Hague Yearbook of International Law / Annuaire de la Haye de Droit International, Vol. 28 (2015) [1 ed.] 9789004354098, 9789004354081

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Hague Yearbook of International Law Annuaire de La Haye de droit international

Hague Yearbook of International Law 2015 Editor-in-Chief Prof. Jure Vidmar Vice-Editor-in-Chief Dr. Ruth A. Kok Editorial Board Dr. Julian Arato, Dr. Nikos Lavranos, Dr. Daniel Rietiker Editorial Assistant Leonor Vulpe Albari Email address [email protected] Website http://hagueyearbook.weebly.com/ Advisory Board Serge Brammertz (Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY)) – Antônio Cançado Trindade (Judge at the International Court of Justice (ICJ)) – Jacomijn J. van Haersolte-van Hof (Advocate (advocaat) at HaersolteHof and arbitrator (The Netherlands)) – Peter Hilpold (University Professor at Innsbruck University (Austria)) – Bruno Simma (( former) Judge at the International Court of Justice (ICJ)) – Olivia Swaak-Goldman (( former) Head, International Relations Task Force, Office of the Prosecutor, International Criminal Court (ICC))

The titles published in this series are listed at brill.com/aaaa

HAGUE YEARBOOK OF INTERNATIONAL LAW ANNUAIRE DE LA HAYE DE DROIT INTERNATIONAL VOLUME 28 2015 Edited by

Jure Vidmar, Ruth Kok et al.

leiden | boston

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-35408-1 (hardback) isbn 978-90-04-35409-8 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhofff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents

Editorial: An Essay on the Falklands: Historic Title, Critical Date and the Irrelevance of Self-determination

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Maastricht Symposium on the Sovereignty Dispute over the Falklands (Malvinas) 1

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The Sovereignty Dispute between Argentina and the UK over the Falklands (Malvinas): A Preliminary Assessment of the Competing Claims Fabián O. Raimondo Exploration and Exploitation of Oil and Gas Resources in Maritime Areas of Overlap under International Law: The Falklands (Malvinas) Youri van Logchem

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Applying International Investment Law to Disputed Maritime Zones: A Case Study of the Falklands (Malvinas) Marco Benatar

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The Falklands/Malvinas and China in 1982 and Today: Some Legal and Diplomatic Observations Wim Muller

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International Criminal Law 5

Risky Business: Witnesses and Africa’s ICC Withdrawal Sarah McGibbon

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The (In)Admissibility of Unlawfully Obtained Evidence at the International Criminal Court Ann Marie Thake

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contents

International Trade Law 7

The Legal Consequences of Brexit from an International Economic Law Perspective Ines Willemyns and Marieke Koekkoek

About the Editorial Board

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Editorial An Essay on the Falklands: Historic Title, Critical Date and the Irrelevance of Selfdetermination Maastricht University recently hosted a symposium on the Falklands/ Malvinas dispute between Argentina and the United Kingdom. Four out of seven articles in this volume are expanded papers that were originally presented at this event. This editorial essay provides some thoughts on territorial entitlement, the problem of historical title and self-determination. The context is that of Falklands (Malvinas), but the issues exposed in this essay are of universal concern. The Falklands (Malvinas) are an archipelago comprised of two large islands and over 700 small ones. The population of the territory is around 3,000 people, primarily of British descent. The distance between Port Stanley, the capital of the Islands, and Buenos Aires is around 1,900 kilometres. The distance to London is about 12,500 kilometres. The Falklands/Malvinas dispute is a nexus of law and politics on the questions of territorial entitlement, colonialism, self-determination, and the use of force. The Islands were uninhabited prior to the arrival of Europeans. The Islands are today a British Overseas Territory and have been governed by Great Britain since the first half of the 19th century. But Argentina never relinquished its territorial claim. In 1982, Argentina intervened militarily and temporarily took effective control over the Islands. The United Kingdom (UK) responded with force, and reestablished its effective control. The right of self-determination is a collective human right and applies to peoples. References to self-determination appear in the United Nations (UN) Charter. The right is codified in the common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Self-determination also has the status of customary international law. In the context of the right of self-determination, the Falklands (Malvinas) raise several difficult issues. First, do the Falklanders constitute a people for the purposes of the right of self-determination? Secondly, the right of self-determination was codified only after the end of World War Two. It was arguably a political principle in the interwar period, champi-

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oned, at least in theory, predominantly by United States (US) President Woodrow Wilson, who was also a political scientist. But the Falklands dispute predates the codification of the right of self-determination. Is the right of self-determination then the correct legal framework for the Falklands (Malvinas) dispute? Thirdly, does it matter in the end whether or not the Falklanders are a separate people and beneficiaries of the right of self-determination? Would it be acceptable in contemporary international law to transfer the territory to another sovereign power, and do so explicitly against the wishes of its population? The intuitive answer may well be that this should not be acceptable. But then, international law imposes severe restrictions on democratic decision-making. Imagine if such restrictions were not in place and territories could simply be conquered by resettlement policies. On the other hand, the UK returned Hong Kong to China in 1997, and the population of Hong Kong was not consulted beforehand. Migration has always been a part of human civilization. Europe was no exception, and Europeans subsequently established colonies in the so-called New World. Most of these former colonies are now independent states. Their boundaries more or less follow former administrative lines, that is, delimitations between territories belonging to different colonial powers, or between units established by the same colonial power for its own administrative purposes. Think of Argentina and Chile, Argentina and Brazil, Zambia and Zimbabwe; look at the map of Namibia and you will see its odd shape, the Caprivi Strip, named after German Chancellor Leo von Caprivi, who negotiated in 1890 with the British that German South-West Africa would have access to the Zambezi River. Now, if you are from that strip, you are Namibian; if you are from just a little bit north of it, you are Angolan or Zambian; if you are from the south of it, you are Botswanan, and a bit south-east of it, you are Zimbabwean. Your life in Southern Africa and your national identity may still be determined by something that the German Chancellor negotiated with the British some 125 years ago. What sense does this make? And why my excursion into Africa? To illustrate how unfair and unjust borders may be. How artificially and indeed how recently, even forcefully, national identities may have been created. Not only where former overseas European possessions are concerned. Also in Europe. Argentina declared independence from Spain in 1816 and its war of independence was won in 1818. But look at the map of Europe in 1816! Argentina is a former colony of a major European colonial power, yet it is in fact older than many contemporary states in

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Europe. When one is making territorial claims on the basis of historic entitlements, the first question is: how far back in history you go? Where do you set your critical date? Who should determine the critical date? And another problem is: if you are trying to eradicate a historic injustice, you may well create some new injustice. We may say that the Falklanders are settlers. But then, Argentina is also a country created by settlers. And so is the United States, Canada, Australia, to give just a few examples. What is now a just solution? That European settlers go back from where they came from? And where should they go? Large parts of New York were settled by the Dutch. Since we now agree that colonialism was wrong, is it only just if New Yorkers come ‘back’ here – to the Netherlands? I doubt there would be anything just in this ‘solution’, regardless of how unjust colonialism was in the first place. Likewise, European settlers have caused significant harm in Africa, but many of the present Africans of European origin have been there for generations and have no place to return to in Europe. The paradox is that if we go back in history even further, if we set our critical date far enough back in time enough, say 70,000 years, we all need to go back to Africa anyway. Where territorial claims exist, a critical date needs to be set. But who decides? It also needs to be answered to what extent does the population of that territory get to decide under whose sovereignty it wishes to live. Most present-day territorial disputes are determined by the clash of the peoples’ right to self-determination and the territorial integrity of states. In international law, and in law in general, very few rights or entitlements are absolute. Those claiming them will usually try to present them in absolute terms. I have the right to the freedom of speech, therefore I can say whatever I want, however offensive, false or misleading my statement may be. Not quite true! But you will hear people making such assertions over and over again. Ask the Catalans these days, among others, and perhaps at least some people across the border in Flanders, what the right of self-determination truly is. Independence, they will probably say. Ask Spain what it thinks about Catalan self-determination, and they will refer to territorial integrity and interpret that as an absolute entitlement of states. The reality is that your rights, individual or collective, clash with rights of others: the rights of other groups and individuals. A legal system is exactly that – a system – and a system needs balancing. The human body is also a system which needs to be kept in balance. If doctors successfully cure a patient’s heart disease, but the medication damages the kidneys and the patient

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dies, the cure was not successful. One needs to think with the system in mind! The international legal system is also about balancing. I have already mentioned Professor and President Woodrow Wilson who had many nice and somewhat utopian ideas about national self-determination, but after World War One he soon realized that a practical application of these ideas led to severe problems. How do you identify a self-determination unit? How do you determine a people? What do you do with ethnically mixed areas? How do you distinguish between peoples and minorities? At what point in time are settlers no longer settlers but a people? In 1970, Hardy Dillard, another great American thinker and, at the time, Judge of the International Court of Justice (ICJ), famously wrote in his separate opinion in the Namibia Advisory Opinion that it was not for the territory to determine the destiny of a people, but for the people to determine the destiny of the territory. Certainly a nice thought and difficult to disagree. However, about 15 years earlier, the great British jurist Ivor Jennings no less famously stated that the idea of self-determination seems to be reasonable – let the people decide. It was in fact ridiculous, Jennings continued, because the people cannot decide before someone decides who the people is. This reminds me of the famous Australian film, Crocodile Dundee. As a child, I found it very amusing when Crocodile Dundee said that people fighting for land ownership reminded him of two fleas fighting for the ownership of the dog on which they live. Years later, when I started to study the right of self-determination, I discovered the whole depth of this statement. What implications does this now have for the Falklands/Malvinas dispute? It is about setting the critical date, it is about deciding who is the people and their destiny. For Argentina, the critical date is 1816, the moment of independence from Spain. In the Argentine view, Spain was in possession of the Islands in that moment and when Argentina became independent, it became independent together with the islands. The UK, on the other hand, claims that Britain has administered the Islands since 1833. What makes the Falklands Islands somewhat unusual is that they had no native population. It is therefore not like Southern Rhodesia where a near-uniform General Assembly resolution pronounced that its 1965 declaration of independence amounted to improper exercise of the right of self-determination, as European settler minority excluded from government the native African majority. What is more, prior to 1833, no European colonial power, and after 1816 arguably not even Argentina, had

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established a continuous and permanent presence on the Islands. It was occasional farmers and fishermen who lived there. The first known European settlers on the Islands were French, in 1764, while the British first arrived a couple of years later. French and British settlements coexisted, and then they dissipated. France surrendered the claim over the Islands to Spain in 1766, but a British claim co-existed at the time. The Islands thus saw a history of European colonial powers coming and going, trading their interests, and then Argentina declares independence in 1816 and Britain comes back in 1833. How do we reconcile this mess? Is our critical date 1816, is it 1833, or is it indeed 1766, or perhaps some other date? The problem of critical dates is that it always depends on who you ask. And the problem of history is that it depends on who is telling it. How should international law deal with that? How far in history should international law go when recognizing territorial claims? To avoid the potential mess, international law is premised on permanency of boundaries. This does not mean that boundaries can never be changed. Territorial integrity and permanency of boundaries are not absolute principles. But there needs to be a prima facie presumption of territorial status quo. The starting point is always the most recent international boundary arrangement. But now again, is the most recent territorial arrangements for the Falklands 1816, 1833, or some other date? How about 1945? The UN Charter system makes aggressive territorial conquest illegal. Prior to that, international law was quite different and conquest was not illegal. After all, Argentina itself is a product of Spanish conquest in South America. And the Falklands dispute is an outcome of conflicting European interests -- far away from Europe. After World War Two, aggression was prohibited and colonial peoples received the right to free themselves from European domination. The paradigm of international law had radically changed. The history of modern boundaries is brutal and often completely unjust, but they need to be our default setting. Otherwise we may end up legalizing conquest again. The 1833 British re-conquest of the Falklands may remind us, mutatis mutandis, of present-day Crimea which may now be effectively in possession of Russia, but remains Ukrainian territory in law. So, there is a difference between law and fact. Factual possession no longer leads to an automatic switch of the legal status of territory. It is as if I steal your bike: the bike is in my physical possession, I get to use it; but it remains your bike in law. Yet, in the past, international law did not operate on this logic

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and conquest was a recognized means of creating legal entitlements. International law in 1833 was quite different than in 2014. A General Assembly Resolution was adopted in 1965 which urged both sides to negotiate the status of the Falklands and Malvinas. Negotiate – it did not say that a particular outcome had to be achieved. Negotiations indeed started, but the Islanders strongly opposed any transfer of sovereignty. The negotiations broke down and the Argentine invasion happened in 1982. The 1965 Resolution was adopted 17 years before the invasion: if certain shared sovereignty arrangements were perhaps politically possible then, this was hardly the case after 1982. In 2013, a referendum was held in the Islands. With a turnout of 91.94%, 99.8% voted in favour of staying a UK territory. Is this self-determination? Are the Falklanders a people for the purposes of self-determination? Remember Ivor Jennings and who decides who the people is! At the end of the day, are Austrians sufficiently different from Germans to be a separate people? What makes the Swiss a separate people? Is there indeed a Belgian identity, or if there is more than one identity in Belgium, what makes the Flemish people sufficiently different from the Dutch? And what makes the Argentines sufficiently different from the Chileans? Identities are a difficult question; they may be relatively recently realized and their relationship with the territory is a complex one. It is probable that the influence goes both ways: people determine the destiny of the territory and the territory determines the destiny of the people. It is quite likely that the 1982 Argentine intervention only strengthened the separate Falklander identity. The definition of a people is an old trap of self-determination and one should not fall in it. In practice, self-determination (even before it was called such) has always been applied territorially, within territorial units in which the population exhibited a certain degree of a common identity, yet separate from others, be that on the basis of language, religion, creed, historic circumstances, geographic division, or purely political separation. It is often difficult to identify and confine those units, but that is a bit easier if the territory is an island. In contemporary international law, it is no longer acceptable to transfer the territory to another sovereign power against the wishes of the population of that territory, regardless of how illegitimate historic acquisition of that territory was. But show me one territory the acquisition of which was perceived as being just by everyone! Can you? This is not to say that the will of the people is an absolute category of international law. By no means. A successful referendum of independ-

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ence does not create a state nor does it automatically shift territorial sovereignty in any other way. But the will of the people can at least prevent cession of a territory to another state. To illustrate: if Dutch Limburg voted in favour of merger with Belgium, the Dutch government would be under no legal obligation to cede it to Belgium. But if the Dutch and Belgian governments concluded a treaty on ceding Dutch Limburg to Belgium, I think it would be illegal under contemporary international law to cede this territory to Belgium against the wishes of the people of Dutch Limburg. And, while it is completely immaterial here to theorise whether or not the Limburgers qualify as a separate people for the purposes of self-determination, the fact that they may be ceded to another sovereign authority creates a unifying identity even if it did not necessarily exist before. The population which faces such a possibility has a collective say on such matters, regardless of how homogenous the group is otherwise. For example, the franchise of the Scottish independence referendum included UK, Commonwealth and EU citizens in residence in Scotland because they would all be affected by the vote. Even if you are otherwise Dutch, you could be ‘Scottish’ for the purpose of Scottish independence voting if you lived in Scotland on the critical date. This illustrates that self-determination talk is often completely redundant and circular, for we always fall into the trap of defining a people. Our identities are often in flux. Under some circumstances and for some purposes, anyone can be Scottish, British, Argentine or indeed a Falklander. And when the territory on which we live is to be transferred to another sovereign authority, it is only right that we are consulted on a territorial principle rather than some subjective identity. With regard to the Falklands, even if we accept that the Argentine 1816 claim is correct in principle, righting an injustice from 200 years ago would create a new injustice today. Therefore, we need to be careful when we entertain historic territorial claims and apply them to contemporary situations. Especially those of us located in the Netherlands need to be careful: we could be ceded back to Spain. And if we avoided that danger, another one is that millions of New Yorkers could come back and claim our houses! They would only need to set a suitable critical date. Prof. Jure Vidmar Editor-in-Chief The Hague Yearbook of International Law Chair of Public International Law Maastricht University, the Netherlands

Maastricht Symposium on the Sovereignty Dispute over the Falklands (Malvinas)

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The Sovereignty Dispute between Argentina and the UK over the Falklands (Malvinas): A Preliminary Assessment of the Competing Claims Fabián O. Raimondo*

Abstract On 16 December 1965, the General Assembly of the United Nations adopted Resolution 2065 (XX) on the ‘Question of the Falkland Islands (Malvinas)’. By the text of the resolution, the General Assembly noted the existence of a sovereignty dispute between Argentina and the UK over the Falklands and invited the governments of both States to settle the dispute by negotiation. However, more than fifty years later, the dispute remains unsettled and no sovereignty talks are underway. In the hope of provoking academic discussion to facilitate a better understanding of the scope of a dispute that is now two hundred years old, this research article identifies and assesses the competing claims to sovereignty over the Falklands by examining the legal titles invoked by both States.

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Introduction

On 16 December 1965, the General Assembly of the United Nations adopted Resolution 2065 (XX) on the ‘Question of the Falkland Islands (Malvinas)’.1 By the text of the resolution, the General Assembly noted

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University Lecturer in Public International Law and Academic Director of the Master’s Programme in Globalisation and Law, Maastricht University. Adopted by roll-call vote of 94 to 0, with 14 abstentions (including the UK). See Yearbook of the United Nations, 1965, p. 578. Argentina and other Spanish-speaking nations refer to the Falkland Islands as the ‘Islas Malvinas’, whereas Englishspeaking countries call them the ‘Falklands’. For the sake of brevity, this article employs the terms ‘Falklands’ and ‘Islands’ instead of the UN’s formula ‘Falkland Islands (Malvinas).’

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 3-27.

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the existence of a dispute between Argentina and the UK concerning sovereignty over the Falklands and invited both States to commence sovereignty negotiations without delay, bearing in mind the provisions of both the UN Charter and General Assembly Resolution 1514 (XV), as well as the interests of the population of the Islands.2 Resolution 2065 (XX) is the first of a series of resolutions adopted by the General Assembly to the same effect.3 The Question of the Falklands is on the permanent agenda of the General Assembly and may be discussed by this upon prior notification by a Member of the United Nations.4 The Question of the Falklands has also been on the agenda of, and was discussed by, the Special Committee on Decolonization (a.k.a. ‘C-24’) since 1964.5 Like the General Assembly, the C-24 has expressed that the way to put an end to this particular colonial situation is by negotiating the sovereignty dispute.6 Notwithstanding the repeated calls by the General Assembly and the C-24 to settle the sovereignty dispute by negotiation, more than fifty years after the adoption of the seminal Resolution 2065 (XX), the dispute remains unsettled and no sovereignty negotiations are underway. The Question of the Falklands is enthralling and thought-provoking. It raises interesting problems of international relations, such as the possibilities of enhancing the political and economic relations between both 2

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The Islands are in the South Atlantic Ocean, about 500 km from Argentina’s mainland. See Central Intelligence Agency, The World Factbook, , visited on 17 February 2017. The series includes: (i) Resolution 3160 (XXVIII) (adopted by a recorded vote of 116 to 0, with 14 abstentions (including the UK)); (ii) Resolution 31/49 (adopted by a recorded vote of 102 to 1 (the UK), with 32 abstentions); (iii) Resolution 37/9 (adopted by a recorded vote of 90-12-52 abstentions); (iv) Resolution 38/12 (adopted by a recorded vote of 87-9-54 abstentions); (v) Resolution 39/6 (adopted by a recorded vote of 89-5-54); (vi) Resolution 40/21 (adopted by a recorded vote of 107-4-41); (vii) Resolution 41/40 (adopted by a recorded vote of 116-4-34); (viii) Resolution 42/19 (adopted by a recorded vote of 114-5-36); and (ix) Resolution 43/25 (adopted by a recorded vote of 109-5-37). A review of the resolutions can be found in F. Raimondo, ‘The Sovereignty Dispute over the Falklands/Malvinas: What Role for the UN?’, 59 Netherlands International Law Review (2012), pp. 410-418. Resolution 58/316. See United Nations, , visited on 17 February 2017. See A/71/23, para. 206, , visited on 17 February 2017.

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States (which have been particularly tense since the 1982 Falklands War) and of settling the sovereignty dispute. It also raises challenging questions of international law, such as the modes of acquisition and transfer of territorial sovereignty, the right of peoples to self-determination, and the legality of the exploitation of natural resources in disputed areas. The Question of the Falklands was particularly newsworthy in the 1980s because of the armed conflict between both countries in 1982.7 It is now topical again, as shown by the academic events organised to commemorate the 50th anniversary of Resolution 2065 (XX)8 and, most importantly, the UK and Argentina joint communiqué of 13 September 2016. This recent joint communiqué reveals that both States are seeking to reactivate high-level bilateral consultations on a broad range of areas of mutual interest, including the Question of the Falklands, but excluding the specific issue of the sovereignty dispute.9

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There are plenty of titles on the Falklands War. See E. Rasor, The Falklands/ Malvinas Campaign: A Bibliography (Greenwood Press, New York, 1991). See for example the Maastricht Symposium on the Sovereignty Dispute over the Falklands (Malvinas), , visited on 17 February 2017. The relevant part 10 of the joint communiqué reads as follows: “In a positive spirit, both sides agreed to set up a dialogue to improve cooperation on South Atlantic issues of mutual interest. Both governments agreed that the formula on sovereignty in paragraph 2 of the Joint Statement of 19 October 1989 applies to this Joint Communique and to its consequences. In this context it was agreed to take the appropriate measures to remove all obstacles limiting the economic growth and sustainable development of the Falkland Islands, including in trade, fishing, shipping and hydrocarbons. Both parties emphasised the benefits of cooperation and positive engagement for all concerned. In accordance with the principles set out in the 14 July 1999 Joint Statement and Exchange of Letters, both sides agreed that further air links between the Falkland Islands and third countries would be established. In this context they agreed the establishment of 2 additional stops per month in mainland Argentina, one in each direction. The specific details will be defined. Both delegations expressed their full support for a DNA identification process in respect of unknown Argentine soldiers buried in the Darwin cemetery. Discussions on this sensitive humanitarian issue will be taken forward in Geneva on the basis of an International Committee of the Red Cross (ICRC) assessment supplemented by bilateral discussions as required. Both sides agreed that the wishes of the families concerned were paramount.” See Foreign and Commonwealth Office, , visited on 17 February 2017.

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It is against this background, on the occasion of the 50th anniversary of Resolution 2065 (XX), and in the hope of provoking academic discussion to facilitate a better understanding of the scope of a dispute that is now two hundred years old, that this research article identifies and assesses the competing sovereignty claims by examining the legal titles invoked by Argentina and the UK.

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The Competing Sovereignty Claims

As acknowledged by, for example, the Joint Statement issued in Madrid on 19 October 1989 by the Delegations of the Republic of Argentina and the United Kingdom of Great Britain and Northern Ireland, the Question of the Falklands includes the dispute over the sovereignty of the South Georgia and the South Sandwich Islands.10 According to the Constitution of the Argentine Nation, the Falklands, South Georgia and the South Sandwich Islands are part of the territory of Argentina.11 On the other side of the dispute, UK legislation stipulates that they are British Overseas Territories.12 Both States base their sovereignty claims on different legal titles.13 Argentina has always based its claim on succession of States, the principle of uti possidetis juris and 10

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A/44/678. S/20915, 24 October 1989, pp. 2-3. The relevant paragraph reads as follows: “Both Governments agreed that: ‘(i) Nothing in the conduct or content of the present meeting or of any similar subsequent meetings shall be interpreted as: (a) A change in the position of the United Kingdom with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas; (b) A change in the position of the Argentine Republic with regard to sovereignty or territorial and maritime jurisdiction over the Falklands Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas; (c) Recognition of or support for the position of the United Kingdom or the Argentine Republic with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas…” First provisional provision of the Constitution of the Argentina Republic, , visited on 17 February 2017. British Nationality Act 1981, Schedule 6, , visited on 17 February 2017. In this article, the term ‘title’ denotes the documentary evidence that may establish the existence of a right, as well as the source of that right. Cf. Frontier Dispute, Judgment, ICJ Reports 1986, para. 18.

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effective occupation, whereas the UK has based its claim on effective occupation, acquisitive prescription and the right of peoples to selfdetermination.14 2.1

Discovery, Historical Titles, Efffective Occupation and Succession of States As outlined below, Argentina claims that the Falklands formed part of the Spanish colonial establishments in America and came within the dominion of Argentina with the start of the Argentine War of Independence in 1810, but were occupied by the UK in 1833. On the other side, the UK claims sovereignty on the basis of its occupation of the Islands from 1765 to 1771 and from 1833 onwards. 2.1.1 The Position of Argentina According to Argentina, the Falklands came within the sovereign power of Spain after the Papal Bulls and the Treaty of Tordesillas of 1494 (concluded between Spain and Portugal) demarcated the recently discovered American continent. Throughout most of the next century, only navigators in the service of Spain sailed the routes along the South American coast; they did so in the search for a passage between the Atlantic and the Pacific oceans. The Falklands were discovered by Magellan in that context in 1520; they were documented on European maps under different names and remained under the sovereignty of Spain.15 During the 17th century, the Falklands were sighted by navigators from other countries who were exploring the Spanish dominions in the South Atlantic in contravention of the Papal Bulls and the Treaty of Tordesillas. The UK and France became particularly interested in the Falklands due to their strategic location. In 1749, Spain protested to the 14

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The position of the UK was summarised by the Foreign Secretary in his report to the members of the House of Commons on the occasion of the Falklands War: “even leaving aside arguments in our favour based on events before 1833, we have been consistently advised that our title can be soundly based on our possession of the islands from 1833. Our case rests on the facts, on prescription and on the principle of self-determination.” Quoted by R. Laver, The Falklands/ Malvinas Case: Breaking the Deadlock in the Anglo-Argentine Sovereignty Dispute (The Hague, Martinus Nijhoff Publishers, 2001) p. 72. See also L. Freedman, The Official History of the Falklands Campaign, Vol. I (London, Routledge, 2007) pp. 10-11. Ministry of Foreign Affairs and Worship, Argentine Republic, , visited on 17 February 2017.

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UK against a British project to establish a settlement on the Islands and the UK accordingly abandoned the project. Subsequently, in 1764, Spain protested to France against their establishment of a settlement called ‘Port Louis’ on the eastern Falkland; France ordered the evacuation of the settlement to Spain and the handover took place in 1767. From that time until the Argentine War of Independence, a Spanish governor always resided in the Falklands.16 In 1766, during the French settlement, a clandestine British party erected a fort at a place they called ‘Port Egmont,’ which was on a little island close to West Falkland. Spain protested to the UK immediately after becoming aware of the event and, as a result of the lack of a positive response from the UK, ousted the settlers in 1770. These events brought Spain and the UK to the brink of war; conflict was avoided by diplomatic negotiations which led to the conclusion of an agreement in the following year. The agreement consisted of a declaration by Spain, and a declaration of acceptance by the UK, that Spain should restore the situation quo ante by returning the fort at Port Egmont to the UK (with a view to preserving the honour of the King of England), while also formulating an express reservation of its sovereignty over the whole archipelago of the Falklands. The UK, in turn, remained silent on the reservation of Spanish rights. The agreement also included a secret, verbal clause, whereby the UK would withdraw from Port Egmont within a short period of time. The withdrawal occurred in 1774 and Spain maintained its exercise of sovereign power over the entire archipelago.17 In 1790, Spain and the UK concluded the Treaty of San Lorenzo del Escorial, which laid down the obligation for the UK not to establish any settlements on the coasts of South America or on the adjacent islands already occupied by Spain, as were the Falklands. From 1767 to 1811, Spain appointed a series of 32 governors for the Islands. On 13 February 1811, following orders by the Spanish authorities based in Montevideo, the military forces stationed on the Falklands withdrew to the mainland for the purpose of defending the Spanish authorities during the beginning of the Argentine War of Independence. The first governments of the United Provinces of the River Plate (the original name of the Argentine Republic) referred to the Islands in several administrative acts, as

16 17

Ibid. Ibid.

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they considered the Falklands to be part of the territory inherited from Spain by succession of States under the principle of uti possidetis juris.18 In 1820, Colonel David Jewett (a US national who was commissioned as a colonel in the United Provinces navy) took possession of the Falklands on behalf of the United Provinces; although the act of possession was advertised in American and British newspapers, neither the USA nor the UK made an official comment. In 1825, when the UK recognised the United Provinces as a State by concluding the Treaty of Friendship, Trade and Navigation with the United Provinces, it did not make any statement or reservation of sovereignty rights over the Falklands, despite the fact that, before the conclusion of the treaty, the United Provinces had enacted several official acts dealing with the administration of the Islands, such as the promulgation of fisheries legislation and the granting of territorial concessions. On 10 June 1829, the United Provinces created the Political and Military Command for the Islands; their doing so was formally protested by the UK after 54 years of silent acquiescence to the long list of administrative acts enacted by Spain and the United Provinces regarding the Falklands.19 In 1831, the USS Lexington destroyed Puerto Soledad (the seat of the Argentine settlement in the Falklands) as a reaction to the seizure by the Argentine authorities of American sealing vessels operating in breach of the law in force. The United Provinces requested reparations from the US and sent a vessel to restore order in the Islands immediately thereafter.20 Finally, on 3 January 1833, the British warship Clio, supported by another warship, approached the Islands and demanded the settlers to surrender while threatening the use of force. After expelling the settlers, the commander of the Clio left a British settler in charge of the British flag and returned to his base. The UK assigned an officer to stay in the Falklands in the following year and, in 1841, appointed a Governor of the Islands.21 2.1.2 The Position of the UK According to the UK, the first documented sighting of the Islands was by the English explorer John Davis in 1592, followed by the English ex18 19 20 21

Ibid. Ibid. Ibid. Ibid.

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plorer Sir Richard Hawkins in 1594 and the Dutch explorer Sebald de Weert in 1600. In 1690, the English captain John Strong made the first recorded landing on the Falklands; Strong landed on West Falkland. Captain Strong named the passage between the two main islands ‘Falkland’s Sound’, and ‘Lord Falkland’ became the name of the archipelago. In the early 18th century, French sailors from the port of St Malo named the Islands Iles Malouines.22 In 1764, the French explorer Louis Antoine de Bougainville erected a settlement, which he named ‘Port Louis’, on East Falkland. In 1765, the English military officer Byron took possession of Saunders Island (north of West Falkland) on behalf of the UK; in the following year, another British expedition returned to Saunders and erected the settlement at Port Egmont mentioned in section 2.1.1. The British and French settlers were aware of each other’s activities and their relations were respectful. However, in 1767, France handed the settlement to Spain, as the latter did not accept the presence of a foreign settlement in a territory that it considered hers. Spain renamed the port ‘Puerto de la Soledad’. In 1770, a Spanish fleet landed at Port Egmont and compelled the British garrison to leave, which resulted in a crisis that brought both States to the verge of war. The crisis was resolved the following year, when Spain agreed to restore the situation ante quo by returning the settlement to the UK. Spain made that restitution in September 1771. In 1774, the UK decided to withdraw their settlement for economic reasons; they left behind a plaque that declared British sovereignty. The Spanish garrison remained at Puerto de la Soledad until they withdrew in 1811 to defend the monarchy during the revolutionary process that had just begun in South America; they, too, left behind a plaque that declared sovereignty.23 In 1820, a ship under the command of Colonel David Jewett landed at Port Louis and, on his own initiative, he took possession of the Islands on behalf of the United Provinces. He neither erected a settlement nor informed the United Provinces that he had claimed the Falklands; Buenos Aires did not know of David Jewett’s actions until they learnt of them through foreign media the following year. In 1824 and 1826, Louis Vernet, who was born in Hamburg and living in Buenos Aires, organised 22

23

The Legislative Assembly of the Falkland Islands, Our Islands, Our History, , visited on 17 February 2017. Ibid.

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expeditions to the Islands. Vernet established a successful colony at Port Louis during the second expedition and, in 1829, the United Provinces appointed him as commandant of that colony. During his tenure as commandant, Vernet acted beyond his formal powers by confiscating certain ships owned by US nationals who were catching seals in the waters adjacent to the Islands. The USA sent the USS Lexington to Port Louis at the end of 1831 with the aim of destroying the settlement in reprisal. In 1832, the United Provinces sent a garrison to Port Louis; the British diplomatic mission in Buenos Aires protested Vernet’s appointments and Captain Onslow of HMS Clio was ordered to reaffirm British sovereignty over the Falklands, albeit without expelling the civilians. Upon his arrival at Port Louis on 2 January 1833, Captain Onslow demanded the captain of the Argentine naval vessel in charge of Port Louis to leave. There was no violence of any kind and many of Vernet’s two dozen settlers decided to remain under the British flag. Captain Onslow made no attempt to administrate the Islands other than leaving one crewman and a British flag. Vernet administered his colony from Buenos Aires until January 1834, when a British party led by Lieutenant Henry Smith arrived at Port Louis to restore the order altered by a mutiny that had occurred in 1833. The Falklands were administered by a succession of British naval officers until 1841, when the UK appointed Richard Moody as the first lieutenant-governor.24 2.1.3 Discussion The papal bull Inter Caetera decreed by Pope Alexander VI on 4 May 1493 was essential to the Spanish conquest of America, as it gave Spain a monopoly on the continent discovered the year before. The bull laid down a demarcation line one hundred leagues west of the Azores and Cape Verde Islands. It exclusively granted Spain both the right to acquire territories and the right to trade in all lands west of that line, and it prohibited all other States from entering that region without authorisation from the Spanish Crown.25 It is worth noting that Inter Caetera was not the first papal bull that granted a monarch the right to acquire territory; for example, in 1155, Pope Adrian IV allegedly empowered

24 25

Ibid. The Gilder Lehrman Institute of American History, The Doctrine of Discovery, 1493, , visited on 17 February 2017.

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King Henry II of England to conquer Ireland,26 indicating that Catholic English monarchs accepted the formal validity of papal bulls. Henry VII, who reigned over England when the bull Inter Caterae was issued, was Catholic.27 Although he objected to its territorial scope—he believed that North America was not covered by it—he acknowledged its legal validity like any other Catholic monarch.28 The Treaty of Tordesillas,29 in turn, was concluded to settle the controversy between Spain and Portugal as to which lands, of all those that had been discovered in the ocean up to the date of the conclusion of the treaty, belonged to each State. For this purpose, it stipulated that all lands and islands to the west of the demarcation line set in the treaty (as were the Falklands) belonged to Spain, whereas those to the east belonged to Portugal.30 Although England was not a party to the treaty and therefore was not bound by its terms, it did not formulate any diplomatic protest to Spain or Portugal concerning the terms of the treaty.31 Is it thus safe to conclude that England accepted that, in accordance with the Treaty of Tordesillas, Spain had an exclusive right to acquire territories in South America? It is not. Treaties that were concluded by Spain and other nations, such as the Treaty of Tordesillas, were res inter alia acta and therefore could not be binding upon England in any way. As expressed by the International Law Commission, the case law of international courts and tribunals shows that, in principle, treaties

26

27 28 29

30 31

The Avalon Project, Documents in Law, History and Diplomacy, The Bull of Pope Adrian IV Empowering Henry II to Conquer Ireland. A.D. 1155, , visited on 17 February 2017. English Heritage, Story of England: Tudors (1485-1603), , visited on 17 February 2017. M. Kohen and F. Rodríguez, Las Malvinas entre el Derecho y la Historia, (Buenos Aires, Eunsa/Eudeba, 2015) p. 26. The text of the Papal Bulls and the Treaty of Tordesillas can be found in P. Gottschalk, The Earliest Diplomatic Documents on America: The Papal Bulls of 1493 and the Treaty of Tordesillas Reproduced and Translated (Berlin, Gottschalk, 1927). The text of the Treaty of Tordesillas can also be found on The Avalon Project, Documents in Law, History and Diplomacy, , visited on 17 February 2017. See also T. Duwe, in R. Wolfrum (ed.), ‘Treaty of Tordesillas’, Max Planck Encyclopedia of Public International Law (O.U.P., January 2013), , visited on 17 February 2017. Article 1, Treaty of Tordesillas. Kohen and Rodríguez, supra note 28, p. 27.

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neither impose obligations on States which are not party to them, nor modify in any manner their rights without their consent.32 As for the issue of the discovery of the Falklands, the positions of Argentina and the UK as described above manifest a disagreement as to who discovered the Islands. Given that navigation and cartography were quite rudimentary during the 16th century, the uncertainty about who discovered or first sighted the Islands might never be resolved.33 In any event, the mere discovery of uninhabited regions or regions inhabited by ‘savages’ or ‘semi-civilised’ peoples did not, without more, constitute a complete legal title to sovereignty at the time of either the alleged discovery by Magellan or the first documented sighting by Davis. Rather, it created an inchoate (or relatively weak)34 title that had to be completed during a reasonable period by the effective occupation of the territory that was claimed to have been discovered.35 Put differently, if Spain or the UK had not effectively occupied the discovered territory (e.g., the Falklands) during a reasonable period, it would have remained res nullius. Regardless, the papal bull Inter Caetera, the Treaty of Tordesillas, and the issue of discovery are of secondary importance to the Spanish claim and, a fortiori, to the Argentine claim.36 This is because the Spanish claim is primarily based on a series of bilateral treaties (which acknowledge the sovereignty of Spain over the region) and Spain’s effective occupation of the Islands. The first of those bilateral treaties was the Treaty of Madrid of 18 July 1670. It was concluded with a view to adjusting disputes, repressing

32 33

34

35 36

International Law Commission, ‘Draft Articles on the Law of Treaties with Commentaries’, Yearbook of the International Law Commission, 1966, Vol. II, p. 226. M. Reisman, ‘The Struggle for The Falklands’, Faculty Scholarship Series, Paper 726 (1983), , visited on 17 February 2017. According to Brownlie, the notion of ‘inchoate title’ is misleading, as title (which is a question of the relative strength of State activity) is never ‘inchoate’. A title may be weak, but not inchoate, if it rests upon a small amount of evidence of State activity. I. Brownlie, Principles of Public International Law (New York, Oxford University Press, 2008, 7th edition) p. 140. Island of Palmas Case (Netherlands, USA), Reports of International Arbitral Awards, 4 April 1928, Vol. II, pp. 845-846. Kohen and Rodríguez, supra note 28, p. 25.

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depredations and procuring peace in America;37 it was seen as the key treaty governing the subject of colonisation before the Peace of Utrecht, and as having a direct importance for English colonisation and navigation in the South Atlantic from 18 July 1670 onwards.38 By the provisions of Article 7, the UK was to have sovereignty over the lands, regions, islands, colonies and dominions it possessed in any part of America at the time of the conclusion of the treaty.39 The Falklands were not possessed by the English Crown at that time and, therefore, the UK may not persuasively invoke Article 7 of the treaty as a title to sovereignty over the Falklands. Moreover, even if the treaty simply recognised the rights of England just referred to in Article 7, read in conjunction with the restrictions on navigation laid down in Article 15,40 it constituted an implicit recognition of Spain’s possessions on the continent and an implied assurance on the part of England not to interfere with such possessions.41 The second relevant bilateral treaty is the Preliminary Treaty of Peace and Friendship of 27 March 1713, which established the obligation for the English Crown to ensure that none of her subjects or vessels would enter the South Seas (i.e., the South Atlantic) or trade in any place 37

38 39

40

41

Treaty of Madrid of 1670, preamble. A copy of the original text of the treaty in Latin, together with a translation into English is available at , visited on 17 February 2017. J. Goebel, The Struggle for the Falkland Islands: A Study in Legal and Diplomatic History (New Haven, Yale University Press, 1927, reprinted in 1982), p. 129. “[I]t is agreed that the Most Serene King of Great Britain, his heirs and successors, shall have, hold, and possess forever, with full right of sovereignty, ownership, and possession, all the lands, regions, islands, colonies, and dominions, situated in the West Indies or in any part of America, that the said King of Great Britain and his subjects at present hold and possess; so that neither on that account nor on any other pretext may or should anything ever be further urged or any controversy begun in future.” Internet Archive, , visited on 17 February 2017. “The present treaty shall detract nothing from any pre-eminence, right, or dominion of either ally in American seas, straits, and other waters; but they shall have and retain them in as ample a manner as is their rightful due. Moreover, it is always to be understood that the freedom of navigation ought by no means to be interrupted, providing nothing be committed or done contrary to the genuine meaning of these articles.” Ibid., visited on 17 February 2017. Goebel, supra note 38, p. 132.

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of the Spanish Indies, except for the slave trade (compañía de asiento de negros).42 The stipulation of that obligation on the English Crown implied England’s recognition that the South Seas were under Spanish sovereignty, as the subjects and vessels of the English Crown could lawfully enter the region only for the slave trade. Article 8 of the Peace and Friendship Treaty of Utrecht between Spain and England of 13 July 1713 confirms that understanding.43 The agreement concluded by England and Spain in London on 22 January 1771, which concerned the forceful expulsion of the English settlers from Port Egmont on 10 June 1770, corroborates the thesis that both States viewed the Falklands as belonging to Spain. The agreement consisted of a declaration by Spain and a declaration of acceptance by England. The Spanish declaration acknowledged that the evacuation of Port Egmont by the English commander and his subordinates had affected the honour of the English Crown and, for this reason, the Spanish Crown accepted to restore the situation quo ante, without prejudice to the previous question of its rights over the Falklands. On the other side, England’s declaration of acceptance was silent in relation to the Spanish reservation of rights over the Falklands.44 Pursuant to the principle qui tacet consentire videtur si loqui debuisset ac potuisset,45 England’s silence 42

43

44 45

Article 14 of the Treaty reads as follows: “Su Majestad británica ha convenido en promulgar desde luego las más fuertes prohibiciones y debajo de las más rigurosas penas a todos sus súbditos a fin que ningún navío de la nación inglesa se atreva a pasar a la mar del Sur ni a traficar en otro paraje alguno de las Indias españolas, escepto solamente los de la compañía del asiento de negros”. Text available in A. Del Cantillo (ed.), Tratados, Convenios y Declaraciones de Paz y Comercio que Han Hecho con las Potencias Extranjeras los Monarcas Españoles de la Casa de Borbón desde el Año 1700 Hasta el Día (no publisher, Madrid, 1843), p. 73. Cited in Kohen and Rodríguez, supra note 28, p. 38. The relevant part of Article 8 of the Treaty reads as follows: “para que se conserven mas enteros los dominios de la America española, promote la reina de la Gran Bretaña que solicitará y dará ayuda a los españoles para que los límites antiguos de sus dominios se restituyan y fijen como estaban en tiempo del referido rey católico Carlos II, si acaso se hallare que de algún modo ó [sic] por algun pretesto [sic] hubieren padecido alguna desmembracion [sic] ó [sic] quiebra después de la muerte del dicho rey católico Carlos II.” Text available in Del Cantillo (ed.), ibid., p. 623. Ibid., p. 519. On the basis of this principle, “he who keeps silent is held to consent if he must and can speak”. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Reports 1962, pp. 23, 26.

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can only be interpreted as an implicit acknowledgment of Spain’s sovereignty over the Islands because, had England not acknowledged Spain’s sovereignty, either it would not have consented to Spain’s inclusion of that wording in their declaration, or it would have made a declaration to the contrary. Of equal importance for this discussion is the Treaty of San Lorenzo del Escorial of 28 October 1790 (a.k.a. the ‘Treaty of Nootka Sound’).46 The object and purpose of this treaty consisted in the regulation of fishing, navigation and trade in the Pacific and the South Seas. Article 3 laid down the freedom of navigation and fishery in the Pacific or the South Seas and the freedom of disembarking to trade or establish in unoccupied regions. The latter was subject to three limitations, two of which related to South America and, therefore, to the Question of the Falklands. The first limitation was imposed in Article 4, which obliged the UK to prevent the navigation and fishery of its subjects in the Pacific or the South Seas from being used as an excuse for illegal trade with Spanish settlements; it further stipulated that British subjects should not navigate or fish within ten maritime leagues of any part of the coast already occupied by Spain. The second limitation was included in Article 6: with respect to the eastern and western coasts of South America and their adjacent islands, the subjects of both States should not erect any establishment on parts of the coast which are situated to the south of either those parts of the same coast or those adjacent islands that were already occupied by Spain, without prejudice to their right to land on those coasts and islands so located for objects related to their fishing and their right to erect temporary structures serving only those objects. The conclusion of this treaty had the effect of ending Spain’s claim to an exclusive right to navigate the Pacific and the South Seas. However, at the same time, it expressed a clear commitment by both States to refrain from erecting new colonies in the South Pacific and the South Seas. The territories already occupied were to remain in status quo; hence, as far as the Question of the Falklands is concerned, the UK, by recognising the status quo, admitted Spain’s ongoing occupation of the Islands.47 Moreover, by agreeing not to set up establishments to the south of the regions that were already occupied by Spain, the UK implic-

46 47

Del Cantillo (ed.), supra note 42, p. 623. As described above, Spain was the only occupying State of the Falklands by 1790.

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itly recognised Spain’s sovereignty over those regions, which included the Falklands.48 In relation to the issue of the effective occupation of the Islands as a title to sovereignty, the exercise of jurisdiction over the territory by Spain from 1767 to 13 February 1811, and subsequently by the United Provinces (as the legitimate successor of Spain), constitutes effective occupation according to international tribunal case law. In the view of the Permanent Court of International Justice (‘PCIJ’), the fact that most of a State’s legislative and administrative acts only concern persons and events taking place in a settlement, and not in the rest of the contested territory, does not prevent that State from acquiring that territory by occupation.49 Thus, the fact that most of the exercise of governmental authority concerned the persons and events in Puerto de la Soledad can still constitute occupation of the whole archipelago of the Falklands. In another passage of that judgment, the PCIJ found that effective occupation of a scarcely populated or unsettled territory, such as the Falklands, requires very little in the way of an actual exercise of sovereign rights, if the other claimant State cannot maintain a stronger claim.50 Thus, the question is, can the UK maintain a stronger claim? As far as effective occupation as a legal title is concerned, it seems that the UK cannot demonstrate any unlawful occupation of the Islands either by Spain between 1771 and 1811, or by the United Provinces between 1811 and 1833, for the reason that, from 1771, when the UK departed from Port Egmont, to 1829, when it protested to the United Provinces against the latter’s creation of the Political and Military Command of the Islands, the UK silently acquiesced to the continuous, public and pacific occupation of the Islands, first by Spain and then by its successor State. Hence, once again, the principle of acquiescence referred to above applies.51 2.2 Acquisitive Prescription From 1833 onwards, the successive UK governments considered the Question of the Falklands closed and did not respond to the successive Argentine protests. By the 1940s, the UK was of the view that, whatever

48 49 50 51

Goebel, supra note 38, p. 427 et seq. Legal Status of Eastern Greenland, Judgment, PCIJ, Series A/B, No. 53, p. 31. Ibid., p. 28. Supra, note 45.

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the merits of the original claim, more than 100 years of occupation of the Islands had created a new sovereignty title.52 2.2.1 The Position of the UK The position of the UK regarding the acquisition of the Falklands by prescription was probably made public for the first time before the C-24 on 16 December 1964, when its representative expressed that, if any defect in the original sovereignty title had existed, it would have been remedied by their possession of the Islands since 1833.53 On another occasion, reliance on acquisitive prescription as an additional title to sovereignty was made by the legal adviser to the Foreign and Commonwealth Office in 1982: If there is a doubt to the title, or if a title may have originally been invested in someone else – which I don’t concede – then the fact that you have been in continuous, peaceful occupation, and possession, and been administering the territory for a lengthy period of years, will cure any so-called or alleged defect in the title.54 2.2.2 The Position of Argentina Argentina maintains that the expulsion of the authorities of the United Provinces from the Falklands in 1833 was protested at once. On 16 January 1833, the Argentine government demanded explanations from the British diplomatic mission in Buenos Aires, which in turn claimed to be unaware of the relevant facts. A week later, the Argentine foreign ministry made a formal protest, which was repeated on several occasions by the Argentine ambassador to the UK. The British government rejected the protests and the dispute remained unsettled, as the UK acknowledged in 1849. In 1884, Argentina proposed to settle the dispute by arbitration, but the proposal was rejected by the UK. Argentina has regularly submitted protests to the UK; it has also appended declarations and reservations before international organisations, such as the United Nations, the Organization of American States, and the European 52 53

54

L. Freedman, The Official History of the Falklands Campaign (Routledge, London, 2007) Vol. I, p. 11. See the statement by the UK representative to the C- 24 on 16 December 1964 in A. Bologna, ‘Los Derechos de Inglaterra sobre las Islas Malvinas: Prescripción’, 4 Revista de Estudios Internacionales (1983) p. 775. Quoted by Freedman, supra note 52, p. 11.

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Union, whenever its government learned of unilateral acts by the UK in breach of Argentina’s sovereignty over the Islands.55 2.2.3 Discussion The status of acquisitive prescription in international law is unclear and controversial.56 According to Botswana and Namibia (two States that admitted the existence of acquisitive prescription in international law in a case that they submitted to the ICJ), four requirements must be met in order for possession by a State to transform into a prescriptive title, namely: the possession must be exercised à titre de souverain; the possession must be peaceful and uninterrupted; the possession must be public; and the possession must last for a certain period of years.57 Possession à titre de souverain requires a display of State authority without recognition of another State’s sovereignty. In principle, anything indicating a lack of acquiescence, such as diplomatic protests, can preclude possession from being peaceful and uninterrupted. The possession must be public because a State cannot acquiesce to a situation that is not public. Finally, customary international law does not prescribe a specific number of years; the period must be long enough so as to evidence tacit acquiescence.58 If acquisitive prescription does exist in international law, the British title to territory based on prescription would be weak, as some of the above-mentioned requirements are not met. Although the UK’s occupation of the Islands has been à titre de souverain, public, and has lasted for 184 years (at the time of writing), Argentina has interrupted the period of prescription by formulating frequent diplomatic protests to the UK from the beginning of its occupation in 1833, coupled with their making of a plethora of declarations and reservations before international organisations. In short, Argentina has not acquiesced to the UK’s occupation of the Islands. Hence, the UK’s invo-

55

56

57 58

Ministry of Foreign Affairs and Worship, Argentine Republic, , visited on 17 February 2017. Cf. Kasikili / Sedudu Island (Botswana / Namibia), Judgment, ICJ Report 1999, paras. 90-97. J. Crawford, Brownlie’s Principles of Public International Law (Oxford, Oxford University Press, 8th edition, 2012), pp. 229-235. Kasikili / Sedudu Island (Botswana / Namibia), Judgment, ICJ Report 1999, paras. 94-5. Brownlie, supra note 34, pp. 148-149.

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cation of acquisitive prescription as a legal title to the sovereignty over the Falklands appears as unwarranted. Moreover, since the invocation of acquisitive prescription over a territory implies the recognition that the territory in question belonged to another State until the beginning of the period of prescription, the UK’s invocation of acquisitive prescription vis-à-vis the Falklands can only confirm that, in the UK’s view, the Falklands belonged to Argentina (as Spain’s successor) until 3 January 1833. 2.3 The Principle of Self-determination The UK and Argentina disagree as to the applicability of the right of peoples to self-determination to the Question of the Falklands. The UK maintains that it does apply, whereas Argentina contends that it does not. 2.3.1 The Position of the UK The UK has invoked the applicability of this right since the mid-1960s. At the discussions held at the Fourth Committee during the session of the General Assembly that led to the adoption of Resolution 2065 (XX), the UK manifested as having no doubts as to its sovereignty over the Falklands and that the alleged disruption of the territorial integrity of Argentina was a non-issue. The real issue was “the interests and wishes of the inhabitants” of the Falklands, who were permanently living on the Islands, had no other home, and did not wish to cut their connections with the UK. In addition, Resolution 1514 (XV) did not deny that inhabitants of territories that are the subject of a territorial claim by another State, such as the Falklands, have a right to self-determination.59 The UK has maintained this position since then.60 2.3.2 The Position of Argentina On the other hand, Argentina maintains that Resolution 1514 (XV) established two fundamental principles to guide the decolonisation process: self-determination and territorial integrity. The inclusion of the

59 60

Yearbook of the United Nations (1965), p. 577. See A/AC.109/2016/6, 21 March 2016, para. 39 et seq. , visited on 17 February 2017.

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principle of territorial integrity was intended to operate as a limit on the right of peoples to self-determination.61 In March 1964, the UN Secretariat submitted a working document to the C-24 that provided information about the territories to which Resolution 1514 (XV) was applicable; the document included the Falklands. Argentina objected to the inclusion of the Islands in that document, as it omitted historical data and legal arguments that were essential to its rights. Following the successive discussions and recommendations of Subcommittee III and the C-24, the General Assembly adopted Resolution 2065 (XX), which invited both States to launch sovereignty negotiations while also considering the interests of the population of the Islands. Hence, by acknowledging the existence of a sovereignty dispute, by recommending that the dispute be settled by negotiation, and by expressly referring to the interests (not the wishes) of the inhabitants of the Islands, the UN considered that the principle of self-determination was not applicable to the Question of the Falklands. Their reasons were the UK’s forceful occupation of the Islands in 1833 and the UK’s subsequent failure to permit Argentines to return to the Islands.62 2.3.3 Discussion63 The rise of the right of peoples to self-determination is one of the most important developments in international law.64 The right has attained jus cogens status.65 Although the concept of self-determination acquired normative status in modern international law with its inclusion as a policy principle in the UN Charter,66 it gained momentum with the adoption of Resolution 1514 (XV) by the General Assembly.67 As is well known, this resolution declares that, “all peoples have the right to self-determination; by virtue of that right they freely determine their 61 62 63

64 65 66 67

Ministry of Foreign Affairs and Worship, Argentine Republic, , visited on 17 February 2017. Ibid. This discussion is based on the more extensive analysis made in F. Raimondo, ‘Do the Inhabitants of the Falkland Islands (Malvinas) Have the Right to SelfDetermination?’, 27 Hague Yearbook of International Law 2014, pp. 113-131. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, para. 82. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001, p. 85. See Articles 1.2, 55 and 56, UN Charter. Western Sahara, Advisory Opinion, I.C.J. Reports 1975, para. 57.

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political status and freely pursue their economic, social and cultural development.”68 The resolution refers to the right to ‘external’ self-determination, which, “implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal right and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation.”69 The General Assembly reaffirmed the right to external self-determination in the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.70 In the context of decolonisation, only the peoples of mandated territories, trusteeship territories, and non-self-governingterritories have been granted the right.71 Beyond that context, the right has been granted to peoples under alien domination, subjugation and exploitation.72 It should be noted that not all peoples have the right to external selfdetermination, however: The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consid-

68 69 70 71

72

GA Resolution 1514 (XV), para. 2. CERD, General Recommendation No 21: Right to Self-Determination, para. 4, UN Doc. A/51/18, 23 August 1996. GA Resolution 2625 (XXV), UN Doc. A/RES/2625(XXV), 24 October 1970. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, ICJ Reports 1971, paras. 52-53. East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, para. 29. Western Sahara, Advisory Opinion, ICJ Reports 1975, paras. 54-59. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 88. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, para. 79. See for example GA Resolution 3236 (XXIX), UN Doc. A/RES/3236(XXIX), 22 November 1974; GA Resolution 38/16, UN Doc. A/RES/38/16, 22 November 1983. See also Reference re Secession of Quebec case [1998] 2 S.C.R. 217, para. 138, and Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, para. 79.

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eration that a certain population did not constitute a ‘people’ entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.73 This quote reveals that only the groups of peoples identified by the General Assembly are entitled to the right of self-determination.74 Notwithstanding that the Falklands is one of the 17 non-self-governing territories on the list of the C-24,75 the General Assembly and the C-24 have neither declared nor recognised in any of their resolutions that the population of the Islands have the right to self-determination, which they always do when they consider that that is the case.76 The reason may be that the population of the Islands is not distinct ethnically or culturally from the administering power, as the heart of the community is predominantly of British descent.77 According to the last census, the total resident population of the Falklands amounts to 2,931 inhabitants; only 47% of that population was born there, while 28% was born in the UK, 10% in St. Helena, 6% in Chile, and 8% elsewhere; and 37% of that population has lived in the Islands for less than ten years.78 Thus, the claim that the population of the Falklands has the right to external self-determination seems unconvincing; moreover, even if the population of the Falklands had the right to external self-determination, the exercise of the right would be subject to legal limitations.

73 74

75

76

77 78

Western Sahara, Advisory Opinion, I.C.J. 1975, para. 59. Cf. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, Written Statement of Serbia, p. 193. The list of non-self-governing-territories is available at the webpage of the C-24, , visited on 21 February 2017. See for instance GA Resolution 68/91 on the Question of Western Sahara; GA Resolution 68/95 on the Questions of American Samoa, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Guam, Montserrat, Pitcairn, Saint Helena, the Turks and Caicos Islands, and the United States Virgin Islands; GA Resolution 68/93, on the Question of French Polynesia; GA Resolution 68/92, on the Question of New Caledonia; GA Resolution 68/94, on the Question of Tokelau. Our People, , visited on 17 February 2017. Falkland Islands Government, Census 2012, Paper No 79/13, 24th April 2013, p. 5, , visited on 17 February 2017.

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State practice demonstrates that the exercise of the right to self-determination must respect, and not limit, territorial integrity. Paragraph 6 of Resolution 1514 declares, “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” During the discussions at the General Assembly preceding the adoption of the resolution, some States pointed out that paragraph 6 was intended to set a limit on the exercise of the right of self-determination, to preserve the right of a State to recover territory disposed unlawfully.79 Further, Resolution 2625 (XXV) sets a similar limit in paragraph 7 (the ‘safeguard clause’), which was included to make express reference to the protection of the principle of territorial integrity vis-à-vis the principle of self-determination.80 The practice of the General Assembly confirms that the principle of territorial integrity restricts the exercise of the right of colonial peoples to self-determination. An example is their treatment of the Question of Gibraltar. Gibraltar is a British Overseas Territory and has been on the list of non-self-governing-territories since 1946.81 The UK maintains that Spain handed their sovereignty over Gibraltar’s land and maritime territory to the UK under the Treaty of Utrecht in 1713;82 that it will not hand the territory to Spain against the wishes of the population of Gibraltar; and that it will not engage in sovereignty negotiations with Spain without the prior approval of the population of Gibraltar.83 On the other side, Spain alleges that it handed only the city and castle of Gibraltar, its port, its defences and its fortresses, but not the adjacent waters.84 It also contends that the principle of territorial integrity is the only principle relevant to the dispute and that any negotiation on the

79 80

81 82

83 84

UN GAOR (936th-, 945th-947th meetings), at 1271. Report of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States, Official Records of the General Assembly, 24th Session, Supplement No. 19, UN Doc. A/7619, p. 67, para. 187. United Nations, , visited on 17 February 2017. Gibraltar: Working Paper Prepared by the Secretariat, Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/AC.109/2014/12, 4 March 2014, para. 1. Ibid., para. 36. Ibid., para. 1.

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status of Gibraltar must be based on that principle.85 The General Assembly has been inviting both States to launch sovereignty talks since 1965,86 while recommending that the negotiations should be made on the basis of the UN Charter, the relevant General Assembly resolutions, principles of international law, and, “while listening to the interests and aspirations of Gibraltar that are legitimate under international law.”87 Notwithstanding that Gibraltar is a non-self-governing-territory, the General Assembly has neither declared nor recognised the right of the population of Gibraltar to self-determination; however, it has invited both States to settle the dispute by negotiation, while bearing in mind the interests and aspirations (not the wishes) of the population of this territory. Although Gibraltar is a non-self-governing-territory and the peoples of such territories hold the right to self-determination in principle, this right does not necessarily take precedence over claims based on the principle of territorial integrity. That is why the General Assembly has urged the UK and Spain to settle the dispute by negotiation and has not referred to the right of peoples to self-determination. Resolution 2065 (XX) observes the existence of a sovereignty dispute between the UK and Argentina over the Falklands and invites both States to settle it by negotiation while considering the UN Charter, Resolution 1514 (XV) and “the interests of the population” of the Falklands.88 The resolution neither declares that the population of the Islands have a right to self-determination, nor that there is a need to organise a referendum on self-determination. The General Assembly drafted the resolution cautiously, to avoid confusion; this explains why it chose the word ‘interests’ and not ‘wishes.’ Whenever the General Assembly considers the right of a certain group of peoples to self-determination, it employs the terms ‘wishes’ or ‘desires’ (but not ‘interests’) in the relevant resolutions.89 The resolution recommends that both States launch sovereignty negotiations. The correctness of this interpretation

85 86 87

88 89

Ibid., para. 45. See UNGA Resolution 2070 (XX), 16 December 1965. Gibraltar: Working Paper Prepared by the Secretariat, Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, UN Doc. A/AC.109/2014/12, 4 March 2014, para. 59. Resolution 2065 (XX), 16 December 1965, para. 1. See for example GA Resolution 2230 (XXI), Question of Equatorial Guinea, 20 December 1966, para. 6.

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of Resolution 2065 is confirmed by the text of Resolution 3160, where the General Assembly affirms that, “the way to put an end to this colonial situation is the peaceful solution to the conflict of sovereignty between the Governments of Argentina and the United Kingdom.”90 Thus, there is no doubt that the General Assembly does not consider the principle of self-determination to be applicable to the Question of the Falklands. This understanding is consistent with international law.

3

Conclusion

As demonstrated above, Argentina and the UK have competing sovereignty claims over the Falklands. The UK has based its claim on effective occupation, acquisitive prescription and (particularly since the 1960s) the right of peoples to self-determination. Argentina bases in turn its claim on succession of States, the principle of uti possidetis juris and effective occupation. To the present author, the latter appears to be stronger for the reasons given throughout this article. Be that as it may, the radical discrepancy between both States’ legal views as to who is the sovereign of the Falklands falls within the International Court of Justice’s definition of ‘a dispute’.91 The existence of the dispute was acknowledged by the General Assembly and the C-24 90

91

Resolution 3160 (XXVIII), Question of the Falkland Islands (Malvinas), 14 December 1973. In similar terms, see Resolution 31/69, Question of the Falkland Islands (Malvinas), 1 December 1976, para. 3. Resolution 37/9, Question of the Falkland Islands (Malvinas), 4 November 1982, para. 1. According to the ICJ, “a dispute is ‘a disagreement on a point of law or fact, a conflict of legal views or of interests’ between parties (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be shown that the claim of one party is positively opposed by the other” (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). The two sides must “hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations” (Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016, para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).” Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction of the Court and Admissibility of the Application, 5 October 2016, para. 34.

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27

in several resolutions, as well as by Argentina and the UK themselves in joint statements. The sovereignty dispute has become an irritating factor in the relations between the UK and Argentina, to the point of causing an armed conflict in 1982. The British military victory restored the status quo ante (i.e., the effective occupation of the Islands by the UK) and the political repercussions of the armed conflict have certainly so far prevented the launching of sovereignty talks. However, it should be noted that the armed conflict did not settle the underlying sovereignty dispute and that both States are thus still subject to the international obligation to settle the dispute by peaceful means,92 in accordance with the Charter of the United Nations and relevant General Assembly resolutions.93 Accordingly, the UK and Argentina should find a way to reconcile their national interests on this matter (while taking the interests of the population of the Islands into account), to settle a dispute that is 184 years old to date.

92 93

Article 2.3, UN Charter. It is worth noting that GA Resolutions 39/6, 40/21, 41/40, 42/19 and 43/25 on the Question of the Falklands (Malvinas) were all passed by the UN General Assembly in the years after the Falklands War and that they all referred to GA Resolution 2065. This indicates that, in the view of the General Assembly, the armed conflict did not undermine the strength of GA Resolution 2065.

2 Exploration and Exploitation of Oil and Gas Resources in Maritime Areas of Overlap under International Law: The Falklands (Malvinas) Youri van Logchem*

Abstract Both Argentina and the United Kingdom (UK) have claimed sovereignty over the Falklands (Malvinas) and the adjacent waters. Given that the UK has de facto control over the Falklands (Malvinas), it is in a more advantaged position to exercise authority over its adjacent waters, including over any oil and gas resources that are contained therein. Throughout much of the history of the dispute, both Argentina and the UK have performed unilateral acts concerning the exploration and exploitation of oil and gas resources in these disputed waters, including licensing, seismic testing and drilling. The article will discuss, from the perspective of international law, the (un)lawfulness of engaging in unilateral conduct in connection with oil and gas resources that are located in the area of overlap off the disputed islands, both generally, and with a special emphasis on the Falklands (Malvinas).

*

Lecturer and Member of the Institute of International Shipping and Trade Law, Swansea University, United Kingdom; PhD Fellow at the Netherlands Institute for the Law of the Sea, Utrecht University, the Netherlands. The author would like to thank Jessica Schechinger LLM and Professor Andrew Tettenborn for invaluable comments. Any faults or omissions are, of course, the sole responsibility of the author. All websites were last accessed on 25 September 2016. This article uses ‘Falklands (Malvinas)’ in order to refer to the Falkland Islands (Islas Malvinas). A draft version of this article was presented at the Maastricht Symposium on the Sovereignty Dispute over the Falklands (Malvinas), which took place at Maastricht University on 7 October 2016.

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 29-64.

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Introduction

Going back to the first half of the 19th Century, the dispute over the Falklands (Malvinas) between the United Kingdom (UK) and Argentina can be observed to have an extensive history.1 Since 1833, the UK has exercised de facto control over the islands. Having this control seems to have put the UK in a more advantaged position to exercise authority over the waters adjacent to the Falklands (Malvinas), including any natural resources (both living and non-living, i.e. fisheries, oil and gas) contained therein. Complicating the possibility for Argentina to exercise authority in a similar way is that its mainland coast is removed approximately 300 nautical miles (nm) from the Falklands (Malvinas). Given the distance separating the mainland coast of Argentina and the coast of the Falklands (Malvinas), there may be a need for delimiting the overlapping exclusive economic zone (EEZ) and continental shelf entitlements2 of Argentina and the UK – however, this is fully dependent on the existence of a clear title of the UK over the Falklands (Malvinas). Otherwise, no overlapping entitlements to maritime space will exist between these States. In the period leading up to the Falklands War in 1982, the surrounding waters were frequently the object of unilateral acts concerning oil and gas related activities, performed by Argentina. The position of the UK at that time was largely built around observing restraint in this regard, particularly in terms of allowing (private) oil and gas companies to conduct work in the waters off the islands. Along these lines, it has been argued that prior to the Falklands War, Argentina was “on its way to exercising de facto sovereignty over the seas around the Malvinas”.3 The background for making this remark was that the issuing of licenses and concessions by Argentina for oil and gas or other mineral related activity gradually expanded, coming incrementally closer to the coast

1

2

3

R.W. Smith and B. Thomas, ‘Island Disputes and the Law of the Sea: An Examination of Sovereignty and Delimitation Disputes’ 2(4) Maritime Briefings (1998) p. 6; A. Ruzza, ‘The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?’ 3:1 Goettingen Journal of International Law (2011) p. 72. Maritime areas of overlap refer to situations where neighbouring States have advanced overlapping entitlements over the same maritime space, be it the territorial sea, exclusive economic zone or continental shelf, or a combination thereof. L.S. Gustafson, Sovereignty Dispute Over the Falkland (Malvinas) Islands (Oxford University Press, Oxford, 1988) p. 116.

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31

of the Falklands (Malvinas). Effective occupation over parts of the sea does, however, not create any sort of entitlement under international law for the occupying State to the waters concerned.4 Rather, with the commencement of the era of the modern law of the sea, which greatly increased the extent of the authority of coastal States over maritime space adjacent to their coasts, entitlements over these areas have come to lie with the coastal States – bringing with it the possibility to exercise varying measures of sovereignty or sovereign rights at sea.5 Up to the second half of the 20th Century, the reach of the authority of the coastal State at sea was limited to 3 nm from its territory. Changing this fundamentally was the subsequent expansion of the maximum limits of coastal State sovereignty and jurisdiction over waters adjacent to their territories (be they land or island), and hence over the natural resources contained therein (i.e. with the acceptance of the continental shelf and EEZ concepts, as well as the expansion of the territorial sea to the 12 nm mark). This also raised the profile of the waters that are adjacent to the Falklands (Malvinas)6 – particularly because these waters are rich in fisheries7 and (are rumoured to) contain significant amounts of oil and gas.8 Leaving fisheries further aside here, the emphasis in this contribution will be on oil and gas resources. Over the last half decade or so, the UK has licensed a range of British companies to explore for these resources off the coasts of the Falklands (Malvinas).9 Overall, these ex-

4

5

6 7 8

9

In fact, the thought that title to a continental shelf automatically attributes to the coastal State, largely developed as a counterpart to the idea that physical occupation of maritime space would play a role in the attribution of rights to coastal States. L. Brilmayer and N. Klein, ‘Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator’ 33 N.Y.U. Journal of International Law and Policy (2000-2001) pp. 709-710. B.H. Oxman, ‘Offshore Features Subject to Claims of Sovereignty’, in S. Jayakumar, T. Koh, and R. Beckman (eds.), The South China Sea Disputes and Law of the Sea (Edward Elgar, Cheltenham, 2014) pp. 10-11. R.P. Barston and P.W. Birnie, ‘The Falkland Islands/Islas Malvinas Conflict: A Question of Zones’ 7 Marine Policy (1983) pp. 16-17. C.R. Symmons, ‘The Maritime Zones around the Falkland Islands’ 37 International and Comparative Law Quarterly (1988) p. 283. Anonymous, ‘Opportunities in a barely explored frontier: New entrants will find multiple basins and play types, and a government keen to attract investment’ 111:2 Oil & Gas Journal (2013) p. 114. This included: Desire Petroleum, Rockhopper and BHP Billinton.

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ploratory efforts, which eventually came to include exploratory drilling in 2010, have led to mixed results.10 One particularly promising and commercially viable oil and gas deposit (the ‘Sea Lion’) has, however, been located in the waters north of the Falklands (Malvinas) by Rockhopper in 2010.11 In the wake of its discovery, controversy re-emerged between Argentina and the UK – amongst others, Argentina accused the UK to have violated the applicable rules of international law, by engaging in unilateral drilling in the waters off the coast of the disputed islands.12 According to Argentina, the UK wrongfully allowed Rockhopper to test the commerciality of the deposit through drilling without its permission. In reaction, Argentina restricted the abilities of vessels to navigate freely between its mainland coast and the coast of the Falklands (Malvinas),13 by requiring previous consent for such voyages. The aims of this article are twofold: first, to assess from the perspective of international law the (un)lawfulness of engaging in unilateral conduct in connection with oil and gas resources that are located off the disputed islands; second, to examine what, if any, implications follow from that there is a combination of the constitutive element of sovereignty and the measuring of maritime zones from the disputed territory, for identifying the legal regime that is applicable in relation to the Falklands (Malvinas). 1.1 Roadmap to this Article The article is organised along three different lines: (1) it will begin by introducing, in a more general way, the situation where two States have made competing sovereignty claims over the same piece of (insular) territory, and used this territory to measure their claims to entitlements to the adjacent waters; (2) the middle part will lay out the international legal regime provided under the United Nations (UN) Convention on the 10

11 12 13

For instance, the so-called ‘Humpback well’ located in the ‘North Falklands Basin’ was abandoned by Noble Energy for lack of commerciality. See ‘Noble Energy abandons Falkland Islands offshore well’, Offshore Energy Today.com, available at . P. Rait, ‘Falklands: Oil and Gas in the Falkland Islands – Looking towards Production’, International Energy Law Review (2012) pp. 231-232. E. Watkins, ‘Falkland Islands Tensions Rise’ 108:18 Oil & Gas Journal (2010) pp. 31-32. ‘Q&A: The Falklands oil row’, BBC, 17 February 2010, available at .

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Law of the Sea (LOSC),14 to the extent that it applies to maritime areas of overlap; (3) the last part of this article focuses on the Falklands (Malvinas) – the applicable legal rules and the main tenets that touch on the possibility for Argentina and the UK to perform unilateral activities in the disputed waters will be analysed. More specifically, in section 2, the type of dispute where there is a combination of the issue of sovereignty over an island and the measuring of maritime zones from its baselines – which are not unique, given that a number of States in the world are faced with similar issues – is elaborated on further. Next, the issue of the entitlements island territories enjoy to maritime zones will be discussed in section 3. Thereafter, attention will be directed at situations of overlapping territorial seas, EEZs and continental shelves, particularly by analysing Article 15 and paragraph 3 of Articles 74 and 83 LOSC, which provide guidance for States that are faced with an overlap of their claims to maritime zones – including what possibility there is for performing unilateral acts concerning oil and gas resources contained in these areas of overlap (sections 4 and 5). In the ensuing section, the findings of section 5 will be applied to different types of unilateral oil and gas related activities that can commence in areas of overlap: e.g. seismic work (section 6.2), drilling (section 6.3), and exploitation (section 6.4). Section 7 will seek to gauge to what extent the earlier identified rules can be applied to the Falklands (Malvinas). It also will be examined what rules other than those contained in the LOSC might apply, in view of the specific situation surrounding the Falklands (Malvinas): that is, that the overlap as regards to the maritime spaces off the Falklands (Malvinas) results from that there are two States (i.e. Argentina and the UK) claiming sovereignty over the same island territory and that have, in addition, both made maritime claims measured from its baselines. A further dynamic involved in the dispute between Argentina and the UK is that, in order for this overlap to persist, and thus to cause a need for delimitation of their entitlements to maritime space (as is, for instance, envisaged under Articles 74 and 83 LOSC), one of the States concerned (i.e. the UK) must have a clear title over the Falklands (Malvinas). The article will round off by drawing some (tentative) conclusions as to which acts may and may not lawfully

14

United Nations Convention on the Law of the Sea, Montego Bay, opened for signature 10 December 1982, entered in force 16 November 1994, 1833 UNTS 3 (LOSC).

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be conducted in the disputed waters by the respective claimants in relation to offshore oil and gas resources (section 8).

2

Sovereignty Disputes over Islands

Whenever there are multiple States that claim to have sovereignty over the same island, there can be said to be a dispute between them according to international law.15 Typically, when at least two States claim sovereignty over the same piece of island territory, and both make maritime claims measured from its baselines, overlaps concerning the surrounding maritime areas are automatically created. Around the world, various disputes exist where sovereignty is unclear over (island) territory between various States.16 According to estimations of Donaldson and Williams of 2005, there are 34 situations where competing claims over sovereignty remain prevalent – 22 of which centre on sovereignty issues over islands.17 Examples of disputed islands that have been at the same time used by States for the projecting of claims to waters laying beyond it are: Abu Musa Island (disputed by Iran and United Arab Emirates);18 Dokdo (disputed by South Korea and Japan); and Mayotte Island (disputed by Comoros and France).19 15

16 17

18

19

E.g. D.H. Anderson and Y. van Logchem, ‘Rights and Obligations in Areas of Overlapping Maritime Claims’, in S. Jayakumar, T. Koh, and R. Beckman (eds.), The South China Sea Disputes and Law of the Sea (Edward Elgar, Cheltenham, 2014) p. 222. V. Prescott and C.H. Schofield, The Maritime Political Boundaries of the World (Martinus Nijhoff, Leiden, 2005) pp. 265-284. J. Donaldson and A. Williams, ‘Understanding Maritime Jurisdictional Disputes: The East China Sea and Beyond’ 59 Journal of International Affairs (2005) p. 141. See also Van Dyke, who has argued that: “About half of the unresolved maritime boundaries are linked in some ways to islands and 30 or 40 or these involve sovereignty disputes over territory”, J.M. Van Dyke, ‘Disputes Over Islands and Maritime Boundaries in East Asia’, in S.-Y. Hong and J.M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (Brill, Leiden, 2009) p. 39. D. Montaz, ‘La Délimitation Du Plateau Continental Du Golfe Persique: Une Entreprise Inachevée’, in L. del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Brill, Leiden, 2015) pp. 686-688. D. Ortolland and J.-P. Pirat, Atlas Géopolitique des espaces maritimes: Frontieres, energie, transports, piraterie, peche et environment, 2nd edition (Editions Technip, 2010) p. 117.

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Islands that are subject to competing sovereignty claims are sometimes elevated to symbols of national identity by States laying claim to them.20 Sovereignty disputes can evoke strong national sympathies and rhetoric from the States concerned. Actions of rival claimant States that are undertaken in the maritime areas adjacent to the coasts of a disputed island can inflame public opinion.21 Local people taking to the streets to vent their anger of these perceived infractions on their State’s sovereignty may also occur.22 Along the range of sovereignty disputes over islands that continue to exist, natural resources consistently have had some role to play23 – yet, the prevalence of this factor cannot be defined uniformly, given that it varies with the particular locality. There incidentally have been instances where armed force was used by States competing for ownership over the same island and the adjacent waters.24 The Falklands War of 1982 between the UK and Argentina stands as a glaring example in this respect. Disputes involving two or more States that have staked competing claims over an island will be decided by which State possesses a stronger title.25 Rules of international (customary) law on this issue have been largely developed through the rulings of international courts and tribunals.26 These international adjudicatory bodies are likely to formulate their decision by looking at which State is able to demonstrate that it re20

21

22

23 24

25

26

G. Rozman, ‘The Sino-Japanese Clash: What is Behind It?’, Foreign Policy Research Institute, May 2013, available at . For instance, Colombia and Venezuela are two States that have employed nationalist narratives on various occasions as regards to their dispute in the Gulf of Venezuela. See J.D. Martz, ‘National Security and Politics: The Colombian-Venezuelan Border’ 30 Journal of Interamerican Studies and World Affairs (1988-1989) pp. 129-130. H. Roberts, ‘Current Legal Developments South China Sea: Responses to Sovereign Disputes in the South China Sea’ 30 International Journal of Marine and Coastal Law (2015) p. 206. Smith and Thomas, supra note 1, p. 8. Incidents between China and Vietnam in the South China Sea in the period between 1973 and 1988 have also resulted in the loss of life. See C.L. Daniels, South China Sea: Energy and Security Conflicts (Scarecrow Press, Lanham, 2013) pp. 7-9. R. Beckman and C.H. Schofield, ‘Defining EEZ Claims from Islands: A Potential South China Sea Change’ 29 International Journal of Marine and Coastal Law (2014) p. 195. J. Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, Oxford, 2012) pp. 215-244; K. Kittichaisaree, The Law of the Sea and Mari-

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lies on a stronger title to sovereignty over a territory, be it land or island. More specifically, the modus operandi that is employed by international courts and tribunals to settle the matter of acquirement, is by weighing and comparing the amount of human activity that is conducted in relation with a territory. Consideration is given to those acts of peaceful administration that have been performed by the States claiming the same piece of territory, with the intention of administrating the territory as a sovereign.27 Illustrative of this is the holding of the Permanent Court of International Justice in the Legal Status of Eastern Greenland case, that there has to be a continuous display of authority with the “intention and will to act as sovereign”.28

3

Entitlements of Islands to Maritime Zones

Disputed islands have different characteristics: they may range from those that are fully uninhabited, to islands of significant size – the latter may support and provide sustenance for substantial populations (e.g. the Falkland/Malvinas islands and Abu Musa island). Next to uninhabited and inhabited islands, there are also those that have itinerant populations, in that they are, for example, frequented every now and then by fishermen. There are also disputes that involve maritime features which are largely devoid of any intrinsic value, often being islets, rocks, banks, shoals or reefs, that are mainly of interest for their perceived ability to generate claims to maritime space.29

27

28

29

time Boundary Delimitation in South-East Asia (Oxford University Press, Oxford, 1987) pp. 140-141. Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, ICJ Reports 2012, para. 80; Islands of Palmas case (Netherlands/United States) (1928) 2 Reports of International Arbitral Awards, p. 840. Legal Status of Eastern Greenland case (Denmark v. Norway), Judgment of 5 April 1933, PCIJ Reports Series A/B No. 53, 45-46. Corroborating this further was the Eritrea-Ethiopia Boundary Commission, which defined displays of authority along the same lines. See Eritrea-Ethiopia Boundary Commission, Decision of 13 April 2002, 130 International Law Reports, p. 25, para. 3.16. Donaldson and Williams, supra note 17, p. 146; L. Bautista, ‘The Implications of Recent Decisions on the Territorial and Maritime Boundary Disputes in East and Southeast Asia’, in The National Bureau of Asian Research, NBR Special Report No. 3, 2012 p. 126.

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Pursuant to the LOSC, the ability to generate maritime zones is attributed both to land and island territory. Case law of international courts and tribunals has confirmed that islands have similar entitlements to adjacent maritime zones as mainland territories.30 As regards the territorial sea, every coastal State is under the current law of the sea entitled to claim one to a maximum of 12 nm measured from the baselines of its mainland coast, islands and rocks, where coastal States are deemed to be sovereign.31 Beyond the 12 nm mark, a coastal State can proclaim a contiguous zone.32 The LOSC further recognises that all coastal States are entitled to establish an EEZ, by proclamation, stretching out to the maximum limit of 200 nm. Entitlements of coastal States to a continental shelf extend to a minimum of 200 nm33 from their territories, or even beyond that if certain conditions are met.34 Different types of maritime features have different entitlements to generate maritime zones, ranging from those that can claim zones up to at least the 200 nm mark, to those that, due to their characteristics, have no entitlements to maritime zones at all (e.g. low-tide elevations).35 Islands under the LOSC are divided into two groups, which are attributed varying entitlements to maritime zones. Starting with islands meeting the Article 121(2) LOSC definition, these are principally treated similarly to land: they have entitlements to a territorial sea, EEZ and (extended) continental shelf. Rocks are accorded only part of the treatment that islands receive: that is, whenever they fall within the paragraph 3 exception of Article 121 LOSC. If a rock is unable to sustain human habitation or have an economic life of its own, the most it can generate in terms of maritime zones is a territorial sea.36 There is, however, 30 31 32 33 34 35

36

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, ICJ Reports 2001, p. 97, para. 185. Article 3 LOSC. Article 33 LOSC. Article 57 LOSC. Paragraph 4 and 5 of Article 76 LOSC. Low-tide elevations are an example of a type of maritime feature which have no entitlements to maritime zones of their own – they may only be relevant in the measuring of the baseline. See Article 13 of the LOSC. Recently, the Arbitral Tribunal, established pursuant to Annex VII of the LOSC, in the South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China) held that none of the disputed maritime features that are part of the Spratly Islands meet, without human assistance, the conditions set out under Article 121(3) of the LOSC, that is that they can sustain human habitation or

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no doubt that the Falklands (Malvinas) can be regarded to be ‘islands’ within the meaning of Article 121(2) LOSC. Therefore, they would, in principle, be entitled to the full spectrum of maritime zones that are permitted under the LOSC – this is irrespective of the State that has or gains sovereignty over them.

4

Maritime Areas of Overlap: An Introduction

Overlapping claims to jurisdiction, sovereign rights or sovereignty, that are advanced by at least two coastal States, means that they operate from a similar assumption: activities that are undertaken in the areas of overlap are, to varying degrees, under their (exclusive) authority or control.37 When confronted with the unilateral action of a State (being either a claimant State or third State), the willingness to formulate some sort of a response is regularly present on the part of the other claimant State. State practice evidences this: protesting and taking some measure of enforcement action occur regularly;38 although, comparatively, conveying one’s dissatisfaction through diplomatic channels seems to be the preferred course of action. The reasons for a State to formulate any sort of response are that refraining from actively asserting its rights might lead to the strength of its claims being mitigated, or that prolonged silence may amount to a recognition of another claimant’s claim over the area concerned.39 The existence of maritime areas of overlap affects two different categories of States: claimant States and third States. Claimant States will be faced with uncertainty over the extent to which they can exercise rights and obligations in areas of overlap, possibly to the detriment of another

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economic life of their own. The threshold concerning when isolated maritime features would be entitled to an EEZ and continental shelf seems to have been set high by the Tribunal. See Award, 12 July 2016, available at , pp. 237-254. Anderson and Van Logchem, supra note 15, p. 198. Y. van Logchem, ‘The Scope for Unilateralism in Disputed Maritime Areas’, in C.H. Schofield et al. (eds.), The Limits of Maritime Jurisdiction (Martinus Nijhoff, Leiden, 2014) p. 175. J.I. Charney, ‘Progress in International Maritime Delimitation Law’ (1994) 88 American Journal of International p. 236.

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claimant State.40 Third States, however, will be faced with the issue of recognition of the entitlements of claimant States – which comes down to whether or not consent must be obtained prior to commencing a unilateral activity. Overlapping claims over the same maritime area can be engendered from territories having two different statuses: first, claims can be measured from territory where sovereignty has been established; and, second, where sovereignty claims of at least two States continue to be in competition. Currently, there are more than 200 maritime areas where there is an overlap of claims of States to maritime space.41 The most common and frequently occurring type is the result of more than two (island) territories over which States have undisputed title, may generate maritime areas over which coastal States can exercise various degrees of authority, on the basis of the distance measured from the baselines. Situations of this type will arise when undisputed (island) territory of at least two different opposite States is separated by a sea area which is less than 24 (territorial sea) or 400 nm (EEZ/continental shelf) in breadth, or where they are adjacent. The second type of situation is where an unresolved sovereignty issue lies at the basis of overlapping claims over maritime space. It has been estimated that in approximately 22 per cent of the situations where there are overlapping claims of States, disputes over insular territory are in play – this increases difficulties in resolving the overlapping claims over the same area.42 Those situations that are underlain by sovereignty issues have been argued to be more difficult to resolve, compared to when there are isolated overlapping maritime boundary entitlements between two or more coastal States that are made from undisputed territories.43 Perhaps surprisingly, the combination of the sovereignty issue with that of the attendant maritime zones has not functioned as a serious deterrent for States that are involved in such situations to ob-

40 41 42 43

V. Prescott, The Gulf of Thailand: Maritime Limits to Conflict and Cooperation (Maritime Institute of Malaysia, Kuala Lumpur, 1998) p. 17. D. Anderson, Modern Law of the Sea (Martinus Nijhoff, Leiden, 2008) p. 7. Cited in Prescott and Schofield, supra note 16, p. 246. I. Buga, ‘Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals’ 27:1 International Journal of Marine and Coastal Law (2012) p. 62.

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serve a greater measure of restraint.44 However, compared to the first type of situation, the State that is in control of the disputed (island) territory (for instance, the UK with regard to the Falklands (Malvinas)) is likely to be in an advantaged position when it comes to controlling and regulating the waters located adjacent to the disputed island, gaining access to natural resources, or granting consent for conducting marine scientific research. This aspect of being able to physically control the waters concerned is far less prevalent in maritime areas of overlap where sovereignty issues play no role. There may even be a separate third type of situation, that is, if the two or more States involved clearly have a need to delimit their already existing overlapping entitlements to maritime space, irrespective of the status of the presence of an island that is located somewhere in the area that is to be delimited, or which State ultimately gains sovereignty over it. For instance, delimitation of overlapping EEZ or continental shelf claims of opposite States that are generated by undisputed territories may be complicated by interweaving questions over sovereignty over islands that are located in the area.45 Under this scenario, there is a need for the delimitation of the overlapping entitlements of at least two coastal States, given that each will be able to claim entitlements that already overlap (regardless of the disputed island) from undisputed island or mainland territories – the disputed island is then to be seen as a part of a broader maritime boundary question.

5

Rules Provided by the LOSC Concerning Maritime Areas of Overlap

Maritime areas of overlap can give rise to a series of problems in interState relations, predominantly when a claimant State favours taking the unilateral action route. In recognition of this, the LOSC provides some rules that address situations where the maritime boundary claims of States overlap: these are, Articles 15 LOSC (with regard to overlapping territorial seas), 74 LOSC (with regard to overlapping EEZs) and 83 LOSC (with regard to overlapping continental shelves). Article 15 LOSC was 44 45

P.M. Blyschak, ‘Offshore Oil and Gas Projects amid Maritime Border Disputes: Applicable Law’ 6 Journal of World Energy Law and Business (2013) pp. 225-226. C.H. Park, ‘Maritime Claims in the China Seas: Current State Practices’ 18 San Diego Law Review (1980-1981) p. 454.

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not controversial at the Third UN Conference on the Law of the Sea (Third Conference or Third Law of the Sea Conference).46 However, the adoption of the provisions concerning delimitation of the EEZs and continental shelves of States, as well as issues aligned thereto, was preceded by complex and sometimes inimical negotiations at the Third Conference.47 These delimitation provisions concerning the EEZ/continental shelf contain a rule that seeks to help States, which have overlapping claims, to conclusively agree on the determination of a maritime boundary and arrive at an equitable solution. In addition to this, these provisions lay down a rule that applies in the period preceding final delimitation. Delimitation of the territorial sea is formulated along different lines: heightened consideration has to be given to the principle of equidistance – this preference is also reflected in the rule that applies prior to delimitation, as will be set out below. 5.1 Overlapping Territorial Seas: Article 15 LOSC Maritime areas that are subject to overlapping territorial sea claims of States with opposite or adjacent coasts are, in principle, governed by Article 15 LOSC. Because claims of sovereignty of different States overlap, it follows that almost complete authority over the territorial area is asserted by each of the States concerned. In order to effect a delimitation of the overlapping maritime claims to the same territorial sea area, primacy is placed on agreement. This amounts to the fact that States may use the principle of equidistance in determining the final course of a territorial sea boundary. The emphasis that is put on equidistance in the first part of the text is, however, watered down in the next sentence of Article 15 LOSC: a historic title or special circumstances can lead to another principle of delimitation having to be employed.48 The text of Article 15 LOSC points in a similar direction, as far as a rule is concerned that applies before final delimitation: the equidistance line will come to divide the area of overlapping territorial sea claims prior to when a final boundary is agreed on – that is, on the condition that there are 46

47

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D. Anderson, ‘Recent Judicial Decisions Concerning Maritime Delimitation’, in L. del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Brill, Leiden, 2015) p. 496. J.R. Stevenson and B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The 1974 Caracas Session’ 69:1 American Journal of International Law (1975) 17. Crawford, supra note 26, p. 283.

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no historic titles or special circumstances. Those areas of overlapping territorial sea claims that are bound by an equidistance line are provisionally divided in respective realms – meaning that this line forms the outer point up to which a claimant State can engage in conduct, including with regard to the natural resources that are contained in the area. In those overlapping territorial sea localities, where none of the claimant States has claimed the existence of a historic title or special circumstances, Article 15 LOSC produces a fairly simple, and arguably effective, solution: the entitlement of a coastal State is qualified to the equidistance line.49 The interim regime that Article 15 LOSC lays out, putting a premium on the equidistant line, makes it clear that a regime is produced that is not akin to paragraph 3 of Articles 74 and 83 LOSC;50 this identically formulated provision will be explored over the next three subsections. 5.2

Overlapping EEZs/Continental Shelves: Paragraph 3 of Articles 74 and 83 LOSC Overlapping EEZs and continental shelves occur regularly in the current legal landscape,51 easily outnumbering the previously discussed outstanding overlapping territorial sea areas. Having overlapping continental shelves means that there is a co-existence of various inherent rights and entitlements of States over the same area,52 including over oil and gas resources.53 As regards to EEZs, that is after States have proclaimed one, there will be overlapping entitlements if the distance between their coasts is less than 400 nm or if the States are located adjacent to one another. Paragraph 3 of Articles 74 and 83 of the LOSC is 49 50 51

52

53

Anderson and Van Logchem, supra note 15, p. 196. S.N. Nandan and S. Rosenne (eds.), United Nations Convention of the Law of the Sea 1982: A Commentary, Vol. II (Martinus Nijhoff, Leiden, 1993) p. 984. T. Martin, ‘Energy and International Boundaries’, in K. Talus (ed.), Research Handbook on International Energy Law (Edward Elgar, Cheltenham, 2014) p. 181; Anderson and Van Logchem, supra note 15, pp. 192, 198. North Sea Continental Shelf (Federal Republic of Germany/Netherlands; North Sea Continental Shelf (Federal Republic of Germany/Denmark), Judgment, ICJ Reports 1969, (North Sea Continental Shelf cases), para. 19: “the rights of the coastal State in respect of the area of the continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land”. Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment ICJ Reports 1985, para. 34.

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directly applicable to a maritime area of overlap to which two or more claimant States, that are located adjacent or opposite to each other, have EEZ/continental shelf entitlements. This paragraph reads as follows: Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. It imposes two distinct obligations on claimant coastal States in the period that final EEZ/continental shelf delimitation is awaited: first, they have to make some efforts “in a spirit of cooperation” to enter into provisional arrangements of a practical nature; and, second, actions and reactions that impede on the completion of a final delimitation of overlapping EEZs and continental shelves have to be foregone. Paragraph 3 was borne out of the recognition that the LOSC should seek to provide some rules that cover the interim period that precedes final delimitation.54 Complicating debates at the Third Conference on a provision to cover this period was that it developed amidst controversy between two opposing groups over what the principle of delimitation was ultimately going to be: equity or equidistance. These groups55 were furthermore often divided on the function an interim rule should serve: the issue was whether a unilateral provisional equidistance line should be imposed on maritime areas of overlap, binding the States to a point up to which they can exercise authority;56 or whether States should be motivated to enter into cooperative modalities, otherwise (as some States, such as Ireland, suggested) no unilateral conduct in relation to natural

54

55

56

Report of the Chairman on the Work of Negotiating Group 7, NG7/23 (12 September 1978), Articles 74 and 83, para. 3 (Chairman, NG7), reproduced in R. Platzöder, Third United Nations Conference on the Law of the Sea, vol. IX, (Oceana Publications, New York, 1986) p. 430; See further, Van Logchem (2014), supra note 38, pp. 179-181. It must be noted that the majority of States did not belong to either of the two delimitation groups that held opposing views over the legal principle of delimitation. See for instance A/CONF.62/C.2/L.14 (19 July 1974) III Off. Rec. 190 (The Netherlands).

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resources might commence at all.57 Due to this division that pervaded at the Third Law of the Sea Conference, the language that ultimately found its way into the final version of paragraph 3 of Articles 74 and 83 LOSC reflects a compromise of these two positions: there is both a preventive and activating component included within the paragraph.58 The preventive element, rather than being formulated on the basis of equidistance, is formed by the obligation to not hamper or jeopardise, which seeks to prevent conduct exerting a hampering or jeopardising effect from commencing. Conversely, the part that seeks to activate States, although there is no actual obligation included to this end, is composed of the obligation to make efforts to successfully set up means of cooperation as regards to the maritime area of overlap. The contents of this paragraph 3 have been valued differently, ranging from being largely uninformative59 to being very much instructive.60 The leading case on the interpretation of paragraph 3 of Articles 74 and 83 LOSC is Guyana/Suriname,61 where the Tribunal can be credited for laying out the contours of what is required of States preceding final delimitation of their overlapping EEZs and continental shelves. The Tribunal was called upon to judge the response of Suriname to vacate a drilling rig, operating solely pursuant to a license granted by Guyana, from the area of overlap, in light of what is required of claimant States under paragraph 3 of Articles 74 and 83 LOSC; the Tribunal also discussed the legality of the unilateral act of drilling that was engaged in by Guyana and prompted the response of Suriname.62 The reaction of Suriname was construed by the Tribunal as going beyond law enforcement – rather, it amounted to the threatening of an installation with 57 58

59

60

61 62

See for instance A/CONF.62/C.2/L.43 (6 August 1974) (Ireland). A.O. Adede, ‘Toward the Formulation of the Rule of Delimitation of Sea Boundaries Between States with Adjacent or Opposite Coasts’ 19 Virginia Journal of International Law (1979) pp. 211-212. L. Caflisch, ‘The Delimitation of Marine Spaces between States with Opposite or Adjacent Coasts’, in R.-J. Dupuy and D. Vignes (eds.), A Handbook of the New Law of the Sea, Volume I (Martinus Nijhoff, Leiden, 1991) pp. 425, 495. K. Hossain, ‘United Nations Convention on the Law of the Sea and Provisional Arrangements Relating to Activities in Disputed Maritime Areas’, in L. del Castillo (ed.), Law of the Sea, From Grotius to the International Tribunal for the Law of the Sea: Liber Amicorum Judge Hugo Caminos (Brill, Leiden, 2015) p. 683. Guyana/Suriname, 17 September 2007, Award of the Arbitral Tribunal, available at . See for a more extensive analysis: Van Logchem (2014), supra note 38, pp. 192-195.

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armed force.63 In reaching the conclusion, the Tribunal particularly took issue with comments that were uttered by the Surinamese crew aboard the navy vessels, suggesting that some consequences were to follow if the oil rig failed to comply with its warnings.64 5.2.1

An Obligation to Make an Earnest Attempt to Come to Cooperation Promoting mutual understanding concerning maritime areas of overlap between the claimant States concerned, including agreement on permissible activities, has been a regular feature in the work of many commentators,65 as well as in decisions rendered by some international courts and tribunals.66 The designation frequently used by States in labelling such cooperative arrangements is ‘joint development’67 – however, this concept has eluded uniform definition.68 Turning to an analysis of the contents of the positive obligation in paragraph 3 of Articles 74 and 83 LOSC, that calls on claimants to make every effort, in a spirit of understanding and cooperation, to enter into some provisional arrangements of a practical nature. Its primary aim is that it seeks to induce claimant States to come to a mutual understanding as regards to their overlapping EEZs and continental shelves. Once States have started to make such efforts in terms of dialogue, the States concerned must negotiate in a spirit of understanding and cooperation. 63 64

65

66 67

68

Guyana/Suriname, supra note 61, para. 476. Crucial for the Tribunal in reaching this conclusion was the accounts provided by witnesses that were present on the oil rig at the time. See Guyana/Suriname, supra note 61, para. 476. K. Zou, ‘Joint Development in the South China Sea: A New Approach’ 21 International Journal of Marine and Coastal Law (2006) pp. 83, 95-96; R. Beckman, C.H. Schofield et al., ‘Moving Forward on Joint Development in the South China Sea’, in R. Beckman, I. Townsend-Gault et al. (eds.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar, Cheltenham, 2013) pp. 312-331. See for instance North Sea Continental Shelf cases, supra note 52; Guyana/Suriname, supra note 61, para. 460. S.P. Jagota, ‘Maritime Boundary and Joint Development Zones: Emerging Trends’, in E.M. Borgese, N. Ginsburg, and J.R. Morgan (eds.), Ocean Yearbook, vol. 10 (Martinus Nijhoff, Leiden, 1993) p. 112. See for an overview of this debate: C.B. Okafor, ‘Joint Development: An Alternative Legal Approach to Oil and Gas Exploitation in the Nigeria-Cameroon Maritime Boundary Dispute’ 21 International Journal of Marine and Coastal Law (2006) pp. 493-495.

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However, difficulties arise in determining its precise contents – nonetheless, it can be assumed that at a minimum a good faith attempt must be made at arriving at a successful result. In the Guyana/Suriname arbitration, the obligation to seek provisional arrangements was seen as a derivative of the thought that is articulated in the preamble of the LOSC, that natural resources are to be used effectively and distributed equally amongst States.69 Although not engaging in an in-depth analysis of the modalities of the practice that has been built up by States, the Tribunal emphasised that having a measure of cooperation as regards to a maritime area of overlap is crucial to manage such areas – encouragements in the case law of international courts and tribunals to this end were found to support this position.70 Mutual accusations were made by Guyana and Suriname that the other had breached the obligation to seek provisional arrangements. In assessing whether these accusations could succeed, a key element for the Tribunal was whether, after the opening of talks, good faith efforts were exerted on either side that were geared towards finding some sort of a compromise solution to come to a cooperative understanding.71 This obligation to negotiate in good faith was, by heavily borrowing from the North Sea Continental Shelf cases,72 further circumscribed as follows: holding good faith negotiations includes the making of an earnest effort to achieve final delimitation and furthermore includes a willingness to compromise on one’s position in order to successfully reach a cooperative understanding.73 The phrase “in a spirit of understanding and cooperation” that is included in the text of paragraph 3 of Articles 74 and 83 LOSC was interpreted as embodying a particular aspect of what the broader obligation to negotiate in good faith requires of States.74 Taking a ‘conciliatory approach’ to pursuing provisional arrangements was deemed particularly appropriate; they are meant to be in existence for a limited period of time and in no way impair or affect the underlying claims of claimant States.75 Concluded provisional arrangements are meant to apply “pending agreement” on the final maritime bound69 70 71 72 73 74 75

Guyana/Suriname, supra note 61, para. 464. Ibid., para. 463. Ibid., para. 461. North Sea Continental Shelf cases, supra note 52, paras. 85a and 86. Guyana/Suriname, supra note 61, paras. 476-477. Ibid., para. 460. Ibid., para. 461.

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ary. These arrangements usually stop applying when an agreement is reached on where the EEZ or continental shelf boundary lies,76 or at a time that is set by States themselves, which can freely decide on the duration of the arrangements. Although appeals have been made by international courts, tribunals and in the literature to claimant States to canvass the possibility to successfully enter into provisional arrangements, the obligation to cooperate that paragraph 3 of Articles 74 and 83 LOSC imposes does not require States to successfully set these up prior to final delimitation.77 Also, as talks at the Third Law of the Sea Conference progressed, it became clear that mandating disputant States to come to provisional arrangements in the form of an obligation of result would not gain general support from participating States.78 Rather, the current obligation in paragraph 3 of Articles 74 and 83 LOSC to seek provisional arrangements puts the decision as to the extent to which, if at all, the States involved cooperate firmly on themselves.79 Some commentators have taken the position that there is a rule of customary international law, either locally or globally, mandating claimant States to cooperate concerning to certain matters, predominantly as regards to oil and gas resources.80 This position is not uncontroversial. If one solely focuses on oil and gas resources, the number of cooperative modalities seeking to deal with these resources in maritime areas of overlap is not that extensive in State practice. Further and importantly, States meeting the interest-requirement, in that pursuing such cooperative understandings would seem to benefit them specifically – including States in the

76

77 78 79

80

R. Lagoni, ‘Interim Measures Pending Maritime Delimitation Agreements’ 78 American Journal of International Law (1984) pp. 357, 363; Jagota, supra note 67, pp. 110, 121. E.g., North Sea Continental Shelf cases, supra note 52, para. 87. Report of the Chairman on the Work of Negotiating Group 7, NG7/23, supra note 54, p. 430. T. Davenport, ‘The Exploration and Exploitation of Hydrocarbon Resources in Areas of Overlapping Claims’, in R. Beckman, I. Townsend-Gault et al. (eds.), Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar, Cheltenham, 2013) p. 105. W.T. Onorato, ‘Apportionment of an International Common Petroleum Deposit’ 17 International & Comparative Law Quarterly (1968) p. 101; M. Miyoshi, ‘The Basic Concept of Joint Development of Hydrocarbons on the Continental Shelf’ 3:1 International Journal of Estuarine and Coastal Law (1988) pp. 6, 8-10.

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South China Sea and Mediterranean Sea – have shown little appetite for creating such cooperative means.81 5.2.2

An Obligation to Abstain from Hampering or Jeopardising Final Delimitation The fact that certain actions and reactions of claimant States can exert a negative effect on the chances of successfully resolving overlapping EEZ and continental shelf claims through the determination of a maritime boundary is recognised in paragraph 3 of Articles 74 and 83 LOSC: this concern is reflected in the shape of the obligation to not ‘hamper’ or ‘jeopardise’. This obligation is negative in nature, i.e. claimants have to refrain from doing something. Further, it seeks to prevent those activities from commencing that have a hampering or jeopardising effect – underlying this is the thought that if States would perform these activities, the chances of that final delimitation is reached would be negatively impacted. At the Third Law of the Sea Conference, there was unanimity in thinking that the range of unilateral activities needed to be curtailed within overlapping EEZs/continental shelves82 – proving particularly difficult, however, was to agree on the actual degree to which States had to be restrained in conducting activities in these areas.83 Fears that a moratorium would in fact be introduced under the guise of introducing language along the lines of hampering or jeopardising were particularly prevalent.84 At first glance, the text of the negative obligation seems not that instructive: beyond the inclusion of the terms ‘hamper’ or ‘jeopardise’, there is no further elaboration as to the specific activities that are caught under this obligation.85 The obligation to not hamper or jeopardise reflects the thought that a settlement of the open maritime boundary would be facilitated by its inclusion. Commencing with certain unilateral acts is seen to be detrimental to finalising this prospect, in 81

82 83 84 85

Y. van Logchem, ‘The Status of a Rule of Capture under International Law of the Sea with regard to Offshore Oil and Gas Resource Related Activities’ Michigan State International Law Review (2017/2018) forthcoming. Report of the Chairman on the Work of Negotiating Group 7, NG7/23, supra note 54, p. 430. Van Logchem (2014), supra note 38, pp. 179-180. See for instance A/CONF.62/SR.126 (1980) (Iran). Assessing the type of conduct that falls under the reach of the obligation may be further complicated by the fact that this shifts with the specifics surrounding a particular overlapping claims situation.

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that engaging therein would add further complexity and prolong the period where there are overlapping EEZs and continental shelves. The reasoning set out by the Tribunal in Guyana/Suriname provides some insight on the contents of the obligation that States have to avoid acts that are detrimental to final delimitation. The activity in point in this case was exploratory drilling by a company of a third State, under the license of one claimant State (i.e. Guyana), in the area of overlapping EEZ/continental shelf claims. The Tribunal was called upon to consider this particular unilateral act in light of the obligation to not hamper or jeopardise, and found that unilateral drilling provokes effects that surpass this threshold. Its unlawfulness was evidenced by applying those criteria “used by international courts and tribunals in assessing a request for interim measures”.86 Although speaking in the plural, the case that was particularly instructive for the Tribunal was the Aegean Sea Continental Shelf (interim measures) case. There, the main question was whether Turkish exploratory work in a maritime area of overlap warranted the giving of an Order prescribing interim measures by the International Court of Justice (ICJ). In that case, it was held that activities carrying a notable risk of physical damage to the seabed or subsoil, or causing irreparable prejudice to the rights of another claimant, would have permitted the ICJ to lay down interim measures. The ICJ went on to recognise three types of activities that fit this description: exploitation or (attempts at) appropriating the natural resources of the continental shelf; drilling; and emplacing installations and structures that are in contact with the seabed.87 In reviewing this judgment, the Tribunal in Guyana/Suriname recognised that the threshold to assume a breach of paragraph 3 of Articles 74 and 83 LOSC has been set lower than what generally gives an international court or tribunal sufficient reason to lay down interim measures.88 After reviewing the drafting history of paragraph 3 of Articles 74 and 83 of the LOSC, the Tribunal developed a general standard against which the lawfulness of a unilateral act can be measured: unilateral activities, or those performed pursuant to the consent of only one claimant State, that impact the marine en-

86 87 88

Guyana/Suriname, supra note 61, para. 470. Aegean Sea Continental Shelf (Greece v. Turkey), Interim Measures, Order of 11 September 1976, ICJ Reports 1976, para. 30. Guyana/Suriname, supra note 61, para. 469.

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vironment permanently or irreparably prejudice another State’s rights have to be avoided.89

6

Applying the Central Tenets of Paragraph 3 of Articles 74 and 83 LOSC to Oil and Gas Related Activities

Unilateral conduct concerning oil and gas activities in overlapping EEZ/ continental shelf areas will regularly create problems between claimant States – this is irrespective of whether this overlap of claims to the same maritime area is created by claims being measured from disputed or undisputed territory.90 Either conduct taken in response to another State’s action or proactively deciding on taking unilateral steps concerning the areas of overlap commonly cause disagreement and conflict between the States involved. Third States may become caught in the middle, for instance if an oil company incorporated in a third State has been licensed to perform the activity that provoked the reaction of another claimant State. Such a reaction will be particularly forthcoming once oil and gas related activities are conducted without the explicit consent given by another claimant coastal State.91 Illustrating this is when a Chinese oil rig (‘Haiyang Shiyou 981’) was engaged in drilling in waters closely located to the disputed Paracel Islands, which created a stream of controversy between China and Vietnam.92 Awareness that unilateral acts related to oil and gas resources can engender difficulties between States is also shown on the part of the UK concerning the Falklands (Malvinas): concessions applying to areas off its coast include a disclaimer informing the concessionaire of their disputed status and the difficulties that this might possibly entail.93 Paragraph 3 of Articles

89 90 91 92 93

Guyana/Suriname, supra note 61, para. 470. R. Lefeber, ‘International Law and the Use of Maritime Hydrocarbon Resources’, Clingendael International Energy Programme 2015 pp. 10-11. Van Logchem (2014), supra note 38, p. 175. ‘China Says Second Oil Rig Starts Drilling in South China Sea’, Bloomberg, 26 June 2014. “There may be other unforeseen matters such as disputes over borders. Investors will be aware that the Falkland Islands were, in 1982, the subject of hostilities between the United Kingdom and Argentina.” Cited in M. Waibel, ‘Oil exploration around the Falklands (Malvinas)’, 13 August 2012, EJIL: Talk! blog, available at .

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74 and 83 LOSC has a strong open-ended-character.94 Hence, oil and gas related activities can easily be brought within its reach whenever they are, or sought to be, conducted in areas of overlap. Applying this common phrased paragraph 3 to oil and gas resources has two implications: first, if there is a desire on the part of at least one of the claimant States to start negotiating over a provisional arrangement related to the resources that are contained in an area of overlap, and if an invite thereto is extended to another claimant, good faith attempts must be made to come to such an arrangement. Second, certain unilateral acts in connection with oil and gas resources have to be avoided; obtaining the consent of another claimant State will have to precede its commencement. The question with regard to the latter is, however, to what degree restraint is needed from claimant States that wish to perform unilateral acts related to these resources. 6.1 Licensing/Concessioning A basic distinction has to be made between acts that pave the way for the commencement of activities (i.e. licensing and concessioning) and the actual undertaking of such acts on these bases (i.e. seismic work, drilling, and unilateral exploitation) within areas of overlap. The giving of a concession by a claimant State to a concessionaire to engage in exploratory work or drilling might already be sufficient to attract the vociferous protests of another claimant.95 In Guyana/Suriname, the Tribunal considered, as was contended by Suriname,96 whether the act of concessioning the oil rig by Guyana constituted a breach of paragraph 3 of Articles 74 and 83 LOSC. The Tribunal found that this unilateral act was not so as to be considered to hamper or jeopardise final delimitation. One explanation for this is that, in terms of severity, giving licences/concessions is less intrusive than, for instance, seismic work. 6.2 Seismic Work Exploring for oil and gas through seismic work was not included in the category of conduct that is prohibited in maritime areas of overlap, nei94 95

96

Anderson and Van Logchem, supra note 15, pp. 205-206. C.H. Schofield and M. Tan-Mullins, ‘Maritime Claims, Conflicts and Cooperation in the Gulf of Thailand’ in E.M. Borgese, N. Ginsburg, and J.R. Morgan (eds.), Ocean Yearbook, vol. 22 (Martinus Nijhoff, Leiden, 2008) p. 78. Guyana/Suriname, supra note 61, Rejoinder of the Republic of Suriname, Volume 1 (1 September 2006), Chapter 6, Submission 2.C.

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ther in the Aegean Sea Continental Shelf (interim measures) case, nor in Guyana/Suriname. In these cases, it was held in largely the same terms that seismic work had a minimal risk of causing “physical damage to the seabed or subsoil” of the area of overlap. This was held even though in the Aegean Sea Continental Shelf (interim measures) case, there was a shooting of seismic at the seabed from a vessel, combined with the setting off of small explosives. Greece, albeit unsuccessfully, complained of an infringement on its sovereign rights and advanced the argument in its pleadings that conducting seismic work had to be postponed until there was clarity as to where the maritime boundary lay in the Aegean Sea,97 also because allowing this type of conduct to go forward could provide one claimant State with a significant advantage. The ICJ admitted that a measure of prejudice to the right of another claimant would result from the unilateral conducting of seismic work – the actual measure thereof fell however short of being irreparable. According to the ICJ, this harm could be undone in the event that it would find that the area of overlap in which the seismic work took place was placed under the authority of Greece – financial means would be able to restore the status quo ante. This aspect of the reasoning is by no means unproblematic: for instance, how is one to value the measure of damage that would result from obtaining an advantage in negotiations through conducting unilateral seismic work by one claimant in relation to another? In Guyana/Suriname, none of the States concerned actually complained that unilaterally undertaken seismic work within the area of overlap was contrary to international law. Nonetheless, the Tribunal went on to discuss the issue of conducting seismic work obiter dictum, and arrived at the conclusion that it can be designated as a permissible activity. Building on this pronouncement, seismic work is now regularly identified in the literature as a permissible activity in areas of overlap.98 This line of reasoning is, however, not devoid of problems. One criticism that can be formulated is that the obligation to not hamper or jeopardise seems to have a subjective element: this is constituted by the fact that the obligation is imposed on claimants, with a view to not making the final delimitation of overlapping EEZs or continental shelves more difficult. Coming to a final delimitation is however intimately entwined 97 98

Aegean Sea Continental Shelf case, supra note 87, Oral Pleadings 1976, pp. 108-109. See for instance D. Tas, ‘Oil and Gas in the East China Sea: Maritime Boundaries, Joint Development and the Rule of Capture’ 29 International Energy Law Review (2011) p. 59.

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with the willingness of the States having overlapping EEZs and continental shelves to bring a case to an international court or tribunal, or to agree to the course of a final boundary in a delimitation agreement – both are fully dependent on a basic tenet of international law, that is, consent of the States concerned. Giving this consent will depend on a number of considerations. For example, if one of the claimant States views conducting seismic work as a provocative type of act, it may be less inclined to agree to either third party settlement or delimitation, which would remove the overlapping claims situation – however, this view is not part of the general prevailing view where unilateral seismic work commonly is classified as lawful conduct in areas of overlap. Nonetheless, the generalisation of the Tribunal’s findings ober dicta that unilateral seismic work is an acceptable use of a maritime area of overlap, may well overlook that seismic work can pose a direct challenge to the sovereign rights of another claimant and the hampering or jeopardising effect this can have.99 6.3 Drilling Unilateral drilling has been at the forefront of difficulties in different localities between different compositions of States on a significant number of occasions. An example is provided by an oil rig that was operated by the Korean oil company Daewoo, within a formerly undelimited part of the Bay of Bengal, under the sole approval of Myanmar. After a visit of a naval vessel of another claimant (Bangladesh), the rig abandoned its work and withdrew from the area concerned.100 In Guyana/ Suriname, an oil rig that positioned itself in the area of overlap in order to initiate drilling not only created significant controversy, but also functioned as the catalyst for Guyana to bring the dispute to arbitral proceedings. In its pleadings, the lawfulness of this act was alleged as follows by Guyana: since exploratory drilling is of a transitory nature, it can thus be performed by one claimant without the consent of the other.101 The reasoning advanced by Guyana on this point came down to the fact that drilling and seismic work are comparable acts in terms of 99 100

101

Van Logchem (2014), supra note 38, pp. 185-186. J. Bissinger, ‘The Maritime Boundary Dispute between Bangladesh and Myanmar: Motivations, Potential Solutions, and Implications’ 10 Asia Policy (2010) p. 109. Guyana/Suriname, supra note 61, Reply of the Republic of Guyana, Volume 1 (1 April 2006), pp. 141-143.

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nature and impact.102 This line of argument was dismissed by the Tribunal, because drilling and seismic work were considered to be inherently different acts which needed to be judged on their own merits. Two negative effects that the Tribunal associated with drilling – placing it in the category of prohibited unilateral acts – were: causing permanent change in the rights of another party to the dispute, and having a physical and permanent impact on the marine environment.103 A similar distinction was also drawn by the ICJ in the Aegean Sea Continental Shelf (interim measures) case; an act of drilling would merit giving an Order laying down interim measures, due to it causing irreparable prejudice to the rights of another State. The Tribunal concluded that Guyana failed to observe the required measure of “spirit of cooperation”, envisaged pursuant to the positive obligation under paragraph 3 of Articles 74 and 83 LOSC, to seek provisional arrangements. Although lengthy preparations were undertaken by Guyana, prior to the oil rig moving into the area of overlap, at no time was Suriname however informed directly of its plans, beyond the placing of an article in a local newspaper.104 The Tribunal went on to give some elaboration as to what Guyana should have done to act in line with the modalities of the obligation to make attempts to cooperate and, conversely, what behaviour would be irreconcilable with this obligation105 – a failure to respond to an invitation from another State to embark on negotiations was invoked as an example of a breach.106 6.4 Exploitation Although after the discovery of an oil and gas field production usually will be approximately 10 years away, there have been instances in which States have moved to develop oil and gas resources from areas of overlap. In Ghana/Ivory Coast (provisional measures), there was a unilateral movement to the stage of actual development by Ghana.107 That Ghana was able to progress to development was by its own account due to Ivory

102 103 104 105 106 107

Ibid. Ibid., para. 470. Ibid., para. 477. Ibid. Ibid., para. 473. Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire), Provisional Measures, ITLOS Case No. 23 (Ghana/Ivory Coast).

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Coast abstaining from formulating any sort of protest. The contention of Ghana was thus that the silence of Ivory Coast had amounted to acquiescence. If the International Tribunal of the Law of the Sea would follow this reasoning in its judgment on the merits, this example could however not be invoked as an argument in support of the thesis that one claimant would be allowed to move to exploit oil and gas from an area of overlap. Nonetheless, in the Order given by the Tribunal, it declined to put a halt to conduct that had already been set in motion, because this would impose a too heavy financial burden on Ghana and the marine environment would run the risk of being harmed. However, Ghana was ordered to refrain from developing new drilling activities. A further example is Japan, that has accused China of leading away deposits of oil and gas resources from fields that fall within the Japanese side of an equidistance line, which it argues divides the disputed parts of the East China Sea preceding final delimitation.108 The unilateral progression of one claimant State to the stage of exploitation of oil and gas resources from an area of overlap has consistently been labelled as unlawful by international courts and tribunals that pronounced itself on the issue. At the root of such findings were essentially two considerations: first, as a consequence of unilateral exploitation, the rights of another claimant State are threatened with irreparable prejudice; and second, that the seabed or subsoil, or the marine environment, is physically and irreparably damaged.109

7

Framing the Dispute between Argentina and the UK concerning the Falkland (Malvinas) and the Adjacent Waters

Important for a proper understanding of the dispute between the UK and Argentina over the Falklands (Malvinas) is that it is layered: there is the issue of disputed sovereignty over the islands themselves, and the issue of the overlap of the maritime zones that have been projected from the disputed islands by both Argentina and the UK. The arising of an overlap that actually requires delimitation is currently merely potential, in the sense that if Argentina gained sovereignty over the Falklands (Malvinas) (for instance through a binding finding of a third party in 108 109

J. Gao, ‘A Note on the 2008 Cooperation Consensus Between China and Japan in the East China Sea’ 40 Ocean Development & International Law (2009) p. 294. Aegean Sea Continental Shelf, Order of 11 September 1976, supra note 87, para. 30.

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the future, although this is admittedly not to be expected), there would be no need for resolving overlapping entitlements to maritime spaces through determining a boundary that is projected from a UK territory, with its most nearby territory being too far removed to create any sort of alternative overlap. The two States will thus only have the need to conclude a maritime boundary if the UK receives clear title and sovereignty over the Falklands (Malvinas) – then an actual overlap of the entitlements of the two States would exist that requires final maritime delimitation. What implications does this have for accessing the oil and gas resources that are located in the adjacent disputed waters, as well as identifying the legal framework applicable thereto? First, some background on the significance of the oil and gas resources that are located off the coast of the Falklands (Malvinas) will be provided. Political recognition by the UK of the potential importance of these oil and gas resources was first voiced in 1969.110 The early-on recognition that oil and gas was contained in the waters off the Falklands (Malvinas) was accompanied by a sense of, at least on the part of the UK, that there was a need to cooperate in some sort of way.111 No means of cooperation, however, materialised at the time, because this idea was highly unpalatable to those taking a hard-line stance on the issue of resolving sovereignty. Going back to before the second half of the 1970s, the position taken by the UK was one of restraint when it came to allowing oil and gas activity to commence – this was by design so as not to anger Argentina. Thereafter, voices started to grow amongst the inhabitants of the Falklands to allow private oil and gas companies to begin work, yet the UK withstood the exerted pressure and slightly changed its position by saying that private oil companies were not allowed to explore. At the time, the UK commenced with the commissioning of its own studies into the viability of the continental shelf in order to soothe domestic voices seeking the UK to increase the intensity of activity as regards to the disputed waters in connection with oil and gas resources. Keeping the conduction of the work concerning the continental shelf within the hands of the UK government was based on the (in hindsight, probably mistaken) thought that this would sit better with Argentina than hiring outside help from private companies.112 Studies performed 110 111 112

Gustafson, supra note 3, p. 83. This was suggested by James Callaghan, at the time Foreign Minister of the UK, see Gustafson, supra note 3, p. 83. Gustafson, supra note 3, p. 89.

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by the UK showed significant promise concerning the oil and gas potential of the waters surrounding the Falklands (Malvinas). This awareness led both Argentina and the UK to be spurred on domestically to begin unilateral development of these resources.113 In 1995, Argentina and the UK decided to cooperate in exploring and exploiting a designated part of the disputed waters lying south west off the coast of the Falklands (Malvinas).114 A reason offered for the withdrawal of Argentina from the arrangement in 2007 was the lack of exploratory success.115 Despite the fact that awareness that oil and gas could be present in large quantities goes back to the beginning of the second half of the 20th Century, after several rounds of seismic testing had been conducted, the actual discovery of commercially viable deposits – which was confirmed through drilling – was made only decades later. More specifically, confirmation came in 2010 when Rockhopper successfully struck upon a viable deposit that is of commercial interest.116 The decision of the UK to allow various drilling operations to proceed in the North Falklands Basin117 exchanged a period of relative calm for a new chapter of controversy in the long history of the dispute concerning the Falklands (Malvinas). At the time, the President of Argentina, Kirchner, phrased her objections as follows: the drilling by the UK breached international law and applicable UN General Assembly resolutions which mandate States from abstaining from unilateral acts that deteriorate an existing situation.118 7.1 Issues of Applicability of the LOSC to the Falklands (Malvinas) The previous analysis has left out the elephant in the room: that is, is paragraph 3 of Articles 74 and 83 of the LOSC – or the LOSC in general – applicable in the disputed waters off the Falklands (Malvinas)? Considerable doubts can be shed on whether the LOSC and its provisions – 113 114

115

116 117 118

Ibid., p. 97. Declaration of the British Government with Regard to the Joint Declaration signed by the British and Argentine Foreign Ministers on Cooperation over Offshore Activities in the South West Atlantic (27 September 1995). See for a more elaborate analysis of this agreement: Ruzza, supra note 1, pp. 90-94. Ruzza, supra note 1, pp. 75, 92: “the Declaration failed immediately after the finding that no exploitable resources were available in the Special Cooperation Area”. Watkins, supra note 12, p. 31. J. Beckman, ‘Southeastern Falkland Islands seen as Highly Prospective’ 66:11 Offshore (2006) p. 8. Watkins, supra note 12, p. 31.

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which however still might be relevant as far as the maritime dimension attached to the sovereignty dispute is concerned, which is the second layer of the Falklands (Malvinas) situation, as described above – will have a role to play in whenever the issue of overlapping maritime zones represents an added point of contestation to a sovereignty dispute. Views in the literature are divided on whether paragraph 3 of Articles 74 and 83 LOSC is applicable in situations where the issues of sovereignty and the overlap of claims measured from disputed islands are combined. According to some authors,119 little perceptible differences exist between situations where overlapping maritime claims and sovereignty disputes are entwined. For instance, Papanicolopulu has extended the scope of paragraph 3 of Articles 74 and 83 LOSC even to all maritime boundary disputes, irrespective of whether the arisen dispute derives from unresolved questions of sovereignty over territory, or the qualification of certain insular features and their possible entitlement to maritime zones.120 However, providing clarity on the issue of sovereignty concerning the Falklands (Malvinas) is crucial for an overlap of the claims of the UK and Argentina to actually arise, which only then would require delimitation. Other commentators, after concluding the non-applicability of the LOSC, have turned to paragraph 3 of Articles 74 and 83 LOSC for the purpose of guidance whenever the issue of sovereignty remains and needs to be resolved first.121 The gist of these views is that the LOSC can function as a text from which inspiration can be drawn when it comes to those disputes over maritime space that are underlain by territorial issues. Particularly decisive for arguing the non-applicability of the LOSC is that it seems to operate on the assumption that sovereignty over territory has already been placed with one State.122 It is important to start with the observation that the LOSC does not provide any rules pertaining to resolving a territorial issue as such. This can be explained by the fact

119

120 121

122

Lagoni, supra note 76, p. 354; I. Papanicolopulu, ‘Enforcement Action in Contested Waters: the Legal Regime’, paper presented at the 6th IHO-IAG ABLOS Conference ‘Contentious Issues in UNCLOS – Surely Not?’, Monaco, 25–27 October, 2010 p. 3. Papanicolopulu, ibid. See for instance R. Beckman, ‘The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea’ 107 The American Journal of International Law (2013) p. 163. Anderson and Van Logchem, supra note 15, pp. 222-223.

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that disputes over territory are not disputes concerning the law of the sea123 – which has been dubbed as an important limitation on the scope of the LOSC.124 Throughout the Third Law of the Sea Conference, the issue of sovereignty was largely avoided by the participating States on the basis of a similar rationale: resolving competing sovereignty claims over islands are not law of the sea matters. Rather, negotiations were designated as the most appropriate way for States to deal with these types of disputes. However, in the specific context of non-self-governing territories, there was more discussion over the issue of sovereignty at the Third Conference. These highly politicised debates resulted in paragraph 1(b) of Resolution III, included in the Final Act of the Third UN Conference on the Law of the Sea, which contains some declaratory language about rights and interests of States in the context of non-self-governing territories.125 The gist of paragraph 1(b) of Resolution III is very similar to the language of paragraph 3 of Articles 74 and 83 LOSC, in that States are encouraged to conclude provisional arrangements of a practical nature without prejudice to the final delimitation, and to eschew certain types of unilateral actions. Of significance in the present context is that the Falklands (Malvinas), on the imitative of the UK in 1946, was placed on the list of non-self-governing territories, as meant pursuant to Chapter XI of the UN Charter.126 Argentina has, however, protested this initiative. The activation of the LOSC seems to turn on whether any issues over territory used for projecting claims over adjacent maritime space have been conclusively dealt with.127 The effect would be that there can be 123 124 125

126

127

M.H. Nordquist, S. Rosenne, and L.B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. V (Brill/Nijhoff, Leiden, 1989) p. 480. S. Wu, Solving Disputes for Regional Cooperation and Development in the South China Sea: A Chinese Perspective (Chandos Publishing, Oxford, 2013) p. 74. Paragraph 1(b) of Resolution III, included in the Final Act of the Third UN Conference on the Law of the Sea, reads as follows: “That States concerned shall make every effort to enter into provisional arrangements of a practical nature and shall not jeopardise or hamper the reaching of a final settlement of the dispute.” F. Toase, ‘The United Nations Security Resolution 502’, in S. Badsey, R. Havers, and M. Grove (eds.), The Falklands Conflict Twenty Years on: Lessons for the Future (Frank Cass, New York, 2005) pp. 147-148. L. Bautista, ‘Dispute Settlement in the Law of the Sea Convention and Territorial and Maritime Disputes in Southeast Asia: Issues, Opportunities, and Challenges’ 6 Asian Politics & Policy (2014) p. 376: “it must be emphasised that the rules laid

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no underlying and preliminary question over which State holds the title over a territory for its provisions to apply.128 For instance, in effecting a delimitation of the continental shelf, the ICJ held in the case between Libya and Tunisia that the starting point to determine the course of a maritime boundary is its undisputed counterpart on land.129 Following this line of thought, that is set out more or less consistently in case law, it can be regarded crucial to have sovereignty over territory, wherefrom ultimately entitlements to maritime space would follow, and the LOSC is activated correspondingly. Similarly, the emergence of the ancillary issue of delimitation of overlapping maritime boundary claims is dependent on the sovereignty issue being conclusively resolved – Articles 15, 74 and 83 LOSC are concerned with delimiting entitlements to overlapping territorial seas, EEZs and continental shelves. Their activation is premised on the fact that there are overlapping entitlements, which, in turn, is indissolubly tied up with at least two States having sovereignty over different pieces of territory – an overlap of entitlements is created due to them being adjacent or opposite within a given distance from each other. 7.2

The Disputed Waters offf the Falklands (Malvinas): What Other Rules of International Law are Applicable? Given that a strong argument can be made that the LOSC is not applicable to the Falklands (Malvinas) dispute, and that in consequence paragraph 3 of Articles 74 and 83 will not enter into the picture, the question arises whether there is a vacuum iuris in relation to maritime areas that are adjacent to the disputed islands. Recognising the limitations of the applicability of the LOSC does not necessarily warrant the conclusion that there is a lack of rules – other rules of international law do apply to these disputed waters. Once there is a dispute, a basic tenet of in-

128 129

down in the LOSC proceeds from the premise of existing and uncontested land features and could not be invoked as a source of title to territory”. Beckman, supra note 122, p. 142; Bautista (2012), supra note 29, pp. 106, 112. Continental Shelf case (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 61 (paras. 74-75), and pp. 65-66 (Tunisia/Libya). Similarly, in the dispute between Cameroon and Nigeria, the ICJ stated that resolving the issue of the two overlapping sovereignty claims over the Bakassi Peninsula was a prerequisite for their maritime boundary claims to be delimited: see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Provisional Measures, ICJ, Order of 15 March 1996, available at .

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ternational law is that a peaceful settlement has to be brought about. This means, amongst others, that the States concerned forego using any force, or threatening therewith – this is, inter alia, laid down in Article 33 of the UN Charter.130 The possibility that irreparability to the rights of another State that is involved in a dispute is caused, has in case law concerning interim measures been identified as the paramount reason for an international court or tribunal to accede to a request for interim protection.131 In the Aegean Sea Continental Shelf (interim measures) case, the ICJ judged seismic work in this particular light: whilst seismic work did not meet this threshold, drilling and exploitation of oil and gas resources from the area of overlap did.132 Avoiding irreparability to the rights of another disputant State can thus be invoked as an additional requirement that the UK and Argentina are under, pursuant to international law, concerning the Falklands (Malvinas). Closely connected to the principle that States have to settle their disputes peacefully, is that a part of this obligation is composed of the conjoining duty that they have to abstain from taking actions that would aggravate or extend the dispute. Non-aggravating or extending a dispute is a concept that is also regularly encountered in the case law of international courts and tribunals concerning interim measures. Its origins can be traced back to the Electricity Company of Sofia and Bulgaria case of 1939.133 In terms of substance, there is apparent similarity with one of the rationales that underlies the negative obligation paragraph 3 of Articles 74 and 83 of the LOSC: the gist of which is that certain unilateral activities have to be prevented, so as to avoid certain effects that are detrimental to a particular aim. According to Klein, they are interlinked in the following way: the thought of non-aggravation or extension of a dispute is part and parcel of the negative obligation of para-

130 131 132 133

Charter of the United Nations, San Francisco, 26 June 1954, in force 24 October 1945, 1 UNTS 16 (UN Charter). See for instance Z. He, The ICJ’s Practice on Provisional Measures (Peter Lang, Frankfurt am Main, 2010) pp. 34-39. Aegean Sea Continental Shelf, Order of 11 September 1976, supra note 87, para. 30. Electricity Company of Sofia and Bulgaria, Order of 5 December 1939 (Request for the Indication of Interim Measures of Protection), Permanent Court of International Justice, Series A/B No. 79, p. 199: “the State of Bulgaria should ensure that no step of any kind is taken capable of prejudicing the rights claimed by the Belgian Government or of aggravating or extending the dispute submitted to the Court”.

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graph 3 which utilises the terms ‘hampering’ and ‘jeopardising’.134 In the recent South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China), the Tribunal reflected on how to understand the extensive case law concerning non-aggravation or extension of a dispute.135 It saw this case law as reaffirming the duty of States that are involved in a dispute to refrain from aggravating or extending a dispute. The Tribunal went on to state that the arising of this duty does not, however, turn on the giving of an Order containing interim measures by an international court or tribunal – abstaining from aggravating or extending a dispute exists independent thereof. Repeating the tenor that no act may be undertaken by Argentina and the UK that has such effects is, amongst others, UN General Assembly Resolution 31/49.136 Despite the non-binding character of this resolution, it refers to international law and contains some elements bearing on the obligations of the rival claimants, notably that they have to abstain from unilateral acts that somehow alter the status quo ante. Further, an argument can be made that the UK, by declaring the Falklands (Malvinas) as a nonself-governing territory that is under its administration in 1946, the obligations provided under paragraph 1(b) of Resolution III in the Final Act of the Third UN Conference on the Law of the Sea entered into play: “[t]he States concerned shall make every effort to enter into provisional arrangements of a practical nature and shall not jeopardise or hamper the reaching of a final settlement of the dispute.” Replicating the tenor of paragraph 3 of Articles 74 and 83 of the LOSC, unilateral conduct that has commenced, or is sought to commence, in the disputed waters off the Falklands (Malvinas) seems to also have to be analysed in light of these two obligations.

8

Concluding Remarks

It is clear that there is a dispute, according to international law, between Argentina and the UK over the Falklands (Malvinas): both can be assumed to have advanced claims to entitlements to having sovereignty 134

135 136

N. Klein, ‘Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes’ 21 International Journal of Marine and Coastal Law (2006) p. 458. South China Sea Arbitration, Award, supra note 36, para. 1169. UNGA Resolution 31/49, 1 December 1976, para. 4.

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over the islands and the adjacent waters that have a prima facie basis in international law. Without an international court or tribunal pronouncing itself on the respective strengths of these competing sovereignty claims, and thus pending final resolution of the sovereignty question, these claims may be attributed equal weight. A further general maxim is that States have permanent sovereignty over natural resources under international law,137 which includes offshore oil and gas resources. However, this is premised on the fact that one State has sovereignty over a territory – this is something that is at the core of the dispute between Argentina and the UK, rendering the application of this maxim to the Falklands (Malvinas) dispute highly doubtful. The nature of the outstanding dispute concerning the Falklands (Malvinas) (i.e. it involves competing sovereignty claims over territory combined with overlapping maritime zones) sheds significant doubt on the entering into picture of the LOSC. In fact, its applicability is highly uncertain in situations where the continuation of having overlapping maritime claims is fully dependent on which State has a clear title and sovereignty over territory. Concerning the Falklands (Malvinas), this is fully entwined with the UK having sovereignty over the islands, only then creating an overlap of entitlements to EEZs and continental shelves between the mainland coast of Argentina and the Falklands (Malvinas) coast. However, it must be pointed out that there is no unanimity in literature over the (reduced) usefulness of the LOSC, notably as to whether paragraph 3 of Articles 74 and 83 is applicable. Assuming that a reading of the LOSC that presumes that sovereignty over territory has to be established first is correct, the question arises, as identified earlier, whether there is a vacuum iuris in relation to maritime areas that are adjacent to the disputed islands. The answer is no. There is a range of more general rules of international law that do apply to this dispute, such as: (1) disputants have to settle their differences peacefully, (2) avoid acts that cause the rights of another State to be prejudiced to a degree that the damage exceeds reparability, and (3) they have to eschew acts that lead to an aggravation or extension of a dispute. The question that follows is, however, what are the concrete implications of these existing duties for the possibility of the two States to perform activities in connection 137

E.g., UNGA Resolution 1803 (XVII) (14/12/1962), reflecting customary international law; see also 1994 Energy Charter Treaty (2080 UNTS 95), Article 18(1) recognises “state sovereignty and sovereign rights over energy resources … these must be exercised in accordance with and subject to the rules of international law”.

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with oil and gas resources that are located in the disputed waters off the Falklands (Malvinas)? Activities that are embarked on in maritime areas of overlap concerning oil and gas resources, regardless of whether they are the result of the measuring of claims to entitlements from disputed or undisputed territories, provoke largely similar reactions. Exploiting oil and gas resources within areas of overlap, or making attempts thereto, by moving drilling rigs into position to commence with work, or the less intrusive activity of seismic testing, can, and often will, engender controversy. It is vital that in the earlier discussed Aegean Continental Shelf (interim measures) case, the ICJ was not interpreting paragraph 3 of Articles 74 and 83 LOSC, whose application is, as mentioned, uncertain. Rather, it appraised whether conducting seismic work is reconcilable with international law, particularly assessing the danger that irreparable prejudice is caused. Proceeding unilaterally to exploitation of oil and gas resources, or drilling for them, in maritime areas of overlap has, in contrast to seismic work, been assumed to lead to the rights of another State becoming endangered with irreparability. Although the context of the dispute in the Aegean Sea was different, and it concerned an interim measures case, there seems to be little reason to not apply this line of argument mutatis mutandis to the disputed waters off the Falklands (Malvinas), given that the ICJ’s analysis focused on the extent to which a unilateral activity undertaken within a maritime area of overlap would prejudice the rights of another State. This sheds serious doubt on the legality of commencing drilling, or future development of oil and gas resources that are located in adjacent waters by the UK, without setting up cooperative means with Argentina, the other State that has advanced a claim that is derived and based on international law. Reinforcing this is that drilling and development of oil and gas resources in the disputed waters located off the Falklands (Malvinas) will generally be irreconcilable with paragraph 1(b) of Resolution III, contained in the Final Act of the Third UN Conference on the Law of the Sea, which in terms of content is similar to paragraph 3 of Articles 74 and 83 of the LOSC. In regard to the latter, subsequent explanations have borne out the view that both drilling and exploitation are two examples of unilateral activities which are almost sure to run counter to the obligation of “to not hamper or jeopardise”.138

138

E.g., Van Logchem (2014), supra note 38, pp. 181-183; Anderson and Van Logchem, supra note 15, pp. 215-220.

3 Applying International Investment Law to Disputed Maritime Zones: A Case Study of the Falklands (Malvinas) Marco Benatar*

Abstract This contribution explores whether and how international law applies to disputed maritime zones by examining the Falklands (Malvinas) dispute between the UK and Argentina as a case study. After briefly outlining some of the maritime aspects of the bilateral dispute, the article assesses whether a bilateral investment treaty between Argentina/the UK and the investor’s home State would cover investments located in the maritime areas adjacent to the Islands. In studying this issue, attention will be paid to, inter alia, the scope of treaties ratione loci, State practice in relation to overseas territories, the application of treaties to activities in the exclusive economic zone and the continental shelf, and select challenges that could arise in the context of investor-State arbitration.

1

Introduction

The exploration and exploitation of resources in contested maritime zones are activities regulated first and foremost by the law of the sea. States parties to the United Nations Convention on the Law of the Sea (UNCLOS) have agreed to a set of obligations designed to foster cooperation while curtailing harmful unilateral action.1 The implications

*

1

Research Fellow, Department of International Law and Dispute Resolution, Max Planck Institute Luxembourg for Procedural Law; Researcher, Department of International and European Law, Faculty of Law and Criminology, Vrije Universiteit Brussel. The author would like to thank Tamar Meshel for her comments. Arts. 74(3) and 83(3) United Nations Convention on the Law of the Sea, 10 December 1982, , visited on 1 May 2017 (applicable to the exclusive economic zone and continental shelf respectively).

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 65-93.

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of these duties have been detailed in case law2 and scholarship.3 As significant as the law of the sea may be, however, it does not address all questions of relevance to disputed maritime zones. Given the right factual circumstances, other fields of international law can also have bearing on activities touching upon rival maritime claims. In an effort to illustrate the pertinence of other legal regimes, this contribution will take a closer look at international investment law4 and how it could apply to the Falkland Islands (Malvinas). In this hypothetical scenario, a foreign company has obtained a license from the UK or Argentina to explore and/or exploit hydrocarbons in the maritime areas surrounding the contested Islands. This paper is structured as follows. After briefly outlining some of the maritime aspects of the bilateral dispute, the article will assess whether a bilateral investment treaty (BIT) between Argentina/the UK and the investor’s home State would cover investments located in the maritime zones adjacent to the Falklands (Malvinas). In tackling this problem, the contribution will consider, inter alia, the scope of treaties ratione loci, State practice in relation to overseas territories, the application of treaties to activities in the exclusive economic zone (EEZ) and the continental shelf, and select challenges that could arise in the context of investor-State arbitration.

2 3

4

See e.g., Guyana v. Suriname, 17 September 2007, Award, 30 U.N.R.I.A.A. 1, paras. 459-486. See e.g., Y. van Logchem, ‘The Scope for Unilateralism in Disputed Maritime Areas’, in C. Schofield, S. Lee and M.-S. Kwon (eds.), The Limits of Maritime Jurisdiction (Martinus Nijhoff, Leiden, 2014) pp. 175-195; E. Milano and I. Papanicolopulu, ‘State Responsibility in Disputed Areas on Land and at Sea’, 71:3 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (2011) pp. 608-632. The relationship between disputed maritime zones and international investment law has received little academic attention to date; nonetheless, there are some noteworthy exceptions see e.g., S. Trevisanut, ‘Foreign Investments in the Offshore Energy Industry: Investment Protection v. Energy Security v. Protection of the Marine Environment’, in T. Treves, F. Seatzu and S. Trevisanut (eds.), Foreign Investment, International Law and Common Concerns (Routledge, Abingdon, 2014) pp. 247-264; S. Bhatty and N. Lamprou, ‘Pitfalls of Investing in SubSaharan African Regions with Unsettled Boundaries: How Foreign Investors May Minimize and Manage Investment Risk’, 13:4 Transnational Dispute Management (2016) pp. 1-22.

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The Maritime Dimension of the Falklands (Malvinas) Dispute

While the Falklands (Malvinas) are mostly known for playing centre stage in a land sovereignty dispute between Argentina and the UK, there is also a significant maritime dimension to the territorial spat. In keeping with the longstanding maxim la terre domine la mer, a State’s coast generates maritime zones.5 This principle applies likewise to islands, meaning that ownership over the Falklands (Malvinas) will give rise to maritime entitlements over adjacent ocean space.6 Under Article 121 of UNCLOS, to which Argentina and the UK are States parties,7 islands 5

6

7

See e.g., Grisbådarna Case (Norway v. Sweden), 23 October 1909, Award, 11 U.N.R.I.A.A. 147, pp. 159-160; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), 8 October 2007, ICJ, Judgment, I.C.J. Reports 2007, para. 113; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), 14 March 2012, ITLOS, Judgment, I.T.L.O.S. Reports 2012, para. 185. The Argentina-UK dispute can be qualified as a ‘mixed’ dispute, combining underlying sovereignty claims (and thus the validity of maritime entitlements) with, at least from the UK’s perspective, overlap resulting from projections from the Argentine mainland and the Falklands (Malvinas). See British Institute of International and Comparative Law, Report on the Obligations of States under Articles 74(3) and 83(3) of UNCLOS in respect of Undelimited Maritime Areas (BIICL, London, 2016) pp. 33-35, 115-116. For a cartographic representation, see IBRU, Claims and Potential Claims to Maritime Jurisdiction in the South Atlantic and Southern Oceans by Argentina and the UK, 2010, , visited on 1 May 2017. See also V. Prescott and C. Schofield, The Maritime Political Boundaries of the World (2nd ed., Martinus Nijhoff, Leiden, 2005) pp. 54, 188, 333. Argentina ratified UNCLOS on 1 December 1995. Upon signature and ratification of the Convention, the Argentine Government made declarations reaffirming its rights over the Islands and their maritime zones. The UK acceded to the Convention on 25 July 1997. In a similar fashion, the British Government issued a written statement extending its accession to UNCLOS to the Falklands (Malvinas). These declarations can be consulted at United Nations Treaty Series (UNTS), ‘Multilateral Treaties Deposited with the Secretary-General: Chapter XXI.6: United Nations Convention on the Law of the Sea’, , visited on 1 May 2017. On 22 August 1994, the Constitutional Assembly approved a set of amendments to the Argentine Constitution, the first of which reads as follows: “The Argentine Nation ratifies its legitimate and non-prescribing sovereignty over the Malvinas, Georgias del Sur and Sandwich del Sur Islands and over the corresponding maritime and insular zones, as they are an integral part of

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fall into one of two classes: (1) islands proper, or (2) rocks which cannot sustain human habitation or economic life of their own. The parties to the dispute treat the Falklands (Malvinas) as belonging to the first category, which pursuant to paragraph 2 of that same provision, is entitled to a territorial sea, contiguous zone, exclusive economic zone (EEZ), and continental shelf. The rights enjoyed by the coastal State in these different maritime zones vary considerably. State sovereignty extends to the territorial sea, the airspace above it, as well as its bed and subsoil.8 The contiguous zone is an area where the coastal State may exercise the control necessary to prevent and punish infringement of its customs, fiscal, immigration or sanitary laws and regulations.9 In addition, the coastal State exercises sovereign rights and jurisdiction over the continental shelf and the EEZ for the purpose of, among other things, exploring and exploiting natural resources.10 These rights have not gone unnoticed by the UK and Argentina in regard to the Falklands (Malvinas) areas of maritime jurisdiction.11 The UK for its part has passed various regulations that are specific to the Islands and concern maritime limits, fisheries and other issues.12 Ar-

8

9 10 11

12

the National territory” (emphasis added). See Constitution of the Argentine Nation, , visited on 1 May 2017. Art. 2 UNCLOS, supra note 1; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986, ICJ, Merits, Judgment, I.C.J. Reports 1986, para. 212. Art. 33 UNCLOS, supra note 1. Parts V and VI UNCLOS, supra note 1. See generally P.H. Armstrong and V.L. Forbes, ‘The Falkland Islands and their Adjacent Maritime Area’, 2:3 IBRU Maritime Briefings (1997) pp. 1-43; P.H. Armstrong and V.L. Forbes, ‘The Maritime Limits of the Falkland Islands’, 1:1 IBRU Boundary and Security Bulletin (1993) pp. 73-80; S. Kopela, Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff, Leiden, 2013) pp. 122-124; A.J. McHardy, The Falkland Islands Conservation Zones (Centre for Petroleum and Mineral Law and Policy (University of Dundee), Dundee, 1994); C.R. Symmons, ‘The Maritime Zones around the Falkland Islands’, 37:2 International and Comparative Law Quarterly (1988) pp. 283-324. Relevant UK legislation includes: Declaration on the Conservation of Fish Stocks and on Maritime Jurisdiction around the Falkland Islands, 29 October 1986, 9 Law of the Sea Bulletin (1987) p. 18; Proclamation No. 4 on Interim Fishery Conservation and Management Zone, 29 October 1986, 9 Law of the Sea Bulletin (1987) p. 19; The Fisheries (Conservation and Management) Ordinance, 1986, 9 Law of the Sea Bulletin (1987) pp. 20-35; The Falkland Islands (Territorial Sea) Order, 1 November

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gentina’s Act No. 23.968, which sets out the maritime zones of the Argentine Republic, contains an annex defining the baselines from which to measure said zones. The annex specifically includes the baselines of the ‘Malvinas Islands’.13 Another outstanding issue concerns the submissions by both parties to the Commission on the Limits of the Continental Shelf (CLCS).14 The disagreement over the potential rights and

13

14

1989, 1993 Statutory Instruments (1989); Falkland Islands Continental Shelf Proclamation and Continental Shelf Ordinance, 22 November 1991, 7:2 International Journal of Estuarine and Coastal Law (1992) pp. 135-141; Proclamation extending the Falkland Islands Outer Conservation Zone, 22 August 1994, 27 Law of the Sea Bulletin (1995) pp. 79-80. For a cartographic representation, see UKHO Law of the Sea, Maritime Limits of the Falkland Islands, 2014, , visited on 1 May 2017. Act No. 23.968, 14 August 1991, , visited on 1 May 2017. See S.S. González Napolitano, ‘Introducción al derecho del mar’, in S.S. González Napolitano (ed.), Lecciones de derecho internacional público (Errepar, Buenos Aires, 2015) pp. 561-562. For the UK’s relevant CLCS submission and exchanges between the UK and Argentina, see United Kingdom, Submission to the Commission on the Limits of the Continental Shelf in respect of the Falkland Islands, and of South Georgia and the South Sandwich Islands, 11 May 2009, , visited on 1 May 2017; Argentina, Note N.U. No. 290/09/600, 20 August 2009, , visited on 1 May 2017; Statement by the Chairperson of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission – Twenty-Fifth Session (UN Doc. CLCS/66), 30 April 2010, para. 58. For Argentina’s relevant CLCS submission, exchanges between Argentina and the UK and the summary of the CLCS’ Recommendations, see Argentina, Submission to the Commission on the Limits of the Continental Shelf, 21 April 2009, , visited on 1 May 2017; United Kingdom, Note No. 84/09, 6 August 2009, , visited on 1 May 2017; Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the Progress of Work in the Commission - Twenty-Fourth Session (UN Doc. CLCS/64), 1 October 2009, para. 74; United Kingdom, Note No. 273/12, 23 August 2012, , visited on 1 May 2017; CLCS, Summary of Recommendations in Regard to the Submission Made by Argentina on 21 April 2009, 11 March 2016, , visited on 1 May 2017.

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interests of the inhabitants of the Islands, which feature on the UN’s list of non-self-governing territories,15 should be mentioned for its maritime component. At the conclusion of the Third United Nations Conference on the Law of the Sea, where UNCLOS came to fruition, a Final Act was adopted as well as several resolutions. Resolution III states that “provisions concerning rights and interests under the Convention shall be implemented for the benefit of the people of the territory with a view to promoting their well-being and development”.16 Upon signing and ratifying the Convention, Argentina made declarations contesting the legal status of Resolution III and its applicability to the Islands.17 In the years following the resumption of diplomatic relations between Argentina and the UK, which were broken off as a result of the 1982 War, bilateral initiatives have led to co-operation on the Falklands (Malvinas), acting under a sovereignty umbrella that safeguards the parties’ respective territorial claims.18 The areas of activity have been manifold, ranging from military affairs to fisheries conservation and the renewal of commercial flights.19 Of particular relevance to the present analysis are the efforts that have been made to manage the Islands’ non-living resources.20 A milestone was reached in 1995 with the Joint Declaration 15

16 17 18

19

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United Nations, ‘Non-Self-Governing Territories: Falkland Islands (Malvinas)’, , visited on 1 May 2017. Resolution III in Annex I to the Final Act of the Third United Nations Conference on the Law of the Sea, 10 December 1982, 1835 U.N.T.S. 289. UNTS, supra note 7. Argentina-UK Joint Statement on Relations and a Formula on Sovereignty with regard to Falkland Islands, South Georgia and South Sandwich Islands, 19 October 1989, 29:5 International Legal Materials (1990) pp. 1293-1294, para. 2. See also V. Becker-Weinberg, ‘Recalling the Falkland Islands (Malvinas) Sovereignty Formula’, 27 Ocean Yearbook (2013) pp. 411-433. See e.g., Argentina-UK Joint Statement on Confidence-Building Measures, Including an Information and Consultation System and Safety Measures for Air and Maritime Navigation, 15 February 1990, 29:5 International Legal Materials (1990) pp. 1298-1304; Argentina-UK Joint Statement on the Conservation of Fisheries, 28 November 1990, 6:2 International Journal of Estuarine and Coastal Law (1991) pp. 146-150; Argentina-UK Joint Statement, 14 July 1999, , visited on 1 May 2017; G.A. Bisbal, ‘Fisheries Management on the Patagonian Shelf: A Decade After the 1982 Falklands/Malvinas Conflict’, 17:3 Marine Policy (1993) pp. 213-229. On hydrocarbon exploration around the Falklands (Malvinas), see P.H. Armstrong, ‘Falklands Oil’, 2:2 IBRU Boundary and Security Bulletin (1994) pp. 58-62;

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on Cooperation over Offshore Activities in the South West Atlantic.21 The parties adopted this instrument so as to encourage the exploration and exploitation of oil and gas in the maritime zones of the Islands. The Declaration announces the establishment of a Commission tasked with furthering cooperation through the formulation of recommendations, the coordination of activities, and the promotion of hydrocarbon development. It even carves out a Special Area for collaborative activities of which the geographical coordinates are defined in an annex to the Declaration. After suspending certain practical arrangements in 2003, Argentina withdrew from the Declaration in 2007. Over the past years, the ‘Falkland Islands Government’ has awarded production licences to companies, based in the UK and elsewhere, within the so-called ‘Falkland Islands Designated Area’.22 In response, Argentine authorities have taken action against some of these businesses pursuant to domestic administrative and criminal law for their activities in disputed areas of the continental shelf.23 The development of hydrocarbons has recently returned to the limelight in bilateral talks between Argentina and the UK. On 13 September 2016, a Joint Communiqué was issued covering a wide range of subject

21

22

23

P.H. Armstrong, ‘Falkland Islands Hydrocarbon Exploration’, 2:4 IBRU Boundary and Security Bulletin (1995) pp. 90-93; A.R. Luppi, ‘La búsqueda de hidrocarburos costa afuera de las Islas Malvinas’, in J.A. Lanús (ed.), Repensando Malvinas: una causa nacional (Editorial El Ateneo, Buenos Aires, 2015) pp. 438-489; A. Ruzza, ‘The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?’, 3:1 Goettingen Journal of International Law (2011) pp. 71-99. Argentina-UK Joint Declaration on Cooperation over Offshore Activities in the South West Atlantic, 27 September 1995, 35:2 International Legal Materials (1996) pp. 304-308. See also R.R. Churchill, ‘Falkland Islands-Maritime Jurisdiction and Co-Operative Arrangements with Argentina’, 46:2 International and Comparative Law Quarterly (1997) pp. 468-471. Becker-Weinberg, supra note 18, pp. 416-417; M. Waibel, ‘Falkland Islands/Islas Malvinas’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2011), paras. 17, 21, , visited on 1 May 2017; Falkland Islands Government, ‘Department of Mineral Resources’, , visited on 1 May 2017. J.E. Figueroa, ‘La cuestión de las Islas Malvinas: Desafíos y potencialidades a partir de una visión integral actual del Atlántico Sur’, 24 Anuario Argentino de Derecho Internacional (2015) pp. 150-155; N. Blackaby and B. Juratowitch, ‘Hydrocarbons in Disputed Areas’, 44:4 International Law News (2015), , visited on 1 May 2017.

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matters. On the topic of the South Atlantic, the Communiqué opens with the following paragraph: In a positive spirit, both sides agreed to set up a dialogue to improve cooperation on South Atlantic issues of mutual interest. Both governments agreed that the formula on sovereignty in paragraph 2 of the Joint Statement of 19 October 1989 applies to this Joint Communique and to its consequences. In this context it was agreed to take the appropriate measures to remove all obstacles limiting the economic growth and sustainable development of the Falkland Islands, including in trade, fishing, shipping and hydrocarbons. Both parties emphasised the benefits of cooperation and positive engagement for all concerned.24 At the time of writing it remains to be seen how the parties’ above-stated desire to jointly develop the Islands’ oil industry will be implemented. In the interim, the unilateral granting of licenses to foreign companies to explore and/or extract hydrocarbons off the coast of the Falklands (Malvinas), whether by Argentina or the UK, lies within the realm of possibility. In such circumstances, international investment law may be called upon to govern the relationship between the host State and the foreign investor. The remainder of this piece will be devoted to this very topic. The article will offer reflections on two questions that are central to the application of international investment law in disputed maritime zones: 1) does a BIT between Argentina/the UK and a foreign investor’s home State apply ratione loci to hydrocarbon activities in the maritime areas of the Falklands (Malvinas); and 2) if so, would there be any particular hurdles to bringing investment claims arising from such activities before an arbitral tribunal?25 24

25

UK and Argentina Joint Communiqué, 13 September 2016, point 10, , visited on 1 May 2017 (emphasis added). Energy investments have engendered a host of international legal challenges that would far exceed the scope of this study. See e.g., P.D. Cameron, International Energy Investment Law: The Pursuit of Stability (Oxford University Press, Oxford, 2010); E. De Brabandere and T. Gazzini (eds.), Foreign Investment in the Energy Sector: Balancing Private and Public Interests (Martinus Nijhoff, Leiden, 2014); A. Sabater and M. Stadnyk, ‘International Arbitration and Energy: How Energy Disputes Shaped International Investment Dispute Resolution’, in K. Ta-

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The Territorial Scope of BITs

Exploring the territorial nexus between investments situated in contested maritime areas and the host State is inextricably linked with the notion of territory and its spatial extent. International law treats territory as “that defined portion of the globe which is subjected to the sovereignty of a state … The importance of state territory is that it is the space within which the state exercises its supreme, and normally exclusive, authority”.26 It comprises the land, subsoil, and internal waters (e.g., lakes and rivers), as well as the airspace above the land, internal waters, and territorial sea.27 The territorial sea itself also forms part and parcel of the coastal State’s territory, whereas areas of maritime jurisdiction further seaward do not.28 The territorial scope of treaties is regulated in Article 29 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which provides that “[u]nless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory”.29 A textual reading of this provision suggests that absent an

26 27 28

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lus (ed.), Research Handbook on International Energy Law (Edward Elgar, Cheltenham, 2014) pp. 199-224. R. Jennings and A. Watts (eds.), Oppenheim’s International Law: Volume 1 Peace (9th ed., Oxford University Press, Oxford, 2008) pp. 563-564. The territory of archipelagic States can also include archipelagic waters. Neither Argentina nor the UK are archipelagic States. The ‘sovereign rights’ notion associated with the EEZ and the continental shelf could nonetheless be viewed as an “extract of the broader concept of sovereignty”. A. Proelß, ‘Article 56. Rights, Jurisdiction and Duties of the Coastal State in the Exclusive Economic Zone’, in A. Proelß (ed.), The United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck/Hart/Nomos, Munich/Oxford/ Baden-Baden, 2017) p. 424. See also A.R. Maggio, ‘Article 77. Rights of the Coastal State over the Continental Shelf’, in A. Proelß (ed.), The United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck/Hart/Nomos, Munich/Oxford/Baden-Baden, 2017) pp. 605-606. Vienna Convention on the Law of Treaties, 23 May 1969, , visited on 1 May 2017. Argentina and the UK ratified the VCLT on 5 December 1972 and 25 June 1971 respectively. UNTS, ‘Multilateral Treaties Deposited with the Secretary-General: Chapter XXIII.1: Vienna Convention on the Law of Treaties (1969)’, , visited on 1 May 2017. On Art. 29 VCLT, see generally S. Karagiannis, ‘Article 29 Convention of 1969’, in O. Corten

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intention to circumvent the basic principle, the scope ratione loci of a treaty will extend to the territorial sea, but not to the EEZ or continental shelf of a State.30 The flexibility permitted under Article 29 is plain to see in the numerous provisions placing territorial limitations on the scope of treaties. Many of these provisions were designed with metropolitan States in mind. On occasion, the latter group has sought to prevent treaties from applying to their far-flung non-metropolitan territories or territories for whose international relations they are responsible. Several techniques have been devised to accommodate these policies.31 There are provisions for optional extension of territorial application as well as clauses

30

31

and P. Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary (vol. I, Oxford University Press, Oxford, 2011) pp. 731-758. See also Sanum Investments Ltd v. Lao People’s Democratic Republic, 13 December 2013, Award on Jurisdiction, PCA Case No. 2013-13, para. 220, , visited on 1 May 2017 (an investment tribunal noting that Art. 29 VCLT reflects a rule of customary international law). A. Aust, Modern Treaty Law and Practice (3rd ed., Cambridge University Press, Cambridge, 2013) p. 178. For a more equivocal stance, see S. Karagiannis, ‘The Territorial Application of Treaties’, in D.B. Hollis (ed.), The Oxford Guide to Treaties (Oxford University Press, Oxford, 2012) pp. 317-318. As for the travaux préparatoires, the International Law Commission’s (ILC) commentary to its final Draft Articles (which were later considered by the Vienna Conference on the Law of Treaties) explains that the notion of ‘entire territory’ embraces “all the land and appurtenant territorial waters and air space which constitute the territory of the State” (‘Reports of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session’, II Yearbook of the International Law Commission (1966) p. 213). The concept of ‘appurtenant territorial waters’ is not known to contemporary international law. Scholars have construed this passage as referring to internal waters and the territorial sea. See K. Odendahl, ‘Article 29. Territorial Scope of Treaties’, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties: A Commentary (Springer, Heidelberg, 2012) pp. 496-497. P. Lampué, ‘L’application des traités dans les territoires et départements d’outremer’, 6 Annuaire français de droit international (1960) pp. 910-916; Y.-L. Liang, ‘Colonial Clauses and Federal Clauses in United Nations Multilateral Instruments’, 45:1 American Journal of International Law (1951) p. 108. It should be noted that the status of overseas territories under domestic law and relevant treaty practice can vary considerably from one State to the next. See G. Novak, ‘Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2013), , visited on 1 May 2017.

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for optional territorial exclusion. Other provisions take into account the domestic legal requirement (where applicable) that the prior consent of the non-metropolitan territory must be secured. Conversely, some treaties expressly apply to all territories. To modern eyes these problems might seem antiquated in light of the wave of decolonisation and the concomitant independence of former territories. Although these developments have indeed reduced the need for such drafting techniques, they do retain their relevance for certain States.32 The UK’s relationship with the British Overseas Territories, of which the ‘Falkland Islands’ is but one example, is a case in point.33 Territorial clauses are no longer a common feature of contemporary treaty-making. In fact, most treaties nowadays lack a provision to that effect. How does this impact metropolitan States? One could argue that the silence of the treaty leads to the activation of the basic principle of Article 29 of VCLT. Accordingly, the State would be bound in respect of its entire territory, including the non-metropolitan territories. In the absence of a territorial clause, the UK has consistently followed a practice since 1967 whereby its instrument of ratification34 specifies to which, if any, of its overseas territories the treaty will be extended.35 Other metropolitan States, principally the Netherlands, Denmark and New Zealand, share practices similar to that of the UK.36 A number of commentators have held that the longstanding practice is consonant with Article 29 as it ‘otherwise establishes’ the intent to deviate from the ‘entire territory’ rule and is not contested by other States and international organisations.37 Taking a different tack as far as territorial 32 33 34 35 36

37

UN, Final Clauses of Multilateral Treaties Handbook (UN, New York, 2003) pp. 7883. For an early account, see J.E.S. Fawcett, ‘Treaty Relations of British Overseas Territories’, 26 British Yearbook of International Law (1949) pp. 86-107. Or any other means through which consent to be bound by a treaty is given. I. Hendry and S. Dickson, British Overseas Territories Law (Hart, Oxford, 2011) pp. 255-256; Aust, supra note 30, pp. 182-183. In recent times, the People’s Republic of China has also developed a comparable approach with respect to Hong Kong and Macau. P.T.B. Kohona, ‘Some Notable Developments in the Practice of the UN Secretary-General as Depositary of Multilateral Treaties: Reservations and Declarations’, 99:2 American Journal of International Law (2005) pp. 445-447. Hendry and Dickson, supra note 35, pp. 255-256; Aust, supra note 30, pp. 182-184. See also M.E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, Leiden, 2009) p. 392.

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exclusion is concerned, the ILC’s Special Rapporteur on Reservations to Treaties asserted in his Third Report that the practice is tantamount to a reservation.38 Ultimately, the resulting Guide to Practice on Reservations to Treaties, adopted by the ILC, did not follow suit: “[i]n principle, [declarations that purport to exclude the application of a treaty as a whole to a particular territory] are not reservations in the sense of the Vienna Convention”.39 Reference should be made to British declarations extending treaties to the ‘Falkland Islands’, ‘South Georgia’ and the ‘South Sandwich Islands’, and the ‘British Antarctic Territory’. Frequently these territorial extensions are met with objections from Argentina, owing to the competing sovereignty claims, inviting rejoinders from the UK.40 Having laid out the relevant considerations of general treaty law, it seems fitting at this juncture to zoom in on BITs. Considered by many to form the backbone of international investment law, bilateral investment treaties can be described as “reciprocal legal agreement[s] concluded between two sovereign States for the promotion and protection of investments by investors of the one State (‘home State’) in the terri-

38

39

40

‘Report of the International Law Commission on the Work of its Fiftieth Session (20 April-12 June and 27 July-14 August 1998)’, II:2 Yearbook of the International Law Commission (1998) pp. 93, 104-105; F. Coulée, ‘Collectivités territoriales non étatiques et champ d’application des traités internationaux’, in Société française pour le droit international (ed.), Les collectivités territoriales non étatiques dans le système juridique international (Pedone, Paris, 2002) pp. 120-123. This quote is taken from the commentary to Guideline 1.1.3 (Reservations relating to the territorial application of the treaty) of the Guide to Practice, which reads as follows: “A unilateral statement by which a State purports to exclude the application of some provisions of a treaty, or of the treaty as a whole with respect to certain specific aspects, to a territory to which they would be applicable in the absence of such a statement constitutes a reservation”. UN, Report of the International Law Commission: Sixty-Third Session (26 April-3 June and 4 July-12 August 2011) (UN Doc. A/66/10/Add.1), 2011, pp. 48-51. For a general overview of the controversies surrounding the application of treaties without explicit territorial clauses to overseas territories, see M. Milanovic, ‘The Spatial Dimension: Treaties and Territory’, in C.J. Tams, A. Tzanakopoulos and A. Zimmermann (eds.), Research Handbook on the Law of Treaties (Edward Elgar, Cheltenham, 2014) pp. 209-218. See UN, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (UN Doc. ST/LEG/7/Rev.1), 1994, p. 54, para. 183.

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tory of the other State (‘host State’)”.41 As BITs tend to be negotiated on the basis of similar models they largely cover the same content.42 These instruments typically contain provisions defining the notion of investment, substantive protections of foreign investors (e.g., from expropriation) and dispute settlement clauses (usually providing for investorState as well as State-to-State arbitration).43 The territorial condition of BITs is usually nested within the provisions defining the notion of investment within the meaning of the treaty. Generally, the instrument covers investments made ‘in the territory’ of one of the parties to the agreement.44 BIT practice on the geographical scope of application shows a marked trend toward the inclusion of the EEZ and/or continental shelf in the definition of ‘territory’.45 In so doing, the contracting parties seek to cover investments such as extraction facilities and mineral exploration

41

42

43 44

45

M. Jacob, ‘Investments, Bilateral Treaties’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2014), para. 1, , visited on 1 May 2017. C. Brown, ‘The Evolution of the Regime of International Investment Agreements: History, Economics and Politics’, in M. Bungenberg, J. Griebel, S. Hobe and A. Reinisch (eds.), International Investment Law (C.H. Beck/Hart/Nomos, Munich/ Oxford/Baden-Baden, 2015) p. 182. A. de Nanteuil, Droit international de l’investissement (2nd ed., Pedone, Paris, 2017) p. 47. C. Knahr, ‘Investments ‘in the Territory’ of the Host State’, in C. Binder, U. Kriebaum, A. Reinisch and S. Wittich (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford University Press, Oxford, 2009) p. 42. See also A. Reinisch, ‘Investment Disputes and Their Boundaries’, in Société française pour le droit international (ed.), Droit des frontières internationales – The Law of International Borders (Pedone, Paris, 2016) pp. 208-210. The related but distinct issue of the jurisdiction ratione loci of investment tribunals is not discussed in this contribution. See M. Waibel, ‘Investment Arbitration: Jurisdiction and Admissibility’, in Bungenberg, Griebel, Hobe and Reinisch, supra note 42, pp. 1248-1250. United Nations Conference on Trade and Development (UNCTAD), Bilateral Investment Treaties 1995-2006: Trends in Investment Rulemaking (UNCTAD/ITE/ IIT/2006/5) pp. 17-18. There are nonetheless BITs that do not define the term ‘territory’, see e.g., Agreement between the Government of the Republic of Austria and the Government of the Arab Republic of Egypt for the Promotion and Protection of Investments, 12 April 2001, , visited on 1 May 2017.

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located within the host State’s maritime jurisdiction.46 Examples of maritime extension can also be found in BITs concluded between coastal nations and landlocked States.47 Different formulas can be identified when it comes to the inclusion of maritime areas beyond the territorial sea.48 Certain BITs expressly list the maritime zones with respect to which the parties exercise sovereign rights or jurisdiction,49 whereas others refer to rights enjoyed under international law for the purposes of exploration and exploitation of natural resources.50 Another group of instruments opt for more general wording, merely making reference to areas where the contracting parties exercise ‘jurisdiction’ without further specification.51 Then there are BITs that provide an even more comprehensive definition of ‘territory’, encompassing the air space and artificial islands, installations and structures in the EEZ or on the continental shelf.52 British BIT practice is best understood through the most recent version of the UK Model BIT published in 2008.53 Article 1(e)(i) stipulates that “territory” of the UK means “Great Britain and Northern Ireland, including the territorial sea and maritime area situated beyond the territorial sea of the United Kingdom which has been or might in the 46 47 48 49

50

51

52

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UNCTAD, Scope and Definition (UNCTAD/ITE/IIT/11 (vol. II)) p. 44; UNCTAD, Scope and Definition: A Sequel (UNCTAD/DIAE/IA/2010/2) p. 100. R. Dolzer and M. Stevens, Bilateral Investment Treaties (Martinus Nijhoff, The Hague, 1995) p. 44. UNCTAD, supra note 45, pp. 18-19. See e.g., Art. 1 f (i) and (ii) Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments, 26 February 1999, , visited on 1 May 2017. See e.g., Art. 1.4 Agreement between the Government of the Republic of Korea and the Government of the Republic of Tajikistan on the Promotion and Protection of Investment, 14 July 1995, , visited on 1 May 2017. See e.g., Art. 1.4 Agreement between the Government of the Kingdom of Thailand and the Government of the Arab Republic of Egypt for the Promotion and Protection of Investments, 18 February 2000, , visited on 1 May 2017. See e.g., Art. 1 Canada 2004 Model BIT, , visited on 1 May 2017. See also Arts. 60 and 80 UNCLOS, supra note 1. UK 2008 Model BIT, , visited on 1 May 2017.

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future be designated under the national law of the United Kingdom in accordance with international law as an area within which the United Kingdom may exercise rights with regard to the sea-bed and subsoil and the natural resources and any territory to which this Agreement is extended in accordance with the provisions of Article 12”. Although early UK BITs contained rather restrictive territorial definitions, the past two and a half decades have seen the UK include the above formulation in investment agreements fairly consistently.54 Territorial extension55 is addressed in Article 13 of the Model BIT: “At the time of [signature] [entry into force] [ratification] of this Agreement, or at any time thereafter, the provisions of this Agreement may be extended to such territories for whose international relations the Government of the United Kingdom are responsible as may be agreed between the Contracting Parties in an Exchange of Notes”. The “territories” envisioned in this provision are the Crown Dependencies and the Overseas Territories. The wording of Article 13 implies that extension to such territories cannot occur without the consent of the other contracting party. The vast majority of BITs concluded by the UK contain territorial extension clauses that furthermore do not limit the territories to which the extension can be made,56 and they have been extended to most of the Overseas Territories, including the ‘Falkland Islands’.57 As for investment agreements to which Argentina is a party, its BIT with the United States, for instance, yields interesting insights. Pursuant to the terms of this instrument, “territory” means “the territory of the United States or the Argentine Republic, including the territorial 54 55

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C. Brown and A. Sheppard, ‘United Kingdom’, in C. Brown (ed.), Commentaries on Selected Model Investment Treaties (Oxford University Press, Oxford, 2013) p. 718. See generally UK Foreign and Commonwealth Office, Guidelines on Extension of Treaties to Overseas Territories, 19 March 2013, , visited on 1 May 2017. Brown and Sheppard, supra note 54, p. 752. Territorial extensions have at times complicated treaty negotiations, see e.g., E. Denza and S. Brooks, ‘Investment Protection Treaties: United Kingdom Experience’, 36:4 International and Comparative Law Quarterly (1987) pp. 916, 918 (on Hong Kong and the UK-China Agreement). Waibel, supra note 44, p. 1250. On territorial expansion provisions in BITs generally, see O.G. Repousis, ‘The Application of Investment Treaties to Overseas Territories and the Uncertain Provisional Application of the Energy Charter Treaty to Gibraltar’, 32:1 ICSID Review (2017) pp. 174-178.

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sea established in accordance with international law as reflected in the 1982 United Nations Convention on the Law of the Sea. This Treaty also applies in the seas and seabed adjacent to the territorial sea in which the United States or the Argentine Republic has sovereign rights or jurisdiction in accordance with international law as reflected in the 1982 United Nations Convention on the Law of the Sea”.58 The reference to UNCLOS is noteworthy as the US is not a State party to the Convention.59 The expression “as reflected” attests to the customary nature of the relevant UNCLOS provisions. Finally, we turn to the Argentina-UK BIT, which is couched in language near identical to the British Model BIT with respect to its territorial scope and the territorial extension clause.60

4

Applying BITs to the Disputed Maritime Zones of the Falklands (Malvinas)

4.1 BITs and Territorial Uncertainty The overview presented above shows that (1) BITs tend to cover investments located in the territorial sea, EEZ and continental shelf and (2) overall, BITs entered into by Argentina and the UK are not outliers in this regard. Let us now return to the hypothetical scenario of hydrocarbon activities in the maritime areas surrounding the Falklands (Malvinas). Assuming arguendo that the relevant BIT between the host State (Argentina/UK) and the home State of the foreign investor conforms to this trend and, in the case of the UK, that the territorial extension to the Islands has been made, we are faced with an important quandary: does

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Art. I.1(f) Treaty between the United States of America and the Argentine Republic concerning the Reciprocal Encouragement and Protection of Investment, 14 November 1991, , visited on 1 May 2017. On the US’ position vis-à-vis UNCLOS and efforts to achieve accession, see J.E. Noyes, ‘The Law of the Sea Convention and the United States of America’, 47:1 Revue belge de droit international (2014) pp. 15-44. Arts. 1 (d) and 12 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Argentina for the Promotion and Protection of Investments, 11 December 1990, , visited on 1 May 2017.

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the contested status of the maritime areas surrounding the Falklands (Malvinas) impact the applicability of the investment agreement? The existence of unsettled territorial disputes appears to have been factored into the drafting of some BITs.61 Take for instance a few of the BITs to which Georgia is a party, which define Georgian territory as “recognized by the international community”.62 It is likely that the choice of wording is influenced by the secessionist conflict over South Ossetia and Abkhazia.63 Another case in point is the Mauritius-Switzerland BIT, which provides that territory in respect of Mauritius means “all the territories and islands which, in accordance with the laws of Mauritius, constitute the State of Mauritius …”.64 The referral to domestic law is possibly connected to the ongoing sovereignty disputes concerning the Chagos Archipelago (administered by the UK as the ‘British Indian Ocean Territory’) and Tromelin Island (administered by France as part of the ‘French Southern and Antarctic Lands’).65 The Japan-Peru BIT offers another illuminating illustration albeit unrelated to a territo61

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T.D. Grant, ‘International Dispute Settlement in Response to an Unlawful Seizure of Territory: Three Mechanisms’, 16:1 Chicago Journal of International Law (2015) pp. 28-30, 32-33 (citing the examples reproduced in this paragraph). Art. 1.4(b) Agreement between the Government of Georgia and the Government of the Republic of Latvia for the Promotion and Reciprocal Protection of Investments, 5 October 2005, , visited on 1 May 2017; Art. 1.6(b) Agreement between the Government of Georgia and the Government of the State of Kuwait for the Promotion and Reciprocal Protection of Investments, 13 October 2009, , visited on 1 May 2017. See M. Paparinskis, ‘Latvia’, in Brown, supra note 54, p. 441. For an account of some of the relevant facts of the dispute, see Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), 1 April 2011, ICJ, Preliminary Objections, I.C.J. Reports 2011, p. 70. Art. 1.4(b)(i) Agreement between the Swiss Confederation and the Republic of Mauritius concerning the Promotion and Reciprocal Protection of Investments, 26 November 1998, , visited on 1 May 2017. See M. Schmid, ‘Switzerland’, in Brown, supra note 54, p. 666. Under its Constitution, Mauritius’ territory includes these insular features. Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), 18 March 2015, Award, Permanent Court of Arbitration (PCA) Case No. 2011-03, , visited on 1 May 2017, para. 54.

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rial dispute. The definition of Japan’s “Area” mentions the EEZ and the continental shelf, yet the description of Peru’s “Area” is generic, simply referring to “the maritime zones”.66 This differentiation, which is out of step with other investment agreements negotiated by Japan in the same period, is due to Peru’s excessive claim to a 200-nautical-mile territorial sea.67 Conversely, the problem is not directly taken up in Argentine and British investment agreements, prompting an examination of the general terms used in these instruments. The territorial scope provisions of the UK Model and Argentina-US BITs, cited above, have a notable commonality. Both cover investments situated in the host State’s maritime zones as designated “in accordance with international law”. Scholars commenting on BITs with similar references to international law note that they are intended to rein in exorbitant assertions of maritime jurisdiction.68 Could this wording be interpreted such that contested ocean spaces fall outside the territorial remit of the otherwise applicable BIT? At the present, it would be useful to recall that different categories of disputed maritime areas exist. For instance, many undelimited waters are the result of overlapping projections from States whose territory is not in doubt. Other disagreements, by way of example, relate to the breadth of an area of maritime jurisdiction proclaimed by a coastal State or the rights it purports to exercise within that zone. The clash over the Falklands (Malvinas) however is essentially a sovereignty dispute of which the maritime dimension is a derivation. For the latter class of dispute, the “in accordance with international law” proviso might only have an exclusionary effect on disputed maritime zones if it is equally intended to apply to the territory generating areas of mari-

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Art. 1.7(a) and (b) Agreement between Japan and the Republic of Peru for the Promotion, Protection and Liberalisation of Investment, 21 November 2008, , visited on 1 May 2017. The definition of the term “Area” is followed by a note declaring that “[n]othing under this paragraph shall affect the rights and obligations of the Contracting Parties under international law”. S. Hamamoto and L. Nottage, ‘Japan’, in Brown, supra note 54, p. 358. For objections to the Peruvian claim, see J. Ashley Roach and R.W. Smith, Excessive Maritime Claims (3rd ed., Martinus Nijhoff, Leiden, 2012) pp. 146-148. J.A. Rivas, ‘Colombia’, in Brown, supra note 54, p. 207; N. Schrijver and V. Prislan, ‘The Netherlands’, in Brown, supra note 54, p. 558.

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time jurisdiction.69 The territorial clauses in the cited Argentine and British BITs do not necessarily suggest as much. Upon closer inspection of the structure and grammar of Article 1(e)(i) of the UK Model BIT, one could maintain that the phrase “in accordance with international law” only has bearing on areas beyond the territorial sea, not territory sensu stricto. The argument is stronger still for the Argentina-US agreement, which adds the formula “as reflected in the 1982 United Nations Convention on the Law of the Sea”, because UNCLOS does not directly govern questions of sovereignty over continental or insular land territory. The jurisprudence of investment tribunals does not provide guidance on this thorny issue. While there has been litigation concerning investments located on the continental shelf70 and even in disputed maritime zones,71 there is to the author’s knowledge no publically available pronouncement addressing the application ratione loci of investment agreements to contested maritime areas.72 Most of the cases in which the respondent has alleged a lack of territorial nexus between the in69

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BIICL, ‘Territorial Disputes and Protection of Foreign Investments’, SoundCloud, 14 March 2017, , visited on 1 May 2017 (presentation by T.D. Grant; audio recording of the panel). Wintershall Aktiengesellschaft v. Argentine Republic, 8 December 2008, Award, ICSID Case No. ARB/04/14, , visited on 1 May 2017; Tidewater Inc. and others v. Bolivarian Republic of Venezuela, 15 March 2015, Award, ICSID Case No. ARB/10/5, , visited on 1 May 2017; RSM Production Corporation v. Saint Lucia, ICSID Case No. ARB/12/10, , visited on 1 May 2017; Reinisch, supra note 44, p. 210, footnote 13. RSM Production Corporation v. Grenada, ICSID Case No. ARB/05/14, , visited on 1 May 2017. For a discussion of the case, see P.M. Blyschak, ‘Offshore Oil and Gas Projects Amid Maritime Border Disputes: Applicable Law’, 6:3 Journal of World Energy Law and Business (2013) pp. 230-232. See D. Roughton, ‘Rights (and Wrongs) of Capture: International Law and the Implications of the Guyana/Suriname Arbitration’, 26:3 Journal of Energy and Natural Resources Law (2008) p. 400, footnote 100: “While the utility of investment treaty claims in the context of a disputed boundary is questionable, it has raised interesting questions in at least one case (not yet in the public domain) as to the extent to which a host state may be liable for an investment made ‘in its territory’ (and so attracting the protections of an investment treaty) or was in fact made in the territory of another state (in which case the protections would not bite). In the latter case, a host state may be estopped from denying such investment was not made ‘in its territory’”.

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vestment and the host State deal with completely different matters: the qualification of financial transactions (e.g., loans, sovereign bonds) as investments made ‘in the territory’ of the host State and the degree to which the activities of the investor must be performed within the host State so as to meet the territorial link requirement.73 In a significant recent development, Ukrainian private investors and State-owned enterprises with investments in Crimea have filed claims against the Russian Federation under the 1976 UNCITRAL Arbitration Rules pursuant to the Russia-Ukraine BIT.74 The claims were brought in the aftermath of Russia’s annexation of the peninsula in 2014. The 73

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C. Knahr, ‘The Territorial Nexus between an Investment and the Host State’, in Bungenberg, Griebel, Hobe and Reinisch, supra note 42, pp. 590-597. See also J.W. Salacuse, The Law of Investment Treaties (2nd ed., Oxford University Press, Oxford, 2015) pp. 188-192; A. Arcuri and F. Violi, ‘Reconfiguring Territoriality in International Economic Law’, Netherlands Yearbook of International Law (forthcoming). Aeroport Belbek LLC and Mr. Igor Valerievich Kolomoisky v. Russia, PCA Case No. 2014-30, , visited on 1 May 2017; PJSC CB PrivatBank and Finance Company Finilon LLC v. Russia, PCA Case No. 2015-21, , visited on 1 May 2017; (1) Limited Liability Company Lugzor, (2) Limited Liability Company Libset, (3) Limited Liability Company Ukrinterinvest, (4) Public Joint Stock Company DniproAzot, (5) Limited Liability Company Aberon Ltd v. Russia, PCA Case No. 2015-29, , visited on 1 May 2017; PJSC Ukrnafta v. Russia, PCA Case No. 2015-34, , visited on 1 May 2017; (i) Stabil LLC, (ii) Rubenor LLC, (iii) Rustel LLC, (iv) Novel-Estate LLC, (v) PII Kirovograd-Nafta LLC, (vi) Crimea-Petrol LLC, (vii) Pirsan LLC, (viii) Trade-Trust LLC, (ix) Elefteria LLC, (x) VKF Satek LLC,(xi) Stemv Group LLC v. Russia, PCA Case No. 2015-35, , visited on 1 May 2017; Everest Estate LLC et al v. Russia, PCA Case No. 2015-36, , visited on 1 May 2017. See also S. Perry, ‘Another Crimea Panel in Place at the PCA’, Global Arbitration Review, 19 August 2016, , visited on 1 May 2017 (reporting on two claims filed by State-owned companies: Oschadbank v. Russia and Naftogaz v. Russia); L. Yong, ‘Further Crimea Claim Launched Against Russia’, Global Arbitration Review, 12 April 2017, , visited on 1 May 2017 (reporting on the prospect of another investment arbitration being instituted against Russia, this time by a subsidiary of Ukraine’s biggest energy company). For a discussion of these cases, see O.G. Repousis, ‘Why Russian Investment Treaties Could Apply to Crimea and What Would This Mean for the Ongoing Russo-Ukrainian Territorial Conflict’, 32:3 Arbitration International (2016) pp. 459-481.

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tribunals in a few of these cases have already held that they have jurisdiction. It appears that the territorial nexus requirement did not form a jurisdictional impediment and the arbitrators arrived at this result without having to assess the lawfulness of Russia’s occupation. The arbitral decisions could be of import to the problems discussed in the present paper but currently remain confidential. Under the applicable procedural rules in these cases, the 1976 UNCITRAL Rules, the awards cannot be publicized without the consent of both parties. As Russia is maintaining a policy of non-participation in respect of the Crimean investment claims, it is uncertain if and when the awards will be become part of the public domain.75 4.2 Establishing the Territorial Nexus Due to the novelty of this contribution’s hypothetical scenario, it is a matter of some speculation how an investment tribunal hearing a case concerning hydrocarbon activities in the Falklands (Malvinas) would come down on the territorial nexus requirement. Potential arguments both in favour of and against the existence of such a link will be explored in the ensuing paragraphs. The determination that an investment has been made ‘in the territory’ of the host State might arise from the arbitrators’ adherence to the host State’s own definition of its territory and maritime areas. It can be argued that a tribunal would attribute considerable weight to such a definition without being bound by it.76 The same result might obtain 75

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A. Ross, ‘Crimea Cases against Russia to Proceed’, Global Arbitration Review, 9 March 2017, , visited on 1 May 2017; D. Thomson, ‘Crimea Real Estate Claim Goes Forward’, Global Arbitration Review, 5 April 2017, , visited on 1 May 2017. Russia has stated its position as follows: (1) the “[Ukraine-Russia BIT] cannot serve as a basis for composing an arbitral tribunal to settle [the Claimants’ claims]”, (2) it “does not recognize the jurisdiction of an international arbitral tribunal at the [PCA] in settlement of the [Claimants’ claims]” and (3) nothing in its correspondence “should be considered as consent of the Russian Federation to constitution of an arbitral tribunal, participation in arbitral proceedings, or as procedural actions taken in the framework of the proceedings” (see the PCA’s press reports of the cases listed in supra note 74). Waibel, supra note 44, pp. 1249-1250. Furthermore, it is highly unlikely that the respondent State in the proceedings would raise the objection that the Islands fall outside of the BIT’s territorial scope given its longstanding position on the

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through other lines of reasoning. Investment tribunals, it would seem, have in the past interpreted unclear BIT terms to the advantage of the investor. Support for this criticised in dubio pro investore approach has often been sought in the object and purpose of the treaty, which is purportedly the desire to ‘create favourable conditions for investment’ as expressed in the BIT’s preamble. Applied to the present case, this could lead to a finding that contested areas fall within the treaty’s territorial scope because this outcome would maximize investment protection.77 Alternatively, the tribunal might resort to some sort of effective control criterion.78 The analysis would then hinge on the host State’s actual administration of the area where the investment is located rather than the legal pedigree of its sovereignty and maritime claims. Practice pertaining to the BIT could be yet another relevant factor. By way of illustration, if the host State were the UK, the other State party’s consent to extend the BIT to the Falklands (Malvinas) could be deemed relevant as might be Argentina’s protest to such an extension (or lack thereof). By the same token, the disputed status of the Islands, as recognised by the UN General Assembly (UNGA),79 and associated considerations of general international law could lead to the rejection of there being a territorial link. The tribunal might derive this result from its applicable law80 and/or an interpretation of the BIT’s territorial scope that relies

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dispute (and in any event it would be estopped from doing so). See M. Waibel, ‘Oil Exploration Around the Falklands (Malvinas)’, EJIL: Talk!, 13 August 2012, , visited on 1 May 2017. See M. Waibel, ‘International Investment Law and Treaty Interpretation’, in R. Hofmann and C.J. Tams (eds.), International Investment Law and General International Law: From Clinical Isolation to Systemic Integration? (Nomos, BadenBaden, 2011) pp. 39-47, 50-51. P. Tzeng, ‘Investments on Disputed Territory: Indispensable Parties and Indispensable Issues’, SSRN, 25 May 2017, p. 20, , visited on 25 May 2017. E.g., UNGA Resolution 2065 (XX), 16 December 1965. See also UNGA Resolution 31/49, 1 December 1976, in which the General Assembly calls upon the two parties “to refrain from taking decisions that would imply introducing unilateral modifications in the situation”. See e.g., Art. 42 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), 18 March 1965, , visited on 1 May 2017: “The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement,

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on the technique reflected in Article 31(3)(c) of the VCLT. The latter provision requires the interpreter to take into account “any relevant rules of international law applicable in the relations between the parties”.81 The recent 2016 Council v. Front Polisario judgment of the European Court of Justice (ECJ) is a leading example of the impact that such rules can have on an agreement’s application in contested areas.82 The case was founded on an appeal filed by the Council of the European Union (EU) challenging an earlier decision of the General Court of the EU (GC). In that previous ruling, based on an action brought by the Front Polisario in reaction to the export of Sahrawi produce to the EU, the GC had partially annulled a Council Decision on the conclusion of the EU-Morocco Liberalisation Agreement on agricultural and fishery products “in so far as it approves the application of that agreement to Western Sahara”.83 Said treaty introduces a set of amendments to the

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the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable” (emphasis added). See also E. De Brabandere, Investment Treaty Arbitration as Public International Law: Procedural Aspects and Implications (Cambridge University Press, Cambridge, 2014) pp. 122-147. On Art. 31(3)(c) VCLT and the interpretation of international investment treaties, see H. Ascensio, ‘Article 31 of the Vienna Conventions on the Law of Treaties and International Investment Law’, 31:2 ICSID Review (2016) pp. 380-386; T. Gazzini, Interpretation of International Investment Treaties (Hart, Oxford, 2016) pp. 210-239; J. Romesh Weeramantry, Treaty Interpretation in Investment Arbitration (Oxford University Press, Oxford, 2012) pp. 88-95. Council v. Front Polisario, 21 December 2016, ECJ, C-104/16 P, , visited on 1 May 2017. See A. de Elera, ‘The Frente Polisario Judgments: An Assessment in the Light of the Court of Justice’s Case Law on Territorial Disputes’, in J. Czuczai and F. Naert (eds.), The EU as a Global Actor – Bridging Legal Theory and Practice: Liber Amicorum in Honour of Ricardo Gosalbo Bono (Brill Nijhoff, Leiden, 2017) pp. 266-290; E. Kassoti, ‘The Council v. Front Polisario Case: The Court of Justice’s Selective Reliance on International Rules on Treaty Interpretation (Second Part)’, 2:1 European Papers: A Journal on Law and Integration (2017) pp. 23-42. Front Polisario v. Council, 10 December 2015, GC, T-512/12, para. 1 of the ruling, , visited on 1 May 2017. On the GC’s decision, see T. Fleury Graff, ‘Accords de libre-échange et territoires occupés. A propos de l’arrêt TPIUE, 10 décembre 2015, Front Polisario c. Conseil’, 120:2 Revue générale de droit international public (2016) pp. 263-291; E. Kassoti, ‘The Front Polisario v. Council Case: The General Court, Völkerrechtsfreundlichkeit and the External Aspect of European Integration (First Part)’, 2:1 European Papers: A Journal on Law and Integration (2017) pp. 339-356; G. Poissonnier and F. Dubuisson, ‘La question du Sahara

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EU-Morocco Association Agreement which applies to “the territory of the Kingdom of Morocco” as far as Morocco is concerned.84 Western Sahara is a territory in north-west Africa that appears on the UN’s list of non-self-governing territories. Most of the territory is controlled by Morocco, while the remainder is under the control of the Front Polisario, a national liberation movement of the Sahrawi people. The ECJ set aside the GC’s judgment, ruling that it had “erred in holding … that the Liberalisation Agreement was to be interpreted as applying to the territory of Western Sahara”.85 According to the ECJ, the territorial scope of the Liberalisation Agreement in light of the Association Agreement could not be interpreted in a manner that would cover Western Sahara. The reasoning behind this conclusion drew in part upon Article 31(3)(c) of the VCLT. The ECJ identified three relevant rules of international law. The first is the principle of self-determination, which grants Western Sahara a separate and distinct status in relation to any State, including Morocco.86 Secondly, the ECJ pointed to the rule codified in Article 29 of the VCLT on the territorial scope of treaties, which has already been discussed in some detail in this contribution.87 Thirdly, the principle of the relative effect of treaties was given prominence. Article 34 of the VCLT expresses the concept as follows: “A treaty does not create either obligations or rights for a third State without its consent”. As regards the relative effect principle, the ECJ held that (1) the Association Agreement, if applied to Western Sahara, would be tantamount to a treaty affecting a third party and (2) the people of Western Sahara must be regarded as that third party. Without their consent, therefore, the application of the Agreement could not extend to Western Sahara.88

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occidental devant le Tribunal de l’Union européenne: une application approximative du droit international relatif aux territoires non autonomes’, Journal du droit international (Clunet) (2016) pp. 503-522; D. Simon and A. Rigaux, ‘Le Tribunal et le droit international des traités: un arrêt déconcertant’, 26:2 Europe. Actualité du droit de l’Union européenne (2016) pp. 5-11. Council v. Front Polisario, supra note 82, para. 16. Ibid., para. 116. Council v. Front Polisario, supra note 82, paras. 88-93. See also Council v. Front Polisario, supra note 82, Opinion of Advocate General Wathelet, paras. 69-82; Western Sahara, 16 October 1975, ICJ, Advisory Opinion, I.C.J. Reports 1975, p. 12. Council v. Front Polisario, supra note 82, paras. 94-99. Ibid., paras. 100-108. See also ibid., Opinion of Advocate General Wathelet, paras. 101-115; Brita, 25 February 2010, ECJ, C-386/08, , visited on 1 May

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The ECJ’s approach in Council v. Front Polisario could inform an investment tribunal’s decision as to the territorial applicability of a BIT to the Falklands (Malvinas), although significant distinctions set these two cases apart. A point worth flagging is that the Luxembourg Courts had to interpret the territorial scope of a treaty via a broadly worded provision referring to “the territory of the Kingdom of Morocco”. With respect to British BIT practice, the application of the investment agreement to the Falklands (Malvinas) and its maritime zones would be based on the contracting parties’ explicit consent to a territorial extension, leaving little room for doubt as to their intention.89 Another difference stems from the importance that the ECJ attaches to the particular situation of Western Sahara. The right of its people to self-determination and the separate status of the territory are widely acknowledged by the international community. Turning to the Falklands (Malvinas), it is a matter of controversy if and to what extent its inhabitants can claim the right of self-determination. Moreover, the UN has included the Islands on its non-self-governing territories listing, but not without highlighting the sovereignty dispute between Argentina and the UK. It is thus unclear if and how the ECJ’s reasoning on Western Sahara, whose international status is determined,90 may be replicated for territories and maritime zones that are disputed by States each putting forward plausible legal arguments. 4.3 The Monetary Gold Principle In addition to the interpretative conundrum concerning the territorial nexus, the absence of either Argentina or the UK as a party to the hypothetical arbitral proceedings between the investor and the host State might thwart further consideration of the case. The ‘indispensable third party’ principle, also known as the Monetary Gold principle, prevents an international court or tribunal “from deciding a case between two parties amenable to its jurisdiction on the merits if the legal interests of a third State would not only be affected by a merits judgment, but would

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2017. In Argentine BIT practice, there is no equivalent resort to the technique of territorial extensions and the scope ratione loci tends to be worded in general terms without specific mention of the Falklands (Malvinas). Council v. Front Polisario, supra note 82, Opinion of Advocate General Wathelet, paras. 72-75.

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form ‘the very subject-matter’91 of the case”.92 The doctrine is primarily associated with the International Court of Justice,93 but has been acknowledged by other inter-State adjudicators.94 In the instances where the principle has been raised in investment litigation, the tribunals have not directly taken a position on its applicability to mixed (State/nonState) dispute settlement.95 However, it bears mentioning that there has been an arbitration under UNCITRAL Rules in which the Monetary Gold doctrine was invoked proprio motu in support of a decision to decline jurisdiction.96 Assuming, for argument’s sake, that the notion of indispensable parties does protect third States in the context of investment proceedings, it must still be examined if the principle could play a role in a case based on the hypothetical scenario of this contribution. One could imagine, for instance, a foreign investor obtaining a British 91

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Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America), 15 June 1954, ICJ, Preliminary Question, I.C.J. Reports 1954, p. 32. T. Thienel, ‘Third States and the Jurisdiction of the International Court of Justice: The Monetary Gold Principle’, 57 German Yearbook of International Law (2014) p. 322. See H.W.A. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (vols. I-II, Oxford University Press, Oxford, 2013) pp. 715-730, 1658-1662. E.g., M/V “Norstar” (Panama v. Italy), 4 November 2016, ITLOS, Preliminary Objections, para. 172, , visited on 1 May 2017; South China Sea Arbitration (Philippines v. China), 29 October 2015, Award on Jurisdiction and Admissibility, PCA Case No. 2013-19, paras. 179-188, , visited on 15 June 2017. See also F. Fontanelli, ‘Reflections on the Indispensable Party Principle in the Wake of the Judgment on Preliminary Objections in the Norstar Case’, 100:1 Rivista di diritto internazionale (2017) pp. 112-132. Chevron Corporation and Texaco Petroleum Corporation v. Ecuador, 27 February 2012, Third Interim Award on Jurisdiction and Admissibility, PCA Case No. 2009-23, paras. 4.59-4.71, , visited on 1 May 2017; Ping An v. Belgium, 30 April 2015, Award, ICSID Case No. ARB/12/29, paras. 127-128, 238, , visited on 1 May 2017. See also A. Pellet, ‘The Case Law of the ICJ in Investment Arbitration’, 28:2 ICSID Review (2013) p. 231, footnote 55. Larsen v. Hawaiian Kingdom, 5 February 2001, Award, PCA Case No. 1999-01, paras. 11.8-11.24, 12.1-12.19, , visited on 1 May 2017. See also P. Jacob and F. Latty, ‘Arbitrage transnational et droit international général’, 58 Annuaire français de droit international (2012) pp. 625-626.

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hydrocarbon license to drill on the continental shelf of the Falklands (Malvinas) and at a later stage launching a case against the UK alleging breaches of its substantive rights. Could Argentina’s position as a nonparty to the case bring it to a grinding halt? The investment tribunal could reach this conclusion due to the territorial link that must be established between the investment and the host State. An analysis of the ICJ’s jurisprudence reveals that the Monetary Gold doctrine will apply in situations where the Court would otherwise have to evaluate the legality of a third State’s conduct or its legal position.97 Paying heed to this restriction on “prerequisite determination[s]”,98 the arbitrator might decide not to assess whether an investment has been made ‘in the territory’ of the UK as this would necessarily entail a determination of Argentina’s legal position on the Falklands (Malvinas), something that would run afoul of the principle.99 Nonetheless, an alternative framing of the territorial nexus requirement could circumvent this obstacle if the tribunal accentuates the limited framework within which it operates. The BIT’s definition of territory is generally prefaced by a chapeau employing language such as “for the purposes of this treaty”. Relying on this wording, the award could specify that any finding on the territorial link strictly concerns the application and interpretation of the investment agreement and is without prejudice to questions of sovereignty and maritime jurisdiction under international law more broadly. Additionally, the attitude of the non-party State towards the proceedings could potentially exert influence. Two recent developments should be mentioned in this regard. In the South China Sea Arbitration between the Philippines and China, the arbitrators ruled that Vietnam was not an indispensable third party. In doing so, they stressed that this conclusion was endorsed by Vietnam

97 98

99

M.N. Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015 (vol. I, 5th ed., Brill Nijhoff, Leiden, 2015) p. 568. Tzeng, supra note 78, pp. 5-6. See also Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), 5 October 2016, ICJ, Preliminary Objections, Dissenting Opinion of Judge Crawford, para. 32, , visited on 1 May 2017: “The case law has however set firm limits to the Monetary Gold principle. It applies only where a determination of the legal position of a third State is a necessary prerequisite to the determination of the case before the Court”. See Tzeng, supra note 78, p. 7.

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(as evidenced in a statement Hanoi had sent to the tribunal).100 The Crimean investment cases discussed above are also noteworthy in that many of the tribunals hearing these claims granted Ukraine permission to make a submission as a non-disputing party to the Ukraine-Russia BIT.101 It would seem that Kiev’s goal was to reassure the arbitrators that they could find jurisdiction without having to rule on Russia’s presence in Crimea.102 As some of these tribunals have already decided that they may proceed to the merits, it is entirely possible that Ukraine’s statements helped ease any concerns over its rights as a third State being harmed by the rulings. In light of these developments, an Argentine submission objecting to a Falklands (Malvinas) investment case between the investor and the UK could impact the appreciation of the doctrine of indispensable parties.103

5

Conclusion

It has been observed that “the era of investment protection has been one of stable territorial relations”.104 As we face evermore situations of territorial complexity, be it Crimea, Western Sahara or the intricacies 100 101 102 103

104

South China Sea Arbitration, supra note 94, paras. 179-188. The cases mentioned in supra note 74. Ross, supra note 75. The ability of Argentina to make such a submission to an investment tribunal will depend on the applicable procedural rules. See e.g., Art. 37(2) ICSID Arbitration Rules, 10 April 2006, , visited on 1 May 2017: “After consulting both parties, the Tribunal may allow a person or entity that is not a party to the dispute (in this Rule called the “non-disputing party”) to file a written submission with the Tribunal regarding a matter within the scope of the dispute. In determining whether to allow such a filing, the Tribunal shall consider, among other things, the extent to which: (a) the non-disputing party submission would assist the Tribunal in the determination of a factual or legal issue related to the proceeding by bringing a perspective, particular knowledge or insight that is different from that of the disputing parties; (b) the non-disputing party submission would address a matter within the scope of the dispute; (c) the non-disputing party has a significant interest in the proceeding. The Tribunal shall ensure that the non-disputing party submission does not disrupt the proceeding or unduly burden or unfairly prejudice either party, and that both parties are given an opportunity to present their observations on the non-disputing party submission”. Grant, supra note 61, p. 30.

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of State succession, international investment law is gradually entering uncharted waters.105 The Falklands (Malvinas) and their surrounding maritime zones form no exception to this rule. As long as Argentina and the UK have not worked out a plan pursuant to the 2016 Joint Communiqué allowing for and regulating foreign investment, the unilateral licensing of concessions in these areas will be fraught with legal uncertainty. This contribution has demonstrated that general international law could have a disruptive effect on the application of international investment law to disputed zones. An investment tribunal hearing claims relating to the contested Islands might very well be undeterred by the underlying sovereignty dispute or find ingenious means to overcome this concern. It is, however, equally possible that the territorial link requirement under BITs and/or the Monetary Gold principle will stop such a case in its tracks, lest the adjudicator pass judgment on the rights of whichever claimant State is absent from the proceedings. If anything, foreign companies contemplating investments in contested maritime areas are well-advised to reflect upon these legal risks as part of their due diligence process.106 105

106

The intersection of economic dealings and disputed territories/territorial changes has provided fertile ground for a good deal of recent scholarship. See e.g., D. Costelloe, ‘Treaty Succession in Annexed Territory’, 65:2 International and Comparative Law Quarterly (2016) pp. 343-378; R. Happ and S. Wuschka, ‘Horror Vacui: Or Why Investment Treaties Should Apply to Illegally Annexed Territories’, 33:3 Journal of International Arbitration (2016) pp. 245-268; E. Kontorovich, ‘Economic Dealings with Occupied Territories’, 53:3 Columbia Journal of Transnational Law (2015) pp. 584-637; O.J. Mayorga, ‘Occupants, Beware of BITs: Applicability of Investment Treaties to Occupied Territories’, 19 Palestine Yearbook of International Law (2017) (forthcoming); K. Parlett, ‘Trade and Investment Agreements in Disputed Territories: The Case of Western Sahara’, Kluwer Arbitration Blog, 4 April 2017, , visited on 1 May 2017; O.G. Repousis, ‘On Territoriality and International Investment Law: Applying China’s Investment Treaties to Hong Kong And Macao’, 37:1 Michigan Journal of International Law (2015) pp. 113-190; C.J. Tams, ‘State Succession to Investment Treaties: Mapping the Issues’, 31:2 ICSID Review (2016) pp. 314-343; P. Tzeng, ‘Sovereignty over Crimea: A Case for State-to-State Investment Arbitration’, 41:2 Yale Journal of International Law (2016) pp. 459-46; S.C. Young, ‘Foreign Direct Investment Disputes with Unrecognized States: FDI Arbitration in Kosovo’, 33:5 Journal of International Arbitration (2016) pp. 501-523. See T. Martin, ‘Energy and International Boundaries’, in Talus, supra note 25, pp. 193-195.

4 The Falklands/Malvinas and China in 1982 and Today: Some Legal and Diplomatic Observations Wim Muller*

Abstract During the Falklands (Malvinas) war in 1982, the People’s Republic of China supported Argentina’s sovereignty claim, albeit in a limited way. Since then, its support for Argentina has become increasingly vocal. The present contribution explores the reasons for this increased support, taking into account geopolitical changes, such as the end of the Cold War and China’s emergence as a major power, as well as the development of the relationship between Argentina and the PRC. It also explores which legal and diplomatic lessons the PRC can draw from the Falklands/Malvinas with regard to its own territorial issues.

1

Introduction

On 3 April 1982, the United Nations Security Council adopted Resolution 502, in which it qualified the invasion of the Falklands by Argentina the previous day as a “breach of the peace”, activating Chapter VII of the UN Charter and enabling the United Kingdom to invoke the right of self-defence based on Article 51. Resolution 502 also demanded “a withdrawal of all Argentine forces from the Falkland Islands (Islas Malvinas)” and called for a peaceful solution.1 Four members abstained: the Soviet Union, Spain, Poland and China. Recounting the events of the day a year later, Sir Anthony Parsons, the UK Permanent Representative to the United Nations at the time, wrote that the members of the British delegation were unsure before the resolution was debated in the Council whether they would be able to secure the necessary number of votes for *

1

Assistant Professor in Public International Law, Maastricht University. Associate Fellow, International Law Programme, Chatham House. The views expressed are the author’s own. UN Security Council Resolution 502 (UN Doc S/RES/502 (1982))

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 95-112.

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the resolution to pass. While they were unsure if the USSR would veto the resolution, their “instinct” told them that “China would abstain”.2 On 22 June 2017, the Special Committee on Decolonisation of the UN General Assembly held its annual meeting on the sovereignty dispute between Argentina and the United Kingdom over the Falklands (Malvinas). It adopted a draft resolution calling for both sides to resume talks. During the meeting, representatives of various governments made statements, including the Chinese representative, who recalled that “the colonial situation in the Territory [of the Falklands/Malvinas] had resulted in many resolutions calling for negotiations between the United Kingdom and Argentina. Recognizing the latter’s sovereignty over the Territory, he hoped both parties would carry out a constructive dialogue to find a peaceful, just solution.”3 Although the People’s Republic of China (PRC) has long supported Argentina’s sovereignty claim over the Falklands/Malvinas, its explicit statement to this effect as reflected in the 2017 meeting reflects a number of changes which have occurred on the world stage from the war between the United Kingdom and Argentina in 1982 until now. At the time of the Security Council vote, the People’s Republic of China (PRC) had only been the government representing ‘China’ in the United Nations for a decade. Until Resolution 2758 passed on 25 October 1971,4 ‘China’ had been represented by the Republic of China (ROC), which had withdrawn to the island of Taiwan following its defeat on the mainland in the Chinese Civil War in 1949. The PRC had only ended its, largely selfimposed, international isolation with the initiation of the Reform Era a few years earlier, in 1978, and was at the beginning of a major transition in its foreign policy. A closer look at China’s diplomatic and legal position with regard to the Falklands/Malvinas question serves as an interesting case study to understand the evolution of Chinese foreign policy in the Reform Era. This contribution explores this position based on the principles at the basis of the PRC’s post-1982 foreign policy and against the background of 2 3

4

A. Parsons, ‘The Falklands Crisis in the United Nations, 31 March–14 June 1982’, 59 International Affairs (1983) p. 227. Special Committee on Decolonization Approves Draft Resolution Calling for Argentina, United Kingdom to Resume Talks Over Falkland Islands (Malvinas) Dispute, 23 June 2017, UN Doc GA/COL/3314. , visited 29 June 2017. UN General Assembly (UN Doc A/RES/2758 (1971))

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its increasing importance in the world and within the United Nations. It takes account of the changing geopolitical landscape in which Argentina is located, the bilateral relationship between China and Argentina, and finally the parallels between the Falklands/Malvinas dispute and China’s outstanding territorial issues regarding Taiwan and in the East and South China Sea.

2

PRC Foreign Policy Before and After 1982

2.1

From Confrontation to Accommodation: the Development of PRC Foreign Policy As stated in the introduction, 1982 was a year of transition for PRC foreign policy. In the first decade of its existence, it had enjoyed close relations with the USSR, which started to deteriorate from the 1960s when the USSR was increasingly denounced by the PRC as a ‘revisionist’ State departing from socialist orthodoxy. This was also visible in China’s understanding of international law, which was initially closer to the Soviet approach, albeit more conservative, especially in its understanding of the sources of international law, in which regard the USSR had started showing a more flexible approach.5 Socialism and anti-imperialism were the twin pillars of PRC diplomacy as well its approach to international law. The PRC saw China as a victim of Western imperialism during its ‘century of humiliation’ before the establishment of the People’s Republic. This started with the Opium Wars, when the British Empire and other Western powers forced imperial China to open itself up and sign unequal treaties allowing these powers to trade and claim territorial privileges. To this day, much of China’s rhetoric in diplomacy and international law can be traced back to the critiques of the Western-centric international legal order from the socialist tradition as well as what has become known as the Third World Approaches to International Law (TWAIL). In the 1950s, both socialist and anti-imperialist approaches to international law placed a heavy emphasis on sovereignty of States, especially mutual respect of States for each other’s sovereignty and non-interference in each other’s internal

5

See H. Chiu, ‘Communist China’s Attitude Toward International Law’, 60 American Journal of International Law (1966) pp. 245-267; S.S. Kim, China, the United Nations, and World Order (Princeton University Press, Princeton, NJ, 1979).

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affairs, although the practice of the USSR and the PRC did not necessarily respect the principle. Non-interference was also reflected in the Five Principles of Peaceful Coexistence, first formulated by the Chinese People’s Political Consultative Conference in 1949:6 mutual respect for each other’s territorial integrity and sovereignty; mutual non-aggression; mutual non-interference in each other’s internal affairs; equality and mutual benefit; and peaceful coexistence. In 1954, these principles were included in the preamble to a treaty between China and India and in 1955 adopted by the Asian-African Conference at Bandung which contributed to the establishment of the Non-Aligned Movement in 1961.7 In 1982, they were included in the preamble to the revised constitution of the PRC and since then, the PRC government has consistently presented the Five Principles as China’s major contribution to international law.8 The inclusion of the Five Principles in the PRC constitution reflected the shift in its foreign policy from a revolutionary attitude to accommodation and careful engagement with the international order. During its decades of exclusion from the United Nations, the PRC had denounced the organisation first as a tool of Western imperialism and then as being held hostage to the rivalry between the two hegemonistic powers, the USA and the USSR. However, it had consistently emphasised its adherence to the principles of the UN Charter, which in 1945 had been signed by a Chinese delegation which included two members of the Chinese Communist Party (CCP). This did not prevent the PRC from supporting and trying to foment socialist revolution in the 1960s, particularly in Latin America, where it ignored governments (often seen as US lackeys) and focused on supporting communist movements, first in partnership and then in competition with the Soviet Union. It gave up these attempts from the late 1960s, unable to compete with the USSR and under pressure from domestic developments, especially the Cultural Revolution (1966-1976). From 1969, China reduced its support of revo-

6

7 8

E. Y.-J. Lee, ‘Early Development of Modern International Law in East Asia – With Special Reference to China, Japan and Korea’, 4 Journal of the History of International Law 4 (2002) p. 70. Agreement (with exchange of notes) on trade and intercourse between Tibet Region of China and India, Beijing, 29 April 1954, 299 UNTS 5. Constitution of the People’s Republic of China, Adopted at the Fifth Session of the Fifth National People’s Congress of the People’s Republic of China and Promulgated for Implementation by the Proclamation of the NPC, 4 December 1982

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lutionary movements in favour of developing strategic ‘government-togovernment’ diplomacy and promising to respect the principle of noninterference in domestic affairs.9 After it joined the UN in 1971, the PRC embarked on a ‘decade of learning’, taking a low-profile approach in order to familiarise itself with organisation's workings. This period was just coming to an end in 1982. Four years earlier, the PRC had also started opening itself to international trade with the beginning of Deng Xiaoping’s ‘Reform and Opening Up’ policy, ending its international isolation which peaked during the time of the Cultural Revolution. 2.2 PRC Foreign Policy in 1982 The PRC was therefore undergoing a number of transitions in 1982: from isolation to engagement with the international order; from confrontation with the USSR and engagement with the United States to an evenhanded approach to both superpowers; and re-engagement with the developing world, where it started seeking out a leading position.10 These shifts were closely associated with CCP General Secretary Hu Yaobang and Premier Zhao Ziyang, who were seen as likely to lead China in the next decade.11 A leading position in the socialist world was no longer the ambition; rather, the PRC emphasised solidarity and cooperation with the Third World, peace and development, and the Five Principles. In those years, China also expressed support for the New International Economic Order (NIEO) promoted by developing States.12 In the shorter term, the issue of Taiwan dominated much of Beijing’s foreign policy. In the 1980s, Taiwan was enjoying the fruits of its economic miracle of the previous decades and constituted a major economic force. It also continued to enjoy significant recognition as the legitimate government of China, not least in Latin America, although many States had switched recognition to the PRC following the ROC’s 9

10 11 12

S. Reiss, Discovery of the Terra Incognita: Five Decades of Chinese Foreign Policy towards Latin America, Working Paper (University of Mainz, October 2000), p. 26, , visited on 29 June 2017. See also S. Morphet, ‘China as a Permanent Member of the Security Council: October 1971–December 1999’, 31 Security Dialogue (2000) p. 152. See also C. L. Hamrin, ‘China Reassesses the Superpowers’, 56 Pacific Affairs (1983) pp. 209-231. Reiss, supra note 9, pp. 34-37. For the NIEO, see Declaration for the Establishment of a New International Economic Order, 1 May 1974, UN Doc A/RES/S-6/3201.

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departure from the UN. As such, there was more strategic competition while China was also keeping an eye on countries that wanted to sell arms and military equipment to Taiwan, such as submarines sold to Taiwan by the Netherlands.13 In 1981, Beijing had proposed to begin talks with Taipei on peaceful reunification. Apart from the issue of Taiwan, the status of Hong Kong and Macau was also a sensitive issue. In two treaties later to be considered unequal by China, in 1842 and 1860, China had ceded Hong Kong and its surrounding territories to Great Britain, partly until 1997 and partly in perpetuity. After the PRC’s entry into the UN, it had made some diplomatic moves with a view to eventual restoration of Chinese sovereignty over both Hong Kong and Macau, which had been ceded to Portugal in 1862 even if it had been under Portuguese control for much longer.14 As a self-perceived victim of imperialism and a State with outstanding territorial issues, the PRC could be expected to support the Argentine position regarding the Malvinas, and it did indeed express support for Argentina during the war.15 At the same time, there was widespread unease within the UN about Argentina’s resort to the use of force to settle its territorial dispute with the UK. In a look back at how the war was dealt with within the UN, Thomas Franck observed that “[o]f the 15 current members of the [Security] Council, 11 are states on one side or the other of problems very similar to that of the Falklands.”16 In particular, he noted that many of those States, on either side of the post-colonial divide, had been acting out of concern for the possible precedential value of an Argentinian victory.17 If these considerations are taken together with China’s position in the Security Council as located somewhere in between the socialist world and the developing world, as well as its desire to maintain a good relationship with the other permanent members, it is understandable why the PRC decided to abstain on the vote for Resolution 502, rather

13 14

15 16 17

Hamrin, supra note 11, p. 215. See T. Franck, ‘Dulce et Decorum Est: the Strategic Role of Legal Principles in the Falklands War’, 77 American Journal of International Law (1993), p. 118. See also Hamrin, supra note 11. Hamrin, supra note 11, p. 219. Franck, supra note 14, pp. 117-118. E.g., ibid., p. 119, where he notes that officials from the Netherlands Antilles were sufficiently concerned to rush to New York in order to ensure their constitutional link with the Netherlands would not be disturbed.

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than use its veto in a stronger support for decolonisation and against the West. In addition, China was (and remains) a very reluctant user of its veto power, only using it twice in 1972 as a new Council member; it would not use it again until 1997.18 From the vantage point of today, Resolution 502 would serve to diminish the legitimacy of any future attempt by the PRC to retake any of the sovereign territory it still claims in the East China Sea or the South China Sea by force against the other claimants. In the case of Taiwan, where as a matter of international law the sovereignty is contested by an alternative government (which could be cast as a domestic opposition movement, albeit one which arguably expresses the Taiwanese people’s exercise of their right of self-determination) rather than another State, Resolution 502 and the way that the Falklands crisis was dealt with by the Security Council in 1982 discourage the use of force in spirit, but would have less impact on considerations of legality.

3

The Development of the Bilateral Relationship between the PRC and Argentina from 1982

3.1 Increased Interest: 1982-1989 Among the many decorations on display at the memorial dedicated to the late ROC leader Chiang Kai-shek in Taipei is the Collar of the Order of the Liberator General San Martin, the highest decoration of Argentina, which was awarded to Chiang in October 1961. Although Peronist Argentina established economic ties with the PRC in the 1950s,19 it continued to recognise the ROC until the early 1970s. In 1971, Argentina abstained from the vote on Resolution 2758, although seven other Latin American countries voted in favour of the PRC’s entry into the UN.20 Argentina continued to recognise the ROC until February 1972, when it switched allegiance to the PRC. At the time, South America and the wider South Atlantic were still of limited strategic interest to the PRC,

18 19

20

Morphet, supra note 10. Jorge I. Domínguez et al., China’s Relations With Latin America: Shared Gains, Asymmetric Hopes, Working Paper (Inter-American Dialogue, June 2006) p. 5, , visited on 29 June 2017. Reiss, supra note 9, p. 25.

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although it had started developing relationships with countries both in Latin America and Africa.21 As noted above, the PRC became more open from the beginning of the reform era in 1978 and, from 1982, looked for a leading position in the developing world. This included the expansion of ties with Latin America. In 1985, Zhao Ziyang travelled to five Latin American countries including Argentina, and drew attention to eight areas of common ground between China and Latin America, including the common experience of oppression in the form of (semi-)colonialism, the pursuit of a non-aligned and independent foreign policy, a peaceful international environment, development and the need for a fairer international economic order. The PRC signed twelve agreements with Latin American countries in the field of technological and scientific cooperation, including a nuclear cooperation agreement with Argentina in 1984.22 3.2 Tiananmen and its Aftermath China’s process of opening up to the outside world was interrupted by domestic events. The death of Hu Yaobang in April 1989 triggered massive popular protests for more democracy in the next months, which centred around Tiananmen Square in Beijing. On 4 June 1989, the Chinese government violently cracked down on the protests, resulting in many civilian deaths. Internationally, this resulted in a temporary backlash in the PRC’s relationship with the outside world. For a while, it stalled the process of opening and at times even seemed to reverse it; in response to criticism of its human rights record by predominately Western countries and within the UN human rights organs, the PRC at times reverted to the harsh rhetoric of its revolutionary years. Domestically, the events also resulted in the downfall of Zhao Ziyang.23 However, diplomacy also continued. The PRC government doubled down on the principle of non-interference in internal affairs, but also made efforts to shore up its international reputation, including recon-

21

22 23

A. Erthal Abdenur and D. Marcondes de Souza Neto, China’s Growing Influence in the South Atlantic, Working Paper, (BRICS Policy Center, Rio de Janeiro, October 2013) p. 5, , visited on 29 June 2017. Reiss, supra note 9, pp. 37-39. See A. Kent, Between Freedom and Subsistence: China and Human Rights (Oxford University Press, Hong Kong, 1993); A. Kent, China, the United Nations, and Human Rights (University of Pennsylvania Press, Philadelphia, PA, 1999).

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ciliatory efforts with some of its adversaries and also intensifying its opening policy in other regards. Latin American countries sympathised with China’s position on non-interference and had a muted response.24 The first foreign head of State to visit China after the events, in fact, was Carlos Menem, the Argentinian president, in 1990. He was not the first Argentinian president to visit China: Jorge Videla, the head of Argentina’s then dictatorial government, visited in 1980 and Raúl Alfonsín, democratically elected and a prominent defender of human rights in Argentina, had visited China in 1988. Subsequent Argentinian presidents Fernando de la Rúa and Néstor Kirchner have also visited China.25 Conversely, Chinese President Yang Shangkun visited five Latin American countries, including Argentina, in 1990.26 This visit was intended, in part, to weaken Taiwanese diplomatic efforts in the aftermath of the Tiananmen events.27 The first time an Argentinian head of State visited the PRC was therefore under a right-wing, anti-communist dictatorship. Ideological considerations and the form or political colour of a government have not been an obstacle to the development of closer relations. On the Chinese side, practical political and economic considerations prevailed even in the 1970s, when its foreign policy rhetoric was still more ideological, and certainly in the 1980s.28 And even though human rights have been a prominent issue at times in Argentinian domestic politics after the transition from dictatorship to democracy, in its foreign policy with China Argentina has emphasised economic ties. It tends to abstain from voting when China’s human rights record comes up in UN human rights bodies.29 This suggests that pragmatic considerations have prevailed on both sides. From a Chinese perspective, this pragmatism also reflects a principled stance, reflected in particular in the principle of non-interference in domestic affairs. The growth of Sino-Argentinian relations is not without complications, however. In 1993, President Menem opened a Trade and Cultural Relations Office in Taipei, reflecting the continuation of relations between Argentina and the ROC even after the switch in recognitions. 24 25 26 27 28 29

Reiss, supra note 9, pp. 42-43. Domínguez, supra note 19, pp. 29-30. Reiss, supra note 9, p. 48. Domínguez, supra note 19, p. 22. See Reiss, supra note 9, pp. 26-28. Domínguez, supra note 19, p. 30.

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Other States maintained similar relations with Taipei after switching recognition from the ROC to the PRC, with Taipei ‘trade’ or ‘representative’ offices in their own countries acting as de facto embassies. In the 1990s, competition between the ROC and the PRC intensified, especially after Taiwan adopted a more flexible policy in 1987 in which it abandoned its policy of no contact, negotiations or compromise with the PRC in favour of a ‘one China, two governments’ approach. In the 1990s, Taiwan threw its economic weight around and used the opening provided by China’s isolation following the Tiananmen events to engage with international organisations and other countries, particularly in Latin America. Some of these countries still recognised the ROC, and advocated on Taiwan’s behalf in the UN.30 Against this background, the PRC government put pressure on the Argentine governments after Menem’s to downgrade its relations with Taiwan, which resulted in the weakening of the relationship between Argentina and Taiwan even if the Taipei office remained open.31 3.3 Emphasis on Economics: 1990s–Present While human rights remained a prominent issue in the PRC’s diplomacy with European States, the US, and within the United Nations, by the end of the 1990s the emphasis was shifting to China’s immense economic growth. Throughout the decade, the PRC expanded its links with Latin American countries, as exemplified by numerous visits of high level officials to Latin American countries, increased trade and other economic links and increased cultural exchanges.32 Competition with Taiwan remained an important element in Beijing’s diplomacy. It managed to use financial incentives to convince a number of smaller countries to switch allegiance throughout the next decades.33 Apart from the economic interests, the PRC has also developed more strategic interests in Latin America. The safety of the shipping routes in the South Atlantic are an interest of the PRC, while since the 2010s it has increased its military exchanges with Latin American countries. In addition, the PRC has been a party to the Antarctic Treaty since the 1980s and has established two bases there. Those signatories to the treaty which have a territorial

30 31 32 33

Reiss, supra note 9, p. 46-48. Ibid., p. 34. Ibid., pp. 51-56. Domínguez, supra note 19, p. 16. See also Erthal Abdenur, supra note 21, p. 12.

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claim to Antarctica, such as Argentina, have agreed not to act on their claims.34 In its diplomatic discourse, the PRC has continued to emphasise a sense of common identity with countries not only in Latin America but also on the other side of the South Atlantic in Africa, emphasising its own and their status as developing countries to distinguish themselves from the global North. Apart from the immediate aim of establishing economic links, this discourse may also serve longer term aims, such as promoting reform of global governance and rebalancing the relationship between the global North and South in favour of the developing world.35 This sense of identity connects to their shared historical experience, but also to the common approach to international law expressed in the Five Principles of Peaceful Coexistence as well as in the Third World Approaches to International Law (TWAIL) and other developing country initiatives such as the NIEO. China has also developed links with regional organisations. It became an observer State with the Organisation of American States (OAS) in 2004 and also gained observer status with the Latin American Parliament, the Latin American Integration Association (ALADI), and the UN Economic Commission for Latin America and the Caribbean (ECLAC). In 2008, it became a contributing member of the Inter-American Development Bank (IADB).36 China is also connected with Brazil and South Africa in the BRICS as three emerging powers from the global South.37 The bilateral relationship with Argentina is the PRC’s second most important one in the region, after its relationship with Brazil. Since 2004, it has labelled the relationship as a ‘strategic partnership’, which is the most important status a relationship can have in Chinese foreign policy (followed by ‘cooperative partner’ and ‘friendly cooperative relations).38 In 2004, Presidents Nestór Kirchner and Hu Jintao visited each other’s countries. In the same year, Argentina recognised China as a ‘market economy’ in the WTO, a status which both the United States and the European Union are still reluctant to grant.39 Overall, Argentina and 34 35 36 37 38 39

Erthal Abdenur, supra note 21, pp. 17-20. Erthal Abdenur, supra note 21, p. 13. Erthal Abdenur, supra note 21, p. 14. See the official website at < infobrics.org>, visited on 29 June 2017. Domínguez, supra note 19, p. 23. See WTO Dispute Settlement Body cases DS515: United States – Measures Related to Price Comparison Methodologies and DS516: European Union – Measures Relat-

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the PRC have developed a strong partnership based on trade and shared political interests, even if the latter have also differed at other points.40 3.4 PRC Support for the Argentine Claim to the Malvinas As recalled previously, the PRC supported Argentina’s claim to the Malvinas in 1982, albeit ambiguously. In 1994, Qiao Shi, the president of the National People’s Congress, the PRC’s parliament, expressed open support for Argentina’s claim. Since then, there have been many expressions of PRC support.41 In the UN, the PRC has voted in favour of each of the General Assembly resolutions on the question of the Falklands/ Malvinas, which are favourable to the Argentinian position without endorsing its claim to sovereignty.42 Representatives of the PRC have also made statements in the UN Special Committee on Decolonisation.43 Although some of those statements were rather generic expressions of support for a peaceful resolution of the sovereignty dispute,44 in the most recent meetings PRC representatives explicitly supported Argentina’s claim. In 2016, the PRC representative stated that “China had always supported Argentina’s sovereign right over the Malvinas Islands, and supported all efforts to resolve territorial disputes through negotiation”.45 As noted in the introduction, a very similar statement was made in 2017.

40 41 42

43 44

45

ed to Price Comparison Methodologies, < www.wto.org/english/tratop_e/dispu_e/ cases_e/ds515_e.htm> and . Domínguez, supra note 19, pp. 33-34. Erthal Abdenur, supra note 21, p. 14. Resolution 3160 (XXVII), 14 December 1973, UN Doc A/RES/3160; Resolution 3160 (XXVIII), 14 December 1973, UN Doc A/RES/3160; Resolution 31/49, 1 December 1976, UN Doc A/RES/31/49; Resolution 37/9, 4 November 1982, UN Doc A/ RES/37/9; Resolution 38/12, 16 November 1983, UN Doc A/RES/38/12; Resolution 39/6, 1 November 1984, UN Doc A/RES/39/6; Resolution 40/21, 27 November 1985, UN Doc A/RES/40/21. It should be noted that China, still represented by the ROC, also voted in favour of the first resolution on the question, Resolution 2065 (XX) of 16 December 1965, A/RES/2065. Established by UNGA Resolution 1654 of 27 November 1961, UN Doc A/RES/1654. See, e.g. Special Committee on Decolonization Considers ‘Question of the Falkland Islands (Malvinas)’, Hears from Petitioners, Island Assemblymen, Argentina’s President, Special Committee on Decolonization, 4th Meeting, 14 June 2012, UN Doc GA/COL/3238. Special Committee on Decolonization Approves Text Reiterating Peaceful Negotiated Settlement as Only Solution to Falklands Islands (Malvinas) Question, 23

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Chinese support for the Argentine claim can therefore be explained from various perspectives. At the discursive level, both States place themselves in a tradition of anti-imperialism and anti-colonialism. Given that the Falklands/Malvinas issue is treated as one of decolonisation at the behest of Argentina, it is unsurprising that China supported it from the outset. The PRC’s increasingly vocal support for Argentina’s position can be explained through the change in the geopolitical situation as well as the slow strengthening of Sino-Argentine relations. Argentina’s claim has found wide support in the developing world, notably in the G77 within the UN General Assembly, with which China is closely aligned. The PRC’s aspirations to strengthen its position in the South Atlantic and the Antarctic region are also served by continuing support of the Argentine claim.

4

Lessons learned from the Falklands War for Chinese territorial disputes

As noted previously, the 1982 Falklands/Malvinas war took place before the initiation of negotiations for the return of Hong Kong to Chinese sovereignty. The PRC’s support for Argentina during the war did not improve the atmosphere for a visit by UK Prime Minister Margaret Thatcher to Beijing in September 1982.46 She later stated that Deng Xiaoping had suggested to her that he could take Hong Kong by force, and it has been reported that the PRC had planned for an invasion in case of unrest.47 Despite these tensions, the way was paved for negotiations which started a few months later and ultimately led to the Sino-British Joint Declaration and the transfer of sovereignty of Hong Kong to the PRC in 1997.48

46 47

48

June 2016, UN Doc GA/COL/3298, , visited 29 June 2017. Hamrin, supra note 11, p. 219. M. Sheridan, ‘China plotted Hong Kong invasion’, The Australian, 25 June 2007, , visited 29 June 2017. Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, 19 December 1984, , visited 29 June 2017.

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As a matter of law, a forcible takeover of Hong Kong would arguably have been a violation of the prohibition on the use of force as laid down in Article 2(4) of the UN Charter, even if the PRC might have advanced a claim based on the doctrine of unequal treaties to void the initial cession of Hong Kong and its surrounding territories.49 Given that both States were permanent members of the Security Council, any consequences would have played out in the political arena. Undoubtedly the recent Falklands War will have been present in the minds of leaders on both sides, although it is unlikely to become known whether it was a consideration on the side of Chinese decision-makers to refrain from the use of force. In any case, the issues of Hong Kong as well Macau, both of China’s territorial issues with a colonial dimension, were eventually resolved in agreement with the former colonisers, the United Kingdom and Portugal, the latter in 1999. In recent years, China’s remaining territorial issues have returned to the forefront of international attention. In the South China Sea, China – both the PRC and the ROC – has competing claims over maritime features with the Philippines, Malaysia, and Vietnam. Some of these were the subject – albeit not as a matter of law – of the South China Sea arbitration case brought by the Philippines against the PRC in 2013. The PRC refused to participate in the proceedings and the ROC could not, even though, like the PRC, it made its views known informally and was treated by the Arbitral Tribunal as the “Taiwan Authority of China”.50 The PRC’s building activities on the features it controls have raised concerns about a possible militarisation of the South China Sea and a possible eventual decision by the PRC to settle its territorial disputes by force. In the East China Sea, the PRC (and the ROC) has been at odds with Japan due to competing claims over the Diaoyu/Senkaku islands, which Japan controls. In light of the sensitivity of Sino-Japanese relations, the strong anti-Japanese sentiments still present in large segments of Chinese society and the encouragement by the Chinese government of nationalist sentiment within its population, it has also been asked whether China 49

50

See generally, A. Peters, ‘Treaties, unequal’, in Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford, 2007), http://opil.ouplaw. com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1495, visited 29 June 2017. The South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China), 12 July 2016, PCA, Award, Case No. 2013-19. , visited 29 June 2017.

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may resort to force to settle this dispute.51 And finally, ‘reunification’ with Taiwan remains a priority for the PRC government as well as a possible source of tension, especially after the election of President Tsai Ing-wen of the more independence-leaning Democratic Progressive Party in 2016. 4.1 Legal Aspects A major difference between China’s territorial disputes and the Falklands/Malvinas, is that none of China’s claims concerns a situation of decolonisation as such. This is not to say that there is no link to colonial history. The claims of the various post-colonial coastal States in the South China Sea are historically linked to exploratory activities as well as claims advanced by the former colonial powers.52 However, these features lack any indigenous populations, with only limited permanent populations established by the States which claim them. In the East China Sea, the Diaoyu/Senkaku islands are uninhabited. A colonial dimension is also absent in what remains as a matter of law a dispute between two governments which claim to be the legitimate government of China, even if they have de facto functioned as two separate States since 1949. With regard to the territorial disputes in the East and South China Sea, the PRC is obliged under Articles 2(3) and 33 of the UN Charter to settle the disputes in a peaceful manner and prohibited by Article 2(4) from using force. In the case of the South China Sea, these principles have been reiterated in the 2002 Declaration of Conduct of Parties in the South China Sea, a non-binding declaration which mainly restates the signatories’ obligations under international law and signals their intent to abide by those obligations.53 The Declaration was intended to be a stepping stone to a Code of Conduct, which has still not been concluded. In this regard, Resolution 502 serves as affirmative practice by the UN Security Council that an invasion of disputed territory is indeed a viola-

51 52

53

Z. Liu, ‘The Diaoyu/Senkaku dispute and China’s domestic policy’, 26 Columbia University Journal of Politics & Society (2016), pp. 124-146. See, e.g., A. Carty, ‘The South China Sea Disputes are not yet justiciable’, in S. Wu and K. Zou (eds.), Arbitration Concerning the South China Sea: Philippines versus China (Ashgate, Surrey, 2016) pp. 23-51. Declaration on the Conduct of Parties in the South China Sea, ASEAN, 4 November 2002, , visited on 29 June 2017.

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tion of the UN Charter and the other party may invoke the right of selfdefence based on Article 51. As a practical matter, however, any Security Council resolution against China would be impossible due to its veto power, leaving it for other UN bodies to take measures, which would however be less forceful, as can be seen in the responses to the US-UK invasion of Iraq in 2003 as well as the Russian annexation of Crimea in 2014. In the case of Taiwan, the situation is somewhat different. In practice, all States, except for maybe the US, arguably observe the One China Principle advocated by the PRC by recognising either the PRC or the ROC and accepting the existence of one State called ‘China’ with Taiwan as an inalienable part.54 This would make any forceful ‘reunification’ by the PRC an internal affair, in which other States are barred from interfering.55 This is however not the case for the minority of governments which still recognise the ROC as China’s legitimate government and would be within their rights to lend the ROC government any assistance it may request. In addition, there are various grounds for the ‘international community’ to act in human rights law, based on arguable violations of the Taiwanese people’s right to self-determination and other rights. Each of these claims would however be fraught with difficulty. A remaining argument can be made that the spirit of the UN Charter clearly does not encourage the PRC to take Taiwan by force. Ultimately, the case of Taiwan remains an anomalous one to which a strict application of international law does not provide a satisfactory answer. 4.2 Diplomatic and Political Aspects As has emerged from the previous discussion, the legal parallels between the Falklands/Malvinas dispute and the PRC’s territorial disputes are therefore limited to the affirmation of the principles of peaceful settlement of disputes as laid down in the UN Charter. The PRC has however also drawn other lessons from Argentina’s experience, of a diplomatic and strategic nature. A possible conflict over Taiwan could play out along a similar scenario to the Falklands/Malvinas war. The most 54

55

The US ‘One China Policy’ is arguably more nuanced. See ‘What is the “One China” policy?’, BBC News, 10 February 2017, , visited 29 June 2017. Cf. P.C.W. Chan, ‘The Legal Status of Taiwan and the legality of the use of force in a Cross-Taiwan Strait Conflict’, 8 Chinese Journal of International Law (2009) pp. 455-492.

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salient point in the view of Chinese analysts is whether the US, which has provided a security guarantee for Taiwan, would actually come to its defence. They have been critical of Argentinian pre-war assessments that the UK would not come to the defence of the islands.56 Another parallel could be the kind of international backlash which China could expect if it would go ahead with an invasion. Franck’s assessment of the UN response suggests that even States sympathetic to the PRC position could feel sufficiently unsettled to produce a negative reaction within the UN and beyond. Awareness of this within the PRC leadership is likely one reason why it has refrained from reunification by force and has been focusing on other methods. Parallels between the Falklands/Malvinas War and possible PRC actions with regard to its other territorial disputes are more dependent on the point of view taken. One author has discerned a parallel in the Argentine junta’s motivation to initiate the war of 1982 to distract from domestic problems and appeal to widespread nationalism present in Argentine society, suggesting that a similar scenario could unfold with regard to a possible armed conflict between China and Japan over the Diaoyu/Senkaku islands. The disastrous outcome of the Falklands/ Malvinas War for Argentina may serve to dissuade the Chinese leadership from an “overplay of nationalism”. The author also advocates the establishment of a crisis management mechanism between Japan, the United States and the PRC to avoid overreactions to provocations by activists, which happened in the Falklands. Finally, he takes issue with assessments by realist international relations scholars that the ‘rise’ of China will inevitably lead to Chinese dominance in Asia. The lesson taken from the Falklands here is that domestic considerations are as important as international dynamics.57 This last consideration can also be applied to the South China Sea, where even more commentators have suggested that China’s building activities and general behaviour will inevitably lead to a strategic competition with the United States and an aspiration to become a regional hegemon. These realist assessments are contradicted by China’s own foreign policy rhetoric, in which it has consistently emphasised that it does not have hegemonic aspirations. Another counterargument is that of Thomas Franck, which is in line with the liberal belief that the UN Charter and its norms do act as a meaningful constraint on State action. 56 57

L. Goldstein, ‘China’s Falklands Lessons’, 50 Survival (2008) pp. 65-82. Liu, supra note 51.

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Concluding Remarks

As a State with a number of significant irredentist issues, the PRC has had more in common with Argentina than the United Kingdom. Its support for the Argentine claim to the Falklands/Malvinas is therefore easy to understand. The development of PRC foreign policy in the last three decades and a half has increased both its weight and its strategic interests in the South Atlantic. It has had strategic reasons to support Argentina, first in its desire to push back United States dominance, to compete with Taiwan, and to assume a leadership role in the developing world, and later in order to advance its economic interests. China will soon reach a new turning point in its foreign policy. As it cements its position as the second most powerful State in the world, it will be expected as well as aspire to define a larger global role for itself. Its diplomacy since 1982 has laid the groundwork for this. Its conduct in its relationship with Argentina demonstrates a keen sense of both its short- and long-term interests. The main legal and political lesson which the PRC can learn from the Falklands/Malvinas War and its aftermath is that the use of force is an undesirable and counterproductive way to settle its territorial disputes. In light of the way it has conducted its diplomacy so far, it appears that the PRC has learned this lesson well and would only contemplate the use of force as a last resort, even if it ‘could get away with it’ due to its position in the Security Council. At the same time, discussions between Argentina and the United Kingdom about eventual resolution of their dispute seem to be making limited progress, if any. The lesson to be drawn from that does not necessarily apply only to China, but rather to all States, and it is that better and more effective ways should still be found to settle territorial disputes.

International Criminal Law

∵

5 Risky Business: Witnesses and Africa’s ICC Withdrawal Sarah McGibbon*

Abstract The global response to South Africa’s failure to arrest President Omar al-Bashir when attending the African Union Assembly in the country in June 2015 sparked renewed protestations against the International Criminal Court (ICC) by African States. This in turn led to a call by South Africa for African States to pursue a collective withdrawal from the ICC. The practical, legal effect of such action on the ICC’s witness protection programme remains academically unexamined. This article sets out the witness protection framework, including challenges faced thereunder regardless of a mass withdrawal. This forms the foundation for considering the potential problems raised by any African walkout. The article explores the major problem of the enforcement of witness protection obligations in the event of States exiting the ICC. It endeavours to ignite deeper consideration of these issues and proposes starting points for potential solutions. The adequate protection of victims and witnesses plays a key role in the successful functioning of the Court, aiming to ensure that victims and witnesses participate and testify freely and truthfully without fear of retribution or further harm.1

1

Introduction

On 31 March 2005, the United Nations Security Council (UNSC) adopted Resolution  1593,2 in terms of which it referred the situation in Darfur * 1

2

Associate – Dispute Resolution at Cliffe Dekker Hofmeyr Inc., South Africa. S. Arbia, ‘The International Criminal Court: Witness and Victim Protection and Support, Legal Aid and Family Visits’, 36 Commonwealth Law Bulletin (2010) p. 520. UNSC Res 1593, 31 March 2005, UN Doc S/Res/1593.

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 115-160.

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from 1 July 2002 to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC or Court). Following the investigations of the OTP, President Omar al-Bashir, the current President of Sudan, stands accused of several international crimes under the Rome Statute.3 On 4 March 2009, the Pre-Trial Chamber of the ICC issued a warrant of arrest for President al-Bashir based on charges of war crimes and crimes against humanity.4 This was followed by a second warrant of arrest based on charges of genocide, issued on 12 July 2010.5 In June 2015, President al-Bashir was expected to attend the African Union Assembly in South Africa. At this point, the Government of South Africa (SA Government) was under pressure from civil society organisations to arrest President al-Bashir upon his arrival in the country in accordance with the arrest warrants.6 However, the SA Government declined to do so, arguing that President al-Bashir was protected from arrest due to the immunity granted to him under the Immunities Act.7

3 4

5

6

7

Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3. Prosecutor v. Al Bashir (Warrant of Arrest for Omar Hassan Ahmad Al Bashir), 4  March  2009, ICC, ICC02/05-01/09, , visited on 22 March 2017. Prosecutor v. Al Bashir (Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir), 12 July 2010, ICC, ICC-02/05-01/09, , visited on 22 March 2017. For an illustration of the pressure faced by the SA Government, see N. Onishi, ‘Bid by Omar al-Bashir of Sudan to Avoid Arrest is Tested in South Africa’, The New York Times, 14 June 2015, , visited on 22 March 2017; P. Fabricius, ‘SA Obliged to Arrest Bashir’, IOL, 22 May 2015, , visited on 22 March 2017; and Southern Africa Litigation Centre, ‘SALC Reminds SA Government: President Bashir Must Be Arrested’, 21 May 2015, , visited on 22 March 2017. Following this, 101 civil society organisations from around the world signed a declaration concerning President al-Bashir’s visit to South Africa and condemning the actions of the SA Government. See Southern Africa Litigation Centre, ‘101 Civil Society Organisations Support SALC’s Efforts to Arrest Bashir’, 2 July 2015, , visited on 22 March 2017. Diplomatic Immunities and Privileges Act 37 of 2001, South Africa (Immunities Act). This was the reason more broadly reported in the media—see, for ex-

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When asked to consider whether the SA Government was obliged to arrest President al-Bashir, the Gauteng Division of the High Court, Pretoria (High Court) found that the SA Government had failed to take “all reasonable steps” to arrest President al-Bashir, and declared the failure to do so to be inconsistent with the Constitution.8 On 11 October 2015, and following the outcry by civil society organisations, the South African ruling party (the African National Congress) resolved at its National General Council to take steps to withdraw from the ICC.9 It also called for the exit of all other African States in solidarity and in order to pursue an African solution.10 On 20 October 2016, South Africa delivered a formal notice of withdrawal from the Rome Statute to the United Nations (UN).11 If this cause finds enough support with the other States,12 this could potentially cause a number of problems for the

8

9

10 11

12

ample, M. Nkosi, ‘South Africa Criticised Over Sudan’s Omar al-Bashir’s Exit’, BBC, 24 June 2015, , visited on 22 March 2017. The formal legal argument is apparent from Southern Africa Litigation Centre v. Minister of Justice and Constitutional Development and Others [2015] ZAGPPHC 402; 2015 (5) SA 1 (GP) (SALC v. Minister of Justice) paras. 14–20. SALC v. Minister of Justice, supra note 7, para 5; and Constitution of the Republic of South Africa, 1996. The interaction between the international law obligation and the Constitution in this instance is critically examined in E. de Wet, ‘The Implications of President Al-Bashir’s Visit to South Africa for International and Domestic Law’, 13 Journal of International Criminal Justice (2015) pp. 1049–1071. African National Congress, Report of the 4th National General Council, 8-11 October 2015, p. 64, , visited on 22 March 2017. Ibid. UN Depositary Notification C.N.786.2016.TREATIES-XVIII.10, ‘South Africa: Withdrawal’, 19 October 2016, , visited 20 March 2017. Since then, South Africa’s withdrawal procedures have been terminated although it remains unclear whether this is temporary or a permanent end to its moves to withdraw from the ICC (see infra, note 159 for greater detail). Burundi has already made moves to withdraw, while Kenya, Namibia and Uganda have also indicated their intention to withdraw (although Uganda has indicated that its decision hinges on the resolution of the African Union (AU))— see, respectively, A. Maasho, ‘Burundi: Pierre Nkurunziza Signs Law Withdrawing Country’s ICC Membership’, Mail & Guardian Africa, 19 October 2016, visited on 22 March 2017; J.  Wanga, ‘Kenya Issues Threat to Pull Out of ICC’, Daily Nation, 22  November  2015, , visited on 22 March 2017; New Era, ‘Ndaitwah Clarifies Namibia’s Withdrawal from ICC’, New Era, 11 March 2016, , visited on 22 March 2017; and Agencies, ‘Uganda’s Withdrawal from ICC Will Depend on AU Decision’, Daily Monitor, 17 November 2016, , visited on 22 March 2017. Interestingly, Gambia previously initiated withdrawal proceedings; however, under President Barrow’s new leadership and less-insular foreign policy, it recently terminated all procedures to withdraw (UN Depository Notification C.N.62.2017.TREATIES-XVIII.10, ‘Gambia: Withdrawal of Notification of Withdrawal’, 10 February 2017, , visited on 20 March 2017). Stepping away from the African continent, Russia has also signaled its intention to withdraw from the Rome Statute—see S. Walker and O. Bowcott, ‘Russia Withdraws Signature from International Criminal Court Statute’, The Guardian, 16  November 2016, , visited on 22 March 2017. Philippines has since indicated that it may follow Russia’s lead—see N.J. Morales and S. van den Berg, ‘Philippines’ Duterte Says May Follow Russia’s Withdrawal from “Useless” ICC’, Reuters, 17 November 2016, , visited on 22 March 2017.

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texts as well as my suggestions for potential mechanisms that lie beyond the confines of strict international criminal law. (iv) In part 5, I shall summarise the conclusions to be drawn from the research. The most disconcerting conclusion is that, as it stands, we do not appear to have an entirely workable solution to the problems identified. While there will be a distinct focus on the effect of an African withdrawal, given that Africa is the largest regional group in the ICC,13 it will become apparent that some of these problems may present themselves on the withdrawal of any States Party. It is important for me at the outset to limit the scope of this article: I seek purely to identify different problems and propose approaches to address these by drawing on existing (legal and non-legal) structures and institutions in an attempt to identify avenues to mitigate the potential ramifications. In doing so, I shall also critique my own proposed approaches. The value of my reliance on numerous practical considerations lies in the importance and the purpose of the programme I consider and critique in this article. A purely theoretical discussion would not be sufficient as it would ignore the implications of the current international political climate in relation to the ICC for people placed in vulnerable positions in society through their cooperation with the Court.14 The questions I raise are hypothetical and, even in hypothetical form, do not yet (and are not intended to) have perfect solutions. There is no silver bullet: my intentions in this article are to initiate a discussion on these important issues so that should the African States carry out their threatened withdrawal, the Court is not left on the back foot at the expense of the people the ICCPP seeks to protect.

13

14

J. Dugard, ‘How Africa Can Fix the International Criminal Court’, Daily Maverick, 26 October 2015, , visited on 22 March 2017. Witness protection is an ICC-designated priority. See Assembly of States Parties Committee on Budget and Finance, Report of the Court on Measures to Increase Clarity on Responsibilities of Different Organs, ICCASP/9/34, 3 December 2010, para. 37, , visited on 22 March 2017.

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The Witness Protection Framework

Article 43(6) of the Rome Statute provides for a victims and witnesses unit (now known as the Victims and Witnesses Section (VWS)) within the Registry of the ICC.15 The VWS is responsible for the provision of “protective measures and security arrangements, counselling and other appropriate assistance for witnesses… who are at risk on account of testimony given by such witnesses”. Under Article  68(1), the Court has a duty to take “appropriate measures to protect the safety, physical and psychological wellbeing, dignity and privacy of victims and witnesses”, a duty which is placed on the Court as a whole.16 Chapter 3 of the Registry Regulations (from Regulation 79 onwards)17 deals with victims and witnesses. Regulation 96 deals specifically with the witness protection programme and regulates applications for admission into the programme.18 Although the precise manner in which the ICCPP operates is confidential, this regulation does provide some guidance on the criteria for participation in the programme.19 The VWS must consider: (i) the involvement of the witness before the Court; (ii) whether the witness or her family is endangered because of her involvement with the Court; and (iii) whether the witness agrees to enter the ICCPP.20 The ICC Rules also deal with victims and witnesses under section III.21 Crucially, rule 16(4) provides: 15

16

17 18

19 20 21

The Registry is the organ of the Court tasked with the non-judicial aspects of the administration and servicing of the Court under Article 43(1) of the Rome Statute. Although in reality this responsibility is assumed by the VWS, it is worth noting that this duty is placed on the Court as a whole as opposed to the VWS specifically and exclusively. Regulations of the Registry, ICC-BD/03-03-13 (Registry Regulations). The VWS conducts “a careful and independent evaluation and assessment of the information provided” in the application for admission, which includes an extensive interview with the witness and her family members as well as an analysis of other information available to the unit. See Prosecutor v. Bemba (Victims and Witness Unit’s Observations on the Protection Measures Available in Relation to the Individuals Concerned by the Prosecutor’s Proposal for Redaction), 18 August 2008, ICC, ICC-01/05-01/08-72-Red, para. 25, , visited on 22 March 2017. E. Irving, ‘Protecting Witnesses at the International Criminal Court from Refoulement’, 12 Journal of International Criminal Justice (2014) p. 1146. Regulation 96(3). Rules of Procedure and Evidence, ICC-ASP/1/3 (ICC Rules).

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Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential. Accordingly, the ICC pursues a policy of concluding relocation and other cooperation agreements with States in order to establish an effective protection programme.22 However, the Court has also made it clear that relocation of witnesses, particularly international relocation, is always a last resort due to the extent of the physical and psychological upheaval for the witness and her family.23 Once relocated, the protective States24 are expected to provide assistance with resettlement programmes including accommodation, the right to work, reunification of families, medical coverage, language training, access to psychological care programmes and special assistance for victims of torture.25 The Court maintains contact with relocated witnesses as long as necessary and tends to work in partnership with the protective States to achieve full integration of the relocated protected persons (which may include the witness herself as well as her family)—there is no specific time period in which the VWS aims to achieve this goal of full integration.26 The Court position, however, is that it is the protective State’s responsibility to maintain effective protection of the witness and her family, with the ICC merely monitoring that protection.27 22 23

24 25

26 27

Witnesses, , visited on 22 March 2017. Katanga and Ngudjolo Chui (Judgment on the Appeal of the Prosecutor against the ‘Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules’ of PreTrial Chamber I), 26 November 2008, ICC, ICC-01/04-01/07-776, para. 63, , visited on 22 March 2017. The use of the term ‘protective State’ and its derivatives indicates the State accepting the relocated witness and her family into its territory under the ICCPP. ICC Registry, Summary Report on the Seminar on Protection of Victims and Witnesses Appearing Before the International Criminal Court, 24 November 2010, para. 32, , visited on 22 March 2017 (Protection Report). Ibid., para. 6. Ibid., para. 10.

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2.1 Relocation Agreements Relocation is only achieved by agreement between the ICC and the protective States. At the outset, it is critical to understand the conceptual difference between framework relocation agreements and actual relocation agreements. In terms of framework relocation agreements, the contracting States agree that they may agree to receive witnesses under the protection programme in the future—there is no commitment or obligation to take any particular witness, or witnesses generally, from any situation country, and the ICC cannot compel them to do so.28 This is significant because the whole witness protection system is based on voluntariness and the cooperation of States. The Court has entered into these essentially non-binding framework relocation agreements with 17 States.29 However, the non-committal nature of these agreements is one of the major flaws of the ICCPP. Actual relocation agreements are the agreements that the Court enters into in respect of actually relocating specific witnesses to the contracting State, whether in terms of a previously concluded framework relocation agreement, or as an ad hoc agreement. When concluding framework relocation agreements with States, the VWS makes use of three different types of agreements:30 (i) States Parties are invited to host protected persons and are responsible for all of the expenses related to that assistance. This is the traditional form of agreement entered into which has recently lost some favour among States Parties in light of the more modern forms of agreement set out in (ii) and (iii) below. (ii) States Parties are invited to contribute to the Special Fund for Relocations (Special  Fund).31 The Special Fund is used to collect 28

29 30 31

International Bar Association, Witnesses Before the International Criminal Court, July 2013, p.  36, , visited on 22 March 2017 (IBA Report), which also confirms that, as at the time of its publication, there were States that had entered into framework relocation agreements but that had not yet agreed to accept any witnesses under the ICCPP. This number was obtained from an official of the Court and is correct as at 10 March 2016. The points set out in (i), (ii) and (iii) below can all be sourced in the Protection Report, supra note 25, para. 32. This approach has been used since 2009 (see ibid. and IBA Report, supra note 28, p. 39).

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resources from States Parties with the financial means to assist with relocations, but unable to shelter protected persons for other reasons. States willing to take in protected persons but without the financial means to do so may then be provided with the necessary financial support to host protected persons from the Special Fund and provide for their welfare and sustainability. (iii) States Parties may also agree to provide financial assistance in respect of witnesses from particular situation countries. Given that the number of relocation agreements concluded by the Court with various States has increased from 10 in November 2010 to 17 by March 2016,32 the new, more flexible approach to witness relocation agreements is arguably successful in its goal of encouraging more States to enter into relocation agreements. 2.2 Problems with the ICCPP Although the ICCPP is not the first witness protection programme in connection with an international forum,33 it is certainly the most comprehensive witness protection programme of the lot.34 The Court’s recognition of the importance of this programme is evident in its allocation of a significant portion of its financial resources to the VWS and, indirectly therefore, to the ICCPP.35 However, despite this commitment to the ICCPP, it is not without its flaws. In July 2013, the International Bar Association International Criminal Court Programme (IBA) released a report on “the ICC’s efforts and

32 33 34 35

Protection Report ibid. and the more recent number provided by an official of the Court. Witness protection programmes were run in respect of the ad hoc international criminal tribunals prior to the implementation of the ICCPP. S.N. Ngane, ‘Witnesses before the International Criminal Court’, 8 Law and Practice of International Courts and Tribunals (2009), p. 455. Assembly of States Parties, Proposed Programme Budget for 2016 for the International Criminal Court, ICC-ASP/14/10, 2 September 2015 (2016 Proposed Budget) at pp. 6, 147 and 150 showed that EUR 11 587 800 has been allocated to the VWS (7.56 per cent of the total ICC budget), which is a 31 per cent increase from the Proposed Programme Budget for 2015. The Proposed Programme Budget for 2017 for the International Criminal Court, ICC-ASP/15/10, 17 August 2016 (2017 Proposed Budget) at p. 163 indicates that EUR 11 340 700 has been allocated for 2017, maintaining the large investment in the VWS.

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challenges to protect, support and ensure the rights of witnesses”.36 The IBA identified the following key challenges in relation to witness relocation:37 (i) budgetary concerns, human resource shortages and inadequate leadership in the VWS;38 (ii) insufficient cooperation between the ICC and States Parties;39 (iii) the low number of framework relocation agreements;40 and (iv) failure to fulfil witness-related commitments by States Parties.41 2.2.1 Operational Structure of the VWS At the time of publication, the VWS was, according to the IBA Report, experiencing human resource challenges. It had lost a number of experienced staff members due to internal difficulties, and it lacked strong leadership at the management level.42 In addition, the operational budget of the VWS had been subjected to a zero-growth policy imposed by the States Parties.43 However, an overhaul procedure (known as ReVision) was commenced after the release of the IBA Report.44 It was during this overhaul procedure that the Victims and Witnesses Unit (or VWU) became known as the VWS instead. According to the 2016 Proposed Budget, ReVision resulted in significant structural changes. Although these operational challenges are not occasioned by the exit of any States Party, it is important to bear the existing infrastructural challenges in mind when determining the impact of any withdrawal. The VWS bears the onerous task of ensuring the safety of witnesses. If it is frustrated in the performance of its duties through a restricted budget and human resources issues, this will compound any problems experienced when States Parties withdraw.

36 37

38 39 40 41 42 43 44

IBA Report, supra note 28, p. 1. The scope of the IBA Report is far broader than the narrow area under consideration in this article. Therefore, the discussion will be limited to the relevant findings only. IBA Report, supra note 28, p. 7. Ibid. Ibid., p. 9. Ibid. Ibid., p. 28. Ibid. 2016 Proposed Budget, supra note 35, p. 147.

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2.2.2 State Cooperation and Framework Relocation Agreements Given that the entire witness protection system is based on State cooperation, the failure of States to cooperate appropriately is extremely problematic: in fact, it is one of the biggest threats to the adequate protection of witnesses.45 Cooperation requests are both time- and resource-intensive and “have not always led to the desired and urgently needed result”.46 The IBA found that certain States Parties are very cooperative, meaning that many cooperation requests are sent to those particular States, resulting in “burnout or overload”.47 Between 1 August 2015 and 31 July 2016, the Registry transmitted 224 requests for cooperation to various States.48 In relation to witness relocation specifically, the existence of framework relocation agreements helps to facilitate future cooperation requests.49 Indeed, the importance of these framework relocation agreements is emphasised by the fact that the Court’s Strategic Plan includes the goal of increasing the number of framework relocation agreements entered into with States.50 However, as expressed by Human Rights Watch, “a central challenge with regard to cooperation and support is converting broad proclamations into policy and practice”.51 In fact, as 45 46 47 48

49 50

51

Arbia, supra note 1, p. 520. Ms Silvana Arbia is the former Registrar of the ICC. Ibid. IBA Report, supra note 28, p. 34. Report of the International Criminal Court on its Activities in 2015/16, A/71/342, 19  August 2016, para.  91, , visited on 5 December 2016 (2016 ICC Report). IBA Report, supra note 28, p. 35. ICC Registry, International Criminal Court Strategic Plan 2013 – 2017 (Interim Update—July 2015), para. 3.4, , visited on 5  December 2016 (Strategic Plan). Further goals in this regard include increasing States’ understanding of the Court’s urgent needs in relation to bilateral cooperation agreements, exploration of partnerships to assist States to conclude agreements of importance to the Court and increasing external and internal levels of cooperation with respect to witness protection. Prior to the publication of the IBA Report, Human Rights Watch published a report of its own: Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Years, 2008, p. 213, , visited on 5  December 2016 (HRW Report).

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the IBA Report notes, “States Parties have repeatedly pledged and reiterated their unswerving commitment to the Court with little obvious success, as evidenced by the paucity of witness relocation agreements”.52 In total, there are currently 575 people in the ICCPP (comprising 110 witnesses and 465 dependents).53 It is predicted that more than 110 witnesses will remain under the ICC’s protection in 2017 (the figure includes 49 internationally-relocated witnesses who are in the care of the protective State but are being monitored by the VWS) and a further 14  100 individuals will apply for protection.54 With so few framework relocation agreements in place (considering that there are 124 States Parties),55 this puts enormous strain on the States Parties who are more willing to cooperate and on the VWS itself. Where a framework relocation agreement is in place, it can reduce the time it takes to relocate a witness by approximately six months—this is significant when considering that a relocation where no agreement is in place (i.e. an ad hoc relocation done through an actual relocation agreement only) can take up to a year.56 The existence of a framework relocation agreement also saves resources as the relocation process then operates “at a technical level” where there is no need to involve the Cooperation Unit of the Registry.57 Where it is an ad hoc agreement, the Cooperation Unit must navigate its way through the full bureaucratic process involving multiple government departments (such as immigration, foreign affairs and justice) which is costly from both time and financial perspectives.58 Troublingly, this low number of framework relocation agreements “seriously restricts the ability of the [VWS] to relocate witnesses”.59 52

53 54 55

56 57 58 59

IBA Report, supra note 28, p. 41. It is worth noting for the sake of later argument that if the success of the ICCPP is hard-won when States pledge their commitment to the Court, that success will be even more difficult to achieve when States do not support the Court. 2017 Proposed Budget, supra note 35, p. 13. Ibid. See The States Parties to the Rome Statute, , visited on 22 March 2017. IBA Report, supra note 28, pp. 35–36. Ibid., p. 36. Ibid. C. Mahony The Justice Sector Afterthought: Witness Protection in Africa (Institute for Security Studies, Pretoria, 2010), p. 54.

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Judge Monageng (at the time the First Vice President of the Court) has herself stated that “[t]he lack of [framework] relocation agreements results in the [VWS] having to find temporary solutions, pending final acceptance by a state”, meaning that “the Registrar ultimately may have to make very difficult decisions and choices as to who should be protected”.60 This also has an impact on the efficiency of proceedings before the Court,61 as it may delay proceedings where it is uncertain to what extent adequate protection can be provided for a witness. Further, the goal of integrating witnesses as seamlessly as possible is difficult to achieve without a diverse network from which to choose the protective State.62 Therefore, if there are framework relocation agreements in place for each of the continents, witness relocation decisions could be more tailored to suit the background of each witness to make her integration easier.63 The IBA Report identified a particular need for framework relocation agreements in Africa.64 This need appears to have been addressed somewhat, albeit minimally, by the conclusion of three framework relocation agreements with African States in 2013.65 This number may even have increased since then, with an official of the Court confirming in March 2016 that African participation in witness relocation is very good.66 As a more general point, the more framework relocation agreements that are in place, the more difficult it will be for ill-intentioned governments and non-State actors to determine where relocated witnesses may live.67 60

61 62 63 64

65 66 67

S.M. Monageng The Shortage of Relocation Agreements: Impact on the Proceedings (Side Event – Assembly of States Parties 11th Session, 19 November 2012, The Hague), as recorded in 2013 Report of the Court on Cooperation, ICC-ASP/12/35, 9 October 2013, p.5, , visited on 5 December 2016 (2013 Cooperation Report). Ibid. See the Protection Report, supra note 25, para. 36. This aspect will be discussed in greater detail later in this article. Monageng, supra note 60. IBA Report, supra note 28, p. 36. This was further supported by Mahony, supra note 59, p.55, who has previously identified that (at the time) only South Africa had a witness protection programme capable of admitting a witness under ICC protection. 2013 Cooperation Report, supra note 60, p. 5. This was confirmed by the official in an interview I conducted with her. Monageng, supra note 60.

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2.2.3 Other Problems Even were there sufficient framework agreements in place, the uncertain extent of the protections afforded by the witness protection framework may leave witnesses in a vulnerable position. Eikel, for example, has written on the ambiguity that is inherent in the statutory framework in relation to which organs of the Court bear certain responsibilities.68 His argument is that this ambiguity leaves it unclear as to the practical implementation of the witness protection measures;69 however, his criticism centres on witness protections pre-testimony and during testimony, and not on witness relocation, and therefore does not truly fall within the limited scope of this article. Irving also writes about ambiguity in the system, but instead focuses on the lack of transparency this causes from the perspective of prospective applicants for protection through the ICCPP.70 This opaqueness has left some witnesses unwilling to rely on the VWS for protection, turning instead to applications for asylum in the Netherlands for a number of reasons:71 (i) it is not clear to witnesses whether they will have the same substantive and procedural rights under the ICCPP as they would otherwise have under international law;72

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M. Eikel, ‘Witness Protection Measures at the International Criminal Court: Legal Framework and Emerging Practice’ 23 Criminal Law Forum (2012) p. 97. Ibid., p. 101. Irving, supra note 19, p. 1142. Ibid., p. 1146. The argument is that the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) requires certain protections to be afforded to persons who would be at risk if returned to their home countries and that this can only be provided by a State. Since the ICC has no territory, it cannot guarantee these rights. As a procedural point, it is unclear what safeguards and protections are to be afforded to witnesses under the ICCPP; while at a substantive level, the confidential nature of the ICCPP is such that it is unknown whether there is a set of minimum rights from which witnesses will benefit and whether these minimum rights apply across all protective States. There is also a difference in the relationship between the protected persons and the protective State where the relationship is created in terms of the ICCPP in comparison with asylum (see Irving’s summation of these arguments ibid., pp. 1146–1148).

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(ii) the scope of protection for the witnesses and their families under the ICCPP is narrower than under refugee law;73 and (iii) concerns about the ICCPP’s reliance on State cooperation.74 These reasons for turning to the asylum system presented themselves in various guises in the case concerning certain witnesses in the trials of Mr Germain Katanga and Mr Mathieu Ngudjolo Chui, where those witnesses argued that they could not be removed from the territory of the Netherlands (to be returned to their home States) as such removal would violate the principle of non-refoulement.75 The Court took a restrictive view of this interpretation and found that in order for the principle to apply, the Court would need to possess territory in the international law sense (which it does not).76 The witnesses were therefore excluded from the protections of international refugee law in these circumstances. Irving argues that although the origins of this prohibition on refoulement lie in refugee law,77 its humanitarian and social nature gives it a human rights character.78 By recognising the prohibition as having a human rights character, it is brought within the scope of Article 21(3) of the Rome Statute,79 which requires that the Rome Statute be interpret-

73

74 75

76 77 78

79

Under the ICCPP, the scope of the protection is limited to the risks incurred because of the witness’s assistance to the Court, whereas the protection offered under refugee law is much broader. As noted in Arbia, supra note 1, p. 522, the whole ICCPP will be ineffective if States Parties do not participate adequately. Katanga and Ngudjolo Chui (Decision on an Amicus Curiae application and on the ‘Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02P-0236, DRC-D02-P-0228 aux autorités néerlandaises aux fins ďasile’ (Articles 68 and 93(7) of the Statute)), 9 June 2011, ICC, ICC-01/04-01/07, , visited on 22 March 2017. Ibid., para. 64. Today encapsulated in the Refugee Convention. Irving, supra note 19, p. 1143 read with fn 3, relying on the existence of provisions with wording similar to that of Article 33 of the Refugee Convention in Article 28 of the American Convention on Human Rights ‘Pact of San Jose’, Costa Rica (adopted 22 November 1969, entered into force 11 July 1978) 1144 UNTS 123, as well as chapter 1(2) of the Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res 428(V), 14 December 1950, UN Doc A/RES/428(V). Article 21(3) reads: “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined

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ed in compliance with human rights norms.80 This effectively means that, on Irving’s argument, the principle of non-refoulement applies in respect of witnesses before the ICC despite the fact that the Court does not possess territory because it would be inconsistent with the human rights nature of that principle to find otherwise and, therefore, would contravene Article 21(3) of the Rome Statute. Irving further argues that implementation of the prohibition against refoulement may take place in a traditional manner while still informing the interpretation and application of the Rome Statute.81 Irving’s argument represents an attempt to bring human rights law obligations into the realm of international criminal law, something which may be key to solving not only the current problems facing the Court in relation to the ICCPP, but also in dealing with the fallout of an African withdrawal. It should now be clear that the ICCPP’s reliance on State cooperation has rendered it overly reliant on the willingness of a few States Parties to take on the protective role and creates uncertainties as to how much the ICC itself can contribute to the programme. With a greater understanding of these problems, it is now possible to move on and consider issues that may be raised by the potential African withdrawal.

3

Potential Problems Raised by the Withdrawal

Should African States follow South Africa’s call to withdraw from the ICC, the ramifications to be addressed by the ICC—the VWS in particular, which will largely be left to pick up the pieces—can broadly be divided into the following three strands: (i) impacts on the risk assessments conducted by the VWS in applications for admission to the ICCPP and ongoing reassessment of risk to the protected persons; (ii) the reduction in possible protective States; and (iii) the question of what happens to the existing framework and actual relocation agreements, and those persons relocated in terms thereof.

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in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” Irving, supra note 19, p. 1142. Ibid., p. 1143.

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3.1 Assessment and Reassessment of Risk Between 16 September 2015 and 15 September 2016 alone, 52 witnesses and 320 dependents were relocated by the Court.82 This is on top of the hundreds of protected persons who have been previously relocated. One of the key principles in concluding actual relocation agreements is that witnesses should always, where possible, be relocated to a State where the cultural, linguistic and geographic particularities are close to the person’s country of origin, with a preference for relocation within the same region.83 This is of particular importance when considering the impact of an African withdrawal from the ICC given that the majority of situations currently before the Court (in some form or another) are located in Africa.84 This means that, if the Court has applied this principle in practice, any witnesses relocated under the ICCPP to date will presumably, for the most part, have been relocated within Africa. If the antagonistic attitude displayed by African States towards the ICC continues, it may be a cause for concern in the sense that relocated persons may be placed at greater risk in their protective States. It seems rather unlikely that problems for relocated witnesses will actually materialise given that protective States are presumably bound by fairly onerous confidentiality arrangements under the framework or actual relocation agreements. The possibility remains though, no matter how implausible, that States could renege on their commitments as protective States (feeling less obligated to honour the agreements having severed ties with the ICC) which places the witnesses living under their protection at great risk. Therefore, it is necessary to consider this risk, albeit briefly, no matter how hypothetical or even unrealistic it might be. Registry Regulation 96(6) provides that the need for continued participation in the protection programme will be reassessed every 12 months. However, once a witness has been relocated, her participation

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Report on the Activities of the International Criminal Court, ICC-ASP/15/16, 9 November 2016, p.  2, , visited on 5 December 2016. Protection Report, supra note 25, para. 36. See also the Strategic Plan, supra note 50, para. 3.4.2. See Dugard, supra note 13. Indeed, it was previously noted by Belgium that this consideration of cultural similarity is of particular importance for protected persons from Africa (Protection Report, ibid.).

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in the programme appears to be treated as permanent, and the obligation to undertake annual reassessments seems to fall away.85 Upon application for admission to the ICCPP, a risk assessment is conducted by the VWS;86 however, it is unclear what factors are considered to increase the risk to the witness to such an extent that it is considered necessary that she be relocated.87 A significant change in the protective State’s attitude towards the ICC (especially where such a change in attitude essentially questions the legitimacy of the Court and its actions) may necessitate a reassessment of the risk to the witness and her family once they have been relocated. Thus, in this particular context, it may be necessary and strongly advisable for the VWS to reassess the risks posed to witnesses already relocated in African States participating in any withdrawal. The ultimate outcome of such a risk assessment could easily boil down to a political question though, and is not best dealt with in any kind of speculative detail here. It is unknown to the public whether the attitude of the protective State is considered as part of the VWS’s initial risk assessment; however, it is conceptually not hard to imagine that this could become a new factor for consideration in future applications for admission to the ICCPP (if it is not one already). It may even be a fairly significant one given the current display of contempt for the Court by some African States.88 As the Court has noted, the criteria considered in the initial risk assessment are only “one of the available tools” in what is an “organic and developing area”,89 so there is room to accommodate an ad.

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89

Instead, the role of monitoring the witness and her family and assisting with societal integration falls to the protective State, as discussed earlier in this article. See supra note 18. The precise criteria for admission into the ICCPP are confidential (HRW Report, supra note 51, p. 170). Registry Regulation 96(3), read with Article 68(1) of the Rome Statute, sets out factors to be considered by the VWS when considering applications for admission. However, these provisions do not provide any information as to what may or may not be considered problematic—this information has been kept entirely confidential by the Court. As Eikel notes, beyond the general principles of witness protection, more in-depth public information is scarce (Eikel, supra note 68, p. 119). Eikel ibid., p. 132 and Mahony, supra note 59, p. 53 argue that conducting the risk assessment for admission into the ICCPP is essential when it comes to detecting fluctuations in risks in a timely manner. Prosecutor v. Lubanga (Decision on Responsibilities for Protective Measures), 24 April 2008, ICC, ICC01/04-01/06, para. 41, , visited on 22 March 2017.

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ditional criterion going forward. It is submitted that this should be assessed as a criterion in considering applications for admission to the ICCPP in future cases, if it does not already form part of the basket of considerations taken into account. It is likely that this criterion of the State’s attitude may play a more significant role during the transitional period (where exiting States Parties are sitting out their withdrawal notice periods) than at a later stage. This is so because the Court already contemplates entering into relocation agreements with non-States Parties,90 and thus the fact that a State does not wish to be a member of the Court will not itself prevent the VWS from relocating a witness to that State. The importance of nonmembership here is relevant because of the context in which the African State in question has resolved to be a signatory to the Rome Statute no longer, and the antagonism that led to that State’s withdrawal from the ICC. This hostility will be at its peak during the transitional period, while the exiting States Parties are still obliged to be involved with the Court’s processes. With any luck, once the States have withdrawn and tensions have settled, the African States will view the process of witness relocation as independent of the perceived bias of the Court and their attitude will no longer be hostile in this respect at least. 3.2 Reduction in Potential Protective States Given the confidential nature of the identity of the States who have accepted, or agreed in principle to accept, witnesses under the ICCPP, it is impossible to tell whether these relocation agreements have been concluded with non-States Parties. Although this is possible in theory, seeing a number of States withdraw would reduce the number of potential relocation partners for future matters if the Court has any kind of policy preferring relocation agreements to be concluded with States Parties. This could make relocation difficult where a matter involving an African country that does not exit the ICC, or a matter referred to the Court by the UNSC where the African State is not a party (such as in the case of Darfur), necessitates the relocation of a witness and her family. Given the priority of relocating witnesses to States similar to their home State,

90

See rule 16(4) of the ICC Rules. The wording of the Rome Statute and the other documents governing witness protection do not prevent relocation of witnesses to non-States Parties.

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this reduction in the number of potential African States will hamstring the VWS and may compromise the best interests of the witness.91 3.3 Existing Relocation Agreements The truly meaty, overarching issue for consideration in this article is the question of what happens in relation to the existing framework and actual relocation agreements. This is a simple-sounding question with a surprisingly complex answer when extended beyond its straightforward academic application. An example of this type of issue may be where State A has taken in a witness (Ms X) and her three family members in accordance with an actual relocation agreement concluded with the ICC. Under this agreement, State A is responsible for the costs of integrating Ms  X’s family into society, including the cost of public education for her two dependent children.92 State A, a central African State aggrieved by perceptions of bias at the ICC, has withdrawn from the Court subsequent to receiving Ms X and her family into the country. As a further sign of its dissatisfaction with the ICC’s actions, State A does not assist Ms  X with placing her children in the public schooling system and does not cover the financial costs associated therewith. Ms X manages to make contact with the VWS to raise her concerns. Knowing that State A has breached the relocation agreement, what can the ICC do? A legal professional accustomed to drafting contracts of any variety would firstly turn to the relocation agreement itself to establish what it dictates in cases of non-performance or breach, and the dispute resolution mechanisms. Without access to the agreements concluded by the Court, it is impossible to say if this issue is dealt with in the relocation agreements as a matter of course. However, given that the witness relocation system is based on voluntariness and cooperation on the part of States Parties, and that these agreements are possibly drafted in a manner that would entice more States to enter into them,

91 92

This problem has already been noted by Monageng, supra note 60. As the content of relocation agreements is highly confidential, one must instead make reasonable assumptions based on the information that is available to the public. See Protection Report, supra note 25, para. 32 for some examples of what may be included in a protective State’s obligations. It does not seem outlandish to consider education of minor children in the public school system to be part of a protective State’s obligations in relation to protected persons, given that this is crucial to the integration of those minors into their new society.

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it is possible that it is not—if it is dealt with, it may not be as robust as it could, or even should, be. The Rome Statute establishes a general duty of cooperation on States Parties under Article 86,93 and under Article 93(1)(j) sets out a specific obligation in relation to the protection of witnesses.94 Article 127(2) provides that exiting States are not relieved of obligations that arose while the State was still a party to the Rome Statute; therefore, the duty to cooperate will still be effective in relation to the exiting States insofar as current matters are concerned.95 Under this duty, State A would be obliged to cooperate with the Court in the terms set out in the actual relocation agreement. That is, if State A agreed to facilitate and fund the integration of Ms X’s minor children into the public schooling system whilst it was still a States Party, it must do so under its duty to cooperate, even after it has withdrawn from the ICC. However, in the circumstances in which all of these issues are being considered, it is important to look beyond this basic solution. The calls for the mass withdrawal by the African States come on the back of a flagrant disregard for South Africa’s international law obligations by failing to arrest President al-Bashir.96 The African States have questioned 93

94

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96

Article 86 reads: “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Article 93(1)(j) reads: “States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: The protection of victims and witnesses and the preservation of evidence”. The duties encapsulated in Articles 86 and 93(1)(j) of the Rome Statute will collectively be referred to ‘the duty to cooperate’. Article 127(2) states: “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” The SA Government appealed the finding of the High Court in SALC v. Minister of Justice to the Supreme Court of Appeal (SCA). The appeal was dismissed by the SCA, but for it varying the declaratory order of the High Court to take account of the fact that President al-Bashir had already left the country: “The conduct

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the legitimacy of the Court on the basis of a perception of bias against Africa. In a climate where “so what?” is the default response by disgruntled African States to accusations of non-compliance by the Court, one might hardly expect anything different in State A’s situation with Ms X. Perhaps this example is somewhat absurd—in such a minor instance of non-performance, a resolution through discussion would probably be quite easy to achieve because of a combination of two key factors: knowledge and opportunity. In this example, Ms X and her family are not placed at great risk (in the sense of a threat to safety or life) by her children not being speedily incorporated into the public schooling system. The ICC is aware of the breach by State A and has the time to rectify it in a manner that is conducive to healthy future relations between all the parties. However, it would be negligent not to consider the more extreme possibilities that arise in the context of witness protection, particularly as most of the ICC’s investigations and prosecutions take place in ongoing armed conflicts, or immediate post-conflict situations.97 The threshold for admission to the ICCPP is high: “a high likelihood that the witness will be harmed or killed unless action is taken”;98 and the VWS “can only recommend participation in the ICCPP… if the threshold in relation to the level of risk has been met”.99 The witnesses under consideration in this article were, and may continue to be, at great risk because of their assistance to the Court. The peculiarities of their situation mean that their protective States may breach the terms of their relocation agreements in ways that are far graver than failure to facilitate and finance admission to the public schooling system. It is not inconceivable that, at the extreme end of the scale, witnesses

97 98

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of the [SA Government] in failing to take steps to arrest and detain, for surrender to the International Criminal Court, the President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in South Africa on 13 June 2015 to attend the 25th Assembly of the African Union, was inconsistent with South Africa’s obligations in terms of the Rome Statute and section 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful.” See the SCA order: Minister of Justice and Constitutional Development and Others v. Southern Africa Litigation Centre and Others [2016] ZASCA 17; 2016 (3) SA 317 (SCA), para. 113. Eikel, supra note 68, p. 98. Prosecutor v. Lubanga (Decision Regarding the Timing and Manner of Disclosure and Date of Trial), 9 November 2007, ICC, ICC01/04-01/06-1019, para. 20, , visited on 22 March 2017. Prosecutor v. Bemba, supra note 18, para. 8

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could be threatened, attacked or assassinated. It is possible (perhaps even probable) that the protected persons themselves or the ICC would not be aware of the risk to the protected person before it is too late to do anything:100 neither knowledge nor opportunity are given, and one without the other is wholly unhelpful. This renders the duty to cooperate that continues to bind withdrawn States Parties meaningless and what, really, is the point of the duty if it has no meaning for the people it aims to protect? Schabas has already noted that “[s]tate cooperation is the area where the Court is at its most vulnerable”.101 It is in these situations where the greatest problem lies. As mentioned, even if one had knowledge of a threat to the safety of a protected person, the opportunity to address it may be lacking. Unfortunately, that means that the enforcement issues I discuss in the following part of this article may only become relevant in the management of the fallout from a tragic incident, rather than in a situation where there is a happy ending for the protected persons under threat. Therefore, where the duty to cooperate is in operation, but a State has adopted a position of contempt in relation to that duty, there must be some enforcement mechanism on which the Court may rely to ensure cooperation in this high-risk area. But what is it?

4

Enforcement Mechanisms (Or How to Pin States Down)

Part 9 of the Rome Statute deals with the duty to cooperate, including requests for cooperation by the Court and the procedure where there is a failure to comply with such a request. In particular, Article 87 sets out the rather vague procedure for making requests.102 The language of Ar100

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At an earlier stage in the relocation process, when the VWS has the benefit of both knowledge and opportunity, the Court has acknowledged that the processes involved in witness relocation take time. See M. Dubuisson et al, ‘Contribution of the Registry to Greater Respect for the Principles of Fairness and Expeditious Proceedings before the International Criminal Court’ in C. Stahn and G. Sluiter (eds.) The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers, Leiden, 2009) p. 574. W. Schabas The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, Oxford, 2010) p. 976. Article 87(1)(a) provides that requests to States Parties “shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession”.

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ticle 87 implies that this duty is generally to be discharged upon request by the Court.103 For requests that relate to protection of witnesses in particular, the request should usually be in writing,104 and should contain the information specified under Article 96(2).105 As discussed previously, the duty to cooperate incorporates both the general obligation to assist with the prosecution of crimes as well as the more specific duty to assist with the protection of witnesses. On this basis, one must view entry by a States Party into a relocation agreement (framework or actual) not as an assumption of a voluntary obligation but, rather, an exercise of choice as to the form of assuming the peremptory obligation to protect witnesses. If this is so, the duty to cooperate cannot stop at the mere conclusion of the agreement—that would be formalistic and would do violence to the purpose motivating the inclusion of the cooperation provisions in the Rome Statute.106 I therefore propose that the duty to cooperate extends beyond the formal conclusion of relocation agreements, and applies to the obligations undertaken therein.

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Sub-paragraph (b) provides that “requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization”. Article 87(3) provides for the confidentiality of requests for cooperation. A. Ciampi ‘The Obligation to Cooperate’ in A. Cassese et al (eds.) The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, Oxford, 2002) p. 1613. Article 96(1) provides that a request for a form of assistance set out in Article 93 (which includes assistance in relation to the protection of witnesses at Article 93(1)(j)), shall be made in writing or, in urgent cases, any medium capable of delivering a written record. This information is not of any relevance to the arguments advanced in this article and has therefore been excluded for the purpose of brevity. The Preamble to the Rome Statute provides: “Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. (Emphasis added.) This focus on international cooperation, considered together with the position of Arbia, supra note 1 that the “adequate protection of victims and witnesses plays a key role in the successful functioning of the Court, aiming to ensure that victims and witnesses participate and testify freely and truthfully without fear of retribution or further harm”, evinces the purpose of including cooperation provisions in relation to witness protection and confirms that witness protection is an inseparable part of the Court’s functions.

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This duty also applies to non-States Parties that are otherwise unburdened by obligations under the Rome Statute—which the exiting States will eventually be—entering into relocation agreements with the ICC. Article 87(5)(a) of the Rome Statute provides that the ICC may invite any non-States Party to provide assistance under Part 9 on the basis of an ad hoc arrangement, an agreement or “any other appropriate basis”. Article 93(1)(j) of the Rome Statute, which specifically provides for assistance by States in relation to the protection of witnesses, falls under this part. Therefore, by assuming an obligation to protect witnesses through a relocation agreement concluded on the basis of the Court’s authority under Article 87(5)(a) of the Rome Statute, the contracting non-States Party will be bringing itself within the purview of the duty to cooperate ordinarily placed on States Parties alone: by virtue of entering into that relocation agreement, it is consenting to be bound by the obligations in Part 9. On this interpretation, the general duty of cooperation sourced in Article 86 will also extend to the specific ad hoc obligations assumed by non-States Parties under witness relocation agreements (as per my argument set out in the paragraph directly above). Article 87(5)(b) then provides that the cooperation request procedures may be followed where the non-States Party that has agreed to provide assistance is not doing so. Therefore, the discussion below is equally applicable in the case of future relocations to exiting States in terms of actual relocation agreements. Coming back to our hypothetical example, this wide understanding of the duty to cooperate would enable the ICC to make use of the procedure set out in Article 87 to request cooperation by State A as far as Ms X’s children are concerned. This in turn opens up a number of potential avenues should State A persist in its breach of the relocation agreement. 4.1 Referral to the UNSC If the above contention is accepted, it would seem simple to be able to turn to the ‘enforcement’ provision in Part 9 of the Rome Statute where a States Party (or former States Party) fails to comply with the duty to cooperate. Article 87(7) provides: Where a State[s] Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer

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the matter to the Assembly of States Parties or, where the [UNSC] referred the matter to the Court, to the [UNSC].107 It is self-evident that this course of action is only available where the matter was referred to the Court by the UNSC (as was the case with Darfur). Therefore, this is not a readily-available route for the ICC to pursue and will seldom find application. Where a matter does make it to the UNSC for consideration, it will come up against the usual problem of the ‘permanent five’ veto powers. Cooperation to protect the lives of witnesses may, therefore, be subjected to the political willpower of non-States Parties and the to and fro of political alliances by major countries with interests in maintaining good relations with various African States. It may thus be possible for the non-compliance of a State effectively to go unpunished at an international level. In its 2015 report to the UN, the ICC has noted that “the capacity of the [UNSC] to refer a situation to the Court is crucial to ensure accountability, but without the necessary follow-up, in terms of ensuring cooperation… justice will not be done”.108 Further, any “perception of inactivity on the part of the [UNSC] in taking further measures to ensure that cases can be brought to the courtroom would risk undermining the credibility of both the [UNSC] and the Court”.109 Historically, the UNSC has been slow to respond to non-cooperation communications from the ICC.110 Therefore, the route of UNSC referral may not be viable where matters have originated in the UNSC given its politicised nature and questionable track record as far as cooperation communications are concerned. 107

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Regulation 109(4) further provides that where a finding has been made by the Court under Article 87(7) “the President shall refer the matter to the Assembly [of States Parties] or the Security Council”. Report of the International Criminal Court on its Activities in 2014/15, A/70/350, 28  August 2015, para.  91, , visited on 7 December 2016 (2015 ICC Report). Ibid. The 2015 ICC Report ibid., para. 92 indicates that in August 2015, 11 communications from the ICC to the UNSC concerning non-cooperation in Darfur and Libya remained unanswered. The 2016 ICC Report, supra note 48 does not include the number of unanswered communications, but at para. 84 mentions only one collective response from the UNSC in December 2015, re-sent in March 2016. This presumably addresses the 11 outstanding communications as well as the three new communications sent in the 2016 reporting period.

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The next step is to consider referral to the Assembly of States Parties (Assembly). 4.2 Referral to the Assembly Article 112(2)(f) of the Rome Statute provides that the Assembly shall consider questions relating to non-cooperation under Article 87(5) and (7). Understanding that the scope of the Assembly’s powers is limited is crucial in trying to find meaning in the solutions to potential non-cooperation offered by international criminal law. In this regard, in its Procedures Relating to Non-Cooperation (Non-Cooperation Procedures), the Assembly notes that any response by it to a referral by the Court would be non-judicial in nature and would be limited to its competencies under Article 112 of the Rome Statute.111 It further notes that it “may certainly support the effectiveness of the Rome Statute by deploying political and diplomatic efforts to promote cooperation and to respond to non-cooperation. These efforts, however, may not replace judicial determinations to be taken by the Court”.112 The Non-Cooperation Procedures are fairly comprehensive in setting out a list of steps to be taken once a matter of non-cooperation has been referred to the Assembly in terms of a decision of the Court,113 and, exceptionally, where the Court has not yet referred the matter but— there are reasons to believe that a specific and serious incident of non-cooperation in respect of a request for arrest and surrender of a person… is about to occur or is currently ongoing and urgent action by the Assembly may help bring about cooperation.114 However, what the Non-Cooperation Procedures document does not set out is what the Assembly may actually do beyond a formal or informal response through a series of letters and meetings aimed at encouraging cooperation and accounting for noncooperation by the State concerned.115 111 112 113 114 115

Assembly Procedures Relating to Non-Cooperation; ICC-ASP/10/Res.5 as amended by ICCASP/11/Res.8 annex 1, para. 6. Ibid. Emphasis added. Ibid., para. 7(a). Ibid., para. 7(b). These procedures are fully set out in the Non-Cooperation Procedures, supra note 111, paras. 13–20.

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Turning to Article 112 of the Rome Statute, which restricts the Assembly’s powers, one notes that the Assembly is empowered to “take appropriate action” in relation to reports of the Bureau of the Assembly (Bureau).116 However, it is unclear from the Rome Statute and from the Non-Cooperation Procedures quite what ‘appropriate action’ is or may be. A consideration of the Bureau’s most recent report on non-cooperation is similarly unhelpful.117 The unfortunate conclusion to be drawn from this web of cross-references is that the Assembly is not empowered to do anything beyond “deploying political and diplomatic efforts”.118 This would be of little comfort to a relocated witness whose safety is at risk. Apart from this apparent impotence, there is the problem of the long delay between the act of non-cooperation and receipt of the referral by the Assembly inherent in the procedures.119 The Assembly is not empowered to take any action without a referral where the matter of non-cooperation does not concern a request for arrest or surrender of a person, therefore, it must wait for a referral by the Court.120 Once again, although the element of knowledge may be present, the lack of opportunity denies the Court the time it needs in order to consider a matter of non-cooperation and issue a decision. Even after that, the procedures to be followed by the As116 117

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Article 112(2)(c) of the Rome Statute. Report of the Bureau on Non-Cooperation, 5 December 2014, ICC-ASP/13/40, , visited on 7 December 2016. The document is largely concerned with non-cooperation by several States Parties in relation to the arrest warrants for President al-Bashir. However, there is no sign of any tangible action being taken against the States Parties where the Court issued a decision declaring that there was non-cooperation (for example, see Prosecutor v. Al Bashir (Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court), 9 April, 2014, ICC, ICC-02/05-01/09-195, , visited on 22 March 2017 (Cooperation of the DRC)). The IBA Report, supra note 28, p. 40 also confirms that “the Assembly itself has still not finalized the clear mechanisms for addressing findings of non-cooperation by the Court”. For example, in the context of Cooperation of the DRC, President al-Bashir visited the Democratic Republic of the Congo (DRC) at the end of February 2014 and a decision confirming the non-cooperation by the DRC and referring that noncooperation to the Assembly was only issued on 9 April 2014, long after President al-Bashir had left the country. Non-Cooperation Procedures, supra note 111, paras. 7(a)–(b).

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sembly are somewhat time-consuming and seem to cater for addressing situations of non-cooperation after the opportunity for cooperation has long passed. This seems to suggest that, at best, some form of retrospective censure is the only real power which can be exercised, rather than the far more helpful prevention or remedying of the actual breach. The overarching conclusion that can be drawn from this analysis is that international criminal law, in the strict sense, does not contain an effective and meaningful solution to the problem of non-compliance in relation to protection of relocated witnesses. The logical and essential next step is to look beyond the confines of the Rome Statute and its related texts and consider whether a solution may lie elsewhere. 4.3 Domestic Courts 4.3.1 Compliance Theory in International Law I have already argued that the obligation to comply with the relocation agreements may be located in the duty to cooperate under Articles 86 and 93(1)(j) of the Rome Statute, meaning that obligations under these agreements are international law obligations, applicable to States Parties and non-States Parties with whom relocation agreements have been concluded. A common theme in my concerns around the enforcement mechanisms for these obligations is the derisive attitude of the exiting States towards the Court. In order to propose an effective potential solution to the enforcement problem identified above, it is essential to understand the motivations of States when they do comply with international law obligations, and to ensure that those motivations are present in any potential solution. This forces one to confront a vexing question in international law more broadly: why do States obey international law? This question has been considered by numerous legal scholars in recent years, but I do not propose to address all the jurisprudential developments on this particular issue, as that would make this section unduly discursive.121 To my mind, the most compelling answer to this fundamental question is that offered by Harold Koh in his three-step theory of transnational legal process. Therefore, I shall only set out what is strictly necessary to elucidate his arguments.122 121

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A relatively brief but helpful and more complete discussion of the history of legal scholarship on this pertinent question can be found in H.H. Koh, ‘Why do Nations Obey International Law?’ 106 Yale Law Journal (1996–1997) p. 2599–2659. As advanced by Koh, ibid.

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Koh acknowledges the distinct explanatory pathways followed by modern compliance theorists (such as Robert Keohane and Anne-Marie Slaughter) but instead argues that a complete answer to the question of why States comply with international law necessitates an understanding of how transnational relationships result in international law being subsumed into domestic compliance—a process that must “account for the importance of interaction within the transnational legal process, interpretation of international norms, and domestic internalization of those norms as determinants of why nations obey”.123 The three phases suggested by Koh can be broken down as follows: (i) an interaction is provoked by one or more transnational actors; (ii) the interaction (or interactions) leads to an interpretation of the applicable international norm; and (iii) that interpretation leads to an internalisation of the new interpretation of the international norm into the targeted party’s internal normative system (which is the intention of the provocateur).124 The aim is to ‘bind’ the targeted party to comply as part of its internal value set.125 Koh views this process as one which leads to the formation of a legal rule which will guide future international interactions and, with repeated participation in the future, this process will help to recreate the interests and even identities of the participants.126 One of the strongest points in support of this approach is the fact that it recognises the reality that national identities and national interests are socially-constructed concepts, informed by knowledge, culture and ideology.127 However, Koh argues, a focus on identity does not answer the critical question of the extent to which compliance with international law itself helps constitute the identity of a State as a ‘law-abiding State’.128 This is why it is necessary to use a hybrid approach which acknowledges the positive transformation occasioned by repeated partic123

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Ibid. (Emphasis in original.) Koh also acknowledges that, prior to him taking this position, Roger Fisher took a process-focused approach, noting regular institutional interaction, norm interpretation and norm internalisation as important in the promotion of compliance (ibid., pp. 2627–2628). See also R. Fisher Improving Compliance with International Law (University Press of Virginia, Charlottesville, 1981). Koh, ibid., p. 2646. Ibid. Ibid. See ibid., p. 2650 and, more generally, P.J. Katzenstein (ed.) The Culture of National Security: Norms and Identity in World Politics (Columbia University Press, New York, 1995). Koh, ibid.

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ipation in the international legal process, but also one which pays due regard to the “transmission belt” whereby newly-created norms generated through transnational legal process trickle down into domestic society.129 In his own words, Koh’s theory operates on a practical level as follows: As transnational actors interact, they create patterns of behavior that ripen into institutions, regimes, and transformational networks. Their interactions generate both general norms of external conduct (such as treaties) and specific interpretation of those norms in particular circumstances… which they in turn internalize into their domestic legal and political structures through executive action, legislation, and judicial decisions. Legal ideologies prevail among domestic decisionmakers and cause them to be affected by perceptions that their actions are, or will be seen as, unlawful. Domestic decisionmaking becomes ‘enmeshed’ with international legal norms, as institutional arrangements for the making and maintenance of an international commitment become entrenched in domestic legal and political processes. Domestic institutions adopt symbolic structures, standard operating procedures, and other internal mechanisms to maintain habitual compliance with the internalized norms.130 As mentioned earlier, any potential solutions beyond the Rome Statute itself should take into account compliance theory for the purpose of attempting to ensure that the solutions will be effective. It is then necessary to weave the strands of this theory through the practical considerations canvassed already in this article. My reading of Koh’s theory in this context provides that the interaction between the ICC and States to enter into relocation agreements (on the instance of the ICC) will generate a norm of external conduct

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Ibid., pp. 2650–2654. As an example of his theory at work, Koh refers us to Mr Benjamin Netanyahu’s conclusion of the 1997 Hebron disengagement agreement with Palestine’s Mr Yasser Arafat under the Oslo Accords, against which he had so openly campaigned previously. He argues that “an interactive process linking state interest, national identity, international society and internalization worked to override the vehement political opposition that Netanyahu had initially voiced against Oslo”. Koh, ibid., p. 2654 (footnotes omitted).

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through the conclusion of those relocation agreements. The agreements themselves as well as the conduct surrounding their implementation will be interpreted by the protective States and the ICC. That interpretation will lead to an internalisation of the norm generated into the protective States’ normative system, hopefully ‘binding’ the protective State to a norm based on compliance rather than contempt. This will then lead to the formation of a legal rule which will guide future international interactions between the affected parties. One method to ensure that the internalised norm is positive (and to facilitate internalisation itself) is by securing the interpretation to be internalised through action in the domestic courts of the protective States. Koh highlights three possible types of internalisation: social, political and legal.131 He goes on to define each of these concepts as follows: (i)  social internalisation “occurs when a norm acquires so much public legitimacy that there is widespread general obedience to it”;132 (ii) political internalisation “occurs when political elites accept an international norm, and adopt it as a matter of government policy”;133 and (iii) legal internalisation is complete when “an international norm is incorporated into the domestic legal system through executive action, judicial interpretation, legislative action, or some combination of the three”.134 Legal internalisation may be achieved by the mere act of a domestic actor or the ICC bringing urgent proceedings before a domestic court pertaining to the ICCPP, as a ruling in favour of the protection of a witness and her family amounts to judicial interpretation, one of the methods of achieving legal internalisation by Koh’s standards. However, I prefer not to see this as the end of the matter for the internalisation phase. True internalisation can only reasonably have occurred once all three forms of internalisation—social, political and legal—have been achieved. One would think that social internalisation may be the easiest to achieve; however, this is not always the case. In fact, internalisation will be achieved by different means in different countries depend131 132 133 134

Koh, ibid., p. 2656. Ibid. Ibid., p. 2656–2657. Ibid., p. 2657. At the same page, Koh goes on to say that “[l]egislative internalization occurs when domestic lobbying embeds international law norms into binding domestic legislation or even constitutional law that officials of a noncomplying government must then obey as part of the domestic legal fabric”.

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ing on the varying contexts.135 Where a country is held to account by a comprehensive constitution, it may be easiest to achieve legal internalisation first, which would start the ball rolling on social and political internalisation too.136 The best strategies to achieve this overall internalisation can only be determined on a case-by-case basis, with all the social, legal and political factors of each State taken into account. Bringing cases before the domestic courts is, however, an essential part of Koh’s theory on internalisation under any view of the strategy. The IBA report notes that applications to the judges of the ICC seeking findings of noncooperation in the face of alleged failure to cooperate could provide “a tangible and compelling means to persuade States to honour their obligations under the Rome Statute”.137 Although this is fairly common generally speaking, it has not been done in relation to witness protection issues.138 Despite the fact that this observation is specifically in relation to ICC procedures, there is no reason why the logic cannot be applied to domestic legal proceedings, through an application of Koh’s theory, particularly if one is trying to find a solution that does not lie solely within the boundaries of international criminal law. I therefore consider it a strong contender for a potential solution to the issue of enforcing witness protection obligations under relocation agreements. In addition to the compliance theory reasoning, Article 87(4) of the Rome Statute provides, in relevant part: In relation to any request for assistance presented under this Part [9], the Court may take such measures… as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. This provides further support for the argument that recourse may be had to domestic courts. It may also provide a basis for following a streamlined or truncated cooperation request procedure in urgent cir135 136

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Koh notes that the best strategies for internalisation more broadly speaking must be considered in the particular domestic context in Koh, ibid., p. 2656. South Africa is a good example of this, with the government being held to account under the country’s Constitution in respect of its obligations in, for example, SALC v. Minister of Justice, supra note 7. IBA Report, supra note 28, p. 39. Ibid.

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cumstances, by empowering the Court to use mechanisms that may generate results more quickly. 4.3.2 Overcoming the Confijidentiality Problems A glaring weakness of the option of ensuring enforcement of international rules and international court decisions at local level is the fact that everything about witness relocation is highly confidential. At a domestic level, society often holds governments to account through proactive civil society organisations which bring cases of possible violations of international obligations to the attention of the domestic courts.139 However, if these organisations are not even aware of the fact that a witness is present in the country through the operation of the ICCPP, how will they take the matter to court in bids to stop potential violations of the relocation agreements? The existence of these agreements and their contents is not public information, so even if an organisation did become aware of a particular set of facts which may necessitate further legal action, how would they know the extent of the obligations of the protective State? In the case of Ms X, the breach of State A’s obligations is known to her and she would be in a position to approach a civil society organisation for assistance with litigation in the domestic courts. However, in cases where there is no knowledge on the part of the witness (as would likely be the case where a graver breach is imminent), this is not possible. These problems may not be insurmountable though. As I see it, there are two prima facie possible routes open to the ICC to ensure enforcement through domestic courts: (i) partnerships with independent, local organisations; or (ii) extending the VWS’s role to include a more active role in monitoring compliance with relocation agreements. I shall deal with each in turn. 4.3.2.1 Independent partner organisations One may initially balk at the idea of ‘favouring’ a particular local organisation over another, however, partnerships between the Court and local non-government entities are not unprecedented. When Mr Joseph Kony and Mr Vincent Otti were attempting to use the arrest warrants issued against them by the ICC as bargaining chips, the Court teamed up with 139

This is exactly what happened with the case for President al-Bashir’s arrest in South Africa in SALC v. Minister of Justice, supra note 7, a case that was launched by an impact litigation organisation.

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a number of non-government organisations in Uganda in order to raise awareness for the work of the Court and, more particularly, to convey the importance of keeping the arrest warrants for Mr Kony and his associates in place.140 In addition, under the compliance theory advanced by Koh and adopted in this article, if international actors comply with international law because of repeated interaction with other actors in the transnational legal process, empowering more actors to participate is essential.141 If the first step in this process of ensuring compliance is empowerment, the second must then be to consider the fora available to the players in which to pursue interpretations of international legal norms.142 By expanding the list of organisations involved in witness protection under the ICCPP, one theoretically also expands the list of fora available to those organisations. This is so as different organisations may have standing before different judicial or quasi-judicial bodies in each State. This increases the options available to enforce the obligations in the relocation agreements. However, this potential approach to the issue is not without flaws. In order for this to be a viable option for the ICC, it is necessary for these organisations to have standing before local courts in order to initiate proceedings against the protective State to enforce compliance with witness protection obligations. And, unless the protective States have legislation permitting civil society organisations to launch proceedings in the interests of a third party, they may not be able to do so. For example, the South African Constitution provides for broader grounds of judicial standing than all other South African legislation where Bill of Rights cases are concerned.143 Therefore, in South Africa it may be 140

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This is confirmed by officials of the Court in a video published to create awareness of the Court’s work: Seeking Peace & Seeking Justice: The ICC and Uganda, 19 January 2009, , visited on 22 March 2017. See also the most recent ICC report to the UN (2015 ICC Report, supra note 48, para. 108) where the ICC acknowledges its continued active engagement with civil society partners in situation countries. Koh, supra note 121, p. 2656. Ibid. Fisher, supra note 123 paid special attention to domestic courts and institutions as options for enunciating violations of international norms. Section 38 of the Constitution provides that a court will have jurisdiction in cases where a right in the Bill of Rights is threatened or infringed where it is approached by (i) anyone acting in their own interest; (ii) anyone acting on behalf of another person who cannot act in their own name; (iii)  anyone acting as a

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possible to make an argument in each case that the ongoing protection of the witness is a matter falling within the fundamental rights entrenched in the Bill of Rights.144 However, even in terms of the extended grounds for standing, it would be tricky to make out a case for the local organisation approaching a court in its own name to protect the interests of a witness. One may, in a miniscule number of cases, be presented with circumstances where a group of protected persons is threatened and the organisation could act on behalf of a group or class of persons. A more likely argument to envisage is one that centres around the contention that the witness is unable to act in her own name due to the threat occasioned by her location becoming public knowledge. However, it is not likely that this argument will be possible in all, or even most, cases as this is not an ‘ordinary’ case of needing another person to act on someone’s behalf, such as, for example, where the affected party is legally incapacitated. Unfortunately, these speculative instances of when a local organisation may have standing are hardly enough to formulate a general principle in support of my proposed solution. The ground of public interest may be available on the basis that it is in the public interest to protect the witness and thus uphold the rights in the Bill of Rights. However, if this is done on a confidential basis, as I argue later that it must be, it may be difficult to convince a court that the litigation extends beyond the witness and serves the public interest. It would thus be essential to argue that compliance with international obligations (as I have argued that the duty to cooperate in relation to the terms of relocation agreements is) meets the public interest threshold and affords the local organisation standing on that ground. In fact, this is probably the most likely ground on which access would be granted to the courts in South Africa on this issue. However, there is no guarantee that access would be granted. Even if a protective State does have extended grounds for standing similar to those provided for in the South African Constitution, the broad interpretation of the grounds necessary to allow local organisa-

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member of, or in the interest of, a group or class of persons; (iv) anyone acting in the public interest; and (v) an association acting in the interest of its members. For example, where there is a risk of severe bodily harm, one might argue that the witness’s right to bodily integrity under section 12(2) of the Constitution is under threat. This would bring the case under the framework of Bill of Rights litigation, and would mean that the broader standing provisions will be available.

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tions to launch proceedings to compel States to comply with the duty to cooperate is unlikely to be the primary approach taken by courts, even if it may stand a chance in a judicially progressive jurisdiction like South Africa. If finding a legal basis for standing is difficult in a jurisdiction with expanded grounds for standing, this will be even more difficult in a State that does not have such broad grounds. An alternative solution to bypass the problem of standing may be for the witness to act in her own name. There are a few possibilities to ground standing for the witness: firstly, she may argue that she seeks the enforcement of an international law obligation because she is the subject of the obligatory protection; or, secondly, there may be some ‘contractual’ argument to be made in some jurisdictions which may depend on whether she is herself a party to the relocation agreement, or whether she is attempting to litigate as a third party for whose benefit a contract was concluded. Our example demonstrates this latter route in that Ms X would be acting on behalf of her minor children, who almost certainly would not have been parties to the relocation agreement with State A (even if only by virtue of the fact that they are minors). It would certainly be easier in either of these instances to make use of the broader grounds for standing discussed above. If the witness is aware of a breach or threatened breach of the obligation (which she may not be), however, she is likely to be on the back foot in any litigation of this nature due to her lack of knowledge of the protective State’s legal system. Even if she is aware that she can institute proceedings in a bid to protect herself and her family, she may lack the necessary funds to pursue litigation. As another option, if the ICC were to act in its own name to enforce the obligations under the relocation agreement, this may bring it within the standing provisions in many jurisdictions given that it would be (i) enforcing an international obligation at a local level on the basis that it is responsible for ensuring the safety of witnesses under the Rome Statute; and/or (ii) a party to the relocation agreement in issue before the court.145 As the obligation contained in the relocation agreement 145

Article 4(1) of the Rome Statute provides that the Court has international legal personality, which enables it to act in its own name. The Registry would, potentially, be able to institute the proceedings on behalf of the Court. Rule 16(4) of the ICC Rules empowers the Registrar to act on behalf of the Court in negotiating relocation agreements. Although not empowered to act on behalf of the Court in the general sense, I see no reason why this could not be catered for

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may be viewed as falling under the duty to cooperate in the Rome Statute (as I argued earlier), this could make the former option a stronger one for the ICC.146 It may also give the presiding court greater room to manoeuvre in terms of finding an appropriate solution given the magnitude of the obligation, as the State’s domestic law likely did not develop with international witness protection in mind and may not, in the ordinary sense, be comprehensive enough to offer a robust enforcement mechanism. This argument also applies to a witness litigating in her own name. Unfortunately, although there is fairly extensive case law involving international organisations enforcing rights in the domestic courts, there is a distinct paucity in relation to litigation by international organisations against organs of State in domestic courts.147 The majority of cases instead tend to be enforcement of pure contractual relations with private parties.148 This does not rule out this potential avenue. However, it does make it difficult to formulate any general approach by courts to an application by an international organisation against a State to enforce international obligations, such as the duty to cooperate. The context of enforcing an international law obligation grounded in the Rome Statute against the governing authority of a State is sufficiently distinguishable from the commercial cases to make attempting to draw an analogy from the case law futile.

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given that there is precedent for the Registrar acting on behalf of the Court. Once proceedings have been instituted, the Registrar would be bound by the rules of the domestic court by virtue of the fact that it is a party to the proceedings in the ordinary course, acting as a legal person. Whether it is a stronger basis for enforcement depends on the State’s recognition of the value of international law. Section 39(1)(b) of the South African Constitution, for example, obliges courts to consider international law in interpreting domestic law, meaning that it holds a strong position before South African courts. This may not be the case in every country. This can be gleaned from my own research into the case law, but is confirmed in A. Reinisch, International Organisations Before National Courts (Cambridge University Press, Cambridge, 2000) p. 3. Ibid. See, for example, the United States case of United Nations Reconstruction Agency v. Glass Production Methods, Inc.; United Nations Reconstruction Agency v. Frazier-Simplex Inc. 291 F.2d 168 (2d Cir. 1961). In this case, the international organisation sought to enforce a commercial arrangement entered into with the respondents.

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The value added by the domestic organisation, as discussed below, means that even though the witness herself or ICC itself would be the party to any litigation, these partnerships would not be rendered nugatory. As the local organisations will be located within the protective State, they will have a greater knowledge of the political situation there and will be able to monitor the witness more effectively. Briefing selected domestic organisations will increase the number of players able to alert the Court to potential non-compliance which would, in turn, enable it to begin non-compliance proceedings at the international level. However, as illustrated earlier in this paper, these proceedings are entirely too slow to be an adequate solution to the potential problem of non-compliance in witness protection. This extended network would also provide the witness with easier access to immediate security assistance should she feel threatened. A domestic organisation’s more specialised knowledge of the local court system will also enable the ICC to bring litigation before the domestic courts more easily to attempt to ensure the expedited compliance of the protective State. The ability to bring urgent proceedings, and more tangible enforcement options (such as access to a local police force), mean that there is a more realistic chance of meaningful action being taken to ensure that the witness and her family remain protected. In remembering how this contributes to creating a normative state of compliance under Koh’s compliance theory, it should be noted that it is through this domestic court procedure that the actors in the international process will receive an interpretation of the norms surrounding protective States’ compliance in relation to witness protection.149 Of course, this entire argument rests on a number of key assumptions. Firstly, it assumes that the domestic courts and other relevant quasi-judicial fora have a mechanism for bringing urgent proceedings. In South Africa, for example, one is able to launch an urgent application under Rule 12 of the Uniform Rules of Court.150 However, this may not be possible in all jurisdictions. Secondly, and perhaps more significantly, it assumes that one may bring confidential proceedings, as these cases would need to be heard in confidence to ensure that the ongoing protection of the witness and her family is not compromised. To return to the South African example, courts sometimes order the anonymisation 149 150

This is in accordance with the second step in Koh’s three-step process: see Koh, supra note 121, p. 2646. Uniform Rules of Court, South Africa.

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of parties to a case, particularly where minor children are impacted,151 and in camera hearings;152 however, there is nothing outright permitting confidential hearings, whose existence, parties and legal issues are unknown outside the walls of the courtroom. In practice, therefore, and assuming State A’s laws are the same as those in South Africa, NGO D (a local partner organisation of the ICC located in State A) may become aware of a threat to Ms X’s life on account of State corruption leading to the disclosure of her whereabouts. NGO D may alert the ICC to this threat and, should State A fail to comply with a request to cooperate, assist it to launch urgent—but not confidential— proceedings before the domestic courts in State A. However, this would be futile given that it would now be publicly-available information that Ms X is living in State A, which would present an even greater risk to Ms X going forward. It is not possible to examine the applicable laws in each of the protective States given that the identity of those States is confidential. This assessment would need to be conducted by the ICC (presumably through the VWS) in respect of each existing or prospective protective State to determine if this is viable. If the Court were to enter into partnerships with local organisations, it would be necessary from the outset, in order to overcome the knowledge problem highlighted initially, to partner with a selected organisation and share, only to the extent necessary, the information about the witness and the circumstances around her relocation with that organisation. This itself would entail a careful selection of the right organisation committed to the goals of the Court and the ICCPP, with a robust operational structure and ethic such that increasing the number of parties with access to the confidential information would not increase the risk to the protected person by any significant degree. The Court, through the Registry, would also have to negotiate a watertight contract with the independent organisation to ensure that its confidentiality obligations are inescapable and the precise scope of its mandate is clear. Again, this kind of work with a non-governmental organisation may not be completely unheard of: Arbia, as the former Registrar, confirmed

151 152

This was the case in the Constitutional Court case of DE v. RH [2015] ZACC 18; 2015 (5) SA 83 (CC), among others. See, for example, section 153(1) of the Criminal Procedure Act 51 of 1977, South Africa.

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that the Court works together with ‘strategic partners’ to increase the capacity of the protective State to provide better witness protection.153 Another possible objection to this proposed course of action is the increased number of people with knowledge of the relocation, and the increased risk for the protected person that may result. However, there is always a risk involved in relocating a witness, and the introduction of this monitoring and enforcement mechanism will reduce risk in other areas through increasing the witness protection capacity of the protective State, which should result in a net gain in protection.154 Ultimately, it will boil down to a balancing act. The Registry, the VWS in particular, is accustomed to assessing risk when deciding whether to admit witnesses to the ICCPP in the first place and, beyond that, in determining whether to relocate them to a third State. The risk that may result here could be preemptively addressed through the careful selection of a partner organisation and robust negotiation of an agreement with the chosen organisation. This may entail more work for the VWS upfront, but should reduce the burden of monitoring the witness going forward. A further consideration before forming any partnerships is the issue of immunity for the local organisation. Article 48 of the Rome Statute affords the Court, its staff, and any counsel or other person required to be at the seat of the Court with the privileges and immunities necessary for the fulfilment of the purposes of the Court and, where applicable, the same privileges and immunities as are accorded to heads of diplomatic missions. However, this article does not make provision for third party organisations. If NGO D were to be involved in the monitoring and protection of Ms X and her family, this would need to be catered for in the Rome Statute, as there is no reason to distinguish between NGO D and the staff in the VWS when it comes to protecting those attempting to make the Court’s goal a reality. As it stands, NGO D and any local organisation in the same position (and probably including those organisations with which the Court has already partnered) are vulnerable to State interference. This would require some serious consideration by the Court, and an amendment or additional protocol to the Rome Statute, to rule out this possibility. As promising as this course of action may initially have seemed for enforcement, it is not without its challenges However, I remain confident that these challenges do not render the proposed solution entire153 154

Arbia, supra note 1, p. 523. See ibid.

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ly unviable in the long term, although for now it sadly does not offer a meaningful solution to the problem of ensuring compliance by exiting African States Parties. 4.3.2.2 Extended Registry involvement An alternative solution is to create greater means for the Registry to monitor the witness once she has been relocated through increasing the capacity of the VWS in its offices on the ground in situation countries.155 An unavoidable consequence of this option is some additional burden on the Registry in terms of monitoring the risk status of witnesses even once they have relocated, something which the Court prefers to leave to the protective State.156 This also means that the Court may require additional resources in order to implement this solution, both human and financial and, as was discussed under part 2 of this article, the Court already faces some staff and funding constraints. However, given the increase in human resources and budget over the past couple of years, this may no longer be as much of an obstacle. However, this solution does not offer anything in connection with the need to be able to bring urgent, confidential proceedings before domestic courts where, additionally, standing is difficult to attain. Further, the over-reliance of the ICC on State cooperation already demonstrated (and due to the voluntary nature of the witness protection framework discussed in part 2) in respect of the existing relocation agreements calls into question the ability of the ICC to contribute any further to the ICCPP and the potential efficacy of those contributions.

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I suggest that capacity be increased in the situation countries rather than the protective States to ensure that it is not possible to ascertain which countries have offered shelter to witnesses. Although this will not be as helpful as having an organisation in the protective State, it does mean that the satellite unit will be able to notify the Registry of a suspected or potential violation as quickly as possible and, from there, the Court, through the Registry, can launch proceedings in the appropriate local court. This is in terms of an interview I had with a Court official in which she indicated that it is usually the protective State that plays a more active role in monitoring witnesses once the relocation has taken place, although this is in collaboration with the VWS.

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Concluding Remarks

It seems to me that the threats of a mass African withdrawal are a product of the current political climate where Africa is feeling increasingly victimised by the ever-powerful Western world.157 It also seems unlikely that it will be possible for African States to execute a synchronised or collective withdrawal.158 In fact, after some movement to withdraw towards the end of 2016/early 2017, both South Africa and Gambia have stopped their withdrawal procedures. If there is an African withdrawal despite the continuously shifting political rhetoric on the ICC, it will not happen overnight: it will take time consuming legislative action in each of the African States to reach a point where the relevant government is

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An example of this attitude is evident in Zimbabwean President Robert Mugabe’s statements in 2015 that Africa should establish its own international criminal court to try Europeans who have plundered Africa (despite the fact that Zimbabwe is not a States Party). See F. Share, ‘African ICC Must Try Europeans: Mugabe’, Chronicle, 19 June 2015, , visited on 22 March 2017. On the other side of the coin, Botswana, Senegal and Cote d’Ivoire have maintained their support for the ICC. See F. Oluoch ‘Mystery of the “Resolution” at Addis African Union Summit to Walk Out of the ICC’, The East African, 6 February 2016, , visited on 22 March 2017. At its 2016 summit, the AU decided that its Open-Ended Ministerial Committee will investigate a possible collective withdrawal strategy for future discussion and decision (Assembly of the Union, Decision on the International Criminal Court - Doc. EX.CL/952(XXVIII), January 2016, Assembly/AU/Dec.590(XXVI), para. 10(iv)). At its 2017 summit, the AU adopted a non-binding resolution (opposed by Nigeria and Senegal) formulating a withdrawal strategy and calling on AU member states to implement its recommendations (Assembly of the Union, Decision on the International Criminal Court – Doc. EX.CL/1006(XXX), January 2017, Assembly/AU/Draft/Dec.1(XXVIII)Rev.2, para 8. Although this citation reflects the document is a draft, this is the final version adopted at the summit).

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empowered to notify the UN of the withdrawal.159 That withdrawal will then only come into force a year later.160 Regardless of whether there is a mass withdrawal or a small number of exiting States, there will be problems of witness safety and risk mitigation faced by the ICCPP. These include: (i) the continuing difficulties created by a lack of framework relocation agreements; (ii) the voluntary nature of the ICCPP causing an over-reliance on certain States to assist with witness protection due to the toothless contemporary framework relocation agreements; (iii) insufficient staff and financial resources in the current VWS infrastructure to ensure compliance; (iv) insufficient cooperation between the ICC and States;

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South Africa’s attempted withdrawal is an apt example of this point. As mentioned earlier, in October 2016 South Africa delivered it notice of withdrawal to the UN. Subsequent to that, the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill [B23-2016] (Repeal Bill) was tabled before Parliament. However, the decision to initiate the withdrawal procedures by the executive sphere of government prior to a legislative enactment by Parliament authorising that decision was challenged in court. The High Court held that the decision to deliver the notice of withdrawal prior to obtaining parliamentary approval violated section 231(2) of the South African Constitution and breached the doctrine of separation of powers (Democratic Alliance v. Minister of International Relations and Cooperation and Others [2017 ZAGPPHC 53] (Democratic Alliance), para. 57). However, the parliamentary process in which the Repeal Bill was tabled was legitimately and properly before Parliament (Democratic Alliance, para. 60). In effect, the High Court declared the withdrawal notice invalid and ordered the government to revoke it immediately (Democratic Alliance, para. 80). Shortly thereafter, South Africa revoked the withdrawal notice (see UN Depositary Notification C.N.121.2017.TREATIES-XVIII.10 ‘South Africa: Withdrawal of Notification of Withdrawal’, 7 March 2017, , visited on 20 March 2017). The Repeal Bill was also withdrawn from Parliament, despite the High Court ruling that the parliamentary process surrounding the Repeal Bill was legitimate. This effectively terminated any withdrawal procedures by South Africa. Of course, there is nothing to prevent the SA Government from initiating withdrawal procedures again in the future, provided that it follows the correct domestic processes before delivering notice to the UN. Article 127(1) of the Rome Statute.

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(v)

the necessity of reassessing the risk to relocated witnesses and possibly adjusting initial risk assessments to take into account the attitude of exiting States Parties; (vi) a possible reduction in potential protective States; (vii) the impotence of the enforcement mechanisms provided for within the Rome Statute to ensure compliance with witness protection obligations; and (viii) the flawed alternative of using the domestic courts in protective States to combat non-compliance. As I have demonstrated, these problems do not go much beyond the flaws already inherent in the witness protection framework. It is therefore necessary for the Court to address these problems as soon as possible, given that they may materialise regardless of a withdrawal. There is time, due to the prolonged withdrawal process, so the Court must take advantage of this opportunity to improve and reinforce the witness protection system. Pre-emptive action through, for example, considering the suggested risk factor posed by the protective country’s attitude towards the ICC, or exploring the ability to bring urgent, confidential proceedings before the domestic courts, will mitigate the current problems, and those that may be expected upon mass withdrawal. In this article I have considered an alternative approach to enforcement of international criminal law by stepping outside the traditional boundaries of the Rome Statute and enlisting the help of the domestic courts in order to internalise and enforce international criminal law norms and obligations. Given that international criminal law, as it stands, does not offer a solution to the problems faced by the ICCPP, it is vital that this step is taken. I have acknowledged and canvassed the many difficulties faced by going this route. I have also presented two attempts at solutions to those problems, namely partnering with local civil society organisations and/ or extending Registry involvement in witness monitoring. Ultimately, neither of those two solutions is perfect, but they are, as far as I am aware, the first real academic (or at least public) attempt at finding a solution. They should be viewed more as a catalyst for further reflection and development, rather than be-all and end-all solutions to the problem of enforcement of witness relocation obligations. As stated right at the outset of this article, there is no silver bullet. As it stands, there is no viable solution to the potential ramifications identified absent additions to the Rome Statute or operational changes to the VWS. This is

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a disturbing conclusion to reach given the importance of witnesses in the prosecution of atrocity crimes, and the need for their protection to ensure full participation. The next steps need to be taken by the ICC itself to determine ways in which to best address these problems. However, given the slow rate of progress on issues involving State cooperation, I submit that there is also a moral duty on international criminal law practitioners and academics to consider these problems and to attempt to think outside the proverbial box to develop solutions. Without a combined effort by all parties involved in the attempt to end impunity on an international level, these problems may become real in the lives of witnesses like Ms X and terrible, irreversible consequences may result.

6 The (In)Admissibility of Unlawfully Obtained Evidence at the International Criminal Court Ann Marie Thake*

Abstract The test for admissibility of evidence at the International Criminal Court is characterized by broad judicial discretion. This remains applicable even when the admissibility of the impugned evidence is being contested on the basis of a violation of a fundamental human right. This paper discusses the law relating to admissibility of evidence before the ICC, in particular, evidence that is unlawfully obtained. It undertakes a comparative review of exclusionary rules, at a domestic level and at the ad Hoc tribunals, and considers ECHR decisions on the link between the right to a fair trial and the exclusionary rule. In light of this discussion, the paper underlines the existing lack of regulation at the investigation stage and examines the decisions handed down by the ICC on admissibility of evidence in the Lubanga and Katanga cases. It concludes that while the non-existence of an automatic exclusionary rule does not necessarily imply that those accused before the ICC are denied a fair trial, as has been suggested by some authors, more procedural legality is needed to ensure the highest standard of protection of fundamental human rights for the accused.

1

Introduction

Legal certainty and adherence to the rule of law are the hallmarks of a well-functioning criminal justice system. In criminal proceedings, the

*

Court Attorney, Courts of Justice of Malta (Superior Jurisdiction). She holds an Advanced LL.M. from Leiden University and an LL.D. from the University of Malta.

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 161-187.

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accused finds himself in a vulnerable position; going through proceedings he has little control over, that can result in the deprivation of his liberty and substantial financial loss. For this reason, the law must ensure protection of the suspect’s or accused’s rights, by clearly establishing the powers and limits of the investigative authority and providing for remedies in case of abuse of power. The exclusionary rule in criminal law, which renders inadmissible evidence collected by illicit means, serves multiple purposes. It protects the accused’s right to a fair trial and the integrity of the judicial system, it may deter violation of the law and human rights by the relevant authorities during the investigative process, and it may also serve as a remedy for those who have indeed suffered violations of their rights. Whilst there is no agreement among authors and judicial authorities as to the latter two functions, since this depends also on what one perceives to be the function of the criminal courts, the former two functions can be said to be the ethos of the exclusionary rule in any system. The exclusionary rule in the Rome Statute of the International Criminal Court (the Rome Statute) is to be found in Article 69(7). This provides for a mandatory exclusionary rule, which obliges the Court to exclude any evidence which satisfies the two-limb test established in the Article. In order to secure the exclusion of unlawfully obtained evidence before the International Criminal Court (ICC), one must first establish that it was obtained by means of a violation of the Rome Statute or an internationally recognised human right. Once this is established, the evidence will only be excluded if it is shown that the violation casts substantial doubts as to the reliability of the evidence or that the admission of the impugned evidence would be antithetical to and would seriously damage the integrity of the proceedings. Thus, the test is not one of means, but one of result, in that it is not the violation of the statute or internationally recognised human right itself that will render the impugned evidence inadmissible but the resultant effect that this will have on the reliability of the evidence, or the integrity of the proceedings.

2

A Comparative Analysis of the Exclusionary Rule in National Legal Systems

Under Article 67(1) of the Rome Statute, accused persons have a right to nothing less than a fair trial. Some scholars have argued however that the provision on admissibility of unlawfully obtained evidence under

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Article 69(7) seems to guarantee much less. They argue that it seems to guarantee only proceedings that simply take into account unfairness or that consist of evidence that is not antithetical to fairness.1 In reality, few, if any, national systems have an automatic and absolute exclusionary rule in relation to unlawfully obtained evidence. As will be seen below, even in the United States, which for years had, and still has, the strictest exclusionary rule, caveats have been developed which allow for the introduction into criminal proceedings of evidence obtained by illicit means. 2.1 The United Kingdom The Police and Criminal Evidence Act of 1984 provides for a discretionary rule in the exclusion of illicitly obtained evidence. Section 78 provides that: [i]n any proceedings the court may [own emphasis] refuse to allow the evidence which the prosecution proposes to rely on to be given if it appears to the court that having regards to all the circumstances, including the circumstances in which the evidence was obtained the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.2 The crux of the matter here is therefore not whether there has been a violation of the law or of a particular human right in the obtainment of evidence but rather whether this violation will affect the fairness of proceedings.3 In this respect, Lord Hobhouse opined that, [t]he right in issue is the right to a fair trial – a fair hearing. This involves the same criterion as is applied in s.78 of the 1984 Act … 1

2 3

C. Gosnell, ‘Admissibility of Evidence’, in Kan, Buisman and Gosnell (eds), Principles of Evidence in International Criminal Justice (Oxford: Oxford University Press, 2010) p. 422. United Kingdom, Police and Criminal Evidence Act (PACE), Ch. 60 (1984), Section 78. B. Beller, ‘A Comparative Study of Exclusion of Evidence on the Grounds of the Means by Which it was Obtained’, Memorandum For the Office of the Prosecutor of the ICTR, 14 Case Western Reserve University School of Law International War Crimes Project (2003), p. 29 visited on 20 March 2017.

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[This] requires the judge, when he exercises his discretion, to have regard to, among other things, the circumstances in which the evidence was obtained. The judge must take into account that the evidence was obtained by intercepting telephone conversations but he must base his decision upon the effect the admission of the evidence would have on the fairness of the trial.4 There is little guidance in the jurisprudence regarding how this will be assessed, because it has been held that ‘[i]t is undesirable to attempt any general guidance as to the way in which a judge’s discretion under s.78 or his inherent powers should be exercised.’5 However, a perusal of the relevant case law suggests that factors which are taken into account include the legality of the police actions, the seriousness of the illegality, whether there was bad faith on the part of the investigators, the type and reliability of the evidence, the existence of other evidence, the opportunity to challenge the evidence at trial, and the type of right infringed.6 2.2 The United States The United States exclusionary rule is diametrically opposed to the traditional Common Law approach. Whereas the traditional Common Law approach can be best described by reference to Judge Crompton’s statement that “it matters not how you get it, if you steal it even, it would be admissible,”7 the exclusionary rule in the United States renders automatically inadmissible any evidence that has been obtained by any illegality whatsoever.8 However, several developments to the United States’ exclusionary rule have eroded the previously automatic, mandatory exclusionary rule by introducing various exceptions which allow the introduction of illegally obtained evidence into criminal proceedings. One such in4 5 6 7 8

Regina v. P and others, 19 December 2000, UKHL, Opinion of Lord Hobhouse of Woodborough. R. v. Samuel, 17 December 1987, Court of Appeal, Criminal Division, 87 Cr App Rep 232 [1988], p. 245. Beller, supra note 3. D. Ormerod, ‘ECHR and the Exclusion of Evidence: Trial Remedies for Article 8 Breaches’ Criminal Law Review, (2003) p. 65. See for example People v. Williams 11 July 1988, Supreme Court of California no. S004522, , visited on 20 March 2017.

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stance is the good faith exception, which was created by the Supreme Court in the cases of United States v. Leon9 and Massachusetts v. Sheppard.10 In these cases, the Court decided that evidence obtained by police officers who were genuinely not aware that their search warrant was invalid is not to be excluded from the proceedings. Furthermore, the silver platter doctrine renders admissible unlawfully obtained evidence, if this was obtained by private parties or a foreign government, unless the unlawfulness is such as to shock the conscience of American courts.11 2.3 Canada The exclusionary rule in Canadian law is enshrined in Section 24 of the Canadian Charter of Right and Freedoms.12 According to Section 24(2) the Court is to exclude evidence obtained by means of a violation of the Charter, if its admission in the proceedings “…would bring the administration of justice into dispute.” The test for excluding evidence under this section was established in the case R v. Collins,13 wherein the Court listed several factors which are to be considered concerning the violation in question. These include an examination of whether the violation was deliberate, willful or flagrant or whether it was inadvertent or committed in good faith.14 The central issue in excluding impugned evidence is thus the protection of the system’s repute. In R. v. Collins, the Court held that [t]he question under Section 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evi9

10 11

12 13 14

United States v. Leon, 5 July 1984, United States Supreme Court, 468 U.S. 89 , visited on 20 March 2017. Massachusetts v. Sheppard, 5 July 1984, United States Supreme Court, 468 U.S. 981 , visited on 20 March 2017. United States v. Fernandez-Caro, 2 September 1987, United States District Court for the Southern District of Texas, 677 F. Supp. 893, 895 , visited on 20 March 2017. Canadian Charter of Rights and Freedoms, R.S. C 1985 Appendix II, No. 44 Sched. B, Pt I s 24. R. v. Collins, 4 September 1987, Supreme Court of Canada, no. 1797 , visited on 20 March 2017. R v. Collins, supra note 13.

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dence, and it is thus necessary to consider any disrepute that may result from the exclusion of evidence. In my view, the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter. Such disrepute would be greater if the offence was more serious.15 It can be seen therefore that Canadian law departs from the discretionary exclusionary rule applied in the United Kingdom, but does not go to the extreme of the automatic exclusionary rule of traditional United States law. It introduces a balance between both judicial discretion and a mandatory element, in that if following the exercise of judicial discretion it is concluded that the evidence in question is in fact prejudicial to the integrity of the proceedings, it leaves the Court no option but to exclude it. 2.4 Germany and France German law explicitly provides for the exclusion of evidence which is obtained in defiance of the accused’s will, even if the accused does not object to the inclusion of such evidence in the proceedings. With regards to evidence collected by means of a violation of a fundamental human right, such evidence shall be admissible only if the interference with the right in question was based on a special law.16 Therefore, admissibility of evidence in the German system is not a question of result, but rather, a question of means. On the other hand, the French system considers the admissibility of unlawfully obtained evidence from the point of view of result rather than means. The French exclusionary rule focuses more on propriety, and as such unlawfully obtained evidence will generally be excluded only if the violation has caused harm to the interests of the person concerned or if it affects the public interest.17

15 16

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R v. Collins, supra note 13. EU Network of Independent Experts on Fundamental Rights, ‘Opinion on the status of illegally obtained evidence in criminal procedures in the Member States of the European Union’ (2003), p. 16, visited on 20 March 2017. Beller, supra note 3, p. 36.

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Unlawfully Obtained Evidence and the Right to a Fair Trial

The admissibility of unlawfully obtained evidence is inherently linked with the accused’s right to a fair trial. According to the European Court of Human Rights, the admissibility of illegally obtained evidence is not per se an infringement of the right to a fair trial. The question is whether the proceedings as a whole, including the way in which the impugned evidence was obtained, were fair.18 Confession evidence obtained by means of violations of the minimum guarantees for a fair trial, such as legal assistance or the privilege against self-incrimination is generally deemed to be inadmissible by virtue of the nature of the right violated during the collection of the impugned evidence. For instance, in Salduz v. Turkey, the European Court of Human Rights held that the denial of legal assistance to the accused prior to his interrogation by the police of itself violated his right to a fair trial, notwithstanding the fact that there was other evidence against him, including the testimony of eyewitnesses, and also irrespective of the fact that the applicant had a right to challenge the statement during the trial and give a different version.19 This principle has also been recognised by the ICTY.20 The ICC Trial Chambers have had opportunity to consider this issue in Prosecutor v. Katanga, and have followed the ICTY precedent that failure by State authorities to adequately protect habeas corpus rights will render any statements made by the accused inadmissible.21 Violations of the prohibition of torture and ill-treatment in the obtainment of evidence have also been held to render the impugned evidence inadmissible, and the admission of such evidence into criminal proceedings has been considered to constitute a violation of the right to a fair trial.22 In fact, the ICTY has held that the serious mistreatment of

18 19 20 21

22

Khan v. United Kingdom, 12 May 2000, ECHR no. 35394/97. Salduz v. Turkey, 27 November 2008, ECHR no. 36391/02. Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, (Mucić et al.), 2 September 1997, ICTY Trial Chamber, (IT-96-21). Decision on the Prosecutor’s Bar Table Motions, (Katanga and Ngudjolo Chui), 17 December 2010, ICC Trial Chamber II, (ICC-01/04-01/07-2635 17-12-2010 1/35 FB T), paras. 55-65. (hereinafter: Prosecution’s Bar Table Motions Decision). See for instance, Gafgen v. Germany, 1 June 2010, ECHR no. 22978/05.

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an accused can even constitute a legal impediment to the exercise of its jurisdiction.23 Violations of the right to privacy in the obtainment of evidence have not however been the subject of such categorical findings. Rather, the entirety of the system within which the rule on admissibility operates is examined in order to properly assess whether the right to a fair trial was adequately protected. In particular, the applicable legal framework must be accessible and foreseeable and there must be sufficient legal certainty in terms of the permissible means of collecting evidence as well as the scope and extent of the admissibility rule.24 Consideration will also be given as to whether the legal regime gave the accused an opportunity to challenge the impugned evidence, and to the role that the evidence obtained by means of a violation of the right to privacy played in the proceedings.25 In Bykov v. Russia, the European Court of Human Rights held that since the evidence obtained in breach of the right to privacy merely played a limited role in a complex body of evidence and was not treated as a confession or admission of guilt capable of lying at the core of a finding of guilt, it could not be said that the proceedings before the national court were contrary to the requirements of a fair trial.26 In Prosecutor v. Lubanga Dyilo, the ICC followed the approach of the ECHR in considering whether evidence obtained in breach of the right to privacy was admissible, basing its conclusion on an examination of the effect that admitting the impugned evidence would have on the proceedings. It held that although there had been a violation of an internationally recognised human right, this violation was not sufficiently serious so as to be antithetical to or damage the integrity of the proceedings and as such the impugned evidence could be admitted into the proceedings.27

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Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, (Nikolić), 9 October 2009, ICTY Trial Chamber II, (IT-94-2-PT), para. 114. Khan, supra note 18. Khan, supra note 18. Bykov v. Russia, 10 March 2009, ECHR no. 4378/02. Decision on the Confirmation of Charges, (Lubanga), 29 January 2007, ICC Pre Trial Chamber I, (ICC-01/04-01/06-803-tEN 14-05-2007 1/157 SL PT), para. 81; Decision on the Admission of Material from the “Bar Table,” (Lubanga), 24 June 2009, ICC Trial Chamber I, (ICC-01/04-01/06-1981-Anx 24-06-2009 1/46 CB T), para. 38.

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The Exclusionary Rule of the Ad Hoc Tribunals

The rules regulating admission of evidence before the ICTY and the ICTR are to be found in the Rules of Procedure and Evidence of both tribunals.28 Rule 89 of the ICTY Rules, which governs the admissibility of evidence in general, enshrines the general principle that the tribunal “…may admit any relevant evidence which it deems to have probative value...” and gives the Tribunal discretion to “…exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Rule 95 then specifically regulates the issue of admissibility of illegally obtained evidence, providing that “[n]o evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or its admission is antithetical to, and would seriously damage the integrity of the proceedings.” The admissibility of illegally obtained evidence before the ad hoc Tribunals is not a question of means but one of result, in that evidence is not excluded solely because of the means by which it was obtained, but due to the resultant effect its admission has on the proceedings. The original version of this Rule involved an examination of means rather than result. It provided for the exclusion of evidence obtained by means “…which constitute a serious violation of internationally protected human rights.” Now, as a result of the amendment, even if an internationally protected right is violated, the judges still retain discretion to admit the impugned evidence if they consider that the evidence is reliable and does not seriously harm the integrity of the proceedings, thus approximating the system to the Canadian one. The rules on admissibility of evidence of the ICTY have been described as being “…liberal and less technical”, calling for the admission of any evidence that is relevant and has probative value.29 The Trial Chamber has deemed it to be its obligation to ensure that every piece of evidence admitted into the proceedings does not challenge their integrity.30 From a perusal of the case-law on the matter, one can observe a 28 29

30

ICTY RPE, U.N. Doc. ITR/3/REV.1 (1995). Decision on the Tendering of Prosecution Exhibits 104-108 (Mucić et al.), 9 February 1998, ICTY Trial Chamber, (IT-96-21-T), para. 13. (hereinafter: Prosecution Exhibits Decision). Prosecution Exhibits Decision, supra note 29. See also, Decision Adopting Guidelines on the Standards Governing the Admission of Evidence (Martić ), 19 January 2006, ICTY Trial Chamber, (IT-95-11-T), para. 11.

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distinction between the admissibility of unlawfully obtained evidence where the illegality is of itself a violation of the right to a fair trial or the prohibition of torture or ill-treatment, and where the illegality consists of a violation of a different right than those afore-mentioned or of a minor procedural rule. In the former case, there is a jure et de jure presumption that the evidence so obtained is unreliable and that its admission will harm the integrity of the proceedings, and as such once the illegality is established, the evidence is automatically excluded. On the other hand, in the latter case the Tribunal will examine all the circumstances of the case, including the particular details of the illegality, the reliability of the evidence as well as its relevance and probative value, in order to establish whether the integrity of the proceedings would be best safe-guarded by introducing or excluding the impugned evidence. The admissibility of evidence obtained by means of a violation of the rights of the accused was examined by the ICTY in the Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence.31 The Trial Chamber held that Rule 42 “embodies the essential provisions of the right to a fair hearing” as enshrined in the ICCPR and the ECHR, which constitute “the internationally accepted basic and fundamental rights accorded to the individual to enable the enjoyment of a right to a fair hearing during trial.”32 The Trial Chamber was of the opinion that Rule 42 and Rule 95 are to be read together in order to ensure the protection of the integrity of proceedings. It considered “…Rule 95 as a summary of the provisions in the Rules, which enable the exclusion of evidence antithetical to and damaging and thereby protecting the integrity of proceedings. We regard it as a residual exclusionary provision.”33 The Trial Chamber held that “[t]here is no doubt statements obtained from suspects which are not voluntary, or which seem to be voluntary but are obtained by oppressive conduct, cannot pass the test under Rule 95.”34 Holding that the burden of proving that the statement was obtained voluntarily or in the absence of oppressive conduct rests with the Prosecution, the Trial Chamber also considered that “…the nature of the issue demands for admissibility the most exacting standard consistent with the allegation. Thus, the Prosecution claiming voluntariness

31 32 33 34

Mucić et al., supra note 20. Mucić et al., supra note 20, para. 43. Ibid., para. 44. Ibid., para. 41.

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on the part of the accused/suspect, or absence of oppressive conduct, is required to prove it convincingly and beyond reasonable doubt.”35 This was confirmed by the ICTR in Karemera, wherein the impugned evidence was excluded after the Tribunal found that substantial doubts as to the reliability of the evidence created by the Prosecution’s failure to establish beyond reasonable doubt that Nzirorera had waived his right to remain silent and to counsel in an express and unequivocal manner, were such that the admission of the impugned evidence into the proceedings would be antithetical to and seriously prejudice the integrity of the proceedings.36 In Mucić, the ICTY stated explicitly that a violation of Sub-Rules 42(A) and (B) is in and of itself sufficient to render inadmissible evidence obtained by means of that violation.37 Based on this reasoning, the Trial Chamber went on to exclude a confession made by the accused to the Austrian police, due to the fact that, in full accordance with Austrian law but contrary to its own Rules, he had not been allowed legal assistance during interrogation. In the guidelines on admissibility of evidence adopted in Martić, the Trial Chamber espoused the principle that involuntary statements are inadmissible.38 By contrast, a breach of a procedural rule or a fundamental human right that is not the right to a fair trial or the prohibition of torture or illtreatment did not lead the Tribunal to exclude the impugned evidence automatically. In the Prosecution Exhibits Decision, the defence challenged the admissibility of evidence obtained during a search which was not carried out in full compliance with an Austrian procedural rule.39 After stating that the Trial Chamber is not bound by national law, the Tribunal considered that in a situation where the admissibility of relevant and probative evidence is challenged due to a minor breach of procedural rules, “the governing consideration…is the overriding interests of justice.”40 The Trial Chamber then held that excluding such

35 36

37 38 39 40

Ibid., para. 42. Decision on the Prosecution Motion for Admission into Evidence of Post-Arrest Interviews with Joseph Nzirorera and Mathieu Ngirumpatse (Karemera et al), 2 November 2007, ICC Trial Chamber, (ICTR-98-44-T), paras. 31-32. Mucić et al., supra note 31, para. 55. Decision Adopting Guidelines on the Standards Governing the Admission of Evidence (Martić), 19 January 2006, ICTY Trial Chamber, (IT-95-11-T) para. 9. Prosecution Exhibits Decision, supra note 29. Prosecution Exhibits Decision, supra note 29, para. 21.

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evidence would “constitute a dangerous obstacle to the administration of justice”41 and that as such the interests of justice demanded that the impugned evidence be admitted into the proceedings.42 It did reserve “the right to exercise its discretion to exclude any evidence admitted if it is satisfied that it was obtained by means contrary to internationally protected human rights”43 which suggests that had the breach in question amounted to a violation of the right to privacy of the accused, the evidence in question would have likely been excluded. Explicit recognition that breaches of procedural law may breach the right to privacy was given by the ICTY in Brdjanin, where the accused was contesting the admissibility of intercept communication allegedly made in breach of domestic law.44 However, both in this case as well as in Kordic45, the Trial Chamber held that even if the illegality alleged is established, “…evidence obtained by eavesdropping on an enemy’s telephone calls during the course of war is certainly not within the conduct which is referred to in Rule 95. It’s not antithetical to and certainly would not seriously damage the integrity of the proceedings.”46 No pronouncement was made however on whether the interception of communications violated the accused’s right to privacy, and thus the issue of admissibility centred around the question of the consequences of procedural illegality in collecting evidence, rather than the consequences of a violation of human rights in such collection. Drawing from the spirit set out by the Appeals Chamber in Nikolić, the Trial Chamber held in Brđanin that “[t]he correct balance must therefore be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law.”47 In Halilović, a breach of a procedural rule committed by the Office of the Prosecutor (the OTP) in good faith led the Tribunal to exclude the impugned evidence. The defence sought to have excluded a statement

41 42 43 44 45 46 47

Ibid., para. 20. Ibid., para. 21. Ibid., para. 23. Decision On The Defence “Objection To Intercept Evidence” (Brđanin), 3 October 2003, ICTY Trial Chamber II (IT-99-36-T), para. 31. Judge May oral decision delivered in Kordić and Čerkez, 2 February 2000, ICTY Trial Chamber, (IT-95-14/2-T), T.13694. Kordić and Čerkez, supra note 45, cited in Brđanin, supra note 44, fn. 23. Brđanin, supra note 44, para. 61.

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of the accused, which was based on interviews conducted by the OTP when Halilović was not yet a suspect, because the OTP had failed to keep notes of the interview in its records and had not audio or video recorded the interviews, as required under Rule 43 ICTY RPE. The Trial Chamber ruled that adherence to Rule 43 ICTY RPE must still be taken into account when considering the admissibility of statements, irrespective of the status of the accused at the time, since the aim of this rule is that of …ensuring the integrity of the proceedings, inter alia, by providing for an instrument to ascertain the voluntariness of a statement and the adherence to other relevant safeguards as provided for in Rule 42 and Rule 95 … Rule 43 is a fundamental provision to protect the rights of a suspect and an accused. Moreover it is a safeguard for a full and accurate reflection of the questions and answers during the interview and thus enables the parties and the Trial Chamber to verify the exact wording of what was said during the interview.48 What is especially significant in this decision is that strictly speaking the OTP did not intentionally breach any procedural rule when it conducted the interviews with Halilović. Since at the time he was not charged with any crimes before the ICTY, nor was he even a suspect, Rule 43 ICTY RPE was not applicable during the interviews conducted by the OTP, and as such the OTP could not have breached it. However, since it was seeking the introduction of a statement which was a mere summary of seven days of interviews, during which Halilović gave very detailed answers to the questions put to him by the OTP, the Trial Chamber was of the opinion that the reliability of the impugned evidence was tainted.49 Furthermore, since the interviews had not been recorded, the only way for the defence to effectively challenge the contents of the statement would have required the accused to waive his right to remain silent and testify before the Tribunal. Therefore, since Halilović had not waived his right to remain silent, the Tribunal concluded that the impugned evidence was inadmissible, since its inclusion in the trial would have led to a violation of the accused’s right to a fair trial.

48 49

Decision on Motion for Exclusion of Statement of Accused (Halilović), 8 July 2005, ICTY Trial Chamber I (IT-48-T), para. 24. Halilović, supra note 48, para. 25.

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From this decision it would appear that the Tribunal does not accept the good faith doctrine applicable in the United States, since no allegation of bad faith on the part of the OTP was made, and furthermore the Tribunal itself held that even though Halilović had not been warned that what he said could be used against him, it was not plausible that he had not understood that the contents of the interview could be used against him, since he had been informed that he had a right to remain silent and that anything he said could be used as evidence.50 What was of issue was the resultant effect that the lack of adherence to Rule 42 ICTY RPE would have had on the rights of the accused had the statement been admitted into evidence. This case clearly shows that the simple fact of conducting an examination into the entirety of the proceedings to establish whether fairness requires the exclusion of the impugned evidence, will not necessarily lead to the evidence being introduced into the proceedings or to a restriction of the accused’s right to a fair trial as seems to have been implicitly suggested by Gosnell.51 The jurisprudence discussed above thus confirms that the admissibility of unlawfully obtained evidence at the ICTY depends mainly on the result that its admission would have on the proceedings. The particular unlawful means adopted to obtain the evidence will only be enough to have the evidence excluded if they involve a violation of the prohibition of torture or a violation of the fair trial rights of the accused in and of themselves. Otherwise, the Tribunal will examine the effects that the admission of the impugned evidence will have on the trial and will only exclude it if its admission would lead to a violation of the accused’s right to a fair trial or if it would seriously damage the integrity of proceedings.

5

The Regime of the Rome Statute

5.1 Violation of the Law Evidence sought to be introduced in proceedings before the ICC could have been gathered from a plurality of sources. The OTP is the main investigator, and thus the majority of the evidence tendered against the accused during the proceedings tends to emanate from investigations undertaken by the OTP directly. However, the Statute also makes specific provision for the possibility of States taking part in the collection 50 51

Ibid, para. 23. Gosnell, supra note 1.

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of evidence. Furthermore, evidence sought to be introduced into the proceedings can also emanate from independent third parties, such as NGOs as well as intermediaries. Therefore, it is important to identify the applicable law governing the collection of evidence, in order to establish whether there has been a procedural violation satisfying the first limb of the exclusion test. 5.1.1 The OTP In the pre-trial phase, there is very little regulation of the exercise of investigative powers. Article 55 protects the rights of all persons during an investigation, and prohibits the OTP from: i. compelling persons to incriminate themselves or confess guilt; ii. subjecting persons under investigation to any form of coercion, duress or threat, to torture or any other form of cruel, inhuman or degrading treatment or punishment; and iii. subjecting persons to arbitrary arrest or detention and deprivations of liberty not in accordance with the procedures established in the statute. Furthermore, all persons are guaranteed the assistance of an interpreter and such translations as are necessary to meet the requirements of fairness whenever a person is questioned in a language which they do not fully understand. Once a person becomes a suspect, further protection kicks in, in accordance with Article 55(2), which on top of the above-listed rights also includes the following: i. the right to be informed, prior to questioning, that there are grounds to believe they committed a crime within the jurisdiction of the Court; ii. the right to remain silent, which silence cannot lead to inferences of guilt; iii. the right to legal assistance of one’s own choosing, including the right to free legal aid; and iv. the right to be questioned in the presence of counsel, unless the person has voluntarily waived this right. Furthermore, Rule 112 of the Rules of Procedure and Evidence requires that whenever a suspect is questioned by the Prosecutor, such interrogation is to be audio or audio-visually recorded.

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However, in terms of regulation of the collection of non-confession evidence, the Statute and Rules contain little guidance as to the procedure that is to be adopted by the OTP. Under Article 57(1), the Pre-Trial Chamber is given the faculty to issue such orders and warrants at the request of the Prosecutor as may be required during an investigation. However, the only provision which requires the Prosecutor to request authorisation from the Court in order to collect evidence is Regulation 115, which is only applicable in cases where the cooperation of the State on whose territory the evidence is to be found has not been secured. There is no guidance as to the manner in which the Prosecutor may collect evidence, which is not only questionable in terms of lack of applicable statutory procedural law in relation to collection of evidence, but also in terms of legal certainty, since it makes it difficult to foresee when and how one may be subject to search and seizure powers by the OTP. Furthermore, the requirement of authorisation under Rule 115 is not meant to protect the rights of suspects or the accused. Its scope is to ensure that the OTP’s work is not curtailed by uncooperative States. This lack of regulation is worrying, especially considering that collection of non-confession evidence does not relate solely to evidence obtained by means of search and seizure but relates also to evidence that is obtained from the body of the accused, including bodily searches, samples of bodily fluids and photographs. Such situations can lead to human rights violations, as illustrated by the case Frerot v. France, in which the submission to full body searches of the accused was deemed to constitute a violation of the prohibition of ill-treatment.52 Both the Statute as well as the Rules of Procedure and Evidence are silent on this matter, and therefore not only is there no guidance for the OTP with regards to how such evidence is to be collected, there is also no provision detailing the rights of a suspect or accused in such situation, and the procedure to be followed in case a suspect or accused refuses to cooperate with the OTP. It is left to the discretion of the Court to determine almost blindly on any problems that may be brought before it in this regard, including pleas for remedies both from a suspect or accused who might feel aggrieved by the conduct of the OTP during the collection of evidence and by the OTP itself if the suspect or accused would be withholding consent for collection of evidence. Although naturally the Court is not meant to be a passive bystander and must contribute to the protection of the rights of those who are suspects or accused as well 52

Frerot v. France, 12 June 207 ECHR no.70204/01.

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as endeavour to safeguard the international community’s interest in bringing impunity to an end, it is not the Court’s role to create solutions for inadequate drafting. Rather, the Court must be able to find solutions within the scope of the available tools for discovering the intention of the legislator.53 As such, the most satisfactory solution to this lacuna can only be the result of legislative intervention to amend the Rome Statute and introduce a more comprehensive regulatory framework. As can be seen from the jurisprudence of the European Court of Human Rights, which was discussed further above, the applicable legal framework must be accessible and foreseeable and there must be sufficient legal certainty as to the permissible means of collection of evidence. In the ICC’s case, the regulation of investigatory powers is insufficient. In fact, save for the collection of confession evidence, it is inexistent. Not only can this lead to violations of suspects’ human rights at the investigative stage, this lacuna remains problematic at the trial stage, since the questions of collection and admissibility of evidence and fair trial are interrelated. The requirement of equality of arms is a minimum guarantee of the right to a fair trial because it is recognised that the accused is naturally in a vulnerable position as compared to the prosecutor and steps need to be taken to level the playing field as much as possible in order to ensure that the right to defend oneself in criminal proceedings is not reduced to a theoretical and illusory right. However, notwithstanding the fair trial guarantee enshrined in the Statute, the Statute and Rules effectively turn the OTP into a Goliath during the investigative phase. 5.1.2 States The possibility of evidence being collected by States rather than by the OTP is specifically provided for in Article 93, which deals with forms of cooperation other than arrest and surrender. According to this Article, the Court has the power to request cooperation from State parties in matters such as the taking of evidence, including testimony under oath, the questioning of any person being investigated or prosecuted and the execution of searches and seizures. However, even though such powers would be exercised by the State in fulfilment of its duty to cooperate with the Court, the applicable law regulating the procedure according to which such evidence is collected is national law. As to the applicabil53

Belvedere Court Management Ltd v. Frogmore Developments Ltd., 24 October 1995, Court of Appeal [1996] 1 All ER 312, para. 331.

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ity of the Statute, according to Article 86, when a request for cooperation is made, the State is only obliged to comply with the provisions of Part 9, which contain no procedural framework for the collection of evidence. Furthermore, nothing in the Statute explicitly permits the Court to impose upon the State whose cooperation it is seeking an obligation to comply with its admittedly scant procedural framework regulating the collection of evidence. 5.2 Violation of Internationally Recognised Human Rights Since there is such scant regulation of investigative powers, it is far more likely that the admissibility of evidence is challenged on the basis that the means by which the evidence was collected were in violation of an internationally recognised human right. Reference to the application of “internationally recognised human rights” is made both in Article 21(3), which requires that the ICC interprets and applies the law in accordance with “internationally recognised human rights” and Article 69(7). However, the Statute does not elucidate on what is meant by “internationally recognised human rights” and the jurisprudence of the Court so far has not clarified the matter.54 In attempting to establish what principles make up this body of ‘internationally recognised human rights’, two questions need to be addressed: i. What degree of recognition is required to pass the international recognition test? ii. What sources is the Court to refer to in order to determine such principles? It seems clear from the language of Articles 21(3) and 69(7) that universal acceptance of a particular human right is not required for it to be applicable by the ICC.55 In fact, this would be far too onerous a requirement, considering that the Court itself is not yet universal.56 There is however no clarity regarding the degree of acceptance a rule will need before it is deemed to be internationally recognised for the purposes of 54

55

56

D. Sheppard, ‘The International Criminal Court and “Internationally Recognised Human Rights”: Understanding Article 21(3) of the Rome Statute’, [2010] 10 ICLR, p. 44. G. E. Edwards, ‘International Human Rights Law Challenges to the New International Criminal Court: The Search and Seizure Right to Privacy’, 26 YJIL (2001), p. 375. Sheppard, supra note 54, p. 47.

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the Statute and importantly, what weight is attached to the identity of the States recognising the rule. In a separate opinion, Judge Pikis held that internationally recognised human rights are those rights which are “acknowledged by customary international law and international treaties and conventions.”57 In determining that the right to a fair trial belongs to the category of internationally recognised human rights, Judge Pikis took into consideration the fact that the right to a fair trial is recognised in a number of international and regional human rights instruments, namely the Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights and the African Charter on Peoples and Human Rights. He concludes that “[t]he extent to which the right to a fair trial has been proclaimed as a legal norm and its incorporation in international instruments denotes comprehensive assent to its emergence as a principle of customary international law.”58 Similarly, Judge Kaul engaged in a wide review of international and regional human rights instruments in interpreting the concept of fairness.59 Apart from there being limited engagement by the Court on the issue so far, another problem is that, as can be seen from the above paragraph, those decisions that do make reference to ‘internationally recognised human rights’ do no elucidate on what criteria they are basing their decision on. A wide review of relevant instruments is undertaken which is more indicative of a universally accepted rule, thus leaving unanswered the question of exactly how far away from the bar of universality a particular rule can be to fall within the remit of the internationally recognised human right category applicable by the Court. Furthermore, since a wide range of sources, both international and regional, are referred to, it leaves unanswered the question of whether

57

58 59

Separate Opinion of Judge Georghios M. Pikis, Decision on the Prosecutor’s “Application for Leave to Reply to ‘Conclusions de la defense en response au memoire d’appel du Procureur’ (Lubanga Dyilo), 10 September 2006 ICC Appeals Chamber, (ICC-01/04-01/06-424 12-09-2006 1/10 SL PT OA3), para. 3. Ibid. Separate Opinion of Judge Kaul, Decision on the Prosecutor’s Application for Leave to Appeal Pre-Trial Chamber III’s decision on disclosure (Bemba Gombo), 25 August 2008, ICC Pre-Trial Chamber III, (ICC-01/05-01/08-75 25-08-2008 1/27 VW PT), para. 13.

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a single regional human rights instrument could be sufficient to establish an internationally recognised human right for the purposes of the Rome Statute. In this respect, it is important to consider that the texts of the different regional human rights treaties sometimes provide for different levels of protection. For instance, while both the European Convention60 and the Inter-American Convention61 allow for derogations in times of emergency, the African Charter does not and thus remains applicable in its entirety even in times of emergency. It has been argued that an accused before the ICC should not suffer a lower standard of human rights protection than he would have had at the national level, simply because his case is being prosecuted before the ICC.62 However, all accused are to be treated equally by the Court, and as such no accused can benefit from greater or lesser protection of his rights by the ICC than others. It has thus been suggested that in cases of conflict between regional treaties, the greater competing protection should be applied.63 The problem is that different instruments might provide for different levels of protection due to a balance of competing rights, which weakens the application of the ‘greater protection’ argument. For instance, the European Convention and the African Charter approach the use of anonymous witnesses in a different manner, because the guiding principles are based on different considerations and as such the question of which is the internationally recognised human right remains unanswered.64 It is doubtful that the ‘greater protection’ approach is accepted by the Court. In fact, in the Katanga admissibility challenge, the Trial Chamber II held that … the conditions under which prosecutions and trials are conducted before the Court will inevitably be different from those before a national court… Accordingly, the Defence cannot insist that trials held before the Court be conducted under identical conditions as those held, for example, in the DRC. The Chamber assumes in fact that when they created the court and decided that it would sit in The Hague, the State Parties were fully mindful of the 60 61 62 63 64

Art. 15 ECHR. Art. 27 ACHR. Sheppard, supra note 54, p. 64. Sheppard supra note 54, p. 65. Ibid.

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consequences that this would entail for the accused brought before the Court, and considered that they were not infringing their fundamental rights.65 Although from the above it is difficult to determine exactly what level of recognition is required in order for a right to be internationally recognised, it seems reasonable to conclude that a right which is only provided for one in one regional treaty will not be sufficient for it to be deemed to be an internationally recognised human right that is to be applied by the ICC. However, the protection of a particular right in different regional treaties, or in a widely ratified international convention should be sufficient for that right to be applicable by the Court, since the text of the Statute does not require universal recognition of a right. As regards to sources, in determining human rights related issues, both the ICC as well as the ad Hoc Tribunals make reference both to legal instruments as well as the jurisprudence of treaty bodies. In fact, the ICTY held in Brdjanin that “[a]t the international level, the only real sources that can be of use to this Trial Chamber are the previous case law of this Tribunal, that of the Rwanda Tribunal and the jurisprudence of the European Court of Human Rights.”66 The consideration of jurisprudence in assessing the existence of an internationally recognised human right is necessary for two main reasons. Firstly, treaties tend to be framed in more generic terms, and the precise contours of the rights guaranteed by the treaties are fleshed out in the jurisprudence of the treaty bodies. Secondly, human rights treaties are a living body of law. Human rights courts engage in progressive interpretation of the rights contained in the relevant instruments, in order to ensure that the rights guaranteed by them remain practical and effective with the passage of time. Therefore, whilst reference to human rights instruments will give the Court a general indication of the existence of a right, consideration of the jurisprudence interpreting the applicable provision will give the Court a better insight as to the proper scope and application of a particular rule. As such both human rights instruments as well as jurisprudence of treaty bodies are sources which should be taken into consideration 65

66

Motifs de la decision orale relative a l’exception d’irreceavabilite de l’affaire (Katanga and Ngudjolo Chio), 16 June 2009, ICC Trial Chamber II (ICC-01/04-01/071213 16-06-2009 1/39 VW T), para. 84. Brđanin, supra note 44, para. 41.

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by the Court when assessing whether an internationally recognised human right has been breached or not. 5.3

The Entities Responsible for the Violation in Question: A Relevant Consideration? As has been stated above, evidence tendered before the ICC could have been collected not only by the OTP, but also by States or third parties. This raises the question as to whether the identity of the entity responsible for the alleged violation will have a bearing on the admissibility of evidence. One might argue that the identity of the entity which committed the violation in question to obtain the evidence should play a role in the Court’s assessment as to whether the violation damages the integrity of the proceedings. When the evidence is collected by the OTP, there can be little doubt that serious violations committed in the obtainment of evidence will jeopardise the integrity of proceedings.67 The same can be said of persons acting on behalf of the OTP, such as intermediaries68 as well as States collecting evidence pursuant to a request for cooperation by the ICC. Since the OTP or the Court itself played a role in the involvement of these entities, any serious violations committed by them will necessarily reflect on the integrity of the institution itself. In fact, the ICTY has declared inadmissible evidence obtained by a State in violation of the accused’s right, even though the means by which the State obtained the evidence in question were in full accordance with domestic procedural law.69 Considering the issue of the effect of the identity of the entity responsible for the violation in question on the integrity of the institution, the ICTR held that [e]ven if fault is shared between the three organs of the Tribunal – or is the result of the action of a third party, such as Cameroon – it would undermine the integrity of the judicial process to proceed. Furthermore, it would be unfair for the Appellant to stand trial on these charges if his rights were egregiously violated. Thus, under the abuse of process doctrine, it is irrelevant which entity or enti-

67 68 69

K. Ambos, ‘The Transnational Use of Torture Evidence’, 42 Israel Law Review (2009), p. 370. Ambos, supra note 67, p. 371. Mucić et al., supra note 20.

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ties were responsible for the alleged violations of the Appellant’s rights.70 The fact that the evidence has been obtained by independent third parties should not automatically exclude the possibility that it will jeopardise the integrity of the proceedings. There is nothing in Article 69(7) which suggests a difference in treatment of illicitly obtained evidence according to the identity of the entity collecting it. Furthermore, notwithstanding who was responsible for its collection, it will ultimately be the ICC that will use it in a determination of the criminal responsibility of the accused. Using evidence obtained by means of serious violations of the law or internationally recognised human rights, notwithstanding the source of the evidence and violation, will damage the integrity of the institution, first of all because it gives the impression that it is condoning such violations and secondly because it will cast doubts as to its commitment to respect and guarantee the highest standard of human rights protection.

6

Exclusion of Evidence in ICC Proceedings: Some Guiding Principles

To date, the ICC has considered the question of admissibility of unlawfully obtained evidence in two cases: Katanga71 and Lubanga72. In the former case, it collapsed the two-limb test into one, by considering inadmissible the impugned evidence automatically after establishing a violation of the accused’s habeas corpus rights and therefore it sheds little light on the guiding principles to be adopted when assessing the second limb of the test. It could be considered however, that the Court was adopting the ICTY precedent that violations of habeas corpus rights will ipso facto render the impugned evidence inadmissible.73 In Lubanga however, after establishing that the means by which the evidence was obtained violated the accused’s right to privacy, the Court went on to consider whether admitting the evidence in question 70 71 72 73

Decision (Jean Bosco Barayagwiza v. The Prosecutor), 3 November 1999, ICTR Appeals Chamber (ICTR-97-19-AR72), para. 73. Katanga, supra note 21. Lubanga, supra note 27. Mucić et al., supra note 20.

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would be antithetical to and damage the integrity of the proceedings. It held that the probative value of the impugned evidence was not a relevant consideration because by introducing Article 69(7) the drafters were intentionally providing for a rule specifically applicable in cases of unlawfully obtained evidence which did not balance probity against prejudice. In fact, even if the impugned evidence was the only evidence available to support one of the elements of the crime, this would still not be a relevant consideration in assessing the admissibility of unlawfully obtained evidence.74 It also concluded that the gravity of the crimes charged is not a relevant consideration since it has jurisdiction over the most serious crimes of international concern and as such it would not be appropriate to rank crimes by their gravity. The Court furthermore pointed out that Article 69(7) makes no reference to such ranking of gravity.75 The Court held that the three relevant factors to be considered in assessing whether the unlawfulness by means of which the impugned evidence was obtained will damage the integrity of the proceedings include the gravity of the procedural violation, the impact of the violation on the rights of the accused and the involvement in the violation by the ICC prosecution. The Court held that in assessing gravity, regard must be had not only to the protection of the rights of the accused but also to the other core values of the Rome Statute, that is, “respect for the sovereignty of States…, the protection of victims and witnesses and the effective punishment of those guilty of grave crimes.”76 It concluded that effective punishment of serious crimes makes it inappropriate to exclude evidence because of minor procedural breaches, as long as the overall fairness of the proceedings is guaranteed.77 However, it is difficult to discern how a violation of a fundamental human right can ever be considered to be a ‘minor procedural breach’. Furthermore, although it is true that the protection of victims and witnesses and the punishment of those guilty of grave crimes are core values of the ICC system, these val-

74 75 76 77

Lubanga, supra note 27, para. 43. Ibid., para. 44. Ibid., para. 42. Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006 (Lubanga Dyilo), 14 December 2006, ICC Appeals Chamber, (ICC-01/04-01/06-772 14-12-2006 1/22 CB PT OA4), paras. 34-35.

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ues can never override the effective protection of the accused’s right to a fair trial, which has been held to be a sine qua non of the Court’s process. With regards to the consideration of the harm caused to the defendant by the violation, this case was rather particular, in that it was not the accused whose right to privacy was violated, but rather a third party. The Court held that notwithstanding the fact that it was a third party who was harmed in the process of obtaining the impugned evidence, the evidence could still be challenged and in principle declared inadmissible because damage to the integrity of the proceedings could be caused also by breaches of the rights of a third party. However, considering the fact that the defendant himself suffered no harm to his rights and that the exclusion of evidence would only benefit the accused without remedying the violation suffered by the third party, excluding the impugned evidence was less likely.78 In respect of the criterion of the entity responsible for the violation, the Court concluded that it was not likely to exclude evidence when the OTP had not been involved in the violation and as such would not be deterred by its exclusion. It held that in this case the responsibility for conducting the search rested primarily on the Congolese authorities and it was not within its mandate to deter or punish unlawful conduct by domestic authorities.79 Furthermore, in situations where the OTP would have been involved in the violation, the Court would also consider whether such involvement was due to bad faith or otherwise.80 This approach is however rather questionable. In the first place, there is nothing in Article 69(7) which suggests that violations committed by entities other than the OTP can be disregarded when assessing the admissibility of unlawfully obtained evidence. Reliability of evidence or damage to the integrity of the proceedings are not solely dependent on the identity of the entity responsible for the violation. Once the Court accepts tainted evidence into the proceedings, it will be condoning the violation itself which is more than sufficient to damage the integrity of the proceedings. Furthermore, as was stated by Sluiter, [a]s models for international criminal justice, the ICTY and the ICTR may be expected to fully respect internationally protected human rights. In the long run, the support for and confidence in 78 79 80

Lubanga, supra note 27, para. 42. Ibid., paras. 45-46. Ibid.

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forms of international criminal adjudication, including the recently established permanent international criminal court (ICC) will depend on whether or not the tribunals can live up to this expectation.81 It is difficult to envisage how the ICC can live up to this expectation if it turns a blind eye to human rights abuses committed by States in the obtainment of evidence which is then used by the Court itself. Considering that the ICC is constantly under the cynical eyes of those who see it as an expensive and futile endeavour, and the hopeful eyes of the believers who place it on a precariously high pedestal, it ill affords to hide behind the kind of rhetoric it adopted in Lubanga. Finally, this approach is diametrically opposed to that taken in Katanga, where the Court decided to exclude evidence even though the violation was committed by State authorities and not the OTP.82 This does nothing to alleviate the problematic lack of legal certainty that surrounds the issue of admissibility or otherwise of unlawfully obtained evidence.

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Conclusion

It seems clear that the exclusionary rule of the ICC is not in itself a restriction of the right to a fair trial. It allows the Court to balance the rights of the accused with the competing interests of victims and of the international community as a whole to secure punishment of those guilty of the most serious crimes of international concern. However, although the interests of victims must be kept in mind, these cannot override the proper protection of the accused’s right to a fair trial. Ultimately, the Court is not a truth-finding mechanism. Its job is to look at the evidence before it to determine whether it sustains the charges brought by the prosecution, and in so doing it has a duty to safeguard the accused’s right to a fair trial. It is not equipped to establish historical truth. As such, the exclusionary rule should not be interpreted in such a way so as to improperly restrict a defendant’s right to a fair trial. The real impediment to the right to a fair trial is actually the limited role of procedural legality in the ICC investigative framework, and the 81 82

G. Sluiter, ‘International Criminal Proceedings and the Protection of Human Rights’, 37 New Eng. L. Rev. (2002- 2003), p. 935. Katanga, supra note 21.

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lack of guidance as to the applicability of the exclusionary rule. In this respect a number of steps can be taken to address these shortcomings. The introduction of a more comprehensive legal framework regulating the powers of the OTP is necessary in order to ensure that the possibility of a restriction of a suspect’s or accused’s right is foreseeable. Furthermore, the development of guidelines on the applicability and operation of Article 69(7), along the lines of those adopted by the ICTY in Martic would promote legal certainty on the issue of admissibility of unlawfully obtained evidence. Finally, it should also be made possible for the Court to take into account the procedural framework regulating criminal investigations that States have before requesting cooperation in the collection of evidence. The ability to gain State cooperation in ensuring at least minimum standards of safeguards of suspects’ rights during investigations would also be a welcome addition to the current framework on State cooperation, and fits in perfectly well with the notion of positive complementarity.

International Trade Law

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7 The Legal Consequences of Brexit from an International Economic Law Perspective Ines Willemyns* and Marieke Koekkoek**

Abstract Ever since the Brexit referendum, much unclarity has existed on the consequences of a Brexit for the United Kingdom in the context of international economic law. Although the economic consequences of Brexit have received much attention, little is yet known about the international economic law aspects of the new position of the UK in relation to the World Trade Organization (WTO) and the future EU-UK trade relationship. This paper provides an analysis of the possible ways in which the different legal questions related to Brexit from the perspective of international economic law could be addressed. The first section of the paper discusses the legal consequences of Brexit in the WTO. The general and specific rights and obligations of the UK within the WTO are touched upon, as well as the consequences for the country-specific obligations of the UK post-Brexit, considering the unique position of the EU, representing its Member States within the WTO. Different legal possibilities to manage these consequences are discussed, drawing inspiration from public international law on State succession, the accession process for ‘separate customs territories’ within the WTO and the enlargement of customs unions under Article XXIV of the GATT 1994. The second section of this paper includes an overview of possible forms the future EU-UK relationship could take. It considers the different paths taken under a ‘hard’ and under a ‘soft’ Brexit. The paper concludes by sharing some thoughts on the more feasible options for the position of the UK post-Brexit.

* **

Doctoral research fellow and junior member of the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven. Doctoral research fellow and junior member of the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven.

Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2015. © 2017 Koninklijke Brill nv. isbn 978-90-04-35408-1. pp. 191-232.

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Introduction

Since the results of the Brexit-referendum were released on the 24th of June 2016, much unclarity has surfaced regarding the consequences of the Brexit for the United Kingdom (UK) and the European Union (EU) in the context of international economic law. As membership to the EU entails first and foremost membership to its economic single market, the economic effects of the Brexit will be considerable and very also interesting from the perspective of legal scholars. This paper aims to provide the reader with some clarifying elements on the UK’s future position within the World Trade Organization (WTO) and the possibilities of a future EU-UK economic relationship. More than a year after the UK’s decision was made public, confusion exists on the UK’s legal position within the WTO. As already signalled by the WTO Director-General, Roberto Azevêdo, in a cautionary speech given in London in the context of the (then) imminent threat of Brexit: “The UK, as an individual country, would of course remain a WTO Member, but it would not have defined terms in the WTO for its trade in goods and services. It only has these commitments as an EU member. Key aspects of the EU’s terms of trade could not simply be cut and pasted for the UK. Therefore, important elements would need to be negotiated.”1 Various possible scenarios have already been raised in the discussion on the UK’s position within the WTO. These range from the statement that the UK will have to accede to the WTO ‘from scratch’, thereby negotiating all of its commitments with all WTO Members, as is required for any acceding Member to the WTO. This would entail a long and painstaking process, with de facto veto power on the UK’s accession accorded to every single WTO Member. The suggestions on the other side of the spectrum point to the fact that the UK so far has been bound by EU commitments and that it therefore might be considered a logical consequence for the UK to be able to take over EU commitments and to only be required to renegotiate its share of EU (agricultural) support commitments and its share of EU tariff rate quotas (TRQs). This seemingly easy solution raises several difficult questions: is it possible for a WTO Member to simply take over the commitments negotiated by the customs union it used to be part of? What about the plurilateral 1

WTO News, Azevêdo addresses World Trade Symposium in London on the state of global trade, 7 June 2016, , visited on 19 May 2017.

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agreements negotiated in the context of the WTO? What is the position of a WTO Member leaving a customs union in the sense of Article XXIV General Agreement on Tariffs and Trade 1994 (GATT)? Will the UK inevitably fall into ‘legal limbo’ during the period in which it conducts bilateral negotiations with other WTO Members over its specific rights and obligations under WTO law? The first section of this article will assess the UK’s position regarding its various rights and obligations in international trade law. In its second part, this article discusses some of the more plausible options the UK and the EU can explore in shaping their post-Brexit economic relationship. It is clear that the UK, by being part of the EU internal market and having negotiated its international trade commitments under the umbrella of the EU, has to address its economic relationship with the EU before it can turn to repositioning itself within the WTO.

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The Legal Consequences of Brexit in the WTO

2.1 The UK’s General Rights and Obligations under WTO Law As a continuing Member of the WTO, as acknowledged by the WTO’s Director General in his 7 June speech, the UK is subject to all rights and obligations under the Marrakesh Agreement2 and its Annexes: the General Agreement on Tariffs and Trade 1994 (GATT),3 the General Agreement on Trade in Services (GATS)4 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)5.6 The erga omnes obli2 3

4

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Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994). General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994). General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994). Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994). As stated in Article II, para. 2 of the Marrakesh Agreement: “The agreements and associated legal instruments included in Annexes 1, 2 and 3 (hereinafter referred to as “Multilateral Trade Agreements”) are integral parts of this Agreement, binding on all Members”.

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gations in these Multilateral Agreements will continue to apply to the UK without the need for renegotiation or further formalities. The sole fact of being a continuing Member of the WTO suffices for these rights and obligations to apply to the UK without further delay. The exceptions to the erga omnes rules applying to the WTO Members can be found in Article II GATT and Article XX GATS. Both of these Articles contain the specific references to the ‘Schedules of Concessions’ and the ‘Schedule of Specific Commitments’ respectively. These Schedules contain each Member’s individual commitments, reflecting specific tariff concessions and other commitments that have been agreed upon between the individual Member and all other WTO Members. For trade in goods, these Schedules include the bound tariff rates for specific goods. For services, these Schedules include the specific commitments on the market access and national treatment obligation of Members for specific service sectors. For agricultural goods specifically, the Schedules not only bind tariffs, but concessions and commitments are made regarding TRQs, limits on export subsidies and some kinds of domestic support.7 The commitments and exceptions applying to all EU Member States are included in the Schedule of the European Union.8 As part of a single customs union, the tariffs of all EU Member States are the same and set out in the EU’s Goods Schedule. For those Member States that acceded to the EU after the negotiation of the original Schedules, their individual Schedules have been withdrawn by request of the European Union (e.g. Schedules of Bulgaria, Croatia and Hungary).9 There is thus some practical guidance on the accession of countries to the EU’s customs union, however this is not the case for countries wanting to leave such an integrated customs union. It is this lack of individual specific commitments for the UK that creates most confusion on the consequences for a post-Brexit WTO membership of the UK. In an interview for BBC 7 8

9

WTO, Goods Schedules – Member’s commitments, , visited on 19 May 2017. These can be found at, respectively, WTO, Goods schedules – Current Situation of Schedules of WTO Members, , visited on 19 May 2017 and WTO, Services: commitments – Schedules of commitments and lists of Article II exemptions, , visited on 19 May 2017. WTO, Goods schedules – Current Situation of Schedules of WTO Members, supra note 8.

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news on 2 November 2016, the Director-General of the WTO, Azevêdo, indicated that negotiations will have to happen between both the EU and the UK as well as between both parties and the WTO Members.10 He additionally indicated that “a lot will depend on the terms of separation between the EU and the UK”, thereby stating that both the EU and the UK will have to agree on their ‘new schedules of commitment’ (as negotiated between them) with all other WTO Members. The different elements of the UK’s position within the WTO post-Brexit will be discussed in more detail below. 2.2

The UK’s Specifijic Rights and Obligations under GATT 1994 and GATS 2.2.1 The UK as an Original Member and the EU’s Common External Tarifff The UK qualifies as an original WTO Member as explained in Article XI of the Marrakesh Agreement. The United Kingdom was one of the 23 original Members of the 1947 General Agreement on Tariffs and Trade (GATT 1947), automatically acceding to this Agreement on 1 January 1948.11 When the UK became a Member State of the (then) European Communities (EC) in 1973, it (as all Member States of the EC) retained its original GATT Membership.12 The European Communities were not a contracting party to the GATT 1947, but their acceptance of certain GATT-related agreements was explicitly recorded. Moreover, most agreements negotiated in the GATT framework after 1970 were accepted only by the European Communities, without separate acceptance by its different Member States (thereby arguably having a de facto membership).13 Contrary to the GATT 1947, the WTO did foresee EU membership. Art. XI:1 Marrakesh Agreement sets out that both the contracting parties to the GATT 1947 and the European Communities (“which accept this Agreement and the Multilateral Trade Agreements

10 11 12 13

BBC News, WTO Chief: Post-Brexit trade ‘uncertain’, 2 November 2016, , visited on 19 May 2017. WTO, The 128 countries that had signed GATT by 1994, , visited on 19 May 2017. WTO, Member Information - United Kingdom and the WTO, , visited on 19 May 2017. J. Brsakoska Kaserkoska, ‘The European Union and the World Trade Organization: Problems and Challenges’ 7 Croatian Yearbook of European Law and Policy (2011), p. 279.

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and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to GATS”) become original WTO Members. This includes a membership by all EU Member States as well as the EU as a customs union. As confirmed by the Panel in EC and certain Member States – Large Civil Aircraft, all EU Member States are “in [their] own right, a Member of the WTO, with all the rights and obligations pertaining to such membership, including the obligation to respond to claims made against it by another WTO Member.”14 Additionally, it was held that “[t]he Panel notes that the European Communities is a Member of the WTO. In addition, all the constituent Member States of the European Communities are Members of the WTO. The Member States were either founding Members of the GATT; they acceded to the GATT; or they have since acceded to the WTO. Therefore, it would appear that the European Communities as well as its constituent Member States concurrently bear the obligations contained in the WTO Agreements”.15 However, because the EU qualifies as a single customs union, its Goods Schedule reflects the common external tariffs as applied by all of its Member States. Therefore, the EU annexed its Goods Schedule to the GATT 1994, revoking the UK’s original GATT 1947 Commitments. Similar steps were taken for countries that joined the EU after the establishment of the WTO. In 2004 the European Communities notified the withdrawal of the commitments in the Schedules of the Czech Republic, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia, the Slovak Republic and its own Schedules, and that it was ready to renegotiate its commitments under Article XXIV and XXVIII GATT.16 It was also clarified that “[p]ending the completion of the Article XXIV and XXVIII GATT 1994 procedures and the creation of a new schedule valid for the European Communities of 25, the commitments in the European Communities Schedule CXL will be fully respected. The new members of the European Union intend to align their Schedules with those of the European Communities on 1 May 2004.”17 14 15 16 17

Panel Report, EC and certain Member States – Large Civil Aircraft, WT/DS316/R, para. 7.174. Panel Report, European Communities – Selected Customs Matters, WT/DS315/R, para. 7.548. WTO, Article XXIV:6 Negotiations – Enlargement of the European Union, Communication from the European Communities, 30 January 2004, G/SECRET/20, p. 2. Ibid.

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Because the UK was and still is a full WTO Member, the rights and obligations applying to all WTO Members are still fully applicable to the UK. This includes, as explained above, any erga omnes partes obligations included in the DSU, GATT, GATS and TRIPS agreement. What does change for the UK is the fact that, after leaving the EU, it is a Member without any country-specific commitments (reflected in Goods or Services Schedules). Leaving the EU, the UK will no longer have a specific Schedule of Concessions as required by Article II:1(a) GATT and Article XX GATS. As already highlighted by Bartels, this has several implications for both Members, i.e. uncertainty regarding: (i) the tariff concessions applied by the UK in its future trade relations; (ii) the distribution and/or continuation of the tariff rate quotas applied by the EU; (iii) the distribution and/or continuation of (agricultural) support commitments.18 In addition to these issues related to the UK’s Schedules, it should be noted that Brexit creates the need for the UK to draft rules dealing with trade remedies as well as develop new rules of origin.19 In its first report on the Session 2016-2017, the International Trade Committee20 of the UK’s House of Commons stated that the drafting of new UK Schedules of Commitments and Concessions is a “necessary and inevitable technical aspect of Brexit, which is concomitant upon the UK ceasing to be a member of the EU, irrespective of the terms on which UK-EU trade ends up being conducted after Brexit”.21 It additionally highlighted that the UK government prefers replicating current obligations as far as possible, “in dialogue with the WTO Membership”.22 Moreover, the Department for International Trade stated that it will push for a technical rectification of the UK’s Schedules, rather than a 18 19 20

21

22

L. Bartels, The UK’s Status in the WTO after Brexit, 23 September 2016, , visited on 19 May 2017. See House of Commons, infra note 21, p. 13 and A. Mishra, infra note 25, p. 20. The International Trade Committee was appointed in October 2016 to scrutinise the work of the newly established Department for International Trade, created to develop, coordinate and deliver a new trade policy for the UK. House of Commons, International Trade Committee, UK Trade Options Beyond 2019. First Report of Session 2016-2017, 7 March 2017, HC 817, p. 9, , visited on 19 May 2017. Written statement made by Dr. Liam Fox at the House of Commons, UK’s Commitments at the World Trade Organization, 5 December 2016, HCWS316, , visited on 19 May 2017.

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modification.23 The difference between both modalities for making changes to existing Goods Schedules is set out in the GATT Decision on Procedure for Modification and Rectification of Schedules of Tariff Concessions,24 which is a binding decision under the GATT 1994. Whereas rectification can be used for rearrangements that do not alter the scope of the commitments or other formal changes (thereby only requiring that no WTO Member objects to this change), modification entails a substantive change of concessions and therefore requires rounds of negotiations with the other WTO Members.25 Even though the UK preference for a rectification of its Schedule rather than a modification is an obvious one, it does not necessarily reflect the reality of the changes required. As will be elaborated on below, even though the bound tariffs might quite easily be transposed from the EU Schedule to the UK’s Schedule, this is not necessarily the case for other elements in the Schedule. 2.2.2

Exercise of UK’s Rights and Obligations after Brexit: its Goods and Services Schedules, Tarifff Rate Quotas and Agricultural Subsidy Commitments It is especially the quantified tariff commitments that create uncertainty and will require deep consideration by both the EU and the UK.26 If both Members want to tackle these issues head-on, it might be advisable to, as suggested by Roberto Azevêdo, already draft an action plan before the lapse of the Article 50 negotiation period, containing a clear distribution of quantified commitments. In as far as such changes would be qualified as modifications of Schedules, it will be up to the other WTO Members to agree to these proposals before they are incorporated into either Member’s Schedules. As will be explored more in-depth in the second part of this article, the desirability of such an agreement between the UK and the EU is clear when the UK would pursue a ‘hard Brexit’ as well as when it would pursue a ‘soft Brexit’.

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26

House of Commons, supra note 21, p. 9. GATT, Procedures for Modification and Rectification of Schedules of Tariff Concessions, Decision of 26 March 1980, L/4962, paras. 1-2. See A. Mishra, ‘A Post Brexit UK in the WTO: The UK’s New GATT Tariff Schedule’ in J. Hillman and G. Horlick (eds.), Legal Aspects of Brexit. Implications of the United Kingdom’s Decision to Withdraw from the European Union (Institute of International Economic Law, Georgetown Law, Washington DC, 2017) pp. 21-22. L. Bartels, supra note 18, pp. 21-22.

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The first report of the International Trade Committee indicated the different opinions on how the EU’s tariff rate quotas (TRQs) should be included in the UK’s new Schedule and the degree of difficulty. Some opine that a simple calculation of the UK’s share in these quantitative commitments can be transposed into the new Schedule.27 Others take the position that an inclusion of UK-specific TRQs would modify existing conditions of competition as imports into the UK would no longer lead to access to the EU internal market.28 In addition, it should also be noted that the TRQs of the EU should equally be amended to reflect the new reality of a UK-less EU, involving a unavoidable “complex disentangling process”.29 However, the Secretary of State for International Trade, Dr. Liam Fox, has asserted that ‘successful’ private bilateral talks have already been had with interested WTO Members in relation to these quotas.30 With regard to agricultural subsidies, it can, first, be noted that export subsidy entitlements will most likely not pose any issues as it was agreed at the 2015 Nairobi Ministerial that these would be eliminated by 2020 at the latest.31 Second, the EU’s Aggregate Measurement of Support (AMS) commitments still exist, but are currently being used to a very limited extent.32 It is argued that little discussion will be caused by the apportionment of the unused percentage of AMS and that the UK will most likely not want to increase use of trade-distorting support after Brexit.33 For its Services Schedule, the situation is a bit more straightforward (and arguably less complicated). Contrary to trade in goods, the UK has 27 28 29 30

31 32

33

House of Commons, International Trade Committee, Oral Evidence: UK trade options beyond 2019, 13 December 2016, HC 817-ii, Q130. Ibid., Q165. House of Commons, supra note 21, p. 11. “There are a number of countries who will have questions over quotas in relation to that and we wanted to deal with them and talk to them privately before we acted in a public way. We did that and I am happy to say that our discussions have been extremely useful and I think productive.” House of Commons, International Trade Committee, Oral Evidence: UK trade options beyond 2019, 1 February 2017, HC 817-vii, Q447. By developed countries. WTO, Ministerial Conference Nairobi, Export Competition, Ministerial Decision of 19 December 2015, WT/MIN(15)/45, WT/L/980. For the marketing year 2013/2014, the EU used 8,2% of the total AMS commitment level. See WTO, Committee on Agriculture, Notification by the EU, 8 February 2017, G/AG/N/EU/34. A. Mishra, supra note 25, p. 19 and House of Commons, supra note 27, Q179.

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never had an individual GATS Schedule, as these Schedules were only negotiated during the Uruguay Round. The GATS Services Schedules are positive lists of commitments, which means that if the UK decides to take over these commitments, there will probably not be much objection by other Members (as it does not lead to more protectionism). Moreover, these commitments are generic, with limitations often on a EU Member State-specific basis, which means they can easily be transposed to a UK-specific GATS Schedule.34 2.3

Diffferent Possibilities to Manage the WTO Consequences of a Brexit Several possibilities to manage the consequences of a Brexit within the WTO can be imagined, some of which are more probable than others. Because of the limited scope of this paper, we limit ourselves to an analysis of the rules on State succession in public international law, the law and practice regarding WTO membership through acceptance by ‘separate customs territories’ and the legal and practical consequences of EU enlargement. 2.3.1 State Succession An arguably ‘obvious’ part of international law to turn to in the Brexit scenario, are the legal rules and practice on State succession.35 State succession is present in various instances:36 (i) decolonisation,37 (ii) dismemberment of an existing State,38 (iii) secession, annexation and merger.39 The situation created by the Brexit resembles most closely the 34 35 36 37

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For more specific information and arguments: L. Bartels, supra note 18, pp. 12-13. As codified in the Vienna Convention on Succession of States in Respect of Treaties, 1946 UNTS 3; 17 ILM 1488 (1978); 72 AJIL 971 (1978). M. N. Shaw, International Law (Cambridge University Press, Cambridge, 2014) p. 694. A form of State succession where independence is either granted by the predecessor State to the successor State or is claimed by the successor State (which used to be part of the predecessor State), with a continuation of the predecessor State, who despite loss of territory continues its existence unaltered. See D. B. Majzub, ‘Does Secession mean Succession? The International Law of Treaty Succession and an Independent Québec’ 24 Queen’s Law Journal (1999) p. 419. A form of State succession where the predecessor State ceases to exist and with each successor State emerging with a new legal personality. See ibid., p. 421. All forms of State succession where there is continuation of the predecessor State, albeit with altered territory (but the international legal personality of the predecessor State remains unchanged in case of secession and annexation).

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secession of part of a State to form a ‘new State’. Of course, the UK is not in ‘new State’ in the sense of public international law whatsoever, not even in WTO terms. Correspondingly, the EU is also not a ‘State’ according to public international law. We therefore readily submit that the Brexit scenario does not directly fit into the practice of State succession as known in international law. It could however be argued that, as far as WTO law goes, the EU, as a customs union, has been granted the exact same rights and obligations as its State-counterparts.40 For this analysis, we will therefore qualify the EU as the continuing ‘predecessor State’ and the UK as the ‘successor State’, as the secession of the UK from the EU creates issues within the WTO very similar to those that would follow from a full-blown secession in public international law. We therefore hope to draw some inspiration from these public international law rules to help and assess the position of both the EU and the UK within the WTO framework. The international aspects of State succession are governed through several customary international law rules as set out in the Vienna Convention on Succession of States in Respect of Treaties (1978) (hereafter: Vienna Convention on Treaty Succession).41 The main question relevant for the debate on Brexit and the WTO relates to the continuation of international commitments as recorded in WTO Members’ Goods and Services Schedules, as explained above. In international law, it is clear

40

41

As held by the Panel in the EC – Trademarks and Geographical Indications dispute: “The European Communities is not a country, but [the first explanatory note to the WTO Agreement] might not be relevant if all references to a “country” in the relevant agreements can be adequately understood in relation to the European Communities.” Panel Report, EC – Trademarks and Geographical Indications, WT/DS174/R, circulated 15 March 2005, para. 7.160. The Vienna Convention on Treaty Succession was adopted in 1978, but only entered into force in 1996. Currently, this Convention only counts 22 State parties. We readily admit that not all of the provisions in this instrument can be considered as codifications of customary international law. However, as will be explained below, every Article that is referred to in the context of this paper has been recognised by some as an expression of customary international law. It should be taken into account that discussion exists on the customary character of most of these provisions, but we submit that they, regardless of this ongoing discussion, could provide for relevant guidance in the Brexit debate. See also G. Di Stefano et al., ‘Introduction’, in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités (Bruylant, Brussels, 2016) pp. 1-4; M. N. Shaw, supra note 36, p. 695.

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that a secession of a territory from an existing State does not affect the continuing commitments of the latter State, regardless of its change in territorial dimension.42 This however seems to directly contradict the suggestion made by WTO Director-General Azevêdo, that the EU will have to amend its Schedules as well because of a new economic reality.43 Does the difference lie here in the fact that WTO Member’s Schedules are equivalent/similar to bilateral agreements between States and that they, as such, do not reflect multilateral rights and obligations? Does the fact that other WTO Members have a de facto veto during negotiation of Members’ Schedules qualify them as extensive bilateral agreements with all WTO Members? “The existing state remains in being, complete with the rights and duties incumbent upon it, save for those specifically tied to the ceded or seceded territory.”44 Are country-specific commitments within the context of the WTO specifically tied to the territory as a whole? And if so, are they impacted by the loss of an important part of that Member’s territory and GDP? It can be argued that this is the case for the quantitative commitments in Members’ Schedules. The provisions of the Vienna Convention on Treaty Succession will be applied to the specific case of Brexit, with the aim of considering whether some guidance can be found for dealing with the outstanding issues. As noted by Shaw, in many cases, problems relating to succession are solved by agreements between the States involved (devolution agreements, however, do not bind third States).45 In this case, this would

42

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M. N. Shaw, supra note 36, pp. 696, 706. This same rule can be found in Article 35 Vienna Convention on Treaty Succession: existing treaties remain in force for the predecessor State unless agreed otherwise or if the treaty related only to the seceded territory or if continuing application would be inconsistent with the treaty’s object and purpose. This provision is considered a customary rule of international law. See V. Mikulka, ‘Article 35’, in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités (Bruylant, Brussels, 2016) p. 1224. BBC News, supra note 10. M. N. Shaw, supra note 36, p. 696. Article 8 Vienna Convention on Treaty Succession; this provision is deemed an expression of customary international law, as it is considered an application of the rule of pacta tertiis nec nocent nec prosunt as codified in Article 34 of the Vienna Convention on the Law of Treaties (hereafter VCLT), which is also considered a rule of customary international law; A. Garrido-Muñoz, ‘Article 8’, in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités (Bruylant, Brussels, 2016) p. 270.

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entail a bilateral agreement between the EU and the UK. Such a bilateral agreement is already required by Article 50 TEU. Trade relations between the EU and the UK, however, are not definitively established after such a bilateral agreement is developed. After the UK formally submitted its Article 50 TEU notification on the 29th of March 2017 it became clear that the EU is not willing to commence negotiations on trade relations before a definitive withdrawal agreement is concluded between the EU and the UK .46 It should be noted that, in practice, devolution agreements were not considered satisfactory by many new States and several successor States have resorted to unilateral declarations, setting out a transitional period to decide upon the treaties to which the new State would remain member (in the meantime, both multilateral as well as bilateral agreements continued to apply to it).47 Whereas the EU’s position within the WTO after Brexit remains similar,48 the UK’s position regarding its (country-specific) WTO rights and obligations is less straightforward, as various views exist on whether the seceding territory ‘commences’ its international life free from the treaty rights and obligations that applied to the predecessor State, or whether there is a presumption of treaty continuity. The provision of the Vienna Convention on Treaty Succession most likely to apply to the situation of Brexit, Article 34, provides that treaties applying to the predecessor State continue to apply to the seceding State, unless States agree otherwise or if it appears inconsistent with the object and purpose of the treaty or would radically change its conditions of operation.49 “The requirements of international stability in certain areas in 46

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The tough EU stance became clear after a leaked resolution of the European Parliament. It was stated that any free trade deal including free trade would be a mixed agreement, subject to the ratification of the national parliaments of all EU Member States and the European Parliament. D. Boffey, First EU Response to Article 50 Takes Tough Line on Transnational Deals, The Guardian, 29 March 2017 , visited on 19 May 2017. On the possibilities for the negotiations of a withdrawal agreement between the EU and the UK, see section 3 of this paper. M. N. Shaw, supra note 36, p. 694. As explained above, as a general rule, the continuing State remains bound by its international rights and obligations. Art. 34 Vienna Convention on Treaty Succession. Even though this provision is not explicitly recognised as a rule of customary international law, it has been stated that this provision has served as an important source of reference in the

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particular will stimulate States generally to encourage an approach of succession to multilateral obligations by the newly independent secessionist States.”50 This statement holds true in a WTO context as well. It would be quite undesirable for the UK to have to start off with a ‘clean slate’ within the WTO. A major trading nation with no country-specific commitments applying to the goods and services it trades will inevitably lead to much uncertainty, and might even lead to a considerable decline in trade to and from the UK, as exporters and importers are trying to figure out the applicable tariffs and concessions. A prolonged ‘limbo’ where the UK is expected to renegotiate all of its commitments and concessions, starting from a clean slate, would in any scenario be quite undesirable. Therefore, applying Article 34 of the Vienna Convention on Treaty Succession would allow the UK to continue the application of the EU’s existing Schedules, with no risk of legal uncertainty.51 However, if the UK can take on the concessions as negotiated by the EU, other WTO Members might feel cheated in the beneficial treatment that is automatically granted to a much smaller market, that can offer its trading partners less than the EU can. An interpretation of Article 34 allowing for continuity of existing Schedules would, in fact, undermine the principle of consent. In thinking about the law of treaties, the absence of consent could be justified when applying the theory of automatic continuity. This theory has been coined in the context of international human rights law and international humanitarian law. It recognised that there are certain treaty provisions that continuously apply, even in the absence of the explicit

50

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consolidation process in recent international practice. See V. Mikulka, ‘Article 34’ in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités, 2016, Brussels, Bruylant, 1197. A similar position was taken in D. B. Majzub, supra note 37, p. 429: “[a]n examination of the deliberations of the ILC clearly indicates that Article 34 is not a codification of customary international law, but represents an attempt by the ILC to develop the law of treaty succession.” Therefore, we deem this provision relevant for this discussion, if only for the sake of the argument. M. N. Shaw, supra note 36, p. 707. See also R. Szafarz, ‘Succession of States in Respect of Treaties in Contemporary International Law’, 12 Polish Yearbook of International Law (1983), p. 110. In applying this Article, it might be argued that an adoption of EU Schedules by the UK would go against the object and purpose of the GATT and/or GATS, as both require the Schedules of concessions/commitments to be country-specific. See Article II GATT and Article XX GATS.

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consent of the successor State, due to the special nature of the legal obligations.52 The absence of consent is unimportant, as it is the interest of the international community which is protected by such treaties.53 Automatic succession could arguably have become a principle of contemporary international law due to subsequent practice by, amongst others, the Appeals Chamber of the Tribunal for the Former Yugoslavia.54 Automatic continuity would apply to those cases where a treaty does not include individual advantages or disadvantages to States, but is concerned with protecting the common good of the international community.55 The obligations in this category of treaties are not owed to individual governments, but directly to the individual citizens.56 The protection of individuals included in these treaties cannot, once granted, be lost due to a change of the legal situation in a territory.57 With respect to the WTO agreements, it is highly doubtful such reasoning applies. The primary objects of WTO law are individual governments, which is exemplified by – for example – the fact that only WTO Members may bring a dispute to the Dispute Settlement Body (DSB).58 As 52 53

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M.T. Kamminga, ‘State Succession in Respect of Human Right Treaties’, 7 European Journal of International Law (1996), p. 469. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v. Yugoslavia), 11 July 1996, Judgment on Preliminary Objections, Separate Opinion of Judge Weeramantry, ICJ Reports 1996, paras. 595, 654-655. F. Pocar, ‘Some Remarks on the Continuity of Human Rights and International Humanitarian Law Treaties’, in E.Cannizzara (ed.), The Law of Treaties Beyond the Vienna Convention, (Oxford University Press, Oxford, 2011) p. 8, , visited on 19 May 2017. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ, Advisory Opinion of 28 May 1951, p. 23, , visited on 19 May 2017. R. Higgins, Problems and Processes. International Law and How We Use It (Clarendon Press, Oxford, 1994) p. 75. Human Rights Committee in General Comment No. 26(61), Issues relating to the continuity of obligations to the International Covenant on Civil and Political Rights, 29 October 1997, para. 4 in CCPR/C/21/Rev. 1/Add. 8 and Report of the Committee, GAOR, Fifty-third Session, Supplement No. 40 (A/53/40), vol. I (1998), Annex VII, 102. Article 1 and 3 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401, 33 I.L.M. 1226 (1994).

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opposed to the protection of human rights,59 promoting a stable and predictable international trading system is not sufficiently recognised in international law as protecting the interest of the international community as a whole. The specific nature of WTO law thus does not warrant for automatic continuity. Furthermore, taking into account State practice, there seems to be a preference for the clean slate theory, cases in point being the separation of Belgium from the Netherlands (1830), Panama from Colombia (1903), Finland from Russia (1919), Poland and Czechoslovakia from Austria (1919), Ireland from UK (1922), Pakistan from India (1947) and Singapore from Malaysia (1965).60 The clean slate principle is also set out in Article 16 of the Vienna Convention on Treaty Succession, applying to a ‘newly independent State’ (i.e. former colonies).61 However, if the new State notifies succession, it can stay a member to the multilateral treaties in force in the preceding State.62 The terms of the treaty can require that participation of another State requires the 59

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F. Ruiz Ruiz, ‘The Succession of States in Universal Treaties on the Protection of Human Rights and Humanitarian Law’, 7 The International Journal of Human Rights (2003), p. 65. See also A. Rasulov, ‘Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automacity?’, 14 European Journal of International Law (2003) p. 167. “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.” This Article is deemed conform to the aforementioned Article 34 VCLT (which cannot be directly applied to situations of State succession), leading to some authors submitting that this is a rule of customary international law. For a discussion on this, see E. Henry, ‘Article 16’ in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités (Bruylant, Brussels, 2016) pp. 575-586. It has also been argued that if Article 16 is not a rule of customary international law, it is at least “declarative of customary international law”. See D. B. Majzub, supra note 37, p. 426. See Article 17.1 Vienna Convention on Treaty Succession. Various arguments have led to the conclusion that Article 17 is a rule of customary international law: (i) its content is based upon or a logical consequence of the tabula rasa principle, which in itself is derived from the principle of self-determination (considered as a clear example of customary international law); (ii) it codifies the principle of the free choice of accession to multilateral treaties for new States; and (iii) it furthers the objective of facilitating accession in the interest of the international community. See S. Rosselet, ‘Article 17’ in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Con-

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consent of all parties, which the newly independent State must then obtain before it can become a member.63 Considering Article XII Marrakesh Agreement and the negotiations with all WTO Members, in practice, who have to agree to the terms of accession (including the commitments made by the new Member in its Goods and Services Schedules), this would probably be required within the WTO. Contrariwise, bilateral treaties are only continuously applicable to the newly independent State in case of an express or tacit agreement to that end between the new State and the bilateral party.64 The question can be asked whether Members’ Schedules can be interpreted as being ‘bilateral agreements’ in the sense that each and every WTO Member has to consent to a new Member’s Schedule, often using their own Schedules (and the concessions that they have included) as bargaining power. Members’ Schedules are after all in practice negotiated through bilateral concessions between principal trading partners, which are then extended to all WTO Members on the basis of the MFN principle.65 If this interpretation is accepted, automatic continuity is not justifiable.66 This is supported by State practice during the decolonisation period; bilateral treaties were only continued when both parties explicitly agreed thereto.67 Article 24 of the Vienna Convention on Treaty Succession states that bilateral treaties after a succession of States only remain in force when parties expressly agree to it, or when the will to continue is shown by both par-

63 64

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vention de Vienne de 1978 sur la succession d’états en matière de traités (Bruylant, Brussels, 2016) p. 623. See Article 17.3 Vienna Convention on Treaty Succession. For discussion on its customary international law status, see explanation Article 17.1, Ibid. See Article 24 Vienna Convention on Treaty Succession. Various positions have been taken on whether Article 24 codifies rules of customary international law. The argument can however be made that the customary international law character of this provision derives from its similarity to Articles 16 and 17 of the Vienna Convention on State Succession. See A. Di Stefano, ‘Article 24’ in G. Di Stefano, G. Gaggioli and A. Hêche (eds.), La Convention de Vienne de 1978 sur la succession d’états en matière de traités, (Bruylant, Brussels, 2016) p. 845. The most favoured nation treatment principle is set out in Article I GATT. P. Dumberry, ‘State Succession to Bilateral Treaties: A Few Observations on the Incoherent and Unjustifiable Solution Adopted for Secession and Dissolution of States under the 1978 Vienna Convention’, 28 Leiden Journal of International Law (2015) pp. 13-30. International Law Association (ILA), Conclusions of the Committee on Aspects of the Law of State Succession, Resolution no. 3/2008 (2008), adopted at the 73rd Conference of the ILA, at point no. 6.

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ties’ conduct. Bilateral treaties, more so than multilateral treaties, are based on the personal capacity of States. In such a situation, automatic continuity is not warranted.68 Whether the WTO Schedules are interpreted as being multilateral or bilateral agreements, it is clear that consent of the other WTO Members is probably required in case of a secession. This would effectively mean that the UK, upon leaving the EU, would continue its WTO membership without any country-specific Goods or Services Schedules, necessitating a (lengthy) renegotiation with its trading partners. 2.3.2

The Accession Process for ‘Separate Customs Territories’ within the WTO 2.3.2.1 Acceptance under Article XXVI:5(c) GATT From the above, it is clear that international practice on State succession is far from settled, with various possible scenarios (mis)fitting the Brexit scenario. Some more WTO-specific inspiration might be drawn from Article XXVI:5 GATT which contains a specific provision with regard to the acceptance of the GATT by ‘metropolitan territories’ and ‘custom territories acquiring full autonomy’. The relevant text provides: (a) Each government accepting this Agreement does so in respect of its metropolitan territory and of the other territories for which it has international responsibility, except such separate customs territories as it shall notify to the Executive Secretary to the CONTRACTING PARTIES at the time of its own acceptance. […] (c) If any of the customs territories, in respect of which a contracting party has accepted this Agreement, possesses or acquires full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement, such territory shall, upon sponsorship through a declaration by the responsible contracting party establishing the above-mentioned fact, be deemed to be a contracting party.”

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The treaty would have to be seen as an entirely new legal document, even when the content remained the same. Report of the International Law Commission on the Work of its Twenty-Sixth Session, 6 May to 26 July 1974, UNDoc. A/9610/Rev.1 (1974), at points 237, 241.

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It seems worthwhile to consider whether the UK can be deemed a ‘customs territory in respect of which a contracting party has accepted [the GATT]’, thereby allowing for the automatic accession as provided for in Article XXVI:5 GATT. Limited information can be found on what should be considered a ‘separate customs territory’ in the sense of this Article.69 The Panel in the EC – Trademarks and Geographical Indications dispute held (in interpreting footnote 1 of the TRIPS Agreement) that the European Communities could not be considered as a ‘separate customs territory’, as “[t]he European Communities does not form a separate part of the territory of a country.”70 However, the UK does form a separate part of the country-like entity the EU is within WTO context.71 We therefore argue that the automatic accession procedure as set out in Article XXVI:5(c) might provide some guidance as to the position of the UK after Brexit. The automatic acceptance of the GATT by customs territories acquiring autonomy (mostly former colonies) was used frequently, by no less than 63 of all 128 GATT Contracting Parties in 1995 .72 Several elements of Article XXVI:5(c) GATT merit some more elaboration and application to the Brexit context: (i) it is required that the customs territory acquires full autonomy in the conduct of its external commercial relations. This will most probably be the case when the UK leaves the EU: as it will no longer be part of the EU’s single market and customs union (i.e. without a soft Brexit, allowing the UK to remain within the customs union), the UK will resume full autonomy in its commercial relations; (ii) a declaration by the responsible contracting party establishing the independence is required.73 It will therefore be required that the EU 69

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A ‘separate customs territory’ has been defined by the panel in EC – Trademarks and Geographical Indications as “a territory for which a GATT Contracting Party, now a WTO Member, has international responsibility, and is distinguished from a metropolitan territory”. See Panel Report, EC – Trademarks and Geographical Indications, supra note 40, para. 7.164. Ibid., para. 7.166. Ibid. WTO, GATT Analytical Index (WTO Publications, Geneva, 2012), p. 919, , visited on 19 May 2017. It is required that this ‘responsible Contracting Party’ is a Member of the GATT, as became clear in the discussion on the accession of Taiwan before the accession of China. In this discussion it was raised that Taiwan has never been in the GATT as a colony or dependent territory represented by its suzerain State. See S. Chan, ‘Taiwan ‘s Application to the GATT: A New Urgency with the Conclusion of

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notifies the WTO of the UK’s independence after the successful completion of the Article 50 TEU procedure; (iii) acceptance of the independent customs territory as a contracting party to the GATT is automatic.74 Important to the UK’s position in the WTO post-Brexit is the question of what rights and obligations would be applying to the UK (as elaborated on above) under the framework of Article XXVI:5(c) GATT. As held in the Working Party report on ‘Article XXXV – Application to Japan’, “there could be no doubt that a government becoming a contracting party under Article XXVI:5(c) does so on the terms and conditions previously accepted by the metropolitan government on behalf of the territory in question.”75 Autonomous customs territories were therefore expected to take on the same rights and obligations as the ‘metropolitan territory’, including the Schedule of Concessions.76 This required the drafting of a new Schedule continuing the earlier concession with all changes being purely formal modifications or rectifications.77 It was held by the GATT Panel that “[Jamaica, upon accession to the GATT 1947,] had acquired the rights and obligations which had previously been accepted by the United Kingdom in respect of the territory of Jamaica”. This meant that Jamaica assumed the rights and obligations involved in the application to it of the GATT 1947 by the United Kingdom before Jamaica became independent.78 A more recent example illustrates the automatism with which accessions under Article XXVI:5 are accepted: considering communications by both Switzerland and Liechtenstein, declaring the latter’s full autonomy in its external commercial rela-

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the Uruguay Round’ 2 Indiana Journal of Global Legal Studies (1994) p. 286. An a contrario reasoning could apply to the UK’s situation, it having effectively being represented by the EU within the WTO framework. See the wording ‘deemed to be a contracting party’. Since 1963 this automatic acceptance was simplified: requests were no longer referred to the contracting parties, but submitted to the Director General, who certified that all conditions were met and submitted this certification to the Council at the first meeting. The newly independent customs territories were considered contracting parties from the moment of independence or the date of receipt of the certification by the Director-General. See, WTO, GATT Analytical Index, supra note 72, p. 920. GATT, Report of the Working Party on Article XXXV Review, 6 September 1961 (nineteenth session), L/1545, para. 19. WTO, ‘GATT Analytical Index’, supra note 72, p. 920. As set out in the GATT decision of 26 March 1980, Procedure for modification and rectification of Schedules of tariff concessions, L/4962, para. 5. GATT Panel Report, Jamaica – Margins of Preference, L/3485, para. 13.

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tions, the certification by the Director-General states: “since the conditions required by Article XXVI:5(c) have been met, Liechtenstein has become a contracting party on 29 March 1994; its rights and obligations date from 29 March 1994.”79 To this day, Switzerland and Liechtenstein share their Goods Schedule. In order to allow newly autonomous customs territories to adapt to their new independence and to consider their future trade policy and relationship to the GATT, a de facto application of the GATT was allowed, continuing the pre-existing concessions as applicable before independence. Various recommendations regulated this de facto application, allowing first up to two years of de facto application,80 and after 1961 no longer imposing a time limit but requiring the Director-General to submit a report if the de facto application surpassed a period of three years.81 Important to note in this regard is that even though the substantive provisions (including the Schedules of the ‘metropolitan territory’) applied, this was not the case for the procedural provisions of the GATT 1947.82 Any notification obligations within the GATT therefore do not apply to those States de facto applying this agreement.83 Moreover, every contracting party could decide for itself whether it wanted to apply the GATT to the State de facto applying the GATT and this decision did not need to be notified to the GATT.84 Contracting parties applying the GATT de facto could moreover not participate in the resolution of disputes.85 Lastly, for organisational purposes, the de facto GATT Contracting Party could only attend GATT meetings if it had requested and obtained observer status (except for its participation as an observer at the annual sessions of the contracting parties).86 79 80 81

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GATT, Certification by the Director-General, Admission of Liechtenstein as a Contracting Party, 5 April 1994, L/7440. GATT, Recommendation of 18 November 1960, Application of the General Agreement to Territories which Acquire Autonomy in Commercial Matters, 9S/16, 17. GATT, Recommendation of 11 November 1967, 15S/64; the last report provided by the Director-General dates back to 1991: GATT, De Facto Application of the General Agreement. Report by the Director-General, 28 June 1991, L/6866. It should be noted that ‘de facto application’ in this context has never been defined by the contracting parties, this remark as well as those below are based on consequent practice. WTO, GATT Analytical Index, supra note 72, p. 923. WTO, GATT Analytical Index, supra note 72, p. 923. Ibid. Ibid. Ibid.

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An excellent example of the GATT 1947 law and practice as set out above is the independence of Namibia from South Africa. On 20 April 1990, South Africa notified the GATT of the fact that Namibia had become an independent State on 21 March 1990 (using the wording “acquired full autonomy in the conduct of its external relations and of the other matters provided for in the General Agreement”).87 Soon after, it was recognised that Namibia was already de facto applying the GATT, in conformity with the recommendations mentioned above.88 On 15 September 1992, the GATT was notified of Namibia’s wish to be deemed a contracting party in accordance with Article XXVI:5(c) GATT. Namibia submitted that it satisfied all requirements, and it was immediately recognised as a contracting party.89 In line with practice set out above, Namibia took over South Africa’s specific commitments under the GATT.90 The certification of Namibia’s Schedule of Concessions was even postponed because of an ongoing examination of South Africa’s Schedule, regarding the approval of its Harmonized System format.91 Interesting to note here is that, when considering both South Africa’s and Namibia’s Uruguay Round Goods Schedules, even though Namibia took over South Africa’s bound tariff rates, it did not include any of the tariff quotas that can be found in South Africa’s Schedule. A very similar example can be found in the independence of Brunei Darussalam from the United Kingdom in 1984 and its consequent accession to the GATT in 1993. In that instance, the contracting parties were informed of Brunei’s independence since 31 December 1983 on 7 February 1984.92 Brunei had been applying the GATT on a de facto basis, before finally being admitted as a GATT contracting party on 9 De87 88 89 90

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GATT, Status of Namibia. De Facto Application of the GATT, 20 April 1990, L/6669. GATT, Namibia Becomes the GATT’s 105th Contracting Party, 15 September 1992, GATT/1553. Noteworthy: Namibia was retroactively recognised as a contracting party: “its rights and obligations date from 21 March 1990”. GATT, Admission of Namibia as a Contracting Party. Certification by the DirectorGeneral, 17 September 1992, L/7081. The certification stated: “A new Schedule XC relating to Namibia and comprising the concessions specified in Schedule XVIIISouth Africa will formally be established through the procedure of certification of modifications and rectifications relating to schedules to the General Agreement.” GATT, Admission of Namibia as a Contracting Party. Certification by the DirectorGeneral. Addendum, 25 November 1992, L/7081/Add.1. GATT, Status of Brunei Darussalam, 7 February 1984, L/5608.

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cember 1993, with its rights and obligations dating back to 31 December 1983.93 Contrary to the document reporting on Namibia’s accession as a contracting party, no explicit reference is made to the UK’s Schedule of concessions being taken over by Brunei.94 An earlier independency, that of Suriname from the Netherlands (in 1975), led to the accession of Suriname to the GATT on 22 March 1978, which necessitated the creation of a new Schedule of concessions “comprising the concessions specified in Section E of Schedule II – Benelux”.95 If it is deemed that the GATT 1947 (albeit slightly ambiguous) practice regarding the accession of newly autonomous separate customs territories is transposable to the secession of the UK from the EU, at least some guidance would be available to fill the void between the moment the UK leaves the EU and the moment it successfully renegotiates its Schedules. Applying GATT 1947 practice would be in accordance with Article XVI:1 WTO Agreement, which sets out that the WTO shall be guided by the decisions, procedures and customary practices of the GATT 1947 contracting parties. The UK would therefore be able to apply the WTO Agreements on a de facto basis, maintaining the EU’s Schedule of Concessions in goods and (in extending this practice) the EU’s Schedule of Commitments in services, until agreement has been reached as to its own Schedules. 2.3.2.2

Accession under Article XXXIII GATT and Article XII Marrakesh Agreement Reference should also be made to the alternative way of accession available to a “separate customs territory possessing full autonomy in the conduct of its external commercial relations” as can be found in Article XXXIII GATT and Article XII of the Marrakesh Agreement. Both Articles require accession to be based upon “terms agreed between [the acceding Member] and the contracting parties/WTO”. The Marrakesh Agreement no longer allows for the automatic accession of ‘separate customs

93 94 95

GATT, Admission of Brunei Darussalam as a Contracting Party. Certification by the Director-General, 9 December 1993, L/7358. Regardless of whether Brunei took over the UK’s Goods Schedule, it can be noted that Brunei’s Uruguay Goods Schedule does not contain any tariff quotas. GATT, Admission of Surinam as a Contracting Party. Certification by the DirectorGeneral, 22 March 1978, L/4648; GATT, Fourth Certification of Changes to Schedules. Schedule LXXIV – Suriname, 8 June 1978, L/4674.

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territories’ in the sense of Article XXIV GATT.96 But even in the times of the GATT, newly independent customs territories had the choice between the automatic accession through acceptance in Article XXIV GATT and the negotiated ‘classic’ accession as found in Article XXXIII GATT.97 Several examples can illustrate the relationship between both GATT Articles. The accession of Cambodia via Article XXXIII GATT was prompted by Cambodia’s desire to no longer be bound by France’s IndoChina Schedules of Concessions.98 The choice was however not always open. Neither Slovenia nor Serbia and Montenegro could accede to the GATT under Article XXVI:5(c) GATT, as their ‘predecessor State’ no longer existed and could therefore not ‘sponsor’ their accession.99 However, accession via Article XXXIII GATT did not always require a (re)negotiation of Schedules of Concessions. As a first example, Bangladesh’s accession via Article XXXIII GATT did not require a renegotiation of Schedules, “due to unusual circumstances” and was accepted on the same terms as applied before its independence.100 A similar case applied to the Czech Republic and the Slovak Republic after the Czech and Slovak Federal Republic ceased to exist, necessitating an accession

96

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Therefore, we do not argue that Article XXIV:5 GATT could apply directly to a newly independent UK. The reference to this Article merely serves as a source of inspiration for dealing with this unique situation. WTO, GATT Analytical Index, supra note 72, p. 1025. GATT, Accession of Cambodia. Statement by the Representative of the Royal Government of Cambodia at a Meeting of the Contracting Parties on 30 October 1958, 1 November 1958, L/900. See respectively, GATT, Minutes of the Meeting held in the Centre William Rappard on 14 July 1992, 4 August 1992, C/M/258, p. 4, stating: “In Slovenia’s case, however, there was no legal and internationally-recognized entity of the former SFRY that could make the necessary declaration on its behalf under Article XXVI:5(c).”; GATT, Minutes of the Meeting held in the Centre William Rappard on 16/17 June 1993, 14 July 1993, C/M/264, p. 3, stating: “The Council considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the contracting party status of the former Socialist Federal Republic of Yugoslavia in the GATT, and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for accession to the GATT.” For a discussion on the application of Article XXXIII GATT to Bangladesh’s accession, see GATT, Minutes of the Meeting held in the Palais des Nations, Geneva, on 25 October 1972, 1 November 1972, C/M/81, pp. 2-3; GATT Summary Records of the Sixth Meeting held at the Palais des Nations, Geneva, on 7 November 1973, 13 November 1973, SR.28/6, pp. 81-85.

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under Article XXXIII GATT.101 The US representative mentioned three conditions to accept that accession negotiations were unnecessary: “(1) that the defunct State had a high level of obligations under GATT with a bound tariff schedule at meaningful levels; (2) that the new States were fully willing and able to accept an identical level of obligations and the same tariff schedule; and, (3) that the new States were not contemplating important reorientations to their basic trade and economic policies which would nullify or impair trade opportunities enjoyed by other contracting parties in their markets.”102 The Schedule of Concessions of Czechoslovakia was annexed to both States’ Protocol of Accession.103 A transitional agreement was drafted to allow for an interim application104 of the GATT to both States “in view of the exceptional circumstances”, until the entry into force of their Protocols of Accession.105 It remains to be seen whether a similar approach, including no need for renegotiation and interim application, will be applied to the UK when it has to discuss its independent membership at the WTO. 2.3.3

Customs Union in the Sense of Article XXIV GATT – EU Enlargements The GATT provides an exception to the general obligation of non-discrimination, allowing Members to enter into customs unions or free trade areas. For trade in goods, these regional trade exceptions are incorporated in Article XXIV GATT, which sets out the requirements for the formation of such customs unions that are consistent with Members’ obligations. The EU, even though being far more than just that, is in itself also a customs union.106 Article XXIV GATT requires a customs union to “be understood to mean the substitution of a single customs 101 102 103 104

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GATT, Summary Record of the Third Meeting held at the International Conference Centre, Geneva, on 3 December 1992, 5 January 1993, SR.48/3, p. 4. Ibid. GATT, Czech Republic and Slovak Republic. Protocols of Accession. Decisions of 3 December 1992, 16 December 1992, L/7156. Interim application entailed application of the GATT, participation in all activities of the contracting parties and their subsidiary bodies, but not participation in the decision-making process. But limited application to 6 months. See GATT, Czech Republic and Slovak Republic. Interim Application of the General Agreement. Decision of 3 December 1992, supra note 103. P. Van den Bossche and W. Zdouc, The Law and Policy of the World Trade Organization: text, cases and materials (Cambridge University Press, Cambridge, 2012) p. 650.

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territory for two or more customs territories”, while (i) eliminating duties and other restrictive regulations of commerce with respect to substantially all the trade between the constituent territories of the union and (ii) applying the same duties and other regulations of commerce by all members to the customs union to the trade of territories not included in the union (i.e. common external tariffs). The EU fits perfectly within this definition as it applies a “uniform system of customs duties on imports from outside the EU” and within the EU single trading area, all goods (imported or domestically produced) circulate freely.107 Even though no express provisions exist regarding the change in membership of a customs union in the sense of Article XXIV GATT, practice in EU enlargement could guide the way. Even though the Marrakesh Agreement expressly included the EU as a Member to the newly established WTO, the Understanding on the Interpretation of Article XXIV GATT108 does not foresee any procedures for evolving membership of the EU or other customs unions. The only paragraph that seems of (limited) relevance in this regard is Article XXIV:6, which provides in the possibility of renegotiations “under the procedures set forth in Article XXVIII GATT” in case of an increase of any duty when forming (and, as seen from practice, enlarging) the customs union.109 In case of an increase of duty pursuant to a new (member to a) customs union, other WTO Members can request negotiations to seek compensatory adjustment. If these negotiations fail, the customs union must offer compensation, taking the form of reduction of duties on other tariff lines. Only after these procedures can a Member exercise its right to withdraw substantially equivalent concessions.110 The very first invocation of Article XXIV:6 GATT was done in the context of the formation of the European Economic Community (EEC) with its initial six member States, which prompted negotiations on the (new) Schedules of the EEC.111 Other ma107 108 109 110

111

European Union, Customs, 15 May 2017, , visited on 19 May 2017. Added to clarify Article XXIV GATT in the light of the changed economic circumstances of 1994. See the text of Article XXIV:6 GATT. Article XXVIII GATT contains the provisions regarding the modification of Schedules of existing Members. Bridges, WTO Challenges Emerge Over EU Expansion, 6 October 2004, , visited on 19 May 2017. A. Hoda, Tariff Negotiations and Renegotiations under the GATT and the WTO: Procedures and Practices (WTO publications, Geneva, 2001), p. 99.

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jor renegotiations in the context of this paragraph happened when the EEC expanded to nine Member States. Following the treaty establishing its enlargement, the EEC sent out a communication stating its willingness to renegotiate under Article XXIV:6 GATT.112 With regard to tariff quotas specifically, the communication stated: the concessions at present bound in Schedules XL and XLbis, of the European Economic Community and of the European Coal and Steel Community respectively, are the concessions offered for application to the customs territory of the enlarged Community, subject to appropriate adjustments in the amounts of the tariff quotas indicated in those schedules of concessions. These adjustments are those required because of the accession of new member States which were formerly beneficiaries of the tariff quotas in question.113 In the context of these renegotiations, bilateral negotiations were conducted and bilateral agreements were concluded with various other contracting parties. Similar renegotiations were held during the process of further enlargement of the EU in 1981 (accession of Greece) and 1986 (accession of Spain and Portugal). Interesting to note here is that it is reported that for both accessions no agreement could be reached with all contracting parties.114 Similarly, at the third instance of enlargement of the EU (accession of Austria, Finland and Sweden) in 1995, objections were raised to the EU’s proposal of a new Schedule of Concessions. Again, the EU had to engage in bilateral negotiations, not all of them leading to an agreement.115 The single largest increase of EU membership occurred in 2004, with the accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Here as well, the EU notified this enlargement and allowed countries to invoke Article XXIV:6 GATT to negotiate compensation for the increase of tariffs on certain products in the newly acceded EU member States, for an extend-

112 113 114 115

Ibid., p. 103. GATT, Article XXIV:6 GATT renegotiations. Communication from the Commission of the European Communities, 11 January 1973, L/3807. A. Hoda, supra note 111, p. 105. Ibid., p. 107.

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ed period of 12 months.116 Renegotiations of the Schedule accounting for this expansion took 12 years, with the EU-25 Schedules being issued by the WTO on 14 December 2016.117 Therefore, since the enlargement of the EU to 27 Members with the accession of Bulgaria and Romania, no consolidated Schedule has been agreed upon.118 Formally, the applicable Schedule to EU trade in goods is the CLXXIII (173) Schedule (EU-25) as released at the end of 2016. This delay in certification of renegotiated Schedules of Concessions of the EU presents a dark forecast of the issues that both the UK and the EU will encounter once Brexit becomes a reality. Even though it did not prevent the formation of the customs union (the Schedules of the acceding Member States were effectively withdrawn), it does create uncertainty as to the effects of EU enlargement upon its external tariffs and the compensation for other WTO Members. Contrary to enlargement, there is no precedence for a shrinking of the EU. Therefore, it is still unclear what steps must be taken by both the EU and the UK to amend their Schedules to the new reality of the Brexit. Especially the questions of what Schedules would apply to the UK, pending its renegotiation with the various WTO Members remains unanswered. 2.4

Plurilateral Agreements – Government Procurement Agreement 2014 The plurilateral agreements negotiated within the WTO context do not apply to all WTO Members, contrary to the WTO Covered Agreements. The WTO plurilateral agreements (the Agreement on Trade in Civil Aircraft (1980) and Government Procurement Agreement (updated in 2014)) are based on the principle of non-obligatory accession and require WTO Members to expressly become party to them. This creates the unusual situation where the EU is a party to the Government Procurement Agreement, but not the United Kingdom.119 Even though it is recognised 116

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Instead of the normal 6 months. WTO Council for Trade in Goods, Article XXIV:6 Negotiations. Enlargement of the European Union. Communication from the European Communities, 30 September 2004, G/L/695. P. Ungphakorn, 12 years on, EU’s certified WTO goods commitments now up to date to 2004, Trade beta blog, 5 February 2017, , visited on 19 May 2017. Even though, in the meantime, EU membership expanded again with the accession of Croatia in 2013. This is different for the Agreement on Trade in Civil Aircraft, that includes both the UK as well as the EU in its membership. After Brexit, the UK can simply

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that the EU is a party to the 2014 Government Procurement Agreement on behalf of its Member States, this does not mean the Member States are individually bound by this agreement.120 The analyses made in the earlier sections of this paper therefore do not automatically apply here, as the specific situation is different. The UK cannot fall back on its individual membership, nor can it directly be held responsible for the obligations under this agreement (as can be done for the erga omnes partes obligations in the WTO Covered Agreements). It is therefore proposed that the UK must accede to the 2014 Government Procurement Agreement (GPA) as a new party, succeeding in the rights and obligations of the EU.121 The crucial difference here is that the UK was never a party in its own right to the GPA 2014. Therefore, the law and practice on State succession apply even more clearly.122 For the rules on customary international law on treaty succession we refer to what has been discussed under Section 2.3.1. Therefore, as a ‘seceded State’, the UK would not necessarily automatically accede to the 2014 GPA but would have to expressly ratify it as a new party. This is however something that can easily be settled in the agreement between the UK and the EU in the context of Article 50 TEU. There is some practice indicating that in case of a dismantling union, the (ex) members of that union remain bound by the trade agreements entered into by that union, in case of a clear continuity of the entity involved.123 Taking all of this into account, we therefore argue that legal certainty would be best served if both parties agree upon the UK’s succession to the 2014 Government Procurement Agreement.

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continue its membership to this agreement, which is why it is not part of this discussion on the plurilateral agreements. Most recently in WTO Committee on Government Procurement, Decision Pursuant to Article XXIV:6(a) of the Agreement on Government Procurement, 27 June 2013, GPA/118. L. Bartels, supra note 18, p.19. Granted, still under the caveat that the EU is indeed not a State, but a customs union. UN Secretariat, Succession of States in respect of bilateral treaties: third study prepared by the Secretariat [III. trade agreements], 24 March 1971, UN Doc A/ CN.4/243/Add.1, para. 182.

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The Legal Options of the UK in its Economic Relationship with the EU

This section will discuss the legal options the UK has in determining its economic relationship with the EU. While negotiations between the EU and the UK are still ongoing, the UK cannot proceed to negotiate new commitments within the WTO. Since there is no precedent of a Member of the WTO leaving an integrated customs union such as the EU, while remaining in the WTO, it is not entirely certain that legally the UK and the EU indeed have to conclude an agreement before WTO negotiations between the UK and the WTO membership can commence. However, it is a logical consequence of the economic relationship that has been construed between the member States of the EU. Within the WTO, the European Commission speaks on behalf of all EU member States. Agreements between the EU and the WTO membership are conducted based on the expectation that there is a single tariff rate applied at the outer borders of the EU and a single market to which trade rules on inter alia market access are applied. The UK’s commitments within the WTO are intertwined with the commitments of the EU. Leaving the EU will not only affect the commitments made between the UK and the WTO membership, but will equally affect the EU’s commitments and its relationship with other WTO Members. Hence, the EU and the UK first have to agree on a division on important issues such as agricultural subsidies and a division of tariff rate quotas (mostly on agricultural products).124 Keeping this reality in mind, we will now proceed to discuss the options available between the EU and the UK to come to such an agreement. In principle, five options could be explored: (i) a customs union (such as the one between the EU and Turkey), (ii) a bilateral free trade agreement (FTA), such as the EU-Singapore agreement or the new EUCanada Comprehensive Economic Trade Agreement (CETA), (iii) an agreement based on standard WTO-tariffs, (iv) a bilateral ‘Swiss-style’ agreement in which all issues would be negotiated separately, (v) a membership of the UK to the European Free Trade Association (EFTA). Although these are the legal possibilities open to the EU and the UK, not 124

Institute for Government, ‘Brexit Brief: 10 things you need to know about the World Trade Organization’, 31 October 2016 , visited on 19 May 2017.

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all of these options are equally feasible. In the ongoing debate on Brexit, a number of critical issues were identified as forming the foundation of the arguments for the majority of the voters to vote in favour of leaving the EU. ‘Less interference’ of the EU was called for, specifically in the development of rules limiting the sovereignty of the UK, getting rid of the high EU membership fee, gaining more independence on international trade and limiting immigration, both originating from within the EU and outside.125 Not all the five options mentioned fully do justice to these political objectives. Broadly speaking, there are two different routes available to the UK in its approach towards establishing a new relationship with the EU. These two different routes have been called a ‘soft Brexit’ and a ‘hard Brexit’. The difference between the two hinges on the question of whether the UK remains, in some form or another, within the internal market of the EU or not. As the name gives away, a hard Brexit would opt for leaving the internal market altogether as well as access to the customs union of the EU. Taking this route means that the UK would establish a Free Trade Agreement (FTA) with the EU or would trade with the EU on the basis of its MFN WTO commitments. A soft Brexit, on the other hand, would entail staying in the internal market of the EU. The difference between the two routes is that a soft Brexit would leave most of the UK trade-related commitments unchanged. The UK would have common external tariffs with the EU and would at the very least enjoy preferential market access. Relations with third States would not be much altered either. Within the soft Brexit route three options exist: establishing a customs union with the EU, joining the EFTA or developing a ‘Swiss like’ bilateral agreement.126 In light of the formal notification under Article 50 TEU and the subsequent (leaked) response by the European Parliament, a hard Brexit appears to be the more obvious route. After the formal Article 50 TEU notification, the European Parliament drafted a Brexit resolution which was leaked. From this document it became clear that there will be a 125

126

Debating Europe, ‘Arguments for and against Britain leaving the EU’ , visited on 19 May 2017. A. Sims, ‘What is the difference between hard and soft Brexit? Everything you need to know’, The Independent, 3 October 2016. , visited on 19 May 2017.

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transitional deal after 2019 (when the negotiations on the withdrawal agreement should be concluded) preventing the enforcement of custom controls and trade barriers directly after Brexit formally takes effect. This will be a limited deal; it will not exceed three years and should not be seen as membership to the customs union. The UK is also prevented from commencing negotiations on free trade agreements with third countries and bilateral talks with individual EU member States.127 The most likely scenario is the UK leaving the internal market of the EU, which raises questions regarding both the UK’s and (to a lesser extent) the EU’s position within the WTO. For the sake of completeness it should be mentioned that a hard Brexit would also raise some internal constitutional challenges in the UK .128 Because a hard Brexit is by now the more likely option, we will first address the options available under the condition of a hard Brexit. Second, we will look at the options available under a soft Brexit. For each of the different options we will attempt to evaluate if this would lead to the preferred result, keeping the core issues of the ‘Brexit debate’ as mentioned in mind. 3.1 3.1.1

A Hard Brexit A Bilateral Free Trade Agreement between the UK and the EU A bilateral FTA between the UK and the EU would entail establishing a new bilateral agreement which focusses on trade in goods based on reduced tariffs. The advantage of this approach, from the perspective of the UK, is that the country could adopt non-tariff barriers and impose tariffs on some trade in goods between the EU and UK (the same is true when the UK chooses to adopt the WTO commitments as a basis). It would also leave the UK free to commence FTA negotiations with other countries. However, this option is no longer available as a

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D. Boffey, supra note 46. See also Press Release European Parliament, ‘Red Lines on Brexit Negotiations’, European Parliament News < http://www.europarl.europa.eu/news/en/news-room/20170329IPR69054/red-lines-on-brexit-negotiations>, visited on 19 May 2017. The UK in a Changing Europe and Political Studies Association, ‘Brexit and Beyond, How the United Kingdom Might Leave the European Union’, The UK in a Changing Europe for Political Studies Association of the UK, p. 4, , visited on 19 May 2017.

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‘quick fix’ considering that a withdrawal agreement including discussions on trade relations between the EU and the UK would most probably be considered a mixed agreement. A mixed agreement needs the approval of each individual parliament of each member State, on top of the approval needed from the Council and the European Parliament (EP). In a decision of 16 May 2017 the Court of Justice of the EU (CJEU) on the EU-Singapore Free Trade Agreement, it was decided that free trade agreements including provisions on non-direct foreign investment and a regime for investor-State dispute settlement fall within the category of mixed agreements.129 The decision will probably have consequences for the future EU-UK relationship. The EU is likely to pursue a less comprehensive trade agreement, excluding certain areas such as non-direct foreign investment, to avoid a lengthy political discussion.130 3.1.2 EU-UK Trade Based on Standard WTO-Tarifffs Compared to the ‘FTA-option’, the option to fall back on standard WTO terms might be more feasible. Instead of negotiating a bilateral treaty between the EU and the UK, the UK would ‘fall back’ on the WTO commitments it already has established within the WTO. In a post-Brexit situation, these commitments would regulate trade between the EU and the UK. As elaborated on in section 2 of this paper, it is currently unclear how the new UK Schedules should be drafted. If the UK would take the ‘clean slate approach’, one option would be to adopt a duty-free import approach, such as Hong Kong and Macau. The downside of such an approach is that the commitments would have to provide duty-free access across the board, which does not allow for the UK to protect its trade interests.131 In case the UK would base its Schedule on the commitments previously applying to it under the EU Schedule, the problem of the division of quantitative commitments arises. A division of quota 129

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Court of Justice of the European Union (CJEU), Opinion pursuant to Article 218(11) TFEU, Free Trade Agreement between the European Union and the Republic of Singapore, 16 May 2017, C-2017-376, paras. 238, 292, 293 , visited on 19 May 2017. A. Beesley, ‘EU Singapore Ruling Charts Possible Brexit Path’, The Financial Times, 16 May 2017 , visited on 19 May 2017. The Guardian, ‘WTO chief says post-Brexit trade talks must start from scratch’, The Guardian, 7 June 2016. , visited on 19 May 2017.

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between the EU and the UK means amending the EU’s existing bilateral TRQs, which requires the consent of its WTO trading partners. It is not likely that an importing State will accept these changes without asking for something in return. The more obvious solution here would be that the EU maintains its bilateral TRQs and the UK would lose market access. Import TRQs could be more easily divided between the EU and the UK, assuming there is sufficient political will among the EU Member States to allow for such a division. The same is true for the domestic support commitments made within the EU.132 The division of TRQs would then have to be put towards all WTO Members to be agreed upon. Such agreement cannot automatically be assumed. Different countries depend to a different extent on the market access gained through exporting to the UK and, by extension, the EU. When the latter benefit falls away because of a Brexit, maintaining TRQs as they were, will be less attractive for certain WTO Members because they would not grant equal market access to the European market as before the Brexit. This warrants the payment of compensation.133 An interesting case in this regard are the Economic Partnership Agreements (EPAs) concluded by the EU. The UK has a trade interest in maintaining preferential access with the African, Caribbean and Pacific Group of States (ACP countries) under these agreements for the import of sugar. As far as the preferential access concerns Least-Developed Countries (LDCs), the UK could maintain current preferential access since this would be allowed under the WTO Enabling Clause.134 With respect to other ACP countries, the UK would have to amend current commitments.135 Finally, and maybe most importantly, the ‘fall back’ option leaves the UK without any preferential access to the EU market. Trade relations would be governed by the same rules as trade with, for example, China. Lack of any preferential access would be very unfa-

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A. Matthews, ‘WTO dimensions of a ‘UK Brexit’ and agriculture trade’, CAPReform.eu, 5 January 2016. , visited on 19 May 2017. Ibid. WTO Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, Decision of 28 November 1979, L/4903. T. Burri, ‘Free Movement of Persons and Brexit- some Swiss experience from which the United Kingdom could benefit’, 10 August 2016, p. 12, , visited on 19 May 2017.

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vourable for both the UK and the EU, considering the significant trade interests at play between both Members. These challenges and the uncertainty of the outcome of the negotiations lead to the conclusion that ‘falling back’ on the WTO commitments does not provide the most preferable situation from a UK perspective. The UK minister responsible for the Brexit, David Davis, has already announced that he will try to prevent this option from ever taking place.136 3.2 A Soft Brexit Despite the fact that a hard Brexit appears to be more feasible, for the sake of completeness the other options will be discussed here as well. A soft Brexit entails that the UK would in some form keep its access to the internal market of the EU. For those that were in favour of the UK cutting ties with the EU, a soft Brexit will not be the preferred option because it will never give the UK as much freedom and sovereignty as a hard Brexit. On the other hand, a soft Brexit would keep much more of the status quo than its counterpart, leading to less uncertainty and probably less economic and social turmoil. There is therefore something to be said for exploring the options the UK has when pursuing a soft Brexit. There are three options in this case: establishing a customs union, a bilateral ‘Swiss-style’ agreement and joining the EFTA. 3.2.1 Customs Union A customs union between the UK and the EU would likely be similar to the EU-Turkey customs union that has existed since 31 December 1995.137 The customs union between the EU and Turkey provides common external tariffs for all industrial goods. Agriculture, services and public procurement are excluded from the customs union. Some bilateral concessions are applied to agricultural products. It is also foreseen that Turkey aligns itself to some of the internal market areas, such as

136

137

A. Spence , ‘Brexit Minister: UK will strike trade deal ‘parallel’ to article 50 process’, PoliticoEU, 20 October 2016. , visited on 19 May 2017. Decision No. 1/95 of the EC-Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union (96/142/EC) (EC- Turkey Customs Union Agreement), , visited on 19 May 2017.

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trade defence instruments and industrial standards.138 Between 1996 and 2002, the negotiations regarding the customs union were extended to include guidelines on the liberalisation of services and public procurement, but these negotiations were suspended in 2002.139 The UK and the EU could pursue a similar customs union agreement. Establishing a customs union would most likely provide the UK with preferential market access in crucial areas. However, it would still limit the access of the UK to the EU’s goods market. It would be excluded from any other deals made by the EU. The EU-Turkey customs union does not include provision on the free movement of people, but it is unlikely that this would also be the case in a EU-UK customs union. Some provisions on immigration will have to be included, considering the ties both countries have. The UK would then benefit from free movement of high skilled workers, for example to provide free access to European financial talent. It would try and restrict the inflow of low skilled workers, which is not something the EU is likely to agree upon. In this regard it should be remembered that the EU is a stronger trading bloc than the UK, leading to the UK having to make concessions while negotiating the terms of the customs union. In light of these political realities, it is doubtful whether the establishment of a customs union would leave the UK more flexibility than its full EU membership in pivotal areas such as immigration and agriculture. On the other hand, a customs union would not impose the same level of institutional commitments as membership to the EU. Seeing the priorities in the debate prior to the Brexit referendum, it is likely that this is not a feasible option. 3.2.2

A Bilateral ‘Swiss-style’ Agreement in which All Issues Would be Negotiated Separately A bilateral agreement mirroring that between the EU and Switzerland forms the middle ground between the option to establish a customs union and membership to the EEA-EFTA.140 The main difference between

138

139 140

See Section I read in conjunction with Annex 8 (on protection of intellectual, industrial and commercial property) and Section III, Article 44 and beyond (trade defence instruments) of the EC-Turkey Customs Union Agreement. European Commission, Trade, Policy, Countries and Regions, Turkey , visited on 19 May 2017. The European Economic Area (EEA) unites the EU Member States and the three European Free Trade Association (EFTA) States (Iceland, Liechtenstein and Norway) into an internal market.

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the latter and a bilateral agreement is that the objective of the EEA is to maintain an internal market. A bilateral agreement does not have that objective. The absence of an institutional structure and the different overall objective justify that certain discriminatory acts are allowed within the context of a bilateral accord that would be prohibited within the EEA-EFTA structure.141 The difference between a ‘Swiss-style’ bilateral agreement and a FTA as discussed above lies in the fact that the former has a much broader scope than ‘regular’ FTAs. This is the reason that it is worth mentioning this option under the soft Brexit route. The relationship between the EU and Switzerland is based on the EU-Swiss FTA of 1972 and is further arranged in a number of bilateral agreements, commonly called ‘the Bilaterals’.142 Membership to the EEA was rejected in 1992, whereupon the EU and Switzerland negotiated an agreement covering seven sectoral agreements (Bilaterals I). Free movement of persons, technical trade barriers, public procurement, agriculture and air and land transport are included within the scope of this agreement. The seven agreements are bundled; if one falls, they all become void.143 The second set of sectoral agreements (Bilaterals II) was concluded in 2004, including a wide ranging area of topics such as the participation of Switzerland in Schengen and Dublin, agreements on taxation, processed agricultural goods and Swiss financial contribution to economic and social cohesion in the new EU Member States. In total there are around a 100 bilateral agreements in existence between Switzerland and the EU, managed by 15 Joint Committees.144 The upside for the UK when choosing the option to negotiate bilateral agreements, in the same fashion as Switzerland, is that it could pick and choose – in principle – which topics would be included. In practice, the EU is not willing to cooperate in such a ‘cherry picking’ structure. More importantly, the chances are very slim that the EU would be willing to leave out an agreement on immigration. In its approach towards Switzerland, this was one of the topics the EU insisted on to be included in

141 142

143 144

See for example Case C-351/08 Grimme [2009] ECR I-10777, paras. 27-29. EC-Switzerland Free Trade Agreement, 22 July 1972 O. J. L300, 31/12/1972, p. 108, , visited on 19 May 2017. T. Burri, supra note 136. European Commission, Trade, Policy, Countries and Regions, Switzerland, , visited on 19 May 2017.

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the Bilaterals.145 The agreement between Switzerland and the EU does not accept a migration quota.146 It should also be kept in mind that a bilateral agreement would make the UK more vulnerable, as there is no supervisory system in place (which is the case for a EEA-EFTA membership, as explained below). And, as previously stated, the negotiations for such a bilateral agreement would likely take a relatively long time.147 3.2.3

Membership of the UK to the European Economic Area (EEA) and the European Free Trade Association (EFTA) The EEA and/or EFTA membership is considered as one of the most feasible options when a soft Brexit route would be pursued. The EFTA is an association between Iceland, Liechtenstein and Norway, which together are part of the European Economic Area (EEA), uniting the countries and the EU Member States in an internal market. Membership to the EEA would mean complying with the EU legislation on the four freedoms (free movement of goods, services, persons and capital) and provides market access to all the other 30 EEA States. The EEA includes provisions on cooperation on research and development, education, social policy, the environment, consumer protection and more. Equal rights between the citizens and economic operators of the EEA and those of the EU internal market are guaranteed.148 Membership to the EEA-EFTA would accommodate many of the important issues central in the Brexit debate. The EEA-EFTA does not cover the Common Agricultural Policy, the Common Foreign and Security Policy or the customs union. It would leave the UK free in these regards to pursue its own policy. The EEA-EFTA also allows the UK to influence future legislation of the EU. The main downside, from the perspective of the UK, would be that the country would still have to cooperate in the free movement of persons (as part of one of the four freedoms) and would not be free to curb immigration. An upside of joining the EEA is that the UK’s national legal system would already incorporate most of the provisions, acces145 146

147 148

T. Burri, supra note 136. Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, in force 1 June 2002, O.J. L 114/6 of 30 April 2002, 21 June 1999. C. Burke et al., ‘Life on the Edge: EFTA and the EEA as a Future for the UK in Europe’, 22 European Public Law (2016) p. 95. EFTA, ‘EEA Agreement’ , visited on 19 May 2017.

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sion would move along quickly and without much change to the current situation.149 A complication to the accession could be that the UK is currently already a member of the EEA, under the EU pillar. Changing its status would, therefore, require consent of the EEA States and the EU Member States.150 From the perspective of the EU, EEA membership would also be advantageous. As the level of integration between the EEA-EFTA and the EU is quite high, the EU would probably find it less difficult to convince its Member States of the agreement, as it would not ‘reward’ the UK for leaving the EU.151 The EEA-EFTA binds the UK more than all the other options discussed. The trade-off between obligation and preferential access would probably ensure the EU membership that the UK did not get an ‘easy out’. Membership to the EEA would also entail membership to the EFTA, requiring the consent of the current EFTA States.152 This should not be too difficult, as membership of the UK to the EFTA would increase the leverage of the EFTA as a whole and – as said – the UK is already legally prepared to comply with the provisions of the EFTA due to its (former) membership to the EU. In fact, the UK would re-join the EFTA, after it left in 1973 as a founding member to become a member to the European Economic Community. A ratification of the EFTA by the UK government would be sufficient to ensure membership.153 EFTA membership would also require the UK to join the Surveillance and Court Agreement, the Agreement on a Committee of Parliament of the EFTA States and the Standing Committee Agreement.154 This is a commitment to supra-national institutions, not directly in line with the wish of the Brexit voters. Then again, the UK would no longer be subject to the Court of Justice of European Union (CJEU) and the institutional framework of the EFTA is less forceful compared to that of the EU.155 Decisions taken by the EU are not automatically applicable in the EFTA

149 150 151 152 153

154 155

C. Burke et al., supra note 148, p. 77. Ibid., p. 78. Ibid. Article 126 Agreement on the European Economic Area, OJ No L 1, 3.1.1994, p. 3. The European Free Trade Association, Convention establishing the European Free Trade Association, done at Stockholm on 4 January 1960, amended at Vaduz on 21 June 2001. C. Burke et al., supra note 148, p. 78. See Protocol 35 to the EEA Agreement, On the Implementation of EEA Rules, 1.1.1994. See also Case C-300/01 Salzmann II, ECRI-4899, paras. 68-69 (2003).

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States.156 Overall, the membership to the EEA-EFTA seems to provide a good balance in which much of the benefits of EU Membership are conserved, while at the same time ensuring less supra-national interference.157 An important downside, however, is the obligation to adopt the four freedoms of the EU. Since immigration was one of the more important topics in the Brexit debate, it is politically undesirable for any new relationship between the EU and the UK to include the free movement of people in such a way.158

4

Conclusion

Unfortunately, but as expected, our research did not yield a clear and enforceable result: it is still highly uncertain what the UK’s position in international economic law will be once it has left the EU definitively. It is however hoped that the reader has gained some insight on the difficulties both the EU and the UK will be facing in the context of international economic law once Brexit has been completed, and that some options that both parties should take into account when discussing their future economic relationship have successfully been highlighted. As a GATT Member and original WTO Member, the erga omnes WTO obligations will remain applicable to the UK, during the whole Brexit process and afterwards. The main issues are created by the lack of UKspecific goods and services Schedules, as required by Articles II GATT and XX GATS. Especially the quantified tariff commitments create uncertainty as to their distribution and transposability. We have highlighted several options that could be considered by both parties when negotiating the consequences of Brexit. Firstly, the rules on State succession in public international law would most likely lead to the UK departing from a ‘clean slate’, having to renegotiate its Schedules. In doing so, consent by other WTO Members will be required for such Schedules to be certified. Secondly, WTO practice that could inform the WTO Members on the UK’s position in the WTO post-Brexit takes the form of the accession process for newly autonomous ‘separate customs territories’. Several in156 157 158

Decisions are only applicable after a Joint Committee Decision, Paragraph 3, EEA Agreement, Protocol 1 on Horizontal Adaptations, 28.10.2016. C. Burke et al., supra note 148, p. 83. T. Burri, supra note 136, p. 8.

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teresting elements could be noted that would help avoid a ‘legal limbo’ for the UK: (i) accession by the UK would be automatic; (ii) the UK would renegotiate its commitments on the basis of current EU Schedules, thereby not having to enter into negotiations departing from a ‘clean slate’; (iii) while the process of renegotiations is ongoing, a de facto application of the EU’s Schedules would provide for clarity and certainty. Thirdly, the practice of EU enlargement and the specific provisions regarding customs unions in the GATT point again to the need for renegotiation of Schedules. Both the EU and the UK can (and should) propose their amended Schedules, but they must be open to renegotiation under Article XXIV:6 GATT and they will probably have to offer compensation (in the form of lowering duties) or will be subject to withdrawal of other Members’ concessions. The downside to following this practice when dealing with Brexit is that much obscurity remains if no agreement can be reached with all WTO Members who have notified their interest under Article XXIV:6 GATT and that renegotiations will probably take a long time. In the meantime, it could be suggested that the UK opt for a de facto application of the EU Schedules currently in force. Our analysis has thus not yielded any conclusive results on the way forward within the WTO. It could however be argued that the practice regarding separate customs territories would best further clarity and legal certainty. The argument can be raised that treaty continuation is critical when dealing with an important trading nation like the UK, to ensure that trade agreements continue to apply.159 A similar observation can be made with regard to the options for the future economic relationship between the UK and the EU. Despite the fact that a hard Brexit is likely to occur, we would cautiously advocate for the EEA-EFTA option for several reasons: (i) this would cause the least disruption to the currently existing economic relationship (which considerably furthers the economic interests of both the EU and the UK); (ii) many of the currently existing rights and obligations of the UK would continue to exist, but it would have more autonomy regarding its agricultural policy, national security, etc. We readily admit that from the UK perspective (especially taking into account the issues that have been raised during the Brexit campaign) this is not an ideal solution since the UK will still have to pay financial contributions and comply with (future) EU regulations. This might indeed not fit within the UK’s idea of ‘less EU interference’. The alternative would be a hard Brexit, with 159

D.B. Majzub, supra note 37, p. 449.

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the UK cutting all membership ties with the EU and opting for a general FTA, as it would with all of its trading partners. Whether such an FTA would include beneficial provisions for the UK will very much depend on the EU’s political will in this regard. So far, relations between the EU and the UK have not been optimal, giving way to a scenario in which the EU adopts a tough stance towards the UK. A compromise could be to opt for a ‘Swiss-style’ bilateral agreement: it would give the UK the (symbolic) feeling of being able to cut the strong ties with the EU, but would allow the EU to impose enough obligations upon the UK to avoid a complete cut-off.

About the Editorial Board Jure Vidmar Prof. Jure Vidmar is Chair of Public International Law at Maastricht University (The Netherlands). Prior to coming to Maastricht, he held teaching and research positions at the University of Oxford, Harvard Law School, University of Amsterdam and University of Nottingham. He is also affiliated with the Faculty of Law, University of Pretoria. Jure has published widely in several areas of international law. His books include Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice, Oxford, Hart, 2013, Runner-up for the Birks Prize for Outstanding Legal Scholarship in 2014) and Hierarchy in International Law: The Place of Human Rights (Oxford, OUP, 2012, with Erika de Wet). Ruth Kok Dr. Ruth Kok is currently a Senior Legal Advisor at the Legal and Operational Affairs Department of the Ministry of Security and Justice of The Netherlands. Until 2014 she was a Member of the Legal Research Office (Section Criminal Law) of the Supreme Court of The Netherlands and served as a Substitute Judge at the district court. In 2007 she received her PhD from Amsterdam University for her doctoral thesis on Statutory Limitations in International Criminal Law. She obtained her Law degree from Leiden University (The Netherlands). Her main expertise is (international) criminal law. Julian Arato Dr. Julian Arato is Assistant Professor of Law at Brooklyn Law School, USA. He has written extensively on the law of treaties and treaty interpretation, the law of international organizations, and the law of foreign direct investment. Before joining the Brooklyn Law School faculty in 2015, he served as an Associate-in-Law at Columbia Law School. He previously worked as an associate in the international arbitration group at Freshfields Bruckhaus Deringer, where his practice focused on international investment disputes and international commercial arbitration. He holds a JSD from Columbia Law School, a JD/LLM from NYU School of Law, an MPhil form the University of Cambridge, and a BA from Columbia University.

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about the editorial board

Nikos Lavranos Dr. Nikos Lavranos, PhD Maastricht University, is an expert in European law and public international law, and is currently Head of Legal Affairs of Global Investment Protection AG. Until August 2014 he was the Senior Trade Policy Advisor responsible for Bilateral Investment Treaties (BITs) and investment issues in the Dutch Foreign Ministry and previously the Ministry of Economic Affairs, The Hague. He has worked as Senior Researcher and Senior Lecturer at the University of Amsterdam. He is Secretary-General of the European Federation for Investment Law and Arbitration (EFILA), established in Brussels. He was Editor-in-Chief of the Hague Yearbook of International Law until 2014. Daniel Rietiker Dr. Daniel Rietiker is a senior lawyer at the European Court of Human Rights and Lecturer in Public International Law at the University of Lausanne (Switzerland). He is also a member of the Adjunct Faculty of Suffolk University Law School (Boston, USA). He holds a PhD in the field of arms control treaties and a diploma in international relations from the Graduate Institute, Geneva. He is a member of the International Law Association’s (ILA) international Committee on “Nuclear Weapons, Non-Proliferation and Contemporary International Law” and the chair of the association of Swiss Lawyers for Nuclear Disarmament (SLND). In 2014, he was a Visiting Fellow at Harvard Law School. He has published extensively in the fields of human rights and arms control law. Leonor Vulpe Albari Ms. Leonor Vulpe Albari is a Research Associate at Maastricht University where she has obtained an LLM in International Laws (with distinction). She also holds a BA from the College of Humanities at Carleton University (Canada). She continues her legal education at the University of Oxford.