: “Ausspähen unter Freunden – das geht gar nicht” (spying on friends is a definite no-go)?5

II. Surveillance and its Implications on the Right to Privacy A. The Legal Framework of the Right to Privacy

The right to privacy is a fundamental human right codified e.g. in Article 17 International Covenant on Civil and Political Rights (ICCPR)6 and Article 8 European Convention on Human Rights (ECHR).7 Whereas the ICCPR is binding upon both the USA and Germany, the ECHR as a regional instrument applies to Germany only. Due to the fast technical developments of recent years, which could not be considered at the time of the existing treaties’ adoption (ECHR in 1950 and ICCPR in 1966), the treaties’ intended protection is not necessarily tailored to today’s circumstances. However, it is nowadays undisputed that they do apply to cases of surveillance. The United Nations Human Rights Committee (CCPR) interpreted the right to respect

nsa-collects-millions-of-e-mail-address-books-globally/2013/10/14/8e58b5be-34f9-11e3-80c67e6dd8d22d8f_story.html (accessed on 22 March 2016). 4 Christian Fuchs/John Goetz/Frederik Obermaier, Verfassungsschutz beliefert NSA, Süddeutsche Zeitung, 13 September 2013, available at: http://www.sueddeutsche.de/politik/spionage-in-deutschlandverfassungsschutz-beliefert-nsa-1.1770672 (accessed on 22 March 2016). 5 Anon., Merkel zur Handy-Affäre: „Ausspähen unter Freunden – das geht gar nicht“, Spiegel, 24 October 2013, available at: http://www.spiegel.de/politik/deutschland/handy-spaehaffaere-um-merkelregierung-ueberprueft-alle-nsa-erklaerungen-a-929843.html (accessed on 22 March 2016) (translation by the authors). 6 7

International Covenant on Civil and Political Rights, 16 December 1966, UNTS 999, 171 (ICCPR).

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, UNTS 213, 222 (ECHR).

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‘correspondence’ as entailed in the treaties as follows: “Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.”8 Thus, surveillance of communications is subject to several human rights instruments in international law. Still, there are crucial issues concerning the interpretation of the right to privacy: The extraterritorial application of the treaties and the prerequisites for a lawful interference into the right to privacy will be examined here.

B. Extraterritorial Application of the Right to Privacy

Notably, Article 2 (1) ICCPR obliges a State party to respect and to ensure human rights to all individuals “within its territory and subject to its jurisdiction.”9 This “and” is to be understood as a “disjunctive conjunction.”10 This view is supported by the CCPR11 and the International Court of Justice (ICJ),12 which have stipulated that States are bound by human rights obligation outside their territory if they have jurisdiction. That matches with Article 1 ECHR, which names “jurisdiction” as the only precondition for its application. But what does this entail? Jurisdiction means that States must ensure and respect human rights for anybody within their power or ‘effective control’ – even outside the State’s territory.13 The established models for jurisdiction in the sense of Article 2 ICCPR and Article 1 ECHR do not take into account the fact that infringements of a person’s privacy nowadays can be conducted unimpeded of physical distance. These models call for physical control to invoke the 8 Human Rights Committee (CCPR), General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, UN Doc. HRI/GEN/1/Rev.1 (1994), 21, para. 8. 9

Emphasis added.

10

Thomas Buergenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in: Louis Henkin (ed.), The International Bill of Rights (1981), 72, 74. 11

CCPR, Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, UN Doc. Supp. No. 40 (A/36/40) 176 (1981), paras. 12.2, 12.3; id., Lilian Celiberti de Casariego v. Uruguay, Communication No. R.13/56, UN Doc. Supp. No. 40 (A/36/40) 185 (1981), para. 10.3. 12

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. 109. 13

European Court of Human Rights (ECtHR), Al-Skeini and Others v. United Kingdom, Judgment of 7 July 2011, RJD 2011-IV, 99, paras. 133 et seq.; CCPR, General Comment No. 31: The Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 10.

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obligation to ensure human rights.14 Nonetheless, in the case of surveillance on foreign territory, the ‘virtual control’ of a State could be equated to physical control because of the purpose and the disciplining character of the control test.15 First, surveillance can establish a strong connection between the acting State and the concerned individual, and second, it can be compared to the cases when agents of a State are present and exercising control on the territory of another State, especially if a State exercises a certain general degree of governmental control over the internet, as e.g. the US did through PRISM.16 In such cases of control a State shall not avoid its human rights obligations by “refraining from bringing those powers within the bounds of law.”17 This view is shared by the United Nations General Assembly (UN GA), whose awareness of the issue of cyber surveillance and possible deficiencies in the protection of the right to privacy was expressed in Resolution 68/167.18 To meept these challenges to international law, the Member States reaffirm that nobody shall be subject to unlawful or arbitrary interferences with the right to privacy and express their concern on extraterritorial surveillance. The Assembly requested the United Nations High Commissioner for Human Rights (UNHCHR), Navi Pillay, to draft a report on domestic and extraterritorial surveillance. This report,19 which was issued in 2014, stipulates that jurisdiction as a prerequisite of the right to privacy’s application is given at least when the information is gathered by direct penetration of cyber infrastructure.20 Thus, it is crucial to extend the primarily physical notion of jurisdiction to promote the universal character of human rights. 14

ECtHR, Al-Skeini (note 13), paras. 130 et seq.

15

For the concept of virtual control see e.g. Anne Peters, Surveillance without Borders: The Unlawfulness of the NSA Panopticon, Part II, EJIL Talk, 4 November 2013, available at: http://www.ejiltalk.org/ surveillance-without-borders-the-unlawfulness-of-the-nsa-panopticon-part-ii/ (accessed on 22 March 2016); Andreas Fischer-Lescano, Der Kampf um die Internetverfassung: Rechtsfragen des Schutzes globaler Kommunikationsstrukturen vor Überwachungsmaßnahmen, Juristenzeitung (JZ) 69 (2014), 965, 969; Helmut Philipp Aust, Spionage im Zeitalter von Big Data: Globale Überwachung und der Schutz der Privatsphäre im Völkerrecht, Archiv des Völkerrechts 52 (2014), 375, 394–395; Peter Margulies, The NSA in Global Perspective: Surveillance, Human Rights, and International Counterterrorism, Fordham Law Review 82 (2014), 2137, 2150. 16

Similarly Aust (note 15), 394–395.

17

Human Rights Council (HRC), The Right to Privacy in the Digital Age, Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc. A/HRC/27/37 (2014), para. 33. 18

GA Res. 68/167 of 18 December 2013.

19

HRC (note 17).

20

Ibid., paras. 32 et seq.

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C. The Scope of the Right to Privacy Concerning Surveillance Measures

The second issue of the High Commissioner’s report was an assessment of the prerequisites under which surveillance can be lawful. According to Article 17 ICCPR, surveillance must be lawful and not arbitrary.21 In her report, Navi Pillay adopts the jurisprudence of the European Court of Human Rights (ECtHR). According to the UNHCHR’s report, lawfulness means that an interference can only take place on a legal basis.22 It stresses that Article 17 ICCPR requires every domestic rule for surveillance to be precisely circumscribed, to provide for an appropriate framework against abuse of powers and arbitrary application, and overall to serve a legitimate aim.23 Moreover, the prohibition of arbitrariness means that interferences established by law still have to be reasonable in all circumstances.24 This requires any interference to be proportionate to its aim and to be necessary in the given circumstances.25

III. The NSA Surveillance A. The Factual Background of the US Surveillance on German Citizens

Under PRISM, the NSA requested and collected private user data from Microsoft,26 Yahoo, Apple, Google, and Facebook among others.27 Thereby, every month, the NSA surveilled more than 500 million telephone, SMS, and e-mail conversations of German citizens.28 Within the UPSTREAM programme, the US tapped and inter21

Ibid., para. 21.

22

CCPR (note 8), para. 3.

23

Ibid., paras. 4, 8; HRC (note 17), paras. 21 et seq.

24

CCPR (note 8), para 4.

25

Ibid., paras. 4, 8; HRC (note 17), paras. 21 et seq.

26

Glenn Greenwald et al., Microsoft handed the NSA access to encrypted messages, The Guardian, 11 July 2013, available at: http://www.theguardian.com/world/2013/jul/11/microsoft-nsa-collaborationuser-data (accessed on 22 March 2016). 27

Glenn Greenwald/Ewen MacAskill, NSA Prism program taps in to user data of Apple, Google and others, The Guardian, 7 June 2013, available at: http://www.theguardian.com/world/2013/jun/06/ustech-giants-nsa-data (accessed on 22 March 2016). 28

Daniel Leisegang, Schöne neue Überwachungswelt, Blätter für deutsche und internationale Politik 2013 (8), 5–8.

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cepted domestic and foreign internet backbones and were thus able to collect and analyse the data flow.29 XKeyscore, on the other hand, is a computer system allowing the NSA to search and analyse ‘Big Data’ by simply using search terms.30 The analysis of the metadata, communication content, and internet activity can provide a detailed image of the personality of a targeted person. So, do German citizens need to worry about their right to privacy? If we left that decision up to US President Barack Obama, the answer would be ‘no’: The bottom line is that people around the world, regardless of their nationality, should know that the United States is not spying on ordinary people who don’t threaten our national security, and that we take their privacy concerns into account in our policies and procedures.31

That being said, the aforementioned human rights criteria shall now be applied to the US surveillance on German citizens.

B. The NSA Surveillance: Violation of the Right to Privacy?

1. The Extraterritorial Obligation of the USA to Respect the Right to Privacy There are several reasons why Article 17 ICCPR is applicable to the case of US surveillance on German citizens. First, following the reasoning of UN GA Resolution 68/167 and the Report of the High Commissioner, Article 17 ICCPR is applicable because cyber infrastructure was directly penetrated: The NSA employed wiretapping to intercept data (UPSTREAM). Second, the servers of the companies requested

29 Daniel A. J. Sokolov, Klage gegen NSA-Programm Upstream zurückgewiesen, Heise Online, 24 October 2015, available at: http://www.heise.de/newsticker/meldung/Klage-gegen-NSA-ProgrammUpstream-zurueckgewiesen-2854603.html (accessed on 22 March 2016); CCPR, Concluding Observations on the Fourth Periodic Report of the United States of America, UN Doc. CCPR/C/USA/CO/4 (2014), para. 22. 30 Morgan Marquis-Boire/Glenn Greenwald/Micah Lee, XKEYSCORE: NSA’s Google for the World’s Private Communications, The Intercept, 1 July 2015, available at: https://theintercept.com/2015/07/01/ nsas-google-worlds-private-communications/ (accessed on 22 March 2016). 31 Barack Obama, Remarks by the President on Review of Signals Intelligence, 17 January 2014, available at: https://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signalsintelligence (accessed on 22 March 2016).

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to share data (i.e. Google, Microsoft, etc.) were (at least partly) on US territory.32 Due to the intermediary structure of the access to data stored on servers on US territory by US companies, the access itself can constitute an exercise of governmental control and therefore also of jurisdiction in the sense of Article 2 (1) ICCPR. Additionally, the US had jurisdiction over the companies that were in physical possession of the data, and therefore must be bound by the Covenant’s obligations.33 Third, the US had full access to data and established control in the form of ‘virtual control’ on foreign territory. Consequently, the prerequisite of jurisdiction pursuant to Article 2 (1) ICCPR is fulfilled and establishes the right to privacy’s application. The CCPR’s Concluding Observations on the fourth periodic report of the USA support this view.34

2. US Surveillance: Interference with and Violation of the Right to Privacy? As established above, US agencies surveil German citizens by collecting, storing, and accessing their data and therefore interfere with their right to privacy. Such an interference has to be based on the law. The US legal basis for surveillance abroad is the Foreign Intelligence Surveillance Act (FISA),35 which was amended by the FISA Amendment Act of 2008.36 Pursuant to the FISA, the Attorney General can authorise electronic surveillance without a court order for a period of one year if only “foreign intelligence information” will be gathered.37 Additionally, Section 702 FISA38 was the legal basis for PRISM.39 According to the aforementioned criteria, it has to be determined whether this US legislation is lawful and non-arbitrary.

32

European Parliament, The US surveillance programmes and their impact on EU citizens’ fundamental rights, PE 474.405 (2013), 21 et seq. 33

Similarly HRC (note 17), para. 34.

34

CCPR (note 29), para. 22.

35

Foreign Intelligence Surveillance Act of 1978, Public Law 95–511, 92 Stat. 1783.

36

Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Public Law 110–261, 122 Stat. 2436. 37

50 U.S.C. § 1802.

38

Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons, 50 U.S.C. § 1881a. 39

Aust (note 15), 375.

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First, the FISA has to provide a precisely circumscribed framework to avoid an abuse of powers and to prevent an arbitrary application.40 The definition of “foreign intelligence information” which can be gathered for intelligence purposes – not concerning a US person – is: “information that relates to […] the ability of the United States to protect against [attacks, terrorism, intelligence activities].”41 Due to the generality of this definition (“relates”), there are no limits on exploiting or intruding into the right to privacy of a non-US American citizen if only the broad definition is met.42 The seemingly unlimited scope of this imprecise legal term makes it uncertain for potentially concerned persons to know whether and when their right to privacy is interfered with. This cannot fulfill the principle of legal certainty.43 Furthermore, the limitations concerning the oversight of surveillance on non-US persons do not sufficiently protect against arbitrariness as they do not involve any kind of judicial authorisation or review.44 Second, the surveillance itself must serve a legitimate aim and be proportionate. Whereas it can be seen as a legitimate aim for the US to collect information to protect its national security and to prevent crimes or terrorist acts, the gathering of information on large parts of the German population for preventive purposes must be prima facie disproportionate and unnecessary when there are no concrete indications for such threats.45 Indeed, even if US surveillance should be conducted for the purpose of gaining foreign intelligence to protect against international terrorism or to protect national security, data were collected primarily preventively for future investigations, without any concrete danger.46 Coming back to Keith Alexander’s ‘haystack statement’,47 the 40

HRC (note 17), paras. 4, 8.

41

50 U.S.C. § 1801e1 (emphasis added).

42

Similarly European Parliament (note 32), 23.

43

See also Fischer-Lescano (note 15), 970.

44

Wolfgang Ewer/Tobias Thienel, Völker-, unions- und verfassungsrechtliche Aspekte des NSADatenskandals, Neue juristische Wochenschrift 67 (2014), 30, 32; CCPR (note 29), para. 22; for the legal basis see: 50 U.S.C. §§ 1801(g)(h), 1802, 1808. 45

HRC (note 17), paras. 24, 25; Peters (note 15).

46

Anon., Look who’s listening, The Economist, 15 June 2013, available at: http://www.economist. com/news/briefing/21579473-americas-national-security-agency-collects-more-information-mostpeople-thought-will (accessed on 22 March 2016); Jennifer Granick/Christopher Jon Springman, The Criminal NSA, The New York Times, 27 June 2013, available at: http://www.nytimes.com/2013/06/ 28/opinion/the-criminal-nsa.html?_r=0 (accessed on 22 March 2016). 47

See supra, note 3.

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United Nations Human Rights Council put it this way: “[I]t will not be enough that the measures are targeted to find certain needles in a haystack; the proper measure is the impact of the measures on the haystack […].”48 Additionally, FISA does not acknowledge rights of non-Americans.49 Article 26 ICCPR requires that all persons have the same protection under the law and that acts shall not discriminate. Surely that must apply to the case of surveillance, too.50 The US legislation for surveillance programmes discriminates between the protections afforded by the Constitution to US citizens and everybody else.51 The fact that no remedies are available to non-US citizens in cases of abuse constitutes a breach of the Covenant, too.52 Consequently, FISA as the legal basis for NSA surveillance does not comply with the Covenant’s requirements, and the surveillance is arbitrary in general. Thus, the US violated German citizens’ right to privacy of Article 17 ICCPR. Therefore, the CCPR urged the US to implement measures to ensure their compliance with the Covenant in its Concluding Observations on the fourth periodic report of the US.53

C. US Espionage on German Officials

What about the tapping of German Chancellor Merkel’s mobile phone, that became public in October 2013?54 First of all, one cannot derive a violation of human rights from that conduct as she was not targeted as a private person (and thus as a bearer of the right to privacy) but specifically in her official capacity – that amounts to espionage.

48

HRC (note 17), para. 25.

49

That situation was neither changed by the PATRIOT Act, the FISA Amendment Act or the FREEDOM Act, which amended the FISA. 50

HRC (note 17), paras. 35, 36; CCPR (note 29), para. 22.

51

European Parliament (note 32), 20.

52

Fischer-Lescano (note 15), 970; Klaus Ferdinand Gärditz/Carl-Friedrich Stuckenberg, Vorratsdatenspeicherung à l’américaine: Zur Verfassungsmäßigkeit der Sammlung von Telefonverbindungsdaten durch die NSA, JZ 69 (2014), 209, 216–219. 53 54

CCPR (note 29), para. 22.

Anon., NSA soll auch Gespräche Merkels abgehört haben, Zeit, 29 October 2013, available at: http://www.zeit.de/politik/ausland/2013-10/merkel-handy-ueberwachung-nsa-inhalte (accessed on 22 March 2016).

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In public international law – according to the ‘Lotus Rule’55 – there is no comprehensive prohibition of espionage.56 But as there is no treaty or opinio iuris (despite the clearly existing State practice) upon a norm permitting espionage,57 some rules of customary international law, such as the principle of territorial sovereignty or prohibition of intervention, could still be violated.58 An assessment of a violation of these rules would, however, be well beyond the scope of this article.

IV. The BND Surveillance Germany itself, on the other hand, could have violated Article 17 ICCPR and Article 8 ECHR in two different ways: Conducting their own mass surveillance programmes and supporting foreign activities both could amount to a breach of the right to privacy.

A. The G10 and German Mass Surveillance

Against the background of German protests against NSA operations in Germany, one has to bear in mind that mass surveillance operations on non-Germans outside the German territory are conducted by the German Bundesnachrichtendienst (BND) as well, for example by storing communication data from Afghanistan and Somalia.59

55

Permanent Court of International Justice, The Case of the SS Lotus (France v. Turkey), Judgment of 7 September 1927, Series A, No. 10, 18. 56

Federal Constitutional Court (FCC) (Bundesverfassungsgericht), BVerfGE 92, 277, 328; Christian Schaller, Spies, Max Planck Encyclopedia of Public International Law (MPEPIL), September 2015, para. 2, available via: http://www.mpepil.com (accessed on 22 March 2016). 57 Anne Peters, Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I, EJIL Talk, 1 April 2013, available at: http://www.ejiltalk.org/surveillance-without-borders-theunlawfulness-of-the-nsa-panopticon-part-i/ (accessed on 22 March 2016). 58 59

See Ewer/Thienel (note 44), 31–32; Peters (note 57); Aust (note 15), 378–385.

Anon., Horchposten in Bad Aibling: BND speichert Datenverkehr aus Krisenregionen, Spiegel, 7 September 2014, available at: http://www.spiegel.de/politik/deutschland/bnd-speichert-datenverkehraus-krisenregionen-a-990228.html (accessed on 22 March 2016); anon., BND bereitet Daten aus Krisenregionen für NSA auf, Zeit, 7 September 2014, available at: http://www.zeit.de/digital/datenschutz/ 2014-09/bnd-datenverkehr-bad-aibling, (accessed on 22 March 2016).

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The following analysis shall assess whether these operations are authorised by law and whether this authorisation is in compliance with international law. The constitutional manifestation of the right to privacy is codified in Article 10 Basic Law for the Federal Republic of Germany (BL).60 This fundamental right is also guaranteed to foreign nationals as it is a Jedermannsgrundrecht, that is, a fundamental right with a universal character not only afforded to German citizens but to everyone.61 The German Federal Constitutional Court (Bundesverfassungsgericht) decided in 1999 that the scope of Article 10 BL is not limited to German territory.62 Yet, there has to be a territorial link to Germany. The Constitutional Court recognised Germany’s international law obligations and decided that the required link is established for extraterritorial communications as the operating German institutions and agencies are located in Germany and thus bound by German law anyway.63 In order to justify interferences with Article 10 (1) BL, there has to be a legal basis as stipulated in Article 10 (2) BL. This legal basis can be located in a German federal law, the Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses (G10),64 which regulates German surveillance activities. According to Chapter 3 G10, the BND is competent to order ‘strategic interferences’, which is defined as surveillance of international telecommunications and can de facto be understood as mass surveillance. It is questionable whether this domestic legal basis fulfils the international human rights requirements of Article 17 ICCPR and Article 8 ECHR. According to these provisions, the legal basis for interferences has to be publicly accessible, serve a legitimate aim, be precisely circumscribed, and provide for safeguards against abuse.65

60

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 23 December 2014, BGBl. I, 2438 (BL). 61 Thomas Groß, Artikel 10, in: Karl Heinrich Friauf/Wolfram Höfling (eds.), Berliner Kommentar zum Grundgesetz (2000), paras. 23, 24. 62

FCC, BVerfGE 100, 313, paras. 93 et seq.

63

Ibid., paras. 174 et seq.

64

Act on the Restriction of Article 10 BL (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), 26 June 2001, BGBl. I, 1254, 2298, as amended on 17 October 2015, BGBl. I, 1938. 65

HRC (note 17), para. 28.

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The ECtHR ruled in Weber and Saravia v. Germany on the conformity of Sec tion 3 G10 with said provisions,66 but did not scrutinise the provisions on strategic interferences. The legitimate aims to justify strategic interferences are laid down in the list of Section 5 (1) G10, which enumerates several crimes endangering German public security, order, and health. Consequently, surveillance must be tailored to the enumerated purposes and the data obtained must be deleted if they are not of relevance. This provides a factual limitation to the used selectors, which are the search terms, IP addresses, mobile phone numbers, or email accounts that can be used to scan obtained data. Therefore, said provisions of the G10 are undoubtedly precisely circumscribed and tailored to legitimate aims. It has to be evaluated next whether safeguards against abuse exist. As Section 6 G10 stipulates, the BND itself has to assess the relevance of the data for the tailored aims within a period of six months. According to Chapter 5, a parliamentary committee and a G10 Commission, who are independent and not bound by instructions, regularly review all surveillance activities. In sum, the G10 fulfils the criteria of a domestic legal basis for surveillance that complies with international law provisions. It can be concluded that the limits set to the BND in collecting personal data are stricter than the ones provided by US law. Nonetheless Section 5 (2) G10 includes a distinction between Germans and nonGermans. The selectors used for communications between non-Germans are not subject to any limitations and thus, like in the USA, the law differentiates between own and foreign citizens. Therefore, not all provisions in the G10 can be seen as complying with human rights obligations.

B. The Transmission of Personal Data to the NSA

Documents leaked by Edward Snowden revealed that the BND knew about the NSA surveillance (though it is uncertain to what extent) and additionally supported the work of the NSA by providing the US agency with data obtained through its own

66

ECtHR, Weber and Saravia v. Germany, Decision on the Admissibility of 29 June 2006, RJD 2006-XI, 309, paras. 81 et seq.

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surveillance.67 Programmes like ‘Operation Eikonal’, under which information passing the world’s biggest switching centre in Frankfurt was shared with the NSA, exemplify this BND practice.68 In the aforementioned cases of Afghanistan and Somalia, data were searched with selectors provided by the USA and the results were passed on to the NSA.69 But what is the effect on human rights obligations when data are transferred to a State that does not respect the right to privacy for foreign citizens? First, it is clear that no State may avoid its human rights obligations by intentionally letting another State perform a violation on its behalf. Obviously, such an intention for the German authorities cannot be assumed, lest be proven. Nonetheless, the ECtHR has held that human rights are already violated when a State exposes an individual to a foreseeable violation of their human rights.70 As a prerequisite, the sending State must have known or ought to have known about the violations.71 So, is it prohibited to expose persons to a real risk of privacy violations by handing over their personal data? Admittedly, the ECtHR’s jurisprudence so far is related to physical harm. However, the European Court of Justice (ECJ) in its recent Schrems judgment has applied the same general rules to the field of data protection. According to that judgment, data transfers may only be authorised if the receiving State has an adequate legal framework of data protection similar to that of the State sending data.72 Taken together, the dogmatic considerations of the ECtHR and the ECJ establish the obligation not to expose an individual to a foreseeable violation of their right to privacy. That the US legislation on surveillance powers granted to its intelligence agencies is far from meeting the protective standards of the right to privacy has been set out above 67

Kai Biermann/Yassin Musharbash, Suche NSA-Spionagesoftware, biete deutsche Daten, Zeit, 26 August 2015, available at: http://www.zeit.de/digital/datenschutz/2015-08/xkeyscore-nsa-verfassungsschutz (accessed on 22 March 2016). 68 Georg Mascolo/Hans Leyendecker/John Goetz, Codewort Eikonal: der Albtraum der Bundesregierung, Süddeutsche Zeitung, 4 October 2014, available at: http://www.sueddeutsche.de/politik/geheimdienstecodewort-eikonal-der-albtraum-der-bundesregierung-1.2157432 (accessed on 22 March 2016). 69

Spiegel (note 59); Zeit (note 59).

70

ECtHR, Soering v. The United Kingdom, Judgment of 7 July 1989, Series A, No. 161, paras. 90 et seq., 113; id., El-Masri v. The Former Yugoslav Republic of Macedonia, Judgment of 13 December 2012, RJD 2012-VI, 263, paras. 212–214, 239; id., Al Nashiri v. Poland, Appl. No. 28761/11, Judgment of 14 July 2014, paras. 453 et seq. 71 72

Id., El-Masri (note 70), para. 239.

European Court of Justice, Maximilian Schrems/Data Protection Commissioner, Case C-362/14, Judgment of 6 October 2015, para. 107.

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(III. B.). Moreover, these inadequacies have to be regarded as obvious. Given the general public accessibility of the relevant US legislation, the BND knew or ought to have known about the human rights violations and, thus, Germany is responsible for the violation of the right to privacy of those individuals whose data were passed on.73 More than just entailing a negative obligation not to violate human rights and not to participate in such breaches by other States, the ECHR74 and ICCPR75 establish a positive obligation to ensure and actively protect human rights of persons under the State’s jurisdiction. Therefore, Germany had the positive obligation to protect the privacy of all persons under its jurisdiction. Although it is unclear how far the scope of this obligation actually reaches, it is certainly infringed when a State actively passes on protected data and enables human rights violations by the recipient State. Referring back to Chancellor Merkel’s statement, spying on friends is a (human rights) no-go for sure, but Germany’s participation is no less a violation itself.

V. Conclusion Thanks to the significant leaks of Edward Snowden, which revealed the practices of the NSA, we now have definite knowledge of the mass surveillance programmes of the US (like PRISM) and are able to determine that they violate the German citizens’ right to privacy. Whereas the German protection of the right to privacy might be more effective than in the US, at least the transfer of personal data from the BND to the NSA constituted a violation of the right to privacy as well. So far we must conclude that both States whose behaviour was the subject of the previous assessment do not comply with their obligations under the universal right to privacy. With regard to the future protection of human rights it is much to be hoped that as a consequence of the public reactions and the incentives set up by the General Assembly and the UN High Commissioner, the G10 and FISA will be amended to fit human rights standards. Nonetheless, it is doubtful whether surveillance will be termi73 Similarly, in Art. 16 ILC Articles on the Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Sess., Suppl. 10, 43 et seq., States are prohibited to aid or assist in the commission of such an internationally wrongful act. 74 75

William A. Schabas, The European Convention on Human Rights (2015), 90–91.

Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd ed. 2005), XX–XXI.

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nated or curbed anytime soon. Even ‘No-Spy Agreements’ will probably not lead to an end of surveillance and will rather be a political statement. The governments’ fear of terrorist attacks and the longing for security will – in the coming years – be prevailing reasons to interfere with and even violate the right to privacy. The hope remains that the ECtHR will at last pass judgment on a German violation of Article 8 ECHR. Hopefully that will be a warning to all the other human rights violators and create an international precedent to re-strengthen people’s right to privacy.

Germany’s Proposal of a ‘Grexit auf Zeit’ SARAH BOTHE( AND CHARLOTTE GASCHKE((

I. Introduction The recent years have been times of turmoil for the Eurozone, especially concerning the State of Greece. For a number of reasons State debt in Greece has been far above the allowed State debt agreed upon by the Member States of the European Union (EU). The Greek State as well as Greek banks have been close to bankruptcy, making it necessary for the Eurogroup to unleash various bail-out packages. A total of €243 billion was paid to Greece over the last years on the basis of the bail-out packages.1 The first one,2 a bilateral programme concluded outside of the legal framework of the EU, was released in spring 2010 and had a total volume of €110 billion, €80 billion3 of which were disbursed by the Member States and €30 billion by the Interna(

Dipl. Jur. (University of Kiel), Doctoral Candidate at the University of Kiel and Resarch Associate at the law firm Wülfing Zeuner Rechel Partnerschaft Rechtsanwälte in Hamburg. The views expressed herein are solely those of the authors and do not in any way reflect the views of Wülfing Zeuner Rechel Partnerschaft Rechtsanwälte. (( Bachelor of Arts (Social Sciences) and Student Research Assistant at the Walther Schücking Institute for International Law at the University of Kiel. 1 David Rose, So viel Geld floss nach Griechenland, Tagesschau, 3 December 2015, available at: https://www.tagesschau.de/wirtschaft/rettungspakete-101.html (accessed on 21 February 2016). 2 The Economic Adjustment Programme for Greece, Occasional Papers 61, May 2010, 26, available at: http://ec.europa.eu/economy_finance/publications/occasional_paper/2010/pdf/ocp61_en.pdf (accessed on 3 April 2016); legal basis in Germany is the Gesetz zur Übernahme von Gewährleistungen zum Erhalt der für die Finanzstabilität in der Währungsunion erforderlichen Zahlungsfähigkeit der Hellenischen Republik (Währungsunion Finanzstabilitätsgesetz, WFStG), 7 May 2010, Bundesgesetzblatt (BGBl.) I, 537. 3 This amount was reduced by €2.7 billion because Slovakia decided not to participate in the Greek Loan Facility Agreement while Ireland and Portugal stepped down from the facility as they requested financial assistance themselves.

482 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

tional Monetary Fund (IMF) under a stand-by arrangement.4 Germany took over the liability for a sum of €22.4 billion which was about 20%5 of the total bail-out package sum of €110 billion.6 The second bail-out package consisted of the European Financial Stabilisation Mechanism (EFSM)7 with a total volume of €60 billion and the European Financial Stability Facility (EFSF),8 which can support Member States with a volume up to €440 billion if the EFSM is exhausted.9 In the context of the second bailout package in 2012 Germany was to be held liable for €21.1 billion.10 In 2013, the EFSM and the EFSF were replaced by the European Stability Mechanism (ESM), a new permanent institution to provide financial support to EU Member States experiencing financial difficulties.11 In order to give the establishment of the ESM a legal basis allowing the Member States to create a permanent mechanism, Article 136 Treaty on the Functioning of the European Union (TFEU)12 had to be amended. Therefore a paragraph 3 with the wording “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole […]” had been added to Article 136 TFEU.13 4

See supra, note 2.

5

Statistics available at: http://www.statista.com/statistics/275900/european-stability-mechanismcontribution-of-eu-countries/ (accessed on 4 April 2016). 6

Nicolai Kwasniewski, Drittes Hilfspaket: Warum Griechenland noch mehr Geld braucht, Spiegel, 22 August 2013, available at: http://www.spiegel.de/wirtschaft/soziales/griechenland-wie-viel-euro-hatathen-schon-als-rettungspaket-bekommen-a-917814.html (accessed on 21 February 2016). 7 The EFSM is an emergency funding programme created by the Council Regulation Establishing a European Financial Stabilisation Mechanism, (EU) No 407/2010 of 11 May 2010, OJ 2010 L 118, 1. 8 The European Financial Stability Facility (EFSF) is a Luxembourgian stock company. The Framework Agreement was signed on 7 June 2010, available at: http://www.bundesfinanzministerium.de/ Content/DE/Standardartikel/Themen/Europa/Stabilisierung_des_Euro/Finanzhilfemechanismen/ 2010-06-09-schutzschirm-euro-anlage-1-eng.pdf?__blob=publicationFile&v=3 (accessed on 23 April 2016). 9

EFSF Framework Agreement, Annex 1.

10

Sec. 1 (1) cl. 1, Stabilisation Mechanism Act (Stabilisierungsmechanismusgesetz), 22 May 2010, BGBl. I, 627, as amended on 3 May 2012, BGBl. I, 1166. 11

The ESM is an intergovernmental organisation under public international law, based in Luxembourg. The treaty establishing the ESM was signed on 2 February 2012; Treaty establishing the European Stability Mechanism (Vertrag zur Errichtung des Europäischen Stabilitätsmechanismus), 2 February 2012, BGBl. II, 981 (ESM Treaty). 12 Treaty on the Functioning of the European Union, 30 March 2010, OJ 2012 C 326, 47 (consolidated version 2012) (TFEU). 13 European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro (2011/199/EU), OJ 2011 L 91, 1.

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The ESM has a capital stock of €700 billion,14 made up of €80 billion15 paid-in shares by the Member States and €620 billion unpaid callable shares.16 Germany paid €21.7 billion17 and is liable for another €168.3 billion unpaid callable shares.18 The first tranche of this so-called third bail-out package was released in August 2015 to Greece in the amount of €13 billion.19 The total sum granted to Greece amounts to €86 billion.20 If necessary, a higher amount will be granted in the future.

II. The German Proposal of a ‘Grexit auf Zeit’ Shortly after the first bail-out package, in May 2010, during the German parliamentary discussions concerning the European stabilisation mechanism, German chancellor Angela Merkel connected the fate of Europe with the fate of the Euro. “If the Euro fails, so does Europe”, she stated in front of the parliament.21 Due to the substantial part Germany had contributed to the bail-out packages and the role it played in rounding up the parties to join the discussion table as well as the high pressure to solve the Greek crisis, there was a certain debate on whether or not Germany was entitled to take a leading role in resolving the European crisis.22 German

14

See Art. 8 (1) ESM Treaty.

15

See Art. 8 (2) ESM Treaty.

16

See Art. 8 (2) ESM Treaty.

17

Calculated on the basis of the ESM Contribution Key according to Annex I ESM Treaty.

18

Calculated on the basis of the German capital subscription reduced by the paid tranche, Annex II ESM Treaty. 19 Marc Etzold, Die 86-Milliarden-Euro-Wette, WirtschaftsWoche, 18 August 2015, available at: http://www.wiwo.de/politik/europa/drittes-hilfspaket-fuer-griechenland-die-86-milliarden-eurowette/12200104.html (accessed on 21 February 2016). 20

As is laid down in the Financial Assistance Facility Agreement between the ESM and the Greek State, Bank of Greece, and the Hellenic Financial Stability Fund, available at: http://www.esm. europa.eu/pdf/2015-08-19%20GR%20-%20ESM%20-%20FFA%20publication%20version.pdf (accessed on 23 April 2016). 21 German Parliament (Deutscher Bundestag), Summary of Parliamentary Debate, “Scheitert der Euro, dann scheitert Europa”, available at: https://www.bundestag.de/dokumente/textarchiv/2010/ 29826227_kw20_de_stabilisierungsmechanismus/201760 (accessed on 19 May 2016). 22

Jackson Janes, Seiltanz zum „europäischen Deutschland“, Süddeutsche Zeitung, 24 November 2011, available at: http://www.sueddeutsche.de/politik/euro-krise-merkels-seiltanz-zum-europaeischendeutschland-1.1217287 (accessed on 21 February 2016); Bettina Schulz, Deutschland sollte sich von

484 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

politicians themselves showed a certain reluctance to accept a leading role: German Minister of Finance Wolfgang Schäuble himself stated that it would be quite farfetched to think the Germans wanted to play a special role or even force other States to live the way the Germans do.23 In the context of the various bail-out packages being set into motion, the Greek State had to do its part of the deal as well: reforming State and economy. In the early summer of 2015 however, crisis in Greece reached an unprecedented peak: Several drastic measures were put into action, such as capital controls, to keep the monetary system in Greece from collapsing.24 As a consequence, dramatic pictures of Greeks queuing in front of ATMs and panicking pensioners who could not collect their month’s pensions went around Europe. Economists started wondering aloud whether it would not be better for the Eurozone as well as the Greek economy to let Greece exit from the Eurozone and introduce the Drachma again.25 In the light of the critical situation in Greece in July 2015 the discussions about the third bail-out package started. German Minister of Finance Schäuble predicted they would prove to be enormously difficult.26 The reform proposals made by the Greek government were in his eyes far from satisfying.27 He stated this view in an internal position paper28 on Friday, 10 July 2015, before the weekend summit about seinen Ängsten lösen, Zeit, 18 November 2014, available at: http://www.zeit.de/wirtschaft/201411/europa-deutschland-wirtschaftsmacht (accessed on 21 February 2016). 23

Anon., Schäuble will keine deutsche Sonderrolle in Europa, Die Welt, 19 July 2013, available at: http://www.welt.de/politik/deutschland/article118222847/Schaeuble-will-keine-deutscheSonderrolle-in-Europa.html (accessed on 21 February 2016). 24

Anon., Chronik: Griechenlands Weg in die Krise, Tagesschau, 2 March 2015, available at: https://www.tagesschau.de/wirtschaft/griechenland640.html (accessed on 31 January 2016); Landeszentrale für politische Bildung Baden-Württemberg, Finanzkrise in Griechenland, available at: https://www.lpb-bw.de/finanzkrise_griechenland.html#c24022 (accessed on 25 May 2016). 25 Julian Trauthig, Die Logistik eines Grexit, Frankfurter Allgemeine Zeitung (FAZ), 27 June 2015, http://www.faz.net/aktuell/wirtschaft/eurokrise/griechenland/grexit-wie-koennte-die-rueckkehr-zurdrachme-ablaufen-13661346.html (accessed on 2 March 2016). 26

Ala./T.G., Schäuble bringt „Grexit“ auf Zeit ins Gespräch, FAZ, 11 July 2015, available at: http:// www.faz.net/aktuell/wirtschaft/eurokrise/griechenland/eurofinanzminister-treffen-schaeuble-bringtgrexit-auf-zeit-ins-gespraech-13697851.html (accessed on 21 February 2016). 27 28

See ibid.

German Parliament (Deutscher Bundestag), Answer of the Federal Government to Questions of Parliamentarians: Verhandlungen zwischen der Euro-Gruppe und Griechenland und der Vorschlag eines vorübergehenden Austritts aus der Euro-Zone, Bundestagsdrucksacken (BT-Drs.) 18/5775, 17 August 2015.

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Greece, saying “these proposals lack a number of paramount important reform areas to modernize the country, to foster long term economic growth and sustainable development”.29 Therefore they could not “build the basis for a completely new, three year ESM program, as requested by Greece. We need a better, a sustainable solution, keeping the IMF on board”.30 The German Minister of Finance described two possible scenarios – the only two to get Greece out of crisis: The first path would be for Greece to “improve their proposals rapidly and significantly, with full backing by their parliament”.31 In case that “debt sustainability and credible implementation perspective cannot be ensured upfront” there is path two: a ‘Grexit auf Zeit’ (‘temporary Grexit’).32 This would entail swift negotiations with Greece concerning a “time-out” from the Eurozone.33 The main idea would be that in the case of an exit from the Eurozone a sufficient debt restructuring would be possible. Otherwise this would not be in accordance with Euro-membership as is laid down in Article 125 TFEU.34 Schäuble argued that there was a growing awareness among economists that a true debt cut might be Greece’s only way out of the crisis. This, however, could only be put into action if Greece left the Eurozone because a debt cut with Greece staying in the Eurozone would mean a breach of the treaties.35 However, as for such a decision the consent of Greece itself would be necessary, a ‘Grexit auf Zeit’ does not mean forcing Greece to leave but negotiating about the best way to solve the crisis.36 This approach was backed if not even out-competed by leading economists, such as Hans-Werner Sinn, president of the ‘ifo’ institute for economic research who had been proposing an exit (and not only

29 Wolfgang Schäuble, Comments on the latest Greek proposals, Spiegel, 10 July 2015, available at: http://www.spiegel.de/media/media-37108.pdf (accessed on 21 February 2016). 30

Ibid.

31

Ibid.

32

Ibid.

33

Ibid.

34

Ibid.

35

Christine Heuer, Schäuble spricht weiter vom Grexit auf Zeit, Deutschlandfunk, 16 July 2015, available at: http://www.deutschlandfunk.de/griechenland-schaeuble-spricht-weiter-vom-grexit-aufzeit.694.de.html?dram:article_id=325529 (accessed on 21 February 2016). 36

See ibid.

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for a certain amount of time) of Greece from the Eurozone as the proper way to get the economy running again.37 However, this new ‘German’ approach was harshly criticised only days after Schäuble’s paper was circulated. French President François Hollande dismissed the idea of a ‘time-out’ from the Eurozone: “Either there is a Grexit or there is no Grexit”.38 And the former Austrian head of government Werner Faymann called the proposed ‘timeout’ Grexit “degrading and wrong”.39 In the end, the ‘Grexit auf Zeit’ never actually happened. In August 2015 Greece and its European partners agreed upon the conditions for the third bail-out package.40 So far there has been no more debate about a Greek exit from the Eurozone. For further reference however, the legal conditions under which the model of a ‘Grexit auf Zeit’ or a ‘Grexit’ in general would be possible shall be examined here. The European Treaties do not explicitly provide a legal foundation for such a step. However, varieties of legal options based on the treaties and on public international law are being discussed. The following section shows an overview of the possible legal options for leaving (and re-entering) the Eurozone.

III. Legal Options for Leaving (and Re-entering) the Eurozone We can distinguish between two possible scenarios of a State exiting the Eurozone: one in which the State gives its consent, either by leaving voluntarily out of its own accord or in which it gives its consent to an agreed exit (infra, B.), and one in which the other Member States expel one State from the Eurozone (infra, C.). While the second option seems politically unlikely and has therefore never seriously been debated in context with the Greek crisis, the ‘Grexit auf Zeit’ follows the first ap37 Christian Siedenbiedel, Der Grexit ist die Rettung, FAZ, 22 June 2015, available at: http://www. faz.net/aktuell/wirtschaft/eurokrise/griechenland/hans-werner-sinn-der-grexit-ist-die-rettung13658526.html (accessed on 21 February 2016). 38 Marlies Uken, Ein Papier, das Europa spaltet, Zeit, 12 July 2015, available at: http://www.zeit. de/wirtschaft/2015-07/griechenland-schaeuble-grexit-treuhandfonds (accessed on 21 February 2016). 39

See ibid.

40

Rose (note 1).

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proach: an exit from the Eurozone consented upon by all the Member States, including Greece, and a possibility of re-entering the Eurozone later. As to how exactly this goal may be reached, the European Treaties do not give a definite answer, thus allowing room for a number of interpretative approaches.

A. Applicability of Public International Law?

One possible solution outside of European law could be the application of public international law, in concreto the Vienna Convention on the Law of Treaties (VCLT).41 However, the relation between European law and public international law is a disputed question among commentators.42 In one opinion European treaty law, even though the Treaty on European Union (TEU)43 and the TFEU were originally contracted under public international law, is now an independent legal system.44 In this case European treaty law would be lex specialis to public international law.45 In contrast, the counter opinion states that European law is still a part of public international law since the TEU and TFEU were born out of public international law.46 In this case the general principles of public international law could be used to interpret European treaty law in the light of public international law. But even these commentators agree on a restrictive use of public international law. Only in cases where the European treaty law

41

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

42

Ulrich Häde, Article 140 TFEU, in: Christian Calliess/Matthias Ruffert (eds.), Commentary on TEU/TFEU (4th ed. 2011), 1669, MN 63. 43

Treaty on European Union, 24 December 2002, OJ 2002 C 325, 5 (consolidated version) (TEU).

44

European Court of Justice (ECJ), NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen, Case C-26/62, 1963 ECR 1; Bruno Simma/Christoph Vedder, Artikel 281 EGV, in: Eberhard Grabitz/Meinhard Hilf (eds.), Das Recht der Europäischen Union (2009), MN 37 with further references. 45 Among others: Christoph Herrmann, Griechische Tragödie: der währungsverfassungsrechtliche Rahmen für die Rettung, den Austritt oder den Ausschluss von überschuldeten Staaten aus der Eurozone, Europäische Zeitung für Wirtschaftsrecht (EuZW) (2010), 413, 417; Dirk Meyer, Rechtliche Möglichkeiten eines Ausscheidens aus dem EURO und die Rückübertragung der Währungssouveränität, Europarecht (2013), 334, 340; Phoebus Athanassiou, Withdrawal and Expulsion from the EU and EMU: some reflections, ECB Legal Working Paper Series 10/2009 (2009), 15, available at: https:// www.ecb.europa.eu/pub/pdf/scplps/ecblwp10.pdf (accessed on 20 January 2016). 46

Hannes Hofmeister, ‘Should I Stay or Should I Go?’ – A Critical Analysis of the Right to Withdraw from the EU, European Law Journal 16 (2010), 589, 591.

488 GERMAN YEARBOOK OF INTERNATIONAL LAW 58 @ 2015

provides no statutory role for a problem, public international law should be applicable.47 Especially the German Federal Constitutional Court (Bundesverfassungsgericht) emphasised in its Maastricht decision in 1993 that the Monetary Union is a “community based on stability”. Therefore if stability in the Eurozone could not be assured anymore, it should be possible for Germany to leave the Eurozone as an ultima ratio.48 The Court reasoned that the Member States are still sovereign States and “masters of the treaties” because of the limitiation of European Communities (EC) competencies to essentially economic areas.49 Thus, on the one hand, the Member States had transferred sovereign rights to the European Union, on the other hand, they still were sovereign States. In this context the German Federal Constitutional Court coined the term “Staatenverbund”,50 characterising the European Union as poised in between a loose federation of States (Staatenbund) and a federal State (Bundesstaat). Bearing this in mind, one could argue that with the emphasis on the sovereignty of the Member States the Court derives a possible withdrawal right from public international law.51 Assuming the TEU and the TFEU are still international agreements and not a distinct legal order, and in absence of any clear regulation of the withdrawal from the Eurozone in the EU Treaties, public international law, in particular the VCLT, should be applicable.52 Besides, since most of the provisions of the VCLT are seen as a codification of customary international law,53 an application of the Convention is not in conflict with the fact that not every Member State of the EU has ratified the 47

Id., Goodbye Euro: Legal Aspects of Withdrawal from the Eurozone, Columbia Journal of European Law 18 (2011), 111, 122. 48

German Federal Constitutional Court (Bundesverfassungsgericht) (FCC), Maastricht, BVerfGE 89, 155, 204; id., Lisbon, BVerfGE 123, 267, 370. 49

See FCC, Maastricht (note 48), 190.

50

See ibid., 155.

51

See also Fabian Bonke, Die ‘Causa Griechenland’: Rechtmäßigkeit der Krisenhilfen und Möglichkeit des Ausscheidens eines Mitgliedstaates aus der Europäischen Währungsunion, Zeitschrift für europarechtliche Studien 13 (2010), 493, 495, 518, with further references. 52

See also Bernhard Kempen, Artikel 140 AEUV, in: Rudolf Streinz (ed.), EUV/AEUV: Vertrag über die Europäische Union und Vertrag über die Arbeitsweise der Europäischen Union (2nd ed. 2012), 1576, MN 32. 53

Dirk Hanschel, Der Rechtsrahmen für den Beitritt, Austritt und Ausschluss zu bzw. aus der Europäischen Union und Währungsunion, Neue Zeitschrift für Verwaltungsrecht (2012), 995, 999.

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VCLT.54 There are two provisions in the VCLT that may allow Greece to withdraw from the Eurozone: Article 60 VCLT (Termination or suspension of the operation of a treaty as a consequence of its breach) and Article 62 VCLT (Fundamental change of circumstances). Since the ‘Maastricht Treaty’ (TEU), the establishment of a European Economic and Monetary Union (EMU) is one of the main goals of the EU (see Article 3 (4) TEU). In other words: As a long-term goal, every member of the European Union should become part of the Eurozone.55 The European monetary policy is laid down in Articles 127–144 TFEU. Although the monetary policy is part of the TFEU, being part of the Eurozone could be seen as a ‘voluntary add-on’ to the treaties.56 As long as a State does not meet the ‘Maastricht criteria’, it is impossible for a State to enter the Eurozone, Article 139 (1) TFEU. That raises the question whether it is possible for a member of the Eurozone that does not meet the criteria anymore to leave the Eurozone without leaving the EU and to re-enter when meeting the criteria again. Since membership in the Eurozone is not laid down in a separate treaty, an exit from the Eurozone would concern a partial termination of the TFEU/TEU.57 According to international treaty law a partial termination of a treaty is possible as long as the reason for termination only concerns individual provisions of the treaty, but the whole treaty can stay in force even without these provisions (see Article 44 (3) VCLT).58 Even though the VCLT provides a possibility to partly terminate a treaty, it is hard to argue that the provisions concerning the Euro are a separate terminable part of the TFEU or TEU. As mentioned above, achieving a single European currency is a main goal of the EU, which is supposed to be realised through secondary EU legislation such as the Council Regulation on the Introduction of the Euro.59 This problem is addressed by none of the commentators who consider a withdrawal 54 France and Romania are not parties to the VCLT, see list of signatures and ratifications available at: https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter= 23&Temp=mtdsg3&lang=en (accessed on 20 January 2016). 55

Walter Frenz, Europarecht (2nd ed. 2016), 280.

56

See also Hanschel (note 53), 1000; Peter Behrens, Ist ein Ausschluss aus der Euro-Zone ausgeschlossen?, EuZW 4 (2010), 121. 57

See ibid.

58

Hanschel (note 53), 1000.

59

See Council Regulation (EC) No 974/98 of 3 May 1998 on the Introduction of the Euro, OJ L 139, 1–5.

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from the Eurozone under international law.60 But without identifying specific provisions to withdraw from, it is already dogmatically impossible to construct a partial termination of the TFEU or TEU. Nevertheless, since some commentators argue in favour of leaving the Eurozone under international law and the article discusses all scenarios that could be used to implement a ‘Grexit auf Zeit’, the possibilities under international law will still be introduced and at least theoretically discussed – assuming that membership in the Eurozone is a separate part of the TFEU/TEU. Consequently, the following sections of the paper will analyse all legal possibilities – both under European Union law and under public international law – to leave (and re-enter) the Eurozone.

B. Voluntary Exit (and Re-entry)

The proposed ‘Grexit auf Zeit’ puts emphasis on finding an agreement between the Member States concerning the Greek exit. This gives room mainly to an agreed exit (and re-entry) by decision of the Member States (as shown infra, B. 2.). However, one of the options for a voluntary exit could also be the unilateral decision of a State to leave the Eurozone for a certain period of time with the Member States only agreeing upon the ‘cushioning’ side conditions to an exit.

1. Unilateral Right to Leave (and Re-enter) the Eurozone A unilateral right to exit may be found in Article 50 TEU either by applying it directly or through means of interpretation.

a) Direct Applicability of Article 50 TEU The European Treaties do not explicitly grant a right to leave merely the Eurozone. They do, however, grant a right to leave the European Union. This right is stated in Article 50 TEU. The existence of this article gives room to two questions: 60

Among others Herrmann (note 45); Meyer (note 45); Hanschel (note 53).

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Firstly, does a Member State that makes use of its right to leave the EU automatically leave the Eurozone with its exit from the EU? And secondly, can we interpret Article 50 TEU so far that it also includes the right for a State to leave the Eurozone whilst staying in the European Union? In order to find an answer to these questions it is worth taking a look at the arguments in the pre-Lisbon Treaty debate whether or not a right to leave the EU existed, when there did not exist an explicit rule concerning the right to exit from the EU.61 The lack of an exit clause was interpreted in two ways. One side argued that the Member States still possessed sovereignty as States and therefore could withdraw from international commitments, such as the EU, if they wished to do so.62 The other side pointed out that the lack of an exit clause must be intentional and that therefore no right to exit from the EU existed.63 With the introduction of Article 50 TEU the Member States made clear, however, that from this moment on an exit right existed. The reasons for not spelling out a right to withdraw from the Eurozone are the same as the reasons originally given for not spelling out a right to withdraw from the EU: Firstly, if one puts the right to exit into legal stipulations, the fear is that this might make it more likely for States to actually take this step64 as in this case there can be no doubt about the existence of this right. Secondly, one does not want to put into question the shared goals of the Member States by granting an exit right,65 especially the goal of an “ever closer union” (Preambular Paragraph 1 TFEU, Preambular Paragraph 13 and Article 1 TEU). And, of course, if the right to leave is spelled out, there is also a need to spell out the procedure and consequences of such a step.66 As we can see, the spelling out of the consequences does turn out to be difficult: There is still a debate upon whether or not an exit from the EU also constitutes an exit from the Eurozone. One could argue that Article 50 TEU only grants a right of 61

Athanassiou (note 45), 9.

62

See FCC, Maastricht (note 48); as well as id., Lisbon (note 48); Athanassiou (note 45), 11.

63

Athanassiou (note 45), 11.

64

Hal Scott, When the Euro Falls Apart, International Finance (1998), 207, 215; Karl Doehring, Einseitiger Austritt aus der Europäischen Gemeinschaft, in: Dieter Dörr et al. (eds.), Die Macht des Geistes: Festschrift für Hartmuth Schiedermair (2001), 695, 696; Athanassiou (note 45), 10. 65

Scott (note 64), 215; Athanassiou (note 45), 9.

66

Scott (note 64), 215; Athanassiou (note 45), 10.

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withdrawal for Member States that do not have the Euro as their currency,67 as when Article 50 TEU was drafted, there was no intention of ever granting a likewise right to withdraw from the Euro. Those States that are part of the Eurozone could only leave by negotiation via treaty amendment, Article 48 TEU.68 It is, however, much more likely that the same reasons that kept the European lawmakers from composing an explicit right to leave the EU now kept them from spelling out explicitly all the consequences of a withdrawal from the Eurozone. Therefore, some scholars hold an exit from the European Union to necessarily include a withdrawal from the Eurozone.69 This is in accordance with the European Treaties’ aims: It is for the Member States to form an ever closer union concerning their economies and monetary policies (see Article 3 TEU, Articles 119 et seq. TFEU). There is no similar intent to form a union with States that are no members of the European Union. Leaving the Eurozone by exiting from the EU following the rules laid down in Article 50 TEU is therefore possible. It would even be possible – at least in theory – that a State leaves the European Union via Article 50 TEU – thus leaving the Eurozone at the same time – and instantly re-enters the European Union as a Member State with a derogation (Article 139 TFEU) according to Article 49 TEU.70 In a situation of political and economic emergency, however, the amount of time the procedure of leaving and then re-entering under Article 49 TEU would take could prove to be problematic.71 Furthermore, in the case of Greece, Schäuble intended the State to stay in the European Union. Therefore, other ways are being discussed for a State leaving the Eurozone whilst staying in the European Union.

67

Athanassiou (note 45), 29.

68

Ibid.; René Smits, The European Constitution and the EMU: An Appraisal, Common Market Law Review 42 (2005), 425, 465. 69 Jens Dammann, The Right to Leave the Eurozone, Texas International Law Journal 48 (2) (2013), 125, 131; Oliver Dörr, Artikel 50 EUV, in: Eberhard Grabitz/Meinhard Hilf/Martin Nettesheim (eds.), Das Recht der Europäischen Union (57th ed. 2015), MN 30. 70

Meyer (note 45), 337.

71

See ibid.

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b) Indirect Applicability of Article 50 TEU The way of downgrading a State to a Member State with a derogation can also be reached not by way of treaty amendment but through Article 50 TEU itself. This can be achieved if one reads Article 50 TEU to include not only the right to leave the EU but to also include an isolated right to leave the Eurozone, the partial exit constituting a ‘minus’ to the full exit.72 As already stated, such a right is not explicitly put down in the text of Article 50 TEU. There is a so-called regulatory gap concerning the exit from the Eurozone.73 The treaties remain silent on States’ leaving the Eurozone, even though objectively there is a need for such a regulation.74 Leaving the Eurozone constitutes a partial cessation of the treaty – provided we assume that the provisions concerning the Euro are a separate terminable part of the TFEU and/or TEU (see supra, A.).75 Those who debate against such a cessation right in Article 50 TEU focus mainly on the irrevocable character of the EMU.76 They argue that for new EU Member States there exists a duty to join the Eurozone: Once they fulfill the requirements set out in Article 140 TFEU it is not in their hands to join the Eurozone, but an automatic process is set into motion.77 The goal is for all the Member States to join the Eurozone in the long run (Article 139 TFEU).78 This is made even clearer by the fact that Member States who do not have the Euro are called “Member States with a derogation” (Article 139 (1) TFEU), meaning that the agreed ‘normal’ status is the one of membership of the Eurozone. It is also true that the exchange rates at which the Euro shall be substituted for the currency of the Member State concerned are fixed “irrevocably” (Article 140 (3) TFEU).79 Whether this constitutes an argument against a cessation right can be debated, however, as this 72

Ibid.

73

Norbert Horn, Das Recht zum Austritt und Ausschluss aus der Europäischen Währungsunion, Zeitschrift für Bank- und Kapitalmarktrecht (2015), 353, 354; Meyer (note 45), 335; Behrens (note 56), 121. 74

Horn (note 73), 354.

75

See ibid., expanding the exit to the whole Economic and Monetary Union (Arts. 119–144 TFEU). 76

Meyer (note 45), 334.

77

Dammann (note 69), 139; Meyer (note 45), 335.

78

See Meyer (note 45), 355.

79

Dammann (note 69), 140.

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can also be read to mean that exchange rates are fixed irrevocably as long as the concerned Member State is part of the Eurozone. Such a restrictive interpretative option would read the existence of Article 50 TEU as an argument that there is no right to leave only the Eurozone as long as it is not put on an explicit legal basis (argumentum e contrario based on Article 50 TEU).80 However, for a number of reasons, an interpretation deducing an exit right from Article 50 TEU might be more realistic as well as handier in the long run. From a political and an economic point of view regulation of an exit from the Eurozone, thus granting a right to leave under certain conditions, is highly important. It opens the way to a regulated and controlled process which guarantees a lower degree of failure costs than an unregulated illegal process would do.81 Furthermore, the issue at hand concerns an exit from the Eurozone, not from the EMU. The Member State in question would merely go back to its status as a State with a derogation (Article 139 TFEU).82 This would not be an act to reverse the collective integration but would merely alter the participation of one Member State concerning one certain area.83 It seems highly at odds with some of the fundamental principles of the European Union to entirely banish the possibility for a State to leave the Eurozone. The European Union’s declared goal is to enhance the peace and well-being of its peoples (Article 3 TEU). This fundamental principle would be put into conflict with the duty to remain in the Eurozone if it was obvious that staying would be destructive to the economy of a Member State.84 Furthermore, if one reads Article 50 TEU to grant a right to partially exit from the Treaties leading to a partial membership, this would open the possibility for a differentiation that is already made possible through the intensified cooperation of only some Member States laid out in Article 20 TEU and Articles 326–334 TFEU.85 Another argument for the specific case of Greece is that for those States which no longer fulfill or even never fulfilled the conditions to join the Eurozone one would 80

Ibid., 143.

81

Meyer (note 45), 336.

82

Behrens (note 56), 121.

83

See ibid.

84

Dammann (note 69), 137.

85

Dörr (note 69), MN 30.

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open a legal way to return to their rightful status as Member States with a derogation until they really fulfill the necessary criteria and are thus ready to join a common currency.86 Overall, this second interpretation of Article 50 TEU is preferable as it grants a treaty-immanent path for an exit from the Eurozone, thus ‘communitarising’ the exit as a peaceful measure of leaving the Eurozone.87 A re-entry of Greece would then be possible under Article 140 TFEU once Greece meets the criteria laid out in Article 140 (1) TFEU and the Council revokes the derogation.

c) Application of Article 2 (1) TFEU Taking into view the States’ sovereign rights, the EU could via Article 2 (1) TFEU empower the Member States to make their own national rules in relation to Article 3 (1)(c) TFEU, thus terminating the common monetary policies.88 As this constitutes a far more severe breaching of the aim of an ever closer union than the interpretation of the treaties in a light that grants a (temporary) exit right from the Eurozone, this solution seems highly unlikely. A State could, of course, in violation of EU law introduce its own currency. This might be insofar justified as staying in the Eurozone depends upon the national constitutional regulations89 as can be seen in Article 50 (1) TEU where it is stated that the exit shall take place “in accordance with its own constitutional requirements”.90 Whether a State would dare breach solidarity and cooperation in such a way if it still wants to be a member of the European Union is, however, more than questionable. In the case of Schäuble’s ‘Grexit auf Zeit’ it was not even discussed.

86

Dammann (note 69), 138.

87

Dörr (note 69), MN 48.

88

Meyer (note 45), 337.

89

Peter Kindler, Währungsumstellung, Vertragskontinuität und Vertragsgestaltung, Neue Juristische Wochenschrift (2012), 1617; Kindler draws these conclusions especially from a FCC decision concerning the European aid for Greece, FCC, 2 BvR 987/10, 2 BvR 1485/10, 2 BvR 1099/10 of 7 September 2011, para. 137, available at: http://www.bundesverfassungsgericht.de/SharedDocs/ Entscheidungen/DE/2011/09/rs20110907_2bvr098710.html (accessed on 30 May 2016). 90

Dörr (note 69), Article 50 TEU, MN 22 et seq.

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d) Application of Article 62 VCLT A fundamental change of circumstances (clausula rebus sic stantibus) is also being discussed. Article 62 (3) VCLT could allow Greece to suspend its treaty obligations and thus to withdraw from the Eurozone for a certain period of time until the ‘fundamental circumstances’ are back to how they used to be in the first place. The scope of application of Article 62 VCLT is narrowed to cases where circumstances change substantially and as a consequence the obligations of the treaty, in concreto the obligations of Chapter 2 TFEU, become imbalanced and the treaty loses its object and purpose91 – again assuming the Eurozone could be seen as a separate part of the treaty (see supra, A.). Therefore, the change must not have been “foreseen by the parties” and may be invoked only if the circumstances in question were an essential basis of the parties’ consent to be bound by the treaty (Article 62 (1)(a) VCLT) and if the change radically transforms the extent of the parties’ obligations under the treaty (Article 62 (1)(b) VCLT). In order to enter the Eurozone it is mandatory that the national economy of the accession country is strong enough and competitive compared to the other Member States of the Eurozone. In other words, when Greece entered the Eurozone in 2001 Greece had to meet the ‘Maastricht criteria’ (Articles 126 and 140 TFEU) in order to become a member of the Eurozone. If an accession country does not comply with the requirements, the State is not allowed to become a member of the Eurozone (Article 139 (1) TFEU). Bearing in mind that certain irregularities occurred in the beginning of Greece’s entrance to the Eurozone (i.e. the forged statistics),92 it will be hard to argue that the change of Greece’s economic situation was unforeseeable for the Greek government. Only if a Member State were faced with a for all parties unforeseeable and intolerable situation, an invocation of a fundamental change of circumstances would be justified.93 The ‘Maastricht criteria’ were established to ensure that 91

Thomas Giegerich, Article 62, in: Oliver Dörr/Kirsten Schmalenbach (eds.), Vienna Convention on the Law of Treaties: A Commentary (2012), 1067, MN 47 et seq. 92 Anon., Griechenland erschwindelte Euro-Beitritt, FAZ, 14 November 2004, available at: http:// www.faz.net/aktuell/wirtschaft/konjunktur/euro-raum-griechenland-erschwindelte-euro-beitritt1189739.html (accessed on 22 December 2015). 93 Malcolm M. Shaw/Caroline Fournet, Article 62 Convention of 1969, in: Olivier Corten/Pierre Klein (eds.), The Vienna Convention on the Law of Treaties: A Commentary (Vol. 2) (2011), 1411, MN 31.

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the economy of a Member State is strong enough to withstand the competition in the Eurozone. Given the fact that Greece probably never complied with the ‘Maastricht criteria’,94 it would have been impossible for Greece to enter the Eurozone. Even if the circumstances have changed now in a significant way, it would be impracticable to reason that the economic change in Greece and therefore the economic problems of the Eurozone were unforeseeable for both parties. Another strong argument why Article 62 VCLT cannot be used is Article 62 (2)(b) VCLT. Paragraph 2 lit. b requires that the fundamental change of circumstances was not caused by one of the parties. The current ‘Greek Crisis’ was mainly caused by the Greek government as a result of a long-lasting mismanagement and not due to a general financial crisis.95 As a consequence recourse to Article 62 VCLT is not allowed.

2. Consented Exit from (and Re-entry into) the Eurozone Some argue that the most probable scenario for an exit from the Eurozone is by way of treaty amendment, as laid out in Article 48 TEU and Article 352 TFEU.96 As namely the German Constitutional Court stated repeatedly,97 the Member States are still “masters of the treaties”, meaning that any changes they want the EU to undergo can be put into action via amendment of the treaties.98 The treaty would then be amended in such a way that it entails a right not only to decide upon the entry of a Member State into the Eurozone as laid out in Article 140 TFEU but also upon the downgrading of a Member State to a Member State with a derogation (Article 139 TFEU).99 For this State the standard procedure of abrogating the derogation as laid down in Article 140 TFEU will be set into motion once more. This means that from the moment of the State becoming a Member State with a 94

Dammann (note 69), 138.

95

Matthias Herdegen, Die Währungsgemeinschaft als dauerhafte Rechtsgemeinschaft, Deutsche Bank Research, EWU-Monitor Nr. 52 (1998), 4, 9. 96

Kindler (note 89), 1617, 1618; Meyer (note 45), 339.

97

See supra, note 48.

98

Dammann (note 69), 132; Kindler (note 89), 1618.

99

See ibid.

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derogation onwards regular reports of its progress in fulfilling its obligations regarding the achievement of the criteria in Article 140 TFEU will be made to the Council. Once it fulfils the necessary obligations again, it will once more become a member of the Eurozone by procedure of Article 140 TFEU. This means that, following this path, proposing a ‘Grexit auf Zeit’ is only stating the obvious. An EU Member State can leave the Eurozone for a time. The only flaw in this procedure is that the signature of all Member States is required as well as the ratification of the treaty amendment in all the Member States,100 making this procedure highly dependent on the general public opinion in the EU.

C. (Temporary) Expulsion from the Eurozone

In the debate about a Greek exit from the Eurozone an expulsion was never really discussed. Some German economists agreed with Schäuble that an exit would be wise taking economic reasoning into consideration. They, however, agreed with Schäuble that it had to be an exit with the consent of the Greek State itself.101 In the unlikely event that the rupture between the Member State concerned and the EU or the other Member States is so severe that there is a need for a (temporary) expulsion of the State in question from the Eurozone, the following paths seem probable however.

1. Annulment of Council Decision The EU could annul by decision of the European Court of Justice (ECJ) through Article 263 TFEU the decision that led to the entry of the State into the Eurozone (Article 140 TFEU). The State would then return to its status as a Member State with a derogation.102 A problem might be seen in the time limit of two months for annulling the Council’s decision set out by Article 263 TFEU. In the case of Greece the time limit would exclude the possibility of annulling the decision to make Greece part of the Eurozone. However, some argue, the constant manipulation of budget 100

Meyer (note 45), 337; see also Dammann (note 69).

101

See e.g. Siedenbiedel (note 37).

102

Meyer (note 45), 338; Behrens (note 56), 121.

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figures could lead to an inapplicability of the time limit clause by an actus contrarius via Articles 139 and 263 TFEU.103 In this case, Greece could re-enter following the procedure laid down in Article 140 TFEU once it meets the criteria prescribed in Article 140 (1) TFEU and the derogation can therefore be revoked by the Council.

2. Suspension of Rights Another way might be to suspend the concerned Member State’s rights.

a) Suspension Under the TEU There is no treaty provision for the case of a suspension of the right to be a member of the Eurozone. Closest to such a provision might be Article 7 (2) and (3) TEU that – under the circumstance of an infringement of fundamental values of the European Union – grants the Council the right to suspend a Member State’s rights.104 Another option would be the treaty infringement procedure in Articles 238 et seq. TFEU.105 However, the requirements necessary to join the Eurozone do not pose such fundamental values as are protected by Article 7 TEU. Furthermore, these measures constitute sanctions. Their intensity is much below an expulsion from the EU or EMU and in any case not suitable for quick actions.106

b) Suspension of Rights Under Article 60 VCLT Close to the idea of a ‘Grexit auf Zeit’ is a partial suspension under Article 60 VCLT until the Greek economy meets the ‘Maastricht criteria’ again and Greece could re-enter the Eurozone. Article 60 VCLT sets out conditions under which it is 103

See ibid.

104

Athanassiou (note 45), 29.

105

Horn (note 73), 357.

106

See ibid.

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possible to suspend a party from parts of a treaty in case of a material breach (Article 60 (2)(a) VCLT). In this case Greece could be suspended from the provisions concerning the Eurozone – assuming membership in the Eurozone can be seen as a separate part of the TFEU (see supra, A.). The prerequisite for that is a “material breach of a multilateral treaty” (Article 60 (1) VCLT). Current Prime Minister of Greece Alexis Tsipras declared several times that Greece was not willing and not able to implement the necessary reforms.107 However, it is a moot point whether the obligation to implement the necessary reforms could be seen as a part of Articles 119 et seq. TFEU as required in Article 60 VCLT. Yet a partial breach of obligations – in this case of Articles 119 et seq. TFEU – could be based on the fact that Greece manipulated data on its deficit in order to become a member of the Eurozone without actually meeting the ‘Maastricht criteria’.108 Article 139 (1) TFEU points out that a State can only become a member if it fulfils the criteria set out in Articles 126 and 140 TFEU. Article 126 (1) TFEU states: “Member States shall avoid excessive government deficits.” Article 140 (1) TFEU sets out that a Member State has to reach a “high degree of price stability”. By forging the statistics in order to enter the Eurozone Greece violated these provisions. On top of that, Greece also forged the deficit statistics several times between 2000 and 2003.109 This could also be seen as a severe breach because the weak budgetary discipline of Greece could lead to an endangerment of the aim of the TFEU to obtain price stability (Article 119 (2) TFEU), which could be a breach of contract in the sense of Article 60 (3)(b) VCLT. Despite a severe breach Article 60 (4) VCLT also requires that the treaty (in this case the TFEU) has no further provisions applicable in the event of a breach. In a case where a Member State does not fulfil the requirements of Article 126 (2) TFEU the excessive deficit procedure will be set in motion to avoid excessive government deficits. Also the treaty violation proceeding of Article 259 TFEU could be set in motion. For 107

Silke Wettach, Alexis Tsipras wird 30 Prozent der Reformen umsetzen, WirtschaftsWoche, 28 September 2015, available at: http://www.wiwo.de/my/politik/europa/griechenland-alexis-tsipraswird-30-prozent-der-reformen-umsetzen/12361348.html?ticket=ST-554800-6bol4gmjRqBekZj 2JXqC-ap4 (accessed on 25 January 2016); see also Horn (note 73), 356. 108 109

FAZ (note 92).

European Commission, Report on Greek Government Deficit and Debt Statistics, COM (2010) 1 final, 8 January 2010.

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this reason recourse to Article 60 TFEU is not possible.110 Besides that, to plead the faked statistics after this long period of time could be seen as an abuse of rights.

IV. Conclusion The debate about the economic and financial situation of Greece in summer 2015 dominated the news for weeks. Now, with other crises the EU has to deal with, the news have been a lot more quiet on the Greek situation. However, the Tsipras government agreed on a number of reforms, such as – in context of the third bail-out package – a reform of the pension system.111 Standard & Poor’s rating agency therefore lifted the Greek rating to ‘B’.112 All this has come at a cost, though: Tsipras’ majority in parliament has shrunk down to a three-seat-majority and protests against the latest reforms are gaining momentum.113 For now, with the German government seeking a compromise concerning the European refugee crisis and at the same time the Greek economy peaking up a little after a long downwards dwindle, there is no more talk of a ‘Grexit auf Zeit’. Some might call this fortunate. As we saw, there is no explicitly spelled-out right to leave (and re-enter) the Eurozone nor is there an interpretational approach granting a right to leave (and re-enter) the Eurozone that is not strongly debated against. The scenarios that proved to be most probable are the ones in which the Greek consent is required: either by interpreting Article 50 TEU to include the right of unilateral withdrawal from the Eurozone or by means of treaty amendment by all the States, creating the possibility to downgrade a Member State to a State with a derogation. However, in order to combat the insecurites of the debate, it might be wise to discuss and ultimately spell out in the treaties whether or not a right to leave the 110

Bernhard Kempen, Die Europäische Währungsunion und der Streit um die Geltung des Gemeinschaftsrechts, Archiv des Völkerrechts (1997), 273, 283. 111

Anon., Reformstreit in Griechenland: Brandanschlag auf Tsipras-Berater, FAZ, 30 January 2016, http://www.faz.net/aktuell/wirtschaft/eurokrise/griechenland/renten-streit-in-griechenlandbrandsatz-auf-alekox-flabouraris-14042760.html (accessed on 31 January 2016). 112

Anon., Bessere Kreditnote: Ratingagentur S&P stuft Griechenland herauf, FAZ, 23 January 2016, http://www.faz.net/aktuell/wirtschaft/eurokrise/griechenland/bessere-kreditnote-ratingagenturs-p-stuft-griechenland-herauf-14030089.html (accessed on 31 January 2016). 113

See FAZ (note 111).

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Eurozone or to be expelled from it as well as to re-enter it exists. The spelling out of the rule and the conditions for its application would also make it easier in the future to decide whether a State should stay or leave – at least for a certain period of time. This would put an end to groping in the dark for solutions. It would constitute a step towards more legal certainty, thus – hopefully – leading towards a quicker execution of measures to keep States from stumbling into crisis.

Towards Acceptance of Religious Pluralism: The Federal Constitutional Court’s Second Judgment on Muslim Teachers Wearing Headscarves JENS T. THEILEN(

I. Introduction: Uneasy Religious Pluralism We live in an “increasingly inhomogeneous society”1 – or at least in one in which the implications of diversity are growing progressively more difficult to deny.2 Within this context, one issue that continues to resurface is the so-called headscarf debate: In an overwhelmingly Christian Europe, are there instances in which the Christian majority may regulate the headwear of the Muslim minority? Thus, as Dominic McGoldrick has put it, the headscarf debate is “part of a broader question that is not new, but which is becoming more acute – how do people who disagree over profoundly different matters live together?”3 Recent European practice in the area of religious pluralism has not been particularly heartening: Martha Nussbaum dubbed this phenomenon the “new religious intolerance”.4

(

Teaching and Research Associate at the Walther Schücking Institute for International Law, University of Kiel. 1

Juliane Kokott, Laizismus und Religionsfreiheit im öffentlichen Raum, Der Staat 2005, 343, 362.

2

Martha C. Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (2013), 61. 3

Dominic McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (2006), 33 (emphasis omitted); cf. generally on reasonable pluralism as a permanent feature of democracies John Rawls, Political Liberalism (expanded ed. 1996), 36. 4

Nussbaum (note 2), 3–6 for on overview.

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Against this backdrop came the German Federal Constitutional Court’s (FCC’s) judgment of 27 January 2015,5 its second judgment concerning Muslim teachers wearing headscarves. The judgment’s most obvious implications concern Germany itself: We will glance at their scope (and limits) at the end of this note (VI.). Given the ubiquity of the headscarf debate, however, the judgment also has the potential to gain further relevance outside of Germany. To emphasise this, the analytical section of the note will sketch some possible connections with general theories of political morality which may claim relevance beyond the German context, and draw comparisons to the jurisprudence of the European Court of Human Rights (ECtHR), which has been and will continue to be seized with many similar cases. That is not to say that the German case can be thoughtlessly transposed to other contexts, merely to underline that it may provide useful inspiration. In the case of the ECtHR, furthermore, it is of direct relevance as part of the European consensus method.6 After a brief report on prior judicially relevant events in Germany (II.), the first main part of this note introduces the judgment in question (III.). The following section deals with parts of the judgment in further analytical detail (IV.). Needless to say, an exhaustive treatment of the many complex and multi-faceted issues it raises is well beyond the scope of this article: It aims only to roughly situate the judgment in a broader context. In that vein, the pre-final section takes a brief glance at potentially relevant norms of European Union law (V.). Before thus broadening our scope, however, let us return to the backstory in Germany.

5 Federal Constitutional Court (FCC) (Bundesverfassungsgericht), 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015, available at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/ DE/2015/01/rs20150127_1bvr047110.html (accessed on 16 February 2016); see infra, III., or the summaries (also in English) by Matthias Mahlmann, Religious Symbolism and the Resilience of Liberal Constitutionalism: On the Federal German Constitutional Court’s Second Head Scarf Decision, German Law Journal (GLJ) 2015, 887, 889–896; Johann Ruben Leiss, One Court, Two Voices: Case Note on the First Senate’s Order on the Ban on Headscarves for Teachers from 27 January 2015, GLJ 2015, 901, 903–910. 6 See generally Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (2015); references to national courts (rather than statutes) are comparatively rare: but see, in the context of the freedom of religion, European Court of Human Rights (ECtHR) (Grand Chamber), Lautsi and Others v. Italy, Judgment of 18 March 2011, RJD 2011-III, 61, para. 28.

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II. The Backstory in Germany For lack of any specific statutory regulation, German practice with regard to teachers wearing (non-Christian) religious attire was initially rather varied.7 Given that at least in some cases, women wearing headscarves were not considered viable teacher candidates, the issue inevitably reached the courts. One case in particular proved to be important: In that case, a Muslim woman by the name of Fereshta Ludin had been set to become a teacher – at a public school, i.e. as part of the civil service. However, she was ultimately refused a probationary position as a civil servant on the grounds that, since she was not prepared to lay aside her headscarf during lessons, she lacked the statutorily required personal aptitude. Ms. Ludin objected, relying mainly on the freedom of religion under Article 4 Basic Law (BL).8 Since the administrative courts sided with the school authorities but Ms. Ludin refused to give up, the dispute culminated in a judgment of the Second Senate of the FCC in 2003.9 The FCC’s judgment touched upon many of the issues which the case raised, but ultimately, it treated them only obliquely and avoided a clear stance on questions of substance. This was rendered possible by the following sleight of hand: According to the FCC’s settled case-law, “material” or “essential” decisions must be made by the legislature rather than by administrative or judicial authorities (Wesentlichkeitsrechtsprechung); this concerns, in particular, those cases where basic rights are interfered with.10 Having ruled that the order to abstain from wearing a headscarf during lessons does indeed interfere with the right to religious freedom,11 the FCC was able to succinctly decide in Ms. Ludin’s favour by referring to the lack of a statutory basis for said order.12

7 Maria Pottmeyer, Religiöse Kleidung in der öffentlichen Schule in Deutschland und England (2011), 19. 8

Basic Law for the Federal Republic of Germany (Grundgesetz für die Bundesrepublik Deutschland), 23 May 1949, Bundesgesetzblatt (BGBl.) 1949, 1, as amended on 23 December 2014, BGBl. I, 2438 (BL). 9

FCC, BVerfGE 108, 282, available in English at: http://www.bundesverfassungsgericht.de/Shared Docs/Entscheidungen/EN/2003/09/rs20030924_2bvr143602en.html (accessed on 16 February 2016). 10 Ibid., paras. 67–69; see generally Andreas von Arnauld, Die Freiheitsrechte und ihre Schranken (1999), 161–163. 11

FCC, BVerfGE 108, 282 (note 9), para. 70.

12

Ibid., paras. 57–71.

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From an academic perspective, this result led to widespread dissatisfaction. By merely hinting – moreover, in a somewhat haphazard way, according to many – at the substantial issues, the FCC “raised more questions than it answered”.13 More important, however, were the immediate practical consequences. For by reprimanding the lack of a pertinent statute but giving no clear guidance for the delineation of its potential contents from the perspective of the BL, the FCC had, for all intents and purposes, given the legislature carte blanche to decide as it saw fit. Since school matters fall under the auspices of the German federal states (Länder) according to Article 70 (1) BL, the scene was set for a bouquet of wildly differing laws in different regions.14 And so it happened. Broadly speaking, the reactions of the Länder may be classified along two axes. The first distinction is between those Länder that deliberately abstained from legislating and thereby decided in favour of headscarf-wearing teachers, on the one hand,15 and those that promulgated laws permitting restrictions on teachers’ religious attire.16 The latter would typically be worded rather vaguely and allow for broad interpretations, favouring far-reaching restrictions17 – or make those absolute restrictions explicit.18 They may further be distinguished, on the second axis, by their level of differentiation with regard to different religions: With surprising forthrightness,19

13

Jörn Ipsen, Karlsruhe locuta, causa non finita: Das BVerfG im so genannten „Kopftuch-Streit“, Neue Zeitschrift für Verwaltungsrecht (NVwZ) 2003, 1210, 1213. 14 The FCC had in fact foreseen and condoned this consequence: FCC, BVerfGE 108, 282 (note 9), para. 47. 15

Pottmeyer (note 7), 22.

16

Various statutory provisions can be found in English in McGoldrick (note 3), 115–117; for more detail see Corinna Sicko, Das Kopftuch-Urteil des Bundesverfassungsgerichts und seine Umsetzung durch die Landesgesetzgeber (2008), 93–168; Christine Kinzinger-Büchel, Der Kopftuchstreit in der deutschen Rechtsprechung und Gesetzgebung (2009), 193–227. 17

E.g. Sec. 38 (2) Baden-Württemberg’s Education Act (Schulgesetz für Baden-Württemberg), 1 August 1983, Gesetzblatt Baden-Württemberg (GBl. BW) 1983, 397, as amended on 1 April 2004, GBl. BW 2004, 178; Sec. 86 (3) Hessian Education Act (Hessisches Schulgesetz), 2 August 2002, Gesetz- und Verordnungsblatt Hessen (GVBl. Hesse) I, 466, as amended on 18 October 2004, GVBl. Hesse I, 306. 18

E.g. Sec. 2 Statute Regarding Article 29 of Berlin’s Constitution (Gesetz zu Artikel 29 der Verfassung von Berlin), 27 January 2005, Gesetz- und Verordnungsblatt für Berlin 2005, 92. 19

Despite FCC, BVerfGE 108, 282 (note 9), para. 71.

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many Länder included some kind of privilege for Christian teachers and their attire by way of an exception clause;20 others did not.21 Unsurprisingly, many of these statutes were challenged before the courts,22 and one of the more restrictive among them – that of North Rhine-Westphalia – was to wind up being examined by the FCC. It contains both a general restriction and a Christianity-oriented exception clause: Teachers may present no political, religious or ideological exhibition (äußere Bekundung) at school which is capable of endangering or disturbing the neutrality of the Land vis-à-vis pupils and parents or the political, religious or ideological peace at school (Schulfrieden). […] The implementation of the educational mandate in accordance with [the Constitution of North Rhine-Westphalia, which references Christian values] and, accordingly, the representation of Christian and occidental traditions or values of education and culture does not violate the above regulation of conduct.23

This provision was invoked to terminate the work contracts of Muslim teachers (and social education workers) who wore a headscarf during lessons and refused to discard it. In fact, as evidenced by one of the cases which reached the FCC, the women in question were threatened with termination of their contracts even when they proposed a compromise such as wearing a beret and a turtleneck to cover hair and ears.24 The courts condoned this restrictive approach, ruling that Section 57 (4) North Rhine-Westphalian Education Act (NRW-EA) was in accordance with the FCC’s earlier judgment, that religious attire constituted a religious “exhibition”, and that a mere abstract danger was enough to trigger the applicability of that Section.25

20

E.g. those of Baden-Württemberg and Hesse: supra, note 17.

21

E.g. that of Berlin: supra, note 18.

22

See Pottmeyer (note 7), 28, with further references.

23

Sec. 57 (4) North Rhine-Westphalian Education Act (Schulgesetz für Nordrhein-Westfalen), 15 February 2005, Gesetz- und Verordnungsblatt Nordrhein-Westfahlen (GV NRW) 2005, 102, as amended on 25 June 2015, GV NRW 2015, 495. 24 The facts of the case are laid out in more detail in FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), paras. 7–37. 25

E.g. Federal Administrative Court (Bundesverwaltungsgericht), BVerwGE 121, 140, 147 (the continuation of the Ludin case, regarding the very similar statute for Baden-Württemberg); Federal Labour Court (FLC) (Bundesarbeitsgericht), Judgment of 20 August 2009, reprinted in: Neue Zeitschrift für Arbeitsrecht 2010, 227, para. 18; FLC, Judgment of 10 December 2009, reprinted in: Betriebs-Berater 2010, 1287, para. 18 (the two judgments of last instance leading up to the FCC judgment at issue).

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Since two women contested this assessment, the issue again came before the FCC – this time, the First Senate.26

III. The Federal Constitutional Court’s Second Judgment on Teachers Wearing Headscarves The FCC extended its scrutiny to the entirety of Section 57 (4) NRW-EA,27 but treated the two issues identified above – the general restriction on the one hand and the differentiation by religion on the other – separately.28 With regard to the prior, it agreed with the labour courts’ assessment that given the religious implications it invokes, a headscarf may in principle be classified as a religious “exhibition”.29 However, it went on to measure this preliminary result against the BL. First of all, the FCC confirmed its findings in the first headscarf judgment whereby the wearing of a headscarf (or other headgear intended to replace it) by a teacher falls within the scope of the freedom of religion (Article 4 (1) and (2) BL),30 the teacher’s status as civil servants notwithstanding.31 More ink was spent on potential justifications for the interference with the teachers’ freedom of religion. According to the FCC’s settled case-law, any legitimate aims for interfering with Article 4 BL must be derived directly from the Constitution.32 In this case, it identified three such aims: the negative freedom of religion of the pupils 26 With Judge Hermanns of the Second Senate replacing Vice-President Kirchhof of the First Senate: cf. FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 26 February 2014. 27

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 79.

28

Ibid., paras. 80–122 (general) and paras. 123–138 (differentiation); see infra, IV. C. for how these issues intertwine. 29

Ibid., paras. 91–94.

30

Ibid., paras. 83–89; see also id., BVerfGE 108, 282 (note 9), paras. 36, 40; for a more detailed analysis of this part of the judgment, see Ute Sacksofsky, Kopftuch als Gefahr: ein dogmatischer Irrweg, Deutsches Verwaltungsblatt (DVBl) 2015, 801, 803–804; Benjamin Rusteberg, Kopftuchverbote als Mittel zur Abwehr nicht existenter Gefahren, Juristen-Zeitung (JZ) 2015, 637, 640. 31 See Jürgen Schwabe, Anmerkung, DVBl 2015, 570, 571, on the one hand, and Tonio Klein, Das Kopftuch im Klassenzimmer: konkrete, abstrakte, gefühlte Gefahr?, Die Öffentliche Verwaltung (DÖV) 2015, 464, 467 on the other. 32

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 98 (with further references).

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(likewise Article 4 BL), their parents’ right to care for and educate their children (Article 6 (2) BL), and the State’s duty to provide education (Article 7 (1) BL) which presupposes a neutral and peaceful environment.33 According to its customary dogmatic structure of proportionality, the FCC would now have proceeded to scrutinise the suitability (‘rational connection test’) and necessity (‘least restrictive means test’) of the interference at issue with regard to these aims before reaching the balancing stage (‘proportionality sensu stricto’).34 In this case, it avoided mentioning the question of suitability entirely35 and explicitly left the necessity undecided,36 focussing instead on proportionality sensu stricto.37 In relation to the pupils’ negative freedom of religion, the FCC developed the following line of argument:38 There is no general right not to be confronted with other people’s religion and the symbols or attire connected therewith. An exception is, however, in principle to be made for those situations in which such confrontation becomes unavoidable, as is the case for pupils (due to compulsory schooling in Germany). But this is subject to a counter-exception: For religious attire of any individual teacher is to be distinguished from symbols put up at the behest of the school authorities; only the latter can be attributed to the State. So long as teachers merely choose their own attire and do not actively aim at proselytism, therefore, the pupils’ negative freedom of religion is not interfered with39 – nor, by proxy, is their parents’ right to care for and educate them in matters of religion.40 It remained to examine the balance to be struck between the teachers’ freedom of religion and the State’s duty to provide education in a religiously neutral way. In this

33

Ibid., paras. 98–99.

34

See generally von Arnauld (note 10), 234–267; Aharon Barak, Proportionality (transl. 2012), 303–370. 35 Rusteberg (note 30), 641 sees this as a major shortcoming of the judgment since it should, according to him, have been answered in the negative. In avoiding this more absolute result, the FCC presumably wished to keep its options open for unusual or extreme situations; cf. infra, note 79. 36

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 100.

37

Ibid., paras. 101–115.

38

Ibid., para. 104.

39

Ibid., para. 105.

40

Ibid., paras. 106–107.

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regard, too, the lack of attribution of teachers’ attire to the State proved decisive:41 For the German State’s commitment to religious neutrality forbids the identification with a specific religion,42 but it does not rule out every imaginable connection between State and religion. Allowing all teachers to choose their own religious attire, then, maintains an “open”, “positive”, and “comprehensive” neutrality43 rather than a form of identification; in principle, therefore, the balance sways in favour of the teachers’ freedom of religion. Since there was no indication of any special circumstances, the FCC could have ended its analysis at this point. However, it proceeded instead to lay down some further guidelines, going beyond the cases at issue:44 If there is a concrete rather than merely an abstract danger to the peace at school and thereby to the State’s performance of its duty to provide education – for example in cases of extreme controversy and conflict – then the school authority may, as a last resort, order teachers to lay aside their religious attire during lessons.45 If such situations of conflict prove to be widespread, a more general regulation (e.g. by ordinance) would be thinkable.46 In the meantime, the FCC’s conclusion was nonetheless that while Section 57 (4) NRWEA is not unconstitutional as such, it must be read in accordance with Article 4 BL, thus restricting its use to situations of concrete danger.47 Since the labour courts had, to the contrary, allowed an alleged abstract danger to suffice, their decisions were in violation of Article 4 BL.48 Having reached this conclusion, the FCC turned to the second overarching issue contained in Section 57 (4) NRW-EA: the Christianity-orientated exception clause. It quite rightly made quick work of that clause, finding no possible justification for the difference in treatment of Christianity and non-Christian religions and, therefore, a violation of the prohibition of discrimination based on religion (Article 3 (3) 41

Ibid., para. 112.

42

Ibid., para. 109.

43

Ibid., paras. 110–111.

44

See Michael Sachs, Kein allgemeines Kopftuchverbot für Lehrerinnen in der Schule, Juristische Schulung (JuS) 2015, 571, 572. 45

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 113.

46

Ibid., para. 114.

47

Ibid., paras. 115–117.

48

Ibid., paras. 120–122.

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BL).49 Since the FCC did not consider a restrictive interpretation based on the BL possible, it declared 57 (4) NRW-EA null and void in this respect.50

IV. Analysis of the Judgment’s Main Issues A. The Distinction Between Civil Servants and Public Administration

The judgment raises many issues, only a few of which can be touched upon here. One pivotal point – already hinted at in the first headscarf judgment51 but now further developed52 – is no doubt the lack of attribution of teachers’ attire to the State despite their status as civil servants.53 This is what proved decisive in distinguishing the present case from the FCC’s so-called Crucifix judgment (although it also concerned bare crosses): In that case, the FCC vindicated the negative freedom of religion of pupils (and, by proxy, the rights of their parents) by deeming unconstitutional a Bavarian ordinance that prescribed the mounting of a cross in public schools’ classrooms.54 Whatever one may make of the details,55 the general idea of distinguishing between civil servants as individuals and public authority as a whole in the area of religious symbols and attire would seem to be extremely sensible. A cross on a schoolroom wall has no specific connection to any one person and is therefore more closely associated with the school as an institution and hence, the State.56 A headscarf, on the other hand, is very obviously connected to the person wearing it and their religious beliefs. There may still be a vague connection to the State when that person is a civil servant,

49

Ibid., paras. 124–130.

50

Ibid., paras. 131–138.

51

Id., BVerfGE 108, 282 (note 9), para. 54.

52

Id., 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), paras. 104, 112.

53

Cf. Thomas Traub, Abstrakte und konkrete Gefahren religiöser Symbole in öffentlichen Schulen, Neue Juristische Wochenschrift (NJW) 2015, 1338, 1339. 54

FCC, BVerfGE 93, 1.

55

Critically Schwabe (note 31), 571.

56

Ute Sacksofsky, Religiöse Freiheit als Gefahr?, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (VVDStRL) 68 (2009), 7, 25.

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but it is negligible compared to the personal component:57 “Legality is not approval”,58 or more specifically, “nobody would entertain the thought that the German State pledges allegiance to Islam because an individual teacher wears a headscarf”.59 What the distinction ultimately achieves, then, is a profound humanisation of the issue by setting the individual human being centre-stage, rather than their connection to the State. This idea strengthens the FCC’s conclusions, whether one takes the perspective of positive or negative freedom of religion. With regard to the positive side (i.e. living one’s own religion), it is a more fundamental and personal right to choose one’s own attire than to feel a vaguely State-sanctioned approval by way of an impersonal religious symbol mounted on the wall. From the negative perspective (i.e. confrontation with others’ religions), it is more jarring to see the supposedly neutral State support a certain religion than to see an individual person, albeit in a Staterelated context, adhere to the principles of their religion. It is worth noting that the ECtHR, when faced with similar cases, reached the contrary conclusion on both counts. In Dahlab,60 it ruled that a Swiss order prohibiting a Muslim teacher from wearing her headscarf did not violate the freedom of religion as guaranteed by Article 9 European Convention on Human Rights;61 and in the infamous Lautsi Case, the Grand Chamber allowed Italy to retain crosses on its classroom walls.62 Of course, one cannot simply transpose the FCC’s result for Germany to the European level. But leaving aside specific issues of methodology and dogmatics such as the margin of appreciation, one can at least appreciate that the basic direction of the argument shifts along with the result. In Dahlab, the ECtHR approvingly cited 57 Rusteberg (note 30), 641; Gabriele Britz, Das verfassungsrechtliche Dilemma doppelter Fremdheit: Islamische Bekleidungsvorschriften für Frauen und Grundgesetz, Kritische Justiz 2003, 95, 96; Mahlmann (note 5), 897; Susanne Baer/Michael Wrase, Staatliche Neutralität und Toleranz in der „christlich-abendländischen Wertewelt“, DÖV 2005, 243, 245; cf. Christoph Möllers, Religiöse Freiheit als Gefahr?, VVDStRL 68 (2009), 47, 85; incidentally, the connection to the State is stronger when only some religious symbols are allowed – a further reason to take into account the perspective of minority rights; cf. infra, IV. C. 58

Nussbaum (note 2), 117 (on allowing the burqa, with no specific connection to civil service).

59

Ute Sacksofsky, Die Kopftuch-Entscheidung: von der religiösen zur föderalen Vielfalt, NJW 2003, 3297, 3299. 60

ECtHR, Dahlab v. France, Judgment of 15 February 2001, RJD 2001-V, 447.

61

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS No. 005. 62

ECtHR (Grand Chamber), Lautsi (note 6).

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the Swiss Federal Court as taking “into account the very nature of the profession of State school teachers, who were […] representatives of the State”:63 in other words, it failed to focus on the teacher as a person, as the FCC did. In Lautsi, by contrast, the Grand Chamber laboured the classification of the cross as “an essentially passive symbol”,64 overruling the Chamber which had emphasised the issue of attribution by accepting the applicant’s perception of “the crucifix as a sign that the State takes the side of Catholicism”.65 The distinction insisted upon by the FCC is therefore not (yet) a part of the ECtHR’s take on religious symbols and attire in the classroom.

B. Grounds for Restricting Religious Freedom: What (Level of) Danger?

The other pivotal issue in the FCC’s judgment is that of possible grounds for restrictions on teachers’ religious attire, specifically the level of danger to peace at school (Schulfrieden)66 that must be surpassed for such restrictions to be permissible. When reading the FCC’s argument on this issue,67 one is struck by the resemblance to a certain passage in John Rawls’s exposition of justice as fairness. In arguing for his first principle of justice (the equal right to basic liberties), he uses the freedom of conscience (encompassing religious aspects) as the primary example.68 Discussing possible limits of that freedom, Rawls argues that they may rationally be accepted when “public order and security” are concerned,69 but “only when there is a reasonable expectation” that they will actually be damaged if limits to the freedom of conscience are not prescribed. Such an expectation “must be based on evidence and ways of reasoning acceptable to all”, the damage to security of public order “not be merely possible or in certain cases even probable, but reasonably certain or imminent”.70 63

ECtHR, Dahlab (note 60), 462.

64

ECtHR (Grand Chamber), Lautsi (note 6), para. 72.

65

ECtHR (Second Section), Lautsi v. Italy, Appl. No. 30814/06, Judgment of 3 November 2009, para. 53. 66

On which, cf. Sacksofksy (note 30), 806; Rusteberg (note 30), 641.

67

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), paras. 112–115.

68

John Rawls, A Theory of Justice (revised ed. 1999), 180–184.

69

Ibid., 186.

70

Ibid., 187.

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Compare this to the FCC’s phrasing. Contrary to what it may have implied in its earlier judgment,71 it holds now that a “mere abstract danger” is at any rate not enough to justify restrictions.72 Instead, the FCC refers to a concrete danger, but it immediately proceeds to further qualify that statement:73 it must be “the outward appearance of teachers” that “leads to or substantially contributes to” the danger,74 which must also be “attestable”,75 i.e. “backed up by evidence and reasoning”.76 The similarity to Rawls’s approach is evident, and the proximity of the FCC’s general approach to a liberal theory of rights is particularly welcome in this area since it serves to at least curb the effects of stereotypes and prejudices vis-à-vis minorities such as, in this case, Muslim women.77 There is some debate, however, over what the FCC’s conclusions mean in practice. Critics of the judgment fear that the move from abstract to concrete danger and the decisions on a case-by-case basis that come with it will be detrimental to legal certainty78 and thereby only contribute to further conflict in schools.79 Facing such issues by advancing more sweeping restrictions of the freedom of religion, however, can hardly provide an answer. Admittedly, this section of the judgment could have been formulated in a more precise way; yet the FCC’s further specifications of what the concrete danger must involve make it fairly clear, all things considered, that any

71 FCC, BVerfGE 108, 282 (note 9), esp. paras. 47, 49, 62; for varying views on the relation between the two judgments see Leiss (note 5), 911–912; Sacksofksy (note 30), 806–807; Rusteberg (note 30), 638–640; Klein (note 31), 464–466. 72

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 112.

73

Sacksofksy (note 30), 806; contrast, for example, the earlier position of Pottmeyer (note 7), 247.

74

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 113.

75

Ibid., para. 115.

76

Ibid., para. 116 (“ist zu belegen und zu begründen”).

77

See generally Ronald Dworkin, Taking Rights Seriously (new ed. 1997), esp. ch. 7 and 9; cf. Klein (note 31), 468; for a positive reformulation, see also the approach of Nussbaum (note 2), esp. ch. 4 and 5; see also infra, IV. C. 78 Daniel Enzensperger, Verfassungsmäßigkeit eines pauschalen Kopftuchverbots für Lehrkräfte an öffentlichen Schulen, NVwZ 2015, 871, 872. 79

Karl-Heinz Ladeur, Das islamische Kopftuch in der christlichen Gemeinschaftsschule, JZ 2015, 633, 634.

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prohibitions of religious attire must be limited to extremely narrow circumstances and used only as a very last resort.80 Any difficulties of demarcation are thus likewise limited.

C. Discrimination, Intersectionality, and Quandaries

Both issues discussed so far are applicable, in principle, to religious attire in general – although they gain special significance for religious minorities since, in practice, it is they who are affected by religiously restricting regulations, while the majority religion is so deeply encoded in societal structures and practices that, more often than not, it passes unnoticed or uncontested.81 It should not be forgotten, then, that the case at hand concerned the headscarf, i.e. a garment that typically carries special religious significance for Muslim women. At least in the German context (and likewise in the overwhelming majority of European countries), it pertains to a religious minority. In fact, Muslim women are liable to face multiple discrimination since they are both Muslim and women.82 As usual when dealing with intersectional issues like these, various stereotypes and prejudices tend to combine and become more than the sum of their parts.83 The ECtHR, sadly, provides a prime example of such prejudice.84 It gained notoriety when, in the case of Dahlab mentioned above, it stated that “the wearing of a headscarf […] appears to be imposed on women by a precept which is laid down in the Koran and which […] is hard to square with the principle of gender equality”.85 Such 80 Sacksofksy (note 30), 806; cf. Rusteberg (note 30), 641 who ostensibly takes an even stronger position (no danger due to headscarf possible at all) but admits to the possibility of seeing the teachers as “Nichtstörer”, a figure of German administrative law which Sacksofsky also refers to in drawing a parallel to the freedom of assembly. 81

See generally Nussbaum (note 2), esp. 73–74, 87, 221; Judith Butler, Is Judaism Zionism?, in: Eduardo Mendieta/Jonathan Vanantwerpen (eds.), The Power of Religion in the Public Sphere (2011), 70, 71–72; McGoldrick (note 3), 252; Britz (note 57), 100; Sacksofsky (note 56), 36. 82

Britz (note 57), 95, 100; Cochav Elkayam-Levy, Women’s Rights and Religion, University of Pennsylvania Journal of International Law 35 (2014), 1175, 1219. 83 Cf. Sarah Hannett, Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination, Oxford Journal of Legal Studies 2003, 65, 68, 81. 84 Lourdes Peroni, Religion and culture in the discourse of the European Court of Human Rights: the risks of stereotyping and naturalising, International Journal of Law in Context 10 (2014), 195, esp. 201–206. 85

ECtHR, Dahlab (note 60), 463.

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a restrictive view of minority religions’ precepts obviously opens the floodgates for criticism: Frédéric Mégret for example, writing in the Koskenniemian tradition that focuses on human rights’ hegemonic implications, sees it as an instance of “confronting” and “expurgating” the Other based on a connection, “in the Court’s mind”, between the headscarf and the danger of terrorism.86 Subsequent judgments of the ECtHR did nothing to attenuate such criticism:87 Only very recently did it – somewhat half-heartedly – distance itself from its earlier statement.88 In light of all this, it is reassuring that, despite contrary voices in the academic literature,89 the FCC briskly confirmed that the right to non-discrimination holds true for members of minority religions.90 It also faced the intersectional issues headon and confirmed that insofar as the Islamic headscarf is sometimes understood as a symbol of unequal treatment of different genders, “such a sweeping conclusion is proscribed”:91 On the contrary, a far-reaching restriction on religious attire constitutes indirect discrimination of women.92 In its earlier judgment on the issue, the FCC had likewise asserted that “the understanding of the headscarf may not be reduced to a symbol of societal oppression”.93 Clarifying these issues is all the more important given the far-reaching effects that the general prohibition of headscarves has for Muslim women. As the FCC recognised, the factual consequence of such a regulation is that those of them who experi-

86

Frédéric Mégret, The Apology of Utopia, Temple International and Comparative Law Journal 27 (2013), 455, 490; irrational fear as a motivator is also a major theme of Nussbaum (note 2); see also ibid, 114–121 on the feminist issues. 87

The relevant passages from Dahlab were cited approvingly e.g. in ECtHR (Grand Chamber), Leyla Şahin v. Turkey, Judgment of 10 November 2005, RJD 2005-XI, 173, para. 111 (and see para. 116). 88

ECtHR, S.A.S. v. France, Appl. No. 43835/11, Judgment of 1 July 2014, paras. 118–119 (refusing gender equality as a legitimate aim for a burqa ban but not mentioning Dahlab); on S.A.S. see further below. 89

Most prominently Kokott (note 1), 357.

90

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), paras. 123–130; see also id., BVerfGE 108, 282 (note 9), para. 71. 91

Id., 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 129; cf. also para. 144.

92

Ibid., paras. 142–144.

93

Id., BVerfGE 108, 282 (note 9), para. 52.

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ence the duty to wear a headscarf as binding can no longer become teachers at all.94 They are, in other words, forced into a quandary of choosing between their religious beliefs (Article 4 BL) and their preferred profession (Article 12 BL).95 While constellations like these do not necessarily implicate a human rights violation, they do seem particularly suspect – and the FCC has a history of dealing with them accordingly.96 The ECtHR, on the other hand, not only tends to downplay the issue as such, but even extended its reach by upholding the notorious French ban on burqas in public spaces.97 In this more extreme form, the practical effects of the prohibition of certain attire go beyond barring access to certain professions and instead prevent certain Muslim women from participating in almost all aspects of social life (perversely, by claiming to support the aim of “living together”98). It is difficult to imagine a situation in which the minority-protecting function of human rights law99 would have been more appropriate.

V. A Step Back: European Union Law Before concluding, let us briefly take a step back and consider the judgment from a different perspective: that of European Union law. This may seem a bizarre perspective to take, since it crops up only rarely in the headscarf debate. But the FCC did double-check its results against the General Act on Equal Treatment,100 a German statute implementing, among others, the European Directive on Equal Treatment in 94 Id., 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 96; cf. Guy Beaucamp/ Jakob Beaucamp, In dubio pro libertate: Überlegungen zur Kopftuch- und Burkaverbotsdebatte, DÖV 2015, 174, 175; Baer/Wrase (note 57), 248. 95

Britz (note 57), 95, 100–101.

96

For structurally similar constellations in the transgender cases see Jens Theilen, Der Schutz Transsexueller in der Rechtsprechung des Europäischen Gerichtshofs für Menschenrechte und des Bundesverfassungsgerichts: Ein Vergleich, Zeitschrift für Europarechtliche Studien 2012, 363, 380. 97

ECtHR, S.A.S. v. France (note 88); in theory the ban extends beyond burqas.

98

Ibid., para. 121–122, 153.

99

Cf. Beaucamp/Beaucamp (note 94), 183.

100

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), paras. 153–155, referring to the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz), 14 August 2006, BGBl. I, 1897, as amended on 3 April 2013, BGBl. I, 610; for a more detailed discussion see Christian Walter/ Antje von Ungern-Sternberg, Landesrechtliche Kopftuchverbote für Lehrerinnen auf dem Prüfstand des Antidiskriminierungsrechts, DVBl 2008, 880.

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Employment and Occupation.101 That Directive aims to prohibit discrimination on the grounds of, inter alia, religion (Article 1) and applies to “both the public and private sectors, including public bodies” (Article 3 (1)), meaning that its protection extends also to teachers as civil servants.102 Analysing the Directive in further depth would take us beyond the scope of this note, but there are two particularly interesting implications we may observe in passing. The first is that the Directive provides an additional instrument by means of which to combat restrictions on religious attire for teachers (and other employees),103 and that its reach extends beyond Germany.104 Given the ECtHR’s restrictive stance on these issues – excessively mindful of States’ sovereignty at best, islamophobic at worst – an alternative avenue of contestation within Europe may prove valuable. The second implication concerns the relationship between European and national catalogues of rights or – from a procedural perspective – between the European Court of Justice (ECJ) and national courts such as the FCC. Needless to say, this is a vast topic which has received ample treatment elsewhere, especially given recent skirmishes between the ECJ and the FCC.105 In this case the latter merely remarks at the very end of its judgment that, given its conclusions regarding the freedom of religion, it need not comment on whether the Federal Labour Court should have submitted the matter to the ECJ for a preliminary ruling106 – however, one might wonder if, from the ECJ’s perspective, the FCC itself was competent to give judgment based on the BL at all.107

101

EC Directive 2000/78 of 27 November 2000, OJ L 303, 16.

102

Baer/Wrase (note 57), 251.

103

McGoldrick (note 3), 30–31, 257–261; cf. Kirsten Wiese, Lehrerinnen mit Kopftuch (2008), 256.

104

See, for example, Katell Berthou, The Issue of the Voile in the Workplace in France: Unveiling Discrimination, International Journal of Comparative Labour Law and Industrial Relations 2005, 281, 301 for its relation to French law. 105 European Court of Justice, Åkerberg Fransson, Case C-617/10; FCC, BVerfGE 133, 277, available in English at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2013/ 04/rs20130424_1bvr121507en.html (accessed on 16 February 2016). 106 107

FCC, 1 BvR 471/10 and 1 BvR 1181/10 of 27 January 2015 (note 5), para. 156.

Clemens Latzel, Die Anwendungsbereiche des Unionsrechts, Europäische Zeitschrift für Wirtschaftsrecht 2015, 658, 663 answers this question in the negative.

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VI. Conclusion: What Changes? Leaving aside these institutional aspects, we may conclude that all things considered, while one can quibble about the dogmatic details, the general direction of the FCC’s judgment is most certainly to be welcomed. If the headscarf debate is a “microcosm of the debate on multiculturalism”,108 then the judgment is a stepping stone on the path towards combating the “new religious intolerance”109 and truly accepting religious pluralism110 – to becoming “more religiously musical”,111 as it were. It can be no more than a single stepping stone, however. The North Rhine-Westphalian Statute directly under review has been partly voided, and what remains must be interpreted narrowly. The same goes, indirectly, for the similar statutes in other Länder:112 General but vague restrictions must be read down (or changed for the sake of clarity), explicitly farreaching restrictions and discriminatory exception clauses repealed. But all this concerns only teachers wearing headscarves; even if we remain in the field of religious attire, a myriad of other issues arise. What of other civil servants – judges, for example? Opinion on the judgment’s implications appears to be divided.113 The in-house service of Berlin’s Parliament was quick to emphasise that the FCC’s reasoning pertained only to teachers and that statutes prohibiting religious attire in other areas of civil service may continue to be read broadly.114 Such debates will no doubt continue until an acceptable, inclusive (statutory or judicial) solution is found. The same goes for full-body veils (burqas or niqabs), which were not directly treated

108

McGoldrick (note 3), 298.

109

Supra, note 2.

110

Mahlmann (note 5), 899.

111

Cornel West, Prophetic Religion and the Future of Capitalist Civilization, in: Mendieta/Vanantwerpen (eds.) (note 81), 92, 93. 112

Leiss (note 5), 913; Sacksofksy (note 30), 808; for examples of such statutes see supra, II.

113

See Sacksofksy (note 30), 808, on the one hand, and Marlene Grunert, Neutral Vielfalt, Deutsche Richterzeitung 2015, 308, 311, on the other; for prior views e.g. Sonja Lanzerath, Religiöse Kleidung und öffentlicher Dienst (2003), 188. 114 Wissenschaftlicher Parlamentsdient des Abgeordnetenhauses von Berlin, Gutachten zu den Auswirkungen der „Kopftuch-Entscheidung“ des Bundesverfassungsgerichts vom 27. Januar 2015 auf die Rechtslage im Land Berlin, Report of 25 June 2015, available at: https://www.rbb-online.de/politik/ beitrag/2015/12/berlin-kopftuch-schule-wpd-gutachten-Neutralitaetsgesetz.file.html/WPD-Gutachten %20zu%20Berliner%20Neutralit%E4tsgesetz.pdf (accessed on 16 February 2016).

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in the judgment at issue and continue to be argued against in its wake.115 The religious musicality is still more of a ditty than a symphony; the Christian majority’s custom continues to stale religions’ infinite variety.

115

Tobias Büscher/Stefan Glasmacher, Schule und Religion, JuS 2015, 513, 515.

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Amal Alamuddin/Nidal Nabil Jurdi/David Tolbert (eds.): The Special Tribunal for Lebanon: Law and Practice. Oxford University Press, Oxford 2014, xxii+316 pages, ISBN 978-0-19968745-9. In the ever-expanding universe of international criminal justice, it is not uncommon to describe a category of institutions known as ‘hybrid tribunals’. Frequently the Special Tribunal for Lebanon would be placed within this rubric. Presumably, hybrid tribunals sit somewhere between genuinely ‘national’ and genuinely ‘international’ courts. That is because they have legal features drawn from both national and international law. It is also explained by the presence of Lebanese nationals and so-called ‘internationals’ as judges, prosecutors, and defence counsel. The ‘hybrid’ classification has a whiff of intellectual laziness to it. When in doubt about how to describe something, the simple way out is to call it a ‘hybrid’, a ‘mixture’, a ‘mongrel’. A simple litmus test is to consider how the tribunal can be shut down. If this can be done by national law alone, as in the case of the Extraordinary Chambers in the Courts of Cambodia, then the institution is national in nature. If its future is determined by international treaty or agreement, then it must be international. That is certainly the case of the Special Tribunal for Lebanon, which will continue to operate whether or not the government of Lebanon remains supportive. Its proper classification, then, is as one of four temporary or ad hoc institutions established through the medium of the United Nations. The other three, of course, are the international criminal tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone. Nevertheless, the Special Tribunal for Lebanon has some unique and unusual features. Rather than be labelled ‘hybrid’ it might be more appropriate to speak of it as ‘idiosyncratic’. Its subject-matter jurisdiction is, by its Statute, quite deliberately turned away from the international definitions, although that hardly discouraged its innovative Appeals Chamber from importing international law in order to define terrorism under Lebanese law. Its jurisdiction ratione personae is about as close as international criminal law comes to the ad hominem. Dealing with a part of the world where terrible atrocities abound, on a scale that greatly exceeds the February 2005 assassination of Rafiq Hariri by several orders of magnitude, the establishment of the Lebanon Tribunal seems to highlight the profoundly political determinations involved in the selection of situations for international prosecution. This nourishes the critiques of the international justice project for pursuing the agendas of ‘the victors’ and ignoring those that challenge their sensitivities. Yet this odd institution is extraordinarily well-funded and extremely efficient. It has attracted some of the finest minds and the most expert practitioners in the discipline. Three of them, Amal Alamuddin, Nidal Nabil Jurdi, and David Tolbert, are the editors of this fine,

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authoritative collection of essays about the Tribunal. They have assembled a roster of wellregarded specialists to explore the various features of the institution. Without claiming to be comprehensive in scope, the volume has nevertheless covered the subject matter quite thoroughly, making it an invaluable reference on the subject. About the only thing missing is the preface that the late Antonio Cassese would surely have contributed had he not so tragically left his work at the Tribunal unfinished. One of the contributors, Nicolas Michel, who was the legal advisor at the United Nations Secretariat when the Tribunal came into being, provides a blow-by-blow description of its establishment. This is the insider account par excellence. The birth of each one of the temporary or ad hoc tribunals has had some complex features but it is likely that more controversy surrounded the Special Tribunal than any other. This was due not only to the intrigues of Lebanese politics but also to the broader global environment, involving Lebanon’s neighbours and their great power benefactors. Professor Michel’s authoritative description of the process fills many of the gaps in our knowledge. A few details may still be missing, perhaps because of his own discretion. Notably, he describes the curious note that was appended when the text of the Statute was endorsed by the Security Council dealing with the relationship between crimes against humanity and terrorism. This unusual document was actually formulated by Professor Michel himself, a rare event in the United Nations.1 As he explains in his chapter, his statement was provoked by the fact that “one member of the Security Council considered these sentences to be confusing”. He does not provide further identification although the word on the street is that the troublemaker was a permanent member of the Security Council with important strategic interests in the region (that describes four out of five). And a military base in Syria. One of the very controversial features of the Tribunal is trial in the absence of the accused. The precedent of Martin Börmann is held out to defend the possibility of in absentia proceedings by international tribunals. It is a lonely example, however, and the modern generation of international criminal justice institutions had entirely forsaken the idea. The statutes of the ad hoc tribunals for the former Yugoslavia and Rwanda skirted the issue somewhat, whereas the Rome Statute of the International Criminal Court quite simply prohibits a trial in the absence of the accused. Recent case law has held presence at trial to be not only a right of the accused but an obligation. Until the Lebanon Tribunal began its activities, the only contemporary institutions to apply international criminal justice in the absence of any real defendants were the moot courts so beloved of post-graduate international law students. This book contains two chapters that address the in absentia issue, both of them by academics who are known for their critical insight. The first, authored by Dov Jacobs, reflects on the dynamics of a tribunal with no defendants. He questions whether “the current defence teams, which have been chosen, hired, and are remunerated by the STL [Special Tribunal for Lebanon] through the Defence Office, rather than by the accused, have developed a loyalty to the institution”. At the other international criminal tribunals, in addition to contending with 1 United Nations Security Council, Statement by Mr. Nicolas Michel, Under-Secretary-General for Legal Affairs, the Legal Counsel, at the informal consultations held by the Security Council on 20 November 2006, UN Doc. S/2006/893/Add.1 (2006).

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combative prosecution lawyers and severe judges, the defence lawyers have to manage their sometimes difficult and demanding clients. If there is ever any hint of institutional loyalty at the expense of the perceived interests of the accused, the latter will give defence counsel a poke in the ribs, or worse. There is no danger of such solicitor-client tension at the Special Tribunal for Lebanon. The other chapter on in absentia proceedings is by Professor Paola Gaeta. She reviews the history of the debate on the subject, going back to the beginnings of the International Criminal Tribunal for the former Yugoslavia. There was some unhappiness in 1993 and 1994, essentially from continental jurists, that the Statute of the International Criminal Tribunal appeared to exclude any possibility of in absentia trials. Eventually, a poor and rather ephemeral substitute emerged in the form of ex parte hearings to confirm an indictment pursuant to Rule 61 of the Rules of Procedure and Evidence. Paola Gaeta, a protégée of Antonio Cassese, has her own insider knowledge about this debate that is reflected in her comments on the Lebanon Tribunal. She reports on discussions in the plenary of judges, citing a “Memorandum on trials by default” that President Cassese submitted to his colleagues. The footnote cites “Personal Notes on Debates” of Judge Cassese, with the indication that these are “on file with author”. Because its procedural regime is much more closely aligned with the Romano-Germanic model than that of the other ad hoc tribunals, the Special Tribunal for Lebanon accords a large place for the participation of victims. This is entirely missing in the statutes of the other institutions, with the notable exception of the International Criminal Court. The chapter on victim participation is written by Emma Pountney together with Howard Morrison, who continues to serve simultaneously as a judge at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court. Amal Alamuddin and Anna Bonini write about the United Nations investigation of the Hariri assassination that eventually led to the establishment of the Special Tribunal for Lebanon. John Jones and Miša Zgonec-Rožej discuss the rights of suspects and the accused as well as the role of the defence. John Jones is counsel for one of the defendants at the Tribunal. There is a stimulating introductory chapter by David Tolbert, a greatly experienced professional of international criminal law who now directs the International Centre for Transitional Justice. The concluding chapter, on the legacy of the Tribunal, is authored by Professor Harmen van der Wilt. He speaks to the ‘legal legacy’ of the Tribunal, finding this in its definition of terrorism. Although the Statute confines the Tribunal to Lebanese law, in reality it has become the international criminal tribunal for the crime of terrorism. Perhaps the test of its effectiveness will be whether legal developments at the Special Tribunal for Lebanon can contribute to an enlargement of the list of core crimes at the International Criminal Court. Terrorism made the short list at the Rome Conference but did not find its way into the final version of the Statute. A revived attempt prior to the 2010 Kampala Conference had to be abandoned in the absence of sufficient consensus. But Professor van der Wilt is also concerned about the broader historical and social context in which the Special Tribunal for Lebanon operates. He invokes some of the celebrated writers who have reflected upon the impact of international justice, like Hannah Arendt and,

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much more recently, Lawrence Douglas. Here, the greatest threat to the Tribunal’s legacy is the changing reality in the region itself. Viewed a decade after the Hariri assassination, Lebanon seems to be in a very different place. Even if Lebanon remains relatively stable, it is surrounded by frightening uncertainty. If the Special Tribunal for Lebanon had the potential to make a contribution to peace when it was first conceived, and in its early years, what the map of the region will look like when it finally renders its judgments is anyone’s guess. That moment in time is still several years away, given the lethargic pace of international justice and the virtual inevitability that appeals of the trial judgment will be filed by both the Prosecutor and the phantom defendants. WILLIAM SCHABAS Professor of International Law, Middlesex University London Professor of International Criminal Law and Human Rights, Leiden University

Aharon Barak: Human Dignity: The Constitutional Value and the Constitutional Right. Cambridge University Press, Cambridge 2015, xxxviii+360 pages, ISBN 9781107462069. “The literature on human dignity”, Barak notes in the preface, “is most extensive” (xxiii). It is indeed, and probably even more so in Germany, since German specialists and popular literature are forever teeming with books on the subject and its innumerable legal, philosophical, historical, political, and sociological aspects. But the continuing trend towards the inclusion of human dignity in national constitutions and international documents has not only added new perceptions of the notion of human dignity and its presumed constitutional and international benefits to the existing discussion in general. Along the way, it has also opened up new perspectives on the singular German interpretation of human dignity, which in turn can be utilised to reflect upon developing national and international conceptions. It is here that one finds part of the reason why Barak chose to write yet another book on such a flooded subject. To Barak, a legal practitioner searching for feasible solutions to the age-old questions revolving around the dignity of the human being (or race? or individual? or person?), the German ‘Sonderweg’ provides, on one hand, much – if not most – of the fundamental literature and judicature on the subject: “Human dignity as a constitutional right underwent particularly extensive development in German constitutional law. It seems that we all owe thanks to the German Constitutional Court and the German legal literature” (xxii), as the author affably puts it. Nevertheless, in his view, “ the uniqueness of human dignity in the German constitutional law greatly limits the relevance of the German approach to human dignity for other legal systems” (240). Thus, the German interpretation is not exactly a yard-stick, but more of a counter-yard-stick for him, at least when it comes to the main facet of its uniqueness, the notion of human dignity as being absolute. Barak rejects this, along with the more frequently purported universality of human dignity, which in his view must give way to a flexible and relative interpretation if the notion of human dignity is to fulfil its (various) roles as a value and

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as a right. To prove his view, and to thus make the constitutional conceptions of human dignity usable for practical legal purposes, is the main raison d’être of this volume. In general, the book is organised in four main parts. Part I, ‘Fundamental concepts and sources’, briefly introduces the subject in its various aspects, giving some of the main historical and philosophical clues to its development through the ages before outlining its place in international and constitutional law since the Second World War. Since the author explicitly does not aspire to any in-depth analysis here, the recap is refreshingly short. The assortment of subjects mentioned must thus, however, necessarily remain fragmentary – too fragmentary, perhaps, even in view of Barak’s intended (purely) purposive constitutional interpretation of human dignity. There is, for example, no explanation given for the fact that references to the ideas of Jeremy Waldron on human dignity are included while references to Jürgen Habermas or Niklas Luhmann are not. Likewise, the description of the development in international law remains incomplete and very much empirical, since the raw data on the mere inclusion or noninclusion of the phrase ‘human dignity’ in any given international document does actually not reveal very much; especially if the question of its legal functionality (which will, for example, be very moderate if ‘human dignity’ is exclusively included in a document’s preamble) is not addressed at all. The second and third part, ‘Human dignity as a constitutional value’ and ‘as a constitutional right’ already in their heading respectively reflect one of Barak’s main points, the differentiation between dignity as a value and dignity as a right. Both possible roles are discussed on the basis of Barak’s interpretational method, purposive constitutional interpretation, which is explained – rather extensively – at the beginning of Part I as giving “decisive weight” to the “fundamental purpose underlying the constitution at the time of interpretation” (70). In this respect, he describes the necessary flexibility of any constitution using the metaphor of “a living tree” (99), its interpretation – and therefore its purpose(s) – forever changing according to the circumstances. With this specific interpretational method as his starting point, it is not surprising that to Barak, human dignity can be neither universal nor absolute (6), which is Barak’s main disagreement with the German interpretation of human dignity. As a value, Barak understands dignity as an overarching as well as underlying principle which ensures “normative unity of human rights” (103) through three distinctive channels. Its proper content is open to discussion. As a right (Part III), it is a framework right or “motherright” (157), which is the basis and the source of various ‘daughter’ and even “granddaughterrights”, the inner relationship of which can be quite complex. Again, its content or “the area covered by the right to human dignity” (170) needs to be discussed and may vary – to Barak, human dignity’s exclusive zone is found only where no other related constitutional rights overlap (implying, if logically concluded, a sort of bottom-up process of mutual interpretation and restriction between mother- and daughter-rights). In both scenarios, human dignity is high – but not highest-ranking; naturally, as it can never be an absolute, it is always open to proportionality assessments. In the last part, Barak juxtaposes the constitutional take on human dignity of five different States, the United States, Canada, Germany, South Africa, and Israel. Of this section, the Is-

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raeli and German analysis prove the most detailed and analytical and thus also most interesting; naturally, perhaps, considering the author’s personal background. Overall, while the book does not present any truly new positions, it is a helpful and very thoughtful study of the two constitutional faces human dignity usually shows in legal theory, and of how to possibly make use of them in legal practice. It does not tackle the main interpretational questions concerning the content of human dignity, whether as a value or as a right; then again, it never aspired to. Perhaps, this somewhat abridged and decidedly practical view is really the only way within the realms of possibility to make use of that elusive construct, human dignity. TINA ROEDER Postdoctoral Researcher Walther Schücking Institute for International Law at the University of Kiel

Majorie Cohn (ed.): Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. Olive Branch Press, New York 2014, 296 pages, ISBN-13: 978-1566569897. The Obama administration defends its policy of targeted killing by drone with the assertion that such strikes are legal, ethical and wise.2 This anthology from Marjorie Cohn, focusing on the United States’ (US) practice of targeted killing on and off the battlefield, offers a robust rebuttal of each of these three claims. In her contribution Pardiss Kebriaei examines the killing of US citizen Anwar al-Aulaqi in a US drone strike in Yemen in 2010 and subsequent efforts to litigate the case before US courts. The case – which was high profile due to the nationality of the victim – highlights many of the problems surrounding the use of drones, particularly but not exclusively with regard to strikes carried out outside the traditional battlefield. The case touches on the major legal issues at the heart of the discussion: the global scope of the battlefield as claimed by the US, the standards for targeting, and the lack of transparency. The fundamental threat posed to international law by the US practices of drone strikes is well set out in a contribution by Richard Falk. Falk points to the non-reviewable discretion of governmental officials regarding the reasons for targeting a certain person or the factual basis for a determination of an imminent threat, in essence what he calls a ‘trust us’ approach. He argues that in the context of drone strikes, this subjectivity

2 See for instance the remarks of Jay Carvey, The White House, Office of the Press Secretary, Press Briefing by Press Secretary Jay Carvey, 5 February 2013, available at: https://www.whitehouse.gov/thepress-office/2013/02/05/press-briefing-press-secretary-jay-carney-2513 (accessed on 1 March 2016).

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undermines the entire effort to limit international uses of force to objectively determine defensive claims that can be reviewed as to reasonableness. This was the central claim of the United Nations Charter, and its abandonment represents a return to an essentially discretionary approach to uses of force and recourse to war.3

The dangerousness of this subjectivity is demonstrated in several of the contributions, particularly in connection with the Obama administration’s interpretation of an “imminent threat” as well as its approach to the definition of combatants for the purposes of targeting. In an official draft white paper that is included as an appendix to Cohn’s book, the Obama administration argues that for a person to qualify as an imminent threat to the nation, there is no need for the “United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future”.4 Instead, it is enough that the person has recently been involved in activities posing a threat to the US and there is no evidence that he has renounced these activities, or if it is thought that the person might be planning acts of violence in the future.5 As John Quigley points out in rather understated fashion, “[w]hen one assesses future activity not related to a specific future attack, there is perforce a substantial chance of inaccuracy”.6 In her contribution Cohn describes the approach of the US administration to justifying targets, according to which all military-age men killed in a drone strike are considered to be combatants “unless there is explicit intelligence posthumously proving them innocent”.7 All those killed by drone strike are often labelled ‘militants’, and the difficulties of carrying out any independent research means that the administration’s claims regarding the numbers of civilian deaths generally go unchallenged. This is explored in a contribution by Alice K. Ross, who also details a number of efforts that are underway to provide more information on who is killed in drone attacks. Focusing on Pakistan, Ross highlights one fifteen month period between May 2010 and August 2011 when the Central Intelligence Agency (CIA) claimed that drones had killed 600 ‘militants’ and no civilians. Ross contrasts this with an assessment by the Bureau of Investigative Journalism which concluded that at least 89 civilians died, including at least sixteen children, out of a minimum of 990 deaths. The research she presents provides a persuasive counter to the claim that drones used as part of warfare offer a precise means of killing; Ross references an analysis of classified military data relating to drones in Afghanistan carried out by the Center for Naval Analyses which found that drones are ten times more deadly to civilians than manned airstrikes. 3

Majorie Cohn (ed.), Drones and Targeted Killings, Legal, Moral and Geopolitical Issues, 2014, 42. Department of Justice White Paper Draft, 8 November 2011, Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or an Associated Force, available at:https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/dept-whitepaper.pdf (accessed on 1 March 2016). 5 Ibid. 4

6

Cohn (note 2), 223. Ibid., 13, citing Jo Becker and Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, New York Times, 29 May 2013, available at: http://www.nytimes.com/2012/05/29/world/obamasleadership-in-war-on-al-qaeda.html?_r=0. (accessed on 1 March 2016). 7

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The book also draws some interesting parallels between the US’ drone programme and its practice of torture, the subject of Cohn’s previous anthology.8 In her contribution to this latest work, Jane Meyer cites Philip Alston, former UN Special Rapporteur on extrajudicial, summary, or arbitrary executions, who points out how drone strikes, like torture, can all too quickly become standard operating procedure: It’s a lot like the torture issue. You start by saying we’ll just go after the handful of 9/11 masterminds. But, once you’ve put the regimen for waterboarding and other techniques in place, you use it much more indiscriminately. It becomes standard operating procedure. It becomes all too easy. Planners start saying, ‘Let’s use drones in a broader context.’ Once you use targeting less stringently, it can become indiscriminate.9

Tom Reifer makes a further comparison, arguing that there is an element of the practice of drone strikes that is comparable with torture. He describes how for some people in Pakistan, “[t]he buzz of a distant propeller is a constant reminder of imminent death”.10 Acknowledging that generally the context of torture involves the physical captivity of the victim, he argues that having whole communities subjected to an ongoing fear of imminent death by drone strike is tantamount to torture. There are also echoes of the torture discussion in Archbishop Desmond Tutu’s foreword, in which he writes that “[w]hen anyone is diminished, we are all diminished. When anyone is humiliated, or tortured, or killed by a drone, we are all harmed.”11 The book is perhaps most interesting in its policy and strategic analyses. Phyllis Bennis places the CIA’s current targeted killing programme into context by setting out a short history of assassination as a strategic component of US war planning, describing how the ‘Salvador option’, as it was known, was applied in conflicts in Latin America and elsewhere to minimise US casualties after the Vietnam conflict had sapped public appetite for war. The collection is particularly persuasive in the case it puts forward that the drone strikes are ultimately extremely ill-advised from a policy perspective. This is mentioned by a number of authors and examined in detail by John Quigley, who makes it clear that the drone programme is seen by many military strategists as hopelessly ineffective as it stirs up “visceral opposition”12 and ultimately creates more extremists than it kills. While the ineffectiveness argument may be largely irrelevant in terms of the legal assessment, the book provides a reminder that it can have a bearing on the question of the ethics of war. This is touched on in the chapter on drone warfare and just war theory by Harry van der Linden, who points out that one of the principles of just war theory is the requirement that the war must have a reasonable chance of success in realising its intended goal. While Cohn’s book focuses on the US – with one excursion on Israel’s targeted killing programme – it leaves no doubt that this concerns not just the practice of one or two States but 8

Majorie Cohn (ed.), The United States and Torture: Interrogation, Incarceration, and Abuse, 2011. Cohn (note 2), 69–70. 10 Ibid., 83, citing Reuters reporter David Rohde. 9

11 12

Ibid., 12.

Ibid., 226, quoting David Kilcullen, military advisor to General David Petraeus during the planning of the 2007 troop surge in Iraq, and Andrew McDonald Exum, former Army officer in Iraq and Afghanistan.

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also a number of fundamental questions of international and constitutional law. The warnings on future drone practice communicated in this anthology are underscored by developments since its publication, including the United Kingdom’s efforts to justify its drone strikes in accordance with the US’ expansive definition of imminence, and the ongoing scramble by several other countries to increase their armed drone capabilities, making it clear that the legality, morality and wisdom of targeted killing programmes continue to merit close scrutiny. FIONA NELSON LL.M. Legal Advisor at the European Center for Constitutional and Human Rights, Berlin

Richard K. Gardiner: Treaty Interpretation. Second Edition, Oxford University Press, Oxford 2015, 576 pages, ISBN 9780199669233. Since no text drafted by man can possibly be perfect in a way that it never gives rise to any doubt as to its scope or actual meaning, every legal text needs to be interpreted by those working with it. Interpretation is indispensable not only for understanding a legal rule, but also for the process of applying or implementing it, and since treaties have in fact become the most important source of international law, the interpretation of treaties is of utmost significance for the practice of international law. At the same time, interpretation as an intellectual enterprise, often even depicted as an art, has always been the fascinating subject of academic observation and analysis. Both, the academic and the practitioner’s perspectives are beautifully combined in this work by Richard K. Gardiner which, since it was first published in 2008, has become one of the leading textbooks on treaty interpretation. Seven years later, the second edition adds some improvements, such as an expansion of examples and explanations of the practicalities of treaty interpretation, to the already impressive strengths of the book. Since the author, moreover, added a whole new chapter in which he points to some current issues and trends in the practice of interpretation and offers some conclusions to the whole work, the overall design of the work now consists of three parts. In the first, the author assembles, among others, the genesis of the ‘Vienna rules’ on interpretation, the historical practice and what he calls the dramatis personae of treaty interpretation. The second and main part of the study analyses in a systematic manner the rules laid down in Articles 31–33 Vienna Convention on the Law of Treaties13 (VCLT) themselves. Here, the author offers commentary-style explanations for every element of those articles which take account of the historical development of those elements, of their actual meaning and of how they are applied in practice. In doing so, Gardiner keeps a well-arranged balance of empirical observations of that practice and normative expositions of the rules of interpretation; his work is thus both an account of practice and a legal guide to proper practice. In his account of the 13

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

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practice of interpretation the author looks at a large variety of international instances, such as courts (with a large emphasis on the International Court of Justice and the European Court of Human Rights (ECtHR)), arbitral tribunals and the WTO dispute settlement regime. To a much lesser extent national court practice of treaty interpretation is considered, which quite understandably, is mostly court practice in the United Kingdom. With this restricted view, the author probably feels himself that he is missing out on a lot of relevant practice material, since in his dramatis personae he rightly points to the fact that quite a number of national courts, at least in Europe, actually refer to, and apply, the Vienna rules on treaty interpretation (144). But, of course, the span of only one lifetime, the constraint of keeping the book between only two covers, and limited access to material in foreign languages do provide legitimate explanations. The main themes of the book remain the same as in its second edition, and are again both plausibly and convincingly argued. Gardiner sets out that the abundant references in practice to the Vienna rules of interpretation are frequently not matched by a proper application of those rules, prominent examples being the case law of the ECtHR or the WTO Appellate Body in the context of Article 31 (3)VCLT. Secondly, the author rightly underlines that the general rule of interpretation encompasses the whole of Article 31 of the Vienna Convention, not just the reference to the ordinary meaning in its opening phrase. This is aptly reflected in the “crucible approach” of the International Law Commission which drafted the rules in view of treaty interpretation as being a single combined exercise that takes all its elements equally into account. Furthermore, Gardiner again makes a strong case for the use of travaux preparatoires having a much larger role in treaty interpretation under Article 32 VCLT than is usually assumed. The book is written in clear, accessible language which makes it a pleasure to read and easy to understand the author’s point of view, which, as a further bonus, he offers on virtually every aspect of his subject. Through this the work stands out in the literature on international law, where all too often authors confine themselves to assembling traditional views on a topic, add some elements of practice and simply present the combination to the reader. Gardiner is different, he presents a precise account of views and practice, arranges them in his own manner and usually comments on them or, at least, indicates his position in clear, but diplomatic language, sometimes with a slightly humorous note, and always taking into account the broader picture of the Vienna rules and what they are supposed to achieve. This book is many things: a good read for international lawyers, a reliable textbook on one of the most difficult topics of international law, and a guide to a wealth of material on the practice of interpretation. And with all that, it has what it takes to become a classic. OLIVER DÖRR Professor of Public Law, International, European, and Comparative Law, European Legal Studies Institute, University of Osnabrück

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Lauri Mälksoo: Russian Approaches to International Law. Oxford University Press, Oxford, 2015, 240 pages, ISBN 9780198723042. Russian international law academic experts have always viewed the origins of international law with skepticism because such narrative does not take into account treaty relations Muscovy had with a number of ‘sovereigns’ especially during the early Middle Ages. The narrative on the origins of international law only embrace the Latin Westphalian approach that represents Respublica Christiana, when in fact, there is a Russian element to international law that shows a unique history and a nouveau riche theoretical contribution. With the publication of Lauri Mälksoo’s “Russian Approaches to International Law” – a monograph that reveals the unprecedented rasskaz (story) of a millennia of discourse on Russia and international law – a new window to the world on Russia and international law has been opened. For Mälksoo, contemporary practices of international law in Russia cannot be understood without a fully fledged comprehension of its long tradition in treaty relations with sovereigns from other nations during Byzantine and Muscovy, long before Westphalia. For Russia’s part, there is a division on the nature and origins of international law: a Russian narrative and a European narrative. In other words, there has been, and still remains an inter-civilisational clash between Russia and Respublica Christiana for over a millennia, and contemporary Russia is finally free of all historical baggage, and fully embraces its version of international law: contemporary Third Rome – a form of otherness.14 For contemporary Russia, international law is “a civilizational critique of the West and particularly the critique that the West is unjust” (188), but as civilised people – we Russians – the epicenter of the Third Rome – can, however, participate in, and shape, Western international law – based on our own interpretation. From a Russian perspective, international law then, becomes not only in need of protection, but also, it is a righteous duty of the Russians to ensure standard of civilisation: “the governmental discourse of international law in Russia also has Messianic traits, a feature that some philosophers have considered a persistent characteristic in Russia’s history of ideas” (149). This entanglement of international law with religion, philosophy, and State practice not only permeates international law but forms part of the “legal consciousness in a country, between legal theory and state practice” (153).15 This argument is of course not novel, as Bowring also made similar arguments, although purely from a domestic context. The book contains four chapters and no conclusion and aside from an introductory chapter which contains the so-called Estonian School of International Law, the substance of the book is essentially the last chapter – chapter four which is an analytical chapter. Chapter 14

See generally, Mälksoo, citing Anatoly Kapustin, ‘International Humanitarian Law and New Challenges’ in A. G. Lisitsyn-Svetlanov, New Challenges and International Law, (2010), 141; see also Mälksoo, 91. Note that the English language titles are my own translation from Mälksoo’s latinised form when citing Russian works. 15 See also, Bill Bowring, Law, Rights and Ideology, in: Russia: Landmarks in the Destiny of a Great Power, (2014); also reviewed by P. Sean Morris, available at: http://marxandphilosophy.org.uk/ reviewofbook s/reviews/2015/1532 (accessed on 15 March 2016); see also, William Butler, Russian Law and Legal Institutions, (2014).

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two traces the historical development of international legal thought in Russia focusing on Tsarist and Soviet scholars from the late 19th century to the first half of the 20th century. Chapter three attempts to contextualise contemporary Russian theory of international law, before turning to post-Soviet Russian State practice in international law in chapter four. The book covers three distinct areas: Russian international legal thought and evolution; Russian ideological (theory and philosophy) relationship through law with external countries, and, international law in practice, via sub branches such as international economic law international human rights law and the law of war. The narrative in “Russian Approaches to International Law” begins with a sort of an unusual tour de force of the Russian philosopher Nikolay Danilevsky (1822–1885), whose work portrayed Russia as different from Europe. From there on, the book then engages in the contribution of Friedrich Martens (1845–1909); Mikhail Taube (1869–1961), Fyodor Kozhevnikov (1903–1998), and Vladimir Hrabar (1865–1956). Danilevsky was the ultimate Slavophile and his works are enjoying a revival in contemporary Russia because from an international legal theory perspective “in a number of ways the Tsarist Russian School of international law was antiDanilevsky, pro-European, and, we might also say, Eurocentric” (40). As a Tsarist scholar – Danilevsky believed that it was useless for Russia to play catch up with Europe, and in doing so, it also erodes the intellectual contribution that Russia has made in civilisational intellectual (and economic) discourse. It is the Martens school of international law, that Mälksoo believes fully entrusted Russia in the European family of nations. There is only one problem with the Martens school – it is not truly Russian, or a native scholarship, but rather that of Baltic Germans that were prevalent at the Tsarist imperial court in St. Petersburg. Mälksoo, every wary of such legacy found himself in an awkward position – to give an objective account of Russian approaches to international law. The objectivity question that Mälksoo grapples with from the outset, was in fact “overobjective”. In other words, Mälksoo tows a central line – telling the situation as it is without taking sides, and even as a contemporary Estonian scholar, Mälksoo was not that critical in the book. If anything, contemporary Muscovy will be more than happy with the book and welcome it as “a translation” of the established position in Moscow. Perhaps if Mälksoo were more critical (his critical tones are well hidden in various pessimistic diagnosis), he would have fallen victim to the very objectivity question that he grapples with. Mälksoo’s curiosity relating to all things Russian (30) allows him to manuevre the objectivity criteria very diplomatically and pragmatically, and in a lengthy forte (25–35) on whether he can objectively discuss Russian approaches to international law – the answer was simply convincing: Estonian international legal scholars such as F. Martens, whether as part of Tsarist Russia or Soviet Russia “have been doing [it] for a while already” (27). The truth is – Mälksoo is correct – because Estonia’s geographical position whether during the Tsarist period or during the Soviet times has one advantage. It sits on the window ledge of St. Petersburg and it provided ample opportunity for Baltic Germans to exercise their influence at the Imperial court, or for their tradition to continue in Soviet Moscow.

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For contemporary Russian legal scholars however, especially those based in Moscow, they are sometimes torn between the past and the present in finding common ground on issues such as State sovereignty. On this point, Mälksoo for instance wades into the debate with a very critical tone – emphasising the illiberal interpretation Russian scholars often engage in: Russian legal scholars strongly emphasise State sovereignty as the foundational principle of international law. At the same time, they often give a specific illiberal meaning to the concept of state sovereignty. There is something nineteenth-century Hegelian about these positions in the sense that they glorify the state as such, an embodiment of the Absolute Idea, often detaching the state from its democratic legitimacy (100).

This, of course, allows Russian international legal scholars to object to Western ideas such as the “consitutionalization of international law” (102). These observations helps Mälksoo to paint the Russian discourse on international law as a clash of civilisation and that despite the anthropocentric (code word for Eurocentric) view of international law in the West – Russia sees State sovereignty differently and allows Russian statist scholars “to keep international law at a safe distance from Russia’s own – narrowly construed – legal system” (116). A tradition that continues in Post-Soviet Russia (158). Furthermore, Western theories of international economic law do not impress Russian legal scholars given that “international law is about high politics” (127) whilst international economic law is viewed cautiously by the “Statist, anti-Western, and anti-globalist approaches” (130) that Russia sometimes exhibits. All this gives “contemporary theory and doctrine of international law in Russia” (140) different accents including a Soviet one (141). Perhaps, the most important accent in which contemporary Muscovy speaks international law is that of war – international law is only important in matters relating to war, and all other ‘subjects’ of international law are irrelevant. War (and peace), in other words, is inter-State and occupies high politics while international economic law for example is part of the domestic ‘private international law’. Mälksoo discovers that post-Soviet Russia international law is also a combination of both Tsarist ideological elements (Danilevsky) and also Soviet practices especially at formulating abstract theories in philosophy and logic. This results in contemporary Russian international legal scholarship full of “extensive scientism and theorizing” (93). For Soviet scholars of international law, it might have been one way of escaping the sensors by engaging in abstract theoretical formulations or arguments as long as those arguments do not translate into State practice. However, another way of looking at why contemporary Russian legal scholarship is full of scientism is because of (a) the need to reform the Russian legal curriculum in general and (b) the current guardians of Russian legal scholarship were trained in the Soviet approaches and this has significant impact even for international law. Although the book does not present any form of novelty (oftentimes parts read like a book review) – what it does do is open an English language ‘window’ into the courtyard of the rich and underexposed theoretical and historical developments of international law in Russia especially from the latter part of the 19th century. A history that is similar to most of Western Europe, and in particular, because most of the 19th century history of international law in Russia has been as a result of Baltic Germans (Europeans) influence in Tsarist Russia and the early Soviet Union. Or at least, that is how it is portrayed in the book.

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Although there is a considerable amount of material in Russian language about Russian theoretical and historical approaches to international law – this book has alerted the world that it is due time to treat Russian international legal scholarship seriously. My main critique of the book is that too much nationalistic emphasis has been placed on scholars that were not technically ethnic Russians (Martens and Taube for example). But the rationale, or Mälksoo’s selective discrimination approach has boiled down to the fact that Baltic Germans played more prominent roles at the Imperial court in St. Petersburg, during the crucial period when Russia rejoined the family of (European) nations. Another critique is that the book does not give English language translations of the major works cited in Russian. Although the book will appeal to international legal scholars (and largely to anyone interested in anything Russian) both inside and outside of Russia, this does not mean that influential scholars (and government functionaries) in contemporary Muscovy will give it serious treatment. This author believes this will be the case, as in their eyes, the book has not exposed anything that is detrimental to (the Kremlin conception of international law) nor anything new from the perspective of Russian international legal scholars. The book develops a narrative on international law that, in some respect, is quite similar to the West: international law is a political instrument and contemporary Muscovy picks and chooses the elements of international law it sees best. In other words, Russia puts its selfinterest, especially those interests that are guaranteed under the UN Charter (although Russia abandoned this position when it annexed Crimea in 2014), way above the Western rhetoric of international law, and what Mälksoo has produced, is a description of a set of legal values and consciousness that has been for a millennium – a tug of war between Respublica Christiana and the remnants of Byzantine (Orthodox East). Perhaps, the most significant thing that Western scholars should take away from the book is their resistance to others and their eurocentric view of international law as a global force and embrace the comparative nature of international law.16 Mälksoo framed his observations in the following: “there is a danger that some Westerners because of their inherent tendency to universalism would miss this comparative aspect” (153) of Russian approaches to international law. Mälksoo has achieved a similar feat of success to that of what Martens did for Tsarist Russia international law – exposing it to the world. P. SEAN MORRIS Researcher/Lecturer International Economic Law University of Helsinki

16

See also, W. Butler (ed.), International Law in Comparative Perspective, (1980).

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Marko Milanovic/Michael Wood (eds.): The Law and Politics of the Kosovo Advisory Opinion. Oxford University Press, Oxford 2015, 384 pages, ISBN: 9780198717515. There are few pronouncements by the International Court of Justice (ICJ) that met with so much attention like the ICJ Advisory Opinion (AO) on Kosovo of 22 July 2010. The number of publications on this AO is enormous despite its moderate content and the reticence shown by the ICJ when penning this document. Can a new collective writing, published five years after the AO had been issued, add anything new in substance to this literature? Yes, it can, as the publication by Marko Milanovic and Michael Wood evidences. First of all, such a publication can be a sort of a stock-taking of the discussion unfolding up to this moment and this work has been pretty much successful in this attempt. Secondly, half a decade after the publishing of the AO the authors of the single contributions – and the editors have brought together a very renowned group of experts – can write in an atmosphere that is widely free from the emotional stirrings that qualified the immediate aftermath of this Opinion’s publication. Thirdly, the authors can also consider what were the effects of this Opinion on the practical level, how the lead given by the ICJ was taken up on the political (practical) level. What may be considered, at first sight, an advantage, harbours, however, also some risks. In fact, seven years after the Kosovo Declaration of Independence (DoI) was issued (17 February 2008) it stands to reason that things have somehow settled and that all parties involved have tried to come to terms with the situation. It is tempting to argue on this basis that the ICJ AO was most probably legally correct and in any case politically sound. Such reasoning is, however, tautological as a contrafactual reading of this opinion is not possible. To this reviewer it seems rather plausible – and I have stated this on various occasions in the past17 – that by 2008 some political solution to the Kosovar problem had to be found whereby the factual developments of the preceding decade or so could no longer be ignored. The ICJ may have somewhat contributed to this settlement, albeit at the price of an Opinion, that was legally not really convincing, but there were far more forces at work and many of them more powerful than an ICJ AO, that have eventually brought about a factual situation like the one we are now confronted with. The book is entitled ‘The Law and Politics of the Kosovo Advisory Opinion’, thereby emphasising that this subject, although belonging to international law, has a clear political backdrop. In international law this is far from unusual but in this case it can be said that the political component is particularly pronounced. In the following I will try to split this analysis, as far as possible, in two parts. In a first part I will try to give a more technical account of what the various contributions state or re-state in their legal analysis of the Kosovo AO. In the second part a legal policy analysis will follow. One basis for the reasoning will constitute my own writing on this subject which I have

17

See, for example, Peter Hilpold, The Kosovo Opinion of 22 July 2010: Historical, Political and Legal Re-Requisites, in: Peter Hilpold (ed.), Kosovo and International Law, Martinus Nijhoff: Leiden/Boston 2012, 1–29.

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published a few months after the AO had been issued18 and where many of these considerations have already been anticipated. The first contribution by James Ker-Lindsay ‘Explaining Serbia’s Decision to Go to the ICJ’ very clearly exposes the many constraints Serbia was confronted with after the Kosovo DoI was issued. ‘Damned if you do, damned if you don’t’, could summarise Serbia’s position. Already out of internal political reasons Serbia’s Government had to act internationally but at the same time it had to act carefully so as not to alienate countries it was heavily dependent upon in its attempt to approach Western countries and the European Union in particular. The result was a question drafted so carefully that it was easy for the ICJ to give a widely meaningless answer. Marko Milanovic, himself an advisor in the Serbian legal team in the advisory proceeding, offers interesting insights into the dynamics of the discussion before the Court, about “the discursive shift that transpired once the issue of Kosovo’s independence moved from the political arena to the judicial one” (21). His conclusions may be disillusioning for international lawyers when he states that “if there is anything that the whole Kosovo episode teaches us then, it is that powerful allies are a key ingredient to any successful secession” (58) but they are very much to the point.19 Highly interesting is also the contribution by Qudsi Rasheed and Michael Wood on ‘The Practicalities of Representing a Client in Complex Multiparty Proceedings – The Example of Kosovo’. In this piece the authors offer insights into real life challenges legal teams are confronted with when representing parties at the ICJ, insights that go far beyond the Kosovo case. This reviewer found the information given about the formation of the Kosovo legal team particularly interesting. A short citation from the text may entice readers to look for more: […] care is needed in the selection of a legal team. As soon as the request was made, the Government of Kosovo moved to put its legal team in place. Kosovo could not afford to pay a great deal, so the team was lean: three foreign lawyers and an assistant. In addition one, later two excellent international lawyers working for the Kosovo Government were closely involved. Many others offered their services, usually pro bono. This was quite moving, at least in the case of the many Kosovo lawyers who were very anxious to be involved. But it was essential to keep the team small and coherent, and all such offers of assistance were declined. The relatively small number of lawyers involved was a good thing. And at no time did the team feel the need for additional assistance. It might have been otherwise had the case involved a heavy factual element (65 et seq.).

Also rich with important information and interesting analysis is the contribution by Bernhard Knoll-Tudor on ‘The Settling of a Self-Determination Conflict? – Kosovo’s Status Process and the 2010 Advisory Opinion of the ICJ’. Knoll-Tudor has followed Kosovo’s status process over many years both as a practitioner and as an academic and so he can draw on in depth experience about this case. Of particular interest is the information he gives about the process leading up to the DoI. 18 See Peter Hilpold, The ICJ Advisory Opinion on Kosovo: Different Perspectives of a Delicate Question, 3 January 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1734443 subsequently published in: 14 Austrian Review of International and European Law 2013, 259–310. 19 In this way, this argument was expanded in all details in a recent monograph by Milena Sterio, The Right to Self-determination Under International Law: “Selfistans”, secession and the rule of great powers, Routledge: New York 2013.

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The second part on the Opinion itself contains contributions by Vladimir Djeric, Daniel Müller, Sean Murphy, Matthias Forteau and Marc Weller. In this context, of particular importance was the question whether the ICJ had jurisdiction and whether the Court, even if jurisdiction was given, should decline rendering an Opinion for compelling reasons.20 The ICJ’s advisory function is an extremely useful instrument but it should not interfere with basic constitutional functions of the United Nations (UN) as it presents itself at the moment, safeguarding in particular the principle of consent and the judicial function. The Court’s duty to cooperate by giving such an advice ends when there are ‘compelling reasons’, when considerations of ‘propriety’ make it advisable to abstain from this function. However, these concepts introduced to provide clarification are not of definite help. It might be said that everything revolves around the question of what constitutes the ‘political’. It is clear that the judicial function of the ICJ would be afflicted, that its action would become ‘improper’ as soon as it assumes political functions in the stricter sense or buttresses initiatives by the General Assembly (GA) to take over political functions and decisions attributed by the UN Charter to the Security Council.21 As it happens very often in interpretation, the grey area in this field is very large and therefore it might be difficult to criticise an International Court, eager to give advice in whatever situation. The authors in this book come to the conclusion that the deferential approach adopted by the ICJ towards the General Assembly (who asked for an Opinion as to a subject the Security Council was previously primarily engaged with) was correct and that also the Court’s decision not to exercise its discretion to deny the request for an Opinion was justified (177). As I have stated in 2011, I am rather sceptical in this regard: On a whole, the Kosovo Opinion reveals all the pitfalls associated with the ICJ advisory role when faced with questions of a pronounced political character and with dubious credentials as to the way and by whom the question has been formulated and deliberated. While it might be said that the role of the ICJ is and could only be of a mere technical nature and that it should therefore disregard the political process leading up to the request, that it should concentrate on the legal aspects of the question and that it should not, as far as possible, reject a request for advice in view of its interinstitutional duty to cooperate, it should, at the same time, be well aware of the limits of this function. In the Kosovo case the problems associated with jurisdiction as they were known from the ICJ’s advisory practice since its inception were present in remarkable concentration. In the present case the ICJ would have had convincing justifications to reject the request for advice. Instead it choose to accept it and to adopt a pronounced political stance. In view of the intent to find a way out of a difficult political situation this might have been a good choice. The advisory role of the ICJ as such and the integrity of the judicial function, however, have suffered further reputational damage.22

Similar observations can be made as to the real meaning of the question posed by the GA. According to Daniel Müller, the question presented by the GA was an “‘anomalous and nar20 See Peter Hilpold, The International Court of Justice’s Advisory Opinion on Kosovo, 2011 (2013), 284 et seq. 21

Exactly this had happened according to the accusations by Judge Bennouna: “La Cour a été confrontée dans l’affaire du Kosovo à une situation inédite puisqu’il est demandé finalmente de s’ériger en décideur politique, au lieu et place du Conseil de sécurité” (ibid., para. 7). See, in the same vein, the Dissenting Opinion of Judge Skotnikov, para. 9. 22

Hilpold, (note 4), 289.

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row’” question which, obviously, missed the point. From the point of view of Serbia, it was not the right question. Certainly it was a mistake not to discuss the formulation of the question in the General Assembly, at least in order to assess its advantages and inconveniences”(133). In this context, I would rather argue that Serbia had good reasons to believe that her expectations would not be disappointed: “We are confident that the Court will know what it will take into account the opinions of all interested Member States and international organisations”.23 The following statement by Judge Lauterpacht in his separate opinion in South West Africa (Petitioners) comes here to mind: It cannot be reasonably assumed that in framing its request the General Assembly intended no more than to obtain the confirmation of a proposition which has not been disputed … [it] could not have intended to confine the task of the Court to an academic exercise not requiring any notable display of judicial effort.24

By (seemingly) ignoring all the political aspects that qualified the Kosovo case and reducing the question posed nearly to nothing, the ICJ circumnavigated all perils associated with this case. The ICJ knows no higher judge and therefore it might appear futile to dwell too long on the question whether this Court’s exercise of its powers in a field characterised by broad grey areas was legally correct. As has also been pointed out in this book it is rather the case that the positions taken by the Court in the Kosovo case will influence its further jurisprudence and has already done so. One may, however, ask whether the approach taken by the Court was politically wise. Several contributions deal with this question, partly as the primary subject partly at least marginally. A very good observation is made in this context by André Nollkemper: […] one (undefined) constituency may have lost. These are the peoples and states that may benefit from future international administrations that serve to maintain and build the peace in conflict areas. By allowing non-state actors to unilaterally pull out of such an arrangement [the arrangement established by SC 1244/1999] so easily, the Court may well have discouraged relevant actors to enter into such arrangements on future occasions. However, the fact that these actors are as yet unknown, and that the Security Council was too divided to insist on the continuation and implementation of its arrangements, suggests that this will not harm the Court – and this is probably what the Court cared about the most (239).

I have addressed this aspect the following way: Damage to international law could result from this opinion also in a further sense. In fact, the decade-long international administration of Kosovo has been an unique experiment in the history of international law that could have become an important precedent for the international community when faced with an extraordinary challenge. This action that avoided a further deterioration of the 23

Official Records of the General Assembly, Sixty-third session 22nd plenary meeting, 8 October 2008, A/63/PV.22, 2, cited by Daniel Müller in: Marko Milanovic/Michael Wood (eds.), The Law and Politics of the Kosovo Advisory Opinion, 2015, 133. 24 Admissibility of Hearings of Petitioners by the Committee on South West Africa, Advisory Opinion of 1 June 1956, ICJ Reports 1956, Separate Opinion of Hersch Lauterpacht, 36.

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situation in this region was based on trust and associated with legitimate expectations not only on the side of Serbia but also on that of many other allied nations. It could be the case that in future similar experiments, though necessary they may be from a humanitarian perspective, will have a hard time to find the necessary approval as these expectations were, at the end, totally ignored.25

As a matter of fact, the Kosovo question was a ‘sui generis’ situation characterised by a series of events that were of an absolutely extraordinary nature. The massive human rights violations by Serbia under President Milošević prompted NATO intervention in 1999.26 The special regime established afterwards by Security Council Resolution 124427 left Kosovo’s final status open but over the years it had become clear that Kosovo’s return to Serbia was no longer an option. Somehow the situation had to be settled and Kosovo had to be re-inserted into the State community as a legal subject. This had to happen in a way that no precedent for further attempts of secession would be created. In this, the ICJ did a fine job, thereby also de-escalating the whole situation. Perhaps the Kosovo AO has attracted so much academic attention exactly because so much had been at play, because so much could have been said and because so much was not said – even though this silence might have been disappointing from a legal or a technical point of view. But was this silence also to be criticised from a political perspective? In 2011, I stated that it would have been more appropriate for the Court to decline jurisdiction in this case. “This choice would have been technically more convincing and also on the factual level more appropriate.”28 Once the Court had, however, decided not to exercise its discretionary power to decline the request for an Opinion the Delphic approach taken in answering the request was probably the correct one from a political point of view. Harold Hongiu Koh has convincingly argued in this sense in his contribution in this book: “The simple political reality was that the UN’s extensive intervention in Kosovo had worked. […] Given that the independent nation of Kosovo, which so many United Nations institutions had painstakingly midwifed, had become a reality, that equilibrium should not be lightly undone by the UN’s own judicial body.”29 In sum, this is a very fine book on an extremely important case in international law. It furnishes excellent ideas and considerations which would deserve an even far longer review.30 25 See Peter Hilpold, The International Court of Justice’s Advisory Opinion on Kosovo, 2011 (2013), 306 et seq. In the same vein Sienho Yee, Note on the International Court of Justice (Part 4): The Kosovo Advisory Opinion, in: 9 Chinese JIL 2010, 63–782 (775). 26 See Peter Hilpold, Humanitarian Intervention: Is There a Need for a Legal Reappraisal?, in: 12 EJIL 3/2001, 437–467. 27 UNSC Res 1244 of 10 June 1999, available via: www.un.org/Docs/scres/1999/sc99.htm (accessed on 12 February 2016). 28 See Peter Hilpold, The International Court of Justice’s Advisory Opinion on Kosovo, 2011 (2013), 306 at 309. 29 Harold Hongju Koh in: Marko Milanovic/Michael Wood (note 7), 352. See in this sense also Karin Oellers-Frahm, Problematic Question or Problematic Answer? Observations on the International Court of Justice’s Advisory Opinion Concerning Kosovo’s Unilateral Declaration of Independence, in: 53 GYIL 2010 (2011), 793–830. 30 Due to reasons of space not all contributions could be mentioned specifically although they would surely have deserved so. At least in this note, additionally the excellent pieces by Anne Peters (showing

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This book will surely become an important reference work for anyone dealing with the Kosovo question. Due to the particularities of this case, this book cannot, however, become the definitive book about this case. As already hinted at at the beginning, the literature about this case is enormous and writings continue to appear. This case has some mystical quality. And this is the best ingredient for continuing interest by the academic community (and also by politicians) in the case. PETER HILPOLD Professor of International Law European Law, and Comparative Public Law University of Innsbruck

Jens David Ohlen/Kevin Govern/Claire Finkelstein (eds.): Cyberwar: Law and Ethics for Virtual Conflicts. Oxford University Press, Oxford 2015, xxxii+274 pages, ISBN 978019-871750. This book edited by Ohlin, Govern and Finkelstein grew out of a conference held at the Center of Ethics and the Rule of Law (CERL) of the University of Pennsylvania and presents a very interesting mix of contributions, in most of which the legal dimension is more prominent than the ethical one. The contributions are presented in the book as carefully and skilfully as they were selected: A foreword written by Michael N. Schmitt, the famous mastermind of the Tallinn Manual,31 is followed by an introduction by the editors both into the general topic and the individual contributions which follow, to the point that one could learn as much about the content of the volume from this introduction as one could possibly learn through a short book review. While Schmitt leaves no doubt that both international law in general and the law of armed conflict in particular do apply to cyber operations, dismissing any claims to the contrary (“tend to be advanced by those with little expertise in the ius ad bellum” (v)), the editors briefly reflect the focal points of the underlying conceptual debate, the lack of ‘arms’ in a kinetic sense, the uncertain nature of damage and destruction caused by cyber operations. The larger picture drawn by the editors in their short introduction however, the changing nature of warfare, both in terms of the role of information technology and the increasing involvement of civilians in modern warfare clearly indicates that international law simply cannot ignore these phenomena merely because they transcend traditional categories of space, territory, bori.a. that the Kosovo case may not have created a Kosovo precedent but surely at least a Kosovo rhetoric), by Alain Pellet (evidencing what the Court could have said, had it interpreted its task more extensively) and by James Crawford (finding that the development of the past four years qualified Kosovo for statehood) should be mentioned. 31 Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Warfare (2013) (Tallinn Manual).

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ders, and sovereignty among the noble club of nation States. This writer fully agrees with the editors in their main introductory point that “protecting the grid is comparable to protecting our physical borders: informational security and autonomy have thus become key attributes of national sovereignty” (x). Larry May’s contribution on the nature of war and cyberwar does not subscribe to this point, however: Relying on traditional elements of warfare such as arms, open confrontations, and invasion of foreign territory, cyber war to him is more like an embargo; only cyber operations resulting in human casualties would qualify as warfare. This fails to convince this writer, since a blockade, being essentially an enhanced embargo, has traditionally been considered an act of war; likewise, clandestine operations short of open confrontation have always been part of warfare (or else the cryptanalysts at Bletchley Park would likewise not have been engaged in warfare, which they were). James Cook on the other hand, questioning any special moral character of cyber war, bases his contribution on the classic just war theory and concludes that it does apply as readily to cyber war as to any other kind of war, irrespective of the ubiquity and uncontrollability of cyber threats. Jens David Ohlin’s contribution focuses on the uncertainty inherent in cyber operations concerning the causal link between employment of cyber means and any damage arising therefrom as “reasonably foreseeable consequences” (45, as stated in the Tallinn Manual), highlighted by the dual criteria for a military objective under Article 52 AP I 197732 (something qualifies as a target because of its military importance for either side). Ohlin argues for all intended consequences, not merely reasonably foreseeable ones, to be included in attribution and assessment of cyber operations; he does admit however, that such a subjective approach places immense pressure on the pattern of subjective criminality, compared to the objective standard proposed in the Tallinn Manual. The second part of the book focuses on the civil-military divide in cyber war. One has to keep in mind that the means and methods of cyber operations can be employed for purposes of plain crime, organised crime, or warfare alike; there is no such thing as dedicated ‘war materiel’ (other than more robust hardware for military use) in cyber war. Stuart Macdonald discusses the role of criminal law in combatting cyber terrorism based on the concept of enemy criminal law (Feindstrafrecht) to be applied to terrorists acts short of warfare but directed against civil society and its traditional loyalty-based legal order. He ends with a note of caution that such a special subsystem of criminal law might “contaminate” other areas of law and compromise the moral authority of criminal law as such. Lawrie Blank investigates the threshold above which cyber operations amount to cyber war and hence become subject of the law of armed conflict. Since the trigger for the latter is a factual conflict situation of a certain intensity she discusses the role of ‘war’ rhetoric in assessing concepts of ‘armed attack’ (Article 51 United Nations Charter33) and ‘armed conflict’ under Law of Armed Conflict (LOAC) and issues a clear warning against “runaway rhetoric” (76) of cyber war and cyber attack aimed at weakening the prohibition on the use of force in international law. Niccolò Bussati discusses the rise of non-State actors (hacker groups, hacktivists, patriotic hackers) in recent conflicts with a cyber component, undermining the foundations of the traditional Westphalian system of inter32 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609. 33 Charter of the United Nations, 26 June 1945, UNCIO 15, 335.

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national law, eroding the importance of geopolitical barriers and accelerating the demise of States as primary actors of international law. This new role of non-State actors poses a challenge to the traditional corpus of LOAC which basically offers three options, attribution of cyber conduct to a State, treating organised groups of hackers as parties to a (non-international) armed conflict, or – for lack of such organisational structure – treating other hackers as civilians directly participating in hostilities, including the grave consequences associated with the latter. The third part of the book features an interesting sub-title, “The Ethics of Hacking and Spying”. Duncan Hollis agrees with James Cook on the applicability of basic LOAC principles to cyber warfare and offers an argument which essentially presupposes – rather than explains – such applicability by pointing to the classic proportionality rule of LOAC requiring the least harmful methods and means to achieve a given military advantage. In this writer’s words, if the options are “bomb or hack,”34 and hacking is less destructive than bombing, there is a case for a “duty to hack” (in the legal, not just in the ethical sense). Christopher Yoo takes up some of Larry May’s ideas referred above when dealing with cyber espionage as a (traditionally, one has to remember again) clandestine part of any major confrontation. Yoo assumes that most cyber operations belong to the domains of law enforcement and espionage rather than warfare. While this may well be true, it does not change the overall picture painted so far: One, there are examples from recent conflicts (notably Georgia 2008) of cyber components beyond espionage backing up kinetic warfare; two, espionage as a criminal activity has been supporting kinetic warfare ever since ancient times. William Boothby, another prominent member of the group of experts who produced the Tallinn Manual, analyses how existing rules of LOAC could be applied to means and methods of cyber warfare, and proposes a set of principles for distinguishing lawful deception from perfidy in a cyber environment. The fourth and final chapter returns to general issues of international law. Marco Roscini discusses issues of evidence in the context of State responsibility, starting from the well-known phenomenon that activities on the net can be disguised behind aliases, proxy servers and botnets. Analysing the standards set so far by the International Court of Justice (ICJ) in its rules and case-law on evidence, he identifies a number of principles on burden of proof, standards of proof, admissible, and inadmissible evidence. Since the attribution problem is mainly a practical one of evidence and proof, this discussion is particularly helpful from a practitioner’s point of view. Sean Watts, yet another member of the Tallinn Manual Group of Experts, finally discusses low-intensity cyber operations in the light of the principle of nonintervention. This writer does not subscribe to the view of the editors, regarding Watts’ paper as a digression, although an interesting one, from the other themes of the book: Since the principle of non-intervention is rightly identified by Watts as a legal outgrowth of sovereignty and territorial control, i.e. key issues of international law transcended by the cyber phenomenon, a discussion of this principle does indeed fit nicely into the whole concept of the book. Watts analyses the principle in the light of established case-law of the ICJ and concludes that the advent and proliferation of State-sponsored cyber operations seem likely to augment the importance of non-intervention as a legal means of maintaining international peace and 34

Lecture delivered at European University Viadrina, Frankfurt (Oder), 11 February 2015.

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respect for sovereignty, despite the fact that the principle, as presently understood, suffers from significant doctrinal gaps and ambiguities. The editors have presented a very interesting and comprehensive book on a broad range of issues raised by the cyber phenomenon; the fact that individual contributors subscribe to different starting points as to the proper legal classification of cyber operations contributes to, rather than disturbs, the comprehensive nature. The book continues to remind its readers that there are still numerous unresolved issues beyond the minimum consensus achieved in the Tallinn Manual on the Law of Cyber Warfare. SIGMAR STADLMEIER Professor of International Law Johannes Kepler University of Linz

Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.): The Oxford Handbook of the Law of the Sea. Oxford University Press, Oxford 2015, lxx+997 pages, ISBN 978-0-19-871548-1. In celebration of the 20th anniversary of the 1982 United Nations Convention on the Law of the Sea’s (UNCLOS) entry into force in 2014, this Oxford Handbook was put together by its editors Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens. The book is in many ways a tribute to the UNCLOS, which established the complex regime of the regulation of the Earth’s oceans. The editors deserve credit for having brought together 35 highly renowned authors, including scholars, former International Tribunal for the Law of the Sea (ITLOS) judges and practitioners. These experts’ immense knowledge on international law of the sea issues makes the book particularly worth reading. According to the editors’ ‘Preface’, the handbook’s 39 chapters, containing reflections on diverse topics, are meant “to guide the reader from an historical introduction to the law of the sea, through the principal maritime zones and key actors, to selected regional developments and cross-cutting issues”. The considerations are accompanied by nine detailed illustrations, including, e.g., schematic representations of ‘Maritime Limits and Boundaries’. Chapter 1 on the ‘Historical Development of the Law of the Sea’ (1–23) by Tullio Treves begins with the 1493 treaty concluded in Tordesillas. Following discussions on the findings of Hugo Grotius and John Selden and the codification attempts in the field of the law of the sea before World War II, Treves focusses on the early phase of codifications within the scope of the Geneva conventions on the law of the sea and related contributions of international courts and tribunals. This is what Robin R. Churchill draws on in Chapter 2 on ‘The 1982 United Nations Convention on the Law of the Sea’ (24–45), by succinctly discussing the development of the ‘con-

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stitution for the oceans’. The chapter’s sections on ‘The Legal Nature of the Provisions of the LOSC’ and the ‘Relationship of the LOSC to Other Treaties and Customary International Law’ will be of fundamental interest for most readers. Irina Buga (‘Between Stability and Change in the Law of the Sea Convention’, 46–68) praises the “colossal” convention’s flexibility to respond to the international community’s changing needs through the analysis of subsequent practice and regime interaction under the UNCLOS, e.g. with the Convention on Biological Diversity or the UNESCO Underwater Cultural Heritage Convention. Also under the heading of ‘regime interaction’ comes James Kraska’s chapter on ‘Military Operations’ (866–887), which analyses the interaction of the provisions of the law of naval warfare with the law of the sea in the context of the use of the oceans for military operations during peacetime. Chapters 4–11 summarise and analyse the contents of Parts II–XI of the UNCLOS, e.g. Coalter G. Lathrop covers ‘Baselines’ (69–90), John E. Noyes talks about ‘The Territorial Sea and Contiguous Zone’ (91–113), and ‘The Exclusive Economic Zone’ (159–180) is addressed by Gemma Andreone. The problems of the legal regime of ‘The Continental Shelf’ (181–202) are examined by Ted L. McDorman, while Michael W. Lodge deals with ‘The Deep Seabed’ (226–253). A similarly ‘fundamental’ topic is considered by Yoshifumi Tanaka, who gives a thorough and well-articulated overview of ‘Navigational Rights and Freedoms’ (536–558). Unfortunately, from a systematic viewpoint, this chapter – placed between deliberations on science and marine environment – seems to be a little out of context. Chapter 12 on ‘Maritime Boundary Delimitation’ (254–279) by Malcolm D. Evans outlines the difficulties and uncertainties arising from delimitation, i.e. the problem of overlapping territorial seas and the ‘equidistance’ debate. This chapter should be especially useful for the reader interested in the interference of theory and practice in the context of delimitation processes. Chapters 13–15 cope with specific jurisdictional problems concerning ‘Port and Coastal States’ (280–303, Erik J. Molenaar), ‘Flag States’ (304–324, Richard A. Barnes), and ‘Landlocked and Geographically Disadvantaged States’ (325–345, Helmut Tuerk). In Chapter 16 (346–372), Hans Corell provides ‘A Practitioner’s Perspective’ on the convention institutions (addressed in depth in Chapter 17 on ‘The Law of the Sea Convention Institutions’, (373–393, James Harrison)) and on the role of institutional bodies within the United Nations (e.g. the ‘International Maritime Organization’ (416–438, Aldo Chircop)) dealing with law of the sea matters. Corell further deliberates on the organisations’ role in the context of high profile contemporary issues, e.g. sustainable use of marine biodiversity in areas beyond national jurisdiction. Bernard H. Oxman’s chapter on ‘Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals’ (394–415) provides concise analysis on the dispute settlement mechanisms of the UNCLOS and highlights how the work of courts and tribunals is indispensable for the development of the complex law of the sea. Despite the international focus of the UNCLOS, in her chapter on ‘Regional Fisheries Management Organizations’ (RFMO, 439–462), Rosemary Rayfuse reminds the reader of how important the regional component is, especially in the context of marine environmental

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protection. Rayfuse outlines the need to develop more efficient RFMO measures, not least because of the challenges posed by climate change. Her findings match those of Karen N. Scott, who discusses ‘Integrated Oceans Management: A New Frontier in Marine Environmental Protection’ (463–490) and makes a passionate plea for a ‘unified over-arching’ approach to oceans governance on the assumption that an inherently fragmented approach “is contributing to the degradation of the marine environment”. The marine environment is also a central focus for Nele Matz-Lück and Johannes Fuchs, who address ‘Marine living resources’ (MLR, 491–515). The authors present past and current economic and legal approaches to the management of MLR, which have, however, so far not resulted in limiting catches to sustainable levels. Thus, the authors dedicate part of their chapter to ‘Emerging Concepts Relevant to the Management of MLR’. But MLR are not exclusively threatened by overfishing, as is shown by the Chapter on ‘Science and the International Regulation of Marine Pollution’ (516–535) by Elizabeth A. Kirk. The Handbook’s particular strength is in its topicality, a point which is well demonstrated by the chapters on highly disputed ocean areas, e.g. ‘The South China Sea’ (626–664, Keyuan Zou) or ‘Polar Oceans and Law of the Sea’ (724–751, Karen N. Scott/David L. Vanderzwaag). Similarly, the following chapters bring a number of acute dilemmas in world politics to the fore, e.g. ‘Warming Waters and Souring Seas: Climate Change and Ocean Acidification’ (777–798, Tim Stephens). New fields of research and exploitation of the oceans are explored by Joanna Mossop in Chapter 36 (825–842) on ‘Marine Bioprospecting’, who describes the search for novel compounds from natural sources. A brief overview of the different facets of ‘Marine Scientific Research’ (559–581) is given by Tim Stephens and Donald R. Rothwell. Similarly future-oriented is the topic of Anna Petrig’s chapter (‘Piracy’, 843–865), which reveals legal constraints on counter-piracy enforcement powers. The topic of ‘Maritime Security’ is considered in the related Chapter 26 (582–603, Natalie Klein). As if to remove the need for a book review, in their final chapter ‘Charting the Future for the Law of the Sea’ (888–912) the editors briefly revisit the topic of every chapter of the Handbook. Thus, the reader is reminded of the wealth of information compiled in this Handbook. The Oxford Handbook of the Law of the Sea is characterised primarily by its topicality and straightforward and precise approach to the many issues covered. Thus, it is equally useful as book of reference for students of international law and scholars who seek to deepen their knowledge in the field of the law of the sea, especially the functional interaction between international law and science. CAMILLA SOPHIA HAAKE Research Associate, International and European Law at the University of Trier

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Carsten Stahn (ed.): The Law and Practice of the International Criminal Court. Oxford University Press, Oxford 2015, c+1326 pages, ISBN 978-0-19-870516-1. Without doubt, the creation of the permanent International Criminal Court (ICC) has crowned the emerging system of international criminal justice. By means of an international treaty – the Rome Statute adopted in 199835 – an integrated judiciary organisation (and not merely an ad hoc tribunal) was established. With its entry into force in July 2002, the ICC became operative. Since its very inception the Court has faced not only the introductory problems, typical of any institution in its nascent phase. But, with its functioning, a new floor was given to other kinds of problems, those of an operational character, which have been meticulously addressed in the present volume. It has the virtue of placing the ICC in a variety of possible contexts, drawing intensively on the respective hitherto jurisprudence. The book under review is a collection of articles aiming at this very task. Its editor, Professor Carsten Stahn of Leiden University has already co-edited a similar volume, commemorating the fifth anniversary of the ICC.36 The present book provides a detailed description and analysis of the role of the Court over a dozen of years after its establishment. Indeed, the ICC has come a long way since then. The collection begins with a general introduction by the editor, in which he sees the volume as “testimony to the changing nature of the Court [providing] perspectives on some of the factors and actors that drive this process” (c). Definitely, the respective approach is worth continuing in the future. The present collection contains the impressive series of 50 important contributions that have been grouped in six parts. The first part puts emphasis on ‘Context, challenges, and constraints’ which define the position of the ICC. Special attention in that regard is paid to the peace vs. justice dilemma, analysed not only in abstract terms but examined in detail from different angles, e.g. addressing the problem of double standards, or taking into account the role to be played by the United Nations Security Council or, subsequently, by the African Union. It is especially the latter issue that is important, given the allegations of anti-African bias in part reflected in the docket of the Court. In addition, two other chapters provide an insightful account of a matter of great relevance for the effective operation of the ICC, namely the financing of the Court and its relations with the Assembly of States Parties. In the following part, attention is paid to the peculiar tension with domestic jurisdictions. It starts with the careful examination of the jurisdictional regime under the Rome Statute and then offers a number of specific studies including the ad hoc acceptance of jurisdiction (scrutinised with respect to the Palestinian declaration of 2009 but definitely having considerable impact on other declarations like those lodged by Ukraine), the practice of self-referrals, admissibility challenges (and here especially the valuable concept qualified deference, which – had it been applied in case of Abdullah Al-Senussi – could have helped the Court to find a bet-

35

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3. Carsten Stahn/Goran Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009). 36

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ter solution than the one actually found in the above-mentioned case), the relationship to non-States parties, immunities, and also the cooperation regime. The subsequent part examines the prosecutorial policy mainly within the ICC (but also takes a broader look at the relevance of national prosecutions), in particular dealing with several specific issues of prosecutorial strategy during different stages of the proceedings, particular attention being paid to selection of situations and cases. In addition, a very interesting (and needed) examination of the accountability of the prosecutors is also included in the third part. The most extensive section of the book, part IV, entitled ‘The ICC and its applicable law’ considers the sources to be applicable in the proceedings before the Court and then the different aspects of applying the principle of individual criminal responsibility (as contained in Article 25 Rome Statute), thus providing a series of interpretations of modes of liability and confronted with the careful scrutiny in light of the existing practice. What follows is a series of studies dealing separately with every crime (at least potentially) falling within the jurisdiction of the ICC. Part IV ends with studies on charging practices. The second largest section, part V, deals with procedural issues, scrutinising all stages of the proceedings and offering analyses on evidence and disclosure problems as well as on interim release. Subsequently, the reader is offered several perspectives on victims’ and witnesses’ participation and also a study on reparations regime. Taken together they all shed a very important light on the fairness of the procedure before the ICC. By way of conclusion, part VI discusses the impact and legacy, again revolving around the goals of international justice, the potential for the ICC for deterring the commitment of international crimes, while additionally taking into account the recurring issue of complementarity. The final analysis of the operational challenges and lessons learned provides a valuable connection to the expectations elucidated in the introduction. It links up, in an intriguing manner, with the substance of the previous considerations still revealing the constant interplay of different factors affecting the operation of the Court. Needless to say, the ICC has come a long way since its establishment. As the studies included in the reviewed volume show, the Court undergoes a constant process of transformation, oscillating in reality between a giant and a paper tiger. The volume provides a systematic, and in most cases, coherent treatment of the law concerning the ICC as well as its related practice. It is natural that the vast circle of authors, including both academics and practitioners, offers different or even diverging responses to analysed matters. Thus, the reader is guided through a variety of topics by means of different tools reflecting different and underlying assumptions, which in itself might be – perhaps unexpectedly – assessed in a positive manner, despite the inevitable extent of incoherence stemming from different backgrounds of the authorship. One may fully subscribe to the opinion, as expressed in the introduction to the book, that “ICC action must […] be judged systematically, i.e. with regard to operational processes and institutional dynamics as a whole, rather than in an isolated fashion” (lxxxvii). Unfortunately, the ambit of the present review does not allow for a more detailed analysis of the content of the volume edited by Carsten Stahn. Definitely, the contributions offer a clear and detailed survey of problems relating to the permanent ICC covering in detail practically all aspects of the operation of the Court. Most papers are very informative and well-

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selected. They provide the reader with a comprehensive picture of the vectors of operation of the ICC. In sum, the volume under review provides a very accurate, up-to-date, and well-structured guide to the examination of the operation of the ICC. It should be recommended for all international lawyers and not only for those with special interest in international criminal law. For the latter group it is – one dares say – a ‘must have’ or simply a comprehensive piece of work reflecting the current state of affairs of the discipline and additionally providing a stimulating incentive or a convenient departure point for further studies in the given field. BARTŁOMIEJ KRZAN Associate Professor at the Department of International and European Law Faculty of Law, Administration and Economics University of Wrocław

Neil Walker: Intimations of Global Law. Cambridge University Press, Cambridge 2014, 240 pages, ISBN 9781107463783. The cover illustration of Neil Walker’s book ‘Intimations of Global Law’ aptly sets the scene for the things to come: A blurry image shows a landscape of vaguely recognisable contours that leaves much to the viewer’s imagination. The effort of describing what is actually there will sharpen these contours in our minds, attribute meaning and create a landscape that others might see as well – or not. On a first level, communication about that landscape might concern what we see. On a second level, it can take a step back and ask what kind of communication takes place when different people are trying to make plausible to others what they see. Walker follows the second approach: Over the course of 200-odd brief, but well-used pages, he makes the case for why certain ways of seeing legal phenomena beyond the State should be understood as ‘intimations of global law’ and what follows from such an understanding. Walker defines global law as “any practical endorsement of, or commitment to, the universal or otherwise global-in-general warrant of some laws or of some dimensions of law” (18). He sees these criteria fulfilled by a number of contemporary contributions to international legal thought, which he calls the “species of global law” (55). He develops categories of these species, the first of which he calls “convergent approaches” to global law. These approaches are characterised by a focus on “hierarchy and normative singularity”, such as theories inspired by the popular theme of Kant’s perpetual peace, formal constitutionalist thinking that places emphasis on law’s distinctive character as a social practice in the Kelsenian tradition, theoretical approaches to international human rights, and various conceptions of universal legal principles as well as the idea of the rule of law (58–86). In a second step, Walker explains what he calls “historical-discursive” approaches that seek to transfer domestic legal categories into the international sphere. These are, according to Walker, versions of global constitutionalism, the

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constitutionalisation discourse, and global administrative law (86–106). Thirdly, Walker discusses what he calls “divergent approaches” that revolve around “heterarchy and normative plurality” (56). These approaches comprise thinking in the categories of conflict of laws, legal pluralist ideas on a global scale, functionally differentiated regimes in the global governance discourse, and approaches that endeavour to merge various ideas from the domestic and international sphere into “new ways of conceiving global legal order based upon established functional distinctions” with the value of the human being at their core (106–120). Global law, Walker stresses, is different from Jessup’s well-known concept of transnational law (15 et seq.). Unlike the latter, global law does not comprise regionally limited law and hybrid forms of public and private law-making. Global law is also different from a commitment to legal uniformity. It can embrace plurality and difference, and in that sense make a statement of global reach. Walker claims that qualifying the above theories by the adjectival category of global law has an epistemic effect. Instead of merely describing legal phenomena beyond the State, the category of global law is supposed to affect “what constitutes a legally relevant argument” and “even what kind of material counts as law” (26). Next to “doctrine and dogmatics”, it comprises “metaprinciples […] through which we might frame, justify and seek to lend authority to the development of new doctrine” (172). It is “anticipatory legal framing” on a global scale that “takes the world of law as it stands”, but comprises “norm-shaping” manifestations of law (196). Thereby, it merges “first order questions of immediate validity” and “second-order questions of authoritative framing” (188). As such, global law is “often projected, oblique and unsettled” and therefore ‘intimated’ (149–173, here 170). Walker calls upon the international jurist to observe trends in existing law and develop them as aspirations that push towards their realisation in the present by becoming the authoritative frame for legal issues (171). Therefore, global law “questions many of our State-centric or otherwise jurisdiction-centric premises about law as a settled form and about the grounds of its authority and legitimacy” (26). Notably, it ascribes a pivotal juris-generative role to legal experts and especially legal academia (173). It is both rhetoric and practice, the active promotion of ideas about the state of law in a global context by people whose professional life consists in finding solutions to legal challenges that involve law beyond the State (173). As such, global law displays both the potential to “stand as a common juridical offering at the level of general global steering mechanisms, while also informing the resolution of particular cases” (196), and the danger of descending “into constant academic conflict” and thereby “becoming merely ‘academic’” (205). To prevent the latter, Walker suggests searching, finding and emphasising common ground among the different species of global law (205). Walker’s book presents both familiar and new ideas and some familiar ideas with a new twist. As a contribution to international legal scholarship it is most welcome because it draws attention to the operation of shared assumptions in the creation of legal meaning in both a sociological and analytical way. While it was plausible in 1991 to begin a piece on international legal theory by stating that “[m]odern international lawyers are no enthusiasts over theory”,37 Walker now

37 Martti Koskenniemi, Theory: Implications for the Practitioner, in: Philipp Allott et al. (eds.), Theory and International Law: Introduction (1991), 1.

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shows the potential of theoretical reflection for international law and, in fact, its inevitability given how vague the contours of legal phenomena beyond the State still are. Walker’s tour d’horizon of contemporary international legal thought that he perceives as ‘intimations of global law’ takes up a large part of the book and is one of its definitive merits. He presents these approaches with just the right amount of detail to bring out their distinctive features and to make the case for understanding them as ‘global law’. He has an acute sense of the uniting and dividing lines within the literature, not only with regard to the species of global law but also their meaning within the wider discourse of international and constitutional theory. He engages relevant criticism of the practice of global law, such as scepticism based on the argument that the transfer of domestic concepts like the constitution is a “deracination” that depletes these concepts of their genealogical meaning, or the “standing temptation” to use “the brave new world of post-national law […] as an opportunity to write a new script unencumbered […] by past political constraints” that might serve an ultimately “self-legitimizing” purpose for international academics and judges (180 et seq., 185). For this reason alone Walker’s book merits reading. It is a resource for anyone who seeks a concise glimpse into current theoretical conflicts that is presented with a focus on core argumentative thrusts, interrelations, eventual inconsistencies, and implications for the wider discipline of international law. The prominent, even juris-generative role of international legal experts – the proverbial “invisible college” or, in a fragmented international sphere, “colleges” – is a rather familiar topos.38 It is a merit of the book that Walker is explicit about the role and relevance of interpretive communities without falling prey to the fashionable yet reductionist reflex of placing those communities under ideological soupçon or of attempting to unveil their alleged unconscious. If the cover illustration of the book can serve as a metaphor, legal academia is the place where the various discourses about the actual character of the blurry landscape take place. Walker takes a step back from these discourses and inquires into their common features, uniting them under the label of ‘global law’; but the various species of global law could – on the most basic level – simply be understood as academic negotiations about the plausibility of one interpretation of vagueness over the other, or over the possibility of finding common ground despite differing interpretations. Walker’s effort is, in fact, concerned with the effect of widely shared assumptions among interpretive communities – which need not even amount to a ‘paradigm’ of Kuhnian dimensions – that are, albeit not necessarily uncontested, at least for a certain period of time irreducible points of reference for argumentation within the discipline of international law. In that case, it can be said that the relevant interpretive communities are to a certain extent homogeneous because they share a certain Vorverständnis, methodology and maybe doctrinal categories. On the basis of this homogeneity, legal knowledge can be produced and contested. Without such homogeneity, the production and contestation of legal knowledge necessarily needs to reflect and communicate about the relevant assumptions lest interindividual understanding remain illusive. If such assumptions are themselves precarious within interpretive communities, their normative force in legal 38 Oscar Schachter, The Invisible College of International Lawyers, Northwestern University Law Review 2 (1977), 72, 217; see also the interesting empirical study by Anne Peters, Rollen von Rechtsdenkern und Praktikern – aus völkerrechtlicher Sicht, in: Bardo Fassbender et al. (eds.), Paradigmen im internationalen Recht (2012), 105–173.

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argumentation becomes all the more visible. Walker’s labelling of these assumptions as ‘law’ only makes their normative force explicit. Walker’s conviction that the largely academic project of global law will have an effect on “the resolution of particular cases” (196) must not be misunderstood as too optimistic a take on legal academia in contrast to the true forces of the real world.39 Academic creations of “theoretical bus schedules and bus routes through partial observation of [an existing system of] buses” might very well leave the “buses […] unimpeded and unimproved”.40 Now and then, however, academics become the bus drivers, or talk to bus drivers, or meet them at international conferences.41 This kind of reflexivity between academia and practice is a major aspect of Walker’s book (188), which he calls the “continuum of global law-craft” (170.) He describes extensively the sociological underpinnings, networks, and rhetoric of legal expertise that play a role in the making of global law (47 et seq., 149 et seq.). On a smaller scale, there is a comparable debate over international investment law, where scholars and tribunals disagree whether it should be conceived in the categories of human rights law or rather along the lines of traditional international reciprocity. This seemingly academic discussion can have profound practical consequences.42 In any case, Walker’s main concern is not the development of academic theories as such. Rather, he states that whatever the specific theory, thinking about law beyond the state has potentially juris-generative character – all the more likely the more it becomes a shared assumption of the discipline (205). With a grain of salt, it might be said that the Westphalian imagery of international law was the most successful version of global law so far, however unsuited for present-day circumstances (172). ‘Intimations of Global Law’ describes the lack of and struggle for a comparably successful version of global law – or at least for common ground among the various species.43 In fact, the

39

Cf. David Kenny, Book Review: Neil Walker, Intimations of Global Law, American Journal of Comparative Law 63 (2016), 1053, 1058 et seq. 40

Ibid., 1059.

41

Kenny notes this possibility in footnote 36, but in this case sees theory as mere rhetoric that neither “make[s] us right” nor affects “the phenomenon we are observing”. I do not understand Walker’s to be an effort of developing the ‘right’ version of global law; cf. Walker, Intimations of Global Law, 1. I do think that the framing of legal problems has an influence on their solution; cf. Daryl J. Levinson, Framing Transactions in Constitutional Law, Yale Law Journal 111 (2002), 1311 et seq. 42 Anthea Roberts, Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System, American Journal of International Law 107 (1) (2013), 45, 72 and 75; Martins Paparinskis, Investment Treaty Arbitration and the (New) Law of State Responsibility, European Journal of International Law 24 (2) (2013), 617, 619; Clemens Wackernagel, The Twilight of the BITs? EU Judicial Proceedings, the Consensual Termination of Intra-EU BITs and Why that Matters for International Law, Beiträge zum Transnationalen Wirtschaftsrecht 140 (2016), 25–37; Valentina Vadi, Analogies in International Investment Law (2016). 43 In order to assess the potential of Walker’s contemporary approach to ‘global law’, a look at historical ‘species of global law’ might be useful, cf. Douglas M. Johnston, The Historical Foundations of World Order, 2008.

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very existence of the book is a symptom of deep uncertainty in this regard.44 As such, the book is a topical contribution with a unique perspective on the many answers to the question what kind of landscape the blurry picture actually shows. Walker pursues his project with care and in a well-balanced and thought-provoking way. Those who think and write about international law and take an interest in the self-reflective question of the social meaning of their activities will find reading Walker’s book extraordinarily rewarding. CLEMENS WACKERNAGEL LL.M (Harvard) Research Assistant at the University of Konstanz

Gerhard Werle/Lovell Fernandez/Moritz Vormbaum (eds.): Africa and the International Criminal Court. T.M.C. Asser Press – Springer, The Hague 2014, xiii+303 pages, ISBN 978-94-6265-028-2. Africa has been extremely exposed to international crimes. International criminal law does not of course operate exclusively within this particular geographic scope, but it is indeed the events in Africa that had a catalysing effect on the development of international criminal justice, as evidenced by the establishment of the International Criminal Tribunal for Rwanda or the Special Court for Sierra Leone. Last but not least, African States actively participated in the creation of the International Criminal Court (ICC). But the ‘African’ attitude towards the permanent Court is not easily defined. This is indeed a very complex matter, undergoing dynamic changes. After the initial hope and enthusiasm, as reflected, for example, in the initial self-referrals of situations for the attention of the ICC, African States now take a rather reluctant approach. This change, exemplary as it is, implies several legal problems which are competently addressed in the book under review. From an institutional perspective, the African Union (AU), with all African States except for Morocco as members, has taken several actions seriously affecting the operation of the ICC. The right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances (namely: war crimes, genocide and crimes against humanity), as provided in the Constitutive Act of the African Union has already been made use of. One may notice increasing distrust and opposition of the AU towards the ICC. This is evidenced by the criticism leveled by the Union against the arrest warrant of President Al Bashir or the attempts to establish an African alternative to the ICC. The growing opposition 44

Just as the German genre of ‘Allgemeine Staatslehre’ can be attributed to the long absence of a Nation State; cf. Christoph Schönberger, Der “German Approach”: Die deutsche Staatsrechtslehre im Wissenschaftsvergleich (2015), 18 et seq. and on the potential of rediscovery of this distinct style in the international context, 51; see also Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, Modern Law Review 70 (1), 1, 2 footnote 5.

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of the Union to the Court compels African States to choose between the conflicting obligations stemming from their membership in the AU, on the one hand, and those from the Rome Statute45 on the other. The present study assessing the impact of the African Union and its members on the development of international criminal justice may prove indispensable for any student of the discipline. The importance of Africa in this regard may be seen by reference to the titles of the volumes of the newly established International Criminal Justice Series, all of whose volumes thus far released tackle issues concerning Africa. The book under review opens the aforementioned series. The starting point for the reviewed volume was the conference organised by the South African-German Centre for Transnational Criminal Justice in Cape Town in November 2013. The papers delivered at the conference have been grouped in three main parts, preceded by an overview of the book by the editors included as Chapter 1. Part I deals with prosecutions by the ICC in Africa. As widely known, all cases in the hitherto docket of the ICC refer to the international crimes committed in Africa. This part starts with the overall introduction by the First Vice President of the International Criminal Court Sanji Mmasenono Monageng who strongly argues against the politisation of the Court and calls for understanding of the Rome Statute system. The contribution by another ICC judge, Ekaterina Trendafilova considers several aspects that heavily affect the daily operation of the Court, namely the admissibility issues, head of State immunities as well as the cooperation of States with the Court. In the subsequent chapter, René Blattmann, drawing on his bench experience offers his reflections of the operative ICC through the lenses of the Lubanga case. Usefully, the judges’ perspective may be challenged by the one offered by Shamila Batohi representing a different, prosecutorial background and content. The consideration of the ‘African bias’ is followed by the overview of the ICC Prosecutor’s activities in Africa which is then aimed at resolving the idea of the permanent ICC in the context of peace processes. The latter issue may be seen as recurring steadily in other contributions to the volume under review. The second part of the book is devoted to the African prosecutions of international crimes. The opening chapter, by Gerhard Kemp, deals with the implementation of the Rome Statute by African States, with particular attention paid to the respective South African legislation. For any State the approach taken towards the Rome Statute may of course illustrate its position on the prosecution of international crimes but it is the actual reaction towards the crimes that are decisive for the enforcement of international criminal law. The subsequent chapters refer to the experience of given States. First, Sam Rugege and Aimé M. Karimunda discuss the aftermath of the genocide in Rwanda in 1994. Naturally, the analysis starts with the reference to the International Criminal Tribunal for Rwanda, but attention is then paid to the parallel operation and the legacy of Gacaca Courts as well as to the practical problems of the multidimension post-conflict justice mechanisms. The following chapter, authored by Mbacké Fall, considers the case of the former President of Chad, Hissène Habré, tried before the Extraordinary African Chambers established by an agreement between the African Union and Senegal in 2012. Such a step may indeed be considered complementary to the ICC. In turn, the contributions by Temitayo Lucia Akinmuwagun and Moritz Vormbaum deal with the series of 45

Rome Statute of the International Criminal Court, 17 July 1998, UNTS 2187, 3.

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attacks committed in Nigeria, the ‘Jos crisis’, which so far has not met with adequate (domestic or international alike) response, evidencing the difficulties of the international criminal law enforcement. Finally, Florian Jeßberger provides the reader with insightful consideration of the principle of universal jurisdiction as viewed from the African perspective. In the third part of the volume, several issues of the complicated relationship between the ICC and the African Union are scrutinised. The analysis first takes a political science perspective, with Tim Murithi focusing on the African Unions critique towards the ICC and suggesting possible solutions to overcome the respective tension. The following chapter, by Juliet Okoth, uses the rejection of the proposal to make use of Article 16 Rome Statute with respect to the Kenyan situation, to legally analyse the application of deferrals by the United Nations Security Council. This is yet another reflection of the fiat iustitia pereat mundus principle. Together with the last contribution by Sosteness Francis Materu on the hostility towards the ICC, they shed additional light on the Kenyan position towards the operation of international criminal justice. The contributions gathered in the book are followed by a set of recommendations concerning the relations between Africa and the ICC made by students and alumni of the South African-German Centre for Transnational Criminal Justice during the November 2013 international conference. They refer to the politics of perception, i.e. how the Court is perceived by the African nations. In addition, special attention has been paid to the duty to prosecute crimes under international law, which in itself overrides the immunity of incumbent heads of State. But one may not ignore the last of the recommendations which advocates for the broader concept of justice, also embracing alternatives to the ICC, which apart from domestic prosecutions should also include the regional initiatives. The latter recommendation coincides with the proposals to establish a penal chamber within the structure of the African Court on Human and Peoples' Rights, also made by the AU, but unfortunately, attracted only minor indirect attention in the chapters of the book under review. Also appended to the book are the decisions of the AU (Annex 2) and of the United Nations Security Council (Annex 3) concerning the enforcement of international criminal law in Africa. Both compilations facilitate the analysis of this crucial relationship and confront the normative framework of the Rome Statute with international reality. In general, one may praise the contributors to this valuable initiative for providing an overall picture of the African approach to prosecuting international crimes and thus making it possible to draw general conclusions on the overall position of international criminal justice nowadays. The editors may be congratulated on the final outcome. The book offers a profound insight into a highly relevant and practical subject. Given its dynamic character it might be useful in the future to have another conference and another volume of the series to cover developments in the field. BARTŁOMIEJ KRZAN Associate Professor at the Department of International and European Law Faculty of Law, Administration and Economics University of Wrocław

BOOKS RECEIVED (Inclusion in this list neither assures nor precludes later review.)

Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right, Cambridge University Press, 2015, 400 pages. Marjorie Cohen (ed.), Drones and Targeted Killing: Legal, Moral and Geopolitical Issues, Olive Branch Press, 2014, 296 pages. Pierre-Marie Dupuy/Jorge E. Vinuales, International Environmental Law, Cambridge University Press, 2015, 515 pages. Richard Gardiner, Treaty Interpretation, Second Edition, Oxford University Press, 2015, 576 pages. Hofmann/Angst/Lantschner/Rautz/Rein, Rahmenübereinkommen zum Schutz nationaler Minderheiten Handkommentar, 2015, 616 pages. Lauri Malksoo, Russian Approaches to International Law, Oxford University Press, 2015, 240 pages. Marko Milanovic/Michael Wood (eds.), The Law and Politics of the Kosovo Advisory Opinion, Oxford University Press, 2015, 384 pages. Jens David Ohlin/Kevin Govern/Claire Finkelstein (eds.), Cyber War: Law and Ethics for Virtual Conflicts, Oxford University Press, 320 pages. Donald R. Rothwell/Alex G. Oude Elferink/Karen N. Scott/Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015, 1072 pages. Carsten Stahn (ed.), The Law and Practice of the International Criminal Court, Oxford University Press, 2015, 1440 pages.

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BOOKS RECEIVED

Neil Walker, Intimations of Global Law, Cambridge University Press, 2015, 240 pages. Gerhard Werle/Lovell Fernandez/Moritz Vormbaum (eds.), Africa and the International Criminal Court, T.M.C. Asser Press, 2014, 303 pages.